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2015 DIGILAW 562 (ORI)

Dhamnagar Grama Panchayat v. State of Orissa

2015-09-25

SANJU PANDA

body2015
JUDGMENT : Sanju Panda, J. 1. W.P.(C) No. 2589 of 2015 has been filed by the petitioner challenging the notifications bearing No. 26955/HUD/Elec-19/2014 and No. 27005/HUD/Ele-19/2014 dated 22.12.2014 under Annexures-3 and 4 respectively issued by the State Government in Housing and Urban Development Department publishing notification under Section 4 (a) of Odisha Municipal Act, 1950 including Dhamnagar Grama Panchayat for constitution of Dhamnagar Notified Area Council before completion of full term of five years of the existing Grama Panchayats violating the mandate of Article 243-E of the Constitution of India. Similarly W.P.(C) No. 9427 of 2015 has been filed by the petitioner challenging the action of the Collector, Bhadrak in not sanctioning the benefits to which the petitioner is entitled under different schemes like IAY, BPGY, MGNREGA, GGY, C.C. Road, TFC etc. As in both the Writ Petitions the parties are same and the questions involved are interlinked to each other, both the matters are taken up for hearing together and are disposed of by this common judgment. 2. The brief facts of the case are that the petitioner was elected as Sarpanch of Dhamnagar Grama Panchayat in the year 2012 and continuing as such. The Government of Odisha in the Department of Housing and Urban Development Department vide notification dated 22.12.1998 notified certain area to be transitional area for constitution of Dhamnagar Notified Area Council. The said notification was never given effect to. The area under Dhamnagar Panchayat notified as Grama Panchayat and continuing as such, even after the aforesaid notification in 1998. Elections were conducted in respect of Dhamnagar Grama Panchayat in 2007 and 2012 respectively. One Tapan Rout, the then Sarpanch of the Grama Panchayat had approached this Court challenging the said notification dated 22.12.1998 in OJC No. 124 of 1999. This Court by order dated 18.1.1999 was pleased to stay the said notification. The said Writ Application was dismissed for default on 06.11.2007. However, the present petitioner was not aware about the said Writ Application. The Government while matter stood thus has issued the impugned notification for taking over Dhamnagar Grama Panchayat and deployment of technical person from DRDA and Block for newly constituted Urban Local Bodies. The newly constituted Grama Panchayat after election in the year 2012 is continuing as such and it was not dissolved as per Article 243-E of the Constitution of India before completion of its term. The newly constituted Grama Panchayat after election in the year 2012 is continuing as such and it was not dissolved as per Article 243-E of the Constitution of India before completion of its term. The elected Sarpanch and the Ward Members of the Grama Panchayat are holding the office and they are carrying out the developmental work of the Panchayat as usual. The action of the State Government being unconstitutional is liable to be quashed. Hence the present Writ Petitions. 3. A counter affidavit has been filed by opposite party No. 2 contending inter alia that the proposal regarding constitution of Dhamnagar Notified Area Council in the district of Bhadrak was approved by the Government in Panchayat Raj Department. Accordingly, in exercise of the power conferred under Article 243-Q (2) of the Constitution of India read with Section 4 of Odisha Municipal Act, 1950 the notification dated 31.8.1998 was issued by the Housing and Urban Development Department inviting objections/suggestions from the people of the areas specified as transitional area comprising revenue villages as per the draft notification. Subsequently, considering the objection received, the final notification Nos. 42484/HUD dated 22.12.1998 and 42488/HUD respectively specifying the area as transitional area as well as the notification on constitution of Dhamnagar Notified Area Council for the said transitional area were issued. In view of Section 148 (4) of Odisha Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act') if the whole of the area within a Grama is included in a Municipality or a Notified Area, the Grama Panchayat shall cease and the Grama Panchayat constituted thereof shall stand abolished. It was also stated that one Tapan Kumar Rout and another and Madhusudan Sahoo and others have filed Writ Applications bearing OJC Nos. 124 of 1999 and 290 of 1999 respectively challenging the aforesaid notification regarding transitional area and appointment of Sub-Collector, Bhadrak as Administrator of Dhamnagar Notified Area Council. In the said Writ Application on 18.1.1999 an interim order was passed not to take further steps in pursuance of the notification regarding transitional area etc. However, the said Writ Applications were dismissed on 06.11.2007 and 15.3.1999 respectively. After receipt of the dismissal order, the Government has taken action on the earlier notification issued for constitution of Dhamnagar Notified Area Council and appointment of Addl. District Magistrate, Bhadrak as Administrator afresh by notification No. 23620 dated 22.11.2014. However, the said Writ Applications were dismissed on 06.11.2007 and 15.3.1999 respectively. After receipt of the dismissal order, the Government has taken action on the earlier notification issued for constitution of Dhamnagar Notified Area Council and appointment of Addl. District Magistrate, Bhadrak as Administrator afresh by notification No. 23620 dated 22.11.2014. In pursuance of the said notification, the State Election Commission, Odisha in its letter dated 07.1.2015 intimated the Housing and Urban Development Department to start the process to hold election to constitute new Council for Dhamnagar Notified Area within six months as provided under Section 12(1)(a) of the Odisha Municipal Act, 1950. The Government vide its letter dated 21.1.2015 intimated the District Magistrate, Bhadrak to start the process of delimitation of wards and reservation of seats of Dhamnagar Notified Area Council and complete all process by 30.3.2015. Accordingly, the notification for delimitation of wards and reservation of seats of Dhamnagar Notified Area Council was published on 21.2.2015 by the District Magistrate, Bhadrak. In view of the above, since the Grama Panchayat has been abolished as per Section 148 (4) of the Act the contention of the petitioner is not tenable. 4. Learned Addl. Government Advocate fairly submitted that the dismissal of O.J.C No. 124 of 1999 in the year 2007 was not within the knowledge of the State Government. In the year 2014 the Government after receiving such information regarding dismissal of Writ Application issued the impugned notifications. In support of his contention he has relied on the decision in the case of P.V.V. Prasad and others v. Government of Andhra Pradesh and others reported in 2006 (2) ALD 797 wherein the proposal of the Government for inclusion of 32 Grama Panchayats has been opposed by 23 Gram Panchayats, which have unanimously resolved opposing merger of their areas in VMC for formation of GVMC and whereas 9 Grama Panchayats, dominated by the ruling party, have favoured the move of the Government. Article 243-E assured the period of five years unless so sooner dissolved under any law for the time being in force. Article 243-E assured the period of five years unless so sooner dissolved under any law for the time being in force. The only power to dissolve the Grama Panchayat is contained in Section 250 of the A.P. Panchayat Raj Act, 1994 and the power conferred on the Government to dissolve such Panchayat is only for misconduct i.e. not competent to perform its functions or has failed to exercise its powers and perform its functions or has exceeded or abused any of the powers conferred upon it by or under this Act, or any other law for the time being in force. xxx xxx xxx "There is no provision for the dissolution of the Panchayat for the purpose of inclusion in either Municipality or a Municipal Corporation. The provisions relied upon and used by the Government are traceable and confined to the expansion or contraction and enlargement of the territorial limits only. The attempt of the Government abolishing 32 Grama Panchayats in the name of merging their areas with a larger body called Greater Visakhapatnam Municipal Corporation, without there being a proper dissolution, is totally unsustainable, unconstitutional, inoperative and is void ab initio was the contention of the petitioners. Taking into consideration that Grama Panchayats have been de-notified, it was held that the petitioners cannot take shelter under Article 243-E of the Constitution of India and cannot take shelter under Section 250 of A.P. Panchayat Raj Act, 1994 since the said provision is no longer available in pursuance of the notification issued by the Government." (Emphasis supplied) 5. Learned counsel appearing for the petitioner submitted that the election of Dhamnagar Grama Panchayat was conducted in the year 2012 and the first meeting of the elected members of the Grama Panchayat was held on 10.3.2012. He further submitted that since the elected members of the Grama Panchayat are continuing as such and the Grama Panchayat has not yet been dissolved by the State Government, the issuance of the impugned notifications without complying the provisions of Article 243-E of the Constitution of India is illegal and not sustainable in the eye of law. He further submitted that since the elected members of the Grama Panchayat are continuing as such and the Grama Panchayat has not yet been dissolved by the State Government, the issuance of the impugned notifications without complying the provisions of Article 243-E of the Constitution of India is illegal and not sustainable in the eye of law. In support of his contention has relied on the decision in the case of B.K. Chandrashekar v. State of Karnataka reported in AIR (Kar) 461 wherein it was held that Article 243-E and Entry of list II of Seventh Schedule conflict between mandatory provisions of the Constitution and right of State Legislature to enact laws within the legislative competence - Constitution being the supreme laws enacted by the State legislature should be within the provisions of the Constitution of India. It was also held that the State Election Commission cannot hold elections to the existing Grama Panchayats, before expiry of their term, which starts from March, 1999 onwards 'on the issuance of the Press Note by the Election Commission the present Writ Petitions have been filed seeking mandamus to the Election Commission to hold the elections either ignoring the ordinance issued or declaring the same to be unconstitutional running counter to the express provisions contained in the Constitution of India'. Under Article 243-E duration of Panchayat has been constitutionally limited to five years. Dissolution is permissible but not extension. Elections to new Panchayats have to be completed before the expiry of the duration of the outgoing Panchayat and in the case of dissolution before the expiry of six months from the date of its dissolution. Article 243-Ehas to be held to be mandatory and not directory. 6. For better appreciation the statutory provisions are quoted hereunder:-- "Section 243-E of the Constitution of India mandates that: (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Panchayat shall be completed. (a) before the expiry of its duration specified in clause (1). (3) An election to constitute a Panchayat shall be completed. (a) before the expiry of its duration specified in clause (1). (b) before the expiration of a period of six months from the date of its dissolution. Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1) had it not been so dissolved." 6.1 Section 148 (4) of Orissa Grama Panchayats Act, 1964 stipulates that: "If the whole of the area within a Grama is included in a Municipality or a Notified Area, the Grama Sasan shall cease and the Grama Panchayat constituted there for stand abolished." In the case at hand after the notification made in the year 1998 declaring the area to be 'transitional area' in view of Section 148 (4) of the Act, the Grama Panchayat constituted should have been abolished without conducting further election of the Grama Panchayat. However, after dismissal of OJC No. 124 of 1999 in the year 2007, the election of Dhamnagar Grama Panchayat was conducted twice and the last election was held in the year 2012. The first meeting of the elected members of Dhamnagar Grama Panchayat was held on 10.3.2012. In view of Article 243-E of the Constitution of India the Grama Panchayat shall continue to function till its term expires or it dissolved. However, in the present case no such step has been taken by the State Government. Therefore, the notification of the year 1998 cannot be said to be stand abolished as provided under Section 148 (4) of the Act. However, in the present case no such step has been taken by the State Government. Therefore, the notification of the year 1998 cannot be said to be stand abolished as provided under Section 148 (4) of the Act. 6.2 Section 4 (2) of the Orissa Municipal Act, 1950 specifically stipulates regarding 'transitional area' and on a conjoint reading of the said Section along with Section 423 (1) of the said Act it appears that when an area is specified as 'transitional' area under Section 4 (2) until a Municipality is constituted for that area in accordance with the provisions of the Act, a person appointed by the State Government as Administrator shall exercise the powers, discharge the duties and perform the functions of Municipality for that area including that of its Chairperson. 7. However, in the present case the election of Dhamnagar Grama Panchayat was held in the year 2012. While the elected Sarpanch and Ward Members are continuing, the impugned notifications were issued in the year 2014 without de-notifying the Grama Panchayat as per the statutory provision. Therefore, the contention of the learned Addl. Government Advocate that the Grama Panchayat was dissolved in the year 1998 and hence the impugned the notifications were made, is not tenable as the notification issued in the year 1998 was stayed by this Court and the Writ Application was dismissed for default without going into the merits of the case. The election of the Grama Panchayat was held in the year 2007 and 2012. 8. The State Government has not appointed a person as administrator from 1999 till date. In 2014 by issuing the impugned notifications step was only taken, which is not in consonance with the statutory provisions of Orissa Municipal Act, 1950 and the Rules made there under. Therefore, the consequential action of the opposite parties in 2014 is illegal, unconstitutional and contrary to Article 243-E of the Constitution of India. 9. In view of the discussions made hereinabove, this Court in exercise of the jurisdiction under Article 227 of the Constitution of India quashes the impugned notification bearing Nos. 26955/HUD/Elec-19/2014 as well as No. 27005/HUD/Ele-19/2014 dated 22.12.2014 issued by the State Government in Housing and Urban Development Department as the same are contrary to Article 243-E of the Constitution of India. In view of the discussions made hereinabove, this Court in exercise of the jurisdiction under Article 227 of the Constitution of India quashes the impugned notification bearing Nos. 26955/HUD/Elec-19/2014 as well as No. 27005/HUD/Ele-19/2014 dated 22.12.2014 issued by the State Government in Housing and Urban Development Department as the same are contrary to Article 243-E of the Constitution of India. The opposite parties are directed to provide the benefits to Dhamnagar Grama Panchayat, to which it is entitled under different schemes of the Government as expeditiously as possible, preferably within a period of fifteen days from the date of production of certified copy of this judgment. Both the Writ Petitions are accordingly disposed of.