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2013 DIGILAW 1420 (PNJ)

Hardev Singh v. State of Punjab

2013-10-28

RAKESH KUMAR JAIN

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Judgment Rakesh Kumar Jain, J. By way of this order, I shall dispose of 4 petitions bearing CWP Nos. 13671, 13428, 14832 and 23185 of 2013 as the issue involved therein is common. However, the facts are extracted from CWP No. 13671 of 2013. In brief, the Rural Development and Panchayat Department addressed a letter dated 13.08.2012 to all the Block Development and Panchayat Officers in the State of Punjab regarding inter-change of areas of the Gram Sabhas and creation of new Gram Sabhas before the general elections of the Gram Panchayats. It was alleged therein that applications have been received by the department for creating new Gram Sabhas and there are possibility of such more applications to be filed in future. Thus, it was desired that if such applications are received from the residents of the villages, after preparing informations/proposals in the performa 1 & 2 which were attached with the letter dated 13.08.2012, the same be sent to the department up to 30.09.2012 through the concerned District Development and Panchayat Officer. Certain other guidelines were also laid down for the purpose of sending proposals. The Gram Panchayat Mehla, Block Dirba, Tehsil Sunam, District Sangrur, decided in its meeting dated 22.08.2012 that since village Mehla is a large village and it is difficult to manage its affairs by one Panchayat, therefore, a new Panchayat be created. The resolution was sent to the District Development and Panchayat Officer where objections were filed by the petitioners and others against creation of new 2 Gram Panchayats out of one, but ultimately, by way of notification dated 19.12.2012 issued under the provisions of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the “Act”), 2 Gram Panchayats, namely, Model Town Mehla and Model Town Mehla-2 were carved out from Gram Panchayat Mehla. The petitioners, who happen to be former Panches of the village, along with others, filed CWP No.3704 of 2013 challenging the aforesaid notification dated 19.12.2012. The said writ petition was taken up along with 8 other writ petitions of the other villages and the batch of writ petitions were decided by the learned Single Judge by a common order dated 27.05.2013. However, while deciding CWP No.3704 of 2013, following observations were made:- “It is stated that Gram Sabha has not passed any resolution. The said writ petition was taken up along with 8 other writ petitions of the other villages and the batch of writ petitions were decided by the learned Single Judge by a common order dated 27.05.2013. However, while deciding CWP No.3704 of 2013, following observations were made:- “It is stated that Gram Sabha has not passed any resolution. Directions issued by this Court vide order dated 10.01.2013 passed in CWP No.369 of 2013 have not been considered and appreciated in the right perspective. Perusal of the site plan (Annexure P-9) would show that proposed Model town Mehla is divided just by a street which is 11 feet wide. On two sides of the proposed Gram Sabha area, is the area of existing Gram Sabha Mehla. Similarly, the proposed Gram Sabha area is on both sides of the road. The proposed Gram Sabha area is surrounded on three sides by the existing Gram Sabha area. Thus, it is clear that only the street is dividing the boundaries of the proposed Gram Sabha areas sought to be carved out from the existing Gram Sabha area. In view of the above, this Court feels no hesitation to conclude that the respondent-State authorities have failed to consider the relevant factors, while passing the impugned notification carving out two new Gram Sabha areas as Model town Mehla and Model Town Mehla-2 from the existing Gram Sabha area of village Mehla. Thus, it has been found to be a fit case where the direction is required to be issued to the respondent-State, to reconsider the matter for carving out the above-said two new Sabha areas from the existing Sabha area. It is so said, because the impugned notification has been found to be running contrary to the true spirit of Section 3(1) of the Act of 1994.” The respondents were also directed “to reconsider the matter at an early date so as to ensure that appropriate order is passed in each case, without any further loss of time and in any case before issuing the election programme, for the coming panchayat elections in the respondent-State”. Since the authorities were directed by the learned Single Judge to reconsider the matter, the Special Secretary, Department of Rural Development and Panchayat, passed the order on 11.06.2013 for creating new Gram Sabhas i.e. Model Town Mehla and Model Town Mehla-2. Since the authorities were directed by the learned Single Judge to reconsider the matter, the Special Secretary, Department of Rural Development and Panchayat, passed the order on 11.06.2013 for creating new Gram Sabhas i.e. Model Town Mehla and Model Town Mehla-2. However, on 18.06.2013, by way of a corrigendum issued by the Rural Development and Panchayat Department, the entries pertaining to Sr. No.45 and 46, i.e. Model Town Mehla and Model Town Mehla-2, were ordered to be deleted but on the same day, by a subsequent corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4140, earlier corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4139 was withdrawn. The petitioners have, thus, challenged the subsequent corrigendum dated 18.06.2013. It is pertinent to mention that in para 24 of the writ petition, following averments have been made by the petitioners:- “That it is humbly submitted here that although the order Annexure P-9 has been shown to be passed on 11.06.2013 but actually the same has not been passed on the said date. Even petitioners have submitted an application dated 17.06.2013, which has duly been received in the office vide diary No.1872 dated 17.06.2013, mentioning therein that they are present in the office upto 2:15 P.M. but till time neither they have been informed regarding the fate of their case nor copy of any order etc. has been supplied to them. After passing of order Annexure P-9, when no notification was issued, writ petition challenging said order has been filed but since now the corrigendum has been issued and hence challenging the corrigendum Annexure P-11, present writ petition is being filed before this Hon'ble High Court as now order Annexure P-9 has no value in the eyes of law and the corrigendum Annexure P-11 is the final verdict and if the same is set aside then the newly created Gram Panchayats will abolish automatically. It is further humbly submitted here that neither the respondents have put the same on their website nor the same has even been issued to any of the petitioners etc. and the petitioners etc. It is further humbly submitted here that neither the respondents have put the same on their website nor the same has even been issued to any of the petitioners etc. and the petitioners etc. have come to know regarding corrigendum Annexure P-11 only on 27.06.2013 and hence they are filing the present writ petition at the very first instance.” Counsel for the petitioners has submitted that CWP No.13428 of 2013 was filed by Hardev Singh and others challenging the order dated 11.06.2013 passed by the Secretary, Department of Rural Development and Panchayat, Punjab, creating 2 new Gram Sabhas i.e. Model Town Mehla and Model Town Mehla-2. In the said case, at the time of issuance of notice, it was ordered that “election to the Gram Panchayats i.e. Model Town Mehlan and Model Town Mehlan-2 in Block Dirba, District Sangrur shall be subject to the decision of the writ petition”. In CWP No.13671 of 2013, Hardev Singh and others had challenged the subsequent corrigendum by which earlier corrigendum was withdrawn. In CWP No.14832 of 2013, Surjit Singh has challenged both order dated 11.06.2013 and subsequent corrigendum dated 18.06.2013, whereas in CWP No.23185 of 2013, Hardev Singh and others have challenged the notification dated 10.10.2013 which has been issued by the Department of Rural Development and Panchayat declaring two new Gram Sabhas of Model Town Mehla and Model Town Mehla-2 under Section 3 of the Act. The main thrust of the arguments of the counsel for the petitioners is upon Section 3 of the Act. The relevant portion of Section 3 of the Act is reproduced as under:- “3. Establishment of Gram Sabha areas. The main thrust of the arguments of the counsel for the petitioners is upon Section 3 of the Act. The relevant portion of Section 3 of the Act is reproduced as under:- “3. Establishment of Gram Sabha areas. (1) The State Government may, by notification, declare any village or group of contiguous villages with a population of not less than three hundred to constitute a Gram Sabha area: Provided that a new Gram Sabha area may be constituted for any village or group of contiguous villages in respect of a separate distinct abadi or group of abadis having a population of not less than three hundred taking into consideration its physical distance from the main village or villages, as the case may be and other relevant facts: Provided further that neither the whole nor any part of – (a) a Notified Area under Section 241 of the Punjab Municipal-Act, 1911, or any other Act for the time being in force: or (b) a Cantonment; or (c) A Municipality of any class., or (d) a Municipal Corporation; shall be included in a Gram Sabha area unless the majority of voters in any Notified Area or Municipality of the Third Class desire the establishment of a Gram Sabha in which case the assets and liabilities, if any, of the Notified Area Committee or the Municipal Committee, as the case may be, shall vest in the Gram Panchayat of that Gram Sabha and the Notified Area Committee or the Municipal Committee shall cease to exist. (2) That State Government may, by notification, include any area in or exclude any area from the Gram Sabha area. xxx xxx xxx xxx xxx xxx It is argued that the State Government can declare any village or group of contiguous villages with population of not less than 300 to constitute a Gram Sabha. Thus, merely by withdrawing the corrigendum dated 18.06.2013, the Gram Sabha cannot be created especially when the earlier notification dated 19.12.2012, which was under challenge in the batch of writ petitions and more particularly in CWP No.3704 of 2013 pertaining to the same village Mehla, has been set aside on 27.05.2013. Thus, merely by withdrawing the corrigendum dated 18.06.2013, the Gram Sabha cannot be created especially when the earlier notification dated 19.12.2012, which was under challenge in the batch of writ petitions and more particularly in CWP No.3704 of 2013 pertaining to the same village Mehla, has been set aside on 27.05.2013. Counsel for the petitioners has relied upon a decision of the Rajasthan High Court in the case of The State of Rajasthan and another v. Bhanwar Lal Verma and others, 2002 AIR (Raj) 11, in which it has been held that correction of only typographical mistakes is permissible by way of corrigendum but when it amounts to amendment, then corrigendum is not permissible. He has also relied upon a decision of this Court in the case of Gram Panchayat Panj Garaian v. State of Punjab and others, 2008(4) R.C.R. (Civil) 719 to contend that a new Gram Sabha area should be constituted by taking into consideration its physical distance from the main village or villages, as the case may be, and other relevant facts as division of a village without any justifiable reason would strike at its very soul, divide the people, introduce an element of tension and in some cases tend to disturb the peace. He has also relied upon a decision of this Court in the case of Balwant Singh and others v. State of Punjab and others, 1973 PLJ 122 in which, while dealing with the provisions of Sections 4 and 6 of the Punjab Gram Panchayat Act, 1952, which are analogous to the provisions of Sections 3 & 4 of the Act, it was held that if the notification is not issued declaring any village or group of contiguous villages to constitute one area or Sabha area having the prescribed population then the entire election proceedings would vitiate. Counsel for the respondents have submitted that more than 1900 Gram Sabha members of Model Town Mehla and more than 1580 Gram Sabha members of Model Town Mehla-2 made applications for constituting the new Gram Panchayat i.e. Model Town Mehla and Model Town Mehla-2. They requested that the population of Gram Panchayat Model Town Mehla is about 10,000 and development works have not been done properly. They requested that the population of Gram Panchayat Model Town Mehla is about 10,000 and development works have not been done properly. After considering their representation, recommendation was made for constituting two Gram Sabhas and Panchayats vide letter dated 01.10.2012 and by notification dated 19.12.2012, 2 Gram Sabhas were constituted, which though has been challenged in CWP No.3704 of 2013 and the notification has been quashed. In compliance of the order dated 27.05.2013 passed in CWP No. 3704 of 2013, order dated 11.06.2013 has been passed before issuance of the election programme and on 18.06.2013 corrigendum was issued, therefore, there is no error of procedure committed by the respondents. Insofar as the averments made in para 24 of the writ petition is concerned, it is alleged that “the contents of Annexure P-9, P-11 and application submitted by the petitioner are matter of record. Rest of the para is denied”. It is also argued that now notification has been issued on 10.10.2013 under Sections 3 & 4 of the Act, therefore, the petition does not survive and has to be dismissed. In this regard, he has contended that the Government is competent to carve out any number of Gram Sabha areas in the village and relied upon two Division Bench judgments of this Court in the cases of Gram Panchayat, Bhorakh v. Amrik Singh and others, 1990 PLJ 187 and Ranbir Singh v. State of Haryana, 1992 PLJ 206 . It is submitted that notification which has been issued on 10.10.2013 would have retrospective effect as it has been made to operate retrospectively. In reply, counsel for the petitioners has submitted that the notification cannot operate retrospectively because it is creating new rights and obligations and relied upon a judgment of this Court in the case of Jai Bhagwan v. Chandra Mohan and others, 1995(3) PLR 191. I have heard learned counsel for the parties and perused the record. There is no quarrel with the proposition that the Government can constitute two Gram Sabha areas out of the revenue estate of the same village and thereby establish two separate Gram Panchayats, but the question is as to whether it can be done without issuance of a notification. I have heard learned counsel for the parties and perused the record. There is no quarrel with the proposition that the Government can constitute two Gram Sabha areas out of the revenue estate of the same village and thereby establish two separate Gram Panchayats, but the question is as to whether it can be done without issuance of a notification. The power is vested with the State only under Section 3 of the Act to declare any village or group of contiguous villages with a population of not less than 300 to constitute the Gram Sabha area by way of notification. It is further provided that new Gram Sabha area may be constituted from a village for any village or group of contiguous villages in respect of a separate distinct abadi or group of abadis having a population of not less than three hundred taking into consideration its physical distance from the main village or villages, as the case may be and other relevant facts. Section 4 of the Act further provides that the State Government may, by notification establish a Gram Sabha by name for every area declared as Gram Sabha area under Section 3. In the present case, a notification was issued on 19.12.2012 under Sections 3, 4 and 10 of the Act and constituted two Gram Sabha areas, namely, Model Town Mehla and Model Town Mehla-2 and the respective Gram Panchayats. Ironically, the said notification has been set aside by this Court in CWP No.3704 of 2013 vide order dated 27.05.2013. Thereafter, no notification was issued rather an order was passed by the Department of Rural Development and Panchayat dated 11.06.2013, which is allegedly passed on the back date by the Special Secretary, Department of Rural Development and Panchayat. Thereafter by way of corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4139, entry at Sr. Nos.45 and 46 pertaining to the aforesaid Gram Sabhas in the notification dated 19.12.2012 were deleted and surprisingly on the same day, vide corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4140, the earlier corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4139 was withdrawn and the elections were held in the two Gram Panchayats of Model Town Mehla and Model Town Mehla-2 on 13.07.2013, which are made subject to the outcome of CWP No.13428 of 2013 vide order dated 20.06.2013 passed by this Court. It is really surprising that once the notification dated 19.12.2012 has been set aside by specifically observing that “consequently, the impugned notifications qua individual cases, noted hereinbefore, are hereby ordered to be set aside”, then how the corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4139 could have been made in that notification and how the said notification would revive by way of subsequent corrigendum No.DP-E-1 (Amd)/Sangrur/2013/4140 and when the writ petitions were filed, now a new notification has been issued on 10.10.2013 establishing 2 Gram Sabha areas i.e. Model Town Mehla and Model Town Mehla-2. It may be pointed out that in the case of Subhash Ram Kumar Bind @ Valik and anr. v. State of Maharashtra, 2003 AIR (SC) 269, the Supreme Court has observed that “notification in common English acceptation mean and imply a formal announcement of a legally relevant fact and in the event of a Statute speaking of a Notification being published in the Official Gazette, the same cannot but mean a Notification published by the authority of law in the Official Gazette. It is on formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the Statute then in that event in accordance therewith”. Learned counsel for the respondents had argued on the strength of a judgment of the Supreme Court in the case of Zile Singh v. State of Haryana, 2004 AIR (SC) 5100, that the amendment in law can be retrospective. As a matter of fact, there is presumption against retrospectivity of a statute until and unless it is expressly provided but where the statute takes away or impair existing rights or create new obligations or impose new duties or attach new disabilities or which impose new burden, it ordinarily regarded as prospective, as held by this Court in Jai Bhagwan's case (supra). In this case, the learned Single Judge, while passing the order dated 27.05.2013 setting aside the earlier notification dated 19.12.2012, had categorically directed the authorities to reconsider the matter at an early date so as to ensure that appropriate order is passed in each case, without any further loss of time and in any case before issuing the election programme, for the coming panchayat elections in the State of Punjab. At that time, except for passing an order on 11.06.2013 and withdrawing the first corrigendum by second corrigendum on 18.06.2013, nothing was done by the respondents in terms of Sections 3 & 4 of the Act, which was the main requirement for carrying out new Gram Sabha areas with new rights and liabilities and when the respondents were cornered because of number of writ petitions filed by the villagers, the notification has been issued on 10.10.2013 with retrospective effect to apply w.e.f. 18.06.2013 when the election programme had started. In my considered opinion, the notification dated 10.10.2013 cannot be considered to be retrospective in operation because of the law laid down by this Court in Jai Bhagwan's case (supra) as it creates new rights and liabilities by creating new Gram Sabha and a new Gram Panchayat who had to manage their rights and liabilities from the day the Gram Sabha is carved out. Thus, in the absence of notification having been issued in terms of Sections 3 & 4 of the Act before the election, the carving out of new Gram Sabhas, i.e. Model Town Mehla and Model Town Mehla-2, is patently illegal and as held by this Court in Balwant Singh's case (supra), the entire election proceedings of these two Gram Sabhas are vitiated. Consequently, all the writ petitions are hereby allowed as indicated above.