Gujarat High Court
Sanavakiya Gram Panchayat & 9 vs State Of Gujarat & 12 on 10 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/16475/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16475 of 2014
With
SPECIAL CIVIL APPLICATION NO. 18854 of 2014
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SANAVAKIYA GRAM PANCHAYAT & 9....Petitioner(s)
Versus
STATE OF GUJARAT & 12....Respondent(s)
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Appearance:
MR AMAR D MITHANI, ADVOCATE for the Petitioner(s) No.1-10
MR PRAKASH K JANI, ADDL. ADVOCATE GENERAL with MR MANAN
MEHTA, AGP for the Respondent(s) No. 1 - 5
MR K I KAZI, ADVOCATE for the Respondent(s) No. 6
MR. ANIL P JAGANI, ADVOCATE for the Respondent(s) No. 6
MR. D. P. KINARIWALA, ADVOCATE for the Respondent(s) No.7
MR. R.D.KINARIWALA, ADVOCATE for the Respondent(s) No. 7
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 10/04/2017
ORAL ORDER
1. Heard Mr.Amar Mithani, learned counsel for the petitioners, Mr.Prakash K. Jani, learned Additional Advocate General with Mr.Manan Mehta, learned AGP for the respondent - State and its authorities i.e. respondent Nos.1 to 5 and Mr.D.P.Kinariwala, Mr.K.I.Kazi, and Mr.Anil P. Jagani, learned counsel for the private respondents in both the matters.
2. As both the petitions relate to the same issue and identical prayers are prayed for, the same were heard together and are hereby disposed of by this common judgment.
3. The facts as narrated and contended in Special Page 1 of 66 HC-NIC Page 1 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Civil Application No.16475 of 2014 are taken as the basis of this common judgment.
4. It deserves to be noted that initially, notice was issued vide order dated 13.11.2014 and thereafter, vide order dated 11.12.2014 passed in Civil Application No.13852 of 2014, interim relief in terms of paragraph No.22(A) was granted by this Court (Coram : Hon'ble Smt. Justice Abhilasha Kumari), which has continued till date.
5. Before reverting to the facts, which emerge from the record of the said petition, it deserves to be noted that present petition is filed by the Gram Panchayats and its residents, which were originally situated in Una Taluka, Junagadh District. By Notification dated 13.08.2013, new District namely Gir-Somnath came to be carved out from Junagadh District and thereby, Junagadh District was divided into two Districts viz. Junagadh and Gir-Somnath. Gir-Somnath District constituted 5 Talukas i.e. Veraval, Kodinar, Sutrapada, Talala and Una, wherein 9 Talukas remained in Junagadh District. It is a matter of record that after creation of Gir-Somnath District, by Notification dated 09.09.2013, original Una Taluka was bifurcated into 2 Talukas namely Una and Gir-Gadhada, wherein 91 villages were included in Una Taluka and 42 villages were included in Gir- Gadhada Taluka. Such declaration which was made by Notification dated 09.09.2013 is duly published. It is a matter of record that by said Notification, Page 2 of 66 HC-NIC Page 2 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER village Bediya was included in Gir-Gadhada Taluka. However, as it was felt that the said village is nearer to Una Taluka, by subsequent Notification dated 18.02.2014, said village Bediya was again included in Una Taluka. Similarly, village Pankhan was also removed from Gir-Gadhada Taluka and included in Una Taluka by Notification dated 18.02.2014. The amalgamation and inclusion/delimitation activities of villages were over prior to 09.09.2013 and only in relation to 27 Nes (Forest Department area- hamlets) were under process to be included in Gir-Gadhada Taluka. It was contended by learned counsel for the petitioners that total population of such Nes is around 3839. The petitioners have further averred that Mamlatdar, Una, by report dated 29.05.2014, sent a proposal for the same and had opined that the same would be helpful to make equal population of Gir- Gadhada Taluka with surrounding Talukas. It is further case of the petitioners that Harmadiya Village Gram Panchayat passed a Resolution showing its preference and inclination to join Gir-Gadhada Taluka and the population of the same is approximately 4500, whereas the distance from Gir- Gadhada is about 7 Kms. The petitioners have also raised similar contentions in respect of Pichhava, Pichhavi and Chikhakuba villages. It is the case of the petitioners that 10 villages namely Harmadiya, Alidhar, Ghatvad, Abhelvad, Dolasa, Gundala, Ranvasi, Maghardi, Arithiya and Nagadala are geographically situated nearer to Gir-Gadhada Taluka and therefore, they should be included in Gir-Gadhada Taluka alone.
Page 3 of 66HC-NIC Page 3 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER The petitioners have further contended that respondent No.6, who happens to be the President of Gir-Gadhada Taluka Panchayat, resident of village Fatsar, which is forming part of Gir-Gadhada Taluka made an application dated 15.06.2014 and on sole basis thereof, the Collector carried out inquiry through the Deputy Collector, Una, so as to consider whether 13 villages of Una Taluka can be included in Gir-Gadhada Taluka or not. The Collector sent a report/opinion dated 22.08.2014 to the Settlement Commissioner and Director of Records, Gandhinagar. It was also contended that 9 village panchayats have not passed Resolution to be joined in Gir-Gadhada Taluka, in spite thereof, respondent No.6 in his communication dated 15.06.2014 has mentioned that the Gram Panchayats have sent their Resolutions, which is factually incorrect. It was also contended that the same is done by respondent No.6 only to achieve personal gains as a poll strategy and has moved the Government machinery.
6. It is further the case of the petitioners that in the report dated 22.08.2014, Collector, Gir- Somnath, has specifically included the remark that 13 villages are geographically situated nearer to Una and the Gram Panchayats opinion is that it may not be included in Gir-Gadhada Taluka. It is contended by the petitioners that respondent No.6 with a view to pressurize, also submitted a complaint in the Hon'ble Chief Minister's Online Complaint Redressal Programme and because of such pressure, the respondent Page 4 of 66 HC-NIC Page 4 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER authorities are acting contrary to its own report dated 22.08.2014.
7. That prior to 09.09.2013, the Government Authorities sent a communication so as to inquire about the preference/inclination of the concerned 9 Gram Panchayats and pursuant to the same, said Gram Panchayats have shown their disinclination to be merged in Gir-Gadhada Taluka and the Government Authorities after appreciating the opinion, decided to keep those 9 villages under Una Taluka and Notification dated 09.09.2013 was published regarding the same. It was further contended that on 10.10.2013, many villagers have signed and sent their proposal through Prant Officer, Una, showing the inclination to be under Una Taluka and objection towards the inclusion of village Kakadi Moli in Gir- Gadhada Taluka. Thereafter, Collector, Gir-Somnath vide his report dated 22.08.2014, stated that the opinion by way of approaching the Gram Panchayat/Gram Sabha is necessary and opined that village Bediya can be included in Gir-Gadhada. It was further contended that pursuant to the complaint made by respondent No.6 to the Online Programme of Hon'ble Chief Minister, on 14.10.2014, the Deputy Collector, Una, directed Mamlatdar, Una/Gir-Gadhada to meet the villagers personally and give opinion within two days. Therefore, the Mamlatdar visited the places on 17.10.2014 and sent two reports. It was also contended that it is not believable that two Mamlatdars visited 13 villages and met 1000 Page 5 of 66 HC-NIC Page 5 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER villagers, because most of the villagers were at their agricultural fields in day time. Thereafter, on 18.10.2014, Deputy Collector, Una, sent a report to the Collector, Gir-Somnath, wherein it was stated that the villagers are inclined to be continued under Una Taluka, but for administrative reasons, there is no objection, if it is included in Gir-Gadhada Taluka. As per the report of the Deputy Collector, on 15.10.2014, the Mamlatdar and other persons have visited several villages and met the villagers and on 18.10.2014, the Deputy Collector and other Mamlatdars visited 13 villagers and met the villagers for their opinion, which is not believable. It was further contended that on 17.10.2014, Kakadi Moli Gram Panchayat has shown its willingness to be with Una Taluka and thereby, all 9 Gram Panchayats passed Resolutions showing their preference, willingness and inclination to be in Una Taluka and inconvenience, disagreement from being included in Gir-Gadhada Taluka. It was also submitted that the villagers of Vankiya, Naliyari Moli, Kakadi Moli, Moti Moli, Chorali Moli, Lohari Moli, Nana Samadhiyala, Pankhan, Bandhana have to cross river Malan and villagers of Bandhana, Mota Samadhiyala and Kandhi have to cross river Raval and Shahi. River Shahi does not have an over bridge and has a causeway (Nala) between Nava Ugla and Dhokalva and the said way remains closed in rainy season as the river is full of water on the said road. Therefore, the villagers have to cross Machhundri river to reach to Gir-Gadhada and therefore, the villagers in such circumstances would Page 6 of 66 HC-NIC Page 6 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER face severe inconvenience to reach the Gir-Gadhada town. Moreover, said 9 villages are situated far from proposed Taluka Head Quarter - Gir-Gadhada and even the said town has no basic amenities like APMC, SBI Agricultural Development Branch, Government approved Fertilizer Depots etc. It was also contended that the respondent authorities want to ignore the realities and interest of the villagers and process of such delimitation activity is in full force and lastly on 05.11.2014, the meeting took place between the Hon'ble Chief Minister, Secretary - Revenue Department and other Government officers.
8. It deserves to be noted that on the aforesaid factual matrix, present petition was filed, wherein this Court (Coram: Hon'ble Smt. Justice Abhilasha Kumari) issued notice vide order dated 13.01.2014. As the Government issued Notification dated 27.11.2014, by draft amendment granted vide order dated 18.12.2014, the Notification dated 27.11.2014 came to be challenged qua 9 villages as referred hereinabove and also interim relief was prayed for. Thereafter as noted earlier, Civil Application came to be filed being Civil Application No.13852 of 2014, wherein this Court (Coram :Hon'ble Smt. Justice Abhilasha Kumari) stayed the implementation of the Notification dated 27.11.2014 qua villages namely Sanavakiya, Nana Samadhiyala, Pankhan, Mota Samadhiyala, Ambada, Kandhi, Bediya, Kakidi Moli and Nariyari Moli as prayed for in paragraph No.22A of the said civil application.
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9. The petitioners challenged the said Notification dated 27.11.2014 as provided under Section 7 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the Act for short), wherein mandatory consultation with the Gram Panchayat for alteration of its limits for inclusion and exclusion from the local area has been provided for. It was contended that new District namely Gir-Somnath is formed on 13.08.2013 and new Taluka namely Gir-Gadhada was constituted on 09.09.2013 and the new District Panchayat and new Taluka Panchayat is to be constituted, the same would take care of number of seats in the next election, which is likely to be held in October, 2015 and therefore, respondent No.6 has filed the application. It was also contended that the impugned action is ex facie, unjust, illogical, erroneous and undertaken on extraneous grounds, which deserves to be quashed and set aside.
10. It was contended that concerned 9 villages are geographically situated much nearer to Una than Gir- Gadhda and has a better road and business connectivity with Una in comparison of Gir-Gadhada, where there is no road like Una. In spite of such important facts, the respondent authorities are likely to ignore such realities and no genuine and effective consultation has so far taken place. Consultation of two days is merely an eyewash and no administrative circumstances exist to benefit the inclusion of these 9 villages in Gir-Gadhada Taluka.
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11. It was also alleged that when Notification dated 09.09.2013 was issued, 9 villages were included in Una Taluka, which was based on earlier consultation. However, in February, 2014, present villages were not included in Gir-Gadhada Taluka when Notification dated 18.02.2014 was issued with regard to villages Bediya, Pichhava and Pichhavi.
12. It was alleged that only because of the application of the respondent No.6 dated 15.06.2014, the Government Machinery has been put in motion and respondent No.6 is acting for himself or at the dictate of his political bosses, who in light of the forthcoming elections, as a poll strategy in order to have his maximum/followers included in his Taluka and hence, such exercise is being undertaken. It was alleged by the petitioners that even though the authorities have carefully taken a decision on 09.09.2013 and on 18.02.2014, considering the report dated 22.08.2014 filed by Collector, Gir-Somnath, there was no necessity at all to proceed further, still however, such action is undertaken only at the behest of respondent No.6 and his associates. It was also alleged that after 22.08.2014, neither Gram Panchayat nor Gram Sabha of the concerned villages are officially communicated to show their opinion/preference and no consultation has taken place and action taken under Section 7 of the Gujarat Land Revenue Code (hereinafter referred to as "the Code" for short) would seriously affect the interest of the villagers.
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13. It was further contended that 9 villages are situated at a much far distance from Gir-Gadhada in comparison to Una, which at present is the Taluka Head Quarter and the road connectivity to Gir-Gadhada is not easy and no State highway is available to approach Gir-Gadhada. It was alleged that only rural road with existing width of about 15 to 18 fts. is passing through four rivers namely Machhundri, Sahi, Malan and Raval, where at number of places, there are no over bridges, and the roads remained closed during rainy season even to carry the agricultural produces to Gir-Gadhada. It was further alleged that in order to have the facilities like obtaining caste certificates, income certificates, creamy layer certificates, certified copies of village form Nos.7/12, 8-A and 6-A etc., the villagers are required to visit Taluka Head Quarter. Even if the students want to obtain such certificates for pursuing their studies and also the agriculturists need such certificates to purchase the subsidized seeds, fertilizers, agricultural equipments and vehicles etc., they will have to approach the Taluka Head Quarter. There is also less frequency of S.T. Buses between concerned 9 villages to approach Gir- Gadhada and if one has to travel to Gir-Gadhada, he/she has to go to Una first and thereafter can reach Gir-Gadhada. Therefore, in absence of any proper road connectivity and long distance, the villagers are likely to be adversely affected. It was further contended that Una is a developed Town with the facilities like APMC, SBI Agricultural Page 10 of 66 HC-NIC Page 10 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Development Branch, Government approved Narmada Valley Fertilizer Depots etc., whereas such facilities are not available at Gir-Gadhada. It was therefore contended that when the action is to ensure civil consequences, consultation with Gram Sabha/Gram Panchayat is must.
14. It was also contended that present Taluka and its head quarter Una is well connected with pakka road as well as the State highway and other developed facilities, whereas all such basic important requirements of agriculturists are lacking at Gir- Gadhada. The proposed action is not in the interest of the villagers-residents of concerned 9 villages and its inclusion would be highly inconvenient and would cause serious and severe consequences. It was also reiterated that the impugned action is nothing, but undertaken as a poll strategy at the behest of respondent No.6 and his associates. Therefore, the action taken is illogical, erroneous and undertaken on extraneous grounds by not including nearby areas situated much nearer to Gir-Gadhada while the distant far places are sought to be included in Gir-Gadhada. It was also contended that the settlement areas of Nes have desired or opined that if included, would make the ratio of population of Kodinar, Una and Gir- Gadhada equivalent and thereby, said 9 villages can be saved from sufferings. The action is initiated at the pressure of respondent No.6 and there appears to be no specific Govsernment's proposal to merge the said 9 villages in Gir-Gadhada Taluka.
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15. It was contended that prior to 09.09.2013, officially the respondent authorities have consulted and sought opinion from Gram Panchayat, whereby Mota Samadhiyala Gram Panchayat passed a Resolution No.10 on 26.02.2015 and Pankhan village Gram Panchayat passed a Resolution No.5 on 11.03.2013 and forwarded the same to the authorities. As the said decision was taken of such consultation, fresh exercise of consultation with Gram Sabha/Gram Panchayat is necessary before taking any fresh decision.
16. It was contended that considering the geographical location, revenue, population, convenience of the students, agriculturists, villagers and other relevant criteria, it would be in the interest and in the fitness of things that present concerned 9 villages are continued in Una Taluka. The allegations made by respondent No.6 is not absolutely correct and merely to equalize the District Panchayat seats, which is a political agenda, the inconvenience of the villagers residing at a distant far place, cannot be sacrificed.
17. It was also contended that if the impugned action is permitted to be continued, the rural places will be adversely affected socially and economically. In the past, two villages near Malan River namely Malan Moli and Khadkada Moli have presently be abolished. No exchange of use and consideration of objections have taken place. No genuine and effective consultation has taken place and no consultation has Page 12 of 66 HC-NIC Page 12 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER taken place after 09.09.2013. It was also contended that opinion/consultation of Gram Panchayat/Gram Sabha is necessary in the facts of the present case. It was alleged that the respondents have closed their eyes to the implications and evil consequences of their proposed action and thereby, are likely to merge said 9 villages in Gir-Gadhada Taluka though Gir-Gadhada Taluka has no sufficient and reasonable road connectivity. Even S.T.Bus has no frequent visits, which, in fact, is the main mode of transportation of villagers of those 9 villages. It was therefore, submitted that such 9 villages should remain in Una Taluka in comparison to Gir-Gadhada Taluka.
18. It further deserves to be noted that the aforesaid grounds were raised when the petition was filed and on issuance of Notification dated 27.11.2014, by amendment dated 18.12.2014 further grounds were raised by the petitioners.
19. The petitioners have also relied upon the factual background and have contended that after having adjourned the matter, at the request of learned Assistant Government Pleader and after service of notice, the impugned Notification is issued. On basis of such fact, it is also contended that having knowledge of the same, writ petition is pending and after making an innocuous request of granting time, action is taken without seeking leave of this Court and such action is taken pending the Page 13 of 66 HC-NIC Page 13 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER petition and the same is clearly malafide, undertaken with oblique motive and issued with a view to see that the writ petition become infructuous and therefore, the impugned notification deserves to be quashed. It was also contended that as the said decision is taken, the villagers have submitted their opposition in form of representation dated 05.12.2014 to the Deputy Collector and other Government authorities. It was also contended that the respondent authorities are not interested to take care of interest and convenience of the villagers and the said conduct itself shows that the respondent authorities have no respect towards the Court proceedings. Learned counsel for the petitioners has relied upon the judgment of this Court in the case of Parabada Gram Panchayat Vs. Collector, Sabarkantha, [2003 (4) GLR 3741], wherein this Court has held that from altering the limits of Panchayat and to include or exclude certain areas from one Panchayat, the powers are available under the Gujarat Land Revenue Code as well as in the Gujarat Panchayats Act and the authority can exercise powers under either of statutes and therefore, it was contended that it was incumbent upon the administration to consult and to take opinion of the Gram Panchayat, which has not been done in the present case before issuance of Notification dated 27.11.2014. It was further contended that there is no change in the opinion of the District Collector with any logical and valid reasons and after specific opinion dated 22.08.2014, the Collector has opined to include the villages in Page 14 of 66 HC-NIC Page 14 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER question in Gir-Gadhada Taluka and has also opined that the consultation with Gram Panchayat is required. Therefore, the entire action of the respondent is not bonafide and is clearly arbitrary, undertaken to please respondent No.6 and his associates, ignoring the convenience of large number of villagers and thereby, the respondent authorities are acting under the dictates of a sole person, who for his personal motives has made an application, from which the entire proceedings are generated. It was also contended that the respondent authorities without taking leave of the Hon'ble Court and without prior intimation, issued the Notification. The respondent authorities have made an innocuous prayer for seeking time from the Hon'ble Court and after succeeding in getting adjournment have proceeded further and therefore, the action of the respondent authorities is clearly an abuse of process of law. It was reiterated that there is no proper road, infrastructure for the villagers to reach to Gid- Gadhada i.e. Taluka Head Quarter. If the villagers have to go to Gir-Gadhada, they have to first go to Una and then reach Gir-Gadhada and even for the agriculturists in order to carry their agriculture produce to Taluaka Head Quarter, it would be extremely difficult. Gir-Gadhada Taluka has no primary facility such as motorable roads, State Bank of India, Agricultural Development Branch, Agricultural Produce Market Committee (APMC), Narmada Fertilizer Depot- Government approved Fertilizer Depot, Government run/granted Colleges, well equipped Page 15 of 66 HC-NIC Page 15 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Government Hospital, Government Irrigation Department's office, GSRTC Bus Depot and even no Government aided Education Facilities in Gir-Gadhada Taluka beyond standard 12th is available. It is also contended that for the villagers, it would be difficult to reach Taluka Head Quarter and the same would be the situation for the police personnel and the Government staff to reach the concerned 9 villages in case of any emergency or untoward incident. It was contended that Una Taluka has various Government aided girls colleges, whereas Gir- Gadhada Taluka has no Government aided colleges and even no proper sports facilities are available at Gir-Gadhada. It was contended that after 13.08.2013 or 09.09.2013, the Gram Panchayat of the concerned villages are not at all consulted and without taking view of these Gram Panchayats, the impugned decision is taken to their detriment and therefore, the same deserves to be quashed and set aside and the petition deserves to be allowed as prayed for.
20. It deserves to be noted that the petitioners also filed an additional affidavit dated 24.03.2015 and has reiterated the factual matrix, which is observed hereinabove and has contended that District Development Officer, Gir-Somnath, in consideration of the Notification dated 22.12.2014, directed to hold the election of the President and Vice President of Gir-Gadhada Taluka Panchayat. On 22.02.2015, Deputy Collector, Gir-Somnath and other officers in company with respondent No.6 visited the village and Page 16 of 66 HC-NIC Page 16 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER pressurized the petitioner, who is Sarpanch of Kakedi Moli Gram Panchayat to withdraw the present petition. Even though the petition is pending and interim relief is granted, petitioner No.2 also gave a written complaint to the authorities like Secretary, Panchayat Department, Revenue Department, District Development Officer and Collector, Gir-Somnath. On this factual matrix, it is alleged that the respondent authorities have tried their best to overreach the Court process and at the instance of private respondent No.6, the authorities have tried to influence the party to the proceedings. It was further alleged that such facts clearly reveal that all the authorities are acting in bias manner and the conduct of respondent No.6 substantiates the allegation of mala fide contained in the memo of writ petition.
21. In response to the notice issued by this Court, the State Government has filed its reply dated 29.06.2015, wherein respondent No.1 has stated that originally Una Taluka consisted of 133 villages for proper and efficient management as well as administration. It is stated that Una Taluka was bifurcated by Notification dated 09.09.2013 into two Talukas namely Gir-Gadhada Taluka consisted of 42 villages and Una Taluka consisted of 91 villages and thereafter, on request of public representatives, 14 villages were transferred from Una Taluka to Gir- Gadhada Taluka and Una Taluka has now 77 villages, whereas Gir-Gadhada has 56 villages. It was further Page 17 of 66 HC-NIC Page 17 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER contended that under Section 7 of the Code, after careful reconsideration, the Government has taken the decision on 27.11.2014. Record further indicates that thereafter, respondent No.5 also filed further affidavit dated 18.07.2015, wherein it was contended by respondent No.5 that out of undivided Una Taluka, 91 villages were kept in Una Taluka and 42 villages were kept in Gir-Gadhada Taluka. It is further averred that bifurcation of Taluka was done in a manner when 91 villages remained with Una Taluka and only 42 villages were part of Gir-Gadhada Taluka. Thus, 2/3 of villages remained in Una taluka and 1/3 were part of newly constituted Taluka Gir-Gadhada. It is further contended by respondent No.5 that there was strong protest as regards keeping certain villages in Gir-Gadhada and also keeping large numbers of villages in Una Taluka and different groups of people were giving different representations, depending upon their priorities and convenience. It is also stated that even the State Government was visited with large number of representations from local residents and their representatives. It was further contended by respondent No.5 that on oral instructions the deponent was directed to prepare a full scale report about all villages and Talukas where there was demand for inclusion or exclusion from Taluka and accordingly, the deponent carried out the work of concerned villages and presented a report to the Cabinet. It was further contended that considering the factors like smallness of new revenue Taluka of Page 18 of 66 HC-NIC Page 18 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Gir-Gadhada, desirability of development of Gir- Gadhada Taluka and in order to see that the development of Gir-Gadhada Taluka as Taluka Panchayat of equal strength to that Una Taluka, recommendation was made that these villages be part of Gir-Gadhada Taluka instead of keeping these villages in Una Taluka. The deponent has further contended that representations were made to the Hon'ble Ministers in the Cabinet and such report was prepared by respondent No.5 keeping in mind the aforesaid principles. It was further submitted that presentation was made by the Settlement Commissioner of the State Government on 15.10.2014 before the Cabinet, which met for the said issues and based on discussions and opinions of the Cabinet and the concerned Ministers, decision was taken to issue the Notification. The deponent has also produced on record a chart showing various representations received. The deponent has also produced on record the map as well as other details including the area of villages and its population and its distance from main village of Taluka. It deserves to be noted that petitioner No.10 has filed further affidavit-in- rejoinder to the affidavit-in-reply filed by respondent No.5 in particular. Denying the contentions raised by respondent No.5 in the Affidavit-in-Reply, it was contended that it is factually incorrect to show that composite Taluka of Una divided into two Talukas namely Una and Gir- Gadhada vide Notification dated 27.11.2014. However, such division has taken place much earlier by Page 19 of 66 HC-NIC Page 19 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Notification dated 09.09.2013. It was contended that thereafter by Notification dated 18.02.2014 and on careful consideration, Bediya village was removed from Gir-Gadhada and included in Una Taluka and in spite of such exercise, without considering the record, Notification dated 27.11.2014 has been issued. It was further contended that even if it is believed that the Notification dated 27.11.2014 was issued in order to see that earlier 2/3rd villages remained in Una Taluka, whereas 1/3rd villages were in Gir-Gadhada. The concerned respondents were required to take into consideration the distance between the villages. It was further elaborated that the villages of Una Taluka namely Ratad, Maghardi, Damasa, Simasi, Gundala, Vadji, Men and Bhebha are situated nearer to Gir-Gadhada Taluka head quarter. These villages of Una Taluka are situated at a distance of 12 to 22 kms., and it is therefore, contended that reasonable approach has not been adopted by the concerned respondents and therefore, Notification dated 27.11.2014 deserves to be quashed. It was also contended that the deponent has chosen not to name the person who imparted such oral instructions for making a report and the deponent has been called to give better particulars of the contents of paragraph No.8 of the reply affidavit of respondent No.5. It was alleged that the factors like geographical position, distance of these villages from proposed new Taluka has been ignored and thus, recommendation of respondent No.5 to keep these villages in Gir-Gadhada Taluka is without considering Page 20 of 66 HC-NIC Page 20 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER the important material facts and the same is highly unreasonable, improbable, taken without application of mind and the same is thoroughly overlooking the convenience of the village people. Giving the details of distance which was given by respondent No.5 in his presentation before the Cabinet is also denied and it was contended that distance in relation to villages is wrongly shown. It was further alleged that as such by report dated 22.08.2014, District Collector, Gir- Somnath considering the geographical location has reported that these villages are situated much nearer to Una Taluka. It was therefore alleged that in order to overcome such report, distance between Gir-Gadhada Taluka Head Quarter to this concerned villages have been minimized with oblique motive and therefore, report /recommendation of respondent No.5 does not reveal the correct factual position. It was also contended that even the map annexed by respondent No.5 with his affidavit does not give true and correct picture and as such village Ranavasi, Ambavad and Ankolali are missing in the said map. It was also alleged that thus presentation of the office of the Settlement Commissioner does not reveal true and correct picture, which clearly appears to have weighed the decision of the Cabinet meeting dated 15.10.2014 and therefore, the Notification deserves to be quashed and set aside. It was further contended that the agriculturists, students, patients etc. would suffer severe inconvenience and hardships, if their villages are taken out from Una Taluka, so as to merge it in Gir-Gadhada Taluka. It was further Page 21 of 66 HC-NIC Page 21 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER contended that for approaching such modified Taluka headquarter, they have to travel considerable much longer distance, wherein no proper facilities of roads, absence of SBI Agriculture Branch and State Transport Depot, Agriculture Produce Market Committee (APMC), Government aided Girls College, Government aided college education, Government approved fertilizer Depot and even hostel for OBC managed by the Government ITI and such facilities are absence in Gir-Gadhada Taluka, which is available in Una Taluka. It was also reiterated that for required facilities at Taluka head quarter would be at much far distance and having no proper road facilities. Thus, the decision - Notification dated 27.11.2014, affecting the concerned villages involved in the present petition is highly improper, unreasonable, ignoring the convenience of the village people and therefore, the same is required to be quashed. It was also contended that when the respondents were acting on individuals representations, the concerned Gram Panchayat is required to be consulted, which has not been done in the present case and therefore, the decision causing severe civil consequences deserves to be quashed and set aside.
22. Record indicates that after rejoinder was filed, respondent No.1 filed further affidavit dated 06.08.2015, wherein it was contended that bifurcation was notified vide Notification dated 09.09.2013 and there was no representation for addition of the villages in Gir-Gadhada Taluka namely Ratad, Page 22 of 66 HC-NIC Page 22 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Maghardi, Damasa, Simasi, Gundala, Vajid, Men and Bhabha. Hence, it was contended that 2/3rd villages were in Una Taluka Taluka and 1/3 villages were in Gir-Gadhada Taluka, which required the issuance of Notification dated 27.11.2014 is true. That the representatives/office bearers of all 9 villages filed representations and upon considering such representations, the villages in question were included in Gir-Gadhada Taluka by the impugned Notification. It was also contended that the process undertaken on basis of such representations, wherein desirability and geographical convenience was expressed, it was therefore, contended that the respondents had probable and reasonable cause and after application of mind, such bifurcation was done. Respondent No.1 has also contended that the distance, which is mentioned in the affidavit and considered by respondent No.1, is aerial distance of the villages and the same is taken with the help of one Government Institute namely BISAG i.e."Bhaskercharya Institute for Space Application & Geoinformatics". It was also contended by respondent No.1 that presentations as well as representations were taken into account by the Cabinet on 15.10.2014. It was also contended that the Government has started process of providing maximum infrastructural facilities in under developed areas and Gir-Gadhada Taluka, which is formed as new Taluka, shall be one of the most distinguished Taluka of the State. Respondent No.1 has also relied upon the documents, which are mentioned in the said additional affidavit.
Page 23 of 66HC-NIC Page 23 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER
23. Similarly, respondent No.5 has also filed further affidavit dated 12.08.2015 and has produced on record the fact that, in earlier affidavit dated 06.08.2015, wrong annexure was annexed and in fact, the said annexure was a representation, which is referred to earlier.
24. Record further indicates that thereafter again, the petitioners have filed a rejoinder to the additional affidavit-in-reply filed by respondent Nos.1 to 5, wherein it was alleged that a special and different treatment is given by the State Authorities in the present case. It was also alleged that the report of the highest authority of the District, which did not recommend the concerned villages to be included in Gir-Gadhada Taluka on the ground of their geographical location and being situated much near to Una is sidelined on oral instructions. It was further alleged that, instead of relying upon the opinion of the Public Works Department, which was obtained in other cases, in the present case, in place of road distance, the respondent Authority has considered aerial distance and used the satellite images of BISAG. It was reiterated that in fact, in order to ascertain the convenience and inconvenience of the villagers, road distance is material place than aerial distance. It was further alleged that respondent No.6 - Deputy Collector is pressuring the petitioners to withdraw the present writ petition and such averments, which are made in the affidavit and Page 24 of 66 HC-NIC Page 24 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER additional affidavit filed by the petitioners have remained unanswered. It was further alleged that, by way of an affidavit dated 12.08.2015, it was brought on record, in order to reflect that the petitioners are willing and agreeable to join Gir-Gadhada Taluka and thereby, the respondents want to give a picture that pursuant to the petitioners' representations, the Government has issued the impugned Notification and such documents are brought on record nearly after a period of one year of the petition. It was further alleged that so called documents purported to be written on letter heads of the petitioners' Gram Panchayats are nearly of the same dates of December, 2012 and October 2013 are not referred to in the opinion of Collector, Gir-Somnath dated 22.08.2014. It was further contended that, it clearly transpires that the respondents have produced such documents with their affidavit dated 12.08.2015, which are not referred in any report submitted by Mamlatdar, Una and Gir-Gadhada, Deputy Collector, Una and Collector, Gir-Somnath. It was also alleged that on obtaining papers under the Right to Information Act, 234 pages are given in which the representations were not included. It was further alleged that opinion of the Collector was not recommending the merger of the concerned villages of Una Taluka to be taken in Gir- Gadhada Taluka. That the petitioners are not privy to the record of the State Government of the present case and the petitioners have never given anything in writing, inter alia, showing that the petitioners to be included in Gir-Gadhada Taluka. It was further Page 25 of 66 HC-NIC Page 25 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER contended that without logical or reliable ground, the respondents are not producing the documents in earlier three affidavits. It was also contended that question of including and/or excluding the villages from one Taluka to another Taluka of Gir-Somnath District was considered by the Government and vide Notification dated 18.02.2014 of Bediya, Pichhavi and Pichhava villages were issued. Thus, after receipt of the said documents, the Government had already taken a decision in February, 2014. It was further submitted that some documents are of a date when there was neither Gir-Somnath District nor Gir- Gadhada Taluka in existence. It was further alleged that in the affidavit dated 06.08.2015, it is clear that the respondents have not considered vital factors like geographical locations, road distance, convenience and inconvenience of the village people and merely on the ground that the representations were filed, the same are considered. Thus, by ignoring overall picture of the area, location of the places and other vital factors, the case has been considered and such an approach of the Government is not just, legal and proper. It was further contended that even the respondent authorities admit that the basic requisite facilities for villagers are not available in Gir-Gadhada Taluka and mere promise to make Gir-Gadhada Taluka as one of the most distinguished Taluka of the State, is mere an eyewash.
25. The petitioner has also filed further affidavit Page 26 of 66 HC-NIC Page 26 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER dated 10.12.2015 and has contended that the action is taken by the State Government without consulting the Gram Panchayats and Gram Sabhas and ignoring the convenience of the people and their geographical locations, which entail serious civil consequences. It was further stated that when interim relief was granted, statement was made on 18.12.2014 that the State Government is reconsidering the case of the petitioners of Special Civil Application No.16475 of 2014 and thereafter, the Court was pleased to stay the impugned Notification dated 27.11.2014. It was alleged by the petitioners that the respondents have tried to commit breach of injunction and have also tried to pressurize the petitioners to withdraw the petition. In addition to such unnatural conduct of the Government officers, on oral instructions, the impugned decision was arrived at and especially by ignoring the actual road distance. It was further stated that as special case, the respondents relied upon the satellite images for taking the impugned decision and all such development took place behind the back of the petitioners and that too ignoring the District Collector's opinion dated 22.08.2014, whereby it was opined by the Collector not to include the concerned villages in Gir-Gadhada Taluka on the ground of their geographical location. It was further averred in the affidavit that District Collector, Gir-Somnath being District Election Officer has made a proposal to the State Election Commission on 12.10.2015 and the Election Officers are appointed by the State Election Commission. The petitioners have Page 27 of 66 HC-NIC Page 27 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER also stated that the concerned villages of the petitioners are shown to be included in Una Taluka Panchayat's voters list and election results are also declared on 02.12.2015. It was brought on record that the election programme came to be published and the same would amount to interfering with on-going election programme and it is mainly brought on record that all the concerned villages have been considered to be in Una Taluka.
26. Record further indicates that respondent No.1 filed a further affidavit dated 13.12.2016, wherein reliance is placed upon the provisions of Section 7 of the Code as well as the judgment of this Court in the case of Likhi Group Gram Panchayat & Ors. Vs. State of Gujarat & Ors. [2000 (1) GLR 827] and Chhani Nagar Panchayat & Anr. Vs. State of Gujarat & Ors. [2000 (2) GLR 1263]. It was contended by respondent No.1 that Section 4 of the Code read with Section 7 thereof, authorizes the State Government to reorganize the Districts and Talukas. It was contended that the boundaries of the Taluka have been specified by the State Government and can be changed by the State Government. Relying upon Articles 243C and 243G of the Constitution which deal with powers, authority and responsibilities of Panchayats, it was contended that before Part IX was introduced in the Constitution, the Gujarat Panchayats Act, 1961 was in force in the State of Gujarat and after 73rd Amendment in the Act, the State legislature enacted the present Act namely the Gujarat Panchayats Act, Page 28 of 66 HC-NIC Page 28 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER 1993 with an object to bring the law relating to Panchayats in the State in conformity with Part IX of the Constitution. It was further contended by respondent No.1 that constitution of Taluka Panchayat and village Panchayat is a continuous process, whereby as per the changed circumstances and requirement/demand of administrative exigencies, the State Government is empowered to take decision in public interest at large. The respondent has relied upon the judgment of the Apex Court rendered in the case of State of U.P. Vs. Pradhan Sangh Kshetra Samiti [AIR 1995 (SC) 1512]. It was therefore contended that the State Government is empowered to take decision upon reconstitution or delimitation of the panchayats and Talukas or other local self Government and can also consider inclusion or exclusion of any local area balancing on one hand the administrative exigencies and at the same time, taking care of public interest at large. It was further contended by respondent No.1 that, consultation cannot be construed as consent or concurrence and there is no legal obligation. It was contended that the Notification dated 27.11.2014 is issued by the State Government in exercise of powers conferred under Section 7 of the Code. While the State Government has reconstituted Gir-Gadhada Taluka of Gir-Somnath District and excluded the villages Sanvakiya, Motimali, Naliyeri Moli, Charoli Moli, Luharimoli, Kekedimoli, Nana Samadhiyalal, Mota Samadhiyala, Kandhi, Pankhan, Bandhara, Ambada, Bedia and Padapadar. It was further contended that the Page 29 of 66 HC-NIC Page 29 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER impugned Notification was published, public hearing of affected persons was fixed before the Deputy Collector and various objections/suggestions were taken and the same were also placed before the State Government. It was further contended that the Deputy Collector had submitted a report to the Revenue Department as well as the Settlement Commissioner. It was specifically averred that necessary deliberation inasmuch as careful discussion was made before the Cabinet Ministers and thereby reconstituting Gir- Gadhada Taluka of Gir-Somnath District. That respondent No.1 specifically has denied that the petitioners are facing any inconvenience due to geographical situation. It was also stated that the distance as alleged in the memo of petition is incorrect and practically facilities are available for computing. It was contended by respondent No.1 that on receipt of representations, a report was called for from the Revenue Department and Settlement Commissioner and again deliberation was done on the issue and considering the comparative figures, the impugned Notification dated 27.11.2014 came to be issued after taking into consideration various factors like administrative exigencies and public interest. It was also contended that the State Government has taken into consideration wider picture of all the villages and considering the surrounding circumstances and in order to have balance between the administrative interest on one hand and public interest on other hand, impugned Notification has been issued. It is specifically denied that the Page 30 of 66 HC-NIC Page 30 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER impugned Notification is passed on political vendetta. Respondent No.1 has also contended that the State Government is solely guided by the factors in the nature of administrative exigencies and with increase in population and with an object of smooth functioning of the administrative and geographical situation, impugned Notification has been issued in the interest of public at large. It is averred by respondent No.1 that, earlier on 23.01.2013, Cabinet meeting was held and in the said meeting, decision was taken to constitute 7 new Districts considering the development and progress of the State Government, more particularly all villages. Constitution of Gir- Somnath District was one of the issue before the Cabinet. Respondent No.1 has further stated that accordingly a Committee was constituted under the Chairmanship of Chief Secretary and in the said meeting, suggestions and proposals from the office of respective Collectors were called for. It was further submitted that suggestions and proposals received from the office of the Collectors were placed before the Cabinet Sub-Committee and after receipt of the same on 17.06.2013, some changes were suggested considering the suggestions received from the citizens. It was further submitted that on 24.06.2013, a meeting was held with the representatives of Districts and their suggestions were invited. It is further contended that a report was called for by communication dated 08.08.2013 from the Settlement Commissioner and accordingly, the suggestions and objections received by the office of Page 31 of 66 HC-NIC Page 31 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER the Settlement Commissioner, Gandhinagar, regarding reconstitution of the Districts and Talukas came to be considered. It was further averred that on basis of report of the Settlement Commissioner, the Cabinet vide its decision dated 04.09.2013 granted approval for consideration of 7 Districts as well as 21 Talukas and on basis of such decision, Notification dated 09.09.2013 was issued, wherein Taluka Gir- Gadhada was constituted. It was further averred by respondent No.1 that various representations were received by the Cabinet Sub-Committee regarding reconstitution of the Districts and Talukas and hence, detailed presentation was presented before the Cabinet Sub-Committee on 25.10.2013. That on 06.02.2014, Cabinet meeting was held, wherein suggestions provided by Cabinet Sub-Committee dated 22.01.2014 were considered and decision was taken. It was submitted that thereafter again on 15.10.2014, presentation was presented by office of the Settlement Commissioner and considering the same, the State Government has issued the impugned Notification dated 27.11.2014, whereby the villages in question were included in Gir-Gadhada Taluka. Respondent No.1 has further contended that even after decision was taken by the State Government, it was reconsidered and it was decided not to change the decision of inclusion of various villages into Gir-Gadhada Taluka and the file was moved upto the Hon'ble Chief Minister in proper channel and hierarchy. It was, therefore, submitted that the State Government after thoughtful consideration and as the Cabinet Sub Page 32 of 66 HC-NIC Page 32 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Committee was entrusted the responsibility of examining the proposals regarding verification of Districts, Talukas and villages and in the case on hand, the Cabinet Sub-Committee has examined the same and the impugned Notification came to be issued.
27. It deserves to be noted that in Special Civil Application No.18854 of 2014 also, Notification dated 27.11.2014 in relation to villages Charoli Moli and Padapadar is challenged on almost similar and identical grounds and therefore, they are not referred in this judgment independently. Learned counsel for the parties have raised common contentions in both the petitions.
28. Learned counsel for the petitioners has taken this Court through the factual matrix as noted hereinabove and has relied upon the affidavits and the documents, which are forming part of the record of this petition. He was contended that no independent survey has been conducted and convenience of the villagers is not at all considered and the report of District Collector, Gir-Somnath dated 22.08.2014 has been totally ignored. It was also contended that as a special case in the case on hand, satellite images have been relied to justify the distance, whereas in all other cases, road distance has been ascertained from the department of PWD. It was also contended that the report of the Collector dated 22.08.2014 is based on inquiry and the geographical location of the concerned villages. It Page 33 of 66 HC-NIC Page 33 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER was also contended that by comparing the facilities at Gir-Gadhada and Una Taluka, there is no facilities like SBI Agriculture Branch and State Transport Depot, Agriculture Produce Market Committee (APMC), Government granted Girl College, Government granted college education, Government approved fertilizer Depot and even hostel for OBC manage by the Government ITI.
29. Learned counsel for the petitioners has submitted that thus the decision taken by the State Government is erroneous and therefore, the petitions deserve consideration and the impugned Notification dated 27.11.2014 deserves to be quashed and set aside by allowing these petitions.
30. As against this, Mr.P.K.Jani, learned Additional Advocate General relied upon the original record of the State Government and has contended that the State Government has undertaken such exercise under Section 7 of the Code and in accordance with law.
31. Learned Additional Advocate General appearing on behalf of the respondent-State and its authorities submitted that the Cabinet meeting was held on 23.01.2013, wherein decision was taken to constitute new 7 Districts considering the development and progress of the State, more particularly all villages. It was pointed out that in the said meeting, one issue before the Cabinet was to constitute Gir-Somnath District. In the said meeting, a decision was taken to constitute a Committee under Page 34 of 66 HC-NIC Page 34 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER the Chairmanship of Chief Secretary and suggestions and proposals from the office of the respective Collectors were called for. On basis of the original record, it was pointed out that the suggestions/proposals were received from the office of the Collectors to the Cabinet Sub-Committee and upon considering the same, some changes were suggested based upon the suggestions received from the citizens. Said exercise was undertaken in the meeting of Sub-Committee held on 17.06.2013. It was further pointed out that again on 24.06.2013, a meeting was held with the representatives of the Districts and therefore, the suggestions were notified, which was held on 24.06.2013. It was further pointed out that based upon the same, a report was called for from the office of the Settlement Commissioner, Gandhinagar on 08.08.2013. Along with the suggestions or objections received by the said office regarding reconstitution of Districts and Talukas and after considering the said report of Settlement Commissioner, Gandhinagar, Cabinet meeting took a decision on 04.09.2013 granting approval for consideration of 7 Districts and 21 Talukas. It was further pointed out that, based upon such decision, Notification dated 09.09.2013 came to be issued, whereby Una Taluka came to be reconstituted and Gir- Gadhada Taluka came to be declared.
32. Learned Additional Advocate General further pointed out that, various representations were received by the Cabinet Sub-Committee regarding Page 35 of 66 HC-NIC Page 35 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER reconstitution of Districts and Talukas and therefore, on 25.10.2013, 27.11.2013, 04.12.2013 and 01.01.2014, detailed presentations were made before the Cabinet Sub-Committee. It was further pointed out that based upon the same, Cabinet Sub-Committee considered the same in its meeting held on 22.01.2014 and the said decision was placed before the Cabinet on 06.02.2014. It was also pointed out that on 15.10.2014, the Settlement Commissioner made a presentation before the Cabinet based upon the record and it was decided to issue Notification dated 27.11.2014 and being aggrieved by the same, present petition is filed.
33. It was also pointed out that all the materials were placed before the Sub-Committee and even the Settlement Commissioner in his presentation made all submissions and based upon the same, the State Government took a decision after reconsideration and it was decided not to change the decision of inclusion of villages in question into Gir-Gadhada Taluka. It was further pointed out that thereafter, a file was moved upto the highest authority in the State as per the channel and hierarchy, based upon which the decision was taken and the Notification came to be issued on 27.11.2014. It was, therefore, submitted that conscious decision is taken for all new Districts and Talukas. Relying upon the affidavits filed on behalf of the State, it was contended that conscious decision was taken at the highest level. It was also contended that the details Page 36 of 66 HC-NIC Page 36 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER were examined by the Sub-Committee as well as the Settlement Commissioner and after considering the presentation made by the Settlement Commissioner, Cabinet took a decision, which was addressed by the highest authority of the State and therefore, the Notification is issued in exercise of powers under Section 7 of the Code. Mr.P.K.Jani, ld. AAG, therefore, submitted that the allegation made by the petitioner that the decision is taken based upon the interference by the private respondents is de hors the record. Relying upon the original record, learned Additional Advocate General, submitted that the State Government has rightly exercised its powers conferred under Section 7 of the Code and therefore, no interference of this Court is called for. It was, therefore, submitted that the allegations levelled against the respondent authorities are de hors the record and the petitions being misconceived, deserve to be dismissed.
No other and further submissions are raised by learned counsel for the parties.
34. In order to verify the contentions raised by learned Additional Advocate General, this Court thought it fit to call for the records and proceedings. On perusal of such original records, following noteworthy facts emerge from the record:
(i) It appears that in the meeting held on 23.01.2013, decision was taken in particular about creation of new Districts being Page 37 of 66 HC-NIC Page 37 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Aravalli, Gir-Somnath, Botad, Chhota Udepur, Mahisagar, Morbi and Dwarka and for bifurcation of Districts and Talukas, a Committee was constituted under the Chairmanship of Chief Secretary and decision was taken to obtain suggestions and opinions from the respective Collectors. Thereafter, the reports were placed before the Cabinet Sub-Committee as regards the suggestions/proposals of the Collectors in its meeting held on 17.06.2013, wherein it was decided by the Cabinet Sub-Committee to check certain changes made in light of the submissions made by public at large. It also borne out from the records that before placing the same before the Cabinet, meeting with the Districts' representatives was held on 24.06.2013. It also appears from the record that on 08.08.2013, report was called for from the office of the Settlement Commissioner, Gandhinagar upon the suggestions /objections received by the office regarding reconstitution of District and Talukas. It further appears that thereafter, same was placed before the Cabinet meeting, which was held on 17.07.2013 and the decision was taken to keep the said decision pending.
(ii) The report of the Settlement Commissioner, Gandhinagar, was placed before the Cabinet Page 38 of 66 HC-NIC Page 38 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER on 04.09.2013, and the Cabinet granted approval for creation of 7 new Districts and 21 Talukas.
(iii)Accordingly, Notification dated 09.09.2013 was published, wherein Una and Gir-Gadhada Taluka came to be created.
(iv) Record also shows that after said decision was taken by the State Government, various representations were made from the Districts and Talukas, which were firstly placed before the Cabinet Sub-Committee on 25.10.2013, 27.11.2013, 04.12.2013, 01.01.2014, 06.02.2014, 15.10.2014 and 22.01.2014.
(v) The said report as well as proposals were placed before the Cabinet on 01.01.2014 thereafter again before the Cub Committee on 22.01.2014. The suggestions and proposals were again placed before the Cabinet on 06.02.2014.
(vi) Record further shows that the Settlement Commissioner submitted presentation before the cabinet on 15.10.2014 and after taking note of the same, the impugned notification came to be issued on 27.11.2014.
(vii)Record also shows that the fact of the petitions having been filed was taken note Page 39 of 66 HC-NIC Page 39 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER of and again the issue involved in this petition was placed before the Cabinet along with other items on 11.02.2015 and ultimately on 09.04.2015, Cabinet took decision to maintain earlier decision and on basis of which, the notification dated 27.11.2014 was issued.
(viii) Record also shows that the presentation was made before the Cabinet on 25.10.2013, 27.11.2013 and 04.12.2013 and after Cabinet meeting held on 01.01.2014, proposal was placed before the Cabinet Sub-Committee on 04.02.2014 and after considering the same, it was decided by the Cabinet Sub-Committee to place the suggestions and the proposals again before the Cabinet on 06.02.2014. Record further shows that the Settlement Commissioner made a presentation before the Cabinet on 15.10.2014 and as far as Gir- Gadhada Taluka is concerned, villages namely Chhanavakiya, Motimoli, Naliyerimoli, Choralimoli, Luharimoli, Kakidimoli, Samadhiyal, Mota Samadhiyal, Kandhi, Pankhna, Bandharda, Ambada and Padapadhara and Bediya were placed in Gir-Gadhada Taluka and also the fact of petitions has been taken note off. It also shows that on 18.12.2014, statement was made to reconsider the decision as regards Una Taluka and accordingly, the same was passed along with Page 40 of 66 HC-NIC Page 40 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER other items before the Cabinet, which met on 11.02.2015, wherein it was decided not to postpone the decision and ultimately, on 09.04.2015, decision was taken to maintain the earlier decision taken vide Notification dated 27.11.2014.
35. On examination of the records of these cases and taking into consideration the submissions raised by learned counsel for the parties, it is quite clear that the Settlement Commissioner and the State Government have exercised powers under Section 7 of the Code. It is also a matter of record that new District namely Gir-Somnath came to be created and carved out from existing Junagadh District vide Notification dated 13.08.2013 and Gir-Somnath District constituted of five different Talukas namely Veraval, Kodinar, Sutrapada, Talala and Una. This pertains to further bifurcation of earlier Una Taluka of Junagadh District, now Gir-Somnath District into two different Talukas namely Una and Gir-Gadhada.
36. As observed hereinabove, the Settlement Commissioner and the State Government have followed the procedure and impugned decision is taken after proper deliberation at the level of Settlement Commissioner, Cabinet Sub-Committee and thereafter, by the Cabinet as a whole, which is also evident from the original records, which was produced for perusal of this Court by learned Additional Advocate General and therefore, it cannot be said that the impugned Page 41 of 66 HC-NIC Page 41 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER decision is in anyway illegal and improper as far as the procedure followed is concerned. As can be seen from the record of the petition as well as from the original records that at the level of District Collector, Gir-Somnath, as well as the Settlement Commissioner, deliberation has been undertaken and presentation was also made before Sub-Committee by the Settlement Commissioner and ultimately, after considering all representations for and against conscious decision is taken by the State Government in the Cabinet itself.
37. The record indicates that even after issuance of the impugned Notification dated 27.11.2014, matter was again placed before the Cabinet and the Cabinet has taken a decision not to change the earlier Notification. On the contrary, this shows that even the pendecy of this petition is considered by the State Government.
38. The State Government has held as above that, the State Government has followed the procedure and has taken conscious decision vide Notification dated 27.11.2014. It is no doubt true that when a new Taluka is created, there may exist some lack of infrastructure facilities. However, creation of smaller Taluka for public convenience that too after following the procedure would not render such decision arbitrary, irrational, perverse, mala fide. The State government having taken a conscious decision is conscious about the development to be Page 42 of 66 HC-NIC Page 42 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER carried out in such a newly created Taluka. The difficulties which are projected by the petitioners may only be a teething trouble and on development and creation of new infrastructure, the public at large would be benefited. Hence, the contention that the issuance of impugned Notification dated 27.11.2014 is a poll strategy at the instance of private respondents is not only without any basis, but the same deserves to be negatived.
39. In light of the aforesaid, this Court finds that there is no error in the procedure followed and the same is in consonance with the provisions of Section 7 of the Code. Una Taluka originally consists of 135 villages and by Notification dated 09.09.2013, Una Taluka was bifurcated into two Talukas viz. Gir- Gadhada and Una, whereby 42 villages were included in the area of Gir-Gadhada, whereas 91 villages were in Una Taluka. Thereafter, on consideration of representations both for and against, 77 villages are now in Una Taluka and 56 villages in Gir-Gadhada Taluka. Record further indicates that on large scale representations, full-scale report of all villages and Talukas was called for and considering the factors like extend of area and smallness of new local Taluka of Gir-Gadhada, desirability of development of Gir-Gadhada Taluka and in order to have to equilibrium even in development as Taluka, report was submitted before the Cabinet Sub - Committee and before the Cabinet and thereafter, impugned decision is taken. Along with the affidavit, Page 43 of 66 HC-NIC Page 43 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER the State Government has also brought on record all details regarding consideration of such facts before taking impugned decision and also considering the representations made by 9 Gram Panchayats namely Ratad, Maghardi, Damasa, Simasi, Gundala, Vajdi, Men and Bhebha were considered before taking impugned decision. It is no doubt true that the facilities like road, colleges, Banks, fertilizer Depot etc., may be readily available at Una and may have to be created or upgraded at Gir-Gadhada is a phenomena, wherein new area is to be developed at the level of Taluka. It cannot be said that reliance placed for on satellite images is erroneous or is taken as a special case in the case on hand. Further, it appears that by recognized method, even the issue for consideration of geographical location is taken into consideration while taking impugned decision. Record also indicates that the impugned Notification was published and even public hearing of all persons was given and thereafter, a report was placed before the competent authority. The manner in which the whole procedure has been adopted by the State Government and its authorities before issuance of impugned Notification, the contention taken by the petitioners that it is issued with political vendetta, is without any basis and the same deserves to be negatived and therefore, it cannot be said that the impugned decision is taken without any material on record and merely on recommendation of private respondents. Section 7 of the Code gives power to the State Government to make addition as provided thereunder Page 44 of 66 HC-NIC Page 44 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER and it cannot be said that such decision is taken for any personal gains. Representatives of people from all corners have right to make recommendations and the decision is taken by the entire Cabinet and therefore, it cannot be labelled as bad, illegal and contrary to the provisions of the Code. Even the allegations of mala fide are without any basis or any cogent materials. It also deserves to be noted that the boundaries of any of the villages are not altered. However, the only exercise which is undertaken by the State Government is bifurcation of existing Taluka into two Talukas, whereby no new village is created. It is a matter of record and even as can be seen from the impugned Notification that the State Government in exercise of powers under Section 7 of the Code has undertaken such exercise without there being any change in the local boundaries of any villages and have been included in particular Taluka. Record also indicates that no village is merged with any local area of any village. Even the word 'Taluka' as defined under the Act means Taluka constituted from time to time under the Land Revenue Code except the area or which the Taluka Panchayat has no authority under Section 6 of the Act and the word 'village' would mean a village specified by the Governor by public Notification to be a village for the purposes of this part and includes a group of villages so specified as specified in Part IX of the Constitution and the same would also include group of villages so specified as provided under Article 243G of the constitution of India.
Page 45 of 66HC-NIC Page 45 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Therefore, the exercise which is undertaken by the State Government is not for constitution of any new village and no boundaries of any village is altered and therefore, Sections 7(1) and 7(2) of the Panchayat Act shall have no application in the present case. Similarly as there is no alteration in the limits of any village in the case on hand, Sections 254 and 255 of the Act will have no application.
40. It is no doubt true that even in the instant case, this Court has power of judicial review under Article 226 of the Constitution of India. However, in light of the aforesaid observations, even exercising such limited power of judicial review, this Court finds that the decision taken by the State Government is neither arbitrary nor mala fide and the State Government has taken a conscious decision at its highest level and by the entire Cabinet in the instant case as narrated hereinabove and therefore, no interference of this Court is called for even in its limited jurisdiction of judicial review under Article 226 of the Constitution of India. Even taking into consideration the ratio laid down by the Apex Court in the case of I.R.Coelho (Dead) By LRS. Vs. State of T.N. [(2007) 2 SCC 1], this Court has wide powers. However, in facts of these cases, it cannot be said that the decision taken by the State Government is such that it warrants interference by this Court by way of judicial review. In view of the aforesaid observations the material on record, it Page 46 of 66 HC-NIC Page 46 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER cannot be said that the decision taken by the State Government for including the villages in question in different Takuka as observed hereinabove cannot be said to be illegal, arbitrary and without application of mind and therefore, the petitions are meritless and deserve to be dismissed.
41. It was contended by learned counsel for the petitioners that by impugned Notifications and change of Taluka, the same would result into civil consequences. In the instant case, whole village shifted to another Taluka and shall be governed by the said Taluka. The State Government by Notifications has not bifurcated or divided existing villages and has not even merged with any other local area and therefore, the judgment relied upon by learned counsel for the petitioners would not be applicable in the present cases.
42. In light of the aforesaid facts, the contention that the impugned Notification and the change of Taluka would result into civil consequences, deserves to be negatived as in the case on hand, whole villages being shifted to another Taluka shall be governed by said Taluka and from the facts, it appears that the powers have been exercised under Section 7 of the Code after following due procedure as envisaged under the Code for public good and general public interest.
43. It deserves to be noted that the Division Bench of this Court in the case of Gujarat Panchayat Page 47 of 66 HC-NIC Page 47 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Parishad Vs. State of Gujarat has observed thus:-
"1. Issues raised in these petitions are same. Learned counsel appearing on either side prayed for final disposal of these petitions by a common judgment. Accordingly, we heard them in detail. We are disposing of these petitions by this common judgment.
6. The stand taken by the State Government in these petitions is that Government have power to reorganise Districts and Talukas as per the provisions contained in the Bombay Land Revenue Code, 1879. Government have no intention to dissolve any District Panchayat or Taluka Panchayat and to appoint Administrator. Geographical boundaries of certain Districts and Talukas were changed. Six new Districts were carved out and 46 new Talukas have been constituted. The reorganisation of Districts and Talukas affected the geographical boundaries of 12 existing Districts. Consequently, the geographical boundaries of 18 existing Districts underwent change. Likewise, by reconstitution of 46 new Talukas, boundaries of nearly 80 Talukas were affected. So far, no order has been issued regarding the division or reconstitution of new District Panchayats and Taluka Panchayats. Orders in terms of provisions contained in Section 264 of the Gujarat Panchayats Act, 1993 have to be issued, constituting or reconstituting District Panchayats and Taluka Panchayats.
Reorganisation of Districts and Talukas and consequent change in the boundaries of District Panchayats and Taluka Panchayats do not constitute delimitation of constituencies in the Panchayat and so, Section 16 of the Gujarat Panchayats Act has no relevance to the issue before the Court.
9. Article 243(a) of the Constitution defines `district' as meaning a District in a State. Clause (d) of that Article defines `Panchayat' as "an institution of self-government constituted under Article 243-B, for the rural Page 48 of 66 HC-NIC Page 48 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER areas. As per clause (e), "Panchayat area"
means "the territorial area of a Panchayat". According to clause (g), `village' means "a village specified by the Governor by public notification to be a village". Article 243-B deals with constitution of Panchayats. It states that there should be constituted in every State, Panchayats at the village, intermediate and district levels. The said constitution of the Panchayat must be in relation to the Panchayat area. That area is to be at village level, intermediate level, i.e. Taluka level, and District level. What should be the village is to be decided by the Governor or the State Government by Notification in the Gazette. As per the constitutional provision, the Panchayat area so constituted should be an institution of self-government. That institution of self-government should not be interfered with. By reconstitution of the Panchayat area, if any portion of that area falls outside the jurisdiction of an institution of self-government, that will violate the Constitutional mandate. If no part of the Panchayat area, on reconstitution or reorganization, falls outside the institution of self-government, such reconstitution or reorganisation cannot be faulted. Petitioners have no case that on reorganization of the Districts, portion of the area, which was taken out of one District and attached to another District, is taken out of an institution of self-government. By reorganisation of Districts, some portion of the area, comprised in one District Panchayat, becomes attached to another District Panchayat. The area, which thus becomes attached to the new District Panchayat, will continue to be under an institution of self-government, which exists in relation to the new District. In other words, by the reorganisation of the District and Talukas, no area will go out of an institution of self-government. It continues to be in a Panchayat, as envisaged by that term in the Constitution.
10. The Bombay Land Revenue Code authorises Page 49 of 66 HC-NIC Page 49 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Government to reorganise Districts and Talukas.
Section 7 of the Code allows the State Government to form Districts by a duly published order. This power of the State Government to reconstitute Districts and Talukas cannot be disputed. As per the Constitution, the Panchayat, at the District level or the Taluka level, must be a self- government in the rural area. The aspect which is to be looked into is whether the reconstituted District or Taluka is a self-
governing one or not. If the area so reconstituted is a self-governing one, then the action of the Government cannot be challenged. The District, as per Article 243(a) means a District in a State, the boundaries of which can be changed by the State Government. So also, the boundaries of Taluka, which is the intermediate level, have also to be specified by the State Government. After the amendment of the Constitution by the Seventy Third Amendment, Gujarat Panchayats Act, Act 18 of 1993, was enacted. That defines `panchayat' to mean "a village panchayat, taluka panchayat or district panchayat". `District' has been defined in that Act as "a district constituted from time to time under the Land Revenue Code". Likewise, `taluka' has been defined as one "constituted from time to time under the Land Revenue Code". "Village Panchayat" is defined as one "constituted under the Act". From this definition, it is clear that the Taluka Panchayat or District Panchayat should be in relation to the Taluka or District as constituted by the Government from time to time. It is in relation to such areas the Taluka Panchayat or the District Panchayat can exist as an institution of self-government. The decision in State of U.P.and others v. Pradhan Sangh Kshettra Samiti and others, AIR 1995 SC 1512 is the authority for the proposition that the State Government have the power to change the boundaries of the District and Talukas.
11. Learned counsel representing the petitioners submitted that while reorganising the Districts and Talukas, Government should Page 50 of 66 HC-NIC Page 50 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER have afforded an opportunity of being heard in the matter to the persons affected thereby. In the instant case, there was no such consultation with the Panchayats or persons affected. On this ground, it is said that the order passed by the Government is unsustainable.
12. Section 9(2) of the Panchayats Act, as it stood prior to the amendment of 1939, provided for consultation with Taluka Panchayat, District Panchayat and the Nagar or Gram Panchayat before deciding on the question as to whether a local area shall be included or excluded to any Nagar or Gram. Such provision has been specificality excluded when Act 18 was enacted in 1993. The exclusion of this provision shows that the Legislature wanted to exclude the provision for consultation. In other words, Legislature specifically excluded the application of principles of natural justice in the case of reorganisation or delimitation of Panchayats of other local self-
government. Looking into this legislative
history, it can safely be taken that
Legislature expressly excluded the application of rule of natural justice. In such a situation, this Court cannot read into the provision of Section 7 of the Bombay Land Revenue Code principles of natural justice (vide Dr. Rash Lal Yadav v. State of Bihar & Ors., JT 1994(7) SC 62)."
44. This Court in the case of Patel Baldevbhai Ambalal & Ors. Vs. State of Gujarat & Ors., [1998 (1) GLH 932], has observed as under, wherein almost similar provisions and contentions have been raised and the facts situation are almost identical :
7. Before considering the rival submissions of the parties, it is necessary to refer to the provisions of Section 7 of BLR Code under which the impugned notifications have been issued. "7.
Division to be divided into district. Each Page 51 of 66 HC-NIC Page 51 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER division shall be divided into such districts with such limits as may from time to time be prescribed by a duly published order of the State Government. A district to consist of talukas comprising such mahals and villages as State Government may direct - And each such district shall consist of such talukas, and each taluka shall consist of such mahals and villages, as may from time to time be prescribed in a duly published order of the State Government. And each such mahal shall consist of such villages as may from time to time be prescribed by a duly published order of the State Government." A perusal of the aforesaid provisions clearly indicates that the provisions do not confer any right upon any particular person to have a particular village included in a particular taluka or a particular district nor do the said provisions prescribe any specific procedure to be followed by the State Government before taking any decision under the said Section. It is, therefore, clear that while testing the legality or otherwise of the impugned notifications, the Court has to examine the challenge within the parameters of judicial review as delineated by a catena of decisions of the Supreme Court. As held by Their Lordships of the Apex Court in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651, judicial review, as the words imply, is not an appeal from a decision but a review of the manner in which the decision was made. In para 77 of the judgment, the Apex Court has laid down the following principles :- "The duty of the court is thus to confine itself to the questions of legality. Its concern should be :- 1. Whether a decision-making authority exceeded its powers ?
2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which the decision has been taken. The extent of Page 52 of 66 HC-NIC Page 52 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :-
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. Another development is that referred to by Lord Diplock in R. v. Secretary of State for the Home Deptt., Ex Brind, viz. the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention". Sir John Laws (Judge of the Q.B. Division) has described "proportionality" as a principle where the Court is "concerned with the way in which the decision-maker has ordered his priorities; the very essence of decision-making consists surely, in the attribution of relative importance to the factors in the case, and here is my point: This is precisely what proportionality is about." He further says :
"What is therefore needed in a preparedness to hold that a decision which overrides a fundamental right without sufficient objective justification will, as a matter of law, necessarily be disproportionate to the aims in view..... The deployment of proportionality sets in focus the true nature of the exercise; the elaboration of a rule about permissible priorities." In para 81, the Apex Court has further observed that other facets of irrationality test may be mentioned: (1) It is Page 53 of 66 HC-NIC Page 53 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER open to the Court to review the decision-maker's evaluation of the facts. The Court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. (2) A decision would be regarded as unreasonable if it is impartial (sic-partial) and unequal in its operation as between different classes.
8. Again in the case of Union of India vs. G. Ganayutham, (1997) 7 SCC 463, the Supreme Court again examined the principle of proportionality and summarized the legal position as under :-
"(1) To Judge the validity of an administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards.
The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out.
These are the CCSU principles. (3)
(a) ... ... ... ... .. ... (3)
(b) ... ... ... ... .. ... (4)(a) The position in India, in administrative law, where no fundamental freedoms under Articles 19 and 21, etc, are involved, is that the Courts/Tribunals Page 54 of 66 HC-NIC Page 54 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority." 4(b) The question whether primary role is to be assumed by the Court in the case of administrative or executive action affecting fundamental freedoms under Articles 19 and 21 etc. has been kept open. (The Apex Court has made more than amply clear that the Court is not to play the primary role even where the fundamental right under Article 14 is invoked. There is an interesting question which may be required to be examined in an appropriate case. In a case where the challenge under Article 14 on the ground of arbitrariness may not succeed as the Court may hold that out of two or more options available to the authority, the authority has exercised one option, but suppose in that very case serious allegations of factual mala fides (malice in fact) are found to be true after hearing the parties against whom the allegations are made, what course should the Court adopt after quashing the impugned decision : (i) to do nothing more after quashing the impugned decision, (ii) to direct the authority (which in all probabilities would be the same authority who had acted mala fide) to reconsider the matter or, (iii) should the Court play a primary role. In view of the findings being given in this case, however, it would not be necessary to pursue the above discussion any further).
9. Applying the aforesaid tests, it is clear that the petitioner has not made out any case of illegality because the provisions of Section 7 themselves do not lay down any specific procedure for taking the decision regarding formation of divisions, districts and talukas.
10. At the hearing of the petition, a map of the entire North Gujarat region was shown to the Court and to the learned counsel for the petitioner. A perusal of the map shows that Page 55 of 66 HC-NIC Page 55 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER after issuance of notification dated October 15, 1997, there was an area comprising eleven villages including the three villages in question in Kalol taluka in between Mansa taluka and Gandhinagar taluka though both Gandhinagar taluka and Mansa taluka formed part of the same Gandhinagar district. It is submitted on behalf of the Government that all the eleven villages including these three villages were, therefore, required to be deleted from Kalol taluka and placed in Mansa taluka and consequently in Gandhinagar district. Hence, the impugned notification dated December 31, 1997 was not concerned with merely the three villages in question, but it was concerned with all the eleven villages of Kalol taluka and four villages of Vijapur taluka. All the fifteen villages have, therefore, now been placed in Mansa taluka of Gandhinagar district so that Mansa taluka and Gandhinagar taluka remain contiguous talukas in Gandhinagar district. On perusal of the map the Court is satisfied that the notification dated December 31, 1997 removing the eleven villages including the present three villages from Kalol taluka and placing them in Mansa taluka cannot be said to be arbitrary, perverse or even unreasonable. As far as the test on the score of irrationality is concerned, it cannot be said that the decision of the Government is such that no sensible person who had applied his mind to the question to be decided could have arrived at such impugned decision.
11. As regards procedural impropriety, it is contended that the State Government could not have taken the impugned decision to make the variations under challenge without giving an opportunity of being heard to the village people. It is not possible to read any such requirement either in the provisions of Section 7 of the BLR Code nor as flowing from the provisions of Article 14 of the Constitution. Five new districts were created in the State in October, 1997. That necessarily involved bifurcation or trifurcation of existing districts and talukas and also creation of new Page 56 of 66 HC-NIC Page 56 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER talukas. The entire exercise undertaken at the same time was, therefore, a herculean task. Hence, when the Government took the previous decisions on October 15, 1997, it may not have been in a position to carry out the entire exercise for all the districts and talukas with the necessary meticulous care which the petitioner would have liked the Government to take while taking the decision in respect of a solitary taluka. It was, therefore, open to the Government to apply its mind afresh and to consider whether a few variations here and there were required to be made. While carrying out the said exercise, the State Government could not have been expected to go to the village people again before taking the final decision on question of such variations and it is not possible to cull out any principle to give such opportunity of being heard before making such variations. As a matter of prudence, the Government did give such an opportunity to the village people in October, 1997."
45. Learned counsel for the petitioners has relied upon the judgment of the Apex Court rendered in the case of The Scheduled Caste and Weaker Section Welfare Association (Regd.) and another Vs. State of Karnataka and Ors. [AIR 1991 SC 1117]. Considering the provisions of Section 7 of the Code and the procedure which is followed by the authorities and the State Government in issuance of impugned Notification, no hearing has to be provided and therefore, the said judgment will have no application.
46. Learned counsel for the petitioners has also relied upon the judgment of the Hon'ble Full Bench of this Court rendered in the case of Pruthvisinh Amarsinh Chauhan Vs. K.D.Rawat of his Successor in Page 57 of 66 HC-NIC Page 57 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Office Secretary [2004 (2) GLH 640]. The Hon'ble Full bench of this Court has considered the provisions of Section 7(2) of the Act, wherein the State Government decided to bifurcate the existing Gram Panchayat, wherein in the instant case, as observed hereinabove, there is no change in the local limits of any village.
47. It would be also appropriate to refer to the judgment of the Division Bench of this Court rendered in Special Civil Application No.7240 of 1997 and allied matters, wherein this Court has observed thus:-
"9. Article 243(a) of the Constitution defines `district' as meaning a District in a State. Clause (d) of that Article defines `Panchayat' as "an institution of self-government constituted under Article 243-B, for the rural areas. As per clause (e), "Panchayat area" means "the territorial area of a Panchayat". According to clause (g), `village' means "a village specified by the Governor by public notification to be a village". Article 243-B deals with constitution of Panchayats. It states that there should be constituted in every State, Panchayats at the village, intermediate and district levels. The said constitution of the Panchayat must be in relation to the Panchayat area. That area is to be at village level, intermediate level, i.e. Taluka level, and District level. What should be the village is to be decided by the Governor or the State Government by Notification in the Gazette. As per the constitutional provision, the Panchayat area so constituted should be an institution of self- government. That institution of self-government should not be interfered with. By reconstitution of the Panchayat area, if any portion of that area falls outside the jurisdiction of an Page 58 of 66 HC-NIC Page 58 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER institution of self-government, that will violate the Constitutional mandate. If no part of the Panchayat area, on reconstitution or reorganization, falls outside the institution of self-government, such reconstitution or reorganisation cannot be faulted. Petitioners have no case that on reorganization of the Districts, portion of the area, which was taken out of one District and attached to another District, is taken out of an institution of self-government. By reorganisation of Districts, some portion of the area, comprised in one District Panchayat, becomes attached to another District Panchayat. The area, which thus becomes attached to the new District Panchayat, will continue to be under an institution of self- government, which exists in relation to the new District. In other words, by the reorganisation of the District and Talukas, no area will go out of an institution of self-government. It continues to be in a Panchayat, as envisaged by that term in the Constitution.
10. The Bombay Land Revenue Code authorises Government to reorganise Districts and Talukas.
Section 7 of the Code allows the State Government to form Districts by a duly published order. This power of the State Government to reconstitute Districts and Talukas cannot be disputed. As per the Constitution, the Panchayat, at the District level or the Taluka level, must be a self-government in the rural area. The aspect which is to be looked into is whether the reconstituted District or Taluka is a self-governing one or not. If the area so reconstituted is a self-governing one, then the action of the Government cannot be challenged. The District, as per Article 243(a) means a District in a State, the boundaries of which can be changed by the State Government. So also, the boundaries of Taluka, which is the intermediate level, have also to be specified by the State Government. After the amendment of the Constitution by the Seventy Third Amendment, Gujarat Panchayats Act, Act 18 of 1993, was enacted. That defines `panchayat' to mean "a village panchayat, taluka panchayat or district Page 59 of 66 HC-NIC Page 59 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER panchayat". `District' has been defined in that Act as "a district constituted from time to time under the Land Revenue Code". Likewise, `taluka' has been defined as one "constituted from time to time under the Land Revenue Code". "Village Panchayat" is defined as one "constituted under the Act". From this definition, it is clear that the Taluka Panchayat or District Panchayat should be in relation to the Taluka or District as constituted by the Government from time to time. It is in relation to such areas the Taluka Panchayat or the District Panchayat can exist as an institution of self-government. The decision in State of U.P.and others v. Pradhan Sangh Kshettra Samiti and others, AIR 1995 SC 1512 is the authority for the proposition that the State Government have the power to change the boundaries of the District and Talukas.
11. Learned counsel representing the petitioners submitted that while reorganising the Districts and Talukas, Government should have afforded an opportunity of being heard in the matter to the persons affected thereby. In the instant case, there was no such consultation with the Panchayats or persons affected. On this ground, it is said that the order passed by the Government is unsustainable.
12. Section 9(2) of the Panchayats Act, as it stood prior to the amendment of 1939, provided for consultation with Taluka Panchayat, District Panchayat and the Nagar or Gram Panchayat before deciding on the question as to whether a local area shall be included or excluded to any Nagar or Gram. Such provision has been specificality excluded when Act 18 was enacted in 1993. The exclusion of this provision shows that the Legislature wanted to exclude the provision for consultation. In other words, Legislature specifically excluded the application of principles of natural justice in the case of reorganisation or delimitation of Panchayats of other local self-government. Looking into this legislative history, it can safely be taken that Legislature expressly excluded the application of rule of natural justice. In such a situation, this Court cannot read into the provision of Page 60 of 66 HC-NIC Page 60 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER Section 7 of the Bombay Land Revenue Code principles of natural justice (vide Dr. Rash Lal Yadav v. State of Bihar & Ors., JT 1994(7) SC
62)."
48. It would be appropriate to refer to the judgment of Division Bench of this Court rendered in the case Babubhai & Co. & Ors. Vs. State of Gujarat [1985 (2) SCC 732] Jethabhai Parmar Vs. State of Gujarat & Ors., [2001 (3) GLH 718] has observed thus:
"3. It may be stated that prior to reconstitution of the districts and talukas in October 1997, Kahoda was in Sidhpur taluka of Mehsana District. Mehsana District was bifurcated into Mehsana District and Patan District. Sidhpur Taluka also came to be bifurcated into Sidhpur Taluka placed in Patan District and Unjha taluka placed in Mehsana District. Thereafter vide notification dated 15.10.1997, village Kahoda came to be included in Unjha taluka. By subsequent notification dated 4.12.1997, Kahoda was shifted from Unjha taluka and included in Sidhpur taluka. By the impugned notification dated 31.12.1999, Kahoda has again been shifted from Sidhpur taluka to Unjha taluka.
10. This Court in so many reported/unreported decisions has interpreted provisions of section 7 of the Code. In the case of Patel Baldevbhai Ambalal Vs. State of Gujarat, 1998(1) GLH 932 and in the case of Gujarat Panchayat Parishad Vs. State, Special Civil Application No. 7240 of 1997 decided on 24.4.1998 by the Division Bench of this Court (Coram: K.Sreedharan,CJ & A.R. Dave,J.), this Court in terms held that before exercise of powers under section 7 of the Code, the Government is not bound to issue notice to the concerned Gram Panchayat and a general notice to the residents of the concerned villages. In substance, the contention that before exercising powers under section 7 of the Code for reconstitution of Page 61 of 66 HC-NIC Page 61 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER talukas, the Government is required to follow the principles of natural justice has been negatived by this Court. Learned Counsel Mr.Patel for the appellants, however, invited our attention to the decision of the apex Court in the case of Baldevsingh Vs. State of H.P., AIR 1987 SC 1239 and in the case of State of U.P.and ors. Vs. Pradan Sangh Kshetra Samiti and ors., AIR 1995 SC 1512. IN para 4 of the said judgment, the apex Court observed as under: "Citizens of India have a right to decide what should be the nature of their society, in which they live- agrarian, semi- urban or urban. Admittedly, the way of life varies, depending upon where one lives. Inclusion of an area covered by a Gram Panchayat within a notified area would certainly involve civil consequences. In such circumstances, it is necessary that people who will be affected by the change should be given an opportunity of being heard, otherwise they would be visited with serious consequences like loss of office in Gram Panchayats, an imposition of way of life, higher incidence of tax and the like. " The apex Court made the said observations considering the facts of the case, namely that four villages inhabited by agriculturists and having a rural set up and forming part of gram panchayats under the relevant statute were sought to be constituted as notified areas under section 256 of the Himachal Pradesh Municipal Act and in this background, the apex Court held that before the notified area was constituted, the people of the four villages should have been afforded an opportunity of being heard and the decision should have been taken after considering the views of the residents. As far as the present case is concerned, the nature of society in which the concerned villagers are shifted does not change. Only their administration is change from one taluka panchayat to another taluka panchayat.
11. The Division Bench in the case of Gujarat Panchayat Parishad (supra), in fact, considered the judgment of the apex Court rendered in the Page 62 of 66 HC-NIC Page 62 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER case of State of UP Vs. Pradan Sangh Kshetriya Samiti, AIR 1995 SC 1512 and rejected the contention about applicability of principles of natural justice by giving reasons as under:
"(i) The institution of self government should not be interfered with. By reconstitution of the panchayat area, if any portion of that area falls outside the jurisdiction of an institution of self-government, that will violate the constitutional mandate. If no part of the panchayat area, on reconstitution or reorganisation, falls outside the institution of self government, such reconstitution or reorganisation cannot be faulted. The area which thus becomes attached to the new District Panchayat/ Taluka Panchayat will continue to be under an institution of self Government. (ii) The Bombay Land Revenue Code authorises Government to reorganise Districts and Talukas.
The boundaries of the taluka have to be specified by the State Government and can be changed by the State Government. After the amendment of Constitution by Seventy Third Amendment, Gujarat Panchayats Act No.18 of 1993 was enacted. That defines 'Panchayat' to mean ' a village panchayat, taluka panchayat or district panchayat'. Similarly, 'district' has been defined in that Act as a 'district constituted from time to time under the Land Revenue Code.' Similarly, 'taluka' has been defined as one 'constituted from time to time under the Land Revenue Code.' 'Village Panchayat' is defined as one 'Constituted under the Act. It is clear that the Taluka Panchayat or District Panchayat should be in relation to the Taluka or District as constituted by the Government from time to time under the Bombay Land Revenue Code. Thus, in the case of State of U.P. Vs. Pradhan Sangh Kshetriya Samiti, AIR 1995 SC 1512, it is held that the State Government has power to change the boundaries of the Districts and Talukas. (iii) Section 9(2) of the Panchayats Act, as it stood prior to the amendment of 1993, provided for consultation with Taluka Panchayat, District Panchayat and the Nagar or Gram Panchayat Page 63 of 66 HC-NIC Page 63 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER before deciding on the question as to whether a local area shall be included or excluded to any Nagar or Gram. Such provisions have been specifically excluded when Act No.18 was enacted in 1993. The exclusion of this provision shows that the Legislature wanted to exclude the provision for consultation. In other words, Legislature specifically excluded the application of principles of natural justice in the case of reorganisation or delimitation of Panchayats of other local self government. Looking into this legislative history, it can safely be taken that the Legislature expressly excluded the application of rule of natural justice. In such a situation, this Court cannot read into the provisions of section 7 of the Bombay Land Revenue Code principles of natural justice (vide Dr.Rash Lal Yadav. Vs. State of Bihar & Ors., JHT 1994 (7) SC 62)."
12. Suffice it to say that we are in total agreement with the view taken by the Division Bench in the judgment rendered in Gujarat Panchayat Parishad (supra). In our view, the learned single judge was perfectly justified in following the decision of this Court rendered in the said case which has also considered the decision of the apex Court in Pradhan Sangh's case (supra). True, the apex Court in Pradhan Sangh's case (supra), observed that reasonable opportunity for placing objections and hearing ought to have been given to the village people when the change in area/ local boundaries results in civil consequences. It may be stated that it was not disputed before the apex Court that the action of bringing more villages than one village under one gram panchayat did involve civil consequences. The learned Counsel in the instant case has not produced sufficient material on record to show as to how the impugned decision, namely shifting village Kahoda from Sidhpur taluka and placing it in Unjha taluka and abolishing Bhildi and again making 53 villages as part of original Deesa taluka would involve civil consequences. It was pointed out that the representatives of taluka Page 64 of 66 HC-NIC Page 64 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER panchayat would lose their right to represent taluka. In our opinion, the said contention has no merit and is required to be rejected.
13. After having gone through the reasonings of the learned single judge, we not only agree with the reasonings on this point, but on all the points including the contention of alleged malafide raised by the appellant. It would be a mere repetition and, therefore, we refrain ourselves from repeating the same in the present judgment."
49. Reliance placed for by learned counsel for the petitioners upon the judgment of the Division Bench of this Court rendered in Letters Patent No.1033 of 2014, which relates to bifurcation of Group Gram Panchayats into two Gram Panchayats under Section 7 of the Act. The Division Bench of this Court while considering the facts of the case, has considered the aspect of consultation as provided under Section 7 of the Act, wherein in the case on hand, decision for creation of new Taluka is taken under Section 7 of the Code and therefore, the same would not take the case of the petitioners any further.
50. In light of the aforesaid factual matrix, it clearly emerges that the State Government after taking into consideration all relevant factors has followed the procedure as prescribed under Section 7 of the Code and as observed hereinabove, all gamut has been followed by the State Government and thereafter, impugned decision is taken, which cannot be termed as illegal, mala fide, perverse or not in accordance with law. 51. It is hoped that the Page 65 of 66 HC-NIC Page 65 of 66 Created On Tue Aug 15 20:00:51 IST 2017 C/SCA/16475/2014 ORDER object of Notifications shall be achieved by the State Government at the earliest and the State shall make all endeavour to see that the all basic facilitates ad infrastructure is made available to each village of Gir-Gadhada Taluka at the earliest.
For the foregoing, the petitions fail and are hereby dismissed. Notice is discharged.
[R.M.CHHAYA, J.]
After the order is completed, Mr. Mithani,
learned advocate for the petitioners prayed that
interim relief granted earlier be continued for some time.
In the facts and circumstances of the case, the same is extended till 09.06.2017.
[R.M.CHHAYA, J.]
Suchit
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