Chattisgarh High Court
Premchand Sahu vs State Of Chhattisgarh 28 Wpc/4140/2019 ... on 28 November, 2019
Author: P. Sam Koshy
Bench: P. Sam Koshy
-1-
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (C) No. 3855 of 2019
1. Hemlal Verma S/o Ramchandra Verma Aged About 31 Years Sarpanch,
Gram Panchayat Makkatola Tahsil Dongargarh, District Rajnandgaon
Chhattisgarh.
2. Dhaluram Verma S/o Amoliram Verma Aged About 57 Years R/o Village
Hirapur Gram Panchayat Makkatola, Tahsil Dongargarh, District
Rajnandgaon Chhattisgarh.
3. Ramji Verma S/o Bahuru Ram Verma Aged About 66 Years R/o Village
Jhirapur Gram Panchayat Makkatola, Tahsil Dongargarh, District
Rajnandgaon Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat And Rural
Development Department, Mantralaya, Naya Raipur District Raipur
Chhattisgarh.
2. Collector District Rajnandgaon Chhattisgarh.
3. The Sub Divisional Officer (R) Dongargarh, District Rajnandgaon
Chhattisgarh.
---Respondents
Writ Petition (C) No. 4232 of 2019
1. Ganeshu Ram S/o Girwar Gond Aged About 62 Years R/o Village Biranpur
Khurd, Gram Panchayat Daniyakhurd, Thana And Tahsil Sahaspur Lohara,
Civil And Revenue District Kabeerdham, District : Kawardha (Kabirdham),
Chhattisgarh.
2. Dhurchand S/o Shri Tibhu Satnami Aged About 49 Years R/o Village
Biranpur Khurd, Gram Panchayat Daniyakhurd, Thana And Tahsil
Sahaspur Lohara, Civil And Revenue District Kabeerdham Chhattisgarh.
3. Phuluk Ram S/o Shri Chamru Gond Aged About 58 Years R/o Village
Khapari, Gram Panchayat Daniyakhurd, Thana And Tahsil Sahaspur
Lohara, Civil And Revenue District Kabeerdham Chhattisgarh.
4. Balram S/o Shri Ishari Singh Aged About 34 Years R/o Village Khapari,
Gram Panchayat Daniyakhurd, Thana And Tahsil Sahaspur Lohara, Civil
And Revenue District Kabeerdham Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Department of Panchayat
And Rural Development, Mantralaya, Capital Complex, Mahanadi
Bhawan, Atal Nagar, Nawa Raipur District Raipur Chhattisgarh.
2. Collector Kabeerdham Civil And Revenue District Kabeerdham
Chhattisgarh.
3. Sub Divisional Officer Revenue Kabeerdham District Kabeerdham
Chhattisgarh.
---Respondents
-2-
Writ Petition (C) No. 4028 of 2019
1. Lala Ram Sahu S/o Shri Chaman Singh Aged About 42 Years Panch Ward
No. 11, R/o Village Nunpani,, Tah. Sarangarh, Distt. Raigarh, Civil And
Revenue Distt. Raigarh Chhattisgarh.
2. Balmukund Sahu S/o Shri Darasram Sahu Aged About 45 Years Panch
R/o Village - Silory, Tah. Sarangarh, Distt. - Raigarh Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through Secretary, Panchayat And Rural
Development Department, Mahanadi Bhavan Atal Nagar, New Raipur
Distt. Raipur Chhattisgarh.
2. The Director Panchayat , Indrawati Bhavan , Block - 1, 3rd Floor , New
Raipur, Distt. Raipur Chhattisgarh.
3. The Collector Raigarh Distt. Raigarh Chhattisgarh.
4. The Chief Executive Officer Zila Panchayat Raigarh, Distt. - Raigarh
Chhattisgarh.
5. The Sub Divisional Officer(Revenue) Sarangarh, Distt. - Raigarh
Chhattisgarh.
6. The Chief Executive Officer Janpad Sarangarh, Distt. Raigarh
Chhattisgarh.
---Respondents
Writ Petition (C) No. 4138 of 2019
Premchand Sahu S/o Late Shri Narayan Prasad Sahu Aged About 45
Years R/o Village - Nawagaon, Post - Chandanu Police Station
Nanadghat, Tehsil Bemetara, District Bemetara, District : Bemetara,
Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Department Of Panchayat,
Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur Chhattisgarh.
2. The Collector Bemetara, District Bemetara Chhattisgarh.
3. Sub Divisional Officer (Revenue) Bemetara, District Bemetara
Chhattisgarh.
---Respondents
Writ Petition (C) No. 4140 of 2019
Jagmohan S/o Kenda Bhagat Aged About 39 Years Sarpanch, Gram
Panchayat, Nanhesar, Janpad Panchayat, Bagicha, District Jashpur,
Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat and Rural
Development Department, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Mantralaya, New Raipur, Chhattisgarh.
2. The Collector District Jashpur, Chhattisgarh.
3. The Sub-Divisional Officer (Revenue) Bagicha, District Jashpur,
Chhattisgarh.
-3-
4. The Chief Executive Officer Janpad Panchayat, Bagicha, District Jashpur,
Chhattisgarh.
5. The Tahsildar Bagicha, District Jashpur, Chhattisgarh.
---Respondents
Writ Petition (C) No. 4180 of 2019
Indradaman Singh S/o Raje Singh Aged About 39 Years Caste - Thakur,
R/o Village Koliha, Ward No. 9, Post Office Doda, Tahsil Mungeli, District
Mungeli Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat And Rural
Development Department, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Mantralaya, New Raipur Chhattisgarh.
2. The Collector District Mungeli Chhattisgarh.
3. The Sub Divisional Officer (Revenue) Mungeli, District Mungeli
Chhattisgarh.
4. The Chief Executive Officer Janpad Panchayat, Mungeli, District Mungeli
Chhattisgarh.
---Respondents
Writ Petition (C) No. 4186 of 2019
Bhuniram Sahu S/o Late Shri Raghuveer Sahu Aged About 60 Years Up-
Sarpanch, Gram Panchayat, Bhardakala, R/o Village- Bhardakala, Police
Station- Saja, District- Bemetara, Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat And Rural
Development Department, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Mantralaya, New Raipur, Chhattisgarh.
2. The Collector District- Bemetara, Chhattisgarh.
3. The Sub-Divisional Officer (Revenue) Saja, District- Bemetara,
Chhattisgarh.
4. The Chief Executive Officer Janpad Panchayat, Saja, District- Bemetara,
Chhattisgarh.
5. The Tahsildar Saja, District- Bemetara, Chhattisgarh.
---Respondents
Writ Petition (C) No. 4253 of 2019
1. Manraj Baiga S/o Shri Shivnath Baiga, Aged About 65 Years R/o Village
Harri, Police Station Kotador, Tahsil Bharatpur, District Korea Chhattisgarh.
2. Gokul Baiga S/o Raghunath Baiga, Aged About 32 Years R/o Village Harri,
Police Station Kotador, Tahsil Bharatpur, District Korea Chhattisgarh.
3. Vijay Chand, S/o Shri Heera Sai, Aged About 40 Years R/o Village Harri,
Police Station Kotador, Tahsil Bharatpur, District Korea Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat and Rural
Development Department, Mahanadi Bhawan, Mantralaya, Atal Nagar,
Mantralaya, New Raipur Chhattisgarh.
-4-
2. The Collector, District Korea Chhattisgarh.
3. The Sub Divisional Officer (Revenue), Bharatpur, District Korea
Chhattisgarh.
4. The Chief Executive Officer, Janpad Panchayat, Bharatpur, District Korea
Chhattisgarh.
5. The Tahsildar, Bharatpur, District Korea Chhattisgarh.
---Respondents
For Petitioners : Shri Parag Kotecha, Shri Sunil Sahu, Shri M.K
Sinha, Shri Prateek Sharma, Shri S.S. Painkra,
Shri DN. Prajapati, Shri Chandrabhushan
Kesharwani, Shri Abhishek Pandey and Shri
Sanjeev Kumar Sahu, Advocates.
For State : Shri Jitendra Pali, Dy. Advocate General.
Hon'ble Shri Justice P. Sam Koshy
JUDGMENT
Reserved on 27.11.2019 Delivered on 28.11.2019
1. The challenge in all the writ petitions is to the issuance of the notification under Section 125 of the Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (in short, the Act, 1993) by the Collector in the respective districts so far as determining the limits of Gram Panchayat for the purpose of forthcoming local elections is concerned. As the grounds raised in all the writ petitions are more or less same, without going into detailed discription of the factual details in each of the writ petitions in respect of the limits of the boundaries which stood changed by the issuance of the impugned notification in each of the cases, this court proceeds to decide the legal issues involved in these bunch of petitions by this common judgment.
2. In most of the cases, the contention of the petitioners is that, when the preliminary notification was published calling for objections of the aggrieved persons, if any, the villagers did not file any objections for the reason that the preliminary notification and the limits mentioned therein was acceptable to the petitioners and in most of the cases there were no change brought to the limits of the Gram Panchayat when compared to -5- the limits as it stood prior to the issuance of preliminary notification. However, subsequently, when the final notification has been published, there has been a substantial change brought to the limits of the Gram Panchayats and in most of the cases some village has been removed from the Gram Panchayat as published in the preliminary notification and have been amalgamated with some other Gram Panchayat.
3. This change of boundaries while publishing the final notification, according to the petitioners, is without any notice being issued which was mandatorily required as the respondents have brought substantial change to the preliminary notification and any change brought to the preliminary notification could have been only after the villagers were given an opportunity to file their objections or suggestions.
4. The second ground of arguments of the petitioners was that in almost every case the village which have been segregated and are merged or joined with some other Gram Panchayat do not have any adjoining boundaries nor do they have any proximity to the new headquarters of their Gram Panchayats.
5. In few of the cases, the contentions of the petitioners is that, the villages did not have even a direct access or road connectivity to the Gram Panchayat headquarters which would give rise to a great amount of inconvenience. It was also the contentions of the petitioners that in many of the cases, the distance between one village to the headquarter of the Gram Panchayat is quite far and while reaching the new headquarter, they have to cross headquarters of atleast more than one Gram Panchayats and for this reason also it becomes in convenient to the villagers.
6. According to the petitioners, some of the major inconvenience that would arise is that, the petitioners who are the villagers of dependent village -6- would have to go to the Gram Panchayat headquarters crossing over the headquarters of other Gram Panchayat which would fall enroute and this could create great difficulties particularly when the farmers and agriculturist would be required to take their paddy or agricultural products for sale at the Gram Panchayat headquarter level. According to the petitioners, there is a requirement for issuance of notice by the respondents in the event of there being an intention of change of boundaries of the existing village or change of boundaries of villages as notified earlier. In the absence of such notice or publication in this regard, the final notification becomes contrary to the provisions of Section 125 of the Act, 1993. In addition, it also amounts to violation of the Chhattisgarh Panchayat (Alteration of Limits, Dis-establishment or Change of Headquarter), Rules, 1994.
7. Another ground raised for challenging the impugned notification is that, the State Govt. themselves had issued a circular on 11.09.2019 wherein the State has laid down certain guidelines which also were not borne in mind by the respective Collectors while finalizing the limits of boundaries of villages, as also the reconstitution of the Gram Panchayats are concerned.
8. According to the petitioners, in addition to the requirement of law under Section 125 of the Act, 1993 and Section 3(iii) of the Rules, 1994 referred to hereinabove, the State Govt. had even not considered the guidelines which have been framed and which had to be broadly taken into consideration while publication of the final notification has not been complied with or adhered to while issuance of the final notification under Section 125 of the Act, 1993 makes the final notification arbitrary.
9. Per contra, counsel for the respondent Shri Jitendra Pali, Dy. Advocate General opposing the petition submits that final notification is not contrary -7- to law in any manner. According to the respondents the very fact that petitioners are admitting of issuance of preliminary notification is sufficient to draw an inference that requirement or the compliance for issuance of notification under Section 125 has been duly complied with. The respondents refer to the preliminary notification wherein objections were called upon from the concerned persons in respect of the intention of the respondents so far as determining the limitation of a Gram Panchayat is concerned and thereafter taking into consideration the facts and circumstances and objections if any received the final notification has been issued. Thus, there is compliance as is required both under Act of 1993 as also the Rules framed of 1994. It was further contention of Shri Jitendra Pali with the requirement under Section 125 was also the Rules of 1994 cannot be construed to be mandatory. It is only directory and therefore also the final notification cannot be said to be illegal. The contention of the State counsel is that it cannot be accepted that each time respondent No.2 on consideration of the objections received to the preliminary notification would have keep on calling the objections from the concerned villagers for the reason that under the said circumstances it would become a never ending process and which would otherwise be practically impossible to work out.
10. Respondents further submitted that determination of the villagers of the Gram Panchayats or the amalgamation/alteration/change of headquarter of Gram Panchayat is concerned, it is exclusively a legislative power conferred upon the respondents and therefore the requirement of calling upon objections from the concerned villagers or in other words, the application of the principles of natural justice cannot be strictly adhered to. It was lastly contended by the respondents that convenience alone can -8- not be a factor to decide the boundaries of a Gram Panchayat as there are other equally relevant factors like the population of the villages which are being amalgamated the infrastructure available in each of the villages and in its surroundings, the proximity to the proposed headquarters of the Gram Panchayat etc. Counsel for the respondents heavily relied upon the judgment of this High Court in the case of Gramwasi, Gram Khari, Gram Panchayat, Dhamni and Another Vs. Collector, District Baloda Bazar and others, wherein according to the respondent's law is well settled taking into consideration of all the legal pronouncement and precedents on the issue involved. Thus, prayed for rejection of the writ petition.
11. Given the aforesaid facts, it would be relevant at this juncture to refer to the statutory provisions relevant for the adjudication of the present dispute. Sections 125 of the Act, 1993 deals with the change of headquarters of a Gram Panchayat, division, amalgamation and alteration of Panchaya area. For ready reference, Section 125 of the Act, 1993 is being reproduced hereinunder:
"125. Change of headquarters of Gram Panchayat division, amalgamation and alteration of Panchayat area.
- (1) The Governor or the authority authorized by him may by order change the headquarters of a Gram Panchayat or alter, the limits of a Gram Panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein or amalgamate two or more Gram Panchayat areas and from one Gram Panchayat area in their place or split up a Gram Panchayat area and from two or more Gram Panchayat areas in its place :
Provided that no order under this section shall be made unless a proposal in this behalf is published for inviting suggestions and objections in such manner as may be prescribed an objections are considered.-9-
(2) On the issuance of the order under sub-section (1), the Governor or the prescribed authority shall pass such consequential orders as may be necessary."
12. Likewise, the Govt. has also framed the Rules of 1994 for this purpose. Rule 3 of Rules, 1994 deals with the manner as to how the change of headquarters of Gram Panchayat, deviation, amalgamation or alteration of Gram Panchayats. The relevant portion of Rule 3 read as under :
"3. Change of headquarters of Gram panchayat, division, amalgamation or alteration of Gram Panchayat area-
(1) Where the Governor or the authority authorized by him decides under sub-section (1) of section 125:
(i) to change the headquarters of a Gram Panchayat; or
(ii) to alter the limits of a Gram Panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein; or
(iii) to amalgamate two or more Gram Panchayat area and form one Gram Panchayat area in their place; or
(iv) to split up a Gram Panchayat area and form two or more Gram Panchayat areas in its place, he/it shall declare his/its intention in the form of a proposal to do so by publishing a notification in the "Madhya Pradesh Gazette" and by affixing a copy of such notification on the notice board of the Gram Panchayat's concerned and on one or two conspicuous places in the area affected by such intention.
(2) Every such notification shall specify -
(i) in case of clause (i) of sub-rule (1), the existing headquarters of a Gram Panchayat and proposed headquarters;
(ii) in case of clause (ii) of sub-rule (1), the Khasra numbers of the area proposed to be included in a Gram Panchayat or proposed to be excluded therefrom;
(iii) in case of clause (iii) of sub-rule (1), the Gram Panchayats proposed to be amalgamated; and -10-
(iv) in case of clause (iv) of sub-rule (1), the particulars of each of the area proposed to be split up.
(3) Every such notification shall invite suggestion and objections by the date to be mentioned therein and any objection or suggestion received from any person with respect to the proposal before the expiry of the date specified above shall be considered by the Governor or the authority authorized by him, as the case may be. (emphasis supplied).
By notification dated 23.02.1999, the Governor of Madhya Pradesh has authorised the Collectors of the concerned revenue districts, to function as the Authority for the purposes of Section 125 of the Act."
13. It is settled position of law, as laid down in 2011(10)SCC714, J&K Housing Board & Another Vs. Kunwar Sanjay Krishan Kaul & Others, that when any statutory provision provides a particular manner for doing a particular act, the said Act or thing must be done in accordance with the manner prescribed therefor in the Act and the Rules framed therein.
14. The Division Bench of MP High Court in case of Pranay Gupta Vs. State of MP & Others, 2004(4)MPLJ-574, dealing with a situation, identical to the facts of the present case, has in a very categorical terms held that the requirement relating to publication contended in proviso to Section 125(1) of the Act, 1993 is mandatory and not directory. One of the question which has been dealt with by the Division Bench is as to whether the use of word "Shall" in the proviso to Section 125(1) of the Act, 1993 as also in Rule 3 of Rules, 1994 is mandatory or directory. Referring to couple of judgments of the Supreme Court in case of State of Uttar Pradesh Vs. Baburam Upadhyay, AIR 1961 SC 751, Raza Buland Sugar Co. Ltd., Rampur Vs. The Municipal Board, Rampur, AIR 1965 SC 895, has held that merely because the statute use the word "Shall" would not make the provision a mandatory one. According to the Division Bench, the court must ascertain -11- the real intention of the legislature by considering the whole scope and object to be achieved by the statute and provision.
15. The Supreme Court in case of Raza Buland Sugar Co. Ltd. (Supra) relying upon the earlier decisions rendered by it including the case of Baburam Upadhyay (Supra) dealing with the said question, has held as under:
"10. The question whether a particular provision of a statute which on the face of it appears mandatory- inasmuch as it uses the word "shall" as in the present case - or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose, the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."
(emphasis supplied).
16. The Division Bench of MP High Court after dealing with various pronouncements made by the Supreme Court as well as by the High Courts in the past in paragraphs 14 and 15 held as under :
"14. The following principles can be culled out from the above decisions:
(i) The question whether a particular provision of a statute is mandatory or directory depends on the object of the statute in making the provision, the nature and wording of the provision, the intention of the legislature, and the inconvenience or injustice that -12- will be caused to the section of public affected by the provision, by reading the provision, one way or the other (that is as 'mandatory' or 'directory'). The mere use of word "shall" is not conclusive to hold that the provision is mandatory.
(ii) Where the provision is mandatory, exact compliance is required. Any defect in compliance will result in nullification of the action. On the other hand where the provision is directory, substantial compliance can be considered as compliance with the requirements of the provision.
(iii) Where the provision uses the word 'shall' while requiring publication of any proposal, with the object of giving notice to the persons who are likely to be affected by implementation of such proposal and to enable them to file the objections/suggestions, the requirement regarding publication is mandatory.
(iv) Where the parent statute prescribes the mode of publication of Subordinate legislation as publication in the Gazette, (in order to take effect from the date of publication), such a requirement is mandatory and imperative and cannot be dispensed with,
(v) Where a single mode of publication is prescribed (by publication in the Gazette or other mode), for proposals inviting objections/suggestions, in a mandatory requirement of publication, then such mode of publication will also be mandatory.
(vi) Where the requirement relating to publication is mandatory, but the provision relating to mode of publication is made by a delegated or subordinate legislation, prescribing more than one mode of publication, it is possible to construe such provision relating to mode of publication as directory, in which event substantial compliance with such provision relating to mode of publication, will be sufficient to meet the mandatory requirement of publication. For -13- example, if the provision relating to mode of publication prescribes two modes of publication, and publication is made by the more effective of the two modes prescribed, any defect in the making the publication by the other mode, will not render the 'publication' bad. Resultantly the mandatory requirement of publication can be taken to be complied with.
15. We will now examine the provision of section 125(1) of the Act and Rule 3 of the Alteration Rules in the light of above principles. The purpose of requiring publication of the proposals (relating to change of headquarters, alteration of limits of Gram Panchayats, amalgamation of two or more Gram Panchayats or splitting of Gram Panchayats) is to draw the attention of the residents of the area who are likely to be affected by the proposals, so that they can submit their suggestions or file their objections to the proposals, which on consideration may enable the authority concerned to take a proper decision in the matter, either by dropping the proposals or by proceeding in terms of the proposals. The delimitation changes made in exercise of power under section 125(1) of the Act will materially affect the residents of the area. Such changes as contemplated in section 125(1) are not to be made lightly or routinely either for political convenience or at the whims of the Executive. There should be proper application of mind and valid reasons for effecting such changes. Therefore, section 125 mandates that the proposals shall be published inviting suggestions and objections and that such objections shall be considered before making any changes. In the circumstances, the requirement relating to publication contained in the proviso to section 125(1) is mandatory and not directory."
17. After laying down general principles so far as requirement of the Act, 1993 is concerned and also holding that the proviso to Section 125(1) of the Act, -14- 1993, that is the requirement of publication of intention of the Govt. so far as change of limits of the Gram Panchayat being made mandatory, the Division Bench also had made certain observations to the State Govt. which they were supposed to borne in mind. The relevant portion of which is reproduced herein:
"18. Before parting, we however wish to impress upon the State Government the need to avoid half-hearted attempts in complying with requirements relating to publication. As repeatedly pointed out by the Supreme Court, the object of publishing the proposal is to invite objections of the persons likely to be affected by the proposals and to provide reasonable opportunity of being heard to those who are likely to be affected. The object of requiring publication is to find out the reaction of the residents of the respective villages and it is very much possible that in a particular case, the appropriate authority may even drop the proposal if the reaction of the residents was overwhelming, logical and bona fide. Publishing notifications in the Gazette in a routine and mechanical manner without ensuring that the same is available to the members of public with adequate time for filing objections, will weaken the democratic process. Similarly, if a notification is to be published by affixture to Notice Board of Gram Panchayat Office or other conspicuous place, it should be promptly complied with and a record be made of such publication, so that compliance with the requirement can be verified in future.
19. When a notice or proposal is required to be published in the Gazette, it should be published and made available to the public well in time before the last date prescribed for filing the objections/suggestions so that the aggrieved persons for whose benefit it is intended have time to know about the proposals and consider whether the proposals are proper or not, legal or not, beneficial or not and file objections..........." -15-
18. What is reflected from the judgment of Division Bench of MP High Court is that, firstly the Division Bench has held that calling for objections and inviting suggestions before passing an order Section 125(1) being mandatory and it had to be complied with and adhered with in its letter and spirit.
19. True it is that the Single Bench of this High Court in case of Gramvasi, Gram Khari, Gram Panchayat Dhamni & Another Vs. Collector, Baloda Bazar & Others and other bunch of writ petitions, leading case of which being WPC 1996 of 2014, vide its judgment dated 24.11.2014 has held that proviso to Section 125(1) of the Act, 1993 and rule 3 of Rules, 1994 are not mandatory, but are only directory. The Single Judge while deciding the aforesaid bunch of writ petitions relied upon 2005 (5)SCC 598 in case of Ashok Lanka & Another Vs. Rishi Dixit and Others, has discussed the issue as to when can a provision be held mandatory or directory. The Single Bench in paragraph 14 to 16 of its judgment, before holding the two provisions to be not mandatory, but only directory, has held as under:
"14. In Ashok Lanka and Another v. Rishi Dixit and Others, the Supreme Court held thus :
"53. The question as to whether a statute is mandatory or directory would depend upon the statutory scheme. It is now well known that use of the expression "shall"
or "may" by itself is not decisive. The court while construing a statute must consider all relevant factors including the purpose and object the statute seeks to achieve. (See P.T. Rajan v. T.P.M. Sahir and U.P. SEB v. Shiv Mohan Singh.)"
(Also see: State Bank of Patiala and Other v. S.K. Sharma).-16-
15. The provisions contained in Section 125 (1) of the Adhiniyam and Rule 3 of the Rules, 1994 requires publication of proposals so as to enable the people, residing in the area, who are likely to be effected, to submit suggestion/objections, if they are aggrieved by the proposals, so that the authority concerned may take proper decision before finalizing the matter.
16.The State Government having issued the communication to all the Collectors directing them to take into consideration the matters like population, convenience of the villagers etc., the residents of the concerned area are definitely concerned with the proposed changes, therefore, publication of proposal bringing into notice the proposed changes should be made aware to the villagers. Thus, publication of proposal as required under the proviso to Section 125 (1) of the Adhiniyam is mandatory. However, Rule 3 of the Rules, 1994 requires publication in the Gazette as also by affixture of such notification on the notice board of the Gram Panchayat and one or two conspicuous places in the area affected by the proposal. Thus, on the one hand Section 125 (1) speaks only about publication and does not mandate publication only in official gazette, Rule 3 of the Rules, 1994 permits three different modes of publication which shows that while prescribing the modes of publication the legislature was conscious of the fact that notifying the affected villagers by affixture in the notice board of the Gram Panchayat may also be effective than by publishing it in the official gazette only."
20. Though, this court keeping in view the judicial discipline, would have followed the view taken by the Hon'ble Single Judge of this court, however, with all humility at my command and with utmost respect to the Hon'ble Judge, this court would like to respectfully defer with the view taken by the Single Bench being more influenced by the Division Bench judgment of MP High Court rendered in an identical factual background and dealing with a pari-materia provision of law, as applicable in the State -17- of MP. This court is of the view that as has been held by the Division Bench of MP High Court so also by the Single Judge of this High Court, i.e. the question as to whether the statutory is mandatory or directory, would depend upon the statutory scheme and in order to ascertain whether it is mandatory or directory, the court must construe the relevant factors including the purpose and object of the statute.
21. Now if we take into consideration the principal Act of 1993, the proviso to Section 125(1) would clearly reveal that there is a clear caution or precaution or precondition which has been put in by the legislature before the authorities of the State Govt. passes an order under Section 125(1) of the Act, 1993. In addition to the aforesaid provisions in the principal Act, if we look into the Rules, 1994, rule 3 also demands the similar precondition or requirement to be complied with. This clearly reflects that the government wanted the said recourse to be adopted mandatorily each time a change was to be brought in to the limits of the Gram Panchayat and the villages.
22. In addition to the aforesaid statutory provisions, if we look in to the executive instructions issued we would find that there is a circular of the State Govt. dated 11.09.2019 laying down certain principles and guidelines which has to be borne in mind by the respective Collectors before issuance of the order under Section 125(1) of the Act, 1993.
23. For ready reference, the circular of the State Govt. issued in this regard dated 11.09.2019 and the guidelines or norms while preparing of the limits of a Gram Panchayat or the villages is concerned, has laid down following broad guidelines and norms to be kept in mind-
-18-
^^2- xzke iapk;rksa (xzke) ds ifjlheu dk izLrko rS;kj djrs le; fo'ks"k :i ls fuEu fcUnqvksa ij /;ku fn;k tkuk vko';d gksxk& 1- xzke iapk;r xBu gsrq o"kZ 2011 dh tula[;k dks vk/kkj ekuk tk;sxkA 2- izLrkfor xzke dh tula[;k de ls de 1000 (,d gtkj) gksA 3- iwoZorhZ xzke iapk;r eq[;ky; dks ;Fkkor j[kk tk;sA 4- tgka uohu xzke vf/klwfpr fd;k tkuk izLrkfor gks] rks ogka ,sls xzkeksa dh vkcknh ,oa ogka ij miyC/k v/kkslajpuk dk /;ku j[kk tk;sA 5- nks xzkeksa dks feykdj uohu xzzke iapk;r dk xBu djrs le; bl ckr dk /;ku j[kk tk;s fd nksuksa xzzke vkil esa yxs gksasA 6- eq[;ky; xzke ls vkfJr xzkeksa dh nwjh de ls de gksA fdlh xzke iapk;r ds vkfJr xzke esa tkus ds fy, vU; xzke iapk;r ds eq[;ky; ;k vkfJr xzke dks ikj djus tSls fLFkfr mRiUUk u gksaA 7- /;ku nsus ;ksX; ;g gS fd xzke iaPkk;r esa vkus okys xzke dk iVokjh gYdk uacj ,d gh gks] lkFk gh eq[;ky; ls U;wure nwjh ds fl)kaRk dks cuk;s j[kuk vko';d gksxkA 8- xzkeksa ds ifjlheu izLrko djrs le; unh] ukys] iBkj] igkM+ vkfn dk Hkh /;ku j[kk tk;s] rkfd eq[;ky; ls vkfJr xzke ds O;fDr;ksa dks xzke iapk;r eq[;ky; esa thoar laidZ cukus esa vlqfo/kk@dfBukbZ;kW mRiUUk u gksA nqxZe@lqnwjorhZ {ks= ds xzkeksa ds ifjlheu izLrko rS;kj djrs le;
tula[;k ij ;qfDRk;qDr :Ik ls fopkj fd;k tk;sA**
24. The State Govt. further went on in the said circular directing the authorities concerned to comply with the aforementioned directions in the circular dated 11.09.2019 properly. For ready reference, the operative portion of the circular dated 11.09.2019 reads as under:
^^d`i;k mi;qZDr funsZ'kksa dk leqfpr :i ls ikyu fd;k tk;sA^^
25. A bare reading of provisions of the principal Act, the rules laid down therein i.e. Rules, 1994 and also taken in to account the circular dated -19- 11.09.2019, what clearly reflects or is culled down is that the motive or the object behind laying down the said provision is to ensure that the convenience of the larger public should be given more weightage rather than extraneous consideration. It is for the purpose of considering the larger interest of the public that the proviso to principal Act as well as the Rules, 1994 respectively were enacted. The object behind incorporating the said provisions was to get the feedback of larger public while the limits or the boundaries of the Gram Panchayats were being determined or reconstituted. It is in this context that the requirement for calling upon the objections of the public at large is required which enables the Govt. to get the suggestions and objections from all corners concerned before deciding the limits of a Gram Panchayat necessiates.
26. Perusal of the facts of the each case would reveal that in most of the cases, the respondents have first published a preliminary notification calling for suggestions and since there were no grievance to any of the parties, the villagers did not oppose to the preliminary notification. However, while the final notification was being published, there has been large scale deviation made by the government and while making deviation there does not seem to be any rational available with the respondents while publishing the final notification. In most of the cases, the dependent village or villages is not adjoining the headquarter of the Gram Panchayat. In many cases, there has been no direct access from the dependent village to the headquarter of the Gram Panchayat.
27. Likewise, in many of the cases, contrary to the guidelines framed by the State Govt. vide notification dated 11.09.2019, the villagers from the dependent village have to cross one or more Gram Panchayat headquarters before reaching to the headquarter of their own Gram -20- Panchayat. In many of the cases, the distance between dependent village and the headquarter of Gram Panchayat is quite far and there are Gram Panchayats close by and with relatively less population with which the dependent village could have been adjusted with.
28. Another requirement under the executive instructions framed by the State Govt. was that the P.H. number of a Gram Panchayat should remain the same and that there should be a minimum distance from the dependent village to the Gram Panchayat headquarter, this also has not been taken into account.
29. If we look into the facts of all the writ petitions which are being disposed of by this common judgment, it would reveal that once when the respondents had proposed the preliminary notification showing limits of the Gram Panchayats and dependent villages, the respondents should have, as far as possible, not deviated from the original preliminary notification. However, in the event, if the State intended to deviate from the preliminary notification, suggestions and objections from the villagers, as is required under proviso to Section 125(1) of the Act, 1993 and rule 3(iii) of the Rules, 1994 ought to have been adhered to. In the absence of such compliance, the notification under challenge in each of the writ petitions would not be sustainable and the impugned notification in all these writ petitions being not sustainable stands set aside/quashed. The impugned notification is also not sustainable for non adherence of the circular dated 11.09.2019.
30. The right of the State Govt. for re-initiation of the process of publication of the proposal inviting objections and suggestions under proviso to Section 125(1) of the Act, 1993 stands reserved. All the writ petitions accordingly -21- stand allowed and the impugned notifications so far as the relevant village/Gram Panchayat is concerned stands quashed.
31. In the meanwhile, if the respondents-State intend to conduct local election, they would be at liberty to carry on with the election process on the basis of the limits of the Gram Panchayats, as it stood prior to the issuance of the impugned notification in each of the writ petitions.
Sd/-
(P. Sam Koshy) Judge inder