Gujarat High Court
Gunvantlal Bhogilal Vrajlal Mehta vs K D Rawat & 2 on 18 July, 2014
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/4597/2001 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4597 of 2001
With
SPECIAL CIVIL APPLICATION NO. 2804 of 2001
With
SPECIAL CIVIL APPLICATION NO. 4432 of 2001
With
CIVIL APPLICATION NO. 10958 of 2013
In
SPECIAL CIVIL APPLICATION NO. 4597 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ GUNVANTLAL BHOGILAL VRAJLAL MEHTA....Petitioner(s) Versus K D RAWAT & 2....Respondent(s) ================================================================ Appearance:
MR RAJESH R DEWAL, ADVOCATE for the Petitioner(s) No. 1 GOVERNMENT PLEADER for the Respondent(s) No. 1 , 3 Page 1 of 46 C/SCA/4597/2001 CAV JUDGMENT MR BM MANGUKIYA, ADVOCATE for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 25/07/2014 COMMON CAV JUDGMENT
1. Since this group of petitions involve common questions of facts and law, the same are being decided by this common judgment, where Special Civil Application No.4597 of 2001 shall be treated as a lead matter.
2. The petitioner seeks issuance of writ of mandamus and/or any other writ for quashment of the notification dated April 03, 2001 as well as April 16, 2001 with further direction to direct the respondents from executing, operating and further implementing the notification in the following factual background :
2.1 The petitioner is an elected Deputy Sarpanch of village Govindpura Gram Panchayat and he is an agriculturist himself. The State Government Page 2 of 46 C/SCA/4597/2001 CAV JUDGMENT issued a notification dated May 23, 1984 excluding village Govindpura from Veda Gram Panchayat, by exercising its powers under sub clause (2) of section 9 of the Gujarat Panchayat Act, 1961 (hereinafter referred to as 'the Act'). Such notification came to be challenged by the Sarpanch of the village by preferring a writ petition before this Court being Special Civil Application No.3322 of 1984. The same came to be rejected on July 05, 1984.
2.2 The Letters Patent Appeal arising from the said order dated July 05, 1984, being Letters Patent Appeal No.290 of 1984 also came to be rejected vide order dated July 20, 1984 by a Division Bench of this Court (Coram : N.H. Bhatt and M.B. Shah, JJ). However, the Court directed the respondents to reconsider the decision of excluding village Govindpura, which is at a distance of about three kilometres from village Veda.
Page 3 of 46 C/SCA/4597/2001 CAV JUDGMENT 2.3 After following due procedure, the Development Commissioner reunited the village Veda and village Govindpura vide order dated October 24, 1984 and constituted Veda Govindpura Gram Panchayat.
2.4 The creation of village VedaGovindpura Gram Panchayat by a notification came to be challenged by two residents of the said village by preferring Special Civil Application No.5539 of 1984, which came to be summarily rejected vide order dated January 29, 1985 by this Court (Coram : S.B. Majmudar, J). The Letters Patent Appeal arising from the said Special Civil Application No.5539 of 1984 bearing Letters Patent Appeal No.46 of 1985 also came to be rejected by a Division Bench of this Court (Coram : B.K. Mehta, Act.C.J. and G.T. Nanavati, J), however, the Division Bench granted six weeks' time to approach the higher forum.
Page 4 of 46 C/SCA/4597/2001 CAV JUDGMENT 2.5 It is the say of the petitioner that prior to issuance of the impugned notification dated April 03, 2001 and April 16, 2001 since the year 1984 villages and the Gram Panchayats were known as VedaGovindpura Gram Panchayat. 2.6 It is averred by the petitioner that after a lapse of nearly 16 years, the Government without holding any inquiry or a procedure as contemplated under section 7 of the Act decided to bifurcate VedaGovindpura Gram Panchayat by the impugned notification dated April 03, 2001.
No consultation was carried out with the existing Gram Panchayat. Although section 7 contemplates inquiry for the said purpose as prescribed under the law, no such inquiry was carried out. Therefore, such exercise of powers deserves quashment according to the petitioner. 2.7 It is alleged that if such consultation had been carried out, the actual motive for bifurcation after such a long gap would have emerged. It is alleged that with an oblique Page 5 of 46 C/SCA/4597/2001 CAV JUDGMENT motive of appeasing particular community of the village, the powers are exercised, which is a colourable exercise of powers.
2.8 It is further averred that the villagers were never interested in such declaration as the entire identity changed on account of such action on the part of the respondents. Reliance is placed heavily on the decision of this Court which lays down that consultation is must before inclusion of total area of the local authority. Hence, present petition.
3. Special Civil Application No.2804 of 2001 is preferred by the Sarpanch of Veda Gram Panchayat seeking the following reliefs :
"(A) Be pleased to allow this petition.
(B) Be pleased to issue a writ of mandamus or any other writ or direction or order in the nature of the writ quashing and setting aside the impugned notification vide AnnexureA dated 3.4.2001, as well as dated 16.4.2001.Page 6 of 46 C/SCA/4597/2001 CAV JUDGMENT
(C) Be pleased to issue the writ of mandamus or any other writ or order or direction in the nature of the writ, restraining the respondents from execution, operation and further implementation of the notifications vide AnnexureA Collectively pending hearing, admission and final disposal of this petition.
(D) Be pleased to grant any other relief which deems fit and proper in the interest of justice."
4. Special Civil Application No.4597 of 2001 is preferred by one Shri G.B. Mehta, who incidentally was an elected Deputy Sarpanch of Veda and Govindpura Gram Panchayats, praying for the following reliefs :
"(a) Be pleased to allow this petition.
(b) Be pleased to issue a writ of mandamus or any other writ or direction or order in the nature of the writ quashing and setting aside the impugned notification vide annex.
"A" dated 3.4.2001 as well as dated 16.4.2001.Page 7 of 46 C/SCA/4597/2001 CAV JUDGMENT
(C) Be pleased to issue the writ of mandamus or any other writ or order or direction in the nature of the writ, restraining the respondents from execution, operation and further implementation of the notification vide annexure "A" Colly pending hearing, admission and final disposal of this petition.
(D) Be pleased to direct the respondents to give the charge to the Elected Body of the VedaGovindpura Gram Panchayat pending admission, hearing and final disposal of the present petition.
(E) Be pleased to grant any other relief which deems fit and proper in the interest of justice."
5. In response to issuance of Rule, an affidavitin reply has been filed by the respondents. The respondent No.4 contended that though the Gujarat Panchayat Act, 1961 came to be repealed on and from April 15, 1994, section 9 of the repealed Act provides the very provision and, therefore, subsection (2) of section 9 of the repealed Act when is pari materia to subsection (2) of Page 8 of 46 C/SCA/4597/2001 CAV JUDGMENT section 7 of the Act, the petition is not maintainable inasmuch as the notification would not get invalidated. It is further contended that the consultation envisaged would not mean that consent or concurrence would be a must. It is, in fact, directory and not mandatory. It is further contended that the State Government did consult the Gram Panchayat before issuance of notification and, thus, the averment is de hors the record. It is also contended that the State has exercised its power providing separate Gram Panchayat to village Himatpura, which is a separate and independent revenue village. The State Government provided the constitution of group Gram Panchayat in respect of three villages namely Veda, Govindpura and Himatpura in exercise of powers under subsection (2) of section 7 of the Act. The State bifurcated the Himatpura Gram Panchayat from the said group of Gram Panchayat as village Himatpura has less population than the population of village Veda Gram Panchayat. Such notification was also challenged by way of Special Civil Application No.4468 of 1997. It is Page 9 of 46 C/SCA/4597/2001 CAV JUDGMENT the say of the respondents that inhabitants of village Veda have their rights to be governed by the Local Self Government and village Himatpura, which has comparatively very less population, the State has rightly exercised powers by separating village Veda from village Govindpura. Moreover, any resolution passed by the Gram Panchayat would have no consequence, according to the respondent No.4, as the decision of the panchayat is not binding upon the Government. According to the respondent, the procedure for consultation had already taken place. It is after a long gap of 16 years, the Government has exercised its powers to bifurcate the group panchayat into distinct gram panchayats. Moreover, the Administrator has already taken charge on April 17, 2001 and has started functioning. Moreover, according to the respondents, the distance of the revenue villages, which separate each other, would not be of much consequence and some of the instances are cited by the respondent No.4 to indicate that the distance of certain gram panchayats is even less than a kilometre. Such instances do not require Page 10 of 46 C/SCA/4597/2001 CAV JUDGMENT any reproduction at this stage. It is further urged that in the case of Likhi Group Gram Panchayat and others v. State of Gujarat and others, reported in 2000(1) GLR 827, this Court has held that the consultation envisaged under the Act does not mean consent or concurrence and the same is directory. The same view is taken in the case of Chhani Nagar Panchayat and another v. State of Gujarat and others, reported in 2000(2) GLR 1263, wherein also a Division Bench of this Court has held that consultation is not mandatory, but is directory.
6. As far as the State Government is concerned, the respondent No.3Joint Secretary, Panchayat, Rural Housing and Rural Development Department, vide his affidavitinreply has contended that the notification dated April 03, 2001 bifurcated VedaGovindpura Gram Panchayat into two separate Gram Panchayats, viz. Veda Gram Panchayat and Govindpura Gram Panchayat. It is also urged that the order dated April 28, 2001 passed by the Full Bench of this Court directed the Administrator Page 11 of 46 C/SCA/4597/2001 CAV JUDGMENT not to take over the charge, however, on April 17, 2001, the Administrator had already taken over the charge of the respective Gram Panchayats and thereafter, the petitioner of Special Civil Application No.2804 of 2001 would not be holding designation of a Sarpanch. These facts have been suppressed from this Court and, therefore, such order may not come in the way of implementing the notification. It is further contended that the Gram Panchayat was consulted on January 09, 1996 and the District Panchayat, Mehsana, was consulted on March 07, 1996, as required under the provisions of section 7 of the Act. It is further contended that Govindpura Gram Panchayat was earlier bifurcated vide notification dated May 23, 1984. However, on reconsideration thereafter, both the villages were directed to be reunited. However, after a long spell, it was decided that village Govindpura is economically viable as a separate Gram Panchayat in view of tax revenue. Again, village Himatpura is separated although it is a small village and, therefore, it would be unjust and unfair if this Page 12 of 46 C/SCA/4597/2001 CAV JUDGMENT village Govindpura is not given a separate status.
7. An application was preferred in Special Civil Application No.4597 of 2001, whereby the Social Worker and the ExSarpanch of VedaGovindpura Gram Panchayat and sitting Member of District Panchayat, resident of village and ExSarpanch of Group Gram Panchayat, ExPresident of Govindpura Multipurpose Cooperative Society Ltd., etc. made a request to implead them as party by urging that they are the residents of village Govindpura and they had moved the Government for bifurcation and after considering overall facts and circumstances, the Group Gram Panchayats have been bifurcated and the Administrator is appointed by the competent authority, who has taken over the charge. On the ground that the result of the petition would have a bearing on the plight of the village Govindpura, they have urged to implead them.
Page 13 of 46 C/SCA/4597/2001 CAV JUDGMENT Such request is found legitimate and hence, is entertained permitting these applicants to be impleaded as party respondents.
8. Both the sides have been heard at length. The learned Senior Counsel Mr.B.B. Naik appearing with the learned advocate Mr.Rajesh Dewal for the petitioner, has urged that the earlier consultation in the present case was in the year 1996, which could not have been depended upon at the time of issuing the notification on April 03, 2001. He further urged that the proposal was dropped on October 09, 1998 and once again, the file was placed before the Minister on November 17, 1999. On what basis the decision has been taken, is not coming on record. The proposal was rejected whereby VedaGovindpura Gram Panchayat was not to be given separate status. In absence of any power of review and in absence of any changed circumstance, no review could have been made when the decision was already taken. Heavy reliance is placed on the decision rendered in the case of Likhi Group Gram Panchayat (supra). Page 14 of 46 C/SCA/4597/2001 CAV JUDGMENT Reliance is also placed on the decision of the Supreme Court in the case of Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji, reported in AIR 1970 SC 1273.
9. For and on behalf of the State Government, the learned Assistant Government Pleader has urged that the consultation is not mandatory and the decision taken by way of public notification is a legal exercise of power as the power is conferred upon the State to decide bifurcation and having followed the law laid down by this Court, when in the larger interest of all the Gram Panchayats the decision is taken, in the matters of policy decision, the Court would rarely interfere. No cause is made out in the matter on hand, according to the learned Assistant Government Pleader.
10. Mr.B.M. Mangukia, learned counsel appearing for the parties seeking impleadment for and on behalf of Govindpura Gram Panchayat, contended that the very locus of the petitioners who have Page 15 of 46 C/SCA/4597/2001 CAV JUDGMENT approached this Court is questionable. Except one of the villagers, who has approached this Court, nobody has any grievance. No stay has been granted against the notification and even before the Court directed the stay of the notification on misleading statement of the petitioner, the Administrator had already taken over the charge on April 17, 2001. Much water has flown during the pendency of these petitions and the elected body has functioned for all these years. When the State has exercised the function of enacting sub ordinate legislation, no res judicata can be applied and when there is nothing to indicate that the action of issuance of notification is contrary to wellsettled law on the subject, the Court may not interfere. According to the learned advocate, no fresh consultation is necessary. He has relied on Article 243(G) of the Constitution of India in support of his submissions.
11. Before adverting to the facts, the law on the subject needs to be considered. A specific contention has been raised in respect of gross Page 16 of 46 C/SCA/4597/2001 CAV JUDGMENT violation under subsection (2) of section 7 of the Act. It would be beneficial to reproduce section 7 of the Act, which reads as under :
"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 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 fifteen thousand.
(2) After consultation with the taluka panchayat, district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion with or exclusion from any village any local area or otherwise alteration 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 Constitution."Page 17 of 46 C/SCA/4597/2001 CAV JUDGMENT
12. The Gujarat Panchayat Act came to be repealed on and from April 15, 1994. Section 9 of the repealed Act provides for the very provision which was incorporated in section 7(2) of the Act. It would be beneficial to reproduce section 9 of the repealed Act as under :
"9. Declaration of nagar and gram : (1) After making such inquiries as may be prescribed, the State Government may, by notification in the Official Gazette, declare any local area, comprising a revenue village, or group of revenue villages or hamlets forming part of a revenue village, or such other administrative unit or part thereof
(a) to be a nagar, if the population of such local area exceeds 10,000 but does not exceed 25,002, and
(b) to be a gram, if the population of such local area does not exceed 10,000.
Provided that if in the case of a local area which is eligible for being declared as a nagar sunder clause (a), the State Government, having regard to the geography, Page 18 of 46 C/SCA/4597/2001 CAV JUDGMENT extent of urban development and such other factors in relation to that area as may be prescribed and after consulting the local authority if any, constituted for such local area is of the opinion that the local area should be declared to be a gram, the State Government may by a like notification declare the local area to be a gram.
Provided further that if in the case of a local area, which is eligible for being declared as a gram under clause (b), the State Government having regard to the geography, extent of urban development and such other factors in relation to that area as may be prescribed and after consulting the local authority, if any, constituted for such local area is of the opinion that the local area should be declared to be a nagar, the State Government may by a like notification declare the local area to be a nagar.
Notwithstanding anything contained in sub section (1) and section 4 of the Gujarat Municipalities Act, 1963 (Guj.34 of 1964) if the State Government having regard to the geography, extent of urban development and such other factors in relation to a municipal borough as may be prescribed, and after consulting the municipality Page 19 of 46 C/SCA/4597/2001 CAV JUDGMENT constituted for such municipal borough, is of the opinion that the area comprised in the municipal borough be declared to be a gram or nagar, the State Government may, by notification in the Official Gazette, declare the area comprised in the municipal borough and specified in the notification to be a gram or nagar.
(2) After consultation with the taluka panchayat, the district panchayat and the nagar or gram panchayat concerned (if already constituted) the State Government may, by like notification, at any time
(a) include within, or exclude from, any nagar or gram, any local area or otherwise after the limits of any nagar or gram;
(b) declare that any local area shall cease to be a nagar or gram;
(c) having regard to clauses (a) and (b) of subsection (8), declare the whole area comprised in a gram or the part thereof to be a nagar or two or more grams or the whole area comprised in a nagar (to be a gram or split up the area comprised in the nagar into a nagar and a gram or into two or more grams) and thereupon the local area shall be so included or excluded, or the limits of Page 20 of 46 C/SCA/4597/2001 CAV JUDGMENT the nagar or gram so altered (or the local area shall cease to be a nagar or gram or, as the case may be, the area declared to be a nagar or gram shall be a nagar, or gram as the case may be)."
13. This Court in the case of Kalubhai Kesrisingh Mahida v. The State of Gujarat and others, reported in 6 GLR 451, has held and observed that the provision in respect of consultation is directory and not mandatory. This Court held that refurnishing of areas would not take away the people of their right. This Court in the case of Likhi Group Gram Panchayat (supra) :
"6. It was next argued by Mrs. Mehta that once the Development Commissioner had turned down the proposal for such division/ bifurcation, he was required to follow the procedure of fresh consultation with Gram Panchayat, Taluka Panchayat as well as with the District Panchayat and as no such consultation had taken place the Notification should be quashed. The Resolution passed by the Taluka Panchayat and District Panchayat regarding the Page 21 of 46 C/SCA/4597/2001 CAV JUDGMENT proposal for bifurcation is annexed at page 36 of the SCA. This Resolution would show that there was no mala fide on the part of the Development Commissioner in issuing the Notification in question. It may be stated that consultation required had already taken place earlier. Therefore, after considering all the materials on record, if ultimately the Development Commissioner has issued a Notification it cannot be said that within such a short period further consultation was required to be made. So far as the question of consultation is concerned as laid down in the decision reported in (1965) Guj 6 LR 451 in the case of Kalubhai Kesrisingh Mahida v. State of Gujarat, that such procedure is directory and not mandatory. In this decision it has been further observed as under :
".....a duty to consult the Panchayat before passing an order under the section, it does not follow that every departure from that duty will taint the whole proceeding with a fatal blemish and render it void and ineffective. We find nothing in Section 9 of the Act which would lead us to the conclusion that if the Government omits to consult the Panchayat concerned while taking action under Subsection (2) of Section 9, the right of the Panchayat or any person Page 22 of 46 C/SCA/4597/2001 CAV JUDGMENT would be adversely affected. There is also nothing in the Act to show that even after consultation the sense Indicated by the Panchayat concerned would be binding to the Government."
It has also been observed in the said judgment that the Subsection (2) of Section 9 is directory and not mandatory. Above referred to reported decision was also subsequently followed by the Division Bench of this Court in the case reported in (1977) 18 Guj LR 814 in the case of Naroda Nagar Panchayat v. State of Gujarat, wherein it has been observed that the word 'consultation' cannot be equated with "consent" or "concurrence." In the instant case aforesaid procedure of consultation had already taken place and therefore, it cannot be said that the Notification issued by the Development Commissioner was in any way illegal, arbitrary or mala fide."
14. In the case of Naroda Nagar Panchayat, Ahmedabad v. State of Gujarat and others, reported in 1977 GLR 814, a Division Bench of this Court was considering the provision contained in section 9(2) of the Gujarat Panchayat Act. The Court after a detailed Page 23 of 46 C/SCA/4597/2001 CAV JUDGMENT examination of the provision and the material on record held that the said provision is directory in nature and although it indicated a duty to consult concerned Panchayats before passing an order and it does not follow that every departure from that duty would taint the whole proceedings with a fatal blemish and render it void and ineffective. There is nothing in the Panchayats Act to show that even after consultation the sense indicated by the Panchayats concerned will be binding on the Government. The word 'consultation' cannot be equated with 'consent' or 'concurrence'. The two sets of expressions have clearly different meanings in common parlance. It would be beneficial to reproduce the relevant paragraph of the above cited decision as under :
"22. The argument under this head of challenge was that the provision about consultation in Section 9 (2) of the Panchayats Act is mandatory and that it was obligatory on the Government not only to consult the concerned panchayats before exercising the powers of exclusion of any Page 24 of 46 C/SCA/4597/2001 CAV JUDGMENT area from within the limits of the respective panchayats but also to have abided by the views of the concerned Panchayat, for, "consultation" is equivalent to "consent" or "concurrence". This submission cannot be accepted because it is concluded against the petitioners by the decision of the Division Bench of this Court in Kalubhai v. State VI G.L.R. 451. It was there held that the provision as to "consultation" contained in Section 9 (2) of the Act was directory in nature and that although it indicated a duty to consult the Panchayat before passing an order under that section, it did not follow that every departure from that duty would taint the whole proceeding with a fatal blemish and render it void and ineffective. It was further observed that there was nothing in the Panchayats Act to show that even after consultation the sense indicated by the Panchayat concerned would be binding on the Government. We are in complete agreement with the aforesaid observations in Kalubhai's case. As pointed out in the said decision, the provision about consultation has not been included as a safeguard of a right of any person. Whatever rights, if any, that may be of having a local self Government body or of membership of the Panchayat are the creation of the Statute Page 25 of 46 C/SCA/4597/2001 CAV JUDGMENT which itself brings into existence a Panchayat and its electorate body and provides for its rearrangement. Such an action of reconstituting or rearranging the areas would not totally and for ever deprive the people of a local selfGovernment body, or the right of the people to elect their representatives to a Panchayat. The word "consultation" cannot be equated with "consent" or "concurrence" as contended for by the petitioners. The two sets of expressions have clearly different meanings in common parlance."
15. In the case of Bavabhai Sukhabhai Patel, Sarpanch of Haria Gram Panchayat v. State of Gujarat and others, reported in 1986(1) GLR 377, this Court has held that as per the provision of section 9(2), certain lands can be excluded from the limits of a Panchayat. It is not true that the power can be exercised only to constitute a new Panchayat.
16. In the case of Chhani Nagar Panchayat (supra), this Court has held and observed that noncompliance with the provision of section 9(2) Page 26 of 46 C/SCA/4597/2001 CAV JUDGMENT would not, ipso facto, result in action being declared null and void. It would be beneficial to reproduce the relevant paragraph of the said decision as under :
"12. The questions for our consideration, therefore, are; whether the provisions of sub section (2) of Section 9 of the Gujarat Panchayats Act 1961 are directory or mandatory, and whether they were complied with in the instant cases; and whether the action taken under Section 16 of the GIDC Act, 1962 can be said to be legal and valid.
Now, so far as the consultation is concerned, it was, no doubt, contended on behalf of the petitioners that, there was no consultation with Chhani Nagar Panchayat by the State Government before Notification was issued under sub section (2) of Section 9 of the Act. It is, however, necessary to bear in mind that, in the Notification itself which is challenged by the petitioner, there is a recital to the effect that the Notification was issued under sub section (2) of Section 9 of the Act after consultation with Baroda District Panchayat, Baroda Taluka Panchayat and ChhaniBajwa Page 27 of 46 C/SCA/4597/2001 CAV JUDGMENT Gram Panchayat. When such a recital is made in the Notification, there is a presumption in favour of the act which has been done in consonance with the law as reflected in Section 114 of the Evidence Act that the Panchayats concerned were consulted before issuance of the Notification. An affidavit inreply is filed by Asst. Chief Executive of GIDC, wherein the assertion made by the petitioner Panchayat was refuted. Though no affidavit is filed on behalf of the State Government, it was stated by learned Addl.
Govt. Pleader that Chhani Nagar Panchayat was consulted before issuance of Notification under section (2) of Section 9 of the Act and that Chhani Nagar Panchayat had also passed a Resolution consenting to such action. In view of the fact that the petitioner Panchayat was consulted and that a resolution was passed by the Nagar Panchayat, it cannot be said that there was non compliance with the provision of sub section (2) of Section 9 of the Act."
17. We notice that in the case of Baldev Singh and others v. State of Himachal Pradesh and others, reported in AIR 1987 SC 1239, certain areas were to be declared as notified areas within the local limits of one panchayat. No Page 28 of 46 C/SCA/4597/2001 CAV JUDGMENT consultation was made of the residents of such locality before declaration of such area to be notified area. The question was whether the prior opportunity of hearing was a must and whether any civil consequences would ensue. The Apex Court held and observed that unless the statute rules out the application of natural justice, hearing was necessary by stating thus :
"We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Sec.256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after considering the views of the residents. Denial of such opportunity is not in consonance with the scheme of the Rule of Law governing our society. We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way."
18. Another judgment of the Apex Court in the case of State of U.P. v. Pradhan Sangh Kshetra Page 29 of 46 C/SCA/4597/2001 CAV JUDGMENT Samiti, reported in 1995 Supp. (2) SCC 305, wherein the question was with regard to delimitation of panchayat areas and Gram Sabhas under the U.P. Panchayat Raj Act, 1947, without affording opportunity to the people of the areas, which was a violation of the principle of audi alteram partem. The Court held and observed that the action since was taken without affording any opportunity of hearing in view of urgency, the postdecisional hearing was considered as sufficient compliance.
19. In the case of Saij Gram Panchayat v. State of Gujarat and others, reported in AIR 1999 SC 826, the Apex Court after considering earlier decisions did not uphold the contention of violation of principle of natural justice as the Court found a long drawn out exchange of views, consultations as well as consideration of objections over the issuance of a notification under section 16 of the Gujarat Industrial Development Act, which was also linked with the exclusion of this area from the panchayat area Page 30 of 46 C/SCA/4597/2001 CAV JUDGMENT under section 9(2) of the Gujarat Panchayats Act, 1961.
20. It is to be noted at this stage that the learned Single Judge who was earlier seized with these petitions referred to the decisions rendered by three different Division Benches in three cases, viz. (1) Kalubhai Kesrisingh Mahida (supra) (2) Nathabhai M. Patel v. State of Gujarat and others, reported in 1993(2) GLR 992 and (3) Likhi Group Gram Panchayat (supra) and observed that the ratio decidendi in the case of Nathabhai M. Patel (supra) is in conflict with that in the case of Lakhi Group Gram Panchayat (supra). The Full Bench was constituted which formulated three points for consideration in the case of this very petitioner of Special Civil Application No.4597 of 2001 and the relevant part of the said judgment in the case of Pruthvisinh Amarsinh Chauhan v. K.D. Rawat or his successor in office, reported in 2005 (4) GLR 2932, is as follows :
"3.7 xxx xxx xxx Page 31 of 46 C/SCA/4597/2001 CAV JUDGMENT
(i) What meaning could be attributed to term "Consultation" after due consideration of Kalubhai's case, Nathabhai's case and the case of Likhi Group Gram Panchayat (supra), and the case of Chhani Nagar Panchayat and Another Vs. State of Gujarat, 2000 (2) GLR 1263 ?
(ii) Whether there is any conflict between ratio decidendi settled in Nathabhai's case and in the case of Likhi Group Gram Panchayat ?
(ii) Whether the Government, after taking a decision on the issue of bifurcation after due consultation, can again issue a Notification without fresh consultation of the Taluka Panchayats and Village Panchayats or whether the Government will have to undertake the exercise of fresh consultation ?"
The Court after hearing both the sides held and observed thus :
"12. What emerges from these two judgments therefore is that in case of Nathabhai, the Division Bench found that as the decision was taken on fresh material, Page 32 of 46 C/SCA/4597/2001 CAV JUDGMENT earlier consultation would not be effective or real. Whereas in the case of Likhi Group of Gram Panchayat there was no fresh material, there was no change in circumstance and the time lag was so narrow that the Division Bench, probably, felt in the facts of the case that fresh consultation was not required. Both the decisions concurred on the aspect that requirement of consultation is not mandatory, but, is directory. The decision taken in both the cases in respect of further consultation were based on facts of those cases and in our opinion, as such, there is no conflict between the ratio laid down in the two decisions.
13. The third point that requires consideration by virtue of the reference is whether the Government can issue Notification without again consulting the Panchayat as per the requirement of Section 7(2) of the New Act.
13.1 As discussed above, though the requirement of consultation is not mandatory and is directory, in our opinion, it cannot be given a total gobye to it. Since the Legislature in its wisdom has incorporated this provision, it has to be given its due importance. It is true that in other case Page 33 of 46 C/SCA/4597/2001 CAV JUDGMENT noncompliance would not vitiate the decision, valid reasons therefore have to be indicated. The object behind the enactment has to be saluted. The affected party must have an opportunity to express its opinion and view on he proposed decision. The term is used as a consultation and it cannot be, by any stretch of imagination , taken as concurrence or consent and therefore, after consultation a decision may be taken by the Government.
14. After the consultation, once it culminates into a decision considering the pros and cons of the matter, the exercise comes to an end and chapter is closed. If it is proposed to make a fresh decision, in our opinion, it would be a new chapter and fresh exercise of consultation would be necessary. It will have to be examined whether there is change in circumstance or not and if so, what are the changes and for that reason, what is the view point of the Panchayat the affected party. This requirement of law has to be, thus, saluted as if it is altogether a new proposal for decision on aspect of bifurcation.
15. If after undertaking an exercise a final decision one way or the other is not taken, probably fresh exercise may not be Page 34 of 46 C/SCA/4597/2001 CAV JUDGMENT undertaken once again. If there is a lapse of time resulting into change into factual scenario, the Government or the Authority can legitimately be expected to undertake a fresh exercise of consultation.
16. In view of the above discussion, the points for our determination are answered as under :
(i) The term 'Consultation' has to be taken as an effective and meaningful and genuine consultation and not a formality.
(ii) There is no conflict between the ratio laid down in the case of Nathabhai (supra) and Likhi Group Gram Panchayat (supra). The conclusions are based on fact of each case, but, there is no conflict in the ratio.
(iii) If proposal has culminated into a decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure therefrom may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken." Page 35 of 46 C/SCA/4597/2001 CAV JUDGMENT
21. In the wake of this legal position and the discussion held hereinabove, it was deemed appropriate to call for the original file of the respondentDepartment for the purpose of appreciating the contentions raised by both the sides in respect of consultation whether was made by the State Government prior to issuance of impugned notification.
22. On perusal of the original file, it could be gathered that after having once finalised the proceedings on September 29, 1998, where the decision was already taken not to bifurcate both these villages, the entire process was initiated on November 26, 1999, which culminated into the notification dated April 03, 2001. No fresh consultation was carried out.
23. However, the recital of the notification declares that the consultation was carried out under subsection (2) of section 7 of the Gujarat Panchayats Act. Of course, there is absence of any fresh material in the interregnum period. In Page 36 of 46 C/SCA/4597/2001 CAV JUDGMENT about a year's time, once again the consideration had started for bifurcating both the villages and the culmination in terms of notification was within 2½ years. Thus, it cannot be said to be too short a period even in absence of any fresh material and, therefore, the opportunity of hearing ought to have been accorded to the people of both the villages. Thus, indisputably the decision is taken without affording such opportunity. In case of Likhi Group Gram Panchayat (supra) decision was taken within a short period in absence of fresh material. Though the provision of consultation is held to be directory and not mandatory, complete absence of the same, as held by this Court in the case of Kalubhai Mahida (supra), would not taint the whole proceeding with a fatal blemish and render it void and ineffective. For nearly three decades in various judicial pronouncements, this decision has been made a base, which emphatically notes that every departure from the duty to consult the panchayat before passing an order under the said section would not taint the whole proceeding and Page 37 of 46 C/SCA/4597/2001 CAV JUDGMENT even after the consultation, sense indicated by the panchayat may not be binding to the Government. Subsection (2) of section 9 of the Act is, accordingly, is held directory and not mandatory. The consultation also is not equated with "consent" or "concurrence" and yet, it is held by the Full Bench of this Court answering the reference in this very case being of Pruthvisinh Amarsinh Chauhan (supra), "If proposal has culminated into a decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure therefrom may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken." As noted hereinabove, the Apex Court also in some of the decisions has mandated affording an opportunity of hearing to the people of the locality. To hold and observe that the administrative decision by the State Government Page 38 of 46 C/SCA/4597/2001 CAV JUDGMENT should have been taken after considering the views of the residents and denial of such opportunity is in consonance with the scheme of the Rule of Law governing our society. Of course, such hearing as contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way.
24. Ratio that culls out from all the decisions discussed hereinabove if is applied to the facts of the present case, admittedly after once the proposal was dropped on October 09, 1998, no consultation and/or fresh material has come on record nor has any consultation taken place. Neither consent nor concurrence is needed, nonetheless providing an opportunity to the people of the locality and while taking any administrative decision considering their objections/ view points in a fair manner, would be a sufficient compliance of requirement of the Rule of Law.
Page 39 of 46 C/SCA/4597/2001 CAV JUDGMENT
25. To reiterate some vital facts, after the decision was taken on September 29, 1998, particularly keeping in mind some of the points raised in the internal notes exchanged in the department of the concerned Ministry and on the basis of objections raised by different segments of unified villages, it emerges that village Himatpura was separated. It is comparatively having less population, however, geographically it was separated by a lake and during rainy season the people were having much difficulties in commutation. Essentially as the village had fulfilled all other criteria for bifurcation, it was separated. This action gave rise to the demand of bifurcation of village Govindpura from village Veda. It appears that the decision of the Government to bifurcate the area was earlier when challenged on judicial side, the same was not entertained. However, the Court had directed the review of the same and such decision was reviewed cancelling the bifurcation. Such decision was not challenged on judicial side and the action of the Government was confirmed. Page 40 of 46 C/SCA/4597/2001 CAV JUDGMENT Therefore, till 1996, the group gram panchayat continued to exist.
26. The State Government consulted the Gram Panchayat in the year 1996 on various occasions and, thereafter on October 09, 1998, a conscious decision was taken not to bifurcate Veda Gram Panchayat and the Development Commissioner was accordingly informed. However, when consultation was going on, vide notification in exercise of powers under section 7 of the New Act on June 13, 1997, after consultation with the concerned Village and Taluka Panchayats, the Government excluded the local area of Himatpura from existing village Veda and on such exclusion, areas of village Veda and village Himatpura were specified.
27. It may be seen clearly from the chronology of events that exclusion of the area of village Himatpura in exercise of powers under section 7 of the Act was prior to the conclusion of entire process which culminated into a conscious Page 41 of 46 C/SCA/4597/2001 CAV JUDGMENT decision on October 09, 1998, not to bifurcate Veda Gram Panchayat. However, at the post decisional stage once again, the proposal of bifurcating the areas of Veda and Govindpura villages was considered suo motu by the State Government, such reconsideration was not the result of formation of Himatpura Village Panchayat and once having concluded the process, when reconsideration had started, it was by all means a fresh process and, therefore, in the wake of requirement of law as discussed hereinabove, the consultation of Village and Taluka Panchayats was necessary.
28. The peculiar circumstances under which the finally decided proposal when is once again taken into consideration, the opportunity of hearing ought to have been granted.
29. Considering the fact that the Administrator had already taken over the charge pursuant to the impugned notification, prior to this Court having issued any direction on April 28, 2001, it is Page 42 of 46 C/SCA/4597/2001 CAV JUDGMENT submitted by learned advocates appearing for the respective sides that from the time, the Notification had been issued bifurcating both these villages, the residents of Veda Village have chosen to boycott the elections, and therefore, Administrator continued to administer the affairs of Gram Panchayat. Time and again, extensions have been granted to the Administrator, and till date, the same has been continued. As far as Govindpura is concerned, thrice elections have been held; last one was held about a year ago and the term of the elected body is to continue for further four years' period. Neither side had disputed these facts. Instead of quashing such notification, the postdecisional hearing is found to be the best solution under the circumstances, the State Government accordingly is required to be directed to decide the issue of inclusion or an exclusion from VedaGovindpura village any local area or otherwise or any alteration of limits of such villages, on consulting the local authority, and all those who are entitled under the law. The Page 43 of 46 C/SCA/4597/2001 CAV JUDGMENT opportunity of hearing should be given to the people of the area for raising objection, however, it is not oral hearing which is a must as held by the Apex Court. On inviting objections and while finalising the decision with regard to bifurcation, it needs to regard extent of Urban Development and such other factors in relation to that area as have been prescribed under the law as also by notification. Over and above these, it may also regard the parameters of removing their grievances with regard to difficulties, inconvenience, hardships, neglect of their interest, domination of certain sections and forces, want of proper transportation and communication facilities, etc. as also whether for efficient administration and economic development, such action is necessary as has been highlighted by the Apex Court in the case of State of U.P. v. Pradhan Sangh Kshetra Samiti (supra).
30. In the event, the respondents decide and uphold/ maintain its decision of bifurcation, no question would arise in respect of all the Page 44 of 46 C/SCA/4597/2001 CAV JUDGMENT transactions undertaken either by the Administrator or the elected bodies affecting the economic and fiscal matters concerning these bodies. In case of its deciding otherwise, any decision taken in the interregnum period shall bind one and all; as the matter was pending before this Court and the action of the Court can hurt neither side. Again, in the event of State Government taking a decision not to bifurcate both the villages on completion of process of consultation, implementation of such notification shall be made operative only after expiry of a period of eight weeks to enable the parties to take the legal course of action, if it so deems fit.
31. For the foregoing reasons, the present petitions are partly allowed. The respondent authorities are directed to grant postdecisional consultation to the petitioners and residents of both the villages i.e. Veda and Govindpura, and shall decide the same in accordance with law. Such decision shall be taken within a period of Page 45 of 46 C/SCA/4597/2001 CAV JUDGMENT 24 (Twenty Four) weeks from today particularly keeping in mind observations and directions made in paragraphs 29 and 30. Petitions stand disposed of accordingly. Rule is made absolute to the extent aforesaid. There shall be, however, no order as to costs.
In view of disposal of the main petitions, the Civil Application does not survive and the same stands disposed of accordingly.
(MS SONIA GOKANI, J.) Aakar Page 46 of 46