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2019 DIGILAW 379 (ORI)

S. Balakrushna v. State of Odisha

2019-05-01

D.DASH

body2019
JUDGMENT : D. DASH, J. 1. The petitioners, being the villagers of Bhuduki, have filed this writ application invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution, with the prayer to direct the State and its other functionaries to create the new Grama Panchayat as Bhuduki Grama Panchayat with its headquarter at Village Bhuduki instead of Kalarapadar Grama Panchayat with the headquarter at Village Kalarapadar with further prayer to quash the notification dated 4.7.2016 under Annexure-10 in relation to bifurcation of Gautami Grama Panchayat and consequentially the order dated 22.11.2016 passed by the Government in the Department of Panchayati Raj under Annexure-11 pursuant to the order dated 4.10.2016 passed by this Court in W.P.(C) No. 17208 of 2016. 2. Facts necessary for the purpose of the present proceeding are as under:- The petitioners are permanent residents of Village Bhuduki, which was initially under Goutami Grama Panchayat. On 1.7.2015, the Government, in adherence to the provision contained in Section 8 read with Section 148 of the Grama Panchayat Act, 1964 (in short, 'the Act') and the rules framed thereunder coming into force with effect from 12.12.1995, issued notification of reorganization and delimitation, of the Gramas within the State, division of Grama into wards, constitution of Grama Panchayats for such Gramas and constitution of Zilla Parishad constituency, if so required after reorganization of Grama Panchayats within the Panchayat Samiti. Pursuant to the provisions contained in the Act, the State Government having issued said notification on 1.7.2015; accordingly asked all the Collectors and District Magistrates of all the Districts of the State to submit necessary informations by 15.9.2015 for reorganization of Grama Panchayat. 3. Coming to the case on hand, the Collector, Ganjam (opposite party no. 2) called for a meeting for reorganization and delimitation of Gramas in the District. The Block Level Committee (BLC) consisting of the opposite party nos. 3 to 6 as members was constituted and assigned with the task of preparing data sheets and propose reorganization of Grama Panchayats by bifurcation and amalgamation of the villages adjoining to the Grama as per law in the block of Sanakhemundi under notification dated 7.7.2015. The Block Level Committee (BLC), after preparation of the data sheets, submitted the proposal to the Collector and District Magistrate on 22.7.20.15 vide Annexure-2 dividing the Goutami Grama Panchayat into two, i.e. Goutami. The Block Level Committee (BLC), after preparation of the data sheets, submitted the proposal to the Collector and District Magistrate on 22.7.20.15 vide Annexure-2 dividing the Goutami Grama Panchayat into two, i.e. Goutami. Grama Panchayat and with the creation of new one as Bhuduki Grama Pachayat consisting of villages, namely, Kalarapadar, Bhuduki, B. Dharmpurand Matia Bourie having population of 1665, 1191, 643 and 978 respectively as per census of 2011, in total coming to 4777. Objections were invited by the opposite party no. 2 vide letter dated 7.8.2015 and in pursuance of the same, in so far as the case is concerned, villagers of village Bhuduki submitted their representation under Annexure-4 and also the villagers of Village Kalarapadar raised their grievance against creation of new Bhuduki Grama Panchayat with headquarter at Bhuduki. The same being placed before the District Level Committee (DLC) on 15.9.2015, the representation was rejected and it was resolved for creation of a new Grama Panchayat, namely, Kalarapadar bifurcating the original Goutami Grama Panchayat under Annexure-5. Accordingly, the proposal was sent to the Government. After submission of the proposal by the DLC, the Member of the Legislative Assembly of the area wrote a letter on 22.3.2016 to the Hon'ble Minister, Panchayat Raj Department suggesting that instead of Bhuduki Grama Panchayat being created, Kalarapadar Grama Panchayat be created. The same was sent to the Collector and then to the BLC. The view of BLC being sought for, the earlier view was reiterated which came to be placed and finally the recommendation/proposal of DLC was accepted. It is alleged that the opposite party no. 1, being influenced by the suggestions of the local Member of the Legislative Assembly and surrendering to the political pressure, made the bifurcation of Goutami Grama Panchayat into two, namely, Goutami and Kalarapadar, which has been published on 4.7.2016 under Annexure-10. 4. The petitioners then had approached this Court by filing W.P.(C) No. 17208 of 2016. While disposing the said writ petition on 4.10.2016, this Court has passed the following order: "Heard learned counsel for the petitioners and learned Additional Government Advocate. The petitioners are the villagers of three villages' namely Bhuduki, D. Dharampur and Matia Bouri, which were under the jurisdiction of Goutami Grama Panchayat. The Block Level Committee had proposed for creation of Bhuduki Grama Panchayat on bifurcation of Goutami Grama Panchayat. The petitioners are the villagers of three villages' namely Bhuduki, D. Dharampur and Matia Bouri, which were under the jurisdiction of Goutami Grama Panchayat. The Block Level Committee had proposed for creation of Bhuduki Grama Panchayat on bifurcation of Goutami Grama Panchayat. The appropriate authorities have however created a new Grama Panchayat named Kalarapadar on bifurcation of Goutami Grama panchayat. All the aforesaid three villages have been brought under the Kalarapadar Grama Panchayat. Bhuduki is a village with the second highest population in Kalarapadar Grama Panchayat and it is situated at equi distance from all the villages of the Grama Panchayat. In view of such facts, the petitioners want that the new Grama Panchayat should be named after Bhuduki and the headquarter of the same should also be fixed at village Bhuduki. Taking into consideration the limited grievance of the petitioners and without going into merit of the case, this writ petition is disposed of with a direction that the petitioner shall file a detailed representation along with a certified copy of this order and copy of the writ petition containing all the Annexures, before the Commissioner-cum-Secretary to the Government, in Panchayati Raj Department, within 15 (fifteen) days from today. Learned Commissioner-cum-Secretary to the Government in Panchayati Raj Department is directed to consider the grievance of the petitioners within six weeks from the date of receipt of a certified copy of this order. If necessary, the petitioners and other concerned parties may be given opportunity of hearing in the matter, and a reasoned order in consonance with the guidelines of the Government be passed by the learned Commissioner-cum-Secretary, Panchayati Raj Department. It is made clear that the Commissioner-cum-Secretary, to the Government in Panchayati Raj Department shall not be influenced. by any political consideration in disposing of the representation filed by the petitioners and he shall act strictly according to the Governments guidelines and Rule governing the field. The writ petition is accordingly disposed of. xx xx xx xx" However, the Government, opposite party no. 1, has finally passed the order on 22.11.2016 as at Annexure-11 rejecting the representation of the petitioners and thus giving further seal of approval to the notification under Annexure-10. 5. Counter affidavits have been filed by the opposite party nos. 1 and 7. The opposite party no. 1, while traversing the averments made in the writ application, has asserted that for administrative convenience. 5. Counter affidavits have been filed by the opposite party nos. 1 and 7. The opposite party no. 1, while traversing the averments made in the writ application, has asserted that for administrative convenience. and better delivery of service to the citizen, the notification of reorganization/delimitation of Gramas, in exercise of powers conferred under Section 149 of the Act has been made vide notification no. 10729/PR dated 1.7.2015. As per the said guidelines, the panchayat having population around 10000 or more can be reorganized and a new Grama Panchayat can be constituted basing on the geographical location/natural barrier and for administrative convenience. The guidelines contain that the distance factor from the farthest village to the proposed Grama Panchayat Headquarter should be around 2 to 5 kms. It also mandates that while selecting the Grama Panchayat Headquarter, proper care should be taken that the proposed Headquarter is approachable from the tagged villages, centrally located and administratively convenient to the people. With regard to the priority being given to cover the villages of Grama Panchayat Headquarter, three categories have been made, i.e. (i) population of 2000 and above as 1st priority; (ii) population of 1500 and above as 2nd priority; and (iii) population of 1000 and above as 3rd priority. It has been further clarified that in case two or more villages come under the same category, then higher population, locational advantage and administrative convenience should be given preference for constitution of new Grama Panchayat Headquarter. Reverting to the facts of the case as obtained in this proceedings, it is stated that BLC though had recommended Bhuduki to be the new Grama Panchayat by way of bifurcation of Goutami Grama Panchayat, the DLG did not agree with the same and modified the proposal which is within its domain. The DLC recommended for creation of Kalarapadar Grama Panchayat taking into account its highest population with prevalence of very good communication facilities to all the constituent villages with all the villages situated within three kms from the said headquarter. So, it is asserted that the creation of the new Grama Panchayat with the fixation of its headquarter, as has been done causes, no inconvenience for villagers of all the three villages in any manner whatsoever. In so far as the political pressure through the suggestion/recommendation of the local. Member of the Legislative Assembly is concerned, the same has been denied. In so far as the political pressure through the suggestion/recommendation of the local. Member of the Legislative Assembly is concerned, the same has been denied. It has been asserted that the action as regards the creation of new Grama Panchayat, i.e. Kalarapadar Grama Panchayat by bifurcation of Goutami Gram Panchayat fixing its headquarter at village Kalarapadar is quite in consonance with the provisions of the Act and rules and also the guidelines made in that behalf. It has next been stated that after creation of the Kalarapadar Grama Panchayat, one Panchayati Raj Institution Election has already been held in the year 2017 and all the office bearers of the newly created Kalarapadar Grama Panchayat have assumed the office, which is running at the Headquarter at Kalarapadar. The opposite party no. 7, the elected Sarpanch of the newly created Kalarapadar Grama Panchayat in his counter, has also taken the same stands all in favour of creation of new Grama Panchayat, i.e. Kalarapadar Grama Panchayat after bifurcation of Goutami Grama Panchayat with fixation of headquarter at village Kalarapadar. 6. Learned counsel for the petitioners submitted that while issuing the notification under Annexure-10 dated 4.7.2016, there was no recommendation from the BLC and the notification has been issued purely on political consideration. She, therefore, urged that the notification dated 4.7.2016 and order dated 22.11.2016 as at Annexures-10 and 11 respectively are bad in the eye of law and liable to be quashed. It was her submission that in order to go to Kalarapadar Grama Panchayat office, which situates on the extreme end of the villages, the residents of all the three villagers would suffer a lot especially the marginalized, senior citizen and other categories in deriving the real benefit of all the welfare schemes and measures of the State as also the Centre. According to her, village Bhuduki is centrally located and is convenient and ideal location vis-à-vis all the villages and if the headquarter of the newly created Grama Panchayat is fixed at village Bhuduki, it would be ideal and convenient for the inhabitants of those three villages. It was submitted the DLC has overturned the recommendation of the BLC in an arbitrary manner in the absence of any such justification. It was submitted the DLC has overturned the recommendation of the BLC in an arbitrary manner in the absence of any such justification. In view of all the above, she argued that this Court, in exercise of the writ jurisdiction, should quash the notification under Annexure-10 and the consequential order under Annexure-11 and accordingly issue directions. In support of her contentions, she relied upon the decisions of this Court in the cases of "Pramod Kumar Bahidar and others v. State of Orissa and others", 1992 (I) OLR 392 ; "M. Narasimlulu Reddy and others v. State of Orissa and others"; 2006 (Supp-II) OLR 845 and "Prabhasini Nayak and others v. State of Orissa and others"; 2009 (Supp-I) OLR 623. 7. Learned Additional Standing Counsel reiterating the averments taken in the counter affidavit of opposite party no. 1 submits that all such-actions having. been taken in consonance with the provisions of the Act and Rules as also the guidelines framed thereunder/the writ application is devoid of merit. 8. In view of the rival case as also the submissions noted above, the question stands for consideration is as to whether the order of the State Government deciding the bifurcation of Goutami Grama Panchayat in creating the new Grama Panchayat, i.e. Kalarapadar Grama Panchayat with fixation of its headquarter at village Kalarapadar is a bona fide one taking into consideration all the factors so as to subserve the interest of all the inhabitants of all the villages at large, or it is merely a colourable exercise of power not supported by any materials and has been arbitrarily passed by the State Government. Provision of Section 149 of the Act empowers the State Government to pass order for reorganization and delimitation of the Gramas within the State. Accordingly, vide notification dated 1.7.2015 under Annexure-I, the Government, in the Department of Panchayati Raj have published the order laying down the norms, procedure and time table under Annexure-I, II and III. The norms to be adopted for reorganization of the Grama Panchayats are at under Annexure-I whereas the procedure for working out the proposal and disposal of suggestions for the proposed reorganization of Grama Panchayats are at Annexure-II and Annexure-III concerns with the maintenance of uniformity in the progress of work on reorganization of the Grama Panchayat. 9. The petitioners are the residents of village Bhuduki. 9. The petitioners are the residents of village Bhuduki. Although at the earlier stage, in filing W.P.(C) No. 17208 of 2016, some residents/of village Matia Bourie and B. Dharmpur had joined with these petitioners; in the present proceeding, they have not come forward. Admittedly, this village Bhuduki was under the original Grama Panchayat Goutami. This Court on the earlier occasion had directed the Commissioner-cum-Secretary to Government, in the Department of Panchayati Raj to consider the grievance of the petitioners therein; the claim therein was as the present one, i.e. the headquarter of the newly created Grama Panchayat should be at Bhuduki. The petitioners of that writ petition, i.e. the villagers of the three villages, namely, Bhuduki, B. Dharmpur and Matia Bourie were heard and the Block Development Officer as well as District Panchayat Officer placed the facts. The reason in support of the same is that Kalarapadar is the highest populated village administratively convenient than other three villages having no such disadvantages as to the inhabitants of other village. 10. In case of Pramod Kumar Bahidar (Supra), in the matter of change of name of the Grama Panchayat and its headquarter, this Court found from the materials placed that the discretionary power exercised by the Hon'ble Minister in ignoring the earlier positive affidavit against such change as well as that of the enquiry report of the Collector against the change, as based on extraneous consideration and arbitrary. This Court in M. Narasimhulu (Supra), dealing with a matter of delinking of a village from one Grama Panchayat and linking it with another finding that the decision had been so taken without due application of mind to the relevant materials had remitted the matter for reconsideration. In case of Prabhasini Nayak (Supra) in the matter of creation of new Grama Panchayat, the decision of the Government overturning the positive report of the Collector as to fixation of headquarter based on due consideration of all aspects was found to be arbitrary based on extraneous consideration and not supported by reason. The position has been settled that in such matters, the Court is not entitled to interfere with such decisions except when it comes to the conclusion that the decision has been so taken on extraneous considerations or has been done by ignoring the relevant materials and the power has been so exercised colourably. The position has been settled that in such matters, the Court is not entitled to interfere with such decisions except when it comes to the conclusion that the decision has been so taken on extraneous considerations or has been done by ignoring the relevant materials and the power has been so exercised colourably. Indisputably, the village Kalarapadar is the highest populated village among those, which constitute the newly created Grama Panchayat. All the villages constituting the Grama Panchayats are within a distance of 3 kms from village Kalarapadar. Excepting the fact that village Bhuduki is situated almost at the mid of the other villages neither on population count nor of any other count, the creation of Bhuduki Grama Panchayat having its headquarter at Bhuduki satisfies the norms. Authorities have reported that it is administratively convenient from all angles as also the constituent villages to have Kalarapadar Grama Panchayat with its headquarter there and its for better administrative convenience. serving larger public interest. No such extraneous considerations are seen to have weighed in the mind while taking that decision. The DLC have considered the representations in that regard and so also on the second round, the Commissioner-cum-Secretary has heard all concerned and agreed with the view in support of the creation of Kalarapadar Grama Panchayat with headquarter at Kalarapadar. The suggestion of the Local Member of the Legislative Assembly had in fact been given after recommendation of the DLC. It is also not seen to have been given after recommendation of the DLC. It is also not seen to have been given any such weightage in considering the matter for final notification. The decision is found to have been taken 'upon a cumulative view of all those factors as indicated in the guidelines by striking balance whereby the pan has tilted in favour of creation of Kalarapadar Grama Panchayat with headquarter at Kalarapadar. 11. For all the aforesaid, this Court finds the notification under Annexure-10 and the subsequent order passed by the opposite party no. 1 and under Annexure-11 to be bona fide one after taking into consideration all the relevant factors and being of the opinion that the same would sub-serve the interest of the inhabitant of all the villages constituting that newly created Grama Panchayat and that they would face no such inconvenience, which does not suffer from the vice of arbitrariness. 12. The writ application is accordingly dismissed. 12. The writ application is accordingly dismissed. There will be, however, no order as to cost.