Gujarat High Court
Matarwadi Gram Panchayat & 8 vs State Of Gujarat & 7 on 26 August, 2015
Bench: Jayant Patel, N.V.Anjaria
C/LPA/1077/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1077 of 2015
In
SPECIAL CIVIL APPLICATION NO. 8877 of 2015
With
LETTERS PATENT APPEAL NO. 1078 of 2015
In
SPECIAL CIVIL APPLICATION NO. 8881 of 2015
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MATARWADI GRAM PANCHAYAT & 8....Appellant(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MS SNEHA A JOSHI, ADVOCATE for the Appellant(s) No. 1 9
MR SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 7
NOTICE SERVED BY DS for the Respondent(s) No. 4 5 , 8
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 26/08/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)
1. The present appeals are directed against the judgment and order dated 25.06.2015 passed by the learned Single Judge so far as they relate to Special Civil Applications No. 8877/15 and 8881/15, whereby the learned Single Judge, for the reasons recorded in the order, has dismissed the petitions.
2. We have heard Mr.Asim Pandya, learned counsel with Ms. Sneha Joshi for the appellants, Ms.Manisha Shah, learned Govt. Pleader for the State and its officers and Mr. Siddharth Dave for Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER respondent no.7 Patan Municipality.
3. Mr.Pandya, learned counsel for the appellants at the outset submitted that though the appellants have raised ground A in the memo of the appeals for nonavailability of of the opportunity to peruse the file, which was considered by the learned Single Judge, he is not pressing the said ground and he states that the appellants may be permitted to delete ground A in the memo of the appeals.
4. Considering the facts and circumstances, permission granted. The said ground A shall stand deleted.
5. The learned counsel for the appellants raised the first contention that the consultative process got exhausted once the first notification was issued, whereby only area of certain villages barring the appellants were included in the limits of Patan Municipality. In his submission, thereafter, if other villages were to be included in the Patan Municipality, fresh consultative process was required. In support of his contention, he relied upon the Full Bench decision of this Court in the case of Pruthvisinh Amarsinh Chauhan vs. K.D. Rawat reported at 2005(4) GLR 2932.
6. Mr.Pandya next contended that the exercise of the power of issuance of notification is under Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER Article 243P(d) by the Governor, but in his submission, Article 243P(d) would have no applicability but Article 243Q would apply. In his submission, as there is no exercise of the power under Article 243Q of the Constitution, the exercise of the power and issuance of the notification under section 243P(d) cannot validly stand. As per Mr.Pandya, in any case, even if the powers were to be exercised under Article 243P(d), then consideration of the objections raised by the appellant gram panchayat was must. Even if it is treated as legislative function for inclusion of areas of gram panchayat in the municipality, then also, unless objections filed were disposed of, the power could not be exercised and if there is no consideration of the said objections, the exercise of the power would be vitiated and hence, the action can be said as bad in law. In support of his contention, he relied upon the decision of the Apex Court in the case of Baldev Singh & Ors. vs. State of Himachal Pradesh and Ors. reported at AIR 1987 SC 1239.
7. Whereas, on behalf of the State Government and its officers as well as on behalf of the Patan Municipality, the learned Government Pleader and Mr. Siddharth Dave, learned counsel, submitted that after the intention was declared, the objections were invited from various gram panchayats whose village areas were to be included in the Patan Municipality. So far as Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER other gram panchayats are concerned, they did not object, but those gram panchayats who objected including both the appellants and original petitioners of Special Civil Application No.8857/15 viz. Ramnagar, Hansapur and Matarwadi gram panchayats, the decision was kept in abeyance. Initially notification was published for inclusion of the areas of the respective villages for which the gram panchayat did not object. But as per the learned Govt. Pleader, the consultative process had continued, and the objections at the later stage were considered and thereafter, the decision was taken to include the aforesaid three villages by further notification. In her submission, the impugned notification is in furtherance to and by way of modification of the earlier notification by which the areas of various villages were included who did not object. It was submitted that the exercise of the power was a legislative power under Article 243P(d) of the Constitution and whenever legislative function was to be discharged by the State or the Government, the objections are only required to be considered, but there is no question of any individual hearing or disposal of the objections as if any decision is to be rendered in a matter of lis or dispute between the parties. It was submitted that the State Government, which is the competent authority, after considering all the objections, has taken decision and therefore, the view taken by the Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER learned Single Judge may not be interfered with by this Court in the present appeals.
8. Before we proceed to consider the contention raised on behalf of the appellants, we may record that during the course of hearing, on behalf of the State Government, the original file was also made available to the Court for perusal. The original file does show that the objections of the aforesaid three gram panchayats were taken into consideration before the final decision was taken for inclusion of the area into Patan Municipality. After we considered the file and having found the said material, when we had permitted the learned counsel Mr. Asim Pandya to peruse the said record, but he instead of considering the record and making submission, contended that he should be supplied xerox copies of the noting of the State Government and thereafter only he will be able to respond.
9. We are unable to appreciate the approach for the simple reason that the affidavitinreply in the present appeals have been filed by the Under Secretary of the State Government dated 31.07.2015, wherein it has been stated that the objections were considered and the decision is taken. No rejoinder has been filed on behalf of the appellants. When during the course of the hearing and that too at the end of the hearing in furtherance to the affidavitinreply, if any Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER material is made available to the Court for perusal, such can be considered and responded to it. But merely because the material reflected in the file, we do not find that the hearing should be deferred, more particularly when we have already invested about 1½ hours for hearing of the matter and therefore, we have preferred to proceed on the basis of the material on record in the proceedings of LPA apart from the original record of the file.
10. We do not find that the first contention raised on the aspect of consultative process is with merit. In a case where the consultative process under section 7 of the Gujarat Panchayats Act has been initiated, for inclusion of any village in the municipality or for alteration of any limits of the village, both or any of them for a single gram panchayat and the decision is taken, it would stand on different footing and different consideration in contradistinction to a case where the number of villages are to be included in the municipality. For example, if 10 villages are to be included in municipality out of which the powers were exercised for inclusion of 5 villages which did not object for inclusion of the area and the notification was published and in respect of other 5 villages which objected for inclusion, the decision is deferred or kept in abeyance, it cannot be said that the consultative process was exhausted and the State would become Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER functus officio thereafter or that it would require initiation of fresh consultative process as sought to be canvassed. The decision upon which the reliance has been placed in the case of Pruthvisinh Amarsinh Chauhan (supra) is of no help to the appellants for the simple reason that in the case before the Full Bench, it was a matter of consultative process already undertaken for a single gram panchayat, i.e., Veda Gram Panchayat, and was not a case for inclusion of number of grams/villages represented through various gram panchayats. In any case, even in the said decision, the consultative process as per section 7(2) of the Panchayats Act is held to be directory and not to be mandatory. Under the circumstances, we find that the said contention should fail.
11. The next contention raised by the learned counsel for the appellants that Article 243Q of the Constitution would apply for inclusion of the area of village to be declared as a part of the municipality, in our view is not on the sound premise and rather could be said as misconceived. Be it noted that it was not a case where the municipality was to be constituted for the first time by exercise of the power by the Governor, but it was a case for declaring a particular area as the municipal area though may be such area earlier was a part of panchayat area. Article 243P(d) of the Constitution reads as under:
Page 7 of 10HC-NIC Page 7 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER "Municipal area" means the territorial area of a Municipality as is notified by the Governor"
12. Therefore, if any area is to be declared as the municipal area, which may fall within the limits on any municipality, Article 243P(d) would be attracted. Further, the action for notifying the area as municipal area by the Governor appears to be a legislative power to be exercised by the Governor. Once the action is a legislative function, at the most, it may require consideration of objections or inviting views from the persons affected. In the present case, after the declaration of the intention to include the area of villages into the municipal area, the objections/comments were invited. It is not the case of the appellants that the objections/comments were not invited. Thereafter, the views were received by the Government and such objections/comments were considered. After consideration thereof, the notification has been issued in exercise of the power under Article 243 P(d) of the Constitution. In our view, Article 243Q of the Constitution would have no applicability in the present case inasmuch as there was no question of any area of nagar panchayat to be declared as transitional area since the gram panchayat very much existed in the area of respective villages nor there was any question of constitution of any municipality for Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER the first time. It is an admitted position that the Patan Municipality did exist for its municipal area as prevailing then. Therefore, when Article 243Q has no applicability, the contention raised cannot be accepted.
13. On the aspects of consideration of the objections by the competent authority before taking final decision, the learned Single Judge has considered and during the course of hearing, we have also considered the original file, which shows that the objections raised for Matarwadi, Hansapur and Ramnagar gram panchayats were considered and thereafter, the decision was taken. Therefore, we do not find that there is any breach of mandatory provisions as sought to be canvassed. We may also record that whenever legislative function is to be undertaken by the competent authority, inviting of views and/or objections may be the requirement, but once the objections are considered, the matter should end there and there is no question of decision to be rendered upon which objections or any hearing to be given to the objector before the exercise of the power. Even if the principles observed by the Apex Court is considered in case of Baldev Singh (supra) the position of law would remain the same. Hence, the said decision is of no help to appellants.
14. In view of the above read with the reasons Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Sep 01 00:21:01 IST 2015 C/LPA/1077/2015 ORDER recorded by the learned Single Judge, we do not find that any case is made out for interference. Hence, both the appeals are meritless and therefore, dismissed.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) bjoy Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Sep 01 00:21:01 IST 2015