Punjab-Haryana High Court
Jarmal Singh vs State Of Punjab & Others on 19 December, 2018
Equivalent citations: AIRONLINE 2019 P AND H 1178
Bench: A.B. Chaudhari, Harnaresh Singh Gill
CWP No.21715 of 2018 (O&M) and other connected petitions -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on: 15.12.2018
Date of decision: December 19, 2018
CWP No.21715 of 2018 (O&M)
Jarmal Singh
......Petitioner
Versus
State of Punjab and others
....Respondents
CWP No.16641 of 2018 (O&M)
Gurdit Singh Sarpanch and another
......Petitioners
Versus
State of Punjab and others
....Respondents
CWP No.24181 of 2018 (O&M)
Kewal Singh
......Petitioner
Versus
State of Punjab and others
....Respondents
CWP No.27454 of 2018 (O&M)
Gurmeet Singh and others
......Petitioners
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE HARNARESH SINGH GILL
Present: Mr. N.P.S. Mann, Advocate for the petitioner(s)
(in CWP No.21715 of 2018 and CWP No.24181 of 2018).
Mr. B.S. Sidhu, Advocate for the petitioners
(in CWP No.16641 of 2018).
Mr. I.S. Dhaliwal, Advocate for the petitioners
(in CWP No.27454 of 2018).
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Mr. Gurpreet Singh, Advocate
for applicants No.6 to 9 (in CM No.18731-CWP of 2018).
Ms. Anu Pal, DAG Punjab.
Mr. Vivek Chauhan, Advocate for respondent No.7
(in CWP No.21715 of 2018).
Mr. B.S. Kathuria, Advocate for respondent No.7
(in CWP No.24181 of 2018).
Mr. Anupam Gupta, Senior Advocate (Amicus Curiae) with
Mr. Ashok Kumar, Advocate.
****
A.B. CHAUDHARI, J
By way of this common order, above said all four writ petitions are
being disposed of.
2. In these civil writ petitions, the challenge is to the actions of the
respondents-Government and the Director-cum-Special Secretary, Government
of Punjab, Department of Rural Development and Panchayats, Punjab in either
forming new Gram Panchayats or de-notifying/bifurcating new Gram
Panchayat in exercise of power under Section 3 of the Punjab Panchayati Raj
Act, 1994 (for short 'Act of 1994').
FACTS
3. The necessary facts in individual writ petitions are stated as
under:-
CWP No.21715 of 2018
a) Gram Panchayat, Village Valtoha, Sandhuan, District Tarn Taran
has been ordered to be divided by creation of Gram Panchayat of
village Adda Valtoha in addition by issuing notification dated
31.07.2018 (Annexure P-13) in exercise of power under Section 3
of the Act of 1994. In brief, the petitioner in this writ petition has
averred that the Panchayat Secretary Shri Satnam Singh, custodian
of the record of Gram Panchayt Valtoha Sandhuan mislead some
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of the members of the Gram Panchayat including the petitioner-
Sarpanch and obtained their signatures telling them that the
cheques were required to be issued urgently and keeping the space
vacant in the original proceeding book and thereafter, he filled in
the gaps in the proceeding book by showing resolution dated
18.08.2017 for bifurcation of Gram Panchayat Valtoha Sandhuan
into two and thus, he had committed fraud and inserted a forged
resolution as if it was passed by the Gram Panchayat. The fact is
corroborated as said resolution in the proceeding book is
completely silent about total population of both the villages, i.e.
the proposed which is carved out and also all other required
details. The petitioner having come to know about the mischief
approached the authority by various representations and also gave
a munadi in the village through the Chowkidar that the meeting of
the Gram Sabha would be held on 10.09.2017 so also a notice was
pasted outside Panchayat Ghar as the villagers did not agree for
division of Gram Panchayat Valtoha Sandhuan into two vide
meeting/notice dated 26.08.2017 (Annexure P-4) of the Gram
Sabha. Accordingly, Gram Sabha meeting was held on 10.09.2017
(Annexure P-5) attended and signed by 907 residents, i.e. the
majority of the residents who passed the resolution not to divide
the village Gram Panchayat into two and accordingly, request was
forwarded to the higher authorities. The said resolution dated
10.09.2017 of Gram Sabha was the last resolution which should
have been acted upon by the authorities. Since no response was
being given by the authorities, the petitioner approached this Court
and this Court directed the authority concerned to decide the
grievance made by the petitioner. Finally, order (Annexure P-12)
was passed by the Additional Deputy Commissioner (D) holding
that the petitioner and others were going back from the resolution
they had earlier passed on 18.08.2017 and therefore, the action of
division of Gram Panchayat Valtoha Sandhuan into two was
confirmed. This is that order which is under challenge in this writ
petition.
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CWP No.16641 of 2018
b) Gram Panchayat, Block Jaito, District Faridkot have been divided
by the impugned notification dated 06.06.2018 and corrigendum
dated 12.06.2018 (Annexure P-1) into Gram Panchayat Dabri
Khana Jiwan Singh Wala and Gram Panchayat Gobindgarh in
exercise of power under Section 3 of the Act of 1994. In the report
made by the Deputy Commissioner, Faridkot from BDPO Jaito, it
was stated that the Panchayats and the Sarpanch were not in
favour for creation of new Gram Panchayat/Sabha Dabri Khana
Jiwan Singh Wala and in fact, by resolution dated 20.10.2017
(Annexure P-6), Gram Panchayat, Gobindgarh had opposed the
creation of new Gram Sabha as it does not want any division. Few
villagers had, however, given application (Annexure P-7) along
with certificate (Annexure P-8) signed by 228 persons to BDPO,
Jaito, for separation of Gram Panchayat Dabri Khana Jiwan Singh
Wala. According to the petitioner, the abadi of Dabri Khana Jiwan
Singh Wala is at the distance of 35 feet away from the village
Gobindgarh and as such, there was no separate abadi and in fact,
whole village is a one unit. The creation of new Gram Panchayat is
contrary to the provisions of the Act of 1994 and instructions
issued by the Department and in the absence of separate abadi of
two Gram Sabhas. The instructions clearly show the required
population and that the abadi of the proposed Gram Panchayat
should be totally separate from the village, which is not the case in
question. The total population of village Gobindgarh is 2858 and
the voters are 2117. In other words, the total Gram Sabha members
are 2858 out of which 228 persons are of Gram Panchayat as
against the others opposing it. The petitioner has therefore, put to
challenge this impugned action.
CWP No.24181 of 2018
c) Gram Panchayat Dasuwal, Block Valtoha, District Tarn Taran was
divided into Gram Panchayat Dasuwal Nagar and Gram Panchayat
Dasuwal by notification dated 14.03.2018 (Annexure P-5). The
process to conduct the election after separation of Gram
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Panchayats as aforesaid has almost been completed and separate
voters have also been issued so also the wards have also been
formed. However, on 11.07.2018, respondent No.6-BDPO,
Valtoha (Annexure P-8) wrote a letter to the higher authorities that
an application dated 09.07.2018 signed by 150 to 200 persons was
received by him for de-notifying formation of new Gram
Panchayat Dasuwal Nagar out of Gram Panchayat Dasuwal and
accordingly, he recommended de-notification. Finally, without
hearing anybody, respondent No.2 on his own issued notification
dated 28.08.2018 (Annexure P-9) that is almost after 5 months
making de-notification. It is this action which is under challenge,
inter-alia on the ground that the impugned notification dated
28.08.2018 (Annexure P-9) is arbitrary and without knowledge
and consent of the villagers and without following any procedure
as such.
CWP No.27454 of 2018
d) Gram Panchayat, Bhagsar, Tehsil and District Sri Muktsar Sahib
which is large village having population of more than 7669, the
Gram Sabha decided that it should be divided into two with name
New Bhagsar Gram Panchayat and Bhagsar Gram Panchayat. The
petitioners submitted all the formalities of passing of resolution
etc. and the Deputy Commissioner concerned also recommended
the said proposal. However, when the notification in respect of
large number of Gram Panchayats in the State, namely 243 was
issued, it did not contain division of Bhagsar Gram Panchayat into
two, i.e. New Bhagsar Gram Panchayat and Bhagsar Gram
Panchayat. The petitioners, therefore, filed writ petition in this
Court for deciding representation that was already made making
the grievances. Vide order dated 25.07.2018 passed by this High
Court, it was directed to decide the representation by passing a
speaking order. Accordingly, on 27.08.2018, the representation
was rejected with an order, which is wholly illegal and arbitrary.
In the order dated 27.08.2018 (Annexure P-7), the order was
passed without hearing any of the concerned persons of the Gram
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Sabha/Gram Panchayat. The Special Secretary, Punjab
Government, Village Development and Panchayats Department
gave four reasons for rejection of the representation, which read
thus:-
(i) The proposal made by the Deputy Commissioner, Sri
Muktsar Sahib is not in accordance with provisions of
Section 3 of the Act of 1994;
(ii) The proposal is against the instructions dated 26.05.2017;
(iii) The proposal is not in the interest of public at large;
(iv) The physical distance of the proposed Gram Panchayat is
not clear which is the main condition for constitution of new
Gram Panchayat.
4. Replies by way of affidavits have been filed in the respective writ
petitions and are on record.
ARGUMENTS
5. When these writ petitions were called out for hearing, learned
State counsel raised preliminary objection to the maintainability of these writ
petitions on the ground that in the case of State of Punjab versus Tehal
Singh, 2002 (2) RCR (Civil) 1, decided by the Supreme Court (two judges
Bench), it was held that Sections 3 and 4 of the Act of 1994 are in legislative
character and in that case, no question of application of natural justice arises.
The legislation may provide observance of natural justice, but then that
depends on legislative wisdom and the provisions of an enactment. Sections 3
and 4 of the Act do not provide for any opportunity of hearing before any Gram
Panchayat is divided or any area is excluded or included and therefore,
notification issued under Sections 3 and 4 of the Act of 1994 cannot be held to
be bad.
In the light of the said preliminary objection raised by Ms. Anu
Pal, DAG Punjab, learned State counsel, it became necessary to deal with the
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said preliminary objection before proceeding further in the matters.
This Court requested Mr. Anupam Gupta, learned Senior counsel
to assist the Court as amicus curiae. He has been kind enough to assist this
Court by spending his valuable time with full gumption and gusto which we
admire.
6. Learned State counsel placed heavy reliance on the decision in
Tehal Singh's case (supra) and in particular Paras 4 and 5 thereof, which we
quote for convenience and thus, the same read thus:-
"4. Viewed in the light of the statement of law stated
hereinbefore, we find that the provisions of Sections 3 and 4 of the
Act which provide for declaring territorial area of a Gram Sabha
and establishing a Gram Sabha for that area do not concern with
the interest of an individual citizen or a particular resident of that
area. Declaration contemplated under Section 3 of the Act relates
to an area inhabited by the residents which is sought to be
excluded or included in a Gram Sabha. The declaration under
Section 3 of the Act by the Government is general in character and
not directed to a particular resident of that area. Further, the
declarations so made under Sections 3 and 4 of the Act do not
operate for the past transactions but for future situations. Under
the aforesaid situation, when declarations by issue of notifications
by the Government are made under Sections 3 and 4 of the Act
respectively, determining the territorial area of a Gram Sabha
and establishing a Gram Sabha for that area, such declarations
become operative at once. Once declarations are made under
Sections 3 and 4 of the Act respectively and thereafter a Gram
Panchayat is constituted under Section 10 of the Act, the entire
remaining provisions of the Act becomes operative...............
5. Once it is found that the power exercisable under Sections 3
and 4 of the Act respectively is legislative in character, the
question that arises is whether the State Government, while
exercising that power, the rule of natural justice is required to be
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observed ? It is almost settled law that an act legislative in
character - primary or subordinate, is not subjected to rule of
natural justice. In case of legislative act of legislature, no question
of application of rule of natural justice arises. However, in case of
subordinate legislation, the legislature may provide for
observance of principle of natural justice or provide for hearing
to the resident of the area before making any declaration in
regard to the territorial area of a Gram Sabha and also before
establishing a Gram Sabha for that area. We have come across
many enactments where an opportunity of hearing has been
provided for before any area is excluded from one Gram Sabha
and included it in different Gram Sabhas or a local authority.
However, it depends upon the legislative wisdom and the
provisions of an enactment. Where the legislature has provided
for giving an opportunity of hearing before excluding an area
from a Gram Sabha and including it in another local authority or
body, an opportunity of hearing is sine qua non and failure to give
such opportunity of hearing to the residents would render the
declaration invalid. But where the legislature in its wisdom has
not chosen to provide for only opportunity of hearing or
observance of principles of natural justice before issue of a
declaration either under Section 3 or Section 4 of the Act, the
residents of the area cannot insist for giving an opportunity of
hearing before the area where they are residing is included in
another Gram Sabha or local authority. In Rameshchandra
Kachardas Porwal and others v. State of Maharashtra (supra),
this court held as thus :
"In one of the Bihar cases it was further submitted that
when a market yard was disestablished at one place and
established at another place, it was the duty of the
concerned authority to invite and hear objections. Failure
to do so was a violation of the yard at one place and
establishing it elsewhere was therefore bad. It was
objections before a "market area" was declared under the
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Act, so should objection be invited and heard before a
"market yard' was established at any particular place. The
principles of natural justice demanded it. We are unable to
agree. We are here not concerned with the exercise of a
judicial or quasi-judicial function where the very nature of
the function involves the application of the rules of natural
justice, or of an administrative function affecting the rights
of persons wherefore, a duty to act fairly. We are concerned
with legislative activity; we are concerned with the making
of a legislative instrument, the declaration by notification of
the Government that a certain place shall be a principal
market yard for a market area, upon which declaration
certain statutory provisions at once spring into action and
certain consequences prescribed by statute follow forthwith.
The making of the declaration, in the context, is certainly an
act legislative in character and does not oblige the
observance of the rules of natural justice."
In the present case, the provisions of the Act do not provide for
any opportunity of hearing to the residence before any area
falling under a particular Gram Sabha is excluded and included
in another Gram Sabha. In the absence of such a provision, the
residents of that area which has been excluded and included in a
different Gram Sabha cannot make a complaint regarding denial
of opportunity of hearing before issue of declarations under
Sections 3 and 4 of the Act respectively. However, the position
would be different where a house of a particular resident of an
area is sought to be excluded from the existing Gram Sabha and
included it in another Gram Sabha. There the action of the
Government being directed against an individual, the Government
is required to observe principles of natural justice. For the
aforesaid reasons, we are of the view that no opportunity of
hearing was required to be given before making declarations
either under Section 3 or Section 4 of the Act by the Government."
7. Learned counsel for one of the petitioners also placed before us
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decision of a Division Bench of this Court in the case of Gram Panchayat
Panj Garaian versus State of Punjab and otehrs, in CWP No.3976 of 2008,
decided on 14.05.2008, in which the decision in Tehal Singh's case (supra)
has been referred.
8. Ms. Anu Pal, DAG Punjab also cited decisions in the cases of
State of U.P. and others versus Pradhan Sangh Kshettra Samiti and
others, 1995 Supp (2) SCC 305, M/s Mangalam Organics Ltd. versus Union
of India, 2017 (3) Recent Apex Judgments (R.A.J.) 369.
9. Mr. Anupam Gupta, learned Senior Advocate (Amicus curiae)
submitted as under:-
(i) It is true that by virtue of 73rd amendment to the Constitution of
India, Panchayat Raj amendment was brought into the constitution
and thus, Panchayats and Municipal Committees were given the
constitutional status. Commenting on Sections 3 and 4 of the Act
of 1994, he submitted that it would make no difference due to the
said constitutional amendment, Sections 3 and 4 of the Act of
1994 could be interpreted in any different manner. He submitted
that, though, it is true that in Tehal Singh's case (supra), no
reference has been made to the said 73rd amendment giving
Panchayats the constitutional status. The principals of
transparency and openness in governance which have been
propounded by the Supreme Court at a later point of time will
have to be kept in mind while interpreting to Sections 3 and 4 of
the Act of 1994. The larger bench decision of the Apex Court, in
fact, support the said view;
It has been contended that creation of Sections 3 and 4 of
the Act of 1994 itself undoubtedly is a legislative Act. However,
implementation of Sections 3 and 4 of the Act of 1994 by issuing
notifications can, by no stretch of imagination, be said to be the
act of legislature and that is the point that arises in these writ
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petitions;
(ii) In support of his propositions on the aforesaid legal question, Mr.
Anupam Gupta, learned Senior Advocate has cited several
decisions and the gist thereof would be cited by us in the present
judgment;
10. It was argued by the learned counsel for the petitioners in these
writ petitions that in the Gram Panchayat Panj Garaian's case (supra), this
Court considered the judgment in Tehal Singh's case (supra) and found in that
case itself, the Apex Court had taken precaution to consider the physical
location of the various arrears, which was being formed into a new Gram
Sabha. In that case, the map was seen and it was found that there was a colony
which was partly contiguous to one village and came to the conclusion that
there was sufficient compliance of the provisions of Sections 3(2) of the Act of
1994. It was pointed out to us that this Court still interfered in the said petition
and ordered reconsideration for the reasons given therein.
11. In reply, the learned State counsel vehemently opposed the writ
petitions and submitted that the High Court would not be in a position to issue
directions to the Government to carry out the division or amalgamation or de-
notification of Gram Panchayats in a particular manner as it was not within the
domain of the Court to legislate. Learned State counsel, therefore, prayed for
dismissal of these writ petitions.
CONSIDERATION
12. We have heard learned counsel for the rival parties at length so
also the preliminary objection raised by the learned State counsel.
13. In the case of Smt. Indira Nehru Gandhi versus Shri Raj
Narain, AIR 1975 SC 2299, interpreting the constitutional provisions, Mathew
J., in so far as the relevant aspect in the present case is concerned, stated thus:-
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"278. According to the historic analysis, the essence of the
distinction between legislative power and judicial power is that
the legislature makes new law which becomes binding on all
persons over whom the legislature, exercises legislative power;
the judicature applies already existing law in the resolution of
disputes between particular parties and Judges may not deviate
from this duty. This view of the distinction between the obligation
to apply and enforce rules and a discretion to modify rules or
make new rules was at one time applied uncompromisingly in
describing functions as legislative or judicial. Thus, De Lolme
said that courts of equity as then existing in England had a
legislative function. They are, he said, a kind of inferior
experimental legislature, continually employed in finding out and
providing law remedies for those new species of cases for which
neither the courts of common law, nor the legislature have as yet
found it convenient or practicable to establish any.3 Though this
would show that neither for logic nor in language has the
boundary between legislation and adjudication ever been rigidly
and clearly drawn, the distinction between the two is well
established.
.............
284. ............... A despotic decision without ascertaining the facts
of a case and applying the law to them, though dressed in the garb
of law, is like a bill of attainder. It is a legislative judgment.
.............
291. A statute is a general rule. A resolution by the legislature that
a town shall pay one hundred dollars to Timothy Coggan is not a
statute, John Chipman Gray : Nature and Source of Law, p. 161.
.............
327. A sovereign in any system of civilised jurisprudence is not
like an oriental despot who can do anything he likes, in any
manner he likes and at any time he likes. That the Nizam of
Hyderabad had legislative, judicial and executive powers and
could exercise any one of them by a firman has no relevance when
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we are considering how a pro-sovereign - the holder of the
amending power - in a country governed by a constitution should
function. ............."
14. In so far as the transparency and openness in governance is
concerned, the Apex Court in the case of Cellular Operators Association of
India and others versus Telecom Regulatory Authority of India and
others, (2016) 7 SCC 703 stated thus:-
"82. In fact, a judgment of the Court of Appeal in England, being
R v. North and East Devon Health Authority, ex p Coughlan, puts
the meaning of "consultation" rather well as follows:-
"It is common ground that, whether or not consultation of
interested parties and the public is a legal requirement, if it
is embarked upon it must be carried out properly. To be
proper, consultation must be undertaken at a time when
proposals are still at a formative stage; it must include
sufficient reasons for particular proposals to allow those
consulted to give intelligent consideration and an intelligent
response; adequate time must be given for this purpose; and
the product of consultation must be conscientiously taken
into account when the ultimate decision is taken....
(emphasis supplied)
................
86. The question of transparency raises a more fundamental
question, namely, that of openness in governance. We find that the
Right to Information Act of 2005 has gone a long way to
strengthen democracy by requiring that the Government be
transparent in its actions, so that an informed citizenry is able
then to contain corruption, and hold Governments and their
instrumentalities accountable to the people of India. ............"
(emphasis supplied)
..........
89. In another context also this Court has emphasized the
importance of openness of governance. In Global Energy Ltd. v.
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Central Electricity Regulatory Commission, this Court stated:
(SCC p. 589, para 71)
"The law sometimes can be written in such a subjective
manner that it affects the efficiency and transparent function of
the Government. If the statute provides for pointless discretion to
agency, it is in essence demolishing the accountability strand
within the administrative process as the agency is not under
obligation from an objective norm, which can enforce
accountability in decision-making process. All law-making, be it
in the context of delegated legislation or primary legislation, has
to conform to the fundamental tenets of transparency and
openness on one hand and responsiveness and accountability on
the other. These are fundamental tenets flowing from due process
requirement under Article 21, equal protection clause embodied in
Article 14 and fundamental freedoms clause ingrained under
Article 19. A modern deliberative democracy cannot function
without these attributes." (emphasis
supplied)"
15. In the said decision, finally, vide Para-92, the Apex Court exhorted
the parliament to take up the issue in respect of transparency in supporting
legislation:-
"92. We find that, subject to certain well defined exceptions, it
would be a healthy functioning of our democracy if all
subordinate legislation were to be "transparent" in the manner
pointed out above. Since it is beyond the scope of this judgment to
deal with subordinate legislation generally, and in particular with
statutes which provide for rule making and regulation making
without any added requirement of transparency, we would exhort
Parliament to take up this issue and frame a legislation along the
lines of the U.S. Administrative Procedure Act (with certain well
defined exceptions) by which all subordinate legislation is subject
to a transparent process by which due consultations with all
stakeholders are held, and the rule or regulation making power is
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exercised after due consideration of all stakeholders' submissions,
together with an explanatory memorandum which broadly takes
into account what they have said and the reasons for agreeing or
disagreeing with them. Not only would such legislation reduce
arbitrariness in subordinate legislation making, but it would also
conduce to openness in governance. It would also ensure the
redressal, partial or otherwise, of grievances of the concerned
stakeholders prior to the making of subordinate legislation. This
would obviate, in many cases, the need for persons to approach
courts to strike down subordinate legislation on the ground of
such legislation being manifestly arbitrary or unreasonable."
14. The last judgment which we are referring is on the U.P. Panchayat
Raj (Amendment) Act, 1994 that was brought into force. We think the
judgment in the State of U.P. and others' case (supra) and in particular the
concluding para thereof, namely Para-52, is essentially required to be seen. We
quote Para-52 of the same, which reads thus:-
"52. We are, therefore, more than satisfied that there were no mala fide
intentions on the part of the State Government in giving the short time
for submitting the objections and for hearing and disposing them of. We
may, however, make it clear that although, as pointed out earlier, the
challenge to the delimitation of the panchayat areas on the said grounds
could not have been made in the present case after the election
notification was issued, the State Government should bear it in mind that
if and when the next regrouping of the villages and redetermination of
the panchayat areas is undertaken, the authorities will have to give
sufficient opportunity to the people of the areas concerned for raising
the objections. This is with a view to remove their grievances,if any, with
regard to the difficulties, inconveniences and hardships, likely neglect of
their interests, domination of certain sections and forces, remoteness of
the seat of administration, want of proper transport and communication
facilities etc. The opportunity will also provide an occasion for the
people to come forward with suggestions for better and more viable,
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compact and cohesive regrouping of the villages for efficient
administration and economic development. The objections are not to be
invited to enable the people to exercise the sort of a right of self-
determination which is sought to be spelt out by the High Court. The
final decision with regard to the delimitation of the panchayat areas,
after hearing the objections and suggestions, will, of course, be that of
the State Government acting through Director."
15. We have carefully seen the clarification that the challenge to the
objections, panchayati areas could not have been made after the election
notification was issued. The present petitions were, however, filed much before
the election notification came to be issued on 05.12.2018 and therefore, we
think, we will be entitled to entertain these petitions. A careful look at the
aforesaid Para-52 in the State of U.P. and others' case (supra) clearly shows
that the Apex Court has asked the authorities to give sufficient opportunity to
the people of the areas concerned for raising objections to remove their
grievances. The aforesaid direction by the Apex Court is binding on the
respondents. But what we find is that the orders made are not based on the
required criteria or the relevant considerations or in some cases, no hearing
took place. In the light of the various principles of law shown to us by Mr.
Anupam Gupta, the learned Senior Advocate, we are inclined to hold that
implementation of Section 3 of the Act of 1994 by issuing notifications as to
the decision/amalgamation of the Gram Panchayat is not a legislative act or
legislative function and is rather a quasi-judicial function attracting the
principles of natural justice, openness in governance and transparency. In this
context, the aforesaid Para-52 has apt application. To sum up, in the light of the
above law that is discussed above, we overrule the preliminary objection raised
by the learned State counsel and proceed to determine the petitions on their
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own merits.
CWP No.21715 of 2018
16. Upon perusal of the impugned order (Annexure P-12) passed by
the Additional Deputy Commissioner (D) Tarn Taran, we find that the authority
has not found out whether any notice/munadi has been made for holding
alleged meeting dated 18.08.2017 which is in serious dispute for the division of
Gram Panchayat into two. It is further seen that the Panchayat Secretary
admitted that he had left some space for filling up at a later point of time.
Prima-facie, it appears that the grievance made by the petitioner about the fake
resolution appears to be correct. But then a thorough inquiry is necessary by
the authority which it failed to make. On the contrary, the resolution was
passed by the Gram Sabha (not Gram Panchayat) at a later point of time on
10.09.2017 which was preceded by munadi in the village so also the notice in
the Gram Panchayat Ghar. Obviously subsequent resolution dated 10.09.2017
was required to be considered by the authority in the correct perspective. In our
opinion, therefore, the authority is required to reconsider the issue by making
proper inquiry in the matter as no meeting of Gram Sabha can be held without
issuing notice/munadi in the village and making the Gram Sabha members
aware about any such meeting on such important subject of division of Gram
Panchayat. Hence, the issue is required to be reconsidered.
CWP No.16641 of 2018
17. In the reply by way of affidavit of Jaskiran Singh, Director,
Department of Rural Development and Panchayats, it is stated that more than
250 inhabitants of village Gobindgarh submitted representation before
respondent No.5 for establishing the separate new Panchayat Dabri Khana
Jiwan Singh Wala. In the entire reply, there is no consideration whatsoever to
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the plea of the petitioners that the Gram Panchayat passed resolution dated
20.10.2017 (Annexure P-6) opposing proposal to divide Gram Panchayat into
two. The fact that abadi for the separate Gram Panchayat proposed to be
created should be totally separate from the village is not at all considered by
the authority as can be seen from the omission in reply. On the contrary, the
distance is said to be only 100 meters as against the claim of the petitioners that
it is only 35 feet. But there is no reply to the said aspect of the matter. We are
of the opinion that the issue requires reconsideration.
CWP No.24181 of 2018
18. Respondent No.2 had issued notification on 14.03.2018 (Annexure
P-5) dividing Gram Panchayat, Dasuwal Nagar and Gram Panchayat, Dasuwal.
It appears that thereafter, on 09.07.2018, 150 to 200 persons requested the
division of said Gram Panchayat and accordingly, without knowing the views
of the Gram Sabha or the aggrieved persons, on 28.08.2018 (Annexure P-9) de-
notification was issued. The grievance made by the petitioner is that the
distance between two proposed Gram Panchayat is 2 kilometers and the Gram
Sabha meeting was also held preceding notification dated 14.03.2018 when
division was affected. No reason has been given as to why de-notification was
made when the election process was already separated and the wards, voters
list etc. were also separated. We have perused the reply by way of affidavit of
respondent No.6-Lal Singh, Block Development and Panchayat Officer,
Valtoha, District Tarn Taran. It is not in dispute that while de-notifying the
view of Gram Sabha concerned was not taken into consideration by the
competent authority. The only answer that is given that as there was
recommendation dated 11.07.2018 (Annexure P-8), the de-notification was
made. The affidavit in reply mainly is in the form of preliminary objection
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already dealt with by us. In other words, there is no consideration whatsoever
in respect of the grievance made in the petition. Hence, in our opinion, this
issue requires reconsideration.
CWP No.27454 of 2018
19. The grievance of the petitioners is that, though, the village
Bhagsar is a large village having population of more than 7699 villagers of
Gram Sabha and proposal was recommended by the Deputy Commissioner, Sri
Muktsar Sahib for division of Gram Panchayat Bhagsar in the New Gram
Panchayat Bhagsar and Gram Panchayat Bhagsar and representation was given,
the same has been rejected by order dated 27.08.2018 (Annexure P-7). We have
perused the said order dated 27.08.2018 passed by respondent No.2. We have
already quoted four reasons given by the said authority for rejection. None of
the reasons given by respondent No.2 are germane and are as vague as they
could be. In so far as reasons No.1 and 2 are concerned, there is no mention as
to what was not done in accordance with the provisions of Section 3 of the Act
of 1994 and instructions. Reason No.3 is again vague. Reason No.4 is 'what is
the physical distance between both Gram Panchayats is not clear'. In our
opinion, it was the duty of the authority to find out the physical distance rather
than saying that the same is not clear. We thus, find that all the reasons given in
the impugned order are no reasons in the eye of law. Hence, this matter also
requires consideration.
The Supreme Court has applied the 'Wednesbury principles of
unreasonableness' in India. In the light of factual aspects briefly dealt by us as
above, we think the said principles will have application in these matters. On
the of the three test is that the decision is so unreasonable that no reasonable
authority/person could have decided that way.
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20. In CM No.18731-CWP of 2018 in CWP No.16641 of 2018,
prayer has been made for impleadment of some parties/addition of parties.
Since we are sending all these matters for reconsideration to the authorities
concerned after hearing the claims of all the rival parties and by passing
speaking order, we think applicants herein who want to join the
proceedings/issue, can join before the appropriate authority.
21. In the result, we make the following order:-
ORDER
(i) CWP No.21715 of 2018, CWP No.16641 of 2018, CWP No.24181 of 2018 and CWP No.27454 of 2018 are partly allowed;
(ii) CM No.18731-CWP of 2018 in CWP No.16641 of 2018 is disposed of. Applicants in this application are allowed to join the proceedings/issue before the appropriate authority;
(iii) The State Government/concerned authorities shall reconsider the issues, which are the subject matter of the above writ petitions afresh by giving opportunities to all the rival parties and thereafter, pass speaking order on or before 29.12.2018;
(iv) No order as to costs.
(A.B. CHAUDHARI)
JUDGE
(HARNARESH SINGH GILL)
JUDGE
December 19, 2018
mahavir
Whether speaking/ reasoned: Yes Whether Reportable: Yes 20 of 20 ::: Downloaded on - 26-12-2018 22:39:55 :::