Orissa High Court
Purna Chandra Nayak & Ors vs State Of Odisha & Ors. : Opposite Parties on 3 January, 2023
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) No.18774 of 2018
An application under Articles 226 & 227 of
the Constitution of India
Purna Chandra Nayak & Ors. : Petitioners
-Versus-
State of Odisha & Ors. : Opposite Parties
For Petitioners : M/s. S. Swain,
A. Mishra,
N.K. Behera
For Opposite Parties : Mr. S.P. Panda,
Addl. Govt. Adv.
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH Date of hearing & judgment::03.01.2023
1. Heard the submission of Mr. S. Swain, learned counsel for Petitioner and the counter submission of Mr. S.P. Panda, learned counsel appearing for the State Government.
2. This writ petition is taken up afresh after the remand order of the Division Bench in W.A. No.577 of 2018.
3. This writ petition involves the following prayer:-
"It is prayed, therefore, that this Hon'ble Court may graciously be pleased to:
a. Admit the writ application.
b. Call for the records.
Page 1 of 16
// 2 //
c. Issue Rule Nisi calling upon the Opp. Parties
to show cause as to why the Order
dt.24.12.16 (Annexure-5) passed by
Collector, Puri and re-delimitation of wards in respect of Chhanijanga GP made by OP No.2 and communicated by PIO, Nimapara Block vide letter dt.9.11.16 (Ann-3) shall not be quashed with a direction for re-
delimitation of wards in accordance with law as proposed by the petitioners in the table above after giving opportunity of hearing to the petitioners.
d. If the Opp. Parties do not show cause or show insufficient cause the Rule may be made absolute and a writ in the nature of mandamus or any other writ (s), order (s), direction (s) be issued quashing the Order dt.24.12.16(Annexure-5) passed by Collector, Puri and the re-delimitation of wards in respect of Chhanijanga G.P as communicated by PIO Nimapara Block vide his letter dt.9.11.16 (Ann-3) with a direction to the Opp. Parties for re-delimitation of Wards in accordance with law as proposed by the petitioners in table above after giving an opportunity of hearing to the petitioners. e. A further direction be given not to take any action for formation of new Revenue Village taking any part of Chhanijanga G.P. in the district of Puri till a final decision is taken in the matter of re-delimitation of Wards. And pass any other order which will be deemed fit and proper for the ends of justice."
4. Background involved in this case is that earlier the Petitioner moved this Court involving an issue of re-delimitation and re- organization of the wards in Chhanijanga Gram Panchayat. There is already a direction to the Collector for consideration of the objection at the instance of the Petitioner in disposal of the W.P.(C) No.20972 of 2016. It appears, in the meantime following the direction of this Court in W.P.(C) No.20972 of 2016 there has been consideration of the representation of the Petitioners vide Annexure-4 by the Page 2 of 16 // 3 // Collector, Puri by order dated 24.12.2016 vide Annexure-5 with an order of rejection of the claim of the Petitioners.
5. In the first attempt in disposal of the Writ Petition vide W.P.(C) No.18774 of 2018 this Court vide order dated 14.12.2018 passed the following:-
"14.12.2018 Heard learned counsel for the Petitioner.
For the completion of election and Grama Panchayat is already in sitting, no decision involving delimitation matter can be taken up. In such view of the matter, this Court dispose the writ petition as not entertainable at this stage but, however, granted liberty to the petitioner, in the event any cause of action still survives, to move the competent authority before the next election of the Grama Panchayat."
6. Petitioners moved Division Bench against the above order through W.A. No.577 of 2018 and the Division Bench in its order dated 20.10.2022 passed the following order:-
"1. The Gram Panchayat elections have already concluded. Therefore, the legal bar to entertaining the writ petition challenging the de-limitation exercise does not hold any longer. Consequently, while setting aside the impugned Order of the learned Single Judge, this Court restores W.P.(C) No.18774 of 2018 to the file of the roster Bench of the learned Single Judge where it will be listed on 3rd January, 2023.
2. The respective Respondents (Opposite Parties in the writ petition) will file their replies to the said petition on or before 19th December, 2022 and rejoinder thereto, if any, be filed before the next date before the learned Single Judge i.e. 3rd January, 2023. No further time will be granted for this purpose.
3. The learned Single Judge is requested to proceed with hearing the petition on merits and dispose of it as expeditiously as possible.Page 3 of 16
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4. The writ appeal is disposed of in the above terms."
7. Matter is thus freshly heard following the direction of the Division Bench. On the issue of filing of counter affidavit as directed by the Division Bench, learned State Counsel submitted that they fully support the findings given by the Collector in the impugned order and there is no necessity to file any counter as otherwise in filing counter there is no scope to bring anything else than the observation of the Collector in the impugned order nor there is any scope to give any improvement in the situation. Learned State Counsel in his opposition, however, submits that after the de- limitation taking place there has been at least two Gram Panchayat elections in the particular Gram Panchayat and there is no objection by any of the candidates in these elections nor there is any election dispute indicating suffering of any candidate on account of de- limitation decision involved herein. Learned State Counsel also submitted that in a Gram Panchayat consisting of several hundred of voters, merely because 12 persons without disclosing as to how they have suffered, the writ petition on such disputed issue should not be entertained.
In the above submission learned State Counsel objected entertainability of the writ petition and submitted that otherwise it will disturb a settled position in the reconstitution of wards that too after two Gram Panchayat elections already held peacefully in the meantime and particularly keeping in view that hardly some of the villagers oppose the delimitation move, whereas a larger section of such ward remains satisfied with the decision of the competent authority, Sri Panda, learned State Counsel further also in reference to the provision at Section 8 of the Orissa Grama Panchayat Act, Page 4 of 16 // 5 // 1964 hereinafter in short be reflected as "the Act, 1964" under Chapter-III therein contended that for there is no disclosure in the writ petition as to if the Petitioners had availed the scope of objection in exercise of power U/s.8 of the Act, 1964, the submission of representation was not to be attended to after the delimitation order is passed in terms of Section 8 of the Act, 1964 and further is worked out.
8. Keeping in view the rival contentions and disclosure through materials available this Court here finds, there is one clear distinguishing feature i.e. there is almost completely different in Petitioners in both round of litigations. This Court takes note of position of Petitioners in 1st round of litigation vide W.P.(C) No.20972 of 2016 disposed of on 2.12.2016 and in the 2nd round of litigation vide W.P.(C) No.18774 of 2018 which reads as follows:-
" W.P.(C) No.20972 of 20161. Purna Chandra Nayak, aged about 44 years, S/o-Bhagaban Nayak, Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
2. Sibabrata Nayak, aged about 42 years, S/o-Bansidhar Nayak, Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
3. Bhagyadhar Mohanty, aged about 60 years, S/o-Dhruba Charana Mohanty, Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
4. Jambeswara Kumar Mohapatra, aged about 58 years, S/o-Sarbeswar Mohapatra, Vill-
Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
5. Rohit Nayak, aged about 55 years, S/o-Parashu Nayak, Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
6. Smt. Sakuntala Sethi, aged about 40 years, Ward Member of Ward No.1 Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
7. Smt. Sakuntala Barik, aged about 47 years, Ward Member of Ward No.2, Chhanijanga G.P., W/o-Sri Sarat Barik, Vill-
Page 5 of 16// 6 // Amphor,Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
8. Smt. Namita Sahu, aged about 37 years, Ward Member of Ward No.3, W/o-Sri Alekha Sahu, Vill-Amphor, Chhanijanga G.P., P.S.-
Nimapara, Dist.-Puri
9. Lokanath Dash, aged about 31 years, S/o-Chittaranjan Dash, Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
10. Tofan Mohapatra, aged about 39 years, S/o-Surendra Mohapatra, Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri W.P.(C) No.18774 of 2018
1. Purna Chandra Nayak, aged about 46 years, S/o-Bhagaban Nayak,
2. Jaganath Ojha, aged about 42 years, S/o-Late Gandharba Ojha
3. Bijay Kumar Swain, aged about 52 years, S/o-Late Iswar Swain
4. Antaryami Nayak, aged about 55 years, S/o-Late Nalu Nayak
5. Prasanna Nayak, aged about 48 years, S/o-Late Ananda Nayak
6. Jambes Kumar Mohapatra, aged about 61 years, S/o-Late Sarbeswar Mohapatra,
7. Narendra Parida, aged about 48 years, S/o-Late Bimbadhar Parida
8. Pradip Kumar Mohanty, aged about 48 years, S/o-Late Balaram Mohanty
9. Debendra Nayak, aged about 62 years, S/o-Late Bansidhar Nayak
10. Pradipta Kumar Dash, aged about 47 years, S/o-Late Panchu Dash
11. Pursottam Mohapatra, aged about 50 years, S/o.-Late Paramananda Mohapatra
12. Sarat Barik, aged about 53 years, S/o.-Late Balaram Barik.
All are of Vill-Amphor, Chhanijanga G.P., P.S.-Nimapara, Dist.-Puri
9. Here it is observed that out of 10 Petitioners pressing the 1st litigation at least 8 of them did not choose to pursue the litigation and accordingly dropped themselves in the 2nd round of litigation and this Court from the 2nd round of litigation finds, there are 10 new Page 6 of 16 // 7 // Petitioners joining this time in addition to the two earlier Petitioners continuing. On perusal of the original representation dated 18.11.2016 copy of which is available at Annexure-4 to the Writ Petition, on the production of case record, it is observed that the Petitioner Nos.1 & 6 are only the signatories therein. This Court finds, rest of the Petitioners had not involved themselves in the objection submitted after the delimitation is completed. None of these Petitioners have submitted objection to the draft delimitation notice. In such event if afterward representation i.e. after completion of delimitation exercise is entertained, there will be no end to the delimitation aspect. It appears, Petitioners were fence-seater and agitating such issues after completion of the delimitation issue involving ward no.2 and remain silent spectator in the Section 8 of the Act, 1964 stage.
10. Further perusal of objection at Annexure-4 undisputedly submitted after the delimitation order is given effect to, does not disclose, if at all it was representation involving any of these petitioners. On perusal of original, it appears, two of these Petitioners remain objectors in the representation admittedly submitted after the exercise is over. The ward number-2 of Amphor village consists of 240 numbers of voters. Present Writ Petition is at the instance of 12 numbers of villagers of Amphor village. There is even no majority in the Petitioners' side.
11. Coming back to the provision of law applicable in the present scenario, this Court finds, Section-8 of the Act, 1964 reads as follows:-
"8. Constitution and delimitation of Wards :- (1) As soon as may be after the Constitution of a Grama the Collector Page 7 of 16 // 8 // shall for the purpose of Constitution of the Grama Panchayat determine the number of Wards into which the Grama is to be divided and the extent of each such Ward and shall prepare a statement showing the number of Wards and the extent of each Ward which shall be published by him in the prescribed manner for the prescribed period inviting objections from the persons interested to be filed within the said period : [Provided that -
(i) the determination of the number of such Wards shall be subject to the provisions in Article 243-C of the Constitution;
(ii) the total number of Wards in any Grama shall not be less than eleven and more than [twenty-five; and]
(iii) the population of every Ward shall, as far as practicable, be equal.] (2) The Collector shall after considering all such objections and making such further inquiry as he may deem necessary cause such alteration as may be necessary to be made in the statement shall finally publish the statement so as altered in the prescribed manner and thereupon the division of the Grama into Wards as shown in the statement shall become final.
(3) In cases where the population of any Grama according to the relevant figures of a Census has exceeded its Population, as recorded in the preceding Census, the Collector may re-delimit the Wards of the Grama and form new Wards wherever necessary and in doing so he shall follow the same procedure as is provided in respect of division of Wards under Sub-Sections (1) and (2)."
This provision prescribes specific procedure to be followed before the delimitation aspect is finalized.
Above provisions clearly prescribe calling for objection on preparation of draft delimitation order. Reading entire writ petition this Court finds, entire writ petition nowhere discloses, if all or any of the Petitioners submitted objection in the Section 8 stage of the matter. Records disclose, none of these Petitioners submitted objection to such draft decision in the Section-8 stage. In the circumstance, this Court finds, subsequent representation considered pursuant to disposal of previous writ petition is of no benefit. On their own submission Petitioners rise to the occasion only after the delimitation issue is finalized.
Page 8 of 16// 9 //
12. Further such questions also have been tested in Hon'ble apex Court and Hon'ble apex Court in similar situation in deciding the case in between the State of U.P. & Ors. Vrs. Pradhan Sangh Kshettra Samiti as reported in 1995 Supp. (2) SCC 305 in para 30 to 35 deciding on the scope of review in such decision came to observe as follows:-
"30. 'Village' has been defined in the Shorter Oxford English Dictionary (1993 Edn.) to mean "a self-contained group of houses and associated buildings, usu. in a country area; an inhabited place larger than a hamlet and smaller than a town; ... a small self-contained district or community within a city or town, regarded as having features characteristic of a village". The Law Lexicon by P. Ramanatha Aiyar (1987 Edn.) states that 'village' includes -- (a) a village community; (b) village lands; (c) rivers passing through or by village lands; and (d) a group of villages. The expression 'village' connotes ordinarily an area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto. When the area is occupied by persons who are engaged mainly in commercial pursuits, rural areas in the vicinity of a town grow into a suburb of the town.
31. The Encyclopaedia Americana (1983 Edn., Vol. 28) states that village is --"a type of community, generally small but without exact or commonly accepted size limits. Generally, in the United States, the village is thought to be intermediate between the hamlet (a settlement with several families and some form of commerce but no more than 50 people) and the town (generally over 1000 people)."
Dealing with the origin and evolution of village, it states that --
"the village is the typical form of rural settlement in most of the world -- in Europe (except for Great Britain) in Asia, in Africa, and in much of South America.... It often seems to be the result of the settlement of lands that previously were only thinly occupied by indigenous populations, but probably also derives from the emergence of clear-cut private proprietorship of land. In much of Europe and in many other areas of the world, communal land ownership prevailed in the past, and this property arrangement was one basis for the village form of rural settlement, the community being set amid the tillage and grazing lands. Growing awareness of the nearly universal appearance of the agricultural village prompted many social theorists in the 19th century to suggest that such communities represented a universal stage in human evolution. Such simplifying theories lost support as evidence of the great diversity of human cultures and the paths of change was accumulated. The interpretation of the village Page 9 of 16 // 10 // pattern is now more nearly a functional one. With settled agriculture, village orientation provides mutual protection, sociability, a measure of economic specialisation (such as handicrafts), and at least the rudiments of local government. Since size-limits will not precisely distinguish villages from other types of communities, the question arises as to whether the term has a precise meaning. All communities or settlements called villages in popular language or technical studies cannot be brought within a common definition.... Generally, however, a village is a residential and trading centre for a predominantly agricultural economy. Its social controls are predominantly traditional and informal; more formal administration and government are typical of cities and towns. Its self-sufficiency may be nearly complete, as in some parts of the Far East and Latin America, or seriously impaired by modern transportation, communication, and agencies of central government. The population of the village, unlike that of most cities and many towns, is self-recruited rather than immigrant. This, and the traditional informality of social standards and controls, lends a distinct quality of homogeneity that the more cosmopolitan centre does not have.The collapse of the theory that the village is the basic community of all civilizations did not end the idealisation of the village. Yet even the informal and traditional social controls of the village can be extremely restrictive, certainly more so than the formal tolerance of difference that the cultural heterogeneity of the city encourages or requires. And it cannot be assumed that villages are democratic. European villages are often dominated by one or a few families, some of which may claim descent from feudal rulers. The village in India is often ruled by a council (panchayat) of the leading caste or by a few principal landlords. Even in the United States, with its short history and absence of an officially recognized aristocracy, leading families are more likely to receive deference in villages than in larger and more impersonal communities. The integration of village life, or lack of social problems and tensions, has also been exaggerated. Conflicts may smoulder or burn brightly, all the more because the parties know each other and personalise the antipathy. In Europe and Asia, the village has exhibited a remarkable power of survival amidst currents of rapid social change. Rural America has been much more profoundly affected by the encroachments of an urban- industrial civilization. Many small towns, technically villages, have virtually disappeared as their economic and other social functions have been absorbed by nearby cities. Village life may endure a while longer in the United States, but the sense of continuity and communal integrity are difficult to maintain with high rates of residential mobility and in the face of steady inroads of an essentially urban civilization. The village community may be defined as a group of people who live in permanent dwellings in a defined territory which includes arable land, sometimes held Page 10 of 16 // 11 // in common. If cattle is kept, as is often the case, it is pastured on non-cultivated meadow land over which the community claims right. Further characteristics include a predominance of agricultural occupations, a close relationship to the natural environment, strong internal cohesion, and a relative absence of internal stratification and of occupational, territorial, and vertical social mobility. As such, the village is a specific type of rural settlement, but not the only one. The scientific study of the village community did not start until the middle of the 19th century. ... Sir Henry Maine (1822-1888), one of the first English writers on this topic, held the theory that the village community was originally founded by a group of kin related people who settled independently in a specified spot. In time, the original households branched out into many separate ones, clearing more land as the need arose. Occasionally they included strangers, who were sometimes adopted but more often relegated to second-class membership, tolerated rather than accepted. If one family became extinct, its share of land was returned to the common stock. Only in later times, under pressure of more highly developed political structures, did the village community become feudalistic. The land was then owned by a ruler who received tribute in kind and promised protection in return. Often the responsibilities of supervision and collection were transferred to other members of the aristocracy. Maine based his case for this presumed development upon analysis of Roman law (Ancient Law, 1861) and upon practices in Russia, south-east European countries, and specifically India, where he had carried out extensive field research (Village communities in the East and West, 1871). Several other scholars criticised Maine's theoretical reconstructions -- modern anthropologists and sociologists take the position that both developments took place. They recognize that the evolution and structure of human settlements in general, and of village communities in particular, are closely connected with specific historical developments and ecological, socio- political, economic and religious circumstances which are different from place to place. With this recognition, questions of absolute origins have generally been replaced by an increased interest in the structure and function of village communities, in an attempt to gain a basic understanding of the essential nature of living arrangements therein. As their characteristic features, peasant villagers show strong internal cohesion and tendencies to restrict membership to those born within the community. Rules of local endogamy sometimes reinforce this trend. Membership in the community is demonstrated by participation in religious rituals, which frequently stress the power of the community to deal with the supernatural rather than reliance upon individual piety. Economically, a peasant produces mainly for his own household's consumption, although he also uses part of his product to exchange in a market for other goods and services.Page 11 of 16
// 12 // These markets are often local and differ in structure from those in the cities. Although some city-produced goods reach the peasant level, there is a tendency to limit the flow of city goods into the community. Politically, peasant villages are now usually parts of national states and theoretically possess the rights and duties involved in such membership. But the village community has frequently retained mechanisms of internal control, whether through Government-approved local leaders or through informal leadership and community sanctions. Emotional attachments face inward. The individual's first loyalty is to his family, then to his community, and only then to whatever is beyond. The various elements of this characterization may be developed more strongly in some villages than in others, but as a type they are recognisable and clearly distinct from tribal groups, farming settlements, and city formations."
32. It is common knowledge that the needs of the people change with the development in the economic, scientific and technological fields as also with the developments in transport and communication. With them, the concept of self-sufficiency and the means, mode and range of self-governance also change. What is more, the units of self-governance at the lower level being interrelated and integrated with those at the higher levels as parts of the whole scheme of administration and development in the State, have to respond to and fall in line with the growth in the size and operation of the units at the higher level to form a coordinated democratic polity and administrative machinery. The concept of grassroot or lowest level administration must, therefore, necessarily change with the advance and progress at other levels. The governing units at all levels have to fit in in a pattern and a scheme for administration both for law and order and economic growth. They have to act as vehicles of overall stability and progress. For that purpose, their constitution and functioning have to be in conformity with the larger social, political and economic goals.
33. Hence there cannot be any immutable social, political, economic or organisational concept of village as a self-governing unit. In a developing country like ours, where the population is growing fast, where the society is in ferment on all fronts, where divisive forces of all kinds abound, where the vast majority of population is illiterate and is the victim of ignorance, superstition, blind faith, biases and prejudices and is shackled by tradition, and irrational customs and practices, there is an urgent need to evolve means to unite and integrate the society, to expose the populace to larger and higher goals, to imbibe in them the wider perspectives and to forge a socially cohesive front for breaking the barriers of race, caste, class, religion and region rather than to pander to the age-old, self-centred physical and mental barriers. As stated earlier, Article 40 not only does not define 'village' but also does not require that the village panchayats should be organised on the Page 12 of 16 // 13 // basis of any particular concept of village much less the vintage concept which appears to have appealed to the High Court. There is further nothing in Mahatma Gandhi's advocacy of "village panchayat raj" from which the High Court has taken support to suggest that the village that Mahatmaji had in mind was of a particular description or dimension. It is amusing in this respect to note that the High Court in support of its concept of village has even gone to the extent of observing that "it must be remembered that in considering the aspirations of the people, more so at the first level of democracy, the phenomena of a case of identity of the people, their sentiments, feelings and chauvinism, cannot be forgotten" -- the considerations which were, with respect, farthest from the mind of Mahatmaji and against which he fought throughout his life. If separate identities, chauvinism, divisible sentiments and feelings are nurtured from the grassroot level, they are bound to erode the foundation of the unity and integrity of the country and should be the last thing on the social and political agenda of the country. On the other hand, the need of the day is to create social, political and economic entities crossing all barriers and wedded to the nationhood as the ultimate goal. Anthropological and sociological entities may be natural so far as the blood and familial relationships and attachments go and have their place in certain limited spheres. But they have no place while shaping democratic, political and administrative units. Nor are they necessarily conducive to social and economic progress. On the other hand, they may prove and have in the past proved a positive hindrance to them. Although, therefore, it is true that most of the villages have developed with the initial settlement of a family or a group of families belonging to either the same tribe or ethnic group and in that sense have their historical and sociological identity, these identities are not necessarily healthy or desirable for promoting wider and diverse interests and attaining larger goals. On the other hand, they often prove insurmountable blockades to promoting the ideals enshrined in the Preamble of our Constitution, viz., social, political and economic justice; liberty of thought and expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual and the unity and integrity of the Nation. Sometimes, smaller the social, political and administrative entities, the greater the dominance of one section or the other and deeper the prejudices. The need is to organise viable social, political, economic and administrative units of optimum size at the lowest level on a rational basis keeping in mind the size of population, the needs of social and economic development, availability of resources, transport and communication facilities, convenience of administration and other relevant factors. Old is not always gold and mere historic accidents through which the villages of the concept of High Court have developed, cannot justify their perpetuation as political and administrative units to Page 13 of 16 // 14 // attain the modern goals of social and economic progress or furnish the rationale for their survival as basic democratic entities. What is further forgotten is that over the years, not only the population in the rural areas has grown enormously but the complexion of the rural areas has also undergone a change. With the increasing pressure on land, there has been a steady migration from the rural to the urban and semi-urban areas. Some villages are almost deserted while others survive much below the poverty line. At the same time, some have emerged as small pockets of comparative prosperity, thanks to marginal industrial and commercial activities around them and the nearness to the urban and semi-urban areas. There is further a limit to the number of village panchayats which may be constituted with all the overhead expenses involved in the exercise which must have a rational relation to the result sought to be achieved. In the State of U.P., there are 1,20,000 villages. Before the present exercise of constituting the village panchayats under the Act, there were 74,000 gram sabhas which are now reduced to 55,000. With the nature and range of functions entrusted to the new village panchayats under the Act, and the expenditure that may have to be incurred in constituting and running them, it can hardly be said that their number, structure and organisation militate in any way against the concept of democracy and the principle of self- governance. Section 11-F(1) by laying down for non-hilly areas a norm of a village panchayat for every 1000 population as far as practicable and for hilly areas, for every 5 kilometres radius- distance, has in fact tried to observe the principle of self- governance as closely as possible.
34. The first premise of the High Court's reasoning is, therefore, faulty and it has led it to build an edifice which is equally defective. It is for this reason that we are unable to appreciate the portions of the impugned judgment dealing with the sentiments, feelings, chauvinism and will of the people (pp. 16-20); holding that power to specify villages vests with the people and not with the State Government and that the villages cannot simply be a revenue village (pp. 21-25); holding that the Governor is obliged to specify a village giving due regard to the wishes of the people (pp. 26-27); holding that provisions of the Act referring to establishment of gram sabha for a group of villages are ultra vires, and beyond the intention of the Constitution (pp. 32-33); that status of gram sabha has been compromised and belittled in the Act itself (pp. 37-38); holding that the Act in explaining the expression "gram sabha" offends the Constitution and negates the concept of local self-government (p. 40); and stating that Section 11-F gives rise to misunderstanding as it has scope for overlapping and duplication in notifying and declaring areas comprising a village or group of villages into panchayat area (p.
59).
Page 14 of 16// 15 //
35. As pointed out above, Article 243(g) of the Constitution defines village to mean "a village specified by the Governor to be a village and includes a group of villages so specified". In other words, according to this definition, any existing village or a group of the existing villages may be specified by the Governor as a village for the purposes of organising a village panchayat. The definition begs the question as to what is a village which the Governor can specify as a village for the purposes of constituting the "village panchayat". It is not disputed that almost all villages in the State have been recorded in the revenue records of the respective districts in which they are situate. No material has been placed on record to show that villages have been recorded as such in any other record. There may be some villages and new settlements which are not so recorded. There is, therefore, nothing wrong if the Governor specifies the revenue villages as villages and in addition also those villages and settlements which are not so recorded in the revenue records as villages for the purpose of constituting village panchayats. The "revenue village" is, therefore, a documented ready-made concept of village and the Governor while acting under Article 243(g) for specifying the village may adopt the same as village. No restriction has been placed by Article 243(g) on the Governor for accepting the revenue village as a village for the purposes of constituting village panchayat. In fact, the Governor has been empowered by the said constitutional provision to declare even a group of villages as a village. If this is so, we are unable to appreciate as to why the definition of village in Section 2(t) will fall foul of the provisions of Article 243(g). Section 2(t) not only speaks of villages recorded in the revenue records as such but also includes in the definition, any area which the State Government may by general or special order declare to be a village for the purposes of the Act. The concept of village is not foreign either to the Constitution or to the State legislation. Apart from the U.P. Land Revenue Act, the concept of village finds place in other State enactments such as U.P. Village and Road Police Act, 1873 and U.P. Village Sanitation Act, 1892, U.P. Village Courts Act, 1892, U.P. Village Panchayats Act, 1920 which was replaced by the unamended U.P. Panchayat Raj Act, 1947, U.P. District Boards Act, 1922, U.P. Local Rates Act, 1914 which latter two Acts were replaced by the U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961. If, therefore, there is no restriction placed by the Constitution on the Governor in accepting any inhabited rural area as a village, it is difficult to appreciate how the Act is violative of the Constitution when the State Government declares any area including a revenue village as a village. In any case, the court cannot substitute its concept of village for that of the State Government.
Page 15 of 16// 16 // From the above this Court finds, law on the subject also does not support the Petitioners. At the same time it is also kept in mind that after the delimitation decision on the particular work there has been two Gram Panchayat Elections already taken place and there is no difficulty faced by the contested candidate involving such decision. Entertainment of such writ petition at this stage will be amounting to unsettle a settled position for nearly 7 years.
13. This Court finds, attempt of the Petitioners involved herein appears to have been made before the Gram Panchayat Election taking place in the year 2016. It appears, in the meantime there has been further Election in 2022 dependent on the delimitation of the wards already taken place. Two Elections have already been held in the meantime. This Court observes, if this Court attempts to interfere in the delimitation aspect at this stage, there will be disturbance of the ward members already elected dependent on framing of such wards.
14. The writ petition stands dismissed, but in the circumstance, no order as to costs.
(Biswanath Rath) Judge Orissa High Court, Cuttack.
The 3rd day of January, 2023// Ayaskanta Jena, Sr. Stenographer Page 16 of 16