IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10459 of 1999 with SPECIAL CIVIL APPLICATION NO.390 OF 2000 WITH CIVIL APPLICATION NO.420 OF 2000 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- MOHANBHAI HARIBHAI DESAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10459 of 1999 MR JAYANT PATEL for Petitioners GOVERNMENT PLEADER for Respondent No. 1 NOTICE SERVED BY DS for Respondent No. 4 MR MUKUND M DESAI for Respondent No. 6 2. Special Civil ApplicationNo 390 of 2000 MR Tushar Mehta for Petitioners GOVERNMENT PLEADER for Respondent No. 1 NOTICE SERVED BY DS for Respondent No. 4 MR MUKUND M DESAI for Respondent No. 6 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 20/10/2000 C.A.V JUDGEMENT In this petition under Article 226 of the Constitution, the petitioners have challenged the Government decision dated 22.12.1999 abolishing Vagadod taluka in Patan District and placing all the villages comprised in the said taluka into Patan taluka. By ad-interim order dated 28.12.1999 this Court had directed the respondents to maintain status quo regarding abolition of Vagadod talukas. In view of the above ad-interim relief, the Government had not issued any notification under section 7 of the Bombay Land Revenue Code, 1879. 2. The first petition in Special Civil Application No. 10459/99 is the Sarpanch of the Vagadod Gram Panchayat. The other petitioners are residents of villages which are part of the Vagadod taluka. Prior to 15.10.1997 the villages in Vagadod taluka were part of Patan taluka and by Government notification dated 15.10.1997 erstwhile Mehsana District was bifurcated into Mehsana District and Patan District. Vagadod taluka was constituted as a new taluka with 39 villages and placed in Patan District. In December, 1997 the State Government had undertaken the exercise of reconstituting talukas, but Vagadod taluka continued as such without any change. Thereafter, the Government took impugned decision on 22.12.1999 to abolish Vagadod taluka and to make it a part of Patan taluka, but before the said decision could be converted into a Government notification when the State Government issued notifications in respect of other talukas on 31.12.1999, the petitioners approached this Court and this Court granted interim relief dated 28.12.1999 for maintenance of status quo as already stated above. 3. Thereafter, on 25.1.2000 another petition being Special Civil Application No.390/2000 came to be filed where also the petitioners challenged the decision to abolish Vagadod taluka and they raised additional plea that the headquarters of Vagadod taluka should be at Jangral and prayed for a writ of mandamus declaring the action of the State Government in fixing Vagadod as taluka headquarters as illegal, arbitrary and irrational and to direct the State Government to declare Jangral as taluka headquarters of Vagadod taluka. 4. Civil Application No. 420 of 2000 in Special Civil Application No. 10459/99 is filed by 5 villagers in Vagadod taluka contending that their villages originally situate in Patan taluka and other villages are also desirous of continuing in Patan taluka and, therefore, they support the Government decision to abolish Vagadod taluka and for placing all these villages in Patan taluka. 5. Since all these proceedings pertain to Vagadod taluka and the outcome of Special C.A.No.10459/99 would also be applicable to Special Civil Application 390/2000, with the consent of learned counsel for parties both the petitions have been heard together and are being disposed of by this common judgment. 6. Mr.Jayant Patel, learned counsel for the petitioners raised the following contentions: (i) That the impugned decision is illegal because the Government has committed breach of the provisions of the Bombay Land Revenue Code, 1879, the Gujarat Panchayats Act, 1994 and the principle of natural justice by not providing opportunity of being heard to the residents or gram panchayats of 39 villages which constitute Vagadod taluka, although they are vitally affected by and suffer serious adverse civil consequences on account of the impugned decision. (ii) The impugned decision is arbitrary and unreasonable as out of 39 villages in Vagadod taluka 35 villages are situate at a distance of only 10 to 15 Kms from Vagadod whereas Patan is situate at a distance of 35 to 40 Kms. Villages are well connected with Vagadod. (iii) The impugned decision is also malafide because the Cabinet Sub Committee appointed to review the constitution of talukas had not recommended for abolition of Vagadod taluka. Merely because respondent No. 6 MLA had addressed a letter for abolishing Vagadod taluka on the basis of purported resolutions of the gram panchayats, the Government had taken the decision on that basis. Thereafter, the Collector reported that no such resolutions were found on the record of the respective gram Panchayats. The petitioners have produced letters of sarpanches of 32 out of 37 villages stating that the said 32 villages want to remain as part of Vagadod taluka. (iv) The Union of India had issued instructions not to make any changes in talukas till 31.3.2000 in view of impending elections. The Government had committed breach of the said instructions by taking the impugned decision. (v) The State Government has already held elections to the Vagadod taluka Panchayat as per the election notification dated 28.8.2000. Elections have already been held actually and therefore dismissing the petition would result into setting aside the elections already held and also requiring re-elections to Patan Taluka Panchayat. 7. On the other hand, Mr.S.N.Shelat, learned Additional Advocate General with Mr.A.D.Oza, learned Government Pleader for respondents have opposed the petitions and have made following submissions: (i) Neither the provisions of Gujarat Panchayats Act nor the provisions of Bombay Land Revenue Code impose any obligation on the State Government to afford any opportunity of hearing to any villager or to any gram panchayat before taking any decision of shifting the village from one taluka to another taluka. (ii) The principles of natural justice are not applicable while reconstituting talukas or abolishing talukas. Strong reliance is placed on the decision of the Division Bench of this Court dated 24.4.97 in Special Civil Application No.7240/97 (Gujarat Panchayat Parishad vs State of Gujarat) and on the decision of this Court in Patel Baldevbhai Ambalal vs. State of Gujarat, 1998 (1) GLH 1932. (iii) The decision was taken bonafide. Even provisions of Article 243C (3)(c) require consultation with Minister/MLA from the concerned area before taking such decision. (iv) On factual aspect, it is submitted that geographical situation of many villages is such that they are not directly connected with Vagadod but they have to go to Vagadod via Patan. Hence, the actual distance to reach Vagadod taluka headquarters is more than the distance to reach Patan. Patan is not merely headquarters of Patan taluka but is also the headquarters of Patan district. Most of the villages of Vagadod taluka have easy access to Patan, because Patan is so geographically situated. There is police station, school and Mamlatdar office in Vagadod. But all institutes of higher education and technical education, hospitals and Railway facilities are available at Patan headquarters. Patan is also having Agricultural Produce Market Committee whereas Vagadod does not have APMC. After due deliberation, consultation, considering all aspects, resolutions of many gram panchayats cabinet at its meeting held on 22.12.1999 has taken the decision to abolish Vagadod taluka and villages of Vagadod taluka are included in Patan taluka. 8. Before considering the legal contentions, the relevant constitutional and statutory provisions are required to be considered. They read as under :- Constitution of India Art. 243. Definitions.- In this Part unless the context otherwise requires, - (a) "district" means a district in a State; (b) "Gram Sabha" means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level; (c) "intermediate level" means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purposes of this Part; (d) "panchayat" means an institution (by whatever name called) of self-government constituted under Article 243-B, for the rural areas; (e) "Panchayat area" means the territorial area of a Panchayat; Art 243-B. Constitution of Panchayats.- (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. (2) ... ... .... ... .... Art.243-C. Composition of Panchayats.- (1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions not exceeding twenty lakhs. Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State. (2) ... ... ... ... ... (3) The Legislature of a State may, by law, provide for the representation - (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; (c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat; Bombay Land Revenue Code, 1879 4. Chief Controlling authority in revenue matters.-(1) The chief controlling authority in all matters connected with the land revenue shall vest in the State Government. (2) The State Government may, by notification in the Official Gazette, prescribe the territories in the State which shall form a division and may by a like notification alter the limits of the division so formed. 7. Division to be divided into district.- Each division shall be divided into such districts with such limits as may from time to time be prescribed by a duly published order of the State Government. A district to consist of talukas comprising such mahals and villages as State Government may direct.- And each such district shall consists of such talukas, and each taluka shall consist of such mahals and villages, as may from time to time be prescribed in a duly published order of the State Government. And each such mahal shall consist of such villages as may from time to time be prescribed by a duly published order of the State Government. 7A. Power of State Government to alter limits of or to amalgamate or constitute villages.- The State Government may from time to time by a duly published order alter or add to the limits of any village or amalgamate two or more villages or constitute a new village. Gujarat Panchayats Act, 1993 2. Definitions.- In this Act, unless the context otherwise requires - (5) "district" means a district constituted from time to time under the Land Revenue Code; except the area over which a district panchayat has no authority under Section 6. (7) "district panchayat" means a district panchayat constituted under the Act. (25) "taluka" means a taluka constituted from time to time under the Land Revenue Code, except the area over which a taluka panchayat has no authority under section 6. (27) "taluka panchayat" means a taluka panchayat constituted under this Act. (33) the words "gram sabha", "panchayat area", "population" and "village" shall have the meanings respectively assigned to them in Part IX of the Constitution. 3. Establishment of Panchayats of different tiers.- For the purpose of this Act, there shall be in each district - (1) a village panchayat for each village. (2) a taluka panchayat for each taluka, and (3) a district panchayat for each district. 7. Recommendation of specification of village.(1) After making such inquiries as may be prescribed, the competent authority may recommend any local area comprising a revenue village, or a group of revenue villages, or hamlets forming part of a revenue village, for being specified a village under clause (g) of article 243 of the Constitution, if the population of such local area does not exceed fifteen thousand. (2) After consultation with the taluka panchayat, the district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion with or exclusion from any village or any local area or otherwise alteration of limits of any village, or recommend cesser or any local area to be a village, to the Governor for exercise of his powers under clause (g) of article 243 of the Constitution. 9. Several decisions have been cited on behalf of the petitioners in support of the contention that before shifting one taluka or village from one taluka to another taluka or before abolishing any taluka or in other words before reconstituting any taluka the State Government is required to provide opportunity of being heard at least to the gram panchayats which are to be affected by such exercise. The said decisions are: (1) AIR 1987 SC 1239 (2) AIR 1988 SC 1681 (3) AIR 1992 SC 836 (4) AIR 1995 SC 1512 (5) 1986 (1) GLR 247-377 (6) 2000 (2) GLR 1263 10. Mr.S.N.Shelat, learned Additional Advocate General has submitted that it has already been held by this Court in Patel Baldevbhai Ambalal vs State of Gujarat & ors 1998(1) GLH 932 decided on 12.3.1998 and by the Division Bench of this Court in the judgment dated 24.4.1998 in SCA No.7240/97 (Gujarat Panchayat Parishad vs. State) that before exercising its powers under Section 7 of the Bombay Land Revenue Code, the Government is not bound to issue a notice to the concerned gram panchayats or a general notice to residents of the concerned villages. 11. Having perused the aforesaid decisions this Court is of the view that the contention raised on behalf of the petitioner that the principles of natural justice are required to be followed before exercising powers under Section 7 of the Bombay Land Revenue Code for reconstitution of talukas has already been negatived by this Court in the aforesaid decisions cited by Mr Shelat. The learned counsel for the petitioners made an attempt to persuade the Court to reconsider the view taken in Baldevbhai's case in view of two judgments of the Apex Court which were not cited before this Court while deciding the case of Baldevbhai, more particularly strong reliance was placed on the decisions of the Apex Court in Baldevsingh vs. State of H.P., AIR 1987 SC 1239 and in State of UP & Ors. vs. Pradan Sangh Kshettra Samiti & Ors., AIR 1995 SC 1512. In baldevsingh's case (supra), 4 villages inhibited by agriculturists and having a rural set up and forming parts of gram panchayats under the relevant statute were sought to constituted as a notified area under Section 256 of the Himachal Pradesh Municipal Act. The Apex Court came to the conclusion that the requirements indicated in the section were not considered. Then the Court observed as under :- "Citizens of India have a right to decide, what should be the nature of their society in which they live - agrarian, semi-urban or urban. Admittedly, the way of life varies, depending upon where one lives. Inclusion of an area covered by a Gram Panchayat within a notified area would certainly involve civil consequences. In such circumstances it is necessary that people who will be affected by the change should be given an opportunity of being heard, otherwise they would be visited with serious consequences like loss of office in Gram Panchayats, an imposition of a way of life, higher incidences of tax and the like." It was in this backgroud that the Apex Court held that before the notified area was constituted, the people of the 4 villages should have been afforded an opportunity of being heard and the decision should have been taken after considering the views of the residents. In the facts of the present case as well as in other petitions being disposed of today, the nature of the society in which the concerned villages are being shifted does not change. Their administration is being shifted from one taluka panchayat to another taluka panchayat. The decision of this Court in Chhani Nagar Panchayat vs. State of Gujarat, 2000 (2) GLR 1263 dealt with the case where certain villages were being shifted from panchayat area to a notified area. Therefore, the Court held that the requirement for consultation was mandatory. So far as the decision of the Apex Court in State of UP vs. Pradan Sangh Kshettra Samiti (Supra) is concerned, this decision was considered by the Division Bench of this Court while delivering the judgment in Special Civil Application No. 7240/97. The Division bench rejected the contention about applicability of the principle of natural justice for the following reasons :- (i) The institution of self-government should not be interfered with. By reconstitution of the Panchayat area, if any portion of that area falls outside the jurisdiction of an institution of self-government, that will violate the Constitutional mandate. If no part of the Panchayat area, on reconstitution or reorganization falls outside the institution of self-Government, such reconstitution or reorganization can not be faulted. The area, which thus becomes attached to the new District Panchayat/Taluka Panchayat will continue to be under an institution of self-government. (ii) The Bombay Land Revenue Code authorizes Government to reorganize Districts and Talukas. The boundaries of the taluka have to be specified by the State Government and can be changed by the State Government. After the amendment of the Constitution by the Seventy Third Amendment, Gujarat Panchayats Act 18 of 1993,was enacted. That defines "Panchayat" to mean "a village panchayat, taluka panchayat or district panchayat". Similarly, "district" has been defined in that Act as "a district constituted from time to time under the Land Revenue Code". Similarly, "taluka" has been defined as one "constituted from time to time under the Land Revenue Code". "Village Panchayat" is defined as one "constituted under the Act". It is clear that the Taluka Panchayat or District Panchayat should be in relation to the Taluka or District as constituted by the Government from time to time under the Bombay Land Revenue Code. Thus, in the case of State of U.P vs Pradhan Sangh Kshettra Samiti, AIR 1995 SC 1512, it is held that the State Government has power to change the boundaries of the Districts and Talukas. (iii) Section 9(2) of the Panchayats Act, as it stood prior to the amendment of 1993, provided for consultation with Taluka Panchayat, District Panchayat and the Nagar or Gram Panchayat before deciding on the question as to whether a local area shall be included or excluded to any Nagar or Gram. Such provision has been specifically excluded when Act 18 was enacted in 1993. The exclusion of this provision shows that the Legislature wanted to exclude the provision for consultation. In other words, Legislature specifically excluded the application of principles of natural justice in the case of reorganization or delimitation of Panchayats of other local self-government. Looking into this legislative history, it can safely be taken that the Legislature expressly excluded the application of rule of natural justice. In such a situation, this Court can not read into the provision of Section 7 of the Bombay Land Revenue Code principles of natural justice (vide Dr.Rash Lal Yadav v State of Bihar & Ors, JHT 1994 (7) SC 62). 12. Mr KG Vakharia, learned counsel appearing for the petitioners in Special Civil Application No. 390 of 2000 and Mr Jayant Patel, learned counsel appearing for the petitioners in Special Civil Application No. 10459/99, however, vehemently urged that the aforesaid decision of the Division Bench requires reconsideration and the matter may be referred to a Larger Bench as the Division Bench drew the inference of exclusion of principle of natural justice on the ground of deletion of such principle while enacting Gujarat Panchayats Act, 1993. It was submitted that the contents of sub-section (2) of Section 9 of Gujarat Panchayats Act, 1961 are now reproduced in sub-section (2) of section 7 of the Gujarat Panchayats Act, 1993 and, therefore, the Division Bench decision requires reconsideration. Section 9 of the Panchayats Act of 1961 in so far as the same is relevant for the purpose of these petitions reads as under :- "9.(1) After making such inquiries as may be prescribed, the State Government may, by notification in the Official Gazette, declare any local area, comprising a revenue village, or a group of revenue villages, or hamlets forming part of a revenue village, or such other administrative unit or part thereof :- (a) to be a nagar, if the population of such local area does not exceeds 10,000 but does not exceed 25,000, and (b) to be a gram, if the population of such local area does not exceed 10,000; ... ... ... ... ... ... (2) After consulation with the taluka panchayat, the district panchayat and the nagar or gram panchayat concerned (if already constituted) the State Government may, by like notification, at any time - (a) include within, or exclude from, any nagar or gram, any local area or otherwise alter the limits of any nagar or gram; or (b) declare that any local area shall cease to be a nagar or gram; or having regard to clauses (a) and (b) of sub-section (1), declare the whole area comprised in a gram or the party thereof to be a nagar or two or more grams or the whole area comprised in a nagar to be a gram or split up the area comprised in the nagar into a nagar and a gram or into two or more grams; and thereupon the local area shall be so included or excluded, or the limits of the nagar or gram so altered or the local area shall cease to be a nagar or gram or, as the case may be, the area declared to be a nagar or gram shall be a nagar, or gram as the case may be." Section 7(2) of the Gujarat Panchayats Act, 1993 reads as under :- "7. Recommendation of specification of village.(1) ... ... ... .... (2) After consultation with the taluka panchayat, the district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion with or exclusion from any village or any local area or otherwise alteration of limits of any village, or recommend cesser or any local area to be a village, to the Governor for exercise of his powers under clause (g) of article 243 of the Constitution." While this Court agrees that the inference drawn by the Division Bench about legislative intent may not be borne out by the provisions of the Panchayats Act of 1993, nevertheless this Court is not inclined to refer the matter to a Larger Bench because the Division bench did not base its decision solely on the said legislative intent. As already pointed out, the Division bench gave three reasons for not accepting the contention that the village panchayats have a right of hearing before the State Government can exercise its powers under Section 7 of the Bombay Land Revenue Code. The first two two reasons as well as the reasons already given by this Court in the case of Patel Baldevbhai Ambalal vs. State of Gujarat, 1998 (1) GLH 923 are sufficient to follow the view taken earlier that village people/gram panchayats have no legal right to be heard before the Government