Gujarat High Court
Pantrod Faljibhai Karsanbhai & vs State Of Gujarat & 4 on 24 March, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/1435/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1435 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1865 of 2017
With
CIVIL APPLICATION NO. 4156 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1865 of 2017
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PANTROD FALJIBHAI KARSANBHAI & 11....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR HIMANSU M PADHYA, ADVOCATE for the Petitioner(s) No. 1 - 12
MS MANISHA L. SHAH, GP for Respondent(s) No. 1 - 2
MR RB THAKOR, ADVOCATE for the Respondent(s) No. 3 - 4
MR SP MAJMUDAR, CAVEATOR for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 5
YAGNESHKUMAR S JOSHI, CAVEATOR for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 24/03/2017
COMMON ORAL ORDER
1. The main issue involved in both these petitions are identical and interim relief prayed for in the main petitions are also same and even the prayer prayed for in Civil Application No.4156 of 2017 is identical. Both petitions as well as Civil Application were heard together for grant of interim relief as prayed for.
2. By way of these petitions under Article 226 of the Constitution of India, the petitioners have challenged the legality and validity of Notification dated 22.11.2016 Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Mar 25 00:21:27 IST 2017 C/SCA/1435/2017 ORDER issued by the State Government, whereby village Vadhana, Taluka Palanpur, District Banaskantha, which comprises of local areas i.e. Vadhana, Gurunagar and Desai-Para have been bifurcated into two different gram panchayats namely Vadhana Gram Panchayat covering local area of Vadhana and Gurunagar Gram Panchayat consisting local areas of Gurunagar and Desai-Para.
3. This Court has issued notice in the main petitions and pursuant to the same, private respondents have filed Affidavit-in-Reply, whereas the reply of the State Government is awaited.
4. From the contentions raised in Civil Application, it transpires that the election of newly created gram panchayats has been declared, which has given rise to Civil Application No.4156 of 2017 and hence, both the petitions as well as Civil Application were heard for interim relief.
5. Heard Mr. V.C.Vaghela, learned counsel for the petitioners in Special Civil Application No.1865 of 2017, Mr.Himanshu Padhya, learned counsel for the petitioners in Special Civil Application No.1435 of 2017, Ms.Manisha Luvkumar Shah, learned Government Pleader for respondent Nos.1 and 2 - State Authorities, Mr.R.B.Thakor, learned counsel for respondent Nos.3 and 4 and Mr.S.P.Majmudar, learned counsel for respondent No.5.
6. Mr.V.C.Vaghela, learned counsel for the petitioners has raised the following contentions :
(i) It is contended that new panchayats can be constituted in two conditions namely new village panchayat and one village panchayat is to be excluded from Group Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Mar 25 00:21:27 IST 2017 C/SCA/1435/2017 ORDER Gram panchayat.
(ii) That the criteria for creation of new gram panchayat by exclusion or by creation of local gram panchayat from a group gram panchayat is to be based on criteria such as voting strength. In the instant case, new village Panchayat has been carved out from voting strength of 1800 villagers only.
(iii) Referring to entry No.299 dated 20.06.1977 V.F 6, it was contended that the area which now comprises of Gurunagar and Desai-Para were allotted as Gamtal land. The said Gamtal land is a colony, which has come into existence and therefore, it is adjoining to village Vadhana. Relying upon the sketch produced on record in the main petitions, it was contended that the certificate given by the Executive Engineer stating that it is about 2 kms. from village is incorrect, but, in fact it is hardly at a distance of 100 mtrs. from Gamtal.
(iv) That new village Panchayat of Gurunagar consisting of local areas namely Gurunagar and Desai-Para are small and even the population ratio is not maintained.
(v) That though the proposal is based on the Resolution of Gram Panchayat, 5 members out of 7 have filed their affidavits before this Court stating that no such Resolution is passed.
(vi) That in the area of Gurunagar and Desai-Para, total votes are only 348 and therefore, villages are not viable.
New village Panchayat is formed on false and forged documents created by Sarpanch and Talati-cum-Mantri. It was also contended that when there are 348 votes and if such votes are divided into 7 wards, each ward would be 50 Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Mar 25 00:21:27 IST 2017 C/SCA/1435/2017 ORDER votes and this is done at the back of Gram Sabha in connivance with Sarpanch and Talati-cum-Mantri.
(vii)It was also contended that the population ratio though shown as 700 people, formation of wards with 348 votes is also not viable.
(viii) It was also contended that looking to the income also, creation of new Gram Sabha is not viable as it would be insufficient to run the same.
(ix) Learned counsel for the petitioners has relied upon the judgment of this Court rendered in the case of Gunvantlal Bhogilal Vrajlal Mehta Vs. K.D.Rawat [2015(3) GLH (NOC) 2] as well as the judgment of the Hon'ble Supreme Court in the case of State of U.P. & Ors. Vs. Pradhan Sangh Kshetra Samiti & Ors., [1995 Suppl (2) SCC 305], it was reiterated that the records are false and fabricated and the criteria, which are required to be followed for creation of new gram panchayat is not followed.
7. Mr.Himanshu Padhya, learned counsel for the petitioners in Special Civil Application No.1435 of 2017 has adopted the arguments of Mr.V.C.Vaghela, learned counsel for the petitioners in Special Civil Application No.1865 of 2017.
Learned counsel for the petitioners in both the petitioners submit that in view of the above mentioned facts, interim relief as prayed for deserves to be granted.
8. Ms.Manisha Luvkumar Shah, learned Government Pleader appearing for the State and its authorities has contended as under:-
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(i) That the whole procedure as envisaged under Section 7 of the Gujarat Panchayats Act, 1993 has been followed and thereafter, Notification dated 22.11.2016 is issued.
Relying upon the original file which was also perused by this Court, it was also contended that issuance of Notification has passed through rigors of the Act and has been approved by Highest Authority in the Department and thereafter, such decision is taken.
(ii) It was also contended that after considering the Resolutions passed by Vadhana Gram Panchayat, Palanpur Taluka Panchayat as well as Banaskantha District Panchayat, proposal was sent by District Development Officer, which was examined by the Development Commissioner and after considering all relevant factors, just as population per capita, income and distance, decision is taken by the State Government and the same has been approved by the Panchayat Department right upto the Minister of Panchayat in State Government.
(iii) It was also contended that the petitioners are 12 in numbers. However, 5 affidavits have been filed, which is contrary to the original records.
In view of the above mentioned contentions, learned Government Pleader for the State Authorities has submitted that no case for any interim relief is made out and hence, the same deserves to be rejected.
9. Mr.S.P.Majmudar, learned counsel for respondent No.5 has also opposed the grant of any interim relief and has adopted the arguments made by learned Government Pleader.
10. Mr.R.B.Thakore, learned counsel for respondent Nos.3 Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Mar 25 00:21:27 IST 2017 C/SCA/1435/2017 ORDER and 4 has also supported the stand taken by learned counsel appearing for the other respondents.
No other and further submissions are made by learned counsel for the parties.
11. It is a matter of record that two main petitions are pending at the stage of admission and Special Civil Application No.1865 of 2017 and Civil Application No.4156 of 2017 are taken/considered by this Court only for question of grant of interim relief. It is also matter of record that the impugned Notification was issued on 22.11.2016 and the same came to be challenged by filing two writ petitions in the month of January and February, 2017.
12. Upon considering the submissions made by learned counsel for the petitioners - applicants and on perusal of the original records, it appears that Resolution No.6 came to be passed by Vadhana Gram Panchayat for constituting separate Gram Panchayat of Gurunagar comprising area of Gurunagar and Desai-Para on 04.03.2016. The Sarpanch of Gram Panchayat has given written consent on 05.03.2016 and thereafter, proposal was made to the Taluka Panchayat through Taluka Development Officer on 02.04.2016 by the Gram Panchayat as a whole. Record further indicates that, thereafter, the Resolution came to be passed by Taluka Panchayat, Palanpur on 25.04.2016 and further Resolution was passed by District Panchayat, Banaskantha, on 10.08.2016. The said material was sent by District Development Officer with proposal on 29.09.2016 to the Development Commissioner. Record further indicates that in turn, the Development Commissioner made a proposal to the State Government on 28.10.2016 and at the level of the State Government, said proposal was examined by the Under Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Mar 25 00:21:27 IST 2017 C/SCA/1435/2017 ORDER Secretary on 11.01.2016 and by Principal Secretary on 10.11.2016, and after considering all the factors including income which is Rs.11,500/- and the population, the file was placed before the Ministry of Panchayats, which came to be approved on 21.11.2016 and on basis of which, impugned Notification is issued on 22.11.2016.
13. It is a matter of record that, in both petitions, various contentions over and above the contentions raised by learned counsel for the petitioners - applicants, have been raised, which shall be examined by this Court while dealing with these petitions. While examining the case of the petitioners - applicants, taking into consideration the ratio laid down by the Apex Court in the case of State of U.P. & Ors. (supra) and by this Court in the case of Gunvantlal Bhogilal Vrajlal Mehta (supra), the petitioners
- applicants have not been able to establish prima face case for any interim relief as prayed for. It appears that the proposal was made on basis of the Resolution passed by Gram Panchayat as whole followed by further Resolutions passed by the Taluka Panchayat as well as the District Panchayat and after considering all relevant factors, the impugned Notification has been issued.
14. In light of the aforesaid, balance of convenience is also not in favour of the petitioners - applicants and if the impugned Notification is not stayed, the petitioners - applicants are not likely to suffer any irreparable loss. The contentions which are raised in these petitions shall be independently examined by this Court and the observations made in this order are only prima facie. Upon considering the contentions which are raised by learned counsel for the petitioners - applicants, no case for interim relief is made out, which in fact would amount to Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Mar 25 00:21:27 IST 2017 C/SCA/1435/2017 ORDER indirectly staying the election programme. It deserves to be noted that the authorities including the State Government have also considered relevant factors and therefore, in prima facie opinion of this Court, the petitioners - applicants are not entitled for any interim relief as prayed for in both the matters.
15. For the foregoing, Civil Application No.4156 of 2017 deserves to be dismissed and is hereby dismissed. At the cost of repeatation, it is provided that the observations made in this order are only for consideration of the interim relief as prayed for in these petitions and Civil Application No.4156 of 2017.
Special Civil Application Nos.1435 of 2017 and 1865 of 2017 be listed on 12th April, 2017.
(R.M.CHHAYA, J.) Suchit Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Mar 25 00:21:27 IST 2017