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2016 DIGILAW 1134 (ORI)

Rabindra Sahoo v. State of Odisha

2016-11-22

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. This intra Court appeal has been preferred by the appellants (petitioners in W.P.(C) No.3565 of 2016 who also sought for intervention in W.P.(C) No. 12410 of 2016), assailing the order dated 30.08.2016 passed in W.P.(C) No.12410 of 2016, whereby the learned Single Judge disposed of the writ petition with the direction to the Block Development Officer (B.D.O.), Jaleswar to conduct an opinion poll in both the villages, namely, Jamalpur and Chaughani with the participation of all the adult male and female members of both the villages through secret ballot within one month from the date of receipt of certified copy of the order, to enable the Block Level Committee to make its recommendation in terms of notification dated 01.07.2015. 2. The factual matrix of the case, in brief, is that the Government of Odisha in Panchayati Raj Department by Notification No.10729 dated 01.07.2015 notified under Section 149 of Odisha Grama Panchayat Act, 1964 for reorganization and delimitation of the Gramas within the State by laying down the norms, procedure and time table. In conformity with the said notification, the Block Level Team of Jaleswar Block prepared a Grama Panchyat Chart with proposed new Grama Panchayats on 30.07.2015 and submitted the proposal to District Level Committee, Balasore bifurcating Rayan Ramchandrapur (R.R. Pur) Grama Panchayat and creating Kotasahi Grama Panchayat tagging Jamalpur and Chaughani villages in Kotasahi Grama Panchayat. Then, the Collector, Balasore published a notification on 06.08.2015 inviting objection/ suggestion by 17.08.2015. One Pradosh Chandra Parida and others of Jamalpur and Chaughani villages filed petition for inclusion of those two villages in newly created Kotasahi Grama Panchayat. Whereas, one Nirmal Chandra Das, Madhusudan Senapati and others of the same Jamalpur and Chaughani villages filed objection not to include the said villages in proposed Kotasahi Grama Panchayat. Simultaneously, the M.L.A. of Jaleswar submitted objection to the Collector, Balasore for inclusion of Jamalpur and Chaughani villages in proposed Kotasahi Grama Panchayat on 22.08.2015. 3. After hearing the objection and suggestion, on 25.08.2015, the Collector, Balsore and the District Level Committee decided to recommend for inclusion of villages Jamalpur and Chaughani in proposed Kotasahi Grama Panchayat. On 06.11.2015, the District Level Committee was convened for finalization of New Grama Panchayats wherein the Jamalpur and Chaughani villages were included in proposed Kotasahi Grama Panchayat. 3. After hearing the objection and suggestion, on 25.08.2015, the Collector, Balsore and the District Level Committee decided to recommend for inclusion of villages Jamalpur and Chaughani in proposed Kotasahi Grama Panchayat. On 06.11.2015, the District Level Committee was convened for finalization of New Grama Panchayats wherein the Jamalpur and Chaughani villages were included in proposed Kotasahi Grama Panchayat. Accordingly, the District Level Committee submitted proposal on 17.11.2015 to the Government for formation of new Grama Panchayats tagging Jamalpur and Chaughani villages in proposed Kotasahi Grama Panchayat. The Government returned the proposal on 07.12.2015 with the observation for reconsideration and resubmission of the same to the Government after due scrutiny in the Block Level. 4. On 18.01.2016, the Collector, Balasore instructed to all the B.D.Os. to resubmit the proposal after scrutiny at Block level. Consequentially, the B.D.O., Jaleswar submitted the revised proposal on 21.01.2016 to the Collector, Balasore wherein Jamalpur and Chaughani villages were proposed to be tagged with R.R. Pur Grama Panchayat instead of newly created/proposed Kotasahi Grama Panchayat. On 03.02.2016 and 16.02.2016, representations were made by Ex-Sarapanch of R.R. Pur Grama Panchayat challenging the inclusion of Jamalpur and Chaughani villages in R.R. Pur Grama Panchayat. Pursuant thereto, an inquiry was conducted regarding the revised proposal for inclusion of Jamalpur and Chaughani villages in R.R. Pur Grama Panchayat, and a report was submitted on 30.03.2016 by justifying the inclusion of both the villages in R.R. Pur Grama Panchayat. The District Level Committee submitted proposal of all Blocks to the Government including the proposal of tagging Jamalpur and Chaughani villages in R.R. Pur Grama Panchayat. 5. The appellants, in addition to the representations filed on 03.02.2016 and 16.02.2016, challenged inclusion of Jamalpur and Chaughani villages in R.R. Pur Grama Panchayat before this Court in W.P.(C) No. 3565 of 2016 on 25.02.2016. One Tanuja Parida and others of villages Jamalpur and Chaughani submitted a petition before the Chief Minister, Odisha for inclusion of Jamalpur and Chaughani villages in Kotasahi Grama Panchayat. One Tanuja Parida and others of villages Jamalpur and Chaughani submitted a petition before the Chief Minister, Odisha for inclusion of Jamalpur and Chaughani villages in Kotasahi Grama Panchayat. The writ petition filed by the present appellants (W.P.(C) No. 3565 of 2016) was disposed of by order dated 03.03.2016 directing that the appellants would file fresh representation highlighting all the grievances before the State Government within a period of two weeks and such representation, if filed, would be disposed of by the opposite party-State Government in accordance with law by passing a reasoned order within a period of eight weeks from the date of its filing. In compliance of the same, the appellants filed a comprehensive representation along with a certified copy of the order passed in W.P.(C) No.3565 of 2016 before opposite party no.1 for consideration of their grievances made therein. 6. While the matter stood thus, the representation filed by Tanuja Parida and others of Jamalpur and Chaughani villages, which was submitted before the Chief Minister, was forwarded by Government to the Collector on 15.03.2016 to cause an inquiry and submit report. Consequentially, vide letter dated 26.03.2016, the B.D.O., Jaleswar was instructed to conduct an inquiry into the petition so filed. The B.D.O., Jaleswar submitted his inquiry report on 30.03.2016 mentioning the distance factor of those two villages to R.R. Pur Grama Panchayat and Kotasahi Grama Panchayat with suggestion to tag those villages in R.R. Pur Grama Panchayat. The said inquiry report of the B.D.O., Jaleswar was forwarded by the Collector, Balasore to the Government on 05.05.2016. The State Government, without looking into the report and recommendation of the Block Level Committee, District Level Committee and also inquiry report of the Block Development Officer dated 30.03.2016, passed an order on 04.07.2016 directing inclusion of both the villages Jamalpur and Chaughani in newly created Kotasahi Grama Panchayat as the villages are contiguous one and adjacent to village Kotasahi. The said order is not a speaking or reasoned one, rather, it only gives a comment that the villages are contiguous one and adjacent to village Kotasahi. Accordingly, the Government issued notification dated 05.07.2016 under Section 3 read with sub-section (3) of Section 4 and Section 149 of Odisha Grama Panchayat Act reorganizing the Grama Panchayats wherein Jamalpur and Chaughani villages have been included in newly created Kotasahi Grama Panchayat. 7. Accordingly, the Government issued notification dated 05.07.2016 under Section 3 read with sub-section (3) of Section 4 and Section 149 of Odisha Grama Panchayat Act reorganizing the Grama Panchayats wherein Jamalpur and Chaughani villages have been included in newly created Kotasahi Grama Panchayat. 7. Challenging such notification, respondents no.5 to 9 filed W.P.(C) No.12410 of 2016 without impleading the present appellants as parties to the said writ petition. The appellants filed Misc. Case No.12568 of 2016 for impletion/intervention in the said writ petition. The Government of Odisha in Panchayati Raj Department also filed their counter affidavit on 04.08.2016. Without considering the Misc. Case No.12568 of 2016 filed by the present appellants for impletion/intervention, W.P.(C) No.12410 of 2016 was disposed of by the learned Single Judge with direction for opinion poll within thirty days. Hence, the appellants preferred the present appeal to set aside the order dated 30.08.2016 passed in W.P.(C) No.12410 of 2016 by the learned Single Judge. Needles to mention here, in Misc. Case No.667 of 2016 arising out of the present appeal, this Court passed an interim order on 16.09.2016 that the opinion poll would be held on scheduled date, but the result of the same would not be declared till next date. In compliance of the said order, though the opinion poll has been conducted on 23.09.2016, but the result of the same has not been declared and has been kept in a sealed ballot box in strong room of Sub-Treasury, Jaleswar. On the basis of the above factual backdrop, the appeal has been considered keeping in view the materials available on record. 8. Mr. R.K. Rath, learned Senior Counsel appearing along with Mr. S.S. Patra, learned counsel for the appellants strenuously contended before this Court that the learned Single Judge has passed the impugned order without impleading the present appellants (who were the petitioners in W.P.(C) No.3565 of 2016) as parties. The order dated 04.07.2016 passed by the Secretary, Panchayati Raj Department having emanated from the order passed in W.P.(C) No.3565 of 2016, the appellants are necessary parties. As such, when the respondents no.5 to 9 preferred W.P.(C) No.12410 of 2016, they should have impleaded the appellants, as necessary and proper parties, and the learned Single Judge should have given them opportunity of hearing, while disposing of the W.P.(C) No.12410 of 2016. As such, when the respondents no.5 to 9 preferred W.P.(C) No.12410 of 2016, they should have impleaded the appellants, as necessary and proper parties, and the learned Single Judge should have given them opportunity of hearing, while disposing of the W.P.(C) No.12410 of 2016. He further contended that the order dated 04.07.2016 passed by the Commissioner-cum-Secretary, Panchayati Raj Department including Jamalpur and Chaughani villages in Kotsahi Grama Panchayat instead of R.R. Pur Grama Panchayat is justified. Since in a re-organization process some Grama Panchayats are to lose some of the villages, consequentially no illegality has been caused by the State Government in passing such order. It is further contended that R.R. Pur Grama Panchayat having all facilities, it should part with the existing Jamalpur and Chaughani villages in favour of newly created Kotasahi Grama Panchayat. The earlier decision taken for inclusion of Jamalpur and Chaughani villages in proposed Kotasahi Grama Panchayat is justified one and subsequent decision having been taken to include those two villages in R.R. Pur Grama Panchayat, as before, cannot sustain in the eye of law. It is further contended that the procedure adopted or the direction issued by the learned Single Judge for carrying out opinion poll of the villagers cannot pass the test of law, as the same is not contemplated in the notification dated 01.07.2015 9. Mr. B. Bhuyan, learned Addl. Government Advocate appearing for respondents no.1 to 4 tried to justify the order by stating that the same has been done in consonance with the guidelines dated 01.07.2015 and, as such, to reach a reasonable conclusion if the learned Single Judge has directed for conduct of opinion poll, the order impugned cannot be said to be illegal or arbitrary or unreasonable so as to warrant interference of this Court in the present appeal. 10. Mr. B.M. Patnaik, learned Senior Counsel appearing along with Mr. P.R. Patnaik, learned counsel for respondents no.5 to 9 also tried to justify the order passed by the learned Single Judge and stated that no irregularity or illegality has been committed by the order impugned and the action has been taken keeping greater public interest in consideration. Therefore, the same should not be interfered with. 11. We have heard Sri R.K. Rath, learned Senior Counsel along with Sri S.S. Patra for the appellants, as well as Sri B. Bhuyan, learned Addl. Govt. Advocate appearing for the State-respondents no. Therefore, the same should not be interfered with. 11. We have heard Sri R.K. Rath, learned Senior Counsel along with Sri S.S. Patra for the appellants, as well as Sri B. Bhuyan, learned Addl. Govt. Advocate appearing for the State-respondents no. 1 to 4 and Sri B.M. Pattnaik, learned Senior Counsel along with Sri P.R. Pattnaik for respondents no. 5 to 9 and have perused the records. 12. The dispute in the present writ petition is with regard to the two villages, i.e, Jamalpur and Choughani. The question is as to whether the said two villages be included in the R.R. Pur Grama Panchayat or in the newly created Kotasahi Grama Panchayat. 13. This case has a chequered history, as narrated above. In view of that the learned Single Judge has examined the correctness of order of the State Government dated 04.07.2016 and the consequential notification dated 05.07.2016 whereby the aforesaid two villages have been included in the Kotasahi Grama Panchayat whereas the writ petitioners (respondents herein) claim that as per the report of the Block Level Committee and the response of the Block Development Officer given on 30.03.2016 all the parameters were for inclusion of the said two villages in R.R. Pur Grama Panchayat. 14. Perusal of the notification dated 01.07.2015 would go to show that the Block Level Committee, after making necessary inquiry, has to make its recommendation to the District Level Committee, headed by the Collector, for inclusion of the villages of the block in the Grama Panchayats concerned. Thereafter, the same shall be notified by the Collector and after inviting objections the District Level Committee is to make its final recommendation to the State Government after hearing objections and considering the report of the Block Level Committee. It is the State Government, which is to ultimately issue the notification for inclusion of various villages in different Grama Panchayats, after considering the report of the District Level Committee and the Block Level Committee. 15. It is noteworthy, that the reason given in the impugned order of the State Government dated 04.07.2016 is that since the said two villages are adjacent to village Kotasahi, where the new Grama Panchayat has been created, hence it should be included in the said Grama Panchayat. The same is factually not correct and this also accepted by Mr. 15. It is noteworthy, that the reason given in the impugned order of the State Government dated 04.07.2016 is that since the said two villages are adjacent to village Kotasahi, where the new Grama Panchayat has been created, hence it should be included in the said Grama Panchayat. The same is factually not correct and this also accepted by Mr. R.K. Rath, learned Senior Counsel for the appellants, as the site plan clearly shows that the said two villages are not adjacent to the village Kotasahi and further, the report of the B.D.O. dated 30.03.2016 clearly states that village Jamalpur is 100 meters from R.R. Pur and 2.0 kilometer from village Kotasahi; and further, the other village Choughani is 200 meters from village R.R. Pur and 2.2 kilometers from village Kotasahi. As such, there is no dispute with regard to the direction of the learned Single Judge quashing the order dated 04.07.2016 as well as notification dated 05.07.2016 with regard to villages in question and remanding the matter for fresh decision. The issue in question is with regard to the direction to the Block Development Officer for holding an opinion poll and then submit a fresh report in terms of the notification dated 01.07.2015. 16. The further contention raised that the appellants have not been given opportunity before the writ Court, even though they have filed an application for intervention, is not correct to the extent that the appellants, who had filed application for intervention/impletion, have been heard by the learned Single Judge, as it is apparent from the impugned order dated 30.08.2016 where in first paragraph the name of the counsel appearing for the intervenors has been indicated. The question raised that the appellants having filed application for intervention/impletion of parties, the same should have been allowed and opportunity should have been given to them to file counter, is not always necessary. If the learned counsel for the intervenors, appellants herein, has been heard in the matter, in that case, it cannot be said that no opportunity had been given to the appellants by the writ Court. Therefore, the contention to that extent cannot sustain in the eye of law. 17. As we have already mentioned above, the only question remains for consideration is with regard to the direction issued by the learned Single Judge for holding opinion poll of the villagers. Therefore, the contention to that extent cannot sustain in the eye of law. 17. As we have already mentioned above, the only question remains for consideration is with regard to the direction issued by the learned Single Judge for holding opinion poll of the villagers. Though strictly speaking the said procedure of holding an opinion poll is not contemplated either in the Act, Rules, Regulations or the policy framed on 01.07.2015, but in the peculiar facts of the case, where villagers are fighting for inclusion of their respective villages in Kotasahi Grama Panchayat and R.R. Pur Grama Panchayat and for that purpose both the sides have approached this Court on several occasions, to resolve the dispute for all time to come, if this methodology has been adopted by the learned Single Judge for greater public interest, we would not be inclined to interfere with the direction given by the learned Single Judge. 18. It is not disputed by the parties that the Block Level Committee is to give its opinion after considering the views of the villagers. Taking the views of the villagers by way of an opinion poll would be nothing but requiring the villagers to fairly give their opinion in the form of their respective votes so that the Block Level Committee may consider the same, as well as other parameters, before giving its final recommendation to the District Level Committee. We make it clear that this should not be taken to be that the Block Level Committee, in normal course, is to take such opinion poll and this direction has been issued by the learned Single Judge in the peculiar facts of the case where parties are fighting and approaching this Court time and again. We are, thus, not interfering with the said direction issued by the learned Single Judge. We make it clear that this should not be taken as a precedent for other cases. 19. It is thus directed that the result of the opinion poll which has been carried out by the Block Development Officer on 23.09.2016, shall be declared forthwith. We are, thus, not interfering with the said direction issued by the learned Single Judge. We make it clear that this should not be taken as a precedent for other cases. 19. It is thus directed that the result of the opinion poll which has been carried out by the Block Development Officer on 23.09.2016, shall be declared forthwith. The Block Level Committee shall then give its recommendation in accordance with law and the observation made herein above to the District Level Committee which shall follow the procedure provided in the notification dated 01.07.2015 and make its recommendation to the State Government, which in turn shall thereafter pass necessary orders in compliance of the guidelines issued by the notification dated 01.07.2015. 20. With the aforesaid observations and directions, the writ appeal stands dismissed.