Af^. PETITIONER: H10H COURT OF CHHATTISGARH AT BILASPUR Writ_petition (a No.6598 of 2008 Smt. Umeshawari Bai "-^ Versus RE:SPONDE_NTS: State of Chhattisgarh and others ORDBRrORCONSroERATIOBi HON'BLB SHM R.N. CHANDRAKAR, J °) o-y^^- .^ Sd/- JUDGE r-2-2010 Sd/- R.N.Chandrakar Judge POST FQR ORDBR ON ^ FBBRUARY, 2QI& Sd/- Dhirendra Mishra Judge tt) =r-—^ 1 COURT OF CHHATTISGARIi AT BILASPUR W'rft Petition (Q No.6598 of 2008 PETITIONER: Smt, Uinesliawari Bai, wife of Deoshaaker, aged 26 years, Saiyan.ch, Grain Paiichayat Garakata, Tahsil Kuiikuri, District Jashpur (Chhattisgarli) Versus RESPQNDENTS: 3. 4, State of Chhattisgarh, fliroiigh Joiiit Secretaiy, Town AdiQ.inistration and DevelopBient DKS Bhawaii, Raipur (Chhattisgarh) Commissioner Ciim Assistant Secretar}7 Town Adiliiaistration aiid Developm.ent Depailio.eiit, DKS Bhawan, Raipur (Chhattisgarh) Sub-Divisional Ofilcer, Kiinkuri, Tahsil Kniikuri, Distdct Jashpur (Chhattigarh) Chief. -Executive Officer, Jaiipad Paiichayat Kimkuri, • Talisil K'ankiiri, District Jashpur (Chhattisgai'h) ,5. Collector, Jashpur, Jashpur (CG) District. Present: Shri J,S, Barailc, coiuisel for the petitioner. Shri Vmay Hadt, Depuly Advocate General with Shri S,K. Mishra, Paiiel Lawyer fbr the State/respondents, Divisson Beacfa: Hoa. Shri Dhirendra Mishra & Hoa< Shri R-«N, Chaadtafear^ JJ, O RD E R (Passed onJ^Febmary, 2010) The foUowm.g oider of the Court was passed by DhireBdra Mlslira^ J. 1. The petitioner by fhe rastsiit petition ha.s prayed for declaiing the noti&cation published m tlie Rajpatra dated. 3rd Se-pte.m.ber, 2008 (Annexure-P/2)' in.effective whereby Nagar Pao.chayat . Kunkuri, ^ District Ja.shpur has been coustituted by amalgainatmg existiog Revenue vfflage Gadakata and Grain Paiichayat Kiiokuri and notice dated 29-9-2008 (Aiinexure-P/ 1) issued by the Collector, Jaslipur in exercise of powers xinder Section 126 (2) of tlie Chhattisgarh PaBC.hayat Raj Adhiniyaui, 1993 (ft>r short 'fb.e Act') disestablishiag Grain Paiichayat Gadakata consisting ofviUage Gadakata on accoTint of constitution ofNagar Paiichayat Kunkuxi. 2. The ca-se of th.e peti.tioner is that she is e.1ected Sarpaii.ch of Gram Panchayat Gadakata. The. CoUector vide order dated 29-9-2008 (Annexiire-P/1) disestabMshed Gram Paachayat Kiinkxiri aiid Gadakata on t.he ground that vide uotification date.cl 3rd September, 2008 published in. tlie Chhattisgarh Gazette (Extraordinary) Nagar Paiichayat Kunkiiri has been constitiited consistmg of Gram. Paiichayat Kunkuri and Gram. Paiichayat Gadalcata. Copy of this orderwas endorsed to the petitioBer also. 3> Aft.er obtaiuirj.g certlfied copy ofthe order dated 15-9-2008 passed by t'he Conimissioner cuin Co-Secretary 'of the Dii'ectorate of Towii Adm.iiiistration and Development, Chhattisgarh., ttie peti.tk?ner cam.e to know th.at an .order has been passed iinder Section 7 of tli.e Chhattisgarh MimicipaBties Act, 1961 (for short. 'the Act of 1961'} (Annexure-P/4) n'questm.g the Collector to initiate proceedmg of disestab'llshmeiit iinder Section 126 (2) ofthe Act. 4. The petitioner aiid o'flier villagers siibmitted fheir' represen.tatio.n (,Annexure-P/5) dated 2nd October, 2008 to the CoUector throu-gh SDO Kunkuri aiid reqiiested not to disestabli.sh Gram Pancliayat Gadalcata as village Gadakata was not iii traiisition froisi siiral area to iirban. area, On inspection of tlxe proceeding register of the ^s^ ?j Paiichayat, fhe petitioner discovered that Paachayat Secretsiy under undue pressure aiid direction of respoudent No.4, tlie Chief Executive Officer, Jaiipad Paachayat KziBkuri, fabricated a false entiy as para-11 ia fhe proceediag dated 3-7-2008 that Grain Pajachayat has passed resohition for iiicludiiig Gram Paachayat Gadalcata iii fhe area of Nagar Panchayat Kiinkuri. 5. Another representation was submitted agaiast the false eiitiy by tiie petitioner and vitlagers to fhe Sub Divisional Officer vide Annexure- P/6. The SDO foi^^arded flieir representation to the-CoUector, Jaslipur for needful action vide Aniiexure-P/7, The CoUector issued a notice dated 30-9-2008 (Annexiire-P/8) imder Section 125 of fhe Act aiid proposed to ainalganiate Lotapaiii viUage of disestablisbed Graiii Paochayat Gadakata to tlie ai'ea of Gram Pajichayat Kharijhariya aad invited objections. 6. I^eamed coiinsel for fhe petitioner subinitted that the State Govenim.ent iii exercise ofpowers conferred by Section 5(l)(b) ofthe Act of 1961 issued a iiotification dated 5th July, 2008 siguifyuig its mteution for constitation of Nagar Paachayat Kunkuri, The boundaries offhe proposed Nagar Paachayat Kunkuri were shown as existiiig revenue v.illage and Gram. Pan-chayat Kunkiiri. The objectioiis were invited iii writing froia the persons and local aufbority wifhiii 30 days froni the date of pubUcation against tfae aforesaid iiitention, Froni bare pesiisal of tlie notification, it is evident that by flie saicl notification, no mtention was sigiiified for amalgamatiiig Gram Paiichayat Gadakata and its dependent vfflages. However, vide notification of Annexzire-P/ 2 published iii the official gazette, Nagar Pai^chayat Kunkuri was coustitiited with the l^ boxindaries of Grajii. Panchayat Kunkuri. and . reve.ni.ie vfflage Gadakata witbout issuiag any piibUc notice. 7. Refernng to Section 5 of fhe Act of 1961, it was argued tliat vfflage Gadakata is not a vfflage in. traiisition to the ux'b?aji area and the Govenior has not declared Gadakata as braiisitional ai'ea by pubUc notification io. fh.e official gajzette as reqiiired under Section 5 (2) of the Act of 1961 aad also under Article 243Q(2) of fhe Constitution. Vide notification of Annexure-P/9 dated 5-7-2008, mtention to coiistitute Nagar Paiichayat Kiinkuri in place of Grain Paiichayat Kunkijri was signified. The boundaries of Nagar Peiichayat Kzmkiiri were proposed to be fhe boimdaries of existing revenixe village aiid •Gi'exri Pa.nchayat Kunkuri. However, wh.ii.e constitutiiig Nagar Paiichayat KuBkijri by m.cludmg village Kunkiiri and Gadakata as ite bonndaries vide Annexure-P/2, uo iiotice was issued to tibe viUagers nor fiie saine was afGxed in. the public place. Thus, constitiition of Nagar Panchayat Kuukuri by including village Gadakata is in violation of Article 243Q of the Constitution of India as weU as Section 5 of the Act of 1961. The order of Annexure-P/ 1 passed by the Collector disestabUshing Graai Panchayat Gadakata under Section 126 (2) ofthe Act is also illegal, as aibresaid order has been passed without issuiag asiy notice as conteixiplated under Section 126(1) oftheAct. 8. Ou the ofher haad, Shri Vinaiy Haiit leamed Deputy .Advocate Genersl appearing on behatt'of the State/respondeijts argued fiiat tlie petitioner has iBipugned constitution of Nagai' Paiichayat Kunkuri by inchxding village Gadakata wifhm. its boundaries, However, frojn. the averments in tlie petition, it is not clear as to bow •,y^-^^ '•%. ^... ^ ,. ^ ^•r^y •"^.---^ • ^- iel the petitioner or tb.e residents of village Gadakata shall be adversety affected by tlie aforesaid action. Grain Paiichayat Gadakata was inchided as per resotutiou of the Gram Paiichayat Gadakata vide Annexiire-R/1. The Sub Divisional Officer (Revernie) vide its mem.o dated 5-4-2008 (Aiinexure-R/3) subniitted a proposal for coiistitiitioD. of Nagar Panchayat Kunkiiri along with resoiiition of Gx'am Paiichayat Gadakata keepuig ia view the criteria fixed for ti'aasitional area as notifled under Annexure-R/2. On tbe basis of aforesaid proposal, notilication. of Anuexure-P/9 was issued. Since no objections were filed aiter publication of notificatiou ofAnnexure-P/9 witliiri tbe stipulated period, notification of Annexure-P/2 constituting Nagar Paiichayat Kiinkuriwas issued, 9. We have heard learaed counsel for the parties. 10, Indisputably, fhe proceediugs were commenced for constitution of Nager Paiichayat Kunkzui. Grain Panchayat Kunkuri aod Graiii Paiichayat Gadakata were two d.ifferent Paiichayats witli its separa.te elected office beai'ers, The petitioner was Sarpanch of Graxn Paachayat Gadakata, The Sub Divisional Officer (Revenue) vide its iiienio dated 5th April, 2008 addressed to the Collector, Jashpur m reference to memo dated 4th Apiil, 2008 of the Collector, proposed coustitiitiori of Nagar Paiichayat by iiicludiog Grain Paiichayat Kunkuri aiid Gadakata. He also aanexed fhe resotutbu ofthe Gram. Panchayat Gadakata expressmg its consent witli the above proposal. The State Gove.nisnent vide its notification dated 5th July, 2008 (Annexure-P/9) signified its mtentk)n to constitiite Nagar Panchayat Kunloiri in. place ofGraia Paiichayat Kunkiui with vitlage Kunkiiri as boiiRdaiies of tlle proposed Nagar Paiichayat an.d invited objectioris. l^ llJn iiotificatiou of Annexure-P/9, village Gadakata was not incmded witltiji tlie proposed boiindaries of Nagar Paiichayat Kzinkuri, tliereaiter notification of Annexure-P/2 dated 3rd Septesiiber, 2008 was issiied whereby Nagar Paiichaya.t Kunkiiri was coiistituted by m.cliidin.g village Kiinkiiri aad Gadakata within its boundades, By the said notification, it was also noti&ed tliat the present elected Gram Pajichayat Kunkuri shaU. contiiiue to function as Nagar Parichayat for fhe purposes oftl.ie Act of 1.961 till newly elected Nagar Pa.nchayat of Kiinlcuri i.s constituted.. The Collector, Jashpur vide order dated 29-9-2008 disestabUshed Grain Pajichayat "Kiiiikuri and Gi-am Paiichayat Gadakata on accouut of constitiition of Nagar Paiichayat Kunkiui in purported exercise ofpower iinder Sectioii 126 (2) offhe Act. 12> Pail l.XA ofthe Constitution, which deals wifh the MunicipaMties, was miserted iu the Constitution vide Eighty-ffaird constitutiou amendment with effect from 8-9-2000. Ajiticle 243-Q deals wifh coBstitution of.municipaHties. Article 243-Q (2) i^ads a.s under:- {tln this article, 'a transitional area', 'a smaEer tirbaii .ai<ea? or 'a larger urbaxi area? iQ.eeiis such. area as th.e Govemor may, having regard to tlie population of fhe area, fhe density of fhe populatioii,' there.in, the revenue gCD-erated for local a.dmiiiistration, the pe.rcea.ta.ge of exnploym.ent in no.n-agricultiiral activities, fh.e econoinic im.portaD.ee or siich other factors a.s he niay deexn. fit, specify by piiblic notification fbr the piirposes o.fthis Part/" IS.Section 5 of the Act of 1961 deals wifh constitution of NIunicipsl Councii.s and Nagsi' Paiic'haya.ts w.h.ich reads as iiiider:-. "(1) Th.ere shaUbe constituted.,- /°5 ^.. ^ (a) a. Municipal Coiia.cil for a sinaller urbaxi area; aiid (b) a Nagar Pan.chayat for a transitional area, that is to say, aii ai'ea m &aaisition from a rural ax'ea to aa zirban area: Provided fhat a Municipal Coiincil or a Nagar Paj^chayat, as the case may be, xaay not be. constituted in siich iirbaix area or pait fhereof as tiie Govenior may, havisig regard to the size of tbe ai'ea and fhe municipal services berag provided or proposed to be provided by aii industdal establishnient or a group of such estabMsh.ments BI tliat ai-ea aiid such other i:a<"tors as he raay deeni fit, by public notification specify to be aii nidustrial township: Provided further that. when aii ai'ea is n.otified to be a tr8jisitional area, the Grajn Paachayat haviiig j^iri.sdictioii over siich area shall contm.iie to tun.ction until a. du.ly elected nagar Paiicliayat is coB.stituted nnder this Act. (2) In fhis section, 'a smaller urbaii area? or a trao.sitioual area' nieans such area as the Govenior m.ay, having regard to tlie popiilation of tJie ar'ea, tlie density of the population ttierein., th.e revenue ^enerated for local administration, the percentage of employnient iii non-agricultui'al actwities, fhe economic inxpoilance or siich other factors^ as he niay deexa fit, spectfy, by pubMc notification for the purposes oftliis Act?? 14. FIDHI plara reading ofthe aibresaid provisions ofthe Constitution and €tie Act of 1961^ it is maiiifestiy clear fiiat the Nagar Pajichayat for a transitioD.el area xnay be coBstituted by piib'iication of nottflcation iii the officiai gajzette. By iiotificatioii of Annexure-P/9 Hitention to constitute Nagar Panchayat Kunkuri ^vith Grain Panchayat Kiinkuri as its boundar}7 was notiiied and objections were rDvited from tbe local. bodies aiid a.11 concei'ned wifhin a peiiod of 30 days from the ^ i^kx^-> ^ ^.;^'' pubUcation of tbat notice. In tiie said notification, Gadakata was ?iot iacluded wifhia the boundaries of Nagar Panchayat Kunkuii. IS.The avenzieiit of the respondents/State in pai'a 10 aiid 11 ofreturn that notification of Annexiire-P/9 invitiBg objectious was issiied as per tJie proposal offlie Si.lb Divisiosial Offlcer ofAnnexiire-R/3 is not substantiated from. the notificatiou of Annexure-P/9 as Graja Panchayat Gadakata is not iuciuded m the boundaries of proposed Nagar Paixchayat Kunkuri. 16.The contention of tlie petitioner is that resolution of Annexiire-R/1 was iutei-polated in tbe proceedmgs book with the connivaBce of fhe Secretai^r of fhe Gi-ara Paiichaya.t aiid no resohition was passed m the Grain Sabha ofGram Panchayat Gadakata expressing its consent to iaclude Graai Pao.chayat Gadakata and its dependent villages Gadalcata, Ramadand and Lotapaoi in Nagar Paiichayat Kunkiiri. Even ofherwise, since therc was uo proposal in. the notification of Aiinexure-P/9 to iiiclude Grain Paucha^^at Gadakata or its dependent vfflages in the proposed Nagar Panchayat Kiinktiri, question of siibmittuig any objectioii agaiast constitution of Nagar Paachayat Kunkiiri by Gram Pajichayat Gadakata or its mhabitaiits does not anse. 17 By noti&cation of Annexure-P/2 dated 3rd Septenxber, 2008 Nagar Panchayat Kiuikuri is constituted by including village Kunkuri and Gadakata witlibi its bouudaries. The said notification furtiier stiptilates tliat elected Graiii Paiicheyat at Kunkuri shatl continue to fyiiction as Nagar Paiichayat till newty elected Nagar Paiichayat Kiuikuri is constitiited. Vide notification of ABnexure-P/9 Nagar Pajichayat Kunkuri wifii vffiage Kunkuri. was pi-oposed to be ^ constituted aad objections were iavited, However, before constitutiiig Nagar Paiichayat Kunlairi aad iiicludHig viUage Gadakata within its boundaries vide Annexure-P/2, no notiiication was issued declaring Gadakata as a teaasitional area, as required ziuder Article 243-Q (2) or Section 5 (2) ofthe Act of1961. 18. By issuance of notification ofAnnexure-P/2, it was also notified that elected Grain Paachayat Kunkuri would discharge the functions of Nagar Paachayat Kunkiiri tiU Nagar Paiichayat Kiinl-oiri is constitxited. Thus, froni notification ofAnnexure-P/9 aad Annexiire- P/2, it is manifesfly clear tliat iaitially Nagar Paiichayat Kzinkuri was proposed to be constituted aiid fhereafter it was coastitated and viUage Gadakata which fell withni the boundaries of Grain Panchayat Gadalo.ta was excluded from. Grain Panchayat Gadakata aad iiicluded iu Nagar Paiichayat Kunkiiri vide notiiication of Annexure- P/2. 19. Before inchiduig or excludiag any area froin the Imiits of niunicipal arca, it was iricumbent on fhe part of the State Goveniinent to issue pul)Uc notification declarmg its intention to do so ai3.d consider objecdons of the local autliority haviag jurisdictioB m fhe said area or acy person resident therehi as provided iinder Section 5-A of tlie Act of 1961. Every uotification under Section 5 or Section 5-A is to be piibMshed ia the offlcial gazette aud also ia at-least one Hindi newspaper havnig circulation in tlie area to which it relates. A copy of szich notilication is to be furfher pubUshed m tlie ofSce of fhe Collector, MunicipaMty and the area affected by uotification as provided under Section 6 offhe Act of1961. .^y".^ yl \ ^•^^^^^^ ^ 1 ^ l.3J <""'?€^.':- t^ 10 20. In tlie Histant case, we observe fhat fhere is total non-compliaiice of Section 5 (2) of fhe Act of 1961 rcad wifh Article 243-Q(2) of tlie Constitiition of India, as no notification was issued declariag Gadakata as transitional area. Village Gadakata was uicluded witliin tlie boundaries of Nagar Paiichayat Kunkuri vide notification of Anneuxre-P/2 withoiit notification as contemplated uuder Section 5- A of t±ie Act of 1961. Section 126 of the Act provides that the Govemor or aufhorily aufliorized by hiixi may by an order in writiiig disestablish the viUage, however, no such order disestablishiTig fbe vfflage can be issued unless a notice of tlie proposal iaviti?ig objection froin tlie persons Mkely to be aflected thereby is published in the prescribed manner and the objections received and have been coiisidered, 21. In flie instaiit case, fhe order of Annexure-P/ 1 was passed under Section 126(2) oftlie Act and vUlage Gadakata was disestablished on accoixnt of constittition of Nagar Pajichayat Kunkiiii, however, froxn bare readiiig of the on3en it is clear thaf no notice as coTitemplated under Section 126(1) iavitbig objections froiii fhe persons likely to be affected was issued. 22.0n tlie basis of atbresaid discussion, we are of the opiiiion fhat constitxition of Nagar Paiichayat Kiinkiui vide gazette notification of Aiiuexure-P/2 dated 3rd September, 2008 mcludiiig village Gadakata witliin its boundades is illegal aiid agaiast the constitutional provisions ofArticle 243-Q (2) ofthe ConstitLition of India. Similsrty, tlie order of Annexure-P/1 passed by fhe CoUector, Jashpiir, disestablishiBg Gram Pai3chayat Cyadakata on account of constitutlon of Nagar Panchayat Kuiikuri caii also not be sustamed, BSSSSS^.L.ZZ^: ^^r:'^?-;-^ y/^'^:- \ M 1 ^. ^ JJ ^ I^.JS^" 11 ^ (Of 23. In tlie result, the petition is allowed aiid the order of Annexure-P/ 1 passed by ffae Collector, Jashpiir disestablishiag Gram Pasicliayat Gadakata on account of constitution of Nagax Panchayat Kunkiiri and gazette notification ofAnnexiire-P/2 dated 3rd Septemben 2008^ constituting Nagar Paiichayat Kzinkuii witli revenue village Gadakata aiid. (3-raiii Pan.chayat Kuiiknri as its looundaries ai'e hereby qiiashed, No orders as to costs. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Barw