Rajasthan High Court - Jodhpur
Champa Lal vs State & Ors on 12 September, 2016
Bench: Goving Mathur, Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:JUDGMENT:
D.B.CIVIL SPECIAL APPEAL NO. 667/2016
IN
S.B.CIVIL WRIT PETITION NO. 8694/2016
Appellant:
Champa Lal s/o Late Shri Prabhu Lal, aged about 74
years, R/o village & Post Napasar, Tehsil & District
Bikaner, Rajasthan.
(At present Sarpanch of Gram Panchayat Napasar,
Panchayat Samiti (Block) Bikaner, District Bikaner,
Rajasthan.)
Versus
Respondents:
1. State of Rajasthan through the Chief Secretary,
Government of Rajasthan, Jaipur. Rajasthan.
2. The Principal Secretary, Local Self Department,
Jaipur, Rajasthan.
3. The Principal Secretary, Rural Development &
Panchayati Raj Department, Jaipur, Rajasthan.
4. The Director & Special Secretary, Local Self
Department, Jaipur, Rajasthan.
5. The District Collector, Bikaner, Rajasthan.
DATE OF JUDGMENT : 12th September, 2016
PRESENT
HON'BLE MR.JUSTICE GOVING MATHUR
HON'BLE MR.JUSTICE ARUN BHANSALI
Mr. Kuldeep Mathur, for the appellant.
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BY THE COURT:
This appeal is directed against order dated 3/8/2016 passed by the learned Single Judge, whereby, the writ petition filed by the appellant has been rejected.
The petition was filed inter alia challenging the Notification dated 2/6/2016 (Annex.10) declaring the Gram Panchayat, Napasar to become Nagar Palika, Napasar; a direction was sought that the position as it existed prior to issuance of the Notification dated 2/6/2016 be restored and to allow the petitioner to act as a Sarpanch until the last day of tenure on the post of Sarpanch.
Learned Single Judge noticed that the State Government vide Notification dated 6/10/2008 declared the Gram Panchayat, Napasar as Nagar Palika, Napasar while exercising the powers under Section 3 of the Rajasthan Municipalities Act, 2009 ('the Act of 2009'), however, later on, the said Notification was withdrawn by another Notification dated 18/9/2009; the action of the State Government of issuance of Notification dated 18/9/2009 was challenged in D.B.Civil Writ Petition No. 10491/2009 3/7 and the Division Bench vide its judgment dated 13/5/2015 quashed the Notification dated 18/9/2009 and directed the State Government to take consequential steps.
The learned Single Judge came to the conclusion that the Notification dated 2/6/2016 was issued pursuant to the judgment dated 13/5/2015 and another Notification dated 16/6/2016 is a consequential step required to be taken by the State Government for the constitution of Nagar Palika, Napasar; the term of office bearers of the Gram Panchayat, Napasar came to an end automatically with the constitution of Nagar Palika as the area of Gram Panchayat, Napasar has seized to be a rural area and that Section 101 of the Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') provides that if a Panchayat Circle seized to be a rural area, the Panchayat shall stand dissolved and members of that Panchayat shall stand removed; the controversy regarding constitution of Nagar Palika, Napasar has been set at rest by the Division Bench, therefore, the challenge by the petitioner to the Notification issued in pursuance of the directions was not sustainable and consequently 4/7 dismissed the writ petition in limine.
It is submitted by the learned counsel for the appellant with reference to Article 243E of the Constitution of India that the duration of the Panchayat has been fixed for five years from the date appointed for its first meeting and as the present Gram Panchayat was constituted in January, 2015 only, the respondents by Notification dated 2/6/2016 (Annex.10) could not restrict the term of office of the appellant for a period of six months.
It was also submitted that the appellant is entitled to hold the office for full tenure of five years. It was sought to be emphasized that during the pendency of the writ petition before the Division bench, when the elections were being held for Gram Panchayat, Napasar, a stay application was filed, which was rejected by the Division Bench, which necessarily means that the elected Gram Panchayat was to complete its term consequent to its election and, therefore, the orders passed by the respondents dated 2/6/2016, 16/6/2016 and the judgment of the learned Single Judge deserve to be set aside.
We have considered the submissions made by the 5/7 learned counsel for the appellant and have perused the material available on record.
From a bare perusal of the judgment of Division Bench, wherein, the withdrawal of Notification dated 6/10/2008 declaring the Gram Panchayat, Napasar as Nagar Palika, Napasar by Notification dated 18/9/2009 was questioned, reveals that the Division Bench after taking into consideration all the issues pertaining to declaration of Gram Panchayat as Municipality Class IV held that the Notification dated 18/9/2009 could not be sustained in law and consequently quashed the same. The State Government was directed to take consequential steps. The effect of quashing the Notification dated 18/9/2009 by judgment dated 13/5/2015 by the Division Bench has been that the Notification dated 6/10/2008 declaring the Gram Panchayat, Napasar as Municipality sprang up and the consequences thereto, which may have been suspended/arrested on account of Notification dated 18/9/2009 were to follow.
The provisions of Section 3 of the Act of 2009, which deals with delimitation of Municipalities, including declaration of local area as Municipality, 6/7 provides that the election of the members for the local area shall be held within a period of six months from the appointed day and sub-section 8(c) of Section 3 provides that until elections are held, the Sarpanch/Up- Sarpanch and the Panch or Panchas representing the area declared as a Municipality shall be deemed to be the Chairperson, Vice-Chairperson and the members of the Municipality declared for such area.
In view of the specific stipulation in the Act of 2009, the Chairperson and Vice-Chairperson & Panchas of Gram Panchayat, Napasar could only remain Chairperson, Vice-Chairperson and members of the Municipality for a period of six months only, which has been stipulated in the Notification dated 2/6/2016 (Annex.10).
Besides the above, in view of provisions of Section 101(2)(d) of the Act of 1994, as noticed by the learned Single Judge, the Panchayat irrespective of its tenure would stand dissolved and, therefore, the appellant cannot claim any right to continue in office till the completion of the tenure based on the elections held in January, 2015.
The provision of Article 243E starts with qualifying 7/7 words 'unless sooner dissolved under any law for the time being in force' the Panchayat shall continue for five years. The provisions of Section 3(1)(a)(i) and 3 (8)(c) of the Act of 2009 and Section 101(2)(d) of the Act of 1994, clearly provide for a sooner dissolution of the Panchayat on conversion of Gram Panchayat into a Municipality and, therefore, it cannot be said that in view of the provisions of Article 243E the Gram Panchayat is required to complete its term irrespective of its conversion to Municipality.
So far as the submission regarding dismissal of stay petition qua the election held in January 2015 of Gram Panchayat is concerned, the same by itself would have no implication on the consequences of final order passed by the Division Bench, whereby, the writ petition has been allowed.
In view of the above discussion, the judgment of learned Single Judge does not call for any interference. There is no substance in the appeal, the same is, therefore, dismissed.
(ARUN BHANSALI), J. (GOVIND MATHUR), J. item no. 17 baweja/-