Himachal Pradesh High Court
_________________________________________________________________ vs State Of H.P. & Ors on 24 December, 2020
Bench: Tarlok Singh Chauhan, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 4034 of 2020 Reserved on: 18.12.2020 Decided on: 24.12.2020 _________________________________________________________________ Satish Kumar and another ...Petitioners Versus State of H.P. & Ors. ...Respondents Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Sandeep Sharma, Judge.
1 No Whether approved for reporting?
For the Petitioners : Mr. R.L. Chaudhary, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate General with Mr. Vikas Rathore, Mr. Shiv Pal Manhans, Addl. A.Gs., Ms. Seema Sharma, Mr. Bhupinder Thakur and Mr. Yudhvir Singh Thakur, Dy. A.Gs., for respondents No. 1 to 5/State.
Mr. Ajay Sharma, Senior Advocate, with Ms. Aanandita Sharma, Advocate, for respondents No. 7 and 8. Mr. Ajit Saklani, Advocate, for respondentElection Commission.
Through Video Conferencing.
1Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 2 Tarlok Singh Chauhan, Judge The instant writ petition has been filed for the .
grant of following substantive reliefs:
(i) That writ of certiorari may kindly be issued, partly quashing and setting aside the notification dated 15.09.2020 (Annexure P5), whereby Village Ghalaun, Bilkar Runiyan & Bilkar Kakrahan and Village Jol, Kasiri & Dodru have been included in new Gram Panchayat i.e. Patera, whereas the inquiry report dated 29.08.2020 & 01.09.2020 Annexures P 3 & P4 were on record to the effect that there is recommendation of the authorities i.e. Gram Panchayat and Block Development Officer to the effect that the above mentioned villages may be kept in the old Gram Panchayat i.e. Morsu Sultani in the interest of justice, but the said inquiry reports were not taken into consideration while issuing the notification dated 15.09.2020.
(ii) That writ of mandamus may kindly be issued, directing the respondent authorities to take into consideration the inquiry report Annexures P3 & P4 dated 29.08.2020 & 01.09.2020 and keep the village Ghalaun, Bilkar Runiyan & Bilkar Kakrahan and village Jol, Kasiri & Dodru in old Gram Panchayat i.e. Morsu Sultani in the interest of justice as well as in the larger public interest in view of the fact that the new Gram Panchayat is 6 Kms. away from these villages and there is no transport facility to the new Gram Panchayat from these villages and the old Gram Panchayat is on the roadside i.e. National ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 3 Highway and all the facilities are available to the residents of these villages in the old Gram .
Panchayat."
2. It is more than settled that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities.
3. Equally settled is the proposition that creation/ bifurcation of the Gram Panchayat(s) is essentially a policy matter, which is within the exclusive discretion and jurisdiction of the State.
4. Additionally and more importantly, declaration of Sabha area is required to be done, in accordance with Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994, (for short, "the Act") which may be at the instance of the Gram Sabha concerned or at the instance of the Government, as is clearly evident from the bare reading of Section 3 of the Act, which reads as under:
3. Declaration of Sabha area. (1) The Government may, by notification, declare any village or group of contiguous villages with a population of not less than one thousand and not more than five thousand to constitute one or more Sabha areas for the purposes of this act and also specify its headquarter:
::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 4Provided that in a Scheduled area the Government may by order declare any village or group of contiguous villages .
with a population of less than one thousand to constitute a Sabha area:
Provided further that the Government may, after having due regard of the geographical location, lack of means of transport and communication and administrative convenience, declare an area comprising a village or group of contiguous villages having a population either less than one thousand or more than five thousand to constitute a Sabha area.
(2) The Government may, at the request of the Gram Sabha concerned or otherwise, and after previous publication of a proposal by a notification, at any time,
(a) increase any Sabha area by including within such Sabha area any village or group of villages; or
(b) diminish any Sabha area by excluding from such Sabha area any village or group of villages; or
(c) alter the headquarter of any Sabha area; or
(d) alter the name of any Sabha area; or
(e) declare that any area shall cease to be a Sabha area:
2[***********] 3[(2A) When on account of the reason that the Sabha area is, during the term of the Gram Panchayat, increased or diminished or ceased under subsection (2), the increase or diminution or cessation of the Sabha area shall not affect the term of the office bearers of Gram Panchayat, till the expiration of the duration of the Gram Panchayat specified in subsection (1) of section 120 or its dissolution under section 140 of this Act.] (3) If the whole of the Sabha area is included in a municipality, the Sabha area shall cease to exist and its assets and liabilities shall in the manner prescribed be disposed of."::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 5
5 It would be noticed that unlike other provisions of .
the Act, Section 3 thereof does not envisage impliedly muchless expressly postulates an opportunity for inhabitants of the area to file objections and being heard before ordering bifurcation of the Panchayat(s).
6 Once the legislature, in its wisdom, has not chosen to provide for any opportunity of hearing for inhabitants of the area and to file objections, as aforesaid, the same cannot be presumed or read into as it would amount to legislating or rewriting the provision, which indisputably is beyond the domain of this Court. What is not expressly provided cannot be presumed by necessary implication.
7. It cannot even be remotely suggested that the legislature by default omitted to provide the right to file objections and be heard under Section 3 of the Act. In fact, it is by a conscious legislative decision that such a right is designedly not acknowledged under Section 3 of the Act.
Procedural requirement of hearing is not required in the exercise of legislative power unless such a right or hearing was expressly provided.
::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 68 In coming to such conclusion, we are fortified by the decision rendered by the Hon'ble Supreme Court in .
State of Punjab vs. Tehal Singh and ors. (2002) 2 SCC 7, wherein it was held that determining the territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act, legislative in character, in the context of the provisions of the Act and hence, does not subject to rules of natural justice. It was further held that the enactment may provide for observance of principles of natural justice and if the provisions are there, the same should be observed and if provisions do not provide for the same, the residents of the area cannot insist for giving an opportunity of hearing.
It shall be apt to reproduce relevant observations as contained in paras 5 to 9, which read as under:
5. Before we consider the main question, it is necessary to trace out the nature of power, that the State Government exercises under provisions of Sections 3 and 4 of the Act. The said power could either be legislative, administrative or quasijudicial.
6. In Rameshchandra Kachardas Porwal and Ors. etc. v. State of Maharashtra and Ors. etc., [1981] 2 SCC 722, it was held that making of a declaration by notification that certain place shall be principal market yard for a market area under the relevant agricultural produce Market Act was an act legislative in character. In Union of India and ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 7 Anr. v. Cynamide India Ltd. and Anr., [1987] vol. 2 SCC 720, this Court while making distinction between .
legislative, administrative and quasijudicial held thus:
"A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. Legislation in the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of a making decisions which apply general rules to particular cases'. It has also been said: "Rule making is normally directed toward the formulation or requirements having a general application to all members of a broadly identifiable class" while, "an adjudication, on the other hand, applies to specific individuals or situation". But, this is only a broad distinction, not necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future cause of action. Adjudication is determinative of the past and the present while legislation in indicative of future. The object of the rule, the reach of its application. The rights and obligations arising out of it. Its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help; in ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 8 drawing the line between legislative and nonlegislative acts".
.
7. The principles of law that emerge from the aforesaid decisions are(l) where provisions of a statute provide for the legislative activity, i.e. making of a legislative instrument or promulgation of general rule of conduct or a declaration by a notification by the Government that certain place or area shall be part of a Gram Sabha and on issue of such a declaration certain other statutory provisions come into an action forthwith which provide for certain consequences; (2) where the power to be exercised by the Government under provisions of a statute does not concern with the interest of an individual and it relates to public in general or concerns with a general direction of a general character and not directed against an individual or to a particular situation and (3) lay down future course of actions, the same its generally held to be legislative in character.
8. Viewed in the light of the statement of law stated hereinbefore, we find that the provisions of Sections 3 and 4 of the Act which provide for declaring territorial area of a Gram Sabha and establishing a Gram Sabha for that area do not concern with the interest of an individual citizen or a particular resident of that area. Declaration contemplated under Sections 3 of the Act relates to an area inhabited by the residents which is sought to be excluded or included in a Gram Sabha. The declaration under Section 3 of the Act by the Government is general in character and not directed to a particular resident of that area. Further, the declarations so made under Sections 3 and 4 of the Act do not operate for the past transactions but for future situations. Under the aforesaid situation, when declarations by issue of notifications by the ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 9 Government are made under Sections 3 and 4 of the Act respectively, determining the territorial area of a Gram .
Sabha and establishing a Gram Sabha for that area, such declarations become operative at one. Once declarations are made under Sections 3 and 4 of the Act respectively and thereafter a Gram Panchayat is constituted under Section 10 of the Act, the entire remaining provisions of the Act becomes operative. On such declarations by a notification in the gazette, the Gram Sabhaa body corporate comes into being with a number of powers and functions conferred upon it under the Act. As soon as a Gram Sabha is established and Gram Panchayat is constituted, they are entrusted with many general functions viz., constructions, repair, and maintenance of community assets, agriculture including agriculture extension, animal husbandry, dairy and poultry, fisheries, social and farm forestry, minor forest produce fuel and fodder, khadi, village and cottage industries, rural housing, rural electrification including distribution of electricity, non conventional energy source, poverty alleviation programme, education including primary and secondary schools, adult and nonformal education, promotion of adult literacy, cultural activities, fairs and festivals, public health and family welfare; women and child development, social welfare etc. Further, Gram Sabhas and Gram Panchayats have been conferred numerous other powers and duties enumerated in Section 35 of the Act. Besides that, the Gram Panchayat is entrusted with the judicial functions which are civil and criminal in nature. The power exercisable under Sections 3 and 4 of the Act respectively by the Government was, therefore, not an exercise of a judicial or quasijudicial function where the very nature of function involves the principle of natural justice or in any case of an administrative function effecting the rights of an ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 10 individual. We are, therefore, of the view that on making of declaration under Section 3 of the Act determining the .
territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act.
9. Once it is found that the power exercisable under Sections 3 and 4 of the Act respectively is legislative in character, the question that arises is whether the State Government, while exercising that power, the rule of natural justice is required to be observed? It is almost settled law that an act legislative in characterprimary or subordinate, is not subjected to rule of natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principle of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. We have come across many enactments where an opportunity of hearing has been provided for before any area is excluded from one Gram Sabha and included it in different Gram Sabhas or a local authority. However, it depends upon the legislative wisdom and the provisions of an enactment. Where the legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 11 principle of natural justice before issue of a declaration either under Section 3 or Section 4 of the Act, the residents .
of the area cannot insist for giving an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority. In Rameshchandra Kachardas Porwal and Ors. v. State of Maharashtra (supra), this court held as thus:
"In one of the Bihar cases it was further submitted that when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections. Failure to do so was a violation of the yard at one place and establishing it elsewhere was, therefore, bad. It was objections before a "market area"
was declared under the Act, so should objection be invited and heard before a 'market yard' was established at any particular place. The principles of natural justice demanded it. We are unable to agree. We are here not concerned with the exercise of a judicial or quasijudicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 12 character and does not oblige the observance of the rules of natural justice."
.
9. Learned counsel for the petitioners would argue that declaration of Gram Sabha area, in terms of Section 3 of the Act, undoubtedly is a legislative act, however implementation of Section 3, by issuing a notification, can, by no stretch of imagination, be said to be an act of legislature, therefore, the present petitions questioning the action of the respondents to be r an administrative act, are definitely maintainable.
10 Strong reliance, in support of aforesaid contention, is placed on a division bench judgment of the Punjab and Haryana High Court in Jarmal Singh vs. State of Punjab & ors., (20191) 193 PLR 714, more particularly, paras 9 and 12 to 15 thereof, which read as under:
9. Mr. Anupam Gupta, learned Senior Advocate (Amicus curiae) submitted as under:
(i) It is true that by virtue of 73rd amendment to the Constitution of India, Panchayat Raj amendment was brought into the constitution and thus, Panchayats and Municipal Committees were given the constitutional status. Commenting on Sections 3 and 4 of the Act of 1994, he submitted that it would make no difference due to the said constitutional amendment, Sections 3 and 4 of the Act of 1994 could be interpreted in any different ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 13 manner. He submitted that, though, it is true that in Tehal Singh's case (supra), no reference has been made to the .
said 73rd amendment giving Panchayats the constitutional status. The principals of transparency and openness in governance which have been propounded by the Supreme Court at a later point of time will have to be kept in mind while interpreting to Sections 3 and 4 of the Act of 1994. The larger bench decision of the Apex Court, in fact, support the said view;
It has been contended that creation of Sections 3 and 4 of the Act of 1994 itself undoubtedly is a legislative Act. However, implementation of Sections 3 and 4 of the Act of 1994 by issuing notifications can, by no stretch of imagination, be said to be the act of legislature and that is the point that arises in these writ petitions;
(ii) In support of his propositions on the aforesaid legal question, Mr. Anupam Gupta, learned Senior Advocate has cited several decisions and the gist thereof would be cited by us in the present judgment.
12. We have heard learned counsel for the rival parties at length so also the preliminary objection raised by the learned State counsel.
13. In the case of Smt. Indira Nehru Gandhi versus Shri Raj Narain, AIR 1975 SC 2299, interpreting the constitutional provisions, Mathew J., in so far as the relevant aspect in the present case is concerned, stated thus: "278. According to the historic analysis, the essence of the distinction between legislative power and judicial power is that the legislature makes new law which becomes binding on all persons over whom the legislature, exercises legislative power; the judicature applies already existing ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 14 law in the resolution of disputes between particular parties and Judges may not deviate from this duty. This view of .
the distinction between the obligation to apply and enforce rules and a discretion to modify rules or make new rules was at one time applied uncompromisingly in describing functions as legislative or judicial. Thus, De Lolme said that courts of equity as then existing in England had a legislative function. They are, he said, a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature have as yet found it convenient or practicable to establish any.3 Though this would show that neither for logic nor in language has the boundary between legislation and adjudication ever been rigidly and clearly drawn, the distinction between the two is well established.
.............
284. ............... A despotic decision without ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is like a bill of attainder. It is a legislative judgment.
.............
291. A statute is a general rule. A resolution by the legislature that a town shall pay one hundred dollars to Timothy Coggan is not a statute, John Chipman Gray :
Nature and Source of Law, p. 161.
.............
327. A sovereign in any system of civilised jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 15 no relevance when we are considering how a prosovereign the holder of the amending power in a country governed .
by a constitution should function. ............."
14. In so far as the transparency and openness in governance is concerned, the Apex Court in the case of Cellular Operators Association of India and others versus Telecom Regulatory Authority of India and others, (2016) 7 SCC 703 stated thus: "82. In fact, a judgment of the Court of Appeal in England, being R v. North and East Devon Health Authority, ex p Coughlan, puts the meaning of "consultation" rather well as follows: "It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.... (emphasis supplied) ................
86. The question of transparency raises a more fundamental question, namely, that of openness in governance. We find that the Right to Information Act of 2005 has gone a long way to strengthen democracy by requiring that the Government be transparent in its actions, so that an informed citizenry is able then to contain corruption, and hold Governments and their ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 16 instrumentalities accountable to the people of India. ............" (emphasis supplied) .
..........
89. In another context also this Court has emphasized the importance of openness of governance. In Global Energy Ltd. v.Central Electricity Regulatory Commission, this Court stated: (SCC p. 589, para 71) "The law sometimes can be written in such a subjective manner that it affects the efficiency and transparent function of the Government.
If the statute provides for pointless discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decisionmaking process. All lawmaking, be it in the context of delegated legislation or primary legislation, has to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from due process requirement under Article 21, equal protection clause embodied in Article 14 and fundamental freedoms clause ingrained under Article 19. A modern deliberative democracy cannot function without these attributes." (emphasis supplied)"
In the said decision, finally, vide Para92, the Apex Court exhorted the parliament to take up the issue in respect of transparency in supporting legislation: "92. We find that, subject to certain well defined exceptions, it would be a healthy functioning of our democracy if all subordinate legislation were to be "transparent" in the manner pointed out above. Since it is beyond the scope of this judgment to deal with subordinate legislation generally, and in particular with statutes which ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 17 provide for rule making and regulation making without any added requirement of transparency, we would exhort .
Parliament to take up this issue and frame a legislation along the lines of the U.S. Administrative Procedure Act (with certain well defined exceptions) by which all subordinate legislation is subject to a transparent process by which due consultations with all stakeholders are held, and the rule or regulation making power is exercised after due consideration of all stakeholders' submissions, together with an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them. Not only would such legislation reduce arbitrariness in subordinate legislation making, but it would also conduce to openness in governance. It would also ensure the redressal, partial or otherwise, of grievances of the concerned stakeholders prior to the making of subordinate legislation. This would obviate, in many cases, the need for persons to approach courts to strike down subordinate legislation on the ground of such legislation being manifestly arbitrary or unreasonable."
14. The last judgment which we are referring is on the U.P. Panchayat Raj (Amendment) Act, 1994 that was brought into force. We think the judgment in the State of U.P. and others' case (supra) and in particular the concluding para thereof, namely Para52, is essentially required to be seen. We quote Para52 of the same, which reads thus: "52. We are, therefore, more than satisfied that there were no mala fide intentions on the part of the State Government in giving the short time for submitting the objections and for hearing and disposing them of. We may, however, make it clear that although, as pointed out earlier, the challenge to the delimitation of the panchayat ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 18 areas on the said grounds could not have been made in the present case after the election notification was issued, the .
State Government should bear it in mind that if and when the next regrouping of the villages and redetermination of the panchayat areas is undertaken, the authorities will have to give sufficient opportunity to the people of the areas concerned for raising the objections. This is with a view to remove their grievances,if any, with regard to the difficulties, inconveniences and hardships, likely neglect of their interests, domination of certain sections and forces, remoteness of the seat of administration, want of proper transport and communication facilities etc. The opportunity will also provide an occasion for the people to come forward with suggestions for better and more viable, compact and cohesive regrouping of the villages for efficient administration and economic development. The objections are not to be invited to enable the people to exercise the sort of a right of self determination which is sought to be spelt out by the High Court. The final decision with regard to the delimitation of the panchayat areas, after hearing the objections and suggestions, will, of course, be that of the State Government acting through Director."
15. We have carefully seen the clarification that the challenge to the objections, panchayati areas could not have been made after the election notification was issued. The present petitions were, however, filed much before the election notification came to be issued on 05.12.2018 and therefore, we think, we will be entitled to entertain these petitions. A careful look at the aforesaid Para52 in the State of U.P. and others' case (supra) clearly shows that the Apex Court has asked the authorities to give sufficient opportunity to the people of the areas concerned for raising ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 19 objections to remove their grievances. The aforesaid direction by the Apex Court is binding on the respondents.
.
But what we find is that the orders made are not based on the required criteria or the relevant considerations or in some cases, no hearing took place. In the light of the various principles of law shown to us by Mr. Anupam Gupta, the learned Senior Advocate, we are inclined to hold that implementation of Section 3 of the Act of 1994 by issuing notifications as to the decision/amalgamation of the Gram Panchayat is not a legislative act or legislative function and is rather a quasijudicial function attracting the principles of natural justice, openness in governance and transparency. In this context, the aforesaid Para52 has apt application. To sum up, in the light of the above law that is discussed above, we overrule the preliminary objection raised by the learned State counsel and proceed to determine the petitions on their own merits.
11 We have considered the submissions of the learned counsel for the petitioner and have minutely analyzed the judgment in Jarmal Singh's case (supra), however with due respect, we are unable to concur with the judgment of the Punjab and Haryana High Court as the same has been rendered per incuriam inasmuch as most of earlier division bench judgments of that very Court i.e. Punjab and Haryana High Court including Gram Panchayat Bassi Sekhan vs. State of Punjab & ors., 2009 (1) RCR (Civil) 242, CWP No. 3705/2007, titled as Inderjit Singh & ors. vs. State of ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 20 Haryana &ors., decided on 18.2.2014, Som Prakash & ors. vs. State of Haryana & ors., 2016 (3) RCR (Civil) 885 .
and the one rendered by the FiveJudge Bench in Suraj Bhan & ors. vs. State of Haryana & anr., (20172) 186 PLR 605, wherein, after placing reliance on Tehal Singh's case (supra) and other judgments of the Hon'ble Supreme Court, it was clearly held that function of the government in establishing a Corporation or Panchayat is a legislative act, to which rules of natural justice are inapplicable have not at all been considered.
12 In addition to the aforesaid judgments, judgment in Jarmal Singh's case (supra) runs contrary to the judgment of the Division Bench of that Court in CWP No. 1725/2008, titled as Gram Panchayat Mann Majra vs. State of Punjab & ors. Dated 2.4.2012, which in turn, has been repeatedly followed by, not only Punjab and Haryana High Court, but has also been followed by Madhya Pradesh High Court in Gyan Prakash Patel vs. State of Madhya Pradesh, 2018(2) MPLJ 574.
13 To be fair to the learned counsel for the petitioner, strong reliance is placed by him on two recent judgments of ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 21 the Hon'ble Supreme Court in Bharati Reddy vs. State of Karnataka & ors. (2018) 12 SCC 61 and Dravida .
Munnetra Kazhagam (DMK) vs. Secretary, Governor's Secretariat & ors., (2020) 6 SCC 548.
14 In Bharati Reddy's case (supra), the appellant therein was elected as member of Zila Panchayat from constituency reserved for Woman (General), whereas post of Adhyaksha of that Zila Panchayat was reserved for Backward Class Woman. The appellant contested to that post and was declared successful. Private respondents challenged her selection in writ petition alleging that she had obtained false caste certificate, whereas the appellant contended that the writ petition was not maintainable in view of alternative forum. Single Judge ruled writ petition to be not maintainable. In intracourt appeal, Division Bench concluded that writ petition was maintainable. Upholding the view taken by the Division Bench, the Hon'ble Supreme Court held that power of judicial review under Articles 226/227 is an essential feature of Constitution, which cannot be tinkered with nor eroded. However, this is not the fact situation obtaining in the present case.
::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 2215 As regards Dravida Munnetra Kazhagam (DMK)'s case (supra), the Hon'ble Supreme Court was dealing .
with a case, where delimitation for local body elections had already been notified earlier as per proposal of delimitation Commission and State Government had already accepted it and issued notifications in respect of 31 revenue districts.
Pursuant to earlier delimitation exercise, concomitant reservations on the basis of rotation for SCs/STs had also been proposed by Commission and the State Government had also issued notification therefor, but the impugned notification for creation of 9 out of 4 districts, prior to said elections, was without any research or proposal by delimitation commission and it was in this background that the Hon'ble Supreme Court held as under:
14. The contention of the respondents that the present proceedings amount to "calling in question an election"
and hence not being maintainable in view of the express constitutional embargos of Articles 243O and 243ZG does not impress us for the present proceedings are only to further the expeditious completion of prerequisites of a fair election. Hence, the following ratio of a coordinate Bench in Election Commission of India v. Ashok Kumar and Others [2000 (8) SCC 216] squarely applies to the present case:::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 23
"32.... (2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves .
the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the wellsettled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body been shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court."
15. For the reasons aforestated, these applications are allowed in part and disposed of with the following directions:
15.1. The Respondentauthorities shall hold elections to all Panchayats at village, intermediate and district levels, except those in the following nine reconstituted districts:
i. Kancheepuram ii. Chengalpattu iii. Vellore iv. Thirupathur ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 24 v. Ranipet vi. Villupuram .
vii. Kallakurichi viii. Tirunelveli ix. Tenkasi;
15.2. The Respondents (including the Delimitation Commission) are directed to delimit the nine newly constituted districts in accordance with law and thereafter hold elections for their panchayats at the village, intermediate and district levels within a period of four months;
15.3. There shall be no legal impediment against holding elections for Panchayats at the village, intermediate and district levels for rest of the districts;
15.4 State Election Commission shall notify elections for the panchayats at village, intermediate and district levels in respect of all districts except the nine reconstituted districts as per the details given in direction 15.1 above;
15.5. While conducting elections, the respondents shall provide proportionate reservation at all levels, in accordance with the Rule 6 of Tamil Nadu Panchayats (Reservation of Seats and Rotation of Reserved Seats) Rules, 1995.
16 After having gone through the aforesaid judgments and discussed, as above, we find that the ratio laid down therein is not at all attracted to the facts of the instant case and evidently, the same does not at all deal or ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 25 even remotely touch the issue involved in the present case and is, thus, clearly distinguishable.
.
17 In view of aforesaid exposition of law, we are clearly of the view that the power exercisable under Section 3 of the Act by the Government is not an exercise of a judicial or quasijudicial function, where the very nature of function involves the principles of natural justice or in any case of an administrative function affecting the rights of an individual.
As observed above, the function is legislative in character.
18 In this background, further question which arises for consideration is - whether the State is obligated to adhere to the principles of audi alteram partem before ordering bifurcation of the Panchayat(s), even though this is a legislative function?
19 Even this question already stands answered in para 9 of the judgment in Tehal Singh's case (supra), however we may notice that a fine distinction qua scope of judicial review of legislation/subordinate legislation visavis executive decision has been meticulously laid down by the Hon'ble Supreme Court in Bombay Dyeing & MFG. Co. Ltd.
::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 26(3) vs. Bombay Environmental Action Group & ors., (2006) 3 SCC 434, wherein it was observed as under: .
197. A matter involving environmental challenges may have to be considered by a superior court depending upon the fact as to whether the impugned action is a legislative action or an executive action. In case of an executive action, the court can look into and consider several factors, namely,
(i) Whether the discretion conferred upon the statutory authority had been property exercised;
(ii) Whether exercise of such discretion is in consonance with the provisions of the Act;
(iii) Whether while taking such action, the executive government had taken into consideration the purport and object of the Act;
(iv) Whether the same subserved other relevant factors which would affect the public in large;
(v) Whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and
(vi) Whether in arriving at such a decision, both substantive due process and procedural due process had been complied with.
198. It would, however, unless an appropriate case is made out, be difficult to apply the aforementioned principles in the case of a legislative act. It is no doubt true that Articles 14, 21, 48A of the Constitution of India must be applied both in relation to an executive action as also in relation to a legislation, however, although the facet of reasonableness is a constitutional principle and adherence thereto being a ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 27 constitutional duty may apply, the degree and the extent to which such application would be made indisputably would .
be different. Judicial review of administrative action and judicial review of legislation stand on a different footing. What is permissible for the court in case of judicial review of administrative action may not be permissible while exercising the power of judicial review of legislation. It may, however, be a different thing to contend that the legislation had been enacted without constitutional principles in mind. The real question is whether the constitutional mandates had been complied with in making such legislation.
20 Judicial review of administrative action and judicial review of legislation stand on a different footing. What is permissible for the Court in case of judicial review of administrative action may not be permissible while exercising the power of judicial review of legislation.
21 It would, thus, be abundantly clear that in case of an executive action, the court can look into and consider several factors, as enumerated above, however principles will not apply or are not applicable in case of legislative act unless and until appropriate case is made out.
Unfortunately, no such case has been set out in any of the petitions.
22 Similar issue came up before a Coordinate Bench of this Court, of which one of us (Tarlok Singh Chauhan, J.) ::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 28 was a member, in Yudh Chand Saklani vs. State of Himachal Pradesh & ors., ILR 2016 (VI) HP 1733, and the .
question therein was with regard to establishment of municipality and it was observed that the Courts cannot not interfere with the legislative function unless the decision was not in public interest, but was taken with ulterior motive at the behest of some interested persons. It shall be apposite to refer to the necessary observations as contained in paras 35 to 42 of the judgment, which reads as under:
35. Even otherwise, declaration of Municipalities is a legislative function, which is undertaken by the Government in larger public interest and ordinarily Courts are not to interfere in the decisions so undertaken by the State Government until and unless the judicial conscious of the Court is satisfied that the decision so taken is not in public interest, but has been taken with ulterior motive at the behest of some interested person or persons who personally stand to gain by the declaration of such Municipality. In this case, the petitioner has not been able to demonstrate or prove the same. Petitioner has not been able to demonstrate or prove that the declaration of area subject matter of the writ petition into a Nagar Parishad is either not in public interest or this decision has not been taken by the Government in larger interest of inhabitants of the area, but the same has been taken by the State Government to help a few individuals or the declaration was not done by following statutory requirements of the Himachal Pradesh Municipal Act, 1994.
::: Downloaded on - 24/12/2020 20:16:46 :::HCHP 2936. It is settled law that function of the Government while establishing a Municipality is neither executive nor .
administrative, but it is a legislative process.
37. In Tulsipur Sugar Co. Ltd. Vs. The Notified Area Committee, Tulsipur, (1980) 2 SCC 295, the Hon'ble Supreme Court while dealing with U.P. Town Areas Act, 1914 has held that power of the State Government to make a declaration under the same is legislative in character.
38. The Hon'ble Supreme Court in Baldev Singh and Ors.
Vs. State of Himachal Pradesh, (1987) 2 SCC 510, has held that affording of hearing to affected persons is essentialprerequisite for constituting notified area, however, hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way. 39. The Hon'ble Supreme Court in Sundarjas Kanyalal Bhathiaja and ors. Vs. The Collector, Thane, Maharashtra and ors., AIR 1990 SC 261,has also held that rules of natural justice are not applicable to legislative action plenary or subordinate. The Hon'ble Supreme Court in para23 of the judgment has held: ―23. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legislative process indeed. No judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with,, then, the Court could say no more. In the present case the Government did publish the proposal by a draft notification and also ::: Downloaded on - 24/12/2020 20:16:47 :::HCHP 30 considered the representations received. It was only thereafter, a decision was taken to exclude Ulhasnagar for .
the time being. That decision became final when it was notified under Section 3(2). The Court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for theirs."‖ 40. In Karnail Singh and another Vs. Darshan Singh and Ors., 1995 Supp.(1) SCC 760, the Hon'ble Supreme Court has held that amalgamation of two gram sabhas into one is an administrative decision taken by the authorities in public interest and the Court would not interfere unless the same is vitiated with malafides. 41. The Hon'ble Supreme Court in Solapur Midc Industries Association and ors. Vs. State of Maharashtra and ors., reported in (1996) 9 SCC 621,has held: ―3. It is not disputed that since the State Government has not yet withdrawn the industrial estate/industrial area concerned from the hold of the Corporation, the provisions of the 1961 Act continue to apply. The Preamble thereof is suggestive of its objects sought to be achieved namely the orderly establishment in industrial areas and industrial estates of industries, and to assist generally in the organisation thereof, and for that purpose to establish the Industrial Development Corporation and for purposes connected with the matters therewith. The purpose of the 1949 Act on the other hand, as is suggestive from its Preamble, is to provide for the establishment of Municipal Corporations with a view to ensure a better municipal government of the cities in which municipal corporations are set up. These being the basic differences as to the ambit of the two statutes, the High Court, in our view, rightly arrived at the conclusion that there was inter se no conflict between the two. There may be certain areas such as provision for civil amenities in which there is identity of ::: Downloaded on - 24/12/2020 20:16:47 :::HCHP 31 purpose but these are ancillary and incidental to the main purpose of the respective two statutes. The suggestion .
drawn from the Assembly debates, to which our attention has been drawn, while passing the 1961 Act, suggestive of the fact that the industrial estates or industrial areas on ripening were meant to be kept under the purview of the 1961 Act until some civic administration in the form of a Panchayat or Municipality could take over is not supported by any statutory provision available in the respective two Acts. As said before the topics of legislation being different, there was no question of their rubbing against each other because being enacted under two different legislative fields.
42. The Hon'ble Supreme Court in Nagar Panchayat Kurwai and another v. Mahesh Kumar Singhal and ors., reported in (2013) 12 SCC 342, has held that Nagar Panchayat, is a unit of selfgovernment, which is a sovereign body having both constitutional and statutory status and considerable powers are conferred on it to carry out various schemes for economic development and social justice at the local level.
23 Thus, what can be deduced from the aforesaid discussions is that declaration of Sabha area is a legislative function and the principles of natural justice would not apply to the same. The notification constituting a Gram Sabha or abolishing a Gram Sabha is an act of legislature and, thus, cannot be impugned on the grounds, which are available for an administrative or quasi judicial order. The maxim audi alteram partem is not applicable, even on ::: Downloaded on - 24/12/2020 20:16:47 :::HCHP 32 necessary implication, meaning thereby, declaration of Sabha area, in terms of Section 3 of the Act, does not contemplate .
muchless envisages issuance of notice, opportunity of filing objections and even hearing before ordering bifurcation of the Panchayat(s).
24 In addition to the aforesaid, the respondents have otherwise fully justified their action for including Village Ghalaun, Bilkar Runiyan & Bilkar Kakrahan and village Jol, Kasiri and Dodru in the new Gram Panchayat i.e. Patera, as is evident from paras 5 and 6 of the reply, which read as under:
"5. That in the present case suggestion regarding exclusion of revenue village Ghalon, Vilkar Runiyan, Vilkar Kahan, Kasiri (Jol) and Dodru from Gram Sabha Morsu Sultani and inclusion in newly created Gram Sabha Patera was considered during settlement of claims, objections and suggestions, but it was found that if revenue villages Ghalon, Vilkar Runiyan, Vilkar Kahan, Kasiri (Jol) and Dodru, which was having census population of 201, 59, 126, 147 and 42 respectively total 575 are not included in newly created Gram Sabha Patera, the census population of Gram Sabha Patera would come to 843 below one thousand according to census 2011 and as per norms and criteria fixed for bifurcation/creation of new Gram Sabha in non tribal areas by the Government vide letter dated 04.09.2020 (Annexure R3) "New Gram Sabhas from those existing Gram Sabhas will be created, total population of ::: Downloaded on - 24/12/2020 20:16:47 :::HCHP 33 which is equal to and more than 2000, number of household equal to and more than 500, number of villages .
equal to and than 5 and distance of the farthest village from the existing headquarter of the Gram Sabha is equal to and more than 5 Km. subject to the condition that minimum resultant population of the existing and newly proposed Gram Sabha before and after bifurcation is minimum 1000." Therefore, in view of the then criteria fixed for nontribal areas vide letter ibid dated 04.09.2020 and after exclusion of Census population of revenue villages Ghalon, Vilkar Runiyan, Vilkar Kahan, Kasiri (Jol) and Dodru from newly formed Gram Sabha Patera, the population of Gram Sabha Patera being non tribal and non backward area would have come to 843 i.e. below norms fixed. Keeping in view, the above circumstances, the replying respondent had recommended that it would not be appropriate to consider the suggestion for keeping revenue village Ghalon, Vilkar Runiyan, Vilkar Kahan, Kasiri (Jol) and Dodru in the old gram Panchayat Morsu Sultani and not including the newly created Gram Sabha Patera, Development Block Bijhari.
6.That it would be pertinent to mention here that no proposal of revenue villages Ghalon, Vilkar Runiyan, Vilkar Kahan, Kasiri (Jol) and Dodru was received for their exclusion from Gram Sabha Morsu Sultani and inclusion in newly created Gram Sabha Patera earlier on prescribed format alongwith resolution from Gram Sabha/Gram Panchayat through the Block Development Officer, Bijhari. However, suggestion after draft publication of newly created Gram Sabha Patera from Gram Sabha Morsu Sultani was received in which it was mentioned that revenue villages Ghalon, Vilkar Runiyan, Vilkar Kahan, Kasiri (Jol) and Dodru be remained in existing Gram Sabha Morsu Sultani in view of its distance. After giving due ::: Downloaded on - 24/12/2020 20:16:47 :::HCHP 34 consideration to the suggestion when it was held that if revenue villages Ghalon, Vilkar Runiyan, Vilkar Kahan, .
Kasiri (Jol) and Dodru are remained in existing Gram Sabha Morsu Sultani, the census population of newly created Gram Sabha Patera will come below 1000 and below the norms and criteria fixed for non tribal area by the Government, therefore, it was recommended by the replying respondent not to consider the suggestions made in view of norms and criteria fixed for the newly created Gram Sabha and existing Gram Sabha Morsu Sultani."
25 In view of aforesaid discussions, the instant petition is dismissed being not maintainable, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge (Sandeep Sharma) 24.12.2020 Judge (pankaj/GR) ::: Downloaded on - 24/12/2020 20:16:47 :::HCHP