Gujarat High Court
Patel Jitendrakumar Somabhai vs State Of Guajrat on 31 August, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22802 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 22802 of 2019
With
CIVIL APPLICATION (FOR ORDERS) NO. 4 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 22802 of 2019
With
CIVIL APPLICATION (FOR ORDERS) NO. 5 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 22802 of 2019
With
CIVIL APPLICATION (FOR ORDERS) NO. 6 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 22802 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL JITENDRAKUMAR SOMABHAI
Versus
STATE OF GUAJRAT
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Appearance:
MR PK JANI, SENIOR ADVOCATE WITH MR JIGAR G GADHAVI(5613) for
the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR KM ANTANI, AGP for the Respondent(s) No. 1,3
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 2
MR TEJAS SATTA for the applicant in CA No.1/2020
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Page 1 of 35
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C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 31/08/2021
CAV JUDGMENT
1. Heard learned Senior Advocate Mr. P.K. Jani assisted by learned advocate Mr. Jigar J. Gadhavi, learned advocate Mr. Tejas Satta for the applicants in Civil Application no.1 of 2020, learned advocate Mr. Sejal Mandavia for the respondent no.2 and learned Assistant Government Pleader Mr. K.M. Antani for the respondent nos.1 and 3.
2. The petitioners have challenged the Notification dated 19th November, 2019 issued by the respondent - State in exercise of powers provided in Clause(g) of Article 243Q of the Constitution of India read with Section - 7 of the Gujarat Panchayats Act, 1993 (for short 'the Act, 1993') by excluding certain local areas shown in column no.5 of the Notification from the local areas of the existing Balol Gram Panchayat of Taluka - District Mehsana shown in column no.3 of the Schedule and new Gram Panchayat viz. Laxmipura/(Balol) Gram Panchayat is constituted.
3. Thus, Balol village is bifurcated into two village Panchayats. After the election of the Gram Panchayat of village Balol in 2017, the Page 2 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 first meeting of the Gram Panchayat had taken place on 9th May, 2017. During the second meeting dated 17th May, 2017 a resolution was passed by the Balol Gram Panchayat to bifurcate the village panchayat Balol village into two village panchayats i.e. Balol Gram Panchayat and Laxmipura Gram Panchayat.
3.1) The resolution dated 17th May, 2017 was forwarded to the respondent authorities. The District Development Officer made a proposal on 19th March, 2018 for division of Balol Gram Panchayat. On 20th March, 2018 the District Panchayat passed unanimous resolution passed on the basis of the proposal of the Balol Gram Panchayat for bifurcation. The District Development Officer by letter dated 12th October, 2018 sent all the record to the Development Commissioner for appropriate action.
3.2) The Development Commissioner by letter dated 26th October, 2018 returned the proposal stating that the resolution for the purpose of division of the Gram Panchayat is passed contrary to the Government Resolution dated 16th May, 2001 which provides that division of Gram Panchayat can be initiated only after the period of one year from the date on which the election gets over. As the resolution dated 17th May, 2017 was passed within the period of one year from the date of last election, fresh resolution to be Page 3 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 passed by the Gram Panchayat was called for after one year of the date of last election. The office of the Development Commissioner further called for the declarations of the Sarpanch and members of the village Panchayat for their willingness to relinquish their posts as members of the Gram Panchayat and as the Sarpanch of the Balol Gram Panchayat.
3.3) On receipt of the letter from the Development Commissioner, the DDO by letter dated 29th October, 2018 informed the Taluka Development Officer that fresh resolution after the period of one year from the date of last election of the Gram Panchayat be called for bifurcation of Balol Gram Panchayat.
3.4) The Taluka Development Officer in turn by letter dated 1st November, 2018 informed the Sarpanch of the Balol Gram Panchayat to forward the resolution of the Gram Panchayat proposing to bifurcate the Balol Gram Panchayat into two different Gram Panchayats after the period of one year of last date of election of the village. It was also informed by the Taluka Development Officer that the declaration and willingness of Sarpanch and members to give-up their posts was also sought for in the form of declaration and undertakings.
3.5) It appears that on the basis of the Page 4 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 letter of the Taluka Development Officer meeting of the Balol Gram Panchayat was convened on 8th January, 2019 wherein the members by majority votes did not opt for handing over the posts as Sarpanch and member of the Gram Panchayat and they did not agree to pass resolution for bifurcation of the Balol Gram Panchayat.
3.6) The Balol Gram Panchayat by letter dated 30th January, 2019 informed the Taluka Development Officer that the majority members of the Gram Panchayat were not agreeable for giving-up their post for bifurcation of the Balol Gram Panchayat. However, the Taluka Development Officer in spite of the aforesaid position, sent a proposal for division of the Balol Gram Panchayat, which was placed in the meeting of the District Panchayat, Mehsana on 28th February, 2019 and District Panchayat, Mehsana passed a resolution for division of the Balol Gram Panchayat in two different Gram Panchayats.
3.7) Thereafter, the DDO, Mehsana sent a letter to the Development Commissioner on 5th March, 2019 wherein, it was stated that the Gram Panchayat in the meeting held on 8th January, 2019 has by majority decided not to seek division of the Balol Gram Panchayat.
3.8) However, the office of the Development Commissioner vide letter dated 16th September, Page 5 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 2019 sought for clarification from the DDO, Mehsana in relation to the declaration of members of the village panchayat to agree to give-up their posts and position.
3.9) The DDO by letter dated 30th September, 2019 addressed to the Development Commissioner stated that the Sarpanch and the majority members of the Balol Gram Panchayat were not willing to give-up their posts and only two members are willing to give-up their posts as members of the Gram Panchayat. It was further submitted that the District Panchayat,Mehsana has passed a resolution dated 20th February, 2019 for bifurcation of the Balol Gram Panchayat.
3.10) The Development Commissioner sent the papers on 22nd October, 2019 in the form of recommendation to the State Government for bifurcation of the Balol Gram Panchayat without making any reference to the resolution of the Gram Panchayat dated 8th January, 2019, wherein majority members of the Gram Panchayat did not agree for division of the Balol Gram Panchayat and further referred to the resolution no.37 dated 3rd January, 2018 of the Gram Panchayat for division of the Gram Panchayat though in the resolution no.37 dated 3rd January, 2018, the majority members including Sarpanch except one member, all other members of the Gram Panchayat did not give consent for declaration and Page 6 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 undertaking as required by the Taluka Development Officer for bifurcation of the Balol Gram Panchayat.
3.11) On the basis of the letter of the Development Commissioner dated 22nd October, 2019 the State Government issued Notification dated 19th November, 2019 effecting the division of the Balol Gram Panchayat into two village panchayats i.e. village panchayat Balol and village panchayat Laxmipura (Balol).
3.12 ) The petitioner no.1 who is the Sarpanch, whereas petitioner no.2 who is Deputy Sarpanch and petitioner nos.3 and 4 who are the members of the Balol village panchayat whereas petitioner nos.5 to 9 who are the residents of the village Balol, have therefore, challenged the impugned notification dated 19th November, 2019 by this petition.
4. Learned Senior Advocate Mr. P.K. Jani for the petitioners submitted that the impugned notification dated 19th November, 2019 is in contravention of Section-7(2) of the Act, 1993 as no resolution is passed by the Balol Gram Panchayat after one year from the date of the last election for bifurcation of the Gram Panchayat as required by the Government Resolution dated 16th May, 2001. It was therefore, submitted that earlier resolution Page 7 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 dated 17th May, 2017 seeking bifurcation of the village panchayat became non-est and non- operative for all times to come and in absence of any proposal from the Balol Gram Panchayat, the respondent authorities could not have recommended the bifurcation of the Balol Gram Panchayat as there is no effective consultation as provided under Section 7 of the Act, 1993.
4.1) It was submitted that the District Panchayat, Mehsana while passing the resolution dated 28th February, 2019 for division of the Balol Gram Panchayat has also not taken into consideration that there is no compliance of the communication dated 26th October, 2018 of the Development Commissioner calling for fresh resolution to be passed by Balol Gram Panchayat after one year from the date of last election for bifurcation of the Gram Panchayat.
4.2) It was submitted that a misleading reference is made in para-1 of the proposal letter dated 22nd October, 2019 of the Development Commissioner recommending the bifurcation of the Balol Gram Panchayat to the State Government, wherein it is wrongly stated that the Balol Gram Panchayat has passed a resolution no.37 on 3rd January, 2018 agreeing for division of the Gram Panchayat. Reliance was placed on the resolution no.37 dated 3rd January, 2018 which is produced along with the affidavit-in-reply of the Page 8 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 respondent no.1 - Under Secretary, Panchayat Rural Housing and Rural Development Department dated 11th March, 2020. Referring to the said affidavit, it was pointed-out that incorrect statement is made on oath by the deponent that the District Development Officer, Mehsana had sent a proposal on 5th March, 2019 which was received by the Development Commissioner on 12th April, 2019. It was submitted that once the proposal in the form of resolution dated 17th May, 2017 was not in accordance with the Government Notification dated 16th May, 2001, there was no proposal in existence for division of the Balol Gram Panchayat. Learned Senior Advocate Mr. Jani therefore, submitted that in absence of any proposal for division of the Balol Gram Panchayat, there was no question of forwarding the proposal by the respondent authorities to the State Government.
4.3) Learned Senior Advocate Mr. Jani referred to certain averments and statements made in the affidavit of the State Government and DDO to point-out that the same are self-contradictory with a view to cover-up the issues in one form or another. Reliance was placed on the paragraph nos.8, 9 to 12 of the affidavit of Under Secretary affirmed on 11th March, 2020 to point- out that the averments made therein reveals that the DDO had sent the proposal on 5th March, 2019. In order to bring-out contradictory stand of the Page 9 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 respondent, reliance was placed on paragraph nos.15.5.4, 15.5.5 and 15.5.6 of the affidavit of the Deputy Secretary, Panchayat Rural Housing and Rural Development Department affirmed on 1st February, 2021, wherein it is stated that the DDO has sent the proposal on 30th September, 2019. Reference was also made to the additional affidavit of the DDO dated 20th January, 2020 to point-out that the DDO has clarified that the letter dated 30th September, 2019 written to the Development Commissioner was not a proposal made by him again but he had replied the queries raised by the Development Commissioner, which is highlighted in the reference of the said letter.
4.4) Referring to the averments made in the aforesaid affidavits, it was submitted by learned Senior Advocate Mr. Jani that the statement on oath by the DDO makes it abundantly clear that at no point of time, the letter dated 5 th March, 2019 was the proposal for the division of the Balol Gram Panchayat and by additional affidavit, it was explicitly made clear that the letter dated 30th September, 2019 was also not the proposal, but it was the letter giving replies to certain queries raised by the Development Commissioner and therefore, the facts stated on oath in the three different affidavits are at variance with each other which clearly shows that deponents of all the affidavits have made averments which are self contradictory.
Page 10 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 4.5) Learned Senior Advocate Mr. Jani, thereafter referred to the first affidavit filed by the DDO on 21st October, 2020 to point-out that there is no mention in the said affidavit that the proposal for bifurcation of the village was sent on 5th March, 2019. It was only stated that the queries raised were satisfied by the DDO vide letter dated 5th March, 2019, which was sent to the Development Commissioner. Reliance was placed on para-6 of the said affidavit, which reads as under:-
"6. I say and submit that the Development Commissioner has put some queries by letter dated 26-
10-2018 and hence, for satisfying the same I have instructed to the village Panchayat again to pass resolution with regard to this issue of bifurcation.
So, again the resolution was called for from the village Panchayat which is already produced by the petitioner in this petition. From any office the queries were satisfied and sent to the Development Commissioner on 05-03-2019.
Copy of the letter dated 05-03-2019 is annexed herewith and marked as ANNEXURE R3 to the reply.""Page 11 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022
C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 4.6) Learned Senior Advocate Mr. Jani, thereafter referred to the affidavit affirmed on 1st February, 2021 by the State Government with respect to the stand taken with regard to the resolutions dated 25th May, 2000, 16th May, 2001 and 27th October, 2016 passed by the Government with regard to the process of bifurcation under Section 7 of the Act, 1993. Reliance was placed on the paragraph nos.10, 11, 15.4, 15.5.4 and 15.5.5 of the affidavit and it was submitted that the contents of the affidavit would go to show that the State Government is trying to undermine its own resolution in order to justify the impugned notification dated 19th November, 2019. It was therefore, submitted that various affidavits filed by the office of the DDO and the State Government do not present all the details in proper perspective and ought to have pointed- out that the members and the Sarpanch of the Balol Gram Panchayat has resolved not to give-up their position and posts as office bearers of the village panchayat and as such the impugned Notification could not have been passed by the State Government in absence of any initiation of proposal either by the DDO or Development Commissioner in absence of any resolution passed by the Balol Gram Panchayat after the period of one year from the date of the last election.
4.7) Learned Senior advocate Mr. Jani submitted that the judgments referred and relied Page 12 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 upon by the learned AGP about the scope and ambit of consultation and opinion of the Gram Panchayat being not binding on the authority for division of the Gram Panchayat would have no application to the facts of the present case, as in the facts of the present case, the proposal to effect the division of the Gram Panchayat never initiated from the District Panchayat or the Development Commissioner or the State Government. It was therefore, submitted that neither the District Panchayat, nor the Development Commissioner nor the State Government were ever desirous or willing to go for the division of the village Balol Gram Panchayat and it was only at the instance and because of the initiation of the process by the Balol village panchayat in the year 2017, the entire process for bifurcation was undertaken. However, in view of the G.R. dated 16th May, 2001, the resolution dated 17th May, 2017 which was passed by the Balol Gram Panchayt within one year from the last date of election of the Gram Panchayat was nonest and therefore, there was no initiation of the process for bifurcation of the Balol Gram Panchayat. It was therefore, submitted that the impugned notification is required to be quashed and set aside.
5. Learned advocate Mr. Tejas Satta appearing for the applicant in Civil Application no.1 of 2020 was also heard. It was submitted that the Page 13 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 applicant no.1 had made an application for bifurcation of the Balol Gram Panchayat and supported the impugned notification dated 19th November, 2019. It was submitted that the resolution was passed in Gram Sabha of Balol village on 13th June, 2019 in favour of the division of the village. It was submitted that the Government Resolution dated 25th May, 2000 and 27th October, 2016 provide for the procedure and criteria for bifurcation of any Gram Panchayat. It was submitted that according to the said resolution even any resident of the village can also recommend for bifurcation of the Gram Panchayat and if the criteria prescribed in clause-(g) of Article-243 of the Constitution of India are complied with then the respondent authorities can pass necessary Notification for bifurcation of the Gram Panchayat after taking into consideration all the relevant factors.
5.1) Learned advocate Mr. Satta placed reliance upon the decision of this Court in case of Paroya Group Gram Panchayat Vs. State of Gujarat reported in 2008 (2) GLR 1096 in support of his submissions that the decision to bifurcate the Gram Panchayat under Section 7 (2) of the Act, 1993 has been taken in the interest of public at large and such decision is in nature of policy decision of the State Government, which cannot be said to be violative of any legal or constitutional provisions. It was submitted that Page 14 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 there was no material on record to show that the decision is arbitrary, irrational and perverse and therefore, no interference should be made by the Court in such policy decision of bifurcation of the Gram Panchayat.
5.2) Reliance was also placed on the decision in case of Ritaben Babubhai Ninama Vs. State of Gujarat reported in 2020 (2) GLR 1261, wherein this Court reiterated that when the policy decision to bifurcate Gram Panchayat has been taken after taking into consideration all the relevant factors and after following due procedure, no interference is required in such type of policy decision while exercising jurisdiction under Article 226 of the Constitution of India.
5.3) Learned advocate Mr. Satta also relied upon the decision of Division Bench of this Court in case of Lalpur Gram Panchayat Vs. State of Gujarat in Letters Patent Appeal no.249 of 2009 in Special Civil Application no.1399 of 2009 dated 14th July, 2009 reported in 2009 GLHEL_HC 221544 to submit that the impugned resolution dated 16th May, 2001 passed by the State Government is in the form of executive instructions and for valid reasons it may be open for the Government to deviate from the requirement thereof.
Page 15 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 5.4) Reliance was also placed on the full Bench decision of this Court in case of Pruthvisinh Amarsinh Chauhan Vs. K.D. Rawat reported in 2005 (4) GLR 2932, as well as, the Supreme Court decision in case of Federation of Railway Officers Association Vs. Union of India, reported in (2003) 4 SCC 289 to submit that there is an effective consultation by the respondent authorities. Reference was also made to the discussion in the judgment of the Full Bench with regard to what is the meaning of "in consultation". The Supreme Court decision was referred to submit that the judicial review of administrative decision is not permissible unless it is inconsistent or arbitrary or abuse of process power. It was therefore, submitted that no interference should be made by the Court in the matter.
6. Learned AGP Mr. K.M. Antani submitted that the petitioners, who are mainly office bearers of the Balol Gram Panchayat are not entitled to prefer this petition on the ground that there was no effective consultation before the issuance of the impugned notification. Learned AGP Mr. Antani, referred to Section-7(2) of the Act, 1993 to submit that the essential ingredients for the exercise of the powers under the said Section would include (a) consultation with the three tiers of the Panchayat and (b) recommendation by the competent authority. It was submitted that Page 16 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 such consultation is only directory and not mandatory and non-compliance thereof cannot vitiate the decision under Section-7(2) since the exercise under Section-7 (2) of the Act, 1993 is legislative in nature and in furtherance of the public duty. Reliance was placed on the decision of Pruthvisinh Amarsinh (supra) and G.S. Lamba Vs. Union of India reported in (1985) 2 SCC 604 to submit that consultation does not mean concurrence and therefore, even if the village panchayat does not concur with the bifurcation, the State Government would be within its authority to go ahead with such bifurcation.
6.1) Learned AGP Mr. Antani further submitted that in addition to the statutory requirements under Section-7(2) of the Act, 1993 executive instruction pertaining to bifurcation in Government Circulars/Resolutions/Notification dated 25th May, 2000, 16th May, 2001 and 27th October, 2016 are also required to be considered. It was pointed-out that the Circular dated 25th May, 2000 provides for parameters for consideration at the time of bifurcation of the Gram Panchayat which also includes the representation which may be made by the representative of the General Public. Reference was made to the Circular dated 27th October, 2016 which vests power of relaxing the parameters provided for in Circular dated 25th May, 2000 so as to ensure that even if one or more parameters Page 17 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 is not met, the bifurcation of the village Panchayat in the larger public interest cannot be affected. Reference was made to the Circular dated 16th May, 2001 which lays down the parameter for time schedule to be followed for process of bifurcation of the village panchayat.
6.2) It was further submitted that the judicial review of an exercise undertaken under Section-7 of the Act, 1993 which is a legislative Act done only in furtherance of public duty to secure the public interest can be made only if
(i) there is manifest legality in the exercise itself or (ii) legislative exercise does not sub serve the latest intent and/or prejudices public interest which it is meant to secure. It was submitted that keeping in view the above aspect, the true test of legislative exercise of bifurcating Balol Gram Panchayat would lay in assessing whether such exercise of bifurcation was in accordance with law or not, more particularly the procedure as prescribed under Section-7(2) of the Act, 1993 with regard to the consultation and recommendation.
6.3) Learned AGP Mr. Antani submitted that in the facts of the case, consultation with the three tiers of the panchayat happened twice, once pursuant to the resolution of the Balol Gram Panchayat dated 17th May 2017 when the executive body resolved in favour of the bifurcation and Page 18 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 later through resolution dated 3rd January, 2018 when a majority of executive body opposed bifurcation. It was therefore, submitted that the consultation with Balol Gram Panchayat is not in dispute. However, it is another aspect that while initially the consultation was in favour of the bifurcation whereas, in the later consultation there was no concurrence on the aspect of bifurcation. Reference was also made to the fact that the people of the Balol Gram Panchayat were in favour of the bifurcation and it is only the Executive body of the Balol Gram Panchayat who opposed the bifurcation as recorded in Resolution dated 3rd January, 2018.
6.4) It was submitted that with regard to the procedure of recommendation the competent authority i.e. Development Commissioner, who had initially recommended against the bifurcation, but later by recommendation dated 22nd October, 2019 sent a proposal for bifurcation and thus the primary requirement under Section - 7(2) of the Act, 1993 is satisfied since the consultation had taken place and based upon the consultation, there was recommendation of bifurcation by the competent authority.
6.5) It was submitted that only because the first consultation, which took place under Section-7(2) of the Act, 1993 was in non- compliance of the Circular dated 16th May, 2001, Page 19 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 would not vitiate the process of bifurcation because though the Circular dated 16th May, 2001 through its condition no.1 requires the procedure of bifurcation to be initiated after a period of one year from the date of the last election, however as required under Section - 7(2) of the Act, 1993, the procedure of bifurcation is triggered by recommendation from the competent authority for bifurcation to be made to the State Government after consultation with the concerned District, Taluka and village Panchayat. It was therefore, submitted that the procedure for bifurcation would be triggered through public by the competent authority and only after such recommendation is triggered the State Government would thereafter consider the recommendations and its discretion made decision under Section - 7(2) of the Act, 1993. It was therefore, pointed-out that the executive instructions dated 16th May, 2001 cannot be understood to be prohibitive for even undertaking consultation since the procedure as referred to any condition no.1 would mean that the procedure by which the decision making process under Section-7(2) of the Act, 1993 is triggered.
6.6) Learned AGP Mr. Antani submitted that in the facts of the case, it is not in dispute that the procedure for bifurcation was triggered by the proposal/recommendations of the DDO dated 30th September, 2019, which is much after a year from Page 20 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 the date of the last election of the Balol Gram Panchayat. It was therefore, submitted that the reliance placed by the petitioners on application of the Circular dated 16th May, 2001 to be violative while proposing for bifurcation of the Balol Gram Panchayat would be misconceived and inaccurate.
6.7) Learned AGP Mr. Antani in alternative and without prejudice submitted that non- adherence of the parameters of executive instructions cannot be regarded as fatal to the ultimate decision taken under Section-7(2) of the Act, 1993 and submitted as under :-
"(i)Firstly, executive instructions do not have statutory force, and therefore cannot be held as sufficient for vitiating a legislative decision such as one taken under Section 7 (2) of the Act since such decision would be in furtherance of public duty and in public interest [Refer para 12 of AIR 1967 SC 1753 being the case between G., J. Fernandez Vs. State of Mysore & ors. Para 6 of [2011] 15 SCC 398 being the case between Syndicate Bank Vs. Ramchandran Pillai & Ors.] and,
(ii)Finally, the parameters of the executive instructions can be considered only as aids to the statutory requirement of 'consultation'. When the statutory requirement of Page 21 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 'consultation' itself is directory, and when its non-
compliance cannot be regarded as fatal to the decision taken under Section 7(2) of the Act, it would entirely be wrong to contend that non-fulfillment of the parameters of an executive instruction aiding the process of 'consultation' is fatal to the decision taken under Section 7(2)."
6.8) In view of the above, it was submitted that the contentions raised on behalf of the petitioners are not tenable and does not require any interference by this Court in the legislative function of the State Government for bifurcation of the Balol Gram Panchayat.
7. Having considered the rival submissions raised by the learned advocates for the parties and having gone through the materials on record, the short question, which arises for consideration of the Court is that whether the impugned notification dated 19th November, 2019 passed under Section-7(2) of the Act, 1993 read with Article 243(g) of the constitution of India can be sustained in the facts of the case and the existing settled legal position.
8. In order to analyze the law, as well as, the decisions of the various Courts, it would be germen to refer to the provisions of the Act and Constitution as under :-
Page 22 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 Constitution of India Art. "243(g). Powers, authority and responsibilities of Panchayats--
Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self
-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to --(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
Act of 1993 "7. Recommendation of specification of village:
(1) After making such inquiries as may be prescribed, the competent authority may recommend any local area comprising a revenue village, or a group of revenue villages, or hamlets forming part of a Page 23 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 revenue village, for being specified a village under clause
(g) of article 243 of the Constitution if the population of such local area does not exceed 1[twenty-five thousand.] (2) After consultation with the taluka panchayat, the district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion within or exclusion from any villages any local area or otherwise alternation of limits of any village, or recommend cesser of any local area to be a village, to the Governor for exercise of his powers under clause (g) of article 243 of the the Constitution."
9. However, with regard to the undisputed facts of the case, admittedly the resolution dated 17th May, 2017 was passed by the Balol Gram Panchayat for division into two different Gram Panchayats was within the period of one year from the date of the last election and therefore, such resolution was nonest in view of the Government Circular dated 16th May, 2001 which provides that no Gram Panchayat can initiate any proceedings for division of Gram Panchayat within the period of one year from the date of the last election.
10. After the resolution dated 17th May, 2017, the Page 24 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 proposal was remanded back to the Gram Panchayat to pass fresh resolution. However, as per Resolution no.37 dated 3rd January, 2018, by majority it was resolved by the Balol Gram Panchayat that Sarpanch and the members are not ready and willing to give any declaration / undertaking for relinquishing their posts. However, there is no fresh resolution passed by the Balol Gram Panchayat as required to be passed after one year for either agreeing or disagreeing for division of the Balol Gram Panchayat. Thus, there was no basis for making any proposal for division of the Balol Gram Panchayat either by DDO or Development Commissioner to the State Government as required under Section-7(2) of the Act, 1993. Admittedly, the proposal, which was sent by the Development Commissioner on 22nd October, 2019 was in continuation of the resolution passed by the Balol Gram Panchayat on 17th May, 2017 which was nonest in view of the fact that such resolution was passed within one year from the date of the last election and as such the same was contrary to the Government Resolution dated 16th May, 2001.
11. The respondent authority have made self- contradictory statements in the affidavits-in- reply filed before this Court, which is evident as under :-
(i) That paragraph Nos.8, 9 to 12 of the Page 25 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 affidavit of Under Secretary affirmed on 11.03.2020 are reproduced below:
"8. It is further submitted that the recommendation for bifurcation was initiated by the Balol Gram Panchayat under the provisions of Gujarat Panchayat Act, 1993 more particularly under Section 7 of the Act which provided as under :
XXX XXX XXX
9. That competent authority i.e. in the given case, the Concerned District Development Officer had in consultation with the Gram Panchayat had recommended/proposed for the Bifurcation of the Balol Gram Panchayat for the larger public interest of the residents of Village Balol and submitted the proposal to the State Government.
10. XXX XXX XXX
11. It is respectfully submitted that the Balol Gram Panchayat vide resolution dated 03.01.2018 had resolved and had not shown their willingness to vacate the office as members of the Balol Gram Panchayat. The copy of the resolution dated 03.01.2018 is annexed hereto and marked as Annexure-R3 to this affidavit-in-reply.
12. That the Taluka Development Officer, Mehsana had on 01.11.2018 addressed the letter on the basis of the query raised by the Office of the Development Commissioner and District Development Officer concerned to the Sarpanch and/or Talati Cum Mantri to submit the undertaking for giving consent to vacate the post as members of Balol Gram Panchayat and in that letter the Taluka Development Officer had also conveyed to submit fresh resolution for bifurcation of Gram Panchayat as in view of Notification Page 26 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 dated 16.05.2001, such proceedings can be initiated after 1 year from the date of first meeting of the elected Gram Panchayat and in response to the same, the petitioners by relying upon the Notification dated 16.05.2001 stated that the first meeting of the Balol Gram Panchayat was held on 09.- 5.2017, whereas the resolution for division of Panchayat was passed on 17.05.2017 and that the same is contrary to the instructions issued vide notification dated 16.05.2001 which provides that the division process for division of Gram Panchayat can be initiated only after a period of 1 year from the date of which the election gets over. I say and submit that the petitioners as well as the authority concerned have misread the plain reading of the notification dated 16.05.2001, which provides for initiating the process of division of village after a period of one year from the date of election and not for passing such resolution for bifurcation, which in a given case though resolution for bifurcation on 17.05.2017, the process for bifurcation was in reality initiated once the State Government had received the proposal from the District Development Officer, Mehsana. The District Development Officer, Mehsana had sent the proposal on 05.03.2019 and the same was received by the Development Commissioner on 12.04.2019 and thereafter submitted to Panchayat Rural Housing and Rural Development Department of the State Government. The copy of the notification dated 16.05.2001 is annexed herewith and marked as Annexure-R4 to this the affidavit- in-reply."
The averments in the above paragraphs go to show that the District Development Officer has sent the proposal on 05.03.2019.
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(ii) The Deputy Secretary of the Panchayat, Rural Housing and Rural Development Department has filed Affidavit on 01.02.2021. Paragraph Nos.15.5.4 - 15.5.5 and 15.5.6 (at Page 270-271-
272) are reproduced below:
"15.5.4 Considering the resolution of the Gramm Panchayat dated 03.01.2018 and the District Panchayat dated 28.02.2019, the District Development Officer proposed/recommended to the Gram Panchayat on 30.09.2019. A copy of the said proposal/ recommendation is annexed hereto and marked as Annexure-AF4.
15.5.5 The above proposal was considered by the Development Commissioner, who then after considering the said proposal dated 30.09.2019, recommended bifurcation of the Balol Gram Panchayat on dated 22.10.2019 satisfying the requirements of Section 7(2) of the Act, 1993. A copy of the said recommendation is annexed hereto and marked as Annexure-AF5.
15.5.6 It is after considering the above recommendation, as also representations of the general public, which is annexed hereto and marked as Annexure-AF6, the State Government, deliberated on such recommendation in the public interest as also evaluated the same on the parameters prescribed vide circular dated 25.05.2000 and 27.10.2016."
(iii) The District Development Officer has filed additional affidavit on 20.01.2020, wherein he states as under paragraph no.1 is reproduced Page 28 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 below (Page 247 of the writ petition):
"1. I have filed my detail affidavit reply on 21/10/2020 and I adopt all the contentions narrated in my affidavit. But on 19-01-2021, hearing of tis (sic. this) matter took place before the Hon'ble Court. Pursuant to it I want clarify regarding my letter dated 30.09.2019 wrote to the Development Commissioner. I say and submit that it is not proposal made by the Development Commissioner. It transpires from the said letter dated 30.09.2019 in reference mentioned in that letter."
(iv) In the first affidavit filed by the District Development Officer on 21.10.2020 (Page 214 of the writ petition) nowhere he states that he had sent the proposal for bifurcation of the Village Panchayat on 05.03.2019. His stand is that queries raised were satisfied by him vide letter dated 05.03.2019 by Development Commissioner and the same was sent to the Development Commissioner. Relevant paragraph no.6 (at Page 216 of the writ petition) in this regard is reproduced hereinbelow:
"6. I say and submit that the Development Commissioner has put some queries by letter dated 26-10-2018 and hence, for satisfying the same I have instructed to the village Panchayat again to pass resolution with regard to this issue of bifurcation. So, again the resolution was called for from the village Panchayat which is already produced by the petitioner in his the petition. From my office the queries were satisfied and sent to the Development Commissioner on 05-03- Page 29 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 2019. Copy of the letter dated 5-3-2019 is annexed herewith and marked as Annexure R3 to the reply."
(v) The State Government in the affidavit affirmed on 01.02.2021 (at Page 259 of the writ petition) has taken following stand with respect to the Government Resolutions. Relevant Paragraph no.10 (at Page 264 - 265), No.11 (at Page 265), No.15, 15.1, 15.2, 15.3, 15.4, 15.5.4 and 15.5.5 (at Page 268-271) are reproduced hereunder :
"10. The State Government in addition to the above statutory requirements would also be guided by executive instructions pertaining to bifurcation which are envisaged in Circulars dated 25.05.2000, 16.05.2001 and 27.10.2016. Circulars dated 25.05.2000 and 27.05.2016 are annexed herewith and marked as Annexure-AF1 and AF2 respectively.
It shall be noticed that vide Circular dated 25.05.2000, parameters for consideration at the time of bifurcating the Pachayat are earmarked. Amongst the other parameters provided, emphasis is also laid down upon representations which may be made by the representatives of general public. Circular dated 27.10.2016 on the other hand vests power of relaxing the parameters provided for in Circular 25.05.2000 in the executive so as to ensure that even if one or more parameters are not met, yet, the bifurcation in the larger public interest can be effected.
Finally, the circular dated 16.05.2001 lays down parameters for the time schedule to be followed for the process of bifurcation.Page 30 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022
C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021
11. Compositely viewing the statutory requirements under the Act, 1993 as also the circular aiding the administrative process to be held pursuant to the statutory requirements, it would arise that while Section 7 of the Act, 1993 stipulates the requirements for enabling inclusion/ exclusion of local areas, the executive instructions only guide the process of bifurcation of panchayats.
In other words, while it is needless to state that the requirements prescribed by Section 7 of the Act, 1993 are statutory in nature but in terms or relevance are directory, the prescriptions of the executive instructions are only advisories and therefore are neither mandatory nor have statutory force. Moreover, the prescriptions of the executive instructions are not statutorily prescribed but intended to subserve the administrative process required for enabling the exercise stipulated under Section 7 of the Act, 1993. xxxx
15. It is most respectfully submitted that with respect to the second ground of the petitioners, i.e., non fulfillment of the prescription of circular dated 16.05.2001 the following aspects may be considered:
15.1 Circular dated 16.05.2001, through its condition no.1 requires the procedure of bifurcation to be initiated after a period of one year.
15.2 It is most respectfully submitted that the procedure bifurcation as is required under Section 7(2) of the Act, 1993 is triggered by a recommendation from the 'competent authority' for bifurcation which is to be made to the State Government after consultation with the District, Taluka and the Village Panchayat concerned. Thus, the procedure for bifurcation would be triggered through/by a recommendation from the Page 31 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 competent authority.
15.3 It is after such recommendation is triggered that the State Government would thereafter consider the recommendation, and, in its discretion make a decision under Section 7(2) of the Act.
15.4 Clearly therefore the condition no.1 of the executive instruction dated 16.05.2001 cannot be understood as being prohibitive for even undertaking consultation since the procedure as is referred to in condition no.1 would mean the procedure by which the decision-making process under Section 7(2) of the Act is triggered.
15.5.4 Considering the Resolution of the Gram Panchayat dated 03.01.2018 and the District Panchayat dated 28.02.2019, the District Development Officer proposed/recommended to the Development Commissioner, bifurcation of the Balol Gram Panchayat on 30.09.2019. A copy of the said proposal/ recommendation is annexed hereto and marked as Annexure-AF4.
15.5.5 The above proposal was considered by the Development Commissioner, who then after considering the said proposal dated 30.09.2019, recommended bifurcation of the Balol Gram Panchayat on dated 22.10.2019 satisfying the requirements of Section 7(2) of the Act, 1993. A copy of the said recommendation is annexed hereto and marked as Annexure-AF5."
12. From the above averments made on oath in the different affidavit-in-replies filed on behalf of the respondents, it clearly emerges that the respondent authorities are not clear as to when the proposal was received for division of the Page 32 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 Balol Gram Panchayat after the period of one year is over from the date of the last election. It is apparent that the proposal, which was made on 17th May, 2017 only was carried further and recommendation was made by the Development Commissioner on 22nd October, 2019 misinterpreting the Resolution no.37 dated 3rd January, 2018 passed by the Balol Gram Panchayat for recommendation for division of the Gram Panchayat. (Annexure-AF-5 page no.284). The resolution no.37 dated 3rd January, 2018 on the contrary was passed by the Sarpanch and members of the Gram Panchayat by majority that they were not willing to relinquish their post and were not ready to file any undertaking or declaration to that effect for division of the Balol Gram Panchayat. However, the fact remains that no fresh resolution as required by the letter dated 26th October, 2018 of the Development Commissioner was passed by the Balol Gram Panchayat in favour or against the division of the Gram Panchayat. Therefore, in absence of any proposal, there could not have been any recommendation by the Development Commissioner. As stated hereinabove, different stand is taken by the State Government, Development Commissioner and DDO with regard to the date of proposal. As it emerges from the averments, letter dated 5th March, 2019 is not the proposal nor letter dated 30th September, 2019 can be said to be a proposal. Both the said letters are written to give the replies to the queries Page 33 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 raised by the Development Commissioner in the letter dated 26th October, 2018, which was issued on the basis of the resolution passed by the Balol Gram Panchayat on 17th May, 2017 which was contrary to the Government Circular dated 16th May, 2001. Therefore, there was no proposal after the period of one year is over from the last date of the election made by any authority so as to enable the Development Commissioner to make recommendations to the State Government for division of the Balol Gram Panchayat.
13. Reliance was placed for interpretation of the Government Resolution/Circular dated 20th May, 2000, 16th May, 2001 and 27th May, 2016 are misplaced inasmuch as the respondent authorities cannot adopt different yardstick for application of such Circulars to justify the impugned Notification.
14. There cannot be any other view with regard to the settled legal position that impugned notification is in a nature of policy decision or is a legislative function of the State Government and therefore, no interference can be made by the Court, but, in the facts of the case, when there is no proposal for recommendation after the period of one year from the date of the last election either by the Gram Panchayat or by the DDO to the Development Commissioner and by misinterpreting the Resolution dated 3rd January, 2018 passed by the Balol Gram Panchayat, it Page 34 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022 C/SCA/22802/2019 CAV JUDGMENT DATED: 31/08/2021 cannot be said that there was an agreement by the Gram Panchayat for the division. As canvassed by the learned AGP that there was consultation with the Gram Panchayat in view of the resolution dated 3rd January, 2018 is also not tenable in the facts of the case because the said resolution was passed by the Balol Gram Panchayat in relation to the Resolution dated 17th May, 2017 only and the Resolution dated 17th May, 2017 was passed within one year of the date of the last election of the Balol Gram Panchayat and therefore, any consequential resolution to the said resolution cannot be said to be consultation as sought to be canvassed in the facts of the case.
15. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned Notification dated 19th November, 2019 passed by the State Government for bifurcation of the Balol Gram Panchayat into two different Gram Panchayats is hereby quashed and set aside with a rider that the State Government can initiate fresh proceedings under Section-7 of the Act, 1993 if thought fit after following due process. Rule is made absolute to the aforesaid extent. No order as to costs.
16. In view of above, Civil Applications do not survive and are accordingly disposed of.
(BHARGAV D. KARIA, J) AMAR RATHOD/RAGHUNATH R NAIR Page 35 of 35 Downloaded on : Sun Jan 16 11:14:50 IST 2022