BHALOD GRAM PANCHAYAT v. STATE — 1985 DIGILAW 228 (GUJ)

A. M. AHMADI, J. ( 1 ) THE short question whicharises for consideration this petition is whether the State Government can exercise Power conferred upon ii by sec. 7a of the Busboy Land Revenue Code (hereinafter referred to as the Code) to alter or to add to the limits of a village which has the effect of altering the geographical limits of a gram Panchayat without following the procedure: outlined in sec. 9 (1) of the Gujarat Panchayat Act 1961 (hereinafter the procedure the Act ). The short facts leading to this Irritation are as under. ( 2 ) UNTIL 1970 Bhalod Rule and Pranked villages formed part of on. group gram panchayat. On 5th/ 6/08/1968 river Narbada was in spate and certain low lying areas of Bhalod and Tothidra villages were submerged necessitating the rehabilitation of 207 affected families on Survey Nos. 533. 534 and 535 of village Rundh. As Survey No. 535 was Gauchar land it was surrendared to Government to enable its merger in the village site of Rundh. Subse quently in February 197g the Collector of Broach allotted plots admeasuring 183 square yards to 101 affected families on their surrendering their right title and interest in their previous holdings. On the trifurcation of the group gram panchayat in 1970 Here separate gram Panchayat for villages Bhalod Rundh and Pranked came into existence. Once again in 1970 Bhalod faced floods rendering several families homeless. Under the rehabilitation programme under taken by the authorities on this occasion the flood affected families were settled on Survey Nos. 539 540 546 to 551 and 316 of Rundh village which were acquired by the Government for rehabilitating these families. The petitioners aver that the names of these rehabilitated purpose were included in the voters list prepared for village Rundh under the Representation of the people Act and they voted as such at the election I of Rundh Gram Panchayat and one of them Shri Ratnabhai came to be elected as a member of the Rudh Gram Panchayat. Thus. according to the petitioners the poisons rehabilitated. in Rundh village became yes dents are voters of the village and exercised their franchise accordingly. The Rundh Gram Panchayat also passed a Resolution at its special meeting held on 16/05/1971 that these rehabilitated persons should be sub ject to the judicial of the Rundh Gram Panchayat. Thus. according to the petitioners the poisons rehabilitated. in Rundh village became yes dents are voters of the village and exercised their franchise accordingly. The Rundh Gram Panchayat also passed a Resolution at its special meeting held on 16/05/1971 that these rehabilitated persons should be sub ject to the judicial of the Rundh Gram Panchayat. However by a subquent resolution passed by the Rundh Gram Panchayat. on 4/10/1975 it expressed the view that the flood affected people of Bhalod village rehabilitate ed on Rundh village Elite should be included in the Rundh Gram Panchayat on condition treat a proportionate revenue grant in respect of the rehabilitated people is allocated to it. Thereupon the Bhalod Gram Panchayat passed a resolution by majority dated 3/10/1975 that the flood affected persons resolution by majority Rundh village in 1970 should be included within the Bhalod Gram Panchayat. Four member of the panchayat were however of the view that a back reference ought to be made to the Taluka-Panchayat for seeking explanation of certain matters before taking a final decision. However the Executive Committee of the Broach District Panchayat at its meeting held on 27/10/1975 resolved that the families rehabilitated in Rundh village in 1968 and 1970 should the treated as earth of Rundh. Gram Panchayat and a recommendation to that effect be made to the Government Pursuant to the said resolution the Mamlatdar Jhagadia passed-an order dated 14/06/1976 including the rehabilitated persons in the porter list of Rundh village for all proposes including hat of election. Accordingly the members of these flood affected families rehabilitated in the local area of Rundh village voted in the Taluka Panchayat elections. Legislative Assembly elections and Parliament elections as belonging to Rundh village. It will be seen from the above facts that for all practical propose the rehabilitated families formed part of the Rundh village populace ( 3 ) IN connection with the Resolution passed by the Bhalod village panchayat on 3/10/1975 the Collector of Branch addressed a matter dated 30/08/1977 to the Sarpanch of Bhalod gram panchayat that the said resolution was ambiguous and called upon the Panchayat of pass another resolution for the conclusion of areas of Rundh on which the food affected families were rehabilitated into the local area of Bhalod. The Bhalod Gram Panchayat considered the letter at its meeting of 20/09/1977 but it did not favour the merger of the already on the of Rundh on which the flood affected families were settled into the local area of Bhalod. One member of the Bhalod Gram Panchayat preferred an appeal against the said resolution to the stayed the operation of the said resolution. The appeal was ultimately dismissed the other hand the Rundh Gram Panchayat hand at it smoothing of 7/04/1976 resolved that the revenue survey numbers on which the flood affected families were settled should be excluded form the local area of Rundh had and be merged with the local area of Bhalod. it is evident form the above resolution not writing to the merger of the made into the local area of 1/12/1977 under Government ultimately passed the impugned order of 1st December followed attracted sec. 7a of the Code merging the survey number of which the flood affected The resolution contend that this order was passed by the Government ongoing the resolution passed by the Bhalod Gram Panchayat on 20/09/1977 presumably because because the same was stayed by the Broach District Panchayat in appeal. ( 4 ) THE petitioners contend that the power conferred upon the State Government under sec. 7a of the Code is superseded or stands sociably amended. modified by virtue of the proviso contained in sec. 9 of the Act which inter alia confers power in the State Government to include within. and exclude form any gram any local area or otherwise later the limits of any Gram of declare that may local area shall serrate of a be area only after conclusion with the concerned taluka distinct and nager panchayats. They contend that since no notifications has been issued concerned panchayats the power exercise in isolation conclusion the concerned panchayats and cannot have the effect to including under sec. 7a of the Code is of no avail and cannot have the effect of including the said survey numbers the local area of Bhalod Gram Panchayat. The petitioners contend that the survey numbers of Rundh village on which the 1968. 7a of the Code is of no avail and cannot have the effect of including the said survey numbers the local area of Bhalod Gram Panchayat. The petitioners contend that the survey numbers of Rundh village on which the 1968. and 1970 flood victims have been settled are not contiguous with the local 4wa of Bhalod and their merger with Bhalod Gram Panchayat would leave intervene ing pockets belonging to Rundh Gram Panchayat which would only add to administrative problems and render the collection on octroi etc. difficult and would throw an excessive burden on the Bhalod Gram Panchayat to provide services to the said area. The petitioners therefore counted that the exclusion of these areas from Rundh Gram Panchayat and their inclusion in the Bhalod Gram Panchayat is mala find and based on extras considerations. The petitioners therefor 1977 is unenforceable since no notification as required by 1/12/1977 is unenforceable since no notification as required by sec. 9 (2) of the Act has been issued after affective consultation with the concerned Panchayat. ( 5 ) ON behalf of the State Government the In charge Collector of Broach Shri C. K. Desai has filed an affidavit stating that the State of Government his exercised power under sec. 7a of the Code after consultation with the District Panchayat keeping in view the administrative conveniences public interest and geographical reason for the merger of the said Rundh area into Bhalod area. On the question of consultation with the concerned Panchayat the said officer has deposed that it is not necessary to consult the various Panchayat and hence the question of effective consultation does not arise are all as the relation is passed under sec. 7 A of the Code and not under sec. 9 of the Act. He has denied the allegation that the view of the Bhalod Gram Panchayat were not considered. He states that The rehabilitated persons of Bhalod village bins socially related to the people of that village it was thought necessary to include the area occupied by them Rundh village into Bhalod village and accordingly the Rundh Gram Panchayat had by its resolution dated 7/04/1976 agreed to the transfer of the said area in Bhalod Gram Panchayat. He states that The rehabilitated persons of Bhalod village bins socially related to the people of that village it was thought necessary to include the area occupied by them Rundh village into Bhalod village and accordingly the Rundh Gram Panchayat had by its resolution dated 7/04/1976 agreed to the transfer of the said area in Bhalod Gram Panchayat. He further states; that the Bhalod Gram Panchayat had also passed a resolution on 3/10/1975 by majority to that effect but when a clarification was sought by the Collectors letter of 30/08/1977 it resolved on 20/09/1977 against the inclusion of the Rundh area occupied by the flood victims in the local area of Bhalod Gram Pitchout. It is further stated that the taluka panchayat and the District panchayat have by their Resolution No. 5 dated 25/02/1976 and Resolution No. 105 dated 5/05/1976 respectively agree to the transfer of the said area to Bhalod Gram Panchayat. He therefore states that after proper consultation with the concerned Panchayat the Sate Government passedthe impugned resolution in exercise of power conferred upon it by sec. 7a of the Code. He however concedes that no notification has been issued under sec. 9 of the Act ( 6 ) IN the affidavit-in-rejoinder filed by the Sarpanch of Bhalod Gram panchayat it is reiterated that there was no effective consultation with the concerned Panchayat before the impugned resolution was passed by the State Government under sec 7 A of the Code. Pointing out several administrative difficulties likely to be caused on the inclusion of the said village within the local area of Bhalod Gram Panchayat the Sarpanch states that in the absence of a notification under sec. 9 of the area cannot included within the Bhalod Gram ( 7 ) THE Collector of Broach filed an additional affidavit reiterating the fact that the concerned panchayats were consulted before the impugned resolution was passed under sec. 7a of the Code. It is however conceded that no notification has been issued under sec. 9 of the Act. ( 8 ) IN the background of the above facts we are required to consider whether the impugned notification can be legally sustained. 7a of the Code. It is however conceded that no notification has been issued under sec. 9 of the Act. ( 8 ) IN the background of the above facts we are required to consider whether the impugned notification can be legally sustained. Sec. 7a of the Code reads as under :-"7 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". By the impugned order Annexure N dated 1/12/1977 the State Government carved out the Survey Numbers on which the flood victims were settled from the area of Rundh village and added them to the limits of Bhalod village. It is clear on a plain reading of sec. 7a of the Code that the State Government is empowered to alter or add to the limits of any village without the need to consult the residents of the concerned areas. However after the Counting into force of the Act a three tier panchayati raj system was introduced in the State. In each district a Gramnagar Panchayat a taluka panchayat and a district panchayat came to be established. By sec. 9 (1) a local area comprising revenue village or a group of revenue villages or hamlets forming part of a revenue village or such other administrative unit or pare thereof could be declar-ed to be a nagar or a gram depending on the population of such local area. By sec. 9 (1) a local area comprising revenue village or a group of revenue villages or hamlets forming part of a revenue village or such other administrative unit or pare thereof could be declar-ed to be a nagar or a gram depending on the population of such local area. Sec. 9 with which we are presently concerned provides as under:-"9 (2) After consultation 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 after the limits of any nagar or gram of (b) declare that any local area shall cease to be nagar or gram or (b) having regard to clauses (a) and (b) of sub-section (1) declare the whole area comprised in a gram or the part thereof to be a nagar or two or more gram 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 the case may be". It is clear on a plain reading of this sub-section before the State Government exercises power under this provision it must consult the taluka panchayat the district panchayat and the gram panchayat concerned Failure to do so would render the exercise of power ineffective. Only after the concerned Panchayat have been consulted that the State Government can exercise power by issuing a notification in the Official Gazette. Admittedly in the present case no notification has been issued under this sub-section. The question then is whether the State Government can in exercise of power under sec. 7a of the Code and without resort to sec 9 (2) of the Act alter the limits of a village which has the effectof altering the local areas of two gram panchayats ? The question then is whether the State Government can in exercise of power under sec. 7a of the Code and without resort to sec 9 (2) of the Act alter the limits of a village which has the effectof altering the local areas of two gram panchayats ? In the present case certain survey numbers belonging to Rundh village were-excluded from that village and were included in Bhalod village by the impugned order under sec. 7 of the Code which has the effect of enlarging the local area of Bhalod Gram Panchayat. Can this be done without following the procedure outlined in sec. 9 of the Act ? ( 9 ) SEC. 7a of the Code empowers the state Government to after add to the limits of any village or amalgamate two or more villages or Constitute a new village. The impugned order Annexure N was in-disputably passed under this provision. It is also clear from the affidavit-in-reply filed on behalf of the State Government that no notification under sec. 9 of the Act was issued. In the first affidavit-in-reply filed on 25/10/1980 the deponent while emphasising that the impugned order was issued under sec. 7a of the Code (vide paragraphs 17 and 23) has further averred in paragraph 2 that the District Panchayat was consulted before exercise of the said power. At that same time while dealing with the averment in the petition that there was no effective consultation with the concerned panchayats the deponent proceed to state in paragraph 18 of the affidavit as under:-"it is not necessary to consult various panchayats as stated by the petitioner. Hence there is no question of effective consultation at all. I submit that consultation is required under Panchayats Act and no resolution has been issued nuder the said act". It is reiterated in paragraph 19 that no notification had been issued under sec. 9 of the Act. The Sarpanch of Bhalod Gram Panchayat then filed an affidavit-inrejoinder and in paragraph 8 thereof he reiterated the fact that there was no effective consultation with the Gram Taluka and District Panchayats in this behalf In answer to the said affidavit the Collector of Bharuch filed a further affidavit denying the allegation that there was no effective consultation and added in paragraph 4 as under:"the impugned order was passed after going through all the formalities contemplated under sec. 9 of the Gujarat Panchayats Act". 9 of the Gujarat Panchayats Act". ( 10 ) WHAT is the picture that emerges from the averment made by two different officers of the State Government ? One thing that clearly emerges is that the order was issued in exercise of power conferred by sec. 7a of the Code and not under sec. 9 of the Act. Yet it is tried to be made out that there was prior consultation with the concerned panchayats in this behalf in the last affi-davit filed by the Collector we are told that even though the power was being exercised under sec. 7a of the Code the procedure contemplated by sec. 9 of the Act was followed. In other words power was purported to be exercised under one statute while the procedure set out in another statute was followed. In order to satisfy myself if by way of caution consultation with the concerned panchayats had preceded the exercise of power may be under sec. 7a of the Code I called up on the State Government to produce the relevant files evidenc-ing such consultation before this Court. Even though time was granted more than once to produce the relevant files the learned Government Pleader finally informed this Court that he was not in a position to produce the file as it could not be traced. This raises a serious doubt regarding the factum of consultation with the concerned panchyats. Ordinarily it is difficult to believe that when the Government did not contemplate resorting to sec. 9 of the Act it would follow the procedure outlined by that provision for the exercise of power under an altogether different statute namely sec. 7a of the Code. With the supporting evidence in the form of notings and correspondence not forthcoming it is difficult to accept the bald statement of the Collector made in November 1984 in regard to events that took place in 1977 and before. I am therefore of the view that there was no effective consultation before the impugned order was issued. ( 11 ) BUT apart from the question of consultation it is crystal clear that the power is exercised under sec. 7a of the Code and not under sec. 9 (2) of the Act. Admittedly no notification is issued under the latter provision. ( 11 ) BUT apart from the question of consultation it is crystal clear that the power is exercised under sec. 7a of the Code and not under sec. 9 (2) of the Act. Admittedly no notification is issued under the latter provision. If the Government was aware that prior consultation with the concerned pancnayats was a musts before altering the local limits of any Gram panchayat and the process of consultation as contemplated by sec. 3 (9) of the Act had been one through. it is difficult to under stand what prevented the State Government from issuing the notification under that provision. In that case there was no charm in issuing the order under sec. 7a of the Code and not under sec. 9 (2) of the Act. These circumstances also negative the theory of prior consultation having taken place. ( 12 ) THE (next) question (then) is whether it was open to the State Government exercise power under sec. 7a of the Code without reporting to sec. 9 of the Act. No doubt sec. 7a of the Code empowers the Government to alter or add to the limits of any village but if that village happens to comprise the local area of any Gram Panchayat there can be no doubt that the alteration or addition to the limits of the village will directly affect the limits of the local areas of the concerned panchayats. After the enactment of the Act. inclusion within or exclusion from any gram any local area or the alteration of its limits must be made after proper consultation as provided by sec. 9 (2) of the Act To hold otherwise would be to render the salutary provision of consultation nugatory. Alteration of the limits of any local area of a gram or nagar has several far reaching consequence. e. g. it affects the delimitation of wards the constitution of existing committee the revenue and financial assistance etc. and hence it is only just and fair to consult the concerned panchayat be before any such change is effected. If sec. 9 (2) of the Act can be bypassed by resorting to sec. 7a of the Code the very object and purpose of providing for prior consalutation would he defeated. I am therefore of the opinion that where the purported exercise of power under sec. If sec. 9 (2) of the Act can be bypassed by resorting to sec. 7a of the Code the very object and purpose of providing for prior consalutation would he defeated. I am therefore of the opinion that where the purported exercise of power under sec. 7a of the Code is likely to affect the limits of the local area of any panchayat or panchayats the power cannot by exercised dehors sec. 9 (2) of the Act but can only be exercised conjointly with the latter provision. I may hasten to clarify that this observation should not be read as laying down that whenever power is exercised under sec. 9 (2) of the Act it must be exercised along with sec. 7a of the Code. All that I am saying is that when the Government desires to exercise power under sec. 7a of the Code if the exercise of power affects the local limits of any panchayat or panchayats it must simultaneously resort to sec. 9 (2) of the Act also. If it fails to do so its action would have to be struck down as in this case. ( 13 ) AS I am disposing of this petition on the aforesaid limited ground it is not necessary for me to examine the other contentions raised in the petition For the above reasons the impugned order issued under sec. 7a of the Code is quashed and set aside. The rule is made absolute according with no order as to costs. .