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2010 DIGILAW 27 (RAJ)

Ram Singh v. State of Rajasthan

2010-01-05

MAHESH CHANDRA SHARMA

body2010
Hon'ble SHARMA, J.—Heard learned counsel for the parties. 2. In this writ petition, the petitioners have challenged the order dated October 28, 2009 (Annexure-3) wherein the State Government constituted Panchayat Samiti Baori by including four Gram Panchayats Bapini, Jakhan, Punasar and Kinjari and the said panchayats were excluded from the Panchayat Samiti Osiyan. 3. The petitioners are members of Panchayat Samiti Osian and Sarpanchas of Gram Panchayats Bapini, Jakhan, Punasar and Kinjari of District Jodhpur. Earlier the State Government vide order dated 7.8.2009 proposed for constitution of new Panchayat Samitis from 8 Panchayat Samitis of State of Rajasthan including Osiyan Panchayat Samiti. Vide this order the State of Rajasthan authorised the District Collectors of districts mentioned concerned to do the necessary proceedings for changing the limits of the panchayat circles. In pursuance of the order dated 7.8.2009 the District Collector Jodhpur proposed constitution of a new Panchayat Samiti Baori by splitting the area of Panchayat Samiti Osiyan vide order dated 17.8.2009. Along with the order dated 17.8.2009 the proposed area of Panchayat Samiti Osiyan after split and the area of newly constituted Panchayat Samiti Baori has been published by the District Collector Jodhpur. It is mentioned that Gram Panchayats Bapini, Jakhan, Punasar and Kinjari were proposed to be included in the Panchayat Samiti Osiyan. Since majority of the residents of the abovementioned four panchayats want to remain in the area of Panchayat Samiti Osiyan no objection was filed by any of the residents of these panchayats in response to the proposals published by the District Collector Jodhpur vide order dated 17.8.2009. The learned counsel argued that with the surprise of the residents of all the abovementioned four panchayats the State Government constituted Panchayat Samiti Baori by including these four panchayats in the area of Panchayat Samiti Baori and these four panchayats were excluded from the Panchayat Samiti Osiyan vide Notification dated 28.10.2009. The learned counsel for the petitioner submitted that the State Government while constituting Panchayat Samiti Baori has not followed the established mandatory procedure as provided under Section 101 of the Rajasthan Panchayati Raj Act, 1994. In this connection learned counsel placed reliance on Daulat Singh and others vs. State of Rajasthan decided on January 21, 2000 (D.B. Civil Writ Petition No. 5151 of 1999). In this connection learned counsel placed reliance on Daulat Singh and others vs. State of Rajasthan decided on January 21, 2000 (D.B. Civil Writ Petition No. 5151 of 1999). The main ground of challenge in the cited case was that no notice was given to the petitioners or even Gram Panchayat concerned before passing the order dated 14.12.1999 and thus there has been violation of the provisions of Section 101 of the Rajasthan Panchayati Raj Act, 1994. The Court observed that the provisions of Section 101 of the Act would show that it confers the powers on the State Government to alter the limits of any Panchayati Raj Act, but this can be exercised "after one month's notice published in the prescribed manner in the official Gazette. The Division Bench held that before exercising the powers, one month's notice has to be issued and has to be published in the prescribed manner. In the reply filed by the respondents, it is urged that the Notification for constitution of new Panchayat Samiti has been issued in the interest of public at large and taking care of the administrative reasons these four Gram panchayats have been included in the Panchayat Samiti Baori. After issuance of the Notification dated 28.10.2009. the District Collector Jodhpur issued public notice and invited objections, if any, on or before 12.11.2009 and after providing opportunity of hearing on the objections, election area of Panchayat Samiti, Baori were published on 30.11.2009. The first phase of the election process vis-a-vis preparation of voter list, publication of the area wise voter lists, inviting objections and hearing thereupon etc. have also been done. It was averred that setting aside the order dated 28.10.2009 at this stage, or for that matter restraining the District Collector from proceeding further in pursuance of the order dated 6.11.2009 would create lot of complications and multiplicity of litigation. These four Panchayats are situated adjacent to Gram Panchayats Tau, Khindakaur and Hatudi, and they have been included in the newly constituted Panchayat Samiti, Baori to keep the newly constituted Panchayat Samiti as a `Unit'. In the reply preliminary objections about the maintainability of the writ petition have also been made. 4. Mr. G.R. Punia, Addl. Advocate General made emphasis that the provisions of Section 101 of the Act are not mandatory and the election process has already been started. The learned Addl. In the reply preliminary objections about the maintainability of the writ petition have also been made. 4. Mr. G.R. Punia, Addl. Advocate General made emphasis that the provisions of Section 101 of the Act are not mandatory and the election process has already been started. The learned Addl. Advocate General has also placed papers before this Court regarding the dates notified for election purpose in Panchayat Samitis and Zila Parishads and finally that the notification for election process will be issued only from 7.1.2010. 5. I have gone through the averments mentioned in the writ petition and the reply filed by the respondents. Earlier these four Gram Panchayat Samitis were included in the Panchayat Samiti Osiyan and hence the majority of the members of the Gram Panchayats were not aggrieved for including these Gram Panchayats in the area of Panchayat Samiti Osiyan and now by issuing the order by the District Collector Jodhpur notifying including of these four Gram Panchayats in the area of Panchayat Samiti Baori is clearly contrary to Section 101 of the Act. Before including these Gram Panchayats in the area of Panchayat Samiti Baori instead of Panchayat Samiti Osiyan. One month notice is necessary to be issued and to published in the Gazette. This mandatory provision of Section 101 of the Act has not been complied with as has been held by the Division Bench of this Court in the cited case. 6. The Division Bench in the case of Daulat Singh (supra) held as under: "Since the Notification (Annexure 21) is ex facie bad for want of following the procedure prescribed by Section 101, and the same had been challenged by the petitioner, without any loss of time, inasmuch as Annexure 21 is dated 14.12.1999 and the writ petition has been field on 22.12.1999 itself, simply because instead of immediately filing the reply, the time was taken and election had been declared, it cannot and does not fetter the powers of this Court in adjudicating upon the validity of Annexure-21. In other words, by the act of the respondents in issuing notification declaring election, it is not open to the respondents to attach any immunity to illegal notification (Annexure-21). Consequently, this connection of the respondents cannot be sustained. In other words, by the act of the respondents in issuing notification declaring election, it is not open to the respondents to attach any immunity to illegal notification (Annexure-21). Consequently, this connection of the respondents cannot be sustained. Even otherwise, in this writ petition, election process is not under challenge and that is not being stayed by this Court, delimitation or constitution of panchayat is completely independent of the election. Simply because the quashing of illegal re-delimitation of panchayat would result into the State Government not being able to hold election of such illegality reconstituted or redelimited Panchati Raj Institution, it cannot be said that by exercising powers under Article 226, this Court is staying the election process. The natural consequence of quashing of illegal order has to follow. The other submission made by the learned counsel for the respondents was that the earlier constitution of panchayat circle was contrary to law and has been simply set right vide Annexure 21 and therefore interference under Article 226 would result into restoration of illegality and therefore, no interference should be made, is also without substance, inasmuch as firstly no such provision was shown which could make out that the earlier constitution of the panchayat was illegal and the only submission made was that it is contrary to the norms. Suffice it to say that the norms are laid down in the order dated 9.4.1999 only, on the basis of which Annexure 17 was issued while Annexure 13 is dated 13.4.1998 and therefore simply because the existing Panchayati Raj Institution does not conform to the norms subsequently laid down, it cannot be said that the constitution is illegal. Of course it may furnish a ground for undertaking an exercise contemplated under Section 101. Thus this contention is also rejected. The net outcome is that the writ petition succeeds. Annexure 21 is hereby quashed. Obviously Annexure 13 revived. The parties are left to bear their own costs." 7. As per the decision of this Division Bench, the District Collector Jodhpur has not issued any notice of one month before altering his earlier decision of including four Gram Panchayats Bapini, Jakhan, Punasar and Kinjari of District Jodhpur in Panchayat Samiti Osiyan and abruptly including these four Gram Panchayats in Panchayat Samiti Baori vide Notification dated October 28, 2009 is illegal. 8. 8. The writ petition succeeds and the Notification dated October 28, 2009 (Annexure 3) being contrary to provisions of Section 101 of the Act, is quashed. The parties are left to bear their own costs.