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2019 DIGILAW 296 (ORI)

Dillip Parida v. State of Odisha

2019-04-09

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. The first writ petition is filed by one of the villagers, the second writ petition is filed by the Sarapanch and some Ward Members of Balabhadra Prasad Gram Panchayat and the third writ petition is filed by the villagers of Village-Balabhadra Prasad. All the writ petitions involve a dispute regarding construction of Gram Panchayat building. Filing the first writ petition, the petitioner sought for a direction against O.Ps.2 & 3 to construct the Panchayat Headquarter at the proposed site, vide Annexure-4, whereas the second writ petition involves seeking a direction to O.P.3 to consider the Resolution dated 20.6.2018 passed by the Balabhadra Prasad Gram Panchayat under Annexure-1. Similarly the third writ petition is filed praying for a direction to O.P.3 to register the petitioners' land in favour of the Balabhadra Prasad Gram Panchayat for the purpose of construction of Panchayat Headquarter. Decision involving the third writ petition is consequential upon the decision involving the first and second writ petition. 2. Pleading as available involving the case is upon constitution of newly Gram Panchayat namely Balabhadra Prasad Gram Panchayat, the Panchayat involves eleven villages. Upon coming of a new Gram Panchayat, a dispute arose as to construction of the Gram Panchayat Headquarter in between, Based on the provision of law, a decision has been taken to name the Gram Panchayt after the Village- Balabhadra Prasad having the second maximum population in the locality amongst the villages involved therein. 3. Sri S.K.Dalai, learned counsel for the petitioner in the first writ petition advancing his argument while reiterating the plea taken therein and supporting the construction of the Balabhadra Prasad Gram Panchayat building involving the name of the Gram Panchayat and referring to the development through the Selection Committee meeting dated 6.2.2019 filed by way of affidavit dated 19.3.2019 submitted that for the decision already taken by a high level Selection Committee selecting the site under Khata No.518 Plot Nos.199, 202 & 203 in Mouza-Balabhadra Prasad and for the development taken through the Site Selection Committee and the recommendation involved therein, a simple direction should be given to the competent authority to work out the recommendation of the Committee and proceed for construction of Gram Panchayat building accordingly. While making such request, Sri Dalai, learned counsel for the petitioner also taking reference to the provision at Sections-3 & 4 of the Odisha Gram Panchayat Act submitted that the site selection is in terms of the provision of the Orissa Grama Panchayat Act. Further referring to paragraph-5 of the decision of this Court in Harihar Swain & others vrs. State of Odisha & others, (2003) 96 CutLT 454, Sri Dalai, learned counsel for the petitioner submitted that for the decision therein it is within the domain of the Government to take decision in the matter of construction of the Gram Panchayat building. Further referring to another decision of this Court in Proful Kumar Das vrs. State of Orissa & others,2006 Supp1 OrissaLR 771 and again referring to paragraphs-7 & 8 therein Sri Dalai contended that for the power vested with the Government and for the decision being taken by the Government by way of site selection for the construction of Gram Panchayat building, the writ petition should be disposed of with simple direction to the competent authority to go ahead with the construction of the Gram Panchayat building involving Balabhadra Prasad Gram Panchayat by undertaking the construction over the site selected by the Government after entering into a site selection process. 4. Sri S.N.Mishra, learned Additional Government Advocate, on the other hand while supporting the stand of the petitioner and admitting the development through the correspondences on the recommendation of the Site Selection Committee submitted that Government has no objection either in the matter of site selection or in the construction of Gram Panchayat building over the site selected by the Committee and submitted that there is no progress in the matter of construction of the Panchayat building for the pendency of the present writ petition and interim order involved therein. 5. Sri A.Tripathy, learned counsel for the petitioner in other two writ petitions taking this Court to W.P.(C) No.21661/2018 and the documents involved therein submitted that the dispute as to whether the Grama Panchayat building will be constructed involving Balabhadra Prasad Gram Panchayat remained undecided for a long time and after lot of deliberations and discussions ultimately some sites were also selected particularly three sites for construction of Gram Panchayat building. Referring to the document appended thereto and the document also involving counter of the contesting opposite parties, Sri Tripathy, learned counsel submitted that for the donated land having better placed and easy access to the entire locality, a direction should be given to have a construction of the Gram Panchayat building over the land donated involved herein. Further referring to the provision contained in the Odisha Gram Panchayat Act, Sri Tripathy contended that the view of the Panchayat should also be considered and the Government has no authority to ignore the Resolution of the Gram Panchayat in the particular manner. Extending a Misc. Case filed in Court, Sri Tripathy further submitted that for the petitioner having no information of the development through the Site Selection Committee, the petitioner here also challenges the decision of the Committee by way of this Misc. Case presented in Court during course of hearing. 6. Sri S.N.Mishra, learned Additional Government Advocate referring to the stand of the State in the Counter involved herein while opposing to the stand taken by the learned counsel for the petitioner involving these two writ petitions submitted that for there being a decision by the Site Selection Committee involving Government land for the purpose of construction of the Gram Panchayat building, there is no substance in the prayer involving the second writ petition and he thus prayed this Court for dismissal of two writ petitions involved herein. 7. Considering the rival contentions of the parties, taking into account the document involved herein and going through the provision involving the Odisha Gram Panchayat Act, 1964, this Court finds, Section 3(1) of the Odisha Gram Panchayat Act reads as follows :- "3. 7. Considering the rival contentions of the parties, taking into account the document involved herein and going through the provision involving the Odisha Gram Panchayat Act, 1964, this Court finds, Section 3(1) of the Odisha Gram Panchayat Act reads as follows :- "3. Constitution of Grama-(1) The State Government may for the purposes of this Act by declaration notified in the Gazettee constitute any village or group of contiguous villages as a Grama and assign to such Grama, a name which shall be of one of the villages comprised within the Grama." At the same time, this Court also finds, the provision contained in Section 4 of the Odisha Gram Panchayat Act, 1964 reads as follows :- "4.Constitution and incorporation of Grama Sasan- (1) For every Grama there shall be a Grama Sasan which shall be composed of all persons registered by virtue of the Representation of the People Act, 1950 (43 of 1950) in so much of the electoral roll for any Assembly Constituency for the time being in force as relates to the Grama (and unless the Election Commission directs otherwise the said portion) of the roll shall be deemed to be the electoral roll in respect of the Grama. (2) The Grama Sasan shall be a body corporate by the name of the Grama to which it relates, having prperpetual succession and common seal, with power, subject to the provisions of this Act and the rules made thereunder, to acquire, hold and dispose of property and to contract and may by the said name sue and be sued. (3) The office and headquarters of the Grama Sasan shall be situated within the limits of the Grama and unless otherwise ordered by the State Government in the village bearing the name of the Grama." Reading the provision at Section 3 of the Act, this Court finds, the provision provides constitution of the Gram Panchayat should be of the village or group of contiguous village and while signing the villagers to such Grama, name of the Gram Panchayat should be of one of the villages comprised within the Gram Panchayat. There is no dispute here by either of the parties that the Village-Balabhadra Prasad is the second largest populated village amongst the villages involving the Gram Panchayat. There is no dispute here by either of the parties that the Village-Balabhadra Prasad is the second largest populated village amongst the villages involving the Gram Panchayat. There is also no dispute that the site selected by the Site Selection Committee is a Government land having no controversy involved therein except an objection by Sri Tripathy that the private donated land appears to be conveniently placed from the point of view of approach to the locality. Taking into consideration the provision at Section 4 of the Act, this Court finds, this provision is made providing the office and headquarter of the Gram Panchayat shall be situated within the limits of the Gram Panchayat and unless otherwise ordered by the State Government in the village bearing the name of the village as Gram Panchayat. Therefore, the provision makes it clear that the headquarter office should be left to the decision of the State Government. There is no constraint or restriction that the headquarter should be in the particular village of the Gram Panchayat. It is at this stage, taking into account the document available in both the writ petitions, this Court finds controversy involving construction of the Gram Panchayat building remained for a long period in between, there is also a writ petition to this Court giving direction for consideration of the case at appropriate level. Ultimately, a decision has come by way of recommendation of the Site Selection Committee by their report dated 6.2.2019. The Committee recommended for construction of the Office-cum-Residence building of the Balabhadra Prasad Gram Panchayat over plot nos.199 to 2003 in Khata No.518 in Mouza- Balabhadra Prasad. 8. It is at this stage, the question remained to be considered as to whether the construction of the building of Balabhadra Prasad Gram Panchayat will be over the site selected by the Committee or over the donated plot by one of the villagers ? It is at this stage, this Court takes into account two decisions of this Court, vide 96 (2003) CLT 454, paragraphs-5 & 6 read as follows :- "5. We are unable to accept the said submission of Mr. Mishra. It is at this stage, this Court takes into account two decisions of this Court, vide 96 (2003) CLT 454, paragraphs-5 & 6 read as follows :- "5. We are unable to accept the said submission of Mr. Mishra. On a reading of Sub-section (3) of Section 4 of the Act we find that power has been vested in the State Government to decide the location of the Office and the headquarters of a Grama Sasan and such power can be exercised by the State Government from time to time depending upon the requirements of public interest and there is no statutory bar for the Government to reconsider and take a fresh decision in the public interest. It appears from the record produced before us that after the Commissioner-cum-Secretary Government of Orissa, Panchayati Raj Department passed the order on 5.1.2002 rejecting the representation to shift the headquarters from Nimani to Kalika Prasad, the Government had to reconsider the matter as the villagers of Kalika Prasad, Badabhuin and Arakhapalli had submitted representation to fix the headquarters at Kalika Prasad or to retain the villages in the old Badasahara Grama Panchayat. It is on account of this representation and the grievance made-out by the villagers of the said three villages that the matter was reopened again and after thorough examination and after consideration of the report of the Collector, the headquarters of the Grama Panchayat has been fixed at Kalika Prasad instead of Nimani by the impugned notification. 6. Fixation of headquarters of a Grama Panchayat in any particular village is essentially an administrative matter and so long as relevant considerations have weighed with the Government, in fixing the headquarters in a particular village, the High Court cannot interfere with the decision of the Government like an Appellate Authority and quash the decision of the Government. While exercising power under judicial review, the High Court under Article 226 of the Constitution has only to see whether the administrative power has been exercised within the limits of law and taking into account the relevant considerations and so long as the High Court is satisfied that the power has been exercised within the limits of law after taking into account the relevant considerations, the High Court will not interfere with the same on the ground that it should have been located at a different place. Going through other decision, vide 2006 (Supp.I) OLR - 771, paragraph-5 of which reads as follows :- "5. In the case of Asif Hammed and others v. State of Jammu and Kashmir and others, (1989) AIR SC 1899, it has been held that while exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter, which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory power. In a recent decision of the Hon'ble Apex Court in the case of Union of India and others v. Flight Cadet Ashish Rai, (2006) 1 Supreme 271 , the Apex Court held that there should be judicial restraint while making judicial review in administrative matters. The principles laid down therein in respect of judicial review are as under : "The duty of the Court is (a) to confine itself to the question of legality ; (b) to decide whether the decision making authority has executed its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers." In the case of Bijay Kumar Behera and others v. State of Orissa and others, (2001) 1 OrissaLR 168, this Court has held that so long as the discretion is exercised by the Government bona fidely, the Court cannot interfere with but if it is exercised arbitrarily basing on extraneous considerations or has been exercised ignoring relevant materials, the Court can interfere as the same was without application of mind." Reading the aforesaid decisions, this Court is of the firm view that decision should be left to the Government in its appropriate department. 9. This Court taking cue from the discussions made herein above finds, there is already a site selection by the competent authority after entering into different exercise and ultimately finalizing a piece of land belonging to the Government for the purpose of construction of the building of Balabhadra Prasad Gram Panchayat. 9. This Court taking cue from the discussions made herein above finds, there is already a site selection by the competent authority after entering into different exercise and ultimately finalizing a piece of land belonging to the Government for the purpose of construction of the building of Balabhadra Prasad Gram Panchayat. Further the land selected by the Site Selection Committee also belongs to Government whereas the other land is a private land which may invite subsequent litigation and claim at any time in future. Further from the reading of the second writ petition, this Court finds, nowhere there is challenge to the decision of the Committee involved herein as of now. So far as the Misc. Case filed in Court at the time of hearing involving a challenge to the decision of the Site Selection Committee, this Court observes, in the event of challenge to the decision of the Government as involved herein, no Misc. Case challenging the decision of the Government is entertainable. For no involvement of amendment of the writ petition, this Court finds, the Misc. Case is not sustainable and the writ petitions are also silent on the site selection aspect. 10. For the support of the decisions of the Site Selection Committee by the State, for there is no objection for the State Government in working out the recommendation of the Site Selection Committee for having the Gram Panchayat building over a Government land and the decision of the Government is being passed under the provisions at Sections-3 & 4 of the Odisha Gram Panchayat Act and for the support of the action of the State Government through two decisions referred to herein above, this Court finds, the petitioner involving W.P.(C) No.6432/2018 has a case to succeed and this Court finds no force in the submission of the second and third writ petitions involving W.P.(C) No.21661/2018 and W.P.(C) No.4548/2019. In the process, this Court while allowing W.P.(C) No.6432/2018 directs the O.Ps.2 & 3 to proceed with the construction of the Balabhadra Prasad Gram Panchayat building in terms of the recommendation of the Site Selection Committee without any further wastage of time and shall see that there shall be completion of the construction within a period of one year at the maximum. In the process, this Court dismisses W.P.(C) No. 21661/2018. In the process, this Court dismisses W.P.(C) No. 21661/2018. As a consequence of the result involving W.P.(C) Nos.6432/2018 and 21661/2018, this Court finds, the prayer involving W.P.(C) No.4548/2019 requires no attention, which thus stands dismissed. No cost.