CWP No.3492 of 1999 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. (1) Civil Writ Petition No.3492 of 1999 (O&M) Date of decision : November 29, 2010 Sukma Devi, Mamber Panchayat & others ...Petitioners Versus The State of Haryana & another ...Respondents (2) Civil Writ Petition No.7629 of 1999 (O&M) Rajinder Singh & others ...Petitioners Versus The State of Haryana & another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. P.N. Aggarwal, Advocate with Mr. Keshav Kataria, Advocate for the petitioners. Mr. Deepak Jindal, Deputy Advocate General, Haryana. Mr. M.L. Sarin, Senior Advocate with Ms. Jaishree Thakur, Advocate for respondent No.2. Rajan Gupta, J. (oral) This judgment shall dispose of above mentioned two writ petitions i.e. CWP No.3492 of 1999 and CWP No.7629 of 1999, as common question of law and facts arises in both these cases. The present writ petitions have been preferred seeking quashing of impugned notification, issued by Government of Haryana whereby certain area of Gram Panchayat Village Patli Hajipur has been CWP No.3492 of 1999 2 taken out for creating a new Gram Panchayat, namely Gram Panchayat Hajipur. It has been averred in the writ petitions that the Gram Panchayat of Patli Hajipur is in existence for last 150 years and the same is now sought to be bifurcated by the government, that too without following any procedure. Learned counsel for the petitioners has argued that a bare perusal of Section 7 of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to be as “the Act”) would show that first duty of the State Government is to issue a notification declaring the territorial area of the Gram Sabha which is to be constituted. This is necessary because number of Panches to be elected depends upon the population of the Sabha area to be demarcated under Section 7 of the Act. After the first notification under Section 7 of the Act is issued, only thereafter notification under Section 8 of the Act would be possible. According to learned counsel, a perusal of the impugned notification would show that it does not specify the area/territory out of which Gram Sabha Hajipur has been constituted. Neither any site plan was issued nor the notification contains any specification regarding the Gram Sabha area carved out. Learned State counsel has, however, rebutted the arguments advanced on behalf of the petitioners and submitted that the entire procedure as prescribed by law was followed before issuance of the impugned notification. CWP No.3492 of 1999 3 Mr. Sarin, learned senior counsel appearing for respondent No.2 at the outset submitted that at the stage when notice of motion was issued in this case, reliance was placed on judgment of this court in Tehal Singh Vs. State of Punjab, delivered in CWP No.17039 of 1997. Operation of impugned notification Annexure P-1 was also stayed. He submits that State of Punjab preferred a Special Leave Petition against the judgment in Tehal Singh (supra) and during the pendency of this petition, judgment in the said Special Leave Petition, which was registered as Civil Appeal No.5826 of 1999 (leave having been granted) was decided on January 07, 2002. According to him, the appeal preferred by the State was allowed and judgment in Tehal Singh's case (supra) was set-aside. I have heard learned counsel for the parties and gone through the record with the assistance of the learned counsel. It is evident that at the time this court issued notice of motion in this case and stayed the operation of notification, Annexure P-1, reliance was placed on the judgment reported as Tehal Singh Vs. State of Punjab, delivered in CWP No.17039 of 1997. The said judgment is annexed as Annexure P-2 to the petition. Admittedly, during the pendency of the instant case, the judgment delivered by this court in Tehal Singh's case (supra) has been set-aside by the apex court. In the said judgment reported as State of Punjab Vs. Tehal Singh (2002) 2 S.C.C. 7, it has been held as under:- CWP No.3492 of 1999 4 “8. 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 Sections 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 one. 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. On such declarations by a notification in the gazette, the Gram Sabha, a body corporate comes into being with a number of powers and functions conferred upon it under the Act. As soon as a Gram Sabha is established and Gram Panchayat is constituted, they are entrusted with many general functions viz., constructions, repair, and maintenance of community assets, agriculture including agriculture extension, animal husbandry, dairy and poultry, fisheries, social and farm forestry, minor forest produce fuel and fodder, khadi, village and cottage industries, rural housing, rural electrification including distribution of electricity, non- conventional energy source, poverty alleviation programme, education including primary and secondary schools, adult and non- formal education, promotion of adult literacy, cultural activities, fairs and festivals, public health and family welfare; women and child development, social welfare etc. Further, Gram Sabhas and Gram Panchayats have been conferred numerous other powers and duties enumerated in Section 35 of the Act. Besides that, the Gram Panchayat is entrusted with the judicial functions which are civil and criminal in nature. The power exercisable under Sections 3 and 4 of CWP No.3492 of 1999 5 the Act respectively by the Government was, therefore, not an exercise of a judicial or quasi-judicial function where the very nature of function involves the principle of natural justice or in any case of an administrative function effecting the rights of an individual. We are, therefore, of the view that on making of declaration under Section 3 of the Act determining the territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act. 9. 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 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 an opportunity of hearing to the residents would render the declaration invalid. But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principle 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 Ors. v. State of Maharashtra this court held as thus: (SCC p.741, para 17) CWP No.3492 of 1999 6 "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 authority concerned to invite and hear objections. Failure to do so was a violation of the the principles of natural justice and the notification disestablishing the market yard at one place and establishing it elsewhere was, therefore, bad. It was said that even as there was express provision for inviting and hearing objections before a 'market area' was declared under the 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." 10. In the present case, the provisions of the Act do not provide for any opportunity of hearing to the residents 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 CWP No.3492 of 1999 7 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 declaration either under Section 3 or Section 4 of the Act by the Government. 11. Coming to the second question, the High Court had taken a view that since an opportunity of hearing was required to be given before issuing a declaration under Section 3 of the Act, therefore, notifications under Section 3 and 4 could not have been issued simultaneously has to be held erroneous, once we held that no opportunity of hearing was required to be given before issue of declaration under Section 3 of the Act.” In view of the observations of the Supreme Court (supra), the basic contention raised on behalf of the petitioners that an opportunity of hearing was required to be afforded to the villagers before issuance of the impugned notification, no longer holds good. In the aforesaid judgment, it has been clearly held by the apex court that power exercisable under Sections 3 and 4 of the Punjab Panchayati Raj Act being legislative in character, rules of natural justice do not come into play. There is no dispute about the fact that Sections 7 and 8 of the Haryana Act are parimateria to Sections 3 and 4 of the Punjab Panchayati Raj Act which were subject matter of interpretation by the apex court in Tehal Singh's case (supra). Faced with this situation, this court has no option but to hold that the writ petition must fail. In view of the clear cut pronouncement in the aforesaid case, the effort of counsel for the petitioners to show that issuance of CWP No.3492 of 1999 8 impugned notification was in fact an administrative action and thus villagers required to be given an opportunity of hearing before issuance of the same, is devoid of force. A perusal of the notification, Annexure P-1 shows that the area sought to be included in Gram Panchayat Hajipur has been defined therein as Hajipur (part of patli Hajipur Hadbast No.34). The notification makes it clear that in exercise of powers vested under Section 7 and sub Section (1) of Section 8 of the Act, area of village Hajipur is excluded from the Sabha area of Gram Panchayat Patli Hajipur, Block Frookh Nagar, District Gurgaon declaring it to be the separate Sabha area and establishing a Gram Panchayat by the name of Hajipur as mentioned in column (4) of the schedule to the notification. Thus, the contention of the counsel for the petitioners that the area is not clearly described, is also devoid of force. There can also be no doubt that notification under Sections 7 and 8 can be issued simultaneously as in Tehal Singh's case (supra) notification issued under Sections 3 & 4 of the Punjab Panchayati Raj Act was held to be valid. In view of my aforesaid discussion, there is no merit in the present writ petitions. The same are hereby dismissed. (RAJAN GUPTA) JUDGE November 29, 2010 'rajpal' To be referred to the Reporters or not: Yes / No