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2003 DIGILAW 477 (GUJ)

PARABADA GRAM PANCHAYAT v. COLLECTOR

2003-08-18

K.A.PUJ

body2003
K. A. PUJ, J. ( 1 ) SINCE these two Special Civil Applications filed by Parbada Gram Panchayat under Article 226 of the Constitution of India involve common issue, the same are being disposed of by this Common Judgment. ( 2 ) WHAT is challenged in Special Civil Application No. 9745 of 1999 is the action of the respondent authorities directing the petitioner Gram Panchayat to hand over the record of Survey Nos. 282 to 299, 300/1, 300/2, 312 and 309 situated in the local limits of Parbada Gram Panchayat to the City Survey Superintendent, Himatnagar. ( 3 ) IT is the case of the petitioners that the Collector of District, Sabarkantha, passed an order on 30. 6. 1986 directing to include the above referred Survey numbers into City Survey of Himatnagar, by exercising his powers under Section 7 of the Bombay Land Revenue Code [ hereinafter referred to as "the Code" ] and to delete the said Survey numbers from the Parbada Gram Panchayat. The said order was challenged by the petitioner Gram Panchayat in appeal before the Additional Chief Secretary (Appeals), Revenue Department and the said appeal was allowed by the Additional Chief Secretary, vide his order dated 14. 3. 1988 and the order passed by the Collector of District-Sabarkantha dated 30. 6. 1986 was quashed and set aside and it was held therein that the Collector, Sabarkantha has no jurisdiction to pass an order under Section 7a of the Bombay Land Revenue Code and only the State Government has jurisdiction to pass such order. Despite the above order of the Additional Chief Secretary, petitioner was asked to hand over the record of the above referred 23 Survey numbers to the City Survey Superintendent, Himatnagar on the basis of the Circular dated 27. 12. 95 issued by the Deputy Secretary, Revenue Department. Pursuant to the said Circular dated 27. 12. 95, the Mamlatdar, Himatnagar, District Development Officer, Sabarkantha as well as Taluka Development Officer, Himatnagar have issued several communications to the petitioner and directed the petitioner to hand over the record of the said Survey numbers to the City Survey Superintendent, Himatnagar. Being aggrieved by the said actions of the respondent authorities, the petitioner Gram Panchayat has filed the aforesaid Special Civil Application No. 9745 of 1999 before this Court. Being aggrieved by the said actions of the respondent authorities, the petitioner Gram Panchayat has filed the aforesaid Special Civil Application No. 9745 of 1999 before this Court. ( 4 ) THE said petition was admitted by this Court and an order was passed by this Court (Coram: H. K. Rathod, J.) on 3. 10. 2000 wherein it is held that it is open for respondent No. 4 to approach the State Government in respect of the grievance which has been pointed out in the reply submitted by the respondent No. 4 in the said petition and the interim relief granted by the Court would not come in the way of the Government to take appropriate decision in respect of the proposal which has been submitted by the respondent No. 4 in accordance with law. Subsequent to the aforesaid interim order passed by this Court, the Collector, District-Sabarkantha passed an order on 22. 4. 2003 directing the Parbada Gram Panchayat to hand over the records of the aforesaid 23 Survey numbers to the City Survey Superintendent, Himatnagar and delete the said survey numbers from the local limits of the Parbada Gram Panchayat. The said order was challenged by the petitioner in Special Civil Application No. 6807 of 2003. ( 5 ) WHILE passing the order dated 22. 4. 2003, the Collector relied on the letter dated 18. 3. 2002 issued by the Revenue Department, Government of Gujarat. The said letter contains the decision taken by the Government in regard to the 23 Survey numbers of Parbada Gram Panchayat and since the same being a substantive order which was required to be challenged, the petitioner moved the Draft Amendment on 7. 8. 2003 and the same was granted by this Court. ( 6 ) MR. MR Shah, ld. advocate appearing for the petitioner submits that the lands bearing the abovereferred survey numbers are situated within the limits of Parbada Gram Panchayat and Parbada Gram Panchayat is recovering necessary cess from the respective land owners and all the powers with regard to granting necessary permission under the provisions of Bombay Land Revenue Code are vested within the petitioner Gram Panchayat. He has further submitted that under Section 7a of the Code, the State Government is empowered to alter or add the limits of any Village or Villages and if the village happen to comprise local area of any Gram Panchayat such addition or alteration to the limit is required to be made after consultation as provided in Section 9 (2) of the Gujarat Panchayats Act (hereinafter referred to as "the Act" ). It is further submitted that the exercise of powers under Section 7a of the Code by the Government without observing formalities laid down in Section 9 of the the Act would be illegal and contrary to the statutory provisions. He has further submitted that under Section 126 of the Code, the Collector or City Survey Officer is permitted to determine what lands are included within the site of any village/town or city and to fix from time to time the limits of the same. He has further submitted that the Taluka Panchayat, Himatnagar, vide its Resolution dated 22. 10. 1981 had resolved to continue the aforesaid survey numbers within the local limits of Parbada Gram Panchayat and to continue the same with the Parbada Gram Panchayat. He has further submitted that the order passed by the Collector on 30. 6. 1986 was quashed and set aside by the Additional Chief Secretary, vide his order dated 14. 3. 1988. Not only this, even prior to that, the Section Officer of the Revenue Department,state of Gujarat, by his letter dated 30. 9. 1987 has informed the Settlement Commissioner to consider the order dated 30. 6. 1986 as ab initio void and to ignore the same. He has further submitted that despite the earlier petition being pending before this Court and the interim protection granted to the petitioner, the respondent authorities have issued the directions from time to time to hand over the record of the aforesaid survey numbers and ultimately the Collector has passed the order on 22. 4. 2003 after having relied on the order passed by the State Government on 18. 3. 2002. ( 7 ) MR. Shah has further submitted that the letter dated 18. 3. 2002 issued by the State Government is contrary to the provisions contained in Section 7a of the Code as well as Section 9 of the the Act. 4. 2003 after having relied on the order passed by the State Government on 18. 3. 2002. ( 7 ) MR. Shah has further submitted that the letter dated 18. 3. 2002 issued by the State Government is contrary to the provisions contained in Section 7a of the Code as well as Section 9 of the the Act. He has further submitted that the said letter cannot be termed as the order passed by the State Government as it was merely an internal correspondence. The said letter was written pursuant to the letter of the Collector,sabarkantha dated 2. 1. 2002. Mr. Shah has further submitted that in absence of any notification under Sec. 7a of the Code it is not open for the respondent to direct to exclude the aforesaid survey numbers from the local limit of Parbada Gram Panchayat and to include the same into Himatnagar Nagarpalika. ( 8 ) MR. Shah has further submitted that even the Government Circular dated 27. 12. 1995 merely relates to the directions in respect of correction/notification in the revenue record which is to be made pursuant to the notification, if any. As far as the petitioners case is concerned, there is no notification under Sec. 7a of the Code with regard to exclusion of the aforesaid survey numbers from Parbada Gram Panchayat and the inclusion of the same in the Himatnagar Nagarpalika. The Government Circular dated 27. 12. 1995 is not at all applicable and hence the impugned decision taken by the Government vide its letter dated 18. 3. 2002 and the order passed by the Collector dated 22. 4. 2003 require to be quashed and set aside. ( 9 ) MR. The Government Circular dated 27. 12. 1995 is not at all applicable and hence the impugned decision taken by the Government vide its letter dated 18. 3. 2002 and the order passed by the Collector dated 22. 4. 2003 require to be quashed and set aside. ( 9 ) MR. Asim Pandya, the learned advocate appearing for respondent No. 4 submits that in absence of any challenge by the petitioner to the substantive notification dated 22nd January 1958 issued by the Collector,sabarkantha in exercise of powers conferred under Section 126 of the Code, the Notification dated 4th March 1963 and the Notification dated 23rd July 1968 issued under Sec. 9 (1) and 9 (2) respectively of the The Act and the Order dated 28th January 1980 passed by the Collector, Sabarkantha whereby directions to carry out necessary corrections in the revenue records by omitting the survey number in question from the village limit of Parbada Gram Panchayat, the petitioner has no right to challenge the action of implementing the said notifications and the order respectively. Mr. Pandya has further submitted that the provisions of Section 7a of the Code are not applicable to the facts of the present case as the Collector has already issued Notification on 22nd January 1958 in exercise of powers conferred by Section 126 of the Code upon fixation of City Survey area of Himatnagar city. Even after enactment of the the Act necessary notification has been issued under Section 9 (2) on 23rd July 1968 excluding the survey numbers in question from the limit of Village Parbada. It is further submitted that once powers under Section 9 (2) of the the Act have been exercised it is not necessary to take recourse of Section 7a of the Code. It is further submitted that exercise of powers under Section 7a of the Code and Section 9 (2) of the Act are exclusive of each other and the competent authority can exercise powers under either of the said provisions. In this connection, he relied on the decision of this Court in the case of Balod Gram Panchayat and Anr. vs. State of Gujarat - 1986 (1) GLR 247, wherein it is held :"govt. In this connection, he relied on the decision of this Court in the case of Balod Gram Panchayat and Anr. vs. State of Gujarat - 1986 (1) GLR 247, wherein it is held :"govt. is empowered under S. 7a of the Code to alter or add to the limits of any village or amalgamate two or more villages or constitute a new village but if that village happens to comprise the local area of any Gram Panchayat there can be no doubt that such addition or alteration to the limits must be made after proper consultation as provided under S. 9 (2) of the Panchayat Act, 1961. Such alteration of the limits of any local area of gram or nagar Panchayat has several far reaching consequences and therefore it would be illegal for the Government to exercise power under Sec. 7a of the Code without observing the formalities laid down in Sec. 9 of the Panchayat Act. "in the present case, since the competent authority had exercised the power under Section 9 (2) of the Act, after due consultation as envisaged under the said Section, there is no necessity to take recourse to Section 7a of the Code. Mr. Pandya has further submitted that the petitioners contention that before passing the impugned orders opportunity of being heard was not given to the petitioner is also without any substance as the decision to exclude the survey numbers in question had already been taken by the competent authority under the Panchayats Act and the Code prior to more than 13 years. Updation of revenue records and actual omission of these survey numbers from the revenue records of Village Parbada is merely an action of implementing the substantive notifications and by the impugned order the authorities have not altered the limits of Village Parbada. The impugned order in no way entails any civil consequences and it is merely in the nature of administrative action of implementing or executing the substantive notifications. He has further submitted that when an administrative decision does not entail any civil consequence, the question of granting hearing in respect of such an administrative action does not arise. ( 10 ) MR. He has further submitted that when an administrative decision does not entail any civil consequence, the question of granting hearing in respect of such an administrative action does not arise. ( 10 ) MR. Pandya has further submitted that if the petitioners contention that the direction to hand over the records pertaining to the survey numbers in question to the Himatnagar Nagarpalika is to be accepted, then the Parbada Gram Panchayat would be deprived of right to collect the taxes, fees and revenues is also without any merit and substance, as the exclusion of the survey numbers from the village limit of Parbada had already taken place in the year 1958 and as such whatever amount of taxes, fees or revenues collected by the petitioner in respect of these survey numbers is without any authority of law. He has further submitted that the Himatnagar Nagarpalika is providing all the basic amenities to the residents staying in the areas situated on these survey numbers and the electoral roll prepared for the purpose of general elections also shows the survey numbers in question to be the part of the Himatnagar Nagarpalika. Mr. Pandya has further submitted that in the present case, the dispute involved is pertaining to two Organs of the State Government and as per the decision of the Honble Supreme Court, in the case of ONGC Vs. Union of India - (1992) 61 ELT-3, such dispute should be referred to a high power committee that may be constituted by the concerned Government. He has further submitted that in the present case, the State Government has already decided to exclude the survey numbers in question from the limits of Parbada Gram Panchayat and to include the same in the Himatnagar Nagarpalika in the year 1958 and 1968 and as such the challenge made by the petitioner Gram Panchayat in the present petition would not survive. ( 11 ) ON behalf of the respondents No. 1 to 3, the learned Assistant Government Pleader has submitted that the Government passed Circular on 27. 12. 1995 and it was decided therein that the lands bearing Survey numbers in question would fall within the limit of City Survey Superintendent, Himatnagar. ( 11 ) ON behalf of the respondents No. 1 to 3, the learned Assistant Government Pleader has submitted that the Government passed Circular on 27. 12. 1995 and it was decided therein that the lands bearing Survey numbers in question would fall within the limit of City Survey Superintendent, Himatnagar. It is further submitted that in respect of the order passed by the Revenue Department in 1958 as well as in 1968 the petitioner Panchayat has not submitted revenue record to the City Survey Superintendent, Himatnagar, and hence to streamline the revenue record the above Circular was issued and the Talati was called upon to hand over the revenue record to the City Survey Superintendent, Himatnagar. The learned AGP has more or less adopted the arguments canvassed by Mr. Pandya appearing on behalf of respondent No. 4. ( 12 ) I have heard the ld. advocates appearing for the respective parties. I have also considered the pleadings made by the parties in Memo of Petitions as well as affidavit-in-replies and affidavits-in-rejoinder. I have also considered the relevant statutory provisions contained in the Bombay Land Revenue Code as well as Gujarat Panchayats Act. To appreciate the controversy involved in the present two petitions, it is necessary to have a close look at the statutory provisions contained in the Code as well as the Act and to minutely examine the action taken by the respondent authorities thereunder. Section 7a of the Bombay Land Revenue Code empowers the State Government to alter limits of or to amalgamate or to constitute villages. It reads as under;7a. "the State Government may from time to time by duly published order alter or add to the limits of any village or amalgamate two or more villages or constitute a new village. "section 126 of the Code deals with the fixation of limits of sites of villages, towns and cities. It reads as under;126. "it shall be lawful for the Collector or for a survey officer, acting under the general or special orders of the State Government, to determine what lands are included within the site of any village, town, or city, and to fix, and from time to time to vary the limits of the same, respect being had to all subsisting rights of landholders. "in exercise of the powers conferred by Section 126 of the Code, the Collector of Sabarkantha, vide Notification dated 22nd January 1958 declared the lands bearing Survey Nos. 282 to 302, 309 and 312 to be included in the City Survey area of Himatnagar City for fixing the City Survey limit as per Para 7a of C. T. S. Manual. The Gujarat Panchayats Act, 1961 has come into force. Section 9 deals with declaration of Nagar and Gram. Sub-section (1) of Section 9 reads as under;9. Declaration of nagar and gram. ___ (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 group of revenue villages or hamlets forming part of a revenue village, or such other administrative unit or part thereof___sub-section (2) of Section 9 deals with any inclusion within or exclusion from any area within the limits of any Nagar or Gram or declaration to the effect that any particular area will cease to be a Nagar or Gram. It reads as under;" (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 alter the limits of any nagar or gram; (b) declare that any local area shall cease to be a nagar or gram; (c) having regard to clauses (a) and (b) of sub-section (8), declare the whole area comprised in a gram or the part 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. ]"in exercise of powers under sub-section (1) of Section 9 of the Act read with Government Notification, Rural Development Department No. PRN. ]"in exercise of powers under sub-section (1) of Section 9 of the Act read with Government Notification, Rural Development Department No. PRN. 2/63, G. dated 7th February 1963, the Commissioner,ahmedabad Division, vide his Notification dated 4th March 1963 declared that each of the local areas specified in Column 4 of Part-I of the schedule appended to the said Notification to be a Nagar to be known by the name specified against it in Column 5 of the said Schedule. By virtue of this Notification, Himatnagar was known as "nagar" and local areas specified in Column 4 of Part-I, i. e. , revenue village of Himatnagar as well as existing Himatnagar municipal limits in Village Parbada known as "mehtapura Civil Camp" as part of Himatnagar. Thus, even after bifurcation of bilingual State of Bombay into the State of Maharashtra and the State of Gujarat, the Government of Gujarat enacted The Gujarat Panchayats Act, 1961, and under the said Act, Himatnagar became Nagar Panchayat and for specifying the limits of certain panchayats, the Notification dated 4. 3. 1963 was issued under Section 9 (1) of the Act and in this Notification also, the existing Himatnagar municipal limits in Village Parbada known as "mehtapura Civil Camp" was declared to be a part of Himatnagar. ( 13 ) IT has also come on record, that the Development Commissioner, Gujarat State, Ahmedabad has also issued a Notification dated 23. 7. 1968, while exercising powers under Section 9 (2) of the Panchayats Act, 1961 and after due consultation with the concerned panchayats, the Mehtapura Civil Camp area was specifically excluded from the Parbada Gram Panchayat and included in Himatnagar. This also makes it clear that the survey numbers in question have ceased to be part of Parbada Gram Panchayat since 1958. Based on the Notification dated 23. 7. 1968, the Collector, Sabarkantha District informed the Mamlatdar, Himatnagar vide his letter/order dated 28. 1. 1980 to make necessary entry in the village record regarding inclusion of Survey numbers in question in Himatnagar. All these letters, orders, notifications were not challenged by the petitioner and since, despite the aforesaid letters and notifications, updation of village record was not done, the Collector has passed the order on 30. 6. 1986 which was challenged before the Additional Chief Secretary, Revenue Department who has held, vide his order dated 14. 3. 1988 that the order passed by the Collector on 30. 6. 1986 which was challenged before the Additional Chief Secretary, Revenue Department who has held, vide his order dated 14. 3. 1988 that the order passed by the Collector on 30. 6. 86 under Section 7a of the Code was void, ab initio. It is not the case of the respondent No. 4, i. e. , Himatnagar Nagarpalika that the Collector has any power under Sec. 7a of the Code to pass such order. It is the case of the Nagarpalika that Section 7a of the Code has no application to the facts of the present case as when the power to alter the limits of Panchayat area and to include or exclude certain areas from the Panchayat is available under two different Statutes, competent authority can legitimately exercise power under either of the Statutes. Since in the present case, the competent authority has already exercised the power under Section 9 of the Panchayats Act, there is no necessity to again take recourse under Section 7a of the Code. It is also rightly contended by the respondent No. 4 that in cases of number of Nagarpalikas the village record was not updated and the Government has also noticed duplication of Survey numbers and that has posed administrative difficulties. To avoid all these difficulties, the State Government has also issued the Circular dated 27. 12. 1995 directing all the concerned authorities to make updation of the land record so as to avoid any duplication of Survey numbers. Consequent to the said Circular, the Collector, Sabarkantha started updation of land records and directed the Mamlatdar to see that the records pertaining to certain survey numbers in question be handed over to the City Surveyor for the purpose of omitting the said Survey numbers from the village record of Parbada Gram Panchayat and making necessary entries in the revenue record. This action of the respondent authorities cannot be said to be in violation of statutory provision or in any way illegal or unlawful or even in violation of the principles of natural justice. The challenge made to the said actions in Special Civil Application No. 9745 of 1999 is, therefore, not sustainable. This action of the respondent authorities cannot be said to be in violation of statutory provision or in any way illegal or unlawful or even in violation of the principles of natural justice. The challenge made to the said actions in Special Civil Application No. 9745 of 1999 is, therefore, not sustainable. ( 14 ) AS observed earlier, during the pendency of the same Special Civil Application, and pursuant to an interim order passed by this Court therein, a proposal was made by the Collector, Sabarkantha District, vide his letter dated 2nd January 2002 to the State Government and the Government has taken the decision on 18. 3. 2002. Based on this decision of the Government, the Collector has passed the order on 22. 4. 2003, which is under challenge in Special Civil Application No. 6807 of 2003. The challenge made in the said petition also meets with the same fate as right from 1958 necessary actions were taken by the State Government for exclusion of the survey numbers in question from the local limits of Village Parbada and inclusion thereof in the local limits of Himatnagar Nagarpalika. The issue is being agitated for the last more than 40 years and several opportunities were given after following due procedure of law as well as after consultation as required under the provisions of the Code as well as the Act. The action and/or decision with regard to the inclusion of the survey numbers in question in Himatnagar Nagarpalika were rightly taken and hence it cannot be said that the petitioners were not heard in the matter. ( 15 ) CONSIDERING the above facts and circumstances of the case as well as taking overall view of the matter and after giving my anxious thoughts to the relevant statutory provisions, I am of the view that there is no substance or merits in either of these two petitions. Hence, both the petitions are dismissed. Rule is discharged in Special Civil Application No. 9745 of 1999. Notice is discharged in Special Civil Application No. 6807 of 2003. Interim relief granted is also vacated. However, considering the facts of the case, there will be no order as to costs. .