Gram Panchayat Kathawala v. State — 1997 DIGILAW 639 (RAJ)

Honble MISRA, J.–All the four writ petitions referred to hereinabove relate to the question as to whether the notification dated October 22, 1983 by which theboundry limits of Municipal Board, Chaksu has been extended including some areas of Gram Panchayat, Kathawala is a valid notification and whether the Municipal election could be held in those areas which have been included in the Municipal Board, Chaksu on the basis of the voters list prepared after such inclusion. The notification first of all came to be challenged in S.B. Civil Writ Petition No.2557/1983,one of the writ petitions herein and, while this writ petition was pending two more writ petitions bearing SBCWP No. 3450/1990 and SBCWP No. 1273/ 1991 were also filed questioning the holding of elections in Ward No. 11 of the Municipal Board, Chaksu on the basis of the voters list prepared for the said purpose and further to restrain the respondents from including and treating villages Biharipura, SheelkiDungari, Dadanpura Dungari, Bir Suratpura, Manpur Dungari and Janak Vallabhpur or boundry thereof as parts of the limits of Municipal Board, Chaksu. Holding of Municipal election in these villages and interference by the respondents with the holding of Sheelmata fair and cattle fair at village Sheelki Dungari was specifically prayed to be restrained and Management and regulation of these fairs by the peti-tioner Gram Panchayat, Kathawala was also prayed therein and, finally SBCWP No. 406/1995 was also filed essentially for the same purpose wherein a note appended to the notification dated 10/9/1992 was challenged with the prayer that the said note should not be held to have the effect of inclusion of two villages viz. Dadanpura Dungari and Sheelki Dungari in the Municipal Board, Chaksu claiming them to bepart and parcel of Gram Panchayat, Kathawala. In this writ petition also, the petitioner had sought a direction for restraining the Municipal Board, Chaksu from holding election which was scheduled to take place in the month of August, 1995 in Ward No.19 by including two villages Sheelki Dungari and Dandanpura Dungari. In the alternative, it was prayed to quash and set aside the election of Ward No.19on the ground that the voters list for Ward No.19 could not have been prepared by including the two villages Sheelki Dungari and Dadanpura Dungari. (2). In the alternative, it was prayed to quash and set aside the election of Ward No.19on the ground that the voters list for Ward No.19 could not have been prepared by including the two villages Sheelki Dungari and Dadanpura Dungari. (2). It is, thus, quite apparent that the first writ petition of 1983, the particulars of which have been given hereinabove, is the primary one, wherein the question involved is as to whether the extension of the Municipal Board, Chaksu by includingsome of the villages of the Gram Panchayat, Kathawala is fit to be upheld and in case it is held that the inclusion of the two villages Sheelki Dungari and Dadanpura Dungari in the Municipal Board, Chaksu is illegal and bad in the eye of law, only then it would require consideration of the successive writ petitions filed, as discussed hereinabove, and in case it is held that the inclusion of these villages in thelimits of Municipal Board, Chaksu is a valid notification, the holding of election in the Municipal Board, Chaksu cannot be questioned, as a result of which the three writ petitions filed subsequently will require no interference. (3). I, therefore, now, propose to examine the contents and contentions of SBCWP No. 2557/1993, on the result of which the fate of the successive writ peti-tions depends. In order to make out a case in their favour, it is the plea of the petitioner that the Gram Panchayat. Kathawala had been constituted under the Rajasthan Panchayat Act, 1953 which had within its jurisdiction 17 villages including Sheelki Dungari and Dadanpur Dungari and the main source of income of the Gram Panchayat is by the two cattle fairs held in the month of March and June everyyear. These fairs are held in the village Sheelki Dungari, which is one of the 17 villages within the area of the Gram Panchayat, kathawala the Gram Panchayat Kathawala further has 24 bighas of gochar/charagah land for grazing cattle. Similarly, agricultural farms of Panchayat Samiti Chaksu and Gram Panchayat, Kathawala are in the village Sheelki Dungar. It has been further pointed out that there is Municipal Board, Chaksu adjoining the Gram Panchayat, Kathawala, which was sought to be extended upto 5 kilometers on the northern side of its boundry. Similarly, agricultural farms of Panchayat Samiti Chaksu and Gram Panchayat, Kathawala are in the village Sheelki Dungar. It has been further pointed out that there is Municipal Board, Chaksu adjoining the Gram Panchayat, Kathawala, which was sought to be extended upto 5 kilometers on the northern side of its boundry. A notification therefore dated June 27, 1975 came to be published in the Rajasthan Rajpatra dated June 26, 1975 by which the Government invited objections under Sec. 6(1) of the Rajasthan Municipalities Act, 1959, (hereinafter referred to as the Act of 1959) in respect of its proposal to extend the boundry limits of the Municipal Board, Chaksu. The Gram Panchayat, Kathawala submitted detailed objections on 21/7/1975 against the proposal of its extension and the individuals also submitted their objections against the said proposal. The Municipal Board, Chaksu also filedits representation on 14/8/1975, in this regard. The Collector of the concerned District then issued a letter dated 14th June, 1978 to the Deputy Development Commissioner where the proposal and the resolutions of the Gram Panchayat were forwarded for consideration indicating that extension of boundries of the Municipal Board, Chaksu has not been approved either by the Panchayat Samiti, Chaksu, orAddl. District Development Officer. The Government, however, proceeded to issue another letter on 5/8/1978 through its Under Secretary requesting that since the affected Gram Panchayats are against the proposal for extention of the Municipal Board, Chaksu including the villages falling within the Gram Panchayat, hence, the boundries of the Municipal Board, Chaksu should not be extended. However, thisopinion did not find favour with the State Government and the final notification dated October 22,1983 came to be published in the Rajasthan Gazette on November 1983, wherein the boundry limits of Municipal Board, Chaksu was extended by including parts of the five villages of Gram Panchayat, Kathawala within the limits of Municipal Board, Chaksu. (4). The petitioner feeling seriously aggrieved with the notification dated 22/10/1983 promptly filed a writ petition bearing SBCWP No. 2557/1983, on which a notice was issued in response to which the State of Rajasthan, respondent no.1 and the respondent No.2 Municipal Board, Chaksu filed their reply specifically submitting therein that the notification suffers from no vice or any illegality as it wasissued and published after fully complying with the relevant provisions of the Rajasthan Municipalities Act, 1959 in this regard. (5). (5). A preliminary objection, however, has been first of all, raised by Shri K.N. Gupta for the respondent Municipal Board that the writ petition is not maintainable because the petitioner has already availed the alternative remedy by filing a civilsuit No. 34/1989 which was filed with an application for temporary injunction for restraining the holding of the elections and the suit as also the application for temporary injunction was dismissed by the learned District Judge, Jaipur vide judgment dated 30/11/1990 and 28/3/1989. (6). It has then been submitted that the project and development activities ofPanchayats are mostly run on the basis of the grant given by the State Government and, therefore, the averments of the petitioner that by loss of income through fair, its developmental activities will be hampered, is totally unfounded, and the inclusion of Sheelki Dungari and Dadanpur Dungari in the Municipal Board, Chaksu for this single reason cannot be said to be illegal. (7). Learned counsel for the parties thereafter have advanced long arguments on legal merit of their respective cases, the substance of which when summarised, lies within a narrow compass. The principal objection of Shri Joshi challenging the notification of 22/10/1983 is on the ground that the notification issued under the Rajasthan Municipalities Act, 1959 is in violation of Sec. 6 of the Act. It was submitted in this regard that the notification dated 22/10/1983 is not a valid notification since the notice inviting objections issued under Sec. 6(1) of the Act had not been acted upon and the State Government by letter dated 5/8/1978 through Under Secretary had not recommended for extension of the limits of Municipal Board, Chaksu by including parts of village of Gram Panchayat, Kathawala. According to the counsel, after issue of the letter dated 5/8/1978 from the Government through the Under Secretary not recommending extension of Municipal Board, Chaksu, the Government did not invite further objections from the affected parties and, in this connection, he has referred to the internal correspondence referred to hereinabove which he has filed as annexures in order to establish that the extension of Municipal Board, Chaksu was not in the interest of Gram Panchayat, Kathawala and was also initially not approved by the State Government and in view of this disapproval, fresh objections should have been invited before issuing final notification. (8). (8). In reply to this contention on the validity of the notification, learned counsel,Shri K.N. Gupta on behalf of the Municipal Board, Chaksu has submitted that before issuing the impugned notification dated 22/10/1983 extending the boundries of Municipal Board, Chaksu all the legal requirements had been duly complied with and the said notification had been issued after inviting objections from the Gram Panchayat, Municipal Board and other affected parties and any internal correspon-dence between the officers of the State Government prior to the issuance of the notification has no relevance, once the notification had been issued. In this regard, it has been further submitted by him that the letter of the Collector dated 14/6/1978 was also not an opinion of the Collector and, he had simply enclosed the letter of the Gram Panchayat objecting to the proposal regarding extension of the boundryof the Municipal Board. Besides this, the opinion of the State Government as contained in the letter dated 5/8/1978 is not equivalent to notification so as to allow the petitioner to contend that as this opinion was in favour of the petitioner, Gram Panchayat, hence, no further notification should have been issued, and the opinion as contained in the letter dated 5/8/1978 was merely in the nature of recommenda-tion and the final opinion in this regard still lay with the State Government, which after considering the objections of the parties along with the opinion of the officers in this regard, a final decision to extend the boundry of the Municipal Board, Chaksu, was taken which does not suffer from any legal lacuna. The merit of the contention of Shri Gupta in this regard is unquestionable in my opinion, as it is awholly erroneous contention advanced on behalf of Shri Joshi that the State Government in view of one of the opinion of an Officer of the State Government not recommending for extension of the boundry, required further inviting of objections by the parties, for Sec.6(1) in this regard clearly lays down that objections is required to be invited before issuing the final notification which has been done inthis matter. Hence, it is wrong on the part of Shri Joshi to reply on the internal correspondence of the offices in this regard to contend that the notification suffers from non-consideration of the objections so as to hold that the notification is bad in the eye of law. Hence, it is wrong on the part of Shri Joshi to reply on the internal correspondence of the offices in this regard to contend that the notification suffers from non-consideration of the objections so as to hold that the notification is bad in the eye of law. The first objection, therefore, raised on behalf of the petitioner is rejected as the same is completely devoid of merit. (9). Shri Joshi, however, appears not to have given up his endeavour in regard to this point as it has next been contended by him that the objections of the petitioner Gram Panchayat were not entertained by the respondent State Government prior to the issue of final notification since the objections of the petitioner were not entertained. In this regard, he has relied on a judgment of this court repor-ted in Vishwanath vs. State of Rajasthan (1) wherein a learned Judge of this Court (G.M. Lodha J., as he then was) had been pleased to hold that by invoking power under the provisions of Sec. 4(1) of the Act of 1959, the State Government cannot convert any area of the Municipal Board into a Gram Panchayat. In other words, no area of the Municipal Board functioning under the Municipal Act could be conver-ted into a village Panchayat either by including or excluding any area in or from any Municipality or constitute into village Panchayat from the existing Municipality under the provisions of the Rajasthan Municipalities Act simply by issuing notification under Sec. 4 of the Municipalities Act. It was observed therein that in order to establish a new Gram Panchayat of an area which was part of the Municipality or to add any area to a Gram Panchayat which was earlier an area covered by the Municipality, the State Government is required to follow the procedure laid down in the Rajasthan Panchayat Act. However, the instant case is not a case of conversion of a Municipal area into Gram Panchayat so as to follow the procedure laid down in the Rajasthan Panchayat Act of 1953. However, the instant case is not a case of conversion of a Municipal area into Gram Panchayat so as to follow the procedure laid down in the Rajasthan Panchayat Act of 1953. Moreover, the contention of Shri Joshi has been further countered by Shri Gupta referring to Sec.4, proviso (ii) to Sec. 5(1) proviso to Rajasthan Municipalities Act of 1959 as also Section 86 of the Rajasthan Panchayat Act of 1953 and it has been submitted that the Legislature is fully competent to lay down provisions in the Municipalities Act that in case whole orpart of a Panchayat Circle is declared as Municipal area, it shall not be necessary to observe and follow the procedures of the Panchayat Act. Further Sec. 86 of the Panchayat Act, 1953 itself permits inclusion or exclusion of any area from a Gram Panchayat after inviting objections, after which it is the subjective satisfaction of the State Government to issue notification for such conversion. Attention of thisCourt had been invited to Sec.86 of the Panchayat Act of 1953, in this context which reads as under :– ``Power to include, exclude or transfer areas :- The State Government at any time after one months notice published in the prescribed manner either on its own motion or, at the request of the Panchayat or of the residents of any Panchayat Circle, village or other area, and by notification in the official gazette :- (a) include any area in a Panchayat Circle; (c) exclude any area from a Panchayat Circle; or (c) transfer any area from one Panchayat Circle to another; Provided that the publication of the said notice may, if deemed expedient in public interest by the State Government, be dispensed with in a case involving transfer (which term shall include the constitution, reconstitution or re-determination of a Panchayat Circle) of any area from one Panchayat Circle to Another.). (10). In support of his submission he has also cited M/s. J.K. Synthetics Ltd. vs. The Municipal Board, Nimbahera & Anr. (10). In support of his submission he has also cited M/s. J.K. Synthetics Ltd. vs. The Municipal Board, Nimbahera & Anr. (2), wherein it has been held that the notification under Sec. 4 of the Rajasthan Municipalities Act, 1950 (which is in Pari materia with the Act of 1959) for extention of Municipal limits is an action of the State Government with regard to exercise of powers under Sec. 4 of the act, whichis of Legislative character, hence a speaking order rejecting character, hence a speaking order rejecting objections is not necessary and merely an opinion is required to be formed by the State Government with regard to sufficiency of invalidity of the objections which has been done by the State Government and thereafter it is the subjective satisfaction of the State Government to issue the noti-fication. The argument of Shri Gupta clearly outweighs the contention of Shri Joshi as it is quite clear that the objection, when duly invited by the respondent Stae from all the affected parties before issuing the impugned notification extending the boundries of the Municipality and thereafter on being satisfied if the State Government thought it proper to extend it, the same cannot be allowed to be questionedspecially in absence of any case of mala fide or extraneous consideration. (11). Failing on the aforesaid count, the next submission urged on behalf of the petitioner is related to the question whether notification can be held to be illegal as according to the petitioner it does not specify the boundaries which should have been done and linked with this question, it has been submitted that thee is no justi-fication for changing the area of the Panchayat and by extending the Municipal limits. In order to explain this point, Shri Joshi has referrred to the notification in order to convince this court that the names of the places have been wrongly mentioned in the notification as t here is neither any place named Solaki nor there is pddce Meerkhan ki Dungari in Gram Panchayat Katgala. Accordin g to the peti- tioners Advocate these errors in the notification dated June 17, 1975 by which objections were invited had been repeated in the final notification of October 22, 1983. Accordin g to the peti- tioners Advocate these errors in the notification dated June 17, 1975 by which objections were invited had been repeated in the final notification of October 22, 1983. The wrong description of the names of villages has been taken to be a serious lacuna in the notification so as to be able to contend that the notification is bad in the eye of law. The arguments further had been advanced in this regard that the map which was submitted by the Municipal board, chaksu is clearly wrong on the face of it since Baori has been shown in the map in the Sheelki Dungari, whereas this is in the village Biharipura. On these averments, Shri Joshi has attempted to drive home the point that wrong description to drive home the point that wrong des-cription of boundry itself is a ground for quashing of the notification and for this purpose, he has relied on a decision of this court report in Ganpat vs. Municipal Board (3). does not specify the boundaries which should have been done and linked with this question, it has been submitted that there is no justi- fication for changing the area of the Panchayat and by extending the Municipal limits. In order to explain this point, Shri Joshi has referred to the notification in order to convince this court that the names of the places have been wrongly mentioned in the notification as there is neitherany place named Solanki nor there is pddce Meerkhan ki Dungari in Gram Panchayat Katgala. According to the petitioners Advocate these errors in the notification dated June 17,1975 by which objections were invited had been repeated in the final notification of October 22, 1983. The wrong description of the names of villages has been taken to be a serious lacuna in the notification so as to be able to contend that the notification is bad in the eye of law. The arguments further had been advanced in this regard that the map which was submitted by the Municipal Board, Chaksu is clearly wrong on the face of it since Baori has been shown in the map in the Sheelki Dungari, whereas this is in the village Biharipura. The arguments further had been advanced in this regard that the map which was submitted by the Municipal Board, Chaksu is clearly wrong on the face of it since Baori has been shown in the map in the Sheelki Dungari, whereas this is in the village Biharipura. On these averments, Shri Joshi has attempted to drive home the point that wrong description of boundry itself is a ground for quashing of the notification and for this purpose, he has relied on a decision of this court reported in Shri Ganpat vs. Municipal Board (3). (12). Shri Gupta, however has again succeeded in clearing out the factual con-fusion in this regard and has explained that there were in fact printing mistakes in the spelling of the names of the villages, but despite these mistakes no misconception was caused to the petitioner as they had understood the notification correctly and had also filed objection on 21/7/1975 without even raising and, rightly so, any objection regarding printing error. However, in order to specify and put the recordstraight, a corrigendum dated 17/12/1986 was also issued to correct the spelling mistakes. Hence, the Panchayat had no illusion or misconception about the situation of the village Baori where it was situated and its situation was not changed by any map. The petitioner had also understood the situation of Boari correctly as it is clear from the Panchayats own objection filed on 21/7/1975. (13). Having heard the learned counsel for the parties on this question, I am firmly of the opinion that this objection has been raised by the petitioners merely as a ruse to resist the notification and is not bona fide technical plea and hence cannot be sustained firstly for the reason that the petitioner could have objected to the mis-spelling of the places indicating boundaries at the outset when it filed objec-tions and, secondly, that a corrigendum correcting the printing mistakes was also issued. Hence, what is important is the exact contents of the notification which was issued and unless it could be established that the petitioners were bona fide misled, this kind of plea is not even worth consideration and the judgment relied upon by the petitioners in this regard does not cover a situation of the instant nature as it is related to such illegal notification which in fact were suffering from the vice of non-description of the boundaries in the notification, thereby creating a bona fide confusion in the mind of the contesting parties, which is not the situation in the instant case. (14). The aforesaid grounds are the main contentions which were elaborately argued by Shri Joshi and were adequately met with by Shri Gupta on behalf of the contesting respondents. Municipal Board, Chaksu. Thus, for the reasons discussed hereinabove, I find no merit in this writ petition challenging the notification dated October 22, 1983 and the same is dismissed. (15). In view of the dismissal of the main writ petition No. 2527/1983 by which the Municipal limits of Chaksu was extended by including part of the villages of the petitioner Gram Panchayat, the survival of the other three writ petitions, referred to hereinabove automatically deserves dismissal as it has been held hereinabove that the extension of the limits was clearly according to law , and in consonancewith the provisions of the Act of 1959. Hence, holding of election in the area by the Municipal Board, Chaksu in Ward No.11 and Ward No.19 cannot be interfered with which is the subject matter of the remaining three writ petitions. Consequently, the successive writ petitions also are dismissed. Thus, all the four writ petitions, considered herein, are rejected which do not justify payment of any cost.