CWP No. 3976 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh ...... CWP No. 3976 of 2008 Date of decision: 14 .05. 2008 Gram Panchayat Panj Garaian .....Petitioner Vs. State of Punjab and others .....Respondents Coram: Hon'ble Mr. Justice K.S.Garewal Hon'ble Mrs. Justice Daya Chaudhary Present: Mr. Kanwaljit Singh, Senior Advocate with Mr. D.P.S.Randhawa, Advocate for the petitioner Mr. T.P.Singh, Advocate, for respondent No.3 Mr. N.S.Virk, Additional Advocate General, Punjab K.S.GAREWAL, J. “There is no village in India, that does not have a rich or legendary history of its own. Some god or godlike hero has passed by the village—Rama might have rested under this pipal tree, Sita might have dried her clothes, after her bath, on this yellow stone, or the Mahatama himself, on one of his many pilgrimages through the country might have slept in this hut, the low one, by the village gate. In this way the past mingles with the present, and the gods mingle with men...........” (Raja Rao in his introduction to “Kanthapura.”) We have before us a number of petitions (CWP No. 3976 of 2008 Gram Panchayat Panj Garaian Vs. State of Punjab and others, CWP No. 4156 of 2008 Jatinder Singh and others Vs. State of Punjab and others, CWP No. 3976 of 2008 2 CWP No. 6156 of 2008 Gram Panchayat of Village Siryewala Vs. State of Punjab and others, CWP No. 5692 of 2008 Gram Panchayat Piareana Vs. State of Punjab and others, CWP No. 6602 of 2008 Parminder Singh and others Vs. State of Punjab and others, CWP No. 4643 of 2008 Tarsem Singh Vs. State of Punjab and others, CWP No. 4092 of 2008 Gram Panchayat Village Sabhra Vs. State of Punjab and others, CWP No. 4068 of 2008 Gram Panchayat Miaonwal Vs. State of Punjab and others, CWP No. 3850 of 2008 Raj Pal Singh Bedi Vs. State of Punjab and others, CWP No. 4311 of 2008 Gram Panchayat Sohian Kalan Vs. State of Punjab and others, CWP No. 6473 of 2008 Kuldip Singh and others Vs. State of Punjab and others, CWP No. 5975 of 2008 Joginder Singh Vs. State of Punjab and others, CWP No. 3765 of 2008 Kulwant Bir Singh & Others Vs. State of Punjab and others, CWP No. 6461 of 2008 Manjit Singh and Others Vs. State of Punjab and others, CWP No. 4106 of 2008 Preet Pal Singh Vs. State of Punjab and others and CWP No. 4069 of 2008 Hira Lal and others Vs. State of Punjab and others) concerning constitution of new Gram Sabhas by separating them from already established Gram Sabhas. Section 3 of the Punjab Panchayati Raj Act, 1994 entitles the State Government to declare any village or group of contiguous villages, with a population of not less than two hundred, to constitute a Gram Sabha area. However, this provision also has a proviso that a new Gram Sabha area should be constituted by taking into consideration its physical distance from the main village or villages, as the case may be and other relevant facts. The Punjab Panchayati Raj Act, 1994 is a comprehensive enactment which establishes a three-tier Panchayati Raj system in the State of Punjab. The Act provides for elected bodies at the village, Block and CWP No. 3976 of 2008 3 District levels, in keeping with the provisions of the Constitution (Seventy- third Amendment) Act, 1992. This is to encourage greater participation of the people and more effective implementation of rural development and Panchayati Raj system. The above mentioned constitutional amendment introduced Article Part IX for the Panchayats by enacting Article 243, 243- A to 243-O. Article 243 defines a Gram Sabha to mean a body consisting of persons registered in the electorals rolls relating to a village comprised within the area of the Panchayat which has been defined as an institution of self government constituted under article 243B for rural areas. The Supreme Court of India in State of Punjab Vs. Tehal Singh and others 2002(2) P.L.R. 347 laid down certain principles of law holding that provisions of Sections 3 and 4 of the Act for declaring territortial area of a Gram Sabha did not concern the interest of an individual citizen or a particular resident of that area. The declaration under Section 3 made by the Government was general in character and not directed to a resident of a particular area. A Gram Panchayat was entrusted many general functions and numerous other powers and duties(Section 30 of the Act). The Supreme Court held that making a declaration under Section 3 of the Act determining the terrotortial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area was an act which was legislative in character. Therefore, rules of natural justice were not required to be observed. Furthermore, the provisions of the Act did not provide for an opportunity of hearing to the residents before any area falling under a particular Gram Sabha was excluded and included in an another Gram Sabha. The residents could not complain regarding denial of an opportunity of hearing before declaration was issued. CWP No. 3976 of 2008 4 However, the position would be different where the house of a particular resident of an area was sought to be excluded from an existing Gram Sabha and included in another Gram Sabha. Since the action of the Government was being directed against individual the Government was required to observe principles of natural justice. Having revisited and carefully examined the judgment of the Supreme Court in Tehal Singh's case we are in a better position to appraise the arguments raised by the various writ petitioners. We shall now proceed to discuss the respective cases village-wise, but would like to preface our decision with a few introductory words. The Supreme Court in Tehal Singh's case had also taken the precaution to consider the physical location of the various areas which were being formed into a new Gram Sabha. The Hon'ble Judges had seen the map of the Gram Sabha and found that there was a colony which was partly contiguous to one village and came to the conclusion that this was sufficient compliance of the provisions of Section 3(1) of the Act. Therefore, while examining the cases of the different new villages we have also closely examined the physical locations of the various areas as depicted in the maps filed with the petition as submitted by learned counsel and relevant social, historical and geographical factors which may be relevant to that particular area. Every village in rural India has a special place in the hearts of the people belonging to that village. Most villages have an ancient past and some are linked to a saint, a warrior or a freedom fighter. Villages are the seat of rural culture and have great heritage which must be preserved if our rural areas are to survive and prosper. Division of a village without any CWP No. 3976 of 2008 5 justifiable reason would strike at its very soul, divide the people, introduce an element of tension and in some cases tend to disturb the peace. The Indian diaspora is also very proud of its roots in India. People living in foreign lands immediately warm up when they meet a person from their village or town or even a nearby village or town. This forms a bond of friendship and helps them to better cope with life. Our village-wise discussion is as follows:- Panj Garahian Tehsil Batala, District Gurdaspur(CWP No. 3976 of 2008) The petition has been filed by Gram Panchayat stating that the village is 100 years old, there has never been any dispute in the panchayat. It was on political considerations that the Panchayat has been bifurcated and Gram Panchayat Panj Garahian Chardi Patti has been formed. The representation has been signed by 987 members of the Gram Sabha and has been attached as Annexure P-1. Apparently some voters had moved an application Annexure P-2 asking for separation of Gram Sabha because development work was not being carried out nor the facilities granted by the Government were provided to them. They stated that maximum number of persons in Chardi Patti belonged to Scheduled Caste. The site plan of the village showed that the division would leave only the residential area marked ABCD in Panj Garahian. Rest of the area where Anganwari, Dharamsala, Panchayat Ghar, Primary School, hospital, Cooperative Society, Telephone Exchange, Vetenary Hospital, Gurdwara were to go to Panj Garahian Chardi Patti. The site plan also shows that village has come up on both sides of the main road from Batala CWP No. 3976 of 2008 6 to Sri Gobindpur and the road is the only dividing boundary between Panj Garahian and Panj Garahian Chardi Patti. We are not convinced that the State Government had adequately considered these factors while passing the impugned notification creating a new Gram Sabha for Panj Garahian. We would like the Government to reconsider its decision as regards creation of the new Gram Sabha because the new Gram Sabha area is not separated from the main village and there were other relevant facts which indicate that creation of the new Gram Sabha is not necessary. Cheethe Kalan Block Jandiala Guru, Tehsil & District Amrtisar (CWP No. 4156 of 2008) The petitioners are three residents of Cheethe Kalan who are complaining against the formation of a new Gram Sabha area to be known as Gurbax Singhwala. The Gram Sabha of Cheete Kalan has facilities like High School, Primary Health Centre, Veterinary Hospital, Cooperative Societies and three Gurdwaras. On the other hand the newly created Gram Sabha of Gurbax Singhwala is a small community. The petitioners have mentioned many other factors to challenge the new Gram Sabha but the fact remains that Gurbax Singhwala is at a distance of 2 Kms from Cheete Kalan. It has a separate and distinct community. In the reply filed by the Deputy Commissioner, Panchayat it was stated that the new Gram Sabha area from Gurbax Singhwala has 246 members. In this case we feel that separation of Gurbax Singhwala from Cheete Kalan is justified and does not call for any interference. Siryewala Tehsil Phool, District Bathinda (CWP No. 6156 of 2008) The petitioner is the Gram Panchayat of Siryewala, new Gram CWP No. 3976 of 2008 7 Sabha which has been created is Siryewala Khurd. The site plan shows that the entire village is one compact block. The village falls on the Baja Khana to Bhagta Bhai Ka road. Habitation is largely on one side of the road and the residences of members of the village community belonging to various castes are intermingled. In the reply filed by the respondent it has been stated that separate Gram Sabha had been constituted for Siryewala Khurd because the residents were facing difficulties in the development of their area. Nevertheless we find that the two Gram Sabhas are very close to each other and are separated only by a road. We are not convinced that the Government had adequately considered this factor. If the development in one area was inadequate the solution is not to separate that area but to ensure that the panchayat pays more attention to the underdeveloped parts of the Gram Sabha area. We would like the Government to reconsider its decision as regards creation of a new Gram Sabha for Siryewala Khurd. Piareana Block Ghal Khurd, District Ferozepur(CWP No. 5692 of 2008) This petition has been filed by Gram Panchayat to challenge the formation of new Gram Sabha for Basti Piareana @ Jhungia. It is stated that this was done due to ulterior motive of Mohinder Singh and Shingara Singh of their village who wanted to create problems. According to the petitioner the distance between two Gram Sabhas is not 1.5 Kms but only about 3 acres. The petitioners have not placed on record any site plan. In the reply filed by the respondents it has been stated that the population of Basti Piareana @ Jhungia is about 870, it is at a distance of about 1-1/4 Kms from Piareana. Site plan with the written statement shows that the two villages CWP No. 3976 of 2008 8 fall on the Ferozepur --- Moga G.T. Road and are indeed separated by 1.5 Kms. Consequently we feel that the separation of Basti Piareana @ Jhungia from Piareana is valid and justified and does not call for any interference. Mangwal Block Sangrur, District Sangrur(CWP No.6602 of 2008) The three petitioners are residents of Officer Colony, Mangwal and have prayed for the constitution of a new Gram Sabha. According to the petitioners the Officer Colony falls on the Dhuri—Patiala byepass. It consists of Blocks A, B,C,C-1, D, E and F. However, Block F is not a part of Gram Sabha Officer Colony Mangwal but attached to Gram Sabha of the neighbouring Rampura Basti. The petitioners are seeking the separation of Block F from Rampura Basti and attaching to Officer Colony, Mangwal. The request of the petitioners is genuine because F Block is after all a part of Officer's Colony and it is essential for the welfare of the residents of all the Blocks that they come under the same Gram Sabha because they share common facilities like water supply, electricity etc. If one Block is attached to a different Gram Sabha there may be a clash of interest or lop-sided development. Therefore, we would like to recommend to the Government to consider attaching Block F to Officers' Colony, Mangwal. Vithwan Block Sri Hargobindpur, Tehsil Batala, District Gurdaspur(CWP No. 4643 of 2008) This petition has been filed by a resident of Vithwan urging that Gram Sabha Gopalpur detached from Vithwan in 2002, be again CWP No. 3976 of 2008 9 merged with Vithwan. The distance between the two Gram Sabhas is about 1 Km. In the reply filed by the respondents reliance was placed on resolution dated March 24, 2008 passed at a special meeting of the Gram Sabha Gopalpur (Annexure R-1) wherein Gram Sabha has unanimously resolved that Gopalpur be kept separate from Vithwan and should be not merged with the latter village. On the other hand the Gram Sabha of Vithwan also met on March 29, 2008 and passed on unanimous resolution that they have no objection to the separation of Gopalpur (Annexure R-2). Under the circumstances we are not inclined to interfere in this petition. Petition is hereby rejected. Sabhra (Sobhraon) Tehsil Patti, District Tarn Taran(CWP No. 4092 of 2008) This petition has been filed by the Gram Panchayat of the village and Lambardar to oppose the restructuring of the Gram Sabha into five different Gram Sabhas to be known as Gullewala, Killa Sham Singh Attari, Jyoti Shah, Nawan Killa and excluding these areas from the main Gram Sabha of Sabhra. This is a historic village where a fierce battle was fought between the Sikh Army under the command of General Sardar Sham Singh Attariwala and the forces of the East India Company. The battle took place in February 1846 and Sikh forces showed exemplary bravery. Battle of Sabhraon is a landmark in the history of Punjab and General Sham Singh attained martyrdom on the battle field. This is a relevant historical fact which should not be overlooked. Coming to the site plan of the village we find that the five Gram Sabha areas, which have been marked in the plan, are closely attached CWP No. 3976 of 2008 10 to each other and the boundaries are marked by lanes running through the village. Gram Sabha areas are not at any distance at all from the main village. Keeping in view the location as well as the historic past of this village we would like to recommend that the State Government should reconsider its decision and refrain from breaking up a historic village into five different Gram Sabhas. Miaonwal Block Nurmehal, Tehsil Phillaur, District Jalandhar(CWP No. 4068 of 2008) This petition has been filed by the Gram Panchayat to resist the creation of a separate Gram Sabha known as Miaonwal Poorvi. The petitioners have mainly pleaded that the separation is being done at the instance of the sitting M.L.A.who belongs to the ruling party because Miaonwal traditionally voted for the Congress party. In the reply filed by the respondent it has been stated that a link road from Phillaur-- Talwan road to Partap Pura passes through the village dividing it into two parts. The Eastern side of the village has 750 votes while Western side has 830 votes. The distance between the two Gram Sabhas is equal to the width of the road which is only 22 feet. Here again is a case where a Gram Sabha is being created, not because it is at any great distance from the original Gram Sabha, but for other considerations. Therefore, we would like to recommend the State Government to reconsider the creation of Gram Sabha Mianwal Poorvi. Sadakpur Veeran Block Bhunerheri, Tehsil and District Patiala(CWP 3850 of 2008) This petition has been filed by a resident of Sadakpur Veeran who is complaining against the separation of Sadakpur Veeran from CWP No. 3976 of 2008 11 Maqbulpur Bheni and its attachment to Bhudmore. We have seen the site plan and find that both Sadakpur Veeran and Budhmore lie between the rivers Tangri and Markanda before their confluence. Maqbulpur Bheni is 10 Kms from Sadakpur Veeran across the river by road. The distance between Sadakpur Veeran and Budhmore is a mere 2 Kms. Therefore, we feel that there is justification in attaching Sadapur Veeran to Budhmore by separating it from Maqbulpur Bheni. We find no merit in this petition and the same is dismissed. Sohian Kalan Block Majitha, Tehsil & District Amritsar (CWP No. 4311 of 2008) The petitioner is Gram Panchayat of Sohian Kalan. It has been pleaded that the village is an old village where the panchayat has been in existence since 1952 and regular elections are being held after every five years. However, due to political influence of the sitting M.L.A., the village has been bifurcated and another Gram Sabha known as Abadi Varpal has been formed. Counsel for the petitioner has argued that the village is the ancestral village of Bhai Kanhiaya Ji and four soldiers from the village fell in the first World War. In their memory carved stones have been placed in the village. It is a village where there exists a Mandir, a Gurdwara and a Masjid under one roof which shows tolerance exhibited by the village community. According to the location plan it is seen that the village falls on Amrtisar to Fatehgarh Churian road. It is a large village which has Senior Secondary School, Stadium, Veterinary Hospital, Post Office and several Gurdwaras. In the reply filed by the respondents it has been stated that 159 CWP No. 3976 of 2008 12 residents of Patti Varpal and Behka had represented for separation of their Gram Sabha because entire grant are spent in the Sohian Kalan and they never got their due share. The new Gram Sabha which has been formed is at a distance of 2 Kms from Sohian Kalan. It is geographically separate and a compact area. This may be the ancestral village of Bhai Kanhiaya Ji but there is no reference to this village in the biographical note of Bhai Kanhaiya (1648-1718) on page 43 Volume 2 of the Encyclopedia of Sikhism published by Punjabi University. Bhai Kanhiaya belonged to Sodhra District Syalkot, he served with 9th and 10th Gurus. After leaving Anandpur Sahib he returned to Sodhra and died in 1718. Perhaps the petitioner is referring to some other saintly figure known by the same name. Nevertheless, the village has displayed a fine tradition of tolerance that people belonging to three faiths worship under the same roof. However, the fact remains that the newly created Gram Sabha is at a distance 2 Kms from Sohian Kalan. It is obvious that development of the new Gram Sabha area was suffering on account of the distance and would be certainly benefitted if it is created as a separate Gram Sabha. Therefore, we find that this is not the case in which the creation of the new Gram Sabha should be prevented. Under the circumstances we are not inclined to interfere in this petition. Petition is dismissed. Kohala Tehsil Zira District Ferozepur(CWP No. 6473 of 2008) Four residents of village Kohala have filed this petition to oppose the creation of the new Gram Sabha known as Kothe Sant Baba Gurbax Singh. It has been pleaded that the Gram Panchayat has been functioning in the village since 1952, elections were held after every five CWP No. 3976 of 2008 13 years but the separation of the new Gram Sabha is at the instance of the local politicians. Kothe Sant Baba Gurbax Singh does not have a separate definite abadi or a group of abadies with a population of 200 voters. Therefore, formation of the new Gram Sabha is neither viable nor necessary. In the layout plan of Kohala which has been shown to us it is found that many houses attached to the new Gram Sabha are in the amidst of village Kohala and the residence are intermingled in such a way that no line of separation can be drawn. In the reply it has been stated that the new Gram Sabha is 1 Km from the existing Gram Sabha and both area are separated. 272 members of the new Gram Sabha have represented for the separation of their Gram Sabha. We have seen the layout plan and find that although the residences of some persons belonging to the new Gram Sabha may be located in Kohala but the abadi of the new Gram Sabha has not been shown in the layout plan. If the new area is at a distance of 1 Km and there is inter- se political rivalry in the village, it is obvious that the people belonging to the new Gram Sabha were left out from the development work in Kohala and for this reason demand separation of their Gram Sabha area. Under the circumstances we are not inclined to interfere in this petition. Umarwal Billa Tehsil Nakodar, District Jalandhar (CWP No. 5975 of 2008) This petition has been filed by the Sarpanch of the village pleading that Gram Sabha area of Umarwal Billa was very large. In 1994 two Gram Sabha areas were separated from Umarwal Billa namely Daryawala Billa and Mehatpurwala Billa. Now a separate Gram Sabha for CWP No. 3976 of 2008 14 Kangwala Billa has been formed. The petitioner has also placed on record affidavits of about 16 individuals protesting against the new Gram Sabha known as Kangwala Billa. In the site plan filed with the petition it is difficult to discern the location of Kangwala Billa but in the affidavit it has been unanimously proclaimed that the new Gram Sabha area has been separated at the instance of Baljinder Singh Kang, Sarpanch, whose residence is away from the village and who is interesting in becoming Sarpanch of the new Gram Sabha. We are not inclined to interfere in this petition because the petitioner has not been able to show nearness of the new Gram Sabha to their village. If the new area is at some distance from the village that is sufficient for formation of a new Gram Sabha. This petition is dismissed. Ghoman Block Sri Hargobindpur, District Gurdaspur (CWP No. 3765 of 2008) This petition has been filed by Ex-sarpanch of the village and three others to challenge the separation of the Gram Sabha area of Pachiwareke. According to the petitioners the decision is a political one and is not justified. The petitioners have placed on record site plan of the spot which shows that Pachiwareke is at a considerable distance from Ghoman. Although the distance is not mentioned in the petition yet in the reply filed by the respondents it has been categorically stated that the distance is 2 Kms. We do not find