SCA/26742/2007 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 26742 of 2007 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ============================================================== UNCHIDHANAL GROUP GRAM PANCHAYAT & 6 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ===================================================== Appearance : MS SNEHA A JOSHI for Petitioner(s) : 1 - 7. MR JASWANT K SHAH, ASSTT.GOVERNMENT PLEADER for Respondents: 1 & 2 MR MANISH J PATEL for Respondent(s) : 3 ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 26/02/2008 ORAL JUDGMENT 1. By filing the present writ petition under Article 226 of the Constitution of India, the petitioners have challenged the validity of SCA/26742/2007 2/38 JUDGMENT the Notification dated 1.10.2007 issued by the respondent No.1, in exercise of powers under Section 7 of the Gujarat Panchayats Act, 1993 (“the Act” for short), whereby, Unchidhanal Group Gram Panchayat has been bifurcated and two villages, namely, Tuver and Veekharan, have been separated from the said Group Gram Panchayat by forming a separate Group Gram Panchayat, i.e. Tuver Group Gram Panchayat. During the pendency of the petition, an amendment to the petition has been carried out whereby the petitioners have challenged the orders dated 20.10.2007 and 22.10.2007, appointing an Administrator for the newly-formed Group Gram Panchayats. 2. The petitioner No.1 is Unchidhanal Group Gram Panchayat. The petitioner No.2 is the Sarpanch of the said Panchayat, the petitioners No.3 to 5 are the residents of village Tuver and the petitioners No.6 and 7 are the residents of village Veekharan, as described in the memorandum of parties. SCA/26742/2007 3/38 JUDGMENT 3. Briefly stated, the facts of the case, emerging from a perusal of the averments made in the writ petition are that, Unchidhanal Group Gram Panchayat consisted of a total of four villages, namely Unchidhanal, Kalleka, Tuver and Veekharan. It is stated in the petition that village Unchidhanal is the most developed of the four villages comprising the Unchidhanal Group Gram Panchayat, having a larger population and higher revenue than the other villages. It is averred in the petition that on 15.3.2005, a proposal was sent to the respondents by a certain section of the people of village Unchidhanal, to separate village Unchidhanal from Unchidhanal Group Gram Panchayat. In response to the said proposal, the respondent No.1 made certain queries vide communication dated 20.7.2007 addressed to the respondent No.2 (Development Commissioner), asking for certain information and details regarding the proposal dated 15.3.2005. The averments in the petition reveal that in a Special Meeting of the Unchidhanal Group Gram SCA/26742/2007 4/38 JUDGMENT Panchayat, held on 8.8.2007, a Resolution came to be passed stating that Village Tuver should be constituted into a separate Gram Panchayat. A copy of the Resolution No.5 dated 8.8.2007 is annexed as Annexure-C to the petition. As per the averments made in the petition, the local people at large were not satisfied by the proposal for bifurcation of the Gram Panchayat and raised their grievances by making various representations objecting against the proposed bifurcation, to the concerned authorities, by pointing out administrative inconveniences and geographical reasons. The copies of the representations are annexed as Annexure-D collectively, to the petition. It is further averred that subsequently, another Resolution i.e. Resolution No.4 came to be passed by Unchidhanal Group Gram Panchayat on 17.8.2007, wherein, it was resolved to postpone the bifurcation of the Panchayat for a period of two years. A copy of this Resolution is annexed as Annexure-E to the petition. SCA/26742/2007 5/38 JUDGMENT However, the respondent No.1, exercising powers under Section 7 of the Act, issued Notification dated 1.10.2007 whereby, villages Tuver and Veekharan came to be separated from Unchidhanal Group Gram Panchayat by forming another Group Gram Panchayat, i.e. Tuver Group Gram Panchayat. A copy of the Notification dated 1.10.2007 is annexed as Annexure-A to the petition. Consequent upon the issuance of Notification dated 1.10.2007, the respondents have appointed an Administrator vide order dated 20.10.2007, for Unchidhanal Group Gram Panchayat and the newly-formed Tuver Group Gram Panchayat and further, by order dated 22.10.2007, the Administrator has been directed to take charge as such. The copies of the abovementioned orders are annexed as Annexure-H collectively. Being aggrieved by the issuance of Notification dated 1.10.2007 and orders dated 20.10.2007 and 22.10.2007, the petitioners have filed the present writ petition. SCA/26742/2007 6/38 JUDGMENT 4. An affidavit-in-reply has been filed by Mr.B.A.Gameti, Under Secretary, Panchayats and Rural Development Department, Gandhinagar, which has been affirmed on 14.12.2007, on behalf of the respondent No.1 (State Government), denying the averments made in the petition. It is stated in the said affidavit- in-reply that an application dated 7.6.2004 was sent by about 100 villagers of villages Tuver and Veekharan to the Sarpanch of Unchidhanal Group Gram Panchayat. A copy of this application is annexed as Annexure-RI to the reply. It is further stated that the proposal for bifurcation of Unchidhanal Group Gram Panchayat was also sent by way of a Resolution dated 3.7.2004 passed unanimously by Unchidhanal Group Gram Panchayat which also made mention of the application dated 7.6.2004 referred to above. A copy of the Resolution dated 3.7.2004 is annexed as Annexure-RII to the reply. It is emphasized that the petitioner No.2 in the present petition, who is the Sarpanch of Unchidhanal Group Gram SCA/26742/2007 7/38 JUDGMENT Panchayat, was also a member of the earlier body of the same Gram Panchayat, which had made the proposal dated 3.7.2004, wherein he has given his consent for the bifurcation of the Group Gram Panchayat. It is emphasized in the affidavit-in-reply of respondent No.1 that the proposal for bifurcation of Unchidhanal Group Gram Panchayat by splitting it into two Group Gram Panchayats was sent with the consent of the people as it would be in the interest of the public at large, looking to the administrative and geographical conditions and the distance between villages Tuver and Veekharan which is about 3.5 kms. It is stated that there are hardly any transportation facilities between the two villages, which results into wastage of time and resources of the people and, therefore, the bifurcation would benefit the people at large. It is further stated that when a Gram Panchayat is created, it is given various grants from the Government, for the development and progress of the concerned villages and for the welfare SCA/26742/2007 8/38 JUDGMENT of the villagers, under various heads. The affidavit goes on to state that the bifurcation of the erstwhile Unchidhanal Group Gram Panchayat into two Gram Panchayats will be beneficial to the people at large, since more grants will be made available to the newly formed Group Gram Panchayats, thereby enhancing the revenue of the newly-formed Panchayats which will be in the interest of public at large. Emphasis is laid on the fact that vide Resolution No.5 dated 8.8.2007, (Annexure-C to the petition), Unchidhanal Gram Panchayat had given consent for the bifurcation of the said Gram Panchayat and the Resolution was passed without objection from any of the members. However, after about nine days, the same Gram Panchayat passed another Resolution i.e. Resolution No.4 dated 17.8.2007 (Annexure-E to the petition) wherein it has changed its stand and has requested the respondent No.1 to postpone the bifurcation for a period of two years, but has not objected to the bifurcation in the longer run, SCA/26742/2007 9/38 JUDGMENT which goes to show that the Sarpanch does not want the bifurcation to take place till his term of office as such, expires. The thrust of the affidavit-in-reply of the respondent No.1 is, that the Notification dated 1.10.2007 has been issued after taking into consideration the representations of the people at large, the proposals sent by the Group Gram Panchayat and looking to the welfare of the people of the said villages and with a view to enhancing the possibilities of further development in these areas. It is, therefore, prayed that the petition be dismissed. 5. The respondent No.3 (District Development Officer, Sabarkantha) has filed an affidavit- in-reply dated 30.10.2007, denying the averments made in the petition and, more or less reiterating the averments made in the affidavit filed by the respondent No.1. It is stated therein that the bifurcation of the Panchayat has been carried out in accordance with law and after taking into consideration SCA/26742/2007 10/38 JUDGMENT the fact that the petitioner No.1 – Gram Panchayat has itself passed a Resolution for the bifurcation of the Panchayat, which was considered by the competent authorities and, only after taking into consideration the relevant factors and considering the objections and representations of the petitioners and other villagers, the decision to bifurcate the Panchayat was taken and the Notification to this effect issued. It is further stated that, as contemplated by the provisions of Section 261(1)(b) of the Act, an Administrator has been appointed for both the newly-formed Group Gram Panchayats, who has already taken over the charge. It is emphasized that there was due consultation with the Taluka Panchayat, District Panchayat and concerned Gram Panchayat, before the Notification was issued and, therefore, since the provisions of Section 7 of the Act have been complied with, the petition may be dismissed. SCA/26742/2007 11/38 JUDGMENT 6. The petitioner has filed an affidavit-in- rejoinder to the reply filed by the respondent No.3, denying the averments made therein and reiterating the averments made in the petition. 7. Ms.Sneha A.Joshi, learned counsel for the petitioners has submitted as under: (i) That prior to the issuance of the Notification dated 1.10.2007, in exercise of power conferred by Section 7 of the Act, the concerned villages comprising the erstwhile Unchidhanal Group Gram Panchayat were not consulted as required by the provisions of Section 7(2) of the Act. It is submitted by the learned counsel for the petitioner that the consultation, as envisaged by the provisions of Section 7(2) of the Act, should be genuine and effective consultation and not merely a paper-consultation, as was done in the present case. It is submitted that the respondents have not objectively considered the representations and objections of the SCA/26742/2007 12/38 JUDGMENT petitioner-Panchayat as well as the other villagers and since there is no effective and meaningful consultation, the impugned Notification dated 1.10.2007 deserves to be quashed and set aside. In support of the above submission, the learned counsel for the petitioners, has relied upon the decision in Nathabai M.Patel v. State of Gujarat & Ors. - 1993(2) GLR 992 and Pruthvisinh Amarsinh Chauhan v. K.D.Rawat & Ors. - 2005(4) GLR 2932 (ii) That as per Section 7(2) of the Act, before a Notification regarding bifurcation of a Gram Panchayat is issued, the word `consultation' comes into the picture and the same involves the element of adjudication, and in any adjudication, the principles of natural justice come into play. It is emphasized by Ms.Sneha A.Joshi that by issuing the impugned Notification, the respondents have violated the principles of natural justice by not affording an opportunity of hearing to the people at large who are adversely affected by SCA/26742/2007 13/38 JUDGMENT the impugned Notification. In support of this submission, the learned counsel for the petitioners has placed reliance on Baldev Singh and others v. State of Himachal Pradesh and others – AIR 1987 SC 1239. (iii) That initially, there was consultation with the Gram Panchayat but subsequently, after the passing of the second Resolution dated 17.8.2007, there was no fresh consultation which was necessary since by way of the second Resolution, the Gram Panchayat had opposed the bifurcation for a period of two years. It is submitted by Ms.Joshi that the respondents have not taken into consideration the changed circumstances and the representations and objections of the concerned Gram Panchayat, pointing out the difficulties likely to be caused to the public at large on account of administrative and geographical reasons, before passing the impugned Notification. (iv) That the impugned Resolution has been SCA/26742/2007 14/38 JUDGMENT passed on extraneous grounds, and only due to political reasons, as a poll-strategy with the intention to influence the rich and influential people of the concerned villages ahead of the elections for the Legislative Assembly, and, therefore, the impugned Notification having been issued with a malafide purpose, deserves to be struck down since it is nothing more than a political gimmick. (v) That the bifurcation of the Unchidhanal Group Gram Panchayat involves civil consequences to the people residing in the villages comprising the said Gram Panchayat, who will suffer adverse consequences due to the administrative and geographical conditions and, when civil consequences are involved, it is imperative that the affected parties be given an opportunity of hearing, which has not been done in the present case. (vi) That village Unchidhanal is centrally situated and is a developed village, the SCA/26742/2007 15/38 JUDGMENT revenue which is more than that of the other villages and, if the Unchidhanal Group Gram Panchayat is bifurcated, it will be difficult to run the administration of the other villages, looking to the population and annual revenue thereof. On the above grounds, it is urged by the learned counsel for the petitioners that the petition be allowed and the impugned Notification dated 1.10.2007 as well as the orders dated 20.10.2007 and 22.10.2007 be quashed and set aside. 8. Mr.Jaswant K.Shah, learned Assistant Government Pleader for the respondents Nos.1 and 2, has submitted that the decision to bifurcate Unchidhanal Group Gram Panchayat into two Group Gram Panchayats by separating villages Tuver and Veekharan therefrom, is a policy decision of the State Government, which has been taken after taking into consideration the representations and objections of the concerned Gram Panchayat as well as the people SCA/26742/2007 16/38 JUDGMENT of the area. It has been submitted by the learned Assistant Government Pleader that the decision to bifurcate Unchidhanal Group Gram Panchayat has been taken in the better interest of the public at large and the people of the concerned villages, looking to the geographical and administrative requirements of the area, and with a view to enhancing the developmental activities, for which various grants will be available to the newly-formed Gram Panchayats. It has been emphasized by the learned Assistant Government Pleader that there has been genuine and effective consultation with the concerned Gram Panchayat before the Notification dated 1.10.2007 has been issued. It is submitted that earlier, an application dated 7.6.2004 has been sent by the villagers of Tuver and Veekharan for bifurcation of Unchidhanal Group Gram Panchayat and thereafter, a proposal dated 3.7.2004 has been sent by the Sarpanch of Unchidhanal Group Gram Panchayat, consenting to the said bifurcation. It is, therefore, SCA/26742/2007 17/38 JUDGMENT submitted that since the people residing in the villages of Tuver, Veekharan and Unchidhanal Group Gram Panchayat were in favour of bifurcation, the respondents have rightly taken the decision to bifurcate the said Gram Panchayat, keeping in view the applications made by the villagers, and in the interest of the public at large. The learned Assistant Government Pleader has further submitted that on 8.8.2007, vide Resolution No.5, Unchidhanal Group Gram Panchayat has unanimously consented for the bifurcation of the Gram Panchayat and this Resolution was signed by the present respondent No.2, as well. However, after a few days, another Resolution dated 17.8.2007 was passed by the same Gram Panchayat, wherein the earlier stand was changed and it was requested to postpone the bifurcation for a period of two years. It has been emphasized by the learned Assistant Government Pleader that the petitioner No.1- Group Gram Panchayat has not objected to its bifurcation in principle, but has only SCA/26742/2007 18/38 JUDGMENT requested that the bifurcation be postponed for a period of two years, with an oblique motive to enable the present office-bearers to continue their term of office and, therefore, the petition deserves to be dismissed. Mr.Shah has submitted that there is no material on record in support of the allegation of the petitioners that the impugned Notification has been issued with political motives and, as such, the allegations are baseless. It is emphasized by Mr.Jaswant K.Shah that initially, a proposal for bifurcation has been sent in the year 2004 by Unchidhanal Group Gram Panchayat itself, and at that point of time, there were no impending elections to the Legislative Assembly in the State of Gujarat, and, therefore, the allegation of the learned counsel for the petitioners that the impugned Notification has been issued in order to gain political mileage, is without substance. It has been urged by the learned Assistant Government Pleader that the provisions of Section 7(2) of the Act have been complied SCA/26742/2007 19/38 JUDGMENT with, by engaging in effective and meaningful consultation with the concerned Taluka Panchayat, District Panchayat and the Unchidhanal Group Gram Panchayat, before passing the impugned Notification. Mr.Shah has further emphasized that the inquiry, as contemplated under the provisions of Section 7(1) of the Act, was undertaken before the Notification dated 1.10.2007 was issued and, therefore, since the action of the respondents does not suffer from any legal infirmity, the petition may be dismissed. 9. Mr.Manish J.Patel, learned counsel for the petitioner No.3, has submitted that the petitioners have not come to this Court with clean hands, inasmuch as, there is no Resolution of the petitioner No.1 - Unchidhanal Group Gram Panchayat on record whereby the Gram Panchayat has authorized the petitioners to file the present petition. It is further submitted by the learned counsel for the respondent No.3 that the petitioner SCA/26742/2007 20/38 JUDGMENT No.2 is the Sarpanch of Unchidhanal Group Gram Panchayat, who was also a signatory to the earlier Resolution dated 8.8.2007, whereby consent had been given for the bifurcation of the Gram Panchayat, and now the petitioners, including the petitioner No.2, have changed their stand by passing Resolution dated 17.8.2007, whereby a request has been made to postpone the bifurcation for a period of two years. It is emphasized by the learned counsel for the respondent No.3, that between the Resolutions dated 8.8.2007 and 17.8.2007, there is hardly a gap of 9 days and in this period there is no change of circumstances to justify the change in the stand of the Gram Panchayat and, it can therefore be inferred, that the second Resolution has been passed solely with a view to postpone the bifurcation of the Gram Panchayat till the term of the present body is completed. According Mr.Manish J.Patel, there has been full and effective consultation as far as the District Panchayat, Taluka Panchayat and Gram Panchayat SCA/26742/2007 21/38 JUDGMENT are concerned and the Notification has been issued after taking into consideration all aspects of the matter. 10. No other point has been urged by the learned counsel for the respective parties. 11. I have heard Ms.Sneha A.Joshi, learned counsel for the petitioners, Mr.Jaswant K.Shah, learned Assistant Government Pleader for the respondents No.1 and 2 and Mr.Manish J.Patel, learned counsel for the respondent No.3, at length and in great detail, and have gone through the pleadings of the parties as well as the documents annexed thereto. 12. Before I decide the issues that arise for adjudication, it would be fruitful to refer to the provisions of Section 7 of the Act which are reproduced hereinbelow: “7. Recommendation Specification of village: - 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 SCA/26742/2007 22/38 JUDGMENT 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 within or exclusion from any village any local area or otherwise alteration of limits of any village, or recommend cesser of any local area to be a village, to the Governor for exercise of his powers under clause (g) of article 243 of the Constitution.” The relevant provision in this regard is sub- section (2) of Section 7 which envisages, `consultation' with the Taluka Panchayat, District Panchayat and the concerned Village Panchayat by the competent authority, who may, at any time after such consultation, recommend the inclusion or exclusion from any village, any local area or alteration of the limits of any village, to the Governor, for exercise of powers under clause (g) of Article 243 of the Constitution of India. In other words, after making an inquiry, as prescribed under Section 7(1) and after consultation, as envisaged in Section 7(2) of the Act, the competent SCA/26742/2007 23/38 JUDGMENT authority may recommend the bifurcation, namely inclusion or exclusion of any village or local area, as prescribed in sub-section (2) to the Governor, and, consequently, a Notification to that effect, may be issued under the provisions of Section 7 of the Act. 13. A Full Bench of this Court in Pruthvisinh Amarsinh Chauhan v. K.D.Rawat & Ors. (supra) had occasion to deal exhaustively, with the requirement of consultation as envisaged in Section 7(2) of the Act. After dealing with the points referred to it for decision, it has been held in paragraphs 9 and 14 as under: “9. ... when the statute requires an authority to consult before taking action, the consultation should not be a mere formality, but must be genuine and meaningful, then only the object of incorporation of this cause in the statute by the makers of law would be fulfilled, particularly in the case before us the consultation would enable the authority to understand and evaluate the implications of the proposed stage on a section of society which is likely to be affected. The authority would know their point of view which would assist it in evaluating or judging the situation and take decision in the best interest of the society. SCA/26742/2007 24/38 JUDGMENT ... ... ... 14. After the consultation, once it culminates into a decision considering the pros and cons of the matter, the exercise comes to an end and chapter is closed. If it is proposed to make a fresh decision, in our opinion, it would be a new chapter and fresh exercise of consultation would be necessary. It will have to be examined whether there is change in circumstance or not and if so, what are the changes and for that reason, what is the view point of the Panchayat - the affected party. This requirement of law has to be, thus, saluted as if it is altogether a new proposal for decision on aspect of bifurcation.” Summing upon its conclusions, the Full Bench answered the points referred for its determination as under: “16. In view of the above discussion, the points for our determination are answered as under : (i) The term 'Consultation' has to be taken as an effective and meaningful and genuine consultation and not a formality. (ii) There is no conflict between the ratio laid down in the case of Nathabhai (supra) and Likhi Group of Gram Panchayat (supra). The conclusions are based on fact of each case, but, there is no conflict in the ratio. (iii) If proposal has culminated into a SCA/26742/2007 25/38 JUDGMENT decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure therefrom may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken.” 14. In paragraph 13.1 of the judgment, the Full Bench has held that though the requirement of consultation is not mandatory but is directory, the