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Madhya Pradesh High Court · body

2012 DIGILAW 885 (MP)

Gram Panchayat Meghnagar v. State of MP

2012-09-12

S.C.SHARMA

body2012
ORDER 1. The petitioner before this Court, Gram Panchayat, has filed this present writ petition being aggrieved by the action of respondent State in issuing the Notification date 30/12/2012 by which the Gram Panchayat Meghnagar, Distt. Jhabua has been dissolved and the area has been included under the Municipal Council, Meghnagar. Petitioner has raised various grounds before this court and his contention is that the respondents have not followed the prescribed procedure as provided u/s. 5 and 5A of the M.P. Municipalities Act, 1961. At the outset, learned counsel for the petitioner has argued before this court that the controversy involved in the present case stands concluded by a judgment delivered in the case of Gram Panchayat, Padlyakhurd and others Vs. State of Madhya Pradesh and others (WP No. 910 / 2012), decided on 16/3/2012. 2. A reply has been filed in the matter and the stand of the respondent State is that the impugned Notification has been issued by the Collector dissolving the Gram Panchayat on 30/12/2011 after following the prescribed procedure in terms of Sec. 5 of the Municipalities Act, 1961 the Gram Panchayat has rightly been dissolved. However, the respondents have not filed nor brought to the notice of this Court any Notification issued u/s. 5A of the Act of 1961 except for making a bald statement in the return. An intervention application has also been filed and it has been stated that the prescribed procedure has been followed, however, again along with intervention application there is no such Notification by which objections were invited at any point of time before dissolving the Gram Panchayat. An objection has also been raised by the learned counsel for the intervenor that the petition by the Gram Panchayat is not maintainable in the light of the judgment delivered by this court in the case of Gram Panchayat, Bamrol Vs. Jagdish Singh Rawat reported in 2008 (3) MPLJ 127 as no resolution has been enclosed along with the writ petition. 3. Learned counsel for the petitioner, to the objection raised by the intervenor, has argued before this court that a resolution was certainly passed and as the entire record has been seized by the State Government, the petitioner was not in a position to enclose the resolution, however, they have filed documents on 19/4/12 and the same has been signed by all the panchas by which Mr. Suleman, Dy. Suleman, Dy. Sarpanch has been empowered to file this present writ petition on behalf of the Gram Panchayat and, therefore, the objection raised by the intervenor stands over ruled. This Court in the case of Gram Panchayat Padlyakhurd & others Vs. State of MP and others (W.P.No. 910 / 2012) in para 6 to 23 has held as under : 6. The first objection of the petitioners is that in terms of Article 243Q of the Constitution and subsection 2 of Section 5 of the Municipalities Act, 1961 prior to the issuance of the impugned notification Annexure P/1, a separate notification was required to be issued specifying the transitional area. 7. Article 243Q of the Constitution of India relating to constitution of municipalities provides as under: “243Q. Constitution of Municipalities – (1) There shall be constituted in every State (a) A Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. (b) A Municipal Council for a smaller urban area; and (c) A Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township. (2) In this article, 'a transitional area', 'a smaller urban area' or 'a larger urban area' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of 4 employment in nonagricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.” 8. Section 5 of the Municipalities Act dealing with the constitution of municipal council and Nagar Panchayat reads as under :“5. Constitution of Municipal Councils and Nagar Panchayats. Section 5 of the Municipalities Act dealing with the constitution of municipal council and Nagar Panchayat reads as under :“5. Constitution of Municipal Councils and Nagar Panchayats. (1) There shall be constituted (a) A Municipal Council for a smaller urban area; and (b) a Nagar Panchayat for a trnasitional area, that is to say, an are in transition from a rural area to an urban area: Provided that a Municipal Council or a Nagar Panchayat as the case may be, may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment or a group of such establishment in that area and such other factors as he may deem fit, by public notification specify to be an industrial township: Provided further that when an area is notified to be a transitional area, the Gram Panchayat having jurisdiction over such area shall continue to function until a duly elected nagar panchayat is constituted under this Act. (2) In this section, 'a smaller urban area' or 'a transitional area' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in nonagricultural activities, the economic importance or such other factors, as he may deem fit, specify, by public notification for the purposes of this Act.] (3) [* * *] 9. As per Article 243Q(1) the transitional area is an area in transition from a rural area to an urban area and Nagar Panchayat is to be constituted by the State for a transitional area. Under Article 243Q(2) the transitional area is to be specified by the Governor by public notification having regard to 5 factors mentioned in this sub Article. The language of Section 5 of the Municipalities Act is similar to language of Article 243Q except the second proviso to Section 5(1) which has been added in Section 5. Article 243Q of the Constitution and Section 5 of the Municipalities Act distinctly provide for specification of transitional area by public notification by Governor and constitution of Nagar Panchayat for transitional area. Article 243Q of the Constitution and Section 5 of the Municipalities Act distinctly provide for specification of transitional area by public notification by Governor and constitution of Nagar Panchayat for transitional area. The scheme of providing two stages i.e. notifying transitional area then constituting duly elected nagar Panchayat under the Municipalities Act is also clear from second proviso to Section 5(1) of the Municipalities Act. 10. By the impugned notification dated 14.11.2011 the entire area of Gram Panchayat Karhi and Padlyakhurd has been specified as transitional area of Nagar Panchayat Karhi and Padlyakhurd and for that transitional area Nagar Panchayat is yet to be constituted in accordance with the provisions of the Municipalities Act. Therefore, the impugned notification does not suffer from any error. 11. Counsel for the petitioners has placed reliance upon the judgment of the Chhattisgarh High Court in the matter of Smt. Umeshwari Bai Vs. State of Chhattisgarh and others dated 19.2.2010 in Writ Petition C No.6598/2005 but that judgment was on a different fact situation when one of the village i.e. village Gadakata was not included in the notification issued for constituting the Nagar Panchayat, Kunkuri, yet an order was passed disestablishing Gram Panchayat Gadakata under Section 126(2) of the Municipalities Act. There is no discussion in the said judgment in respect of the requirement to 6 declare any area to be transitional area by a separate notification before specifying a transitional area. 12. The petitioners have also raised an issue that the population of the two villages is less than the one prescribed in the notification dated 27.12.2011 for the purpose of the Nagar Panchayat, therefore, by amalgamating the two Gram Panchayats in question, Nagar Panchayat can not be constituted for the transitional area. Such an objection can not be accepted since the impugned action has been taken prior to the issuance of the notification dated 27.12.2011. 13. The petitioners have also challenged the order dated 24.12.2011 issued by the Collector under Section 125 of the Panchayat Act desolving the Gram Panchayat Karhi and Padlyakhurt with effect from 24.12.2011, on the ground that scope of Section 125 is different and for dissolving Panchayat Section 126 will be attracted and that procedure prescribed for dissolution of Panchayat has not been followed. 14. 14. Section 125 of the Panchayat Act deals with amalgamation and alteration of Panchayat area whereas section 126 of Panchayat Act deals with disestablishment of village. Section 125 and Section 126 of Panchayat Act which are relevant for present controversy read as under: “125. Changes of headquarters of Gram Panchayat division, amalgamation and alteration of Panchayat area. (1) The Governor or the authority authorised by him may by order change the headquarters of a Gram Panchayat or alter, the limits of a Gram Panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein or amalgamate two or 7 more Gram Panchayat ares and from one Gram Panchayat area in their place or split up a Gram Panchayat area and from two or more Gram Panchayat areas in its place: Provided that no order under this section shall be made unless a proposal in this behalf is published for inviting suggestions and objections in such manner as may be prescribed an objections are considered. (2) On the issuance of the order under subsection (1) the Governor or the prescribed authority shall pass such consequential orders as may be necessary.” 126. Disestablishment of village.(1) The Governor or the authority authorised by him may, by an order in writing, disestablish a village: Provided that no such order shall be issued unless a notice of the proposal inviting objections from persons likely to be affected thereby the date to be specified therein has been published in the prescribed manner and the objections received have been considered. (2) On making of the order under subsection (1) The Governor or the authority authorised by him may pass such consequential orders as may be necessary. 15. The State has framed the rules namely “Alteration of Limits, Disestablishment or Change of Head Quarters Rules, 1994”. These rules provide for the manner of action to be taken under Section 125 and 126 of the Panchayat Act and read as under :“3. 15. The State has framed the rules namely “Alteration of Limits, Disestablishment or Change of Head Quarters Rules, 1994”. These rules provide for the manner of action to be taken under Section 125 and 126 of the Panchayat Act and read as under :“3. Change of headquarters of Gram Panchayat, division, amalgamation or alteration of Gram Panchayat area.(1) Where the Governor or the authority authorised by him decides under subsection (1) of Section 125.8 (i) To change the headquarters of a Gram Panchayat; or (ii) To alter the limits of a Gram Panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein; or (iii) To amalgamate two or more Gram Panchayat areas and form one Gram Panchayat area in their place; or (iv) To split up a Gram Panchayat area and form two or more Gram Panchayat areas in its place. he/it shall declare his/its intention in the form of a proposal to do so by publishing a notification in the “Madhya Pradesh Gazette” and by affixing a copy of such notification on the notice board of the Gram Panchayat's concerned and on one or two conspicuous places in the area affected by such intention. (2) Every such notification shall specifyi. in case of clause (I) of subrule (1), the existing headquarters of a Gram Panchayat and proposed headquarters; (ii) In case of clause (ii) of subrule (1), the Khasra numbers of the area proposed to be included in a Gram Panchayat or proposed to be excluded therefrom; (iii) In case of clause (iii) of subrule (i), the Gram Panchayats proposed to be amalgamated; and (iv) In case of clause (iv) of subrule (I), the particulars of each of the area proposed to be split up. (3) Every such notification shall invite suggestions and objections by the date to be mentioned therein and any objection or suggestion received from any person with respect to the proposal before the expiry of the date specified above shall be considered by the Governor or the authority authorised by him, as the case may be. 4. (3) Every such notification shall invite suggestions and objections by the date to be mentioned therein and any objection or suggestion received from any person with respect to the proposal before the expiry of the date specified above shall be considered by the Governor or the authority authorised by him, as the case may be. 4. Disestablishment of village.(1) Where the Governor or the authority authorised by him decides under subsection (1) of Section 126 to disestablish any village he/ it shall declare his/its intention in the form of proposal to do so by publishing a notification specified the village proposed to be disestablished in the “Madhya Pradesh Gazette” and by affixing a copy thereof on the notice board of the Gram Panchayat concerned. (2) the provisions of subrule(3) of Rule 3 shall apply to the notification under subrule (1).” 16. Under Rule 3 and 4 above similar procedure has been prescribed for taking any action under Section 125 or Section 126 of the Act, therefore, mere mentioning of Section 125 or Section 126 in the order of dissolution of Panchayat is of no consequence but authority concerned is required to follow the procedure prescribed. In terms of these rules when an action is taken under Section 125 or 126, a notification declaring the intention in the form of a proposal and inviting objection and suggestion is required to be published in the Gazette and copy thereof is to affixed at the places prescribed in the Rule. The objections against such an proposal are required to be considered by the Governor or an authority authorised by him. 17. In the present case the record indicates that no notification, as required by Rule 3 and 4, in the Gazette has been published inviting objection or suggestion for any such 10intended action under Section 125 or 126 of the Act. 18. The Division Bench of this Court in the matter of Pranay Gupta Vs. State of M.P. and others reported in 2004(4) MPLJ 574 has held that the requirement relating to the publication contained in section 125(1) is mandatory and not directory. 18. The Division Bench of this Court in the matter of Pranay Gupta Vs. State of M.P. and others reported in 2004(4) MPLJ 574 has held that the requirement relating to the publication contained in section 125(1) is mandatory and not directory. The Division Bench dealing with the Rule 3 has held that provision relating to publication of proposal in M.P. Gazette as one of the 3 modes of publication is directory and not mandatory, if there is proper and adequate publication by the two other modes prescribed; namely affixture in the notice board of the Gram Panchayat concerned and affixure in one or to conspicuous places in the area affected by the proposal. 19. The Division Bench in the matter of Pranay Gupta (supra) has held thus :“15. We will now examine the provision of section 125(1) of the Act and Rule 3 of the Alteration Rules in the light of above principles. The purpose of requiring publication of the proposals (relating to change of headquarters, alteration of limits of Gram Panchayats, amalgamation of two or more Gram Panchayats or splitting of Gram Panchayats) is to draw the attention of the residents of the area who are likely to be affected by the proposals, which on consideration may enable the authority concerned to take a proper decision in the matter, either by dropping the proposals or by proceeding in terms of the proposals. The delimitation changes made in exercise of power under Section 125(1) of the Act will materially affect the residents of the area. Such changes as contemplated in section 125(1) are not to be made lightly or routinely either for political convenience or at the whims of the Executive. There should be proper application of mind and valid reasons for effecting such changes. Therefore, section 125 mandates that the proposals shall be published inviting suggestions and objections and that such objections shall be considered before making any changes. In the circumstances, the requirement relating to publication contained in the proviso to section 125(1) is mandatory and not directory. 16. There should be proper application of mind and valid reasons for effecting such changes. Therefore, section 125 mandates that the proposals shall be published inviting suggestions and objections and that such objections shall be considered before making any changes. In the circumstances, the requirement relating to publication contained in the proviso to section 125(1) is mandatory and not directory. 16. The next question is whether the mode of publication prescribed in Rule 3 is also mandatory in the sense that failure to strictly comply with its requirements of three modes of publication of the notification (that is, publication in the Madhya Pradesh Gazette, publication by affixture of the notification on the Notice Board of the Gram Panchayat, and publication by affixture of the notification at one or two conspicuous places of the affected area) will nullify the subsequent order made under section 125(1) of the Act. As noticed above, the objection and intention of publication is that residents of the villages or areas affected by the proposal should have notice of the same so that they can file their objections and suggestions. The rule requires not merely publication in the M.P. Gazette, but also by affixture of such notification on the Notice Board of the Gram Panchayat and in one or two conspicuous placed in the area affected by the proposal. This requirement, when viewed in contradistinction from the normal provision of publication only in the Gazette, shows that the Rule Making Authority was conscious of the fact that the more effective way of notifying the villagers who are likely to be affected by such proposals, is by affixture in the Gram Panchayat Notice Board and other conspicuous places in the affected areas. In the circumstances, we are of the view that the requirement in Rule 3 relating to publication, is directory and not mandatory. Therefore, even if there is any defect in the publication of the proposal in the Gazette, if there is proper and adequate publication of the proposal by the two other modes prescribed, namely, affixture in the Notice Board of the Gram Panchayat concerned and affixture in one or two conspicuous places in the area affected by the proposal, then there will be substantial compliance with the requirement relating to publication of proposal. This should not however be construed as doing away with the requirement of publication of the proposal in the Gazette or reducing the importance of publication of the proposal in the Gazette. But any unintended defect in one mode of publication will not render the entire process ineffective, if the other modes of publication are fully complied with thereby achieving the intended result of notifying the affected public. 18. Before parting, we however wish to impress upon the State Government the need to avoid halfhearted attempts in complying with requirements relating to publication. As repeatedly pointed out by the Supreme Court, the object of publishing the proposal is to invite objections of the persons likely to be affected by the proposals and to provide reasonable opportunity of being heard to those who are likely to be affected. The object of requiring publication is to find out the reaction of the residents of the respective villages and it is very much possible that in a particular case, the appropriate authority may even drop the proposal if the reaction of the residents was overwhelming, logical and bona fide. Publishing notifications in the Gazette in a routine and mechanical manner without ensuring that the same is available to the members of public with adequate time for filing objections, will weaken the democratic process. Similarly, if a notification is to be published by affixture to Notice Board of Gram Panchayat Office or other conspicuous13 place, it should be promptly complied with and a record be made of such publication, so that compliance with the requirement can be verified in future. 19. When a notice or proposal is required to be published in the Gazette, it should be published and made available to the public well in time before the last date prescribed for filing the objections/suggestions so that the aggrieved persons for whose benefit it is intended have time to know about the proposals and consider whether the proposals are proper or not, legal or not, beneficial or not and file objections. For example, publishing a notification dated 3/7/2004 requiring objections to be filed by 8/7/2004 and publishing it on 9/7/2004 in Gazette is meaningless. A notification dated 3/7/2004 requiring objections to be filed by 8/7/2004 will be bad even if it is published in the Gazette on 7/7/2004. For example, publishing a notification dated 3/7/2004 requiring objections to be filed by 8/7/2004 and publishing it on 9/7/2004 in Gazette is meaningless. A notification dated 3/7/2004 requiring objections to be filed by 8/7/2004 will be bad even if it is published in the Gazette on 7/7/2004. This is because, though technically publication in such a case will be before the last date, there will be no time for notification being made available to the public, or for the affected persons to prepare the objections/suggestions and to file the same.” 20. In the present case the respondents have failed to place on record any material to indicate that before issuing the impugned order dated 24.12.2011 dissolving the Gram Panchayat under Section 125 or 126 of the Panchayat Act any proposal was published inviting suggestions and objections in the manner prescribed under the rules. The mandatory requirement of publication of proposal by any of the means has not been complied with. Therefore, the impugned order dated 24.12.2011 can not be sustained. 21. The petitioners have also raised the ground that the Gram Panchayat should be allowed to function till the Nagar Panchayat is constituted. For this purpose they have relied upon the second proviso to Section 5 of the Municipalities Act, which reads as under:- Provided further that when an area is notified to be a transitional area, the Gram Panchayat having jurisdiction over such area shall continue to function until a duly elected Nagar Panchayat is constituted under this Act.” 22. In the present case the Collector, vide order dated 24.12.2011, has dissolved the Gram Panchayat of Karhi and Padlyakhurd with effect from 24.12.2011, whereas in terms of the second proviso to Section 5 of the M.P. Municipalities Act, 1961 on the notification of an area to be transitional area, the Gram Panchayat is required to continue to function until a duly elected Nagar Panchayat is constituted under the Act. In this case undisputedly Gram Panchayat has been dissolved before constitution of Nagar Panchayat. The order of the Collector dated 24.12.2011 dissolving the Gram Panchayat Karhi and Padlyakhurd with effect from 24.12.2011 before the constitution of duly elected Nagar 17 Panchayat runs counter to the aforesaid provision, hence can not be sustained. 23. In this case undisputedly Gram Panchayat has been dissolved before constitution of Nagar Panchayat. The order of the Collector dated 24.12.2011 dissolving the Gram Panchayat Karhi and Padlyakhurd with effect from 24.12.2011 before the constitution of duly elected Nagar 17 Panchayat runs counter to the aforesaid provision, hence can not be sustained. 23. Keeping in view the aforesaid analysis, the writ petitions are allowed and the impugned order dated 24.12.2011 is hereby set aside, however with liberty to the State to take an appropriate fresh action in accordance with law. Keeping in view the fact that the controversy involved in the present case has already been concluded in the aforesaid case, the order of collector dissolving the Gram Panchayat as it runs counter to the statutory provisions is hereby quashed. However, liberty is granted to the State Government to take appropriate actions afresh in accordance with law. Keeping in view the aforesaid, the petition stands allowed. No order as to costs.