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[Cites 20, Cited by 2]

Gujarat High Court

Ritaben Babubhai Ninama vs State Of Gujarat on 1 October, 2019

Equivalent citations: AIRONLINE 2019 GUJ 424

Author: Vipul M. Pancholi

Bench: Vipul M. Pancholi

        C/SCA/3136/2019                                         JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 3136 of 2019
                                With
             CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
           In R/SPECIAL CIVIL APPLICATION NO. 3136 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1   Whether Reporters of Local Papers may be allowed to Yes
    see the judgment ?

2    To be referred to the Reporter or not ?                              Yes

3    Whether their Lordships wish to see the fair copy of the             No
     judgment ?

4    Whether this case involves a substantial question of law             No
     as to the interpretation of the Constitution of India or any
     order made thereunder ?

==========================================================
                          RITABEN BABUBHAI NINAMA
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1
MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
MR HS MUNSHAW(495) for the Respondent(s) No. 4,5
MR PANKAJ S CHAUDHARY, for the Respondent(s) No.6,7,8
==========================================================
 CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
                        Date : 01/10/2019


                              ORAL JUDGMENT

1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed that impugned Notification dated 19.01.2019 Page 1 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT issued by respondent No.1 while exercising powers under the Gujarat Panchayats Act, 1993, by which, Kadval Gram Panchayat is bifurcated into six different Gram Panchayats, be quashed and set aside. The petitioner has also prayed that the order dated 22.01.2019 passed by the State Government appointing Administrator of the Kadval Gram Panchayat be quashed and set aside.

2. Looking to the issue involved in the present petition and with the consent of the learned advocates appearing for the parties, the petition is taken up for final disposal. Hence, Rule. Mr.K.M. Antani, learned Assistant Government Pleader, waives service of notice of Rule for respondent Nos.1 to 3, Mr.H.S. Munshaw, learned advocate, waives service of notice of Rule for respondent Nos.4 and 5 and Mr.Pankaj S. Chaudhary, learned advocate, waives service of notice of Rule for respondent Nos.6 to 8 i.e. newly added respondents.

3. The issue involved in the present petition is whether the procedure prescribed under Section 7 of the Gujarat Panchayats Act, 1993 ("the Act" for short) is followed by the respondent authorities, or not.

4. The factual matrix of the case is as under:

4.1 It is the case of the petitioner that she has Page 2 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT contested election for the post of Sarpanch of Kadval Gram Panchayat. She was declared elected as Sarpanch.

She took charge as Sarpanch in the month of January, 2018. However, on 07.03.2018, a Show­cause Notice was issued by the District Development Officer under Section 57(1) of the Act alleging certain irregularities and misappropriation. Thereafter, the petitioner was removed from the post of Sarpanch vide order dated 21.04.2018. Therefore, the charge of Sarpanch was given to Deputy Sarpanch, who appears to have called for Gram Sabha of Kadval village on 23.05.2018 for deciding various issues as stated in the agenda. It is alleged by the petitioner that the agenda was signed by the Deputy Sarpanch, Talati­cum­ Mantri and only five members. It is further alleged that the issue with regard to the alteration of limits of Kadval Village Panchayat was not forming part of the agenda. However, at the end of the items mentioned for discussion, the said agenda was subsequently added. It is further stated that the effective consultation and process which is required to be followed by calling a meeting of the elected members of the Panchayat and, thereafter, by putting the same for discussion before the Gram Sabha, was not followed. Thus, without any kind of effective consultation and without informing the residents of the village, a resolution was passed.

4.2 It is further stated that the petitioner challenged the order of removal passed under Section 57(1) of the Act by filing an appeal before the Page 3 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT Additional Development Commissioner. The said appeal was partly­allowed vide order dated 20.06.2018 and the order passed by the District Development Officer was quashed and set aside and the matter was remanded back for fresh consideration. The said order was not complied with and the petitioner was not permitted to take over the charge of Saprnach. Therefore, various representations were made and ultimately, on 17.10.2018, the petitioner was allowed to take over the charge of Sarpanch.

4.3 It is further stated that now, the impugned Notification dated 19.01.2019 came to be issued by respondent No.1 while exercising powers under Section 7 of the Act, by which, limits of Kadval Gram Panchayat is altered and six other Gram Panchayats are formed without any effective consultation with Gram Panchayat, which is a condition precedent for exercising powers under Section 7 of the Act. The petitioner has, therefore, preferred this petition.

5. Mr.Zubin F. Bharda, learned advocate appearing for the petitioner, has mainly contended that the impugned Notification issued by the respondent State, by which, one Gram Panchayat is bifurcated into six different Gram Panchayats, is without consultation and, therefore, only on this ground, the impugned Notification is required to be quashed and set aside.

5.1 Mr.Bharda, learned advocate, has referred a copy of the agenda book as well as the resolution passed Page 4 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT by the Gram Panchayat. He has also referred the resolution passed by the District Panchayat. Copies of the said resolutions are produced on record by the concerned respondent along with the affidavit­in­ reply. After referring to the same, it is contended that consultation in the present case, is not effective and real and though some of the members were not present, their signatures are made in the resolution. Thus, it is urged that in absence of effective and real consultation with the concerned Gram Panchayat as well as Taluka Panchayat and District Panchayat, respondent No.1 ought not to have issued the impugned Notification under Section 7 of the Act and, therefore, the said Notification be quashed and set aside.

5.2 At this stage, it is further submitted that in fact, in the year 2014, process for bifurcation of the aforesaid Gram Panchayat was started. In the year 2016, fresh election was conducted and, thereafter, now, the decision is taken to bifurcate the aforesaid Gram Panchayat and, therefore, process of consultation lapsed and hence, fresh consultation is required. The said process was not carried out and, therefore, the impugned Notification be quashed and set aside.

5.3 Mr.Bharda, learned advocate for the petitioner, has placed reliance upon a decision rendered by a Full Bench of this Court in the case of Pruthvisinh Amarsinh Chauhan Vs. K.D. Rawat or His Successor in Page 5 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT Office Secretary reported in 2004(2) GLH 640. He has also placed reliance upon a decision rendered by the Division Bench of this Court in the case of Nathalal M. Patel Vs. State of Gujarat reported in 1993(2) GLH 91.

5.4 Mr.Bharda, learned advocate for the petitioner would, therefore, urge that the impugned Notification be quashed and set aside.

6. On the other hand, Mr.H.S. Munshaw, learned advocate for respondent Nos.4 and 5, has submitted that general election of Kadval Gram Panchayat, Taluka Jhalod, was held on 29.12.2011. On 07.10.2014, Resolution No.14 was passed by the General Body of the said Gram Panchayat for bifurcation of Kadval Gram Panchayat. The said Resolution was forwarded to respondent No.5. Thereafter, Jhalod Taluka Panchayat also passed Resolution Nos.1 to 6 on 25.03.2015 and, thereafter, proposal was forwarded to respondent No.4 on 30.03.2015. The General Body of Dahod District Panchayat thereafter passed Resolution No.43 on 27.06.2017, by which, it was resolved to bifurcate the Gram Panchayat considering various factual aspects and, thereafter, proposal was forwarded to the Development Commissioner. At this stage, it is submitted that in the meantime, general election of Kadval Gram Panchayat was held on 27.12.2016, in which, the petitioner was elected as Sarpanch. Once again, on 23.05.2018, Resolution was passed by the Gram Sabha for bifurcation of the said Gram Panchayat Page 6 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT and for constitution of the six new Panchayats. The General Body of Jhalod Taluka Panchayat, thereafter, once again passed a Resolution No.13 in its meeting dated 10.08.2018 and along with an opinion, proposal was sent on 30.08.2018. Once again, General Body of the Dahod District passed a Resolution on 03.11.2018 for bifurcation of the Kadval Gram Panchayat and the same was forwarded to the Development Commissioner and ultimately, now the impugned Notification is issued by respondent No.1. Mr.Munshaw, learned advocate, has referred various resolutions passed by the Gram Panchayat, Taluka Panchayat and the District Panchayat, which are placed on record. From the aforesaid facts of the present case, it is contended that it cannot be said that there was no real and effective consultation. Thus, before issuance of Notification under Section 7 of the Act, prescribed procedure was followed and, therefore, this Court may not interfere with the said decision.

6.1 Mr.Munshaw, learned advocate, has placed reliance upon a decision rendered by this Court in the case of Paroya Group Gram Panchayat Vs. State of Gujarat reported in 2008(2) GLR 1096. After relying upon the said decision, it is contended that once the decision to bifurcate the Gram Panchayat is taken in the interest of public at large, such decision is in the nature of policy decision of the State Government and if the said decision is not arbitrary, irrational or perverse, no interference can be made.

Page 7 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 
            C/SCA/3136/2019                                              JUDGMENT



7.     Mr.K.M.           Antani,          learned        Assistant         Government
Pleader         appearing           for    the      respondent        Nos.1        to      3,

mainly contended that this petition is filed by the petitioner in her individual capacity and not on behalf of the people of the Kadval Gram Panchayat. From the averments made in the petition, it is pointed out that the petitioner is personally interested to see that bifurcation of the Kadval Gram Panchayat may not take place so that she can remain on the post of Sarpanch. However, while passing the impugned Notification, respondent State has taken into consideration the resolutions passed by the concerned Taluka Panchayats as well as taken into consideration the interest of the public at large and when the prescribed procedure is followed before issuance of the impugned Notification, this Court may not interfere with the said Notification.

7.1 Learned Assistant Government Pleader has placed reliance upon the following decisions:

(1) Kalubhai Kesrisingh Mahida Vs. State of Gujarat and others reported in 1965 (6) GLR 451 (2) Naroda Nagar Panchayat, Ahmedabad Vs. State of Gujarat & Ors reported in 1977(18) GLR 814 7.3 Learned Assistant Government Pleader, therefore, urged that this petition be dismissed.
8. Mr.Pankaj S. Chaudhary, learned advocate Page 8 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT appearing for the newly added respondents i.e. respondent Nos.6 to 8, mainly contended that the petition is required to be dismissed only on the ground that the petitioner has suppressed the material fact by not producing relevant resolutions passed by the Taluka and District Panchayat. He further submits that out of thirteen members of the Kadval Gram Panchayat, ten members have filed the affidavits in respect of the bifurcation of the Kadval Gram Panchayat. Learned advocate has referred the said affidavits, which are placed on record, along with Civil Application No.1 of 2019. He, therefore, urged that when the decision is taken in the public interest by the Gram Panchayat to bifurcate one Gram Panchayat into six different Gram Panchayats, no interference is required in the said decision.
9. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that election of Kadval Gram Panchayat was held on 29.12.2011. At that time, one Gumalben Atulbhai Parmar was elected as Sarpanch.

The General Body of the Gram Panchayat passed Resolution No.14 on 07.10.2014 for bifurcation of the said Gram Panchayat. The said resolution was forwarded to respondent No.5 along with the proposal. Respondent No.5 Jhalod Taluka Panchayat passed Resolution Nos.1 to 6 on 25.03.2015 and forwarded proposal to respondent No.4 on 30.03.2015.

Thereafter,          the         General           Body         of     Dahod         District


                                           Page 9 of 26

                                                                        Downloaded on : Thu Oct 03 02:22:33 IST 2019
         C/SCA/3136/2019                                                   JUDGMENT



Panchayat        passed          Resolution            No.43        on      27.06.2017

wherein the decision was taken to bifurcate Kadval Gram Panchayat and the proposal was sent to the Development Commissioner.

In the meantime, the general election of Kadval Gram Panchayat was held on 27.12.2016. Thereafter, once again Gram Sabha of the said Panchayat passed a Resolution on 23.05.2018 for bifurcation of the said Gram Panchayat and for constitution of six new Gram Panchayats. The General Body of Jhalod Taluka Panchayat thereafter, passed Resolution No.13 in its meeting held on 10.08.2018. Proposal was forwarded along with the opinion for bifurcation to respondent No.4 on 30.08.2018. The General Body of Dahod District Panchayat once again passed a Resolution No.9 on 03.11.2018 for bifurcation of the said Gram Panchayat and the proposal was sent to Development Commissioner on 05.11.2018 and ultimately, the impugned Notification was issued on 19.01.2019 by respondent No.1.

10. This Court has perused agenda and resolutions, which are placed on record.

11. At this stage, this Court would like to refer the provisions contained in Section 7 of the Act, which reads as under:

"7. (1) After making such inquiries as may be prescribed, the competent authority may Page 10 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT recommend any local area comprising a revenue village, or a group of revenue villages, or hamlets forming part of a revenue village, for being specified a village under clause (g) of article 243 of the Constitution if the population of such local area does not exceed 1 [twenty­five thousand.] (2) After consultation with the taluka panchayat, the district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion within or exclusion from any villages any local area or otherwise alternation of limits of any village, or recommend cesser of any local area to be a village, to the Governor for exercise of his powers under clause (g) of article 243 of the Constitution."

12. At this stage, decisions upon which reliance is placed by the learned advocates appearing for the parties are also required to be kept in mind.

13. A Full Bench of this Court in the case of Pruthvisinh Amarsinh Chauhan Vs. K.D. Rawat or His Successor in Office Secretary (supra), observed in Paragraphs­9, 10.2, 10.3 and 11 to 15 as under:

"9. The reference order culminates into three material questions, as narrated above. The question that would be required to be dealt with, first, would be what meaning can be attributed to term 'Consultation'. In this regard, the decision in the case of Union of India V/s. Sakalchand S. Sheth and Another, AIR 1977 SC 2328 and Baldevsingh V/s. State of Himachal Pradesh, AIR 1977 SC 1239, followed by observations in the case of Bhalod Gram Panchayat V/s. State of Gujarat, 1986 (1) GLR 247 would be relevant. The Apex Court has observed in the case of Sakalchand (supra) that, Page 11 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT "the term 'Consultation' means full and effective and not formal or unproductive consultation". The term used is consultation and not concurrence or consent which are not synonyms to each other, and operate differently. For an important that the consultation has to be meaningful and not formal. In the case of Nathabhai (supra), this Court observed that, "for making consultation effective and clear, the Government ought to have disclosed a new material to the Panchayats and ascertained its view thereon, and thereafter held that as no result has been pointed out for not doing so, and because it does not point out that if the action of the Government is regarded invalid, it would be prejudicial to the public interest. The action of the Government was arbitrary and liable to be declared as invalid". We are also of the view that when the statute requires an Authority to consult before taking action, the consultation should not be a mere formality, but must be genuine and meaningful, then only the object of incorporation of this cause in the statute by the makers of law would be fulfilled, particularly in the case before us the consultation would enable the authority to understand and evaluate the implications of the proposed stage on a section of Society which is likely to be affected. The authority would know their point of view which would assist it in evaluating or judging the situation and take decision in the best interest of the society.
xxx xxx xxx 10.2 Making observations on factual aspect of the case, the Division Bench in Para 9 of the judgment observed, thus :
"In the case, on basis of the material which was before the Government and the representation made by the Bavala Nagar Panchayat, the Government had on 24­12­1990, taken a decision not to accept the proposal for bifurcation of Bavala Nagar Panchayat. If it had been a case of mere consideration of the material which was Page 12 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT already there and in respect of which the concerned Panchayat was already consulted earlier, then it could have been said that it was not necessary to consult it again. But it is an admitted position that fresh material was placed before the Government after 24­12­1990. For making consultation effective and real the Government ought to have disclosed the new material to the Panchayat and ascertained its view thereon. No reason has been pointed out for not doing that. It is also not pointed out that if the action of the Government is regarded as invalid, it would be prejudicial to public interest. Therefore, the impugned action of the Government will have to be regarded as arbitrary and thus liable to be declared as invalid."

10.3 Thus, according to the Division Bench, in the case of Nathabhai (supra) as the decision of the Government founded on fresh material was without consultation and therefore, although the requirement of consultation was not mandatory, the decision was held to be invalid. No reason was indicated by Government for not undertaking the exercise of consultation. The ratio decidendi, therefore, is that requirement of consultation is not mandatory and is directory. However, the consultation has to be effective and real, and for making it effective and real, the new material considered by Government ought to have been disclosed to the Panchayat and ascertained its view.]

11. In the case of Likhi Group Gram Panchayat (supra) also the Division Bench held that requirement of Sec. 9(2) of the Old Act is not mandatory. What is required is the consultation and not consent or concurrence. Before that Bench, it was also argued that the Development Commissioner has turned down the proposal for division / bifurcation and thereafter, without consultation of the Gram Panchayat or Taluka Panchayat, a different view was taken to bifurcate the Panchayat. The Division Bench observed that looking at the resolution, it was clear that there was no mala fide on part of the Page 13 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT Development Commissioner in issuing the Notification. Earlier there was consultation and this different view was taken within a short time and therefore, the Division Bench observed that if ultimately the Development Commissioner has issued Notification within such a short period, it cannot be said that within such a short period further consultation was required. The Division Bench relied on Kalubhai's case that a duty to consult Panchayat before passing an order under Section does not necessarily mean that every departure from their duty will take the whole proceedings with a fatal damage and render it void and ineffective. Thus, the Division Bench, in the facts of that case found that there was no much lapse of time and non­ consultation did not affect the decision.

12. What emerges from these two judgments therefore is that in case of Nathabhai, the Division Bench found that as the decision was taken on fresh material, earlier consultation would not be effective or real. Whereas in the case of Likhi Group of Gram Panchayat there was no fresh material, there was no change in circumstance and the time lag was so narrow that the Division Bench, probably, felt in the facts of the case that fresh consultation was not required. Both the decisions concurred on the aspect that requirement of consultation is not mandatory, but, is directory. The decision taken in both the cases in respect of further consultation were based on facts of those cases and in our opinion, as such, there is no conflict between the ratio laid down in the two decisions.

13. The third point that requires consideration by virtue of the reference is whether the Government can issue Notification without again consulting the Panchayat as per the requirement of Sec. 7(2) of the New Act.


       13.1   As   discussed  above,    though the
       requirement    of   consultation    is  not

mandatory and is directory, in our opinion, Page 14 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT it cannot be given a total go­bye to it. Since the Legislature in its wisdom has incorporated this provision, it has to be given its due importance. It is true that in other case non­compliance would not vitiate the decision, valid reasons therefore have to be indicated. The object behind the enactment has to be saluted. The affected party must have an opportunity to express its opinion and view on he proposed decision. The term is used as a consultation and it cannot be, by any stretch of imagination, taken as concurrence or consent and therefore, after consultation a decision may be taken by the Government.

14. After the consultation, once it culminates into a decision considering the pros and cons of the matter, the exercise comes to an end and chapter is closed. If it is proposed to make a fresh decision, in our opinion, it would be a new chapter and fresh exercise of consultation would be necessary. It will have to be examined whether there is change in circumstance or not and if so, what are the changes and for that reason, what is the viewpoint of the Panchayat­ the affected party. This requirement of law has to be, thus, saluted as if it is altogether a new proposal for decision on aspect of bifurcation.

15. If after undertaking an exercise a final decision one way or the other is not taken, probably fresh exercise may not be undertaken once again. If there is a lapse of time resulting into change into factual scenario, the Government or the Authority can legitimately be expected to undertake a fresh exercise of consultation."

14. In the case of Nathalal M. Patel Vs. State of Gujarat (supra), the Division Bench of this Court has Page 15 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT observed in Paragraphs­4 and 8 as under:

"4. The learned Counsel for the respondents, however, submitted that this view is no longer good law as subsequently in Bhalod Gram Panchayat and Another V/s. State of Gujarat & Ors. (1986) 27(1) GLR 247 this Court has held that failure to comply with the requirement of consultation would render the exercise of power under Sec. 9 (2) ineffective. In that case, the question which had arisen for consideration was different but while dealing with Sec. 9 (2), the following observations have been made: "It is clear on a plain reading of this sub­section before the State Government exercises power under this provision, it must consult the taluka panchayat, the district panchayat and the gram panchayat concerned. Failure to do so would render the exercise of power ineffective. Only after the concerned Panchayats has been consulted that the State Government can exercise power by issuing a notification in the Official Gazette.... ...After the enactment of the Act, inclusion within or exclusion from any gram any local area or the alteration of its limits must be made after proper consultation as provided by Sec. 9 (2) of the Act. To hold otherwise would be to render the solutary provision of consultation nugatory. Alteration of the limits of any local area of a gram or nagar has several far­reaching consequences, i.e. it affects the delimitation of wards, the constitution of existing committees, the revenue and financial assistance, etc. and hence it is only just and fair to consult the concerned panchayats before any such change is effected...."

xxx xxx xxx

8. If the provision is directory than even if it is not fully complied with, or not complied with at all, they by itself will not invalidate the action. But as pointed out by this Court in Kalubhai's case, Sec. 9 (2) casts a duty on the State Government to consult the concerned Page 16 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT Panchayat before changing its limit. The legislature must have provided for good reasons that before effecting a change, the concerned Panchayats should be consulted. If the object of consultation ­ namely arriving at a decision objectively ­ is not to be frustrated, then it has to be full and real and not formal and in name only. Such purposeful consultation implies making available all relevant data to the person or authority to be consulted and to elicit its views thereon. If this be the nature of duty to consult, then exercise of power in breach thereof may render the action arbitrary in absence of a reason justifying the departure from its performance."

15. In the case of Paroya Group Gram Panchayat Vs. State of Gujarat (supra), the co­ordinate Bench of this Court has observed in Paragraphs­14, 19, 20 and 22 as under:

"14. A Full Bench of this Court in Pruthvisinh Amarsinh Chauhan V/s. K.D.Rawat & Ors. (supra) had occasion to deal exhaustively, with the requirement of consultation as envisaged in Sec. 7(2) of the Act. After dealing with the points referred to it for decision, it has been held in paragraphs 9 and 14 as under:
"9. ... when the statute requires an authority to consult before taking action, the consultation should not be a mere formality, but must be genuine and meaningful, then only the object of incorporation of this clause in the statute by the makers of law would be fulfilled, particularly in the case before us the consultation would enable the authority to understand and evaluate the implications of the proposed stage on a section of society which is likely to be affected. The authority would know their point of view which would assist it in evaluating or judging the situation and take decision in the best interest of the society.
Page 17 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 
  C/SCA/3136/2019                           JUDGMENT




       "14. After    the   consultation,    once   it
culminates into a decision considering the pros and cons of the matter, the exercise comes to an end and chapter is closed. If it is proposed to make a fresh decision, in our opinion, it would be a new chapter and fresh exercise of consultation would be necessary. It will have to be examined whether there is change in circumstance or not and if so, what are the changes and for that reason, what is the view point of the Panchayat ­ the affected party. This requirement of law has to be, thus, saluted as if it is altogether a new proposal for decision on aspect of bifurcation."

Summing upon its conclusions, the Full Bench answered the points referred for its determination as under:

"16. In view of the above discussion, the points for our determination are answered as under :
(i) The term 'Consultation' has to be taken as an effective and meaningful and genuine consultation and not a formality.
(ii) There is no conflict between the ratio laid down in the case of Nathabhai (supra) and Likhi Group of Gram Panchayat (supra).

The conclusions are based on fact of each case, but, there is no conflict in the ratio.

(iii) If proposal has culminated into a decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure therefrom may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken."

xxx xxx xxx

19. The submission of the learned counsel for Page 18 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT the petitioners regarding violation of the principles of natural justice are also without substance. It is relevant to notice the fact that the Resolution for bifurcation was sent by the petitioner­Gram Panchayat as far back as on 27.03.2006 and 31.03.2006 and, acting upon the same, the proposal for bifurcation has been processed at the levels of the Taluka Panchayat and District Panchayat. The earlier Resolutions of the petitioner­Gram Panchayat are based on the representations of the people at large, who were facing difficulties due to the geographical conditions prevailing in the area and due to lack of proper transportation facilities. In the light of this position, it cannot be said that the people at large were not given an opportunity of being heard. Further, it is relevant to notice that the provisions of Sec. 7(2) of the Act do not contemplate an individual opportunity of hearing. What is contemplated is only 'consultation', which has effectively taken place, as is evident from the facts and circumstances of the case as well as the documents on the record. The Statute does not contemplate, a personal hearing to all the objectors who may file representation. Even otherwise, the Gram Panchayat has itself by the earlier resolutions consented to the bifurcation and merely because by a subsequent Resolution dated 16.08.2007, the majority has withheld the consent for bifurcation, for the time being, does not indicate that there is any change of circumstances, necessitating abandoning of the proposal for bifurcation. A perusal of the Resolution dated 16.08.2007 whereby, the petitioner­Gram Panchayat, by majority has withheld the consent to the proposal of bifurcation, for the time being, makes it clear that the earlier stand of the petitioner ­Gram Panchayat has been changed by the new governing body, ostensibly with the purpose of allowing the elected representatives to complete their term. There is no objection, in principle, to the proposal of bifurcation. The Resolution dated 16.08.2007 does not contain a single reason why the bifurcation should not take Page 19 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT place, giving rise to the inescapable conclusion that the withholding of the consent for bifurcation, for the time being as stated therein, is merely to protect the personal interests of the elected body and allow it to complete its term in office.

20. It is evident from a perusal of the communication dated 3.08.2007, annexed as Annexure "B" to the petition that the State Government has written to the respondent No.2 to consult the newly elected Gram Panchayat and ask them to pass a Resolution regarding their views on the bifurcation of the Gram Panchayat. In this view of the matter, it cannot be denied that there has been fresh consultation, after the formation of the new governing body. The Resolution No.4/1 dated 16.08.2007 has been passed by the petitioner­Gram Panchayat subsequent to the letter dated 3.08.2007. The requirement of fresh consultation, as held by the Full Bench in Pruthvisinh Amarsinh Chauhan V/s. K.D.Rawat & Ors. (supra) has, therefore been fulfilled.

21. xxx xxx xxx

22. In the case in hand, the policy decision to bifurcate the petitioner­Gram Panchayat by issuing the impugned Notification has been arrived at after taking into consideration all relevant factors and ground realities, and does not violate any legal or constitutional provisions. There is no material on record to show that the decision is arbitrary, irrational or perverse. This Court, therefore, while exercising jurisdiction under Art. 226 of the Constitution of India will not interfere with such a policy decision, especially when it meets with the requirements of law."

16. In the case of Kalubhai Kesrisingh Mahida Vs. State of Gujarat and others (supra), this Court has observed in Paragraph­7 as under:

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C/SCA/3136/2019 JUDGMENT "7. In the light of the aforesaid principles let us examine the relevant section of the Gujarat Village Panchayats Act and the effect of the action taken by the Government under that section. On a reading of section 9 it would appear that the Government has been authorised to declare any local area comprising of a revenue village or a group of revenue villages or hamlets forming part of a revenue village to be a Nagar or a Gram in the circumstances set out in that section and it is further provided in the section that the Government may by a notification at any time include within or exclude from any Nagar or Gram any local area or otherwise alter the limits of any Nagar or Gram. But if the Government wanted to act under the latter part of the section it is provided in sub­section (2) of section 9 that the action should be taken after consultation with the Panchayat concerned. It appears that the provision about consultation has not been included in the section as a safe­guard of a right of any person but seems to be a mere direction to take the sense of the Panchayat before its limits were altered or added to. The main object of the section seems to effect an alteration of the limits and while doing so one of the steps to be taken by the Government is to consult the Panchayat concerned. If such a step is not taken the main purpose of the enactment viz. alteration of or adding to the limits of a Panchayat would not be frustrated nor would the right of any person be prejudiced. On this question Mr. Shastri contended that the right of the Panchayat would be affected because the Panchayat would be divested of some part of its property and that the statutory right of the Panchayat vested in it under section 96 of the Gujarat Panchayats Act, 1961 would be effected. There is no substance in this argument. Under section 96 of the Gujarat Panchayats Act a power is given to the Government to vest in the Panchayat certain types of property but there is no right given to a Panchayat that such property Page 21 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT will be continued to be vested in it in perpetuity. Similarly the argument of Mr. Shastri based on section 99 of the Act has also no substance. Under section 99 of the Act a fund is constituted for each Panchayat from certain recoveries by the Panchayat. The Panchayat as constituted would continue to recover such recoveries as are permissible under the Act and therefore because of the alteration of the limits the Panchayat would not be deprived of such a right. Reference was made to some of the provisions of the Act including sec. 310 and it was urged that the consequence of an action such as the one taken in the present case would be to dissolve a Panchayat once constituted and the right of the persons elected to the old Panchayat to continue as members for the full term would be affected and the people of the area would not have a local­self Government till the new Panchayat was constituted. It was contended that the requirement for a prior consultation was a condition precedent to the taking of an action under section 9(2) which was a power conferred on the Government and not a duty. But it must not be forgotten that whatever rights if any of having a local­self Government body or of membership to the Panchayat are the creation of the statute which itself brings into existence a Panchayat and its electorate body and provides for its re­arrangement. Such an action of reconstituting or rearranging the areas would not totally and for ever deprive the people of a local self Government body or the right of the people to elect their representatives to a Panchayat. Since the section provides for the reconstitution of a village it also provides that the sense of the Panchayat should be taken before its limits are altered. The section however does not prescribe what consequences would follow if prior consultation is not made before taking an action under the section. Considering the consequences that are likely to follow on the taking of an action under the section and the effect of non­ compliance with that part of the section which provides for a prior consultation and Page 22 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT considering the subject matter of the provision and its relation to the general object thereby intended to be secured and upon a review of the matter according to the principles of construction discussed above it appears that the provision with which we are here concerned is directory and although it does indicate a duty to consult the Panchayat before passing an order under the section it does not follow that every departure from that duty will taint the whole proceeding with a fatal blemish and render it void and ineffective. We find nothing in section 9 or the Act which would lead us to the conclusion that if the Government omits to consult the Panchayat concerned while taking action under sub­section (2) of section 9 the right of the Panchayat or any person would be adversely affected. There is also nothing in the Act to show that even after consultation the sense indicated by the Panchayat concerned would be binding on the Government. As admitted by the petitioner the Panchayat was consulted on the question of the formation of a separate Gram Panchayat for the village Ruun. The provision contained in sub­section (2) of section 9 has thus been substantially complied with. In our view the direction given in sub­section (2) of section 9 is directory and not mandatory and none of the contentions of Mr. Shastri can therefore prevail."

17. In the case of Naroda Nagar Panchayat, Ahmedabad Vs. State of Gujarat & Ors. (supra), the Honourable Supreme Court has observed in Paragraph­22 as under:

"22. The argument under this head of challenge was that the provision about consultation in sec. 9 (2) of the Panchayats Act is mandatory and that it was obligatory on the Government not only to consult the concerned panchayats before exercising the powers of exclusion of any area from within the limits of the respective Panchayats but also to have abided by the views Page 23 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT of the concerned Panchayat for consultation is equivalent to consent or concurrence. This submission cannot be accepted because it is concluded against the petitioners by the decision of the Division Bench of this Court in KALUBHAI V. STATE VI Guj.Law Reporter 451 It was there held that the provision as to consultation contained in sec. 9 (2) of the Act was directory in nature and that although it indicated a duty to consult the Panchayat before passing an order under that section it did not follow that every departure from that duty would taint the whole proceeding with a fatal blemish and render it void and ineffective. It was further observed that there was nothing in the Panchayats Act to show that even after consultation the sense indicated by the Panchayat concerned would be binding on the Government. We are in complete agreement with the aforesaid observations in Kalubhai's case. As pointed out in the said decision the provision about consultation has not been included as a safe­guard of a right of any person. Whatever rights if any that may be of having a local self­Government body or of membership of the Panchayat are the creation of the Statute which itself brings into existence a Panchayat and its electorate body and provides for its re­arrangement Such an action of reconstituting or rearranging the areas would not totally and for ever deprive the people of a local self­Government body or the right of the people to elect their representatives to a Panchayat. The word consultation cannot be equated with consent or concurrence as contended for by the petitioners. The two sets of expressions have clearly different meanings in comman parlance."

18. Keeping in view the aforesaid provisions of law as well as the decisions upon which reliance is placed by the learned advocates appearing for the parties, if the facts as discussed hereinabove are Page 24 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT examined, it is revealed that process of bifurcation of the Kadval Gram Panchayat was in fact initiated on 07.10.2014. The concerned Gram Panchayat passed a resolution, thereafter, the Taluka Panchayat passed a resolution and the District Panchayat, thereafter, passed resolution and sent the said resolutions along with the opinion to the concerned Development Commissioner. At the relevant time, the present petitioner was not Sarpanch. Now, in the meantime, fresh election was held on 27.12.2016 and the petitioner was appointed as Sarpanch. However, she was removed as Sarpanch by the concerned authority while exercising powers under Section 57 of the Act. On 23.05.2018, the Gram Sabha of Kadval Gram Panchayat once again passed a resolution for bifurcation of the said Gram Panchayat. Once again, Taluka Panchayat passed a resolution on 10.08.2018 and, thereafter, the Dahod District Panchayat in its general meeting passed a resolution on 03.11.2018. From the record placed before this Court, it is revealed that the said decision is taken in the larger public interest. There is sufficient material on record to show that while issuing the Notification for bifurcation of the Kadval Gram Panchayat, the State Government has taken into consideration all the relevant factors as well as the decision taken by the Gram Panchayat, Taluka Panchayat and District Panchayat for bifurcation of the said Gram Panchayat. Merely because resolution dated 23.05.2018 was passed by the concerned Gram Sambha in absence of the petitioner as she was removed from the post of Page 25 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019 C/SCA/3136/2019 JUDGMENT Sarpanch at the relevant point of time, does not mean that the process undertaken by the said Panchayat is not in accordance with law and it cannot be said that there is no consultation as envisaged in Section 7 of the Act. If the decision is taken in the interest of the public at large, the said decision can be said to be a decision in the nature of policy decision of the State Government and, therefore, since the policy decision to bifurcate the Gram Panchayat has been taken after taking into consideration all the relevant factors and after following due procedure, no interference is required in such type of decision while exercising jurisdiction under Article 226 of the Constitution of India. The petitioner has failed to point out that the said decision is arbitrary, irrational or perverse.

19. Thus, in the aforesaid facts and circumstances of the present case, this Court is not inclined to interfere with the impugned Notification dated 19.01.2019 issued by respondent No.1. The petition is, accordingly, dismissed. Rule is discharged. In view of the dismissal of the main petition, Civil Application does not survive and is disposed of, accordingly.

(VIPUL M. PANCHOLI, J) piyush Page 26 of 26 Downloaded on : Thu Oct 03 02:22:33 IST 2019