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2013 DIGILAW 964 (PNJ)

Paramjit Kaur v. State of Punjab

2013-07-30

Rakesh Kumar Jain

body2013
JUDGMENT Mr. Rakesh Kumar Jain, J.:- The petitioner has challenged the order dated 12.04.2013 whereby his prayer for merger of Gram Panchayat Ilahi Baksh Bodla with Gram Panchayat Guddar Panj Grain has been rejected. 2. In brief, the facts of the case are that by notification dated 12.02.2008, Gram Panchayat Ilahi Baksh Bodla was separated from Gram Panchayat Guddar Panj Grain. Gram Panchayats were constituted by way of election, but before the fresh elections, which were scheduled to be held in the month of July 2013, a representation was made to the concerned authorities for merger of these two Panchayats by passing a resolution on 28.06.2012. Since the prayer of the petitioner, who wanted that the Gram Panchayat Ilahi Baksh Bodla be merged in the Gram Panchayat Guddar Panj Grain, was not acceded to, she filed CWP No.5099 of 2013 in which limited prayer was made that the authority concerned be directed to decide the representation of the petitioner in accordance with law within a stipulated time and in accordance with law. The prayer was allowed, consequently, her representation was considered and rejected by the Special Secretary, Government of Punjab, Rural Development and Panchayat Department, vide order dated 12.04.2013, which has been challenged in the present writ petition. The relevant portion of the order, which has been assailed herein, reads as under:- “After perusal of the statements of Smt. Paramjit Kaur, Panch, Gram Panchayat Ilahi Bakhsh Bodla, Sh. Makhan Singh, present Sarpanch Guddar Panj Grain and Sh. Subhash Chander, Panchayat Secretary and after hearing counsel for both the parties and record came on the file, a fact emerged that Gram Panchayat Ilahi Bakhsh Bodla was established out of Gram Panchayat Guddar Panj Grain in the year 2008 on finding the population of 200 persons. Now the argument of the counsel for the applicant Smt. Paramjit Kaur, Panch, Gram Panchayat Ilahi Baksh Bodla seems to be without basis because the counsel for the applicant could not give any solid argument during the arguments and the counsel for the respondent argued that neither the Gram Panchayat Guddar Panj Grain has not passed any resolution for merging the Panchayat with them which is necessary nor they want the merger of Gram Panchayat Ilahi Bakhsh Bodla with their Panchayat. According to the report of Block Development and Panchayat Officer, Guru Har Sahai, Subhash Chander, Panchayat Secretary had reported that the Panchayat be not merged because by merging the Panchayat there is likelyhood of creation of factions in the village. In this way, Gram Panchayat Ilahi Baksh Bodla is not fulfilling the requirements of Section 3(1) of the Punjab Panchayati Raj Act, 1994 and the instructions for its merger with the Gram Panchayat Guddar Panj Grain. In such situations, the Gram Panchayat Ilahi Baksh Bodla cannot be merged with Gram Panchayat Guddar Panj Grain because the instructions dated 13.08.2012 issued by the department for exchange and creation of new Gram Sabhas, were not fulfilled. Therefore, keeping in view the above mentioned instructions and rules, the application dated 09.01.2013 (Annexure P-3) of Smt. Paramjit Kaur wife of Mangat Ram r/o village Ilahi Baksh Bodla, Block & Tehsil Guru Har Sahai, Distt. Ferozepur is rejected and ordered to be filed. By these orders, the case is decided in compliance to the orders of Hon’ble High Court dated 14.01.2013. In this way, both the Panchayats would remain as such in future.” 3. Counsel for the petitioner has submitted that in the impugned order, a reference has been made to the instructions dated 13.08.2012 in which it is also provided that for creating a separate Gram Panchayat/Gram Sabha, the consent of the members of the Gram Sabha by way of resolution is required. In this regard, he has relied upon a decision of the Supreme Court in the case of State of Punjab v. Tehal Singh, 2002(2) RCR (Civil) 1 to contend that exclusion and inclusion from Gram Sabha Area are legislative act in which principle of natural justice are not applicable, meaning thereby that opportunity of hearing is not required to be given. It is further submitted that the establishment of Gram Sabha areas is governed by the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the “Act”) which provides for establishment of new Gram Sabha area if the abadi is not less than 300, whereas abadi of village Ilahi Baksh Bodla, which was created in the year 2008, is far less. 4. 4. On the contrary, counsel for the respondents have submitted that merger of the two Gram Panchayats into one can only be made as a last resort and if the Deputy Commissioner comes to the conclusion that a particular Gram Panchayat is not in a position to work independently, order of merger is not the only remedy as the Government has the power to appoint an administrator. In this regard, she has relied upon a judgment of this Court in the case of Ram Chander v. The State of Haryana, 1992(1) RRR 64. 5. Further it is submitted that the question of population would not apply to the present case because of the proviso to Section 3(1) of the Act in which it is provided that a Gram Sabha constituted prior to the commencement of the Punjab Panchayati Raj (Amendment) Act, 2012, with a population of less than three hundred shall not be affected. It is also submitted that the instructions dated 13.08.2012 are not restricted only to the consent of the existing members of the Gram Sabha, but there are many other requirements, which reads as under:- “1. The Abadi for which a separate Gram Sabha/Gram Panchayat is proposed that should be totally separate Abadi and two show the distance a coloured map of present Gram Panchayat and proposed Gram Panchayat be sent, so that the Deputy Commissioner at the time of making Wardbandi and Election Commission while preparing the voter list, may not face any difficulty. 2. The Abadi/population should not be less than 300 and also the Abadi of the original Panchayat should also not be less than 300. The Abadi of the existing Gram Panchayat and that of remaining village should be according to the census of 2011, by showing separate Abadi of Schedule Caste and Schedule Tribes and they shall be duly verified from the concerned Sub Divisional Magistrate. 3. The new proposed Abadi for Gram Sabha should be given local popular name. 4. The information regarding the viability of old Panchayat after the newly proposed Gram Sabha/Gram Panchayat, be given. On the list mentioned above, the following certificates be given in the last. 1. There is no such village in the Block which has not been included in the Sabha Area. 2. There is no such Sabha Area which is a part of Nagar Nigam, Nagar Council or Nagar Panchayat has been included. On the list mentioned above, the following certificates be given in the last. 1. There is no such village in the Block which has not been included in the Sabha Area. 2. There is no such Sabha Area which is a part of Nagar Nigam, Nagar Council or Nagar Panchayat has been included. If any village is not included in any Sabha Area then for that a separate Gram Sabha be established or that should be included in the contiguous Sabha Area and a complete proposal be sent. Besides this the following should also be sent according to check list:- 1) The Abadi of old Gram Panchayat and the proposed Gram Panchayat should be more than 300. 2) The distance of proposed Gram Sabha from the main village. 3) No obstacle will be caused in preparing the Voter list of proposed Gram Sabha and while doing Wardbandi. 4) A voter list and number of votes of the proposed Gram Sabha be sent. 5) The Abadi of proposed/old Gram Panchayat is in accordance with the statics of census of 2011 and the statics be duly verified from the concerned Sub Divisional Magistrate. 6) For creating a separate Gram Sabha/Gram Panchayat the consent of the existing member of the Gram Sabha by way of resolution be sent.” 6. A short reply has been filed by the Director, Department of Rural Development and Panchayat, Punjab, S.A.S. Nagar on behalf of respondent nos.1 to 4 in which it is averred that “thereafter, the record was also perused. It emerged that Gram panchayat Ilahi Bakhsh Bodla was established out of Gram Panchayat Guddar Panj Grain in the year 2008 on finding that the population then existing was of 200 persons. Furthermore, the Gram Panchayat Guddar Panj Grain has not passed any resolution for merging the Panchayat with the Gram Pancayat Ilahi Bakhsh Bodla. Rather, the Gram Panchayat Guddar Panj Grain was opposed to the said merger”. 7. I have heard learned counsel for the parties and perused the record. 8. There is no dispute that inclusion and exclusion of the area from the Gram Sabha is a legislative act for which no opportunity is required as held by the Supreme Court in State of Punjab’s case (supra). 7. I have heard learned counsel for the parties and perused the record. 8. There is no dispute that inclusion and exclusion of the area from the Gram Sabha is a legislative act for which no opportunity is required as held by the Supreme Court in State of Punjab’s case (supra). However, in the present case, the Gram Panchayat Ilahi Baksh Bodla was established in the year 2008 when, according to the affidavit of the Director, Department of Rural Development and Panchayat, Punjab, the population was 200 which was the norm on that date. Moreover, various conditions have been imposed by way of instructions dated 13.08.2012, referred to above, which are to be fulfilled before the merger is to be ordered. Section 3(1) of the Act categorically provides that the Gram Sabha constituted prior to the commencement of the Punjab Pancnayat Raj (Amendment) Act, 2012, with a population of less than three hundred shall not be affected, meaning thereby the petitioner cannot raise this issue that since the population of Gram Panchayat Ilahi Baksh Bodla is less than 300, therefore, it has to be merged with Gram Panchayat Guddar Panj Grain which does not want the merger thereof. In Ram Chander’s case (supra), this Court has held that the merger should be taken as a last resort even if the Gram Panchayat is not in a position to administer its affair because in that circumstance, the Government may appoint an administrator. 9. Keeping in view the facts and circumstances of the present case, I do not find any merit in the present petition and hence, the same is hereby dismissed. --------0.B.S.0------------