Jayant M. Patel, Actg. C.J. - (1.) THE petitioner No. 1, who is the Vice -President of Gandhinagar District Panchayat and petitioner No. 2, who is the Voter of Taluka Panchayat of Umrala in Bhavnagar District, have approached this Court by preferring this petition, inter alia, for the relief to declare the provisions of Clause (3) of Ordinance No. 2 of 2015 promulgated by the Governor of Gujarat as ultra vires Article 243E of the Constitution of India. Thereafter, additional prayers have been added by the draft amendment declaring Clauses (3), (4) and (5) of Ordinance No. 3 of 2015 promulgated by the Governor of Gujarat as ultra vires Article 243E and Article 243U(3) of the Constitution of India. The petitioners have also prayed to issue appropriate writ of mandamus, directing the State Election Commission to declare the date of holding elections of Panchayats in the State of Gujarat forthwith in due compliance of the constitutional obligation flowing from Article 243E of the Constitution of India read with the provisions of Section 13 of the Gujarat Panchayats Act (hereinafter referred to as the "Act" for short).
(2.) IN order to appreciate the controversy, we may refer to certain factual aspects as coming out from the record of the present case. The last elections of 24 District Panchayats and 208 Taluka Panchayats were held in the year 2010 and the results were declared on 23rd November, 2010. The first meeting of the respective Panchayats were held from different dates, but more or less, they were in November 2010. Resultantly, as per the provisions of Section 13 of the Act read with the provisions of Article 243E, the term of the elected body would be for five years and such period of various Panchayats are to end in November 2015. As per the petitioners, the last Assembly Session in the State was from 26.8.2015 to 28.8.2015 and such session was held, but no amendment was suggested to Section 15 of the Act. Thereafter, on 14th September, 2015, the Ordinance has been promulgated being Gujarat Ordinance No. 2 of 2015, wherein Section 15 of the Act has been substituted, which, as per the petitioners, is unconstitutional and ultra vires the Article 243 of the Constitution of India. It further appears that on 3.10.2015, there were two events simultaneously; one was the Ordinance No. 3 of 2015 promulgated, whereby Section 7A of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "GPMC Act"), Section 8A of Gujarat Municipalities Act, 1963 (hereinafter referred to as "Municipalities Act") and Section 257 of the Gujarat Panchayats Act, 1993 (for short "Act") have been substituted. Simultaneously, on the very day i.e. on 3rd October, 2015, State Election Commission - respondent No. 2 issued a Press Note, communicating that the elections of six (6) Municipal Corporations, 53 Municipalities, three (3) newly constituted Municipalities, 23 Taluka Panchayats and 31 District Panchayats were to be held in October/November, 2015, since their terms were to expire. However, considering the span of the elections to be held, the State Election Commission had assessed the condition of law and order and the requirement of law for holding the elections and after detailed consideration, it was decided not to hold the elections at present of the local authorities and to reassess the convenient position for holding the election and then to hold the election within next three months. Under these circumstances, the present petition.
(3.) WE may record that on 9.10.2015 when this petition came to be considered by this Court for the first time, following the order was passed: - - "1. Draft amendment is granted. 2. Prima facie we would have recorded the reasons for considering the importance of the matter since there is a constitutional mandate to hold election of Panchayats before the expiry of the term. We would have further recorded the reasons. 3. However, the learned Advocate General, appearing upon advance copy for the State, prays that some time may be granted to file reply and the petitioner, if wants to file rejoinder, may also file. 4. It has been stated that the outer limit of expiry of the term is first and second week of November 2015.;