Sitaram Mahadu Shelke And Anr. vs The State Of Maharashtra And Ors.
2002 Latest Caselaw 1251 Bom

JUDGMENT

H.L. Gokhale, J.

1. Heard learned Counsel for the respective parties.

2. This Petition is filed by two villagers of village Wakadi, Taluka Rahata, District Ahmednagar, challenging the decision/Notification dated 18.6.1999 issued by the Collector, Ahmednagar under Section 4(1) of the Maharashtra Land Revenue Code, 1966 (for short, "the Code" hereinafter), constituting certain Survey Numbers, namely; 489, 898, 978 to 980, 1048, 1049, 1058 to 1111, 1118 to 1123, 1126 to 1128 and 1207; into a separate revenue village. These Survey Numbers are also supposed to form a Wadi, known as Sambhaji Nagar and in view of this notification, that Wadi will be now known as village Sambhaji Nagar. Respondent Nos. 1 and 2 to the petition are State Government and its Deputy Secretary in Revenue Department, Respondent No. 3 is Collector, Ahmednagar and Respondent No. 4 is the Village Panchayat.

3. The contention of petitioners is that this decision was taken by Respondent No. 3 - Collector, in view of the agitation by some five persons led by one Shivaji Eknath Sonavane. It is contended that these persons did not have any support in the particular area known as Sambhaji Nagar. Petitioners infact, dispute that the said area is known as Sambhaji Nagar but according to them it is known as Ganesh Nagar. They contended that these five persons agitated before Mantralaya in Mumbai and in view of the pressure brought by them, Respondent No. 3 was required to change the decision to the contrary which he had taken in this behalf earlier.

4. It is submitted that the Collector had infact initially formed an opinion that such a separate village would not be justified. A reliance is placed on the letter dated 6.5.1998 by Respondent No. 3 - Collector to the Respondent No. 2 - Deputy Secretary. This letter states that the Gram Panchayat Wakadi had passed a resolution that Sambhaji Nagar, which is Ward No. 2 of village Wakadi, should not be given a status of separate revenue village. This resolution is supposed to have been passed on 7.4.1995. This letter, however, records that the population of this Ward, known as Ganesh Nagar/Sambhaji Nagar is 1212 as per the Census of 1991 and that this area is at the distance of about 3.5 kms. from the main village. It is also material to note that the letter pressed into service by petitioners, seeks a guidance from the State Government.

5. Shri Dhorde, learned Counsel for petitioners submits that separation of this particular Ward was not justified, as communicated by the letter dated 6.5.1998 and also from the fact that only some five persons wanted this area to be separately constituted into the village. He submits it is because of the pressure of these persons that particular decision has been arrived at and the same is mala fide one. Alternatively, Shri Dhorde submits that, though this is supposed to be a decision under Section 4(1) of the Code, ultimately the regular village panchayat under the Bombay Village Panchayats Act, 1958 (for the sake of brevity, hereinafter, referred to as "the said Act") will be constituted and as far as constitution of village panchayat under the said Act is concerned, prior hearing to the villagers is necessary under the scheme of the said Act. According to him, such a hearing had not been given in the present case. Shri Dhorde, submits that under the provisions of the Constitution of India, as amended by 73rd Constitutional Amendment, the term "village" has been defined under Article 243(g), to mean a village specified by the Governor by a public notification to be a village for the purposes of this part and includes a group of villages so specified. Part IX of the Constitution brought in by this amendment, which deals with the village panchayat makes a provision for constitutional status of the village panchayat. Shri Dhorde, relies upon a judgment of Division Bench of this Court in the case of Ashok Ganpat Jadhav v. State Election Commission 2000 (4) Mh. L.J. 150 : 2000 (4) All. M.R. 565 : 2000 (Supp.) Bom. C.R. 337 to submit that the division of Gram Panchayat into two different village panchayats requires an opportunity of hearing to be given to the villagers.

6. That apart, even with respect to the exercise of power under Section 4(1) of the Code, it is submitted by Shri Dhorde that this power had been delegated by the State Government to the Collector under the Government Resolution dated 1.7.1976. Inasmuch as the Collector himself had indicated in his letter dated 6.5.1998 that the division of the village was not desirable, the subsequent decision, though in the name of the Collector, is at the instance of the State Government and is bad in law. It is submitted that the delegate had in a way exercised his power in his letter dated 6.5.1998. That being so, the subsequent exercise of that power under the impugned notification was bad. Reliance is placed on a judgment of the Apex Court in the case of Chandrika Jha v. State of Bihar to support the proposition that a power if delegated, cannot be usurped by a higher officer and if that is so done, that will have to be interfered.

7. These submissions of Shri Dhorde, are opposed by the State Government. An affidavit-in-reply has been filed and a specific plea has been raised that all that the Collector had done was to constitute a wadi into a revenue village under the Code. It is submitted that under Section 4(1) of the code, this power vests in the State Government and the proviso to Section 4(1)(iv) of the Code provides that it was open to the State Government to constitute a Wadi with a population of not less than 300 persons, into a village. It is this power, which alone had been exercised by the State Government. As far as the subsequent constitution of this revenue village into a village for the purpose of election etc. is concerned, it is stated by Shri Kadam, learned Assistant Government Pleader that those steps are not taken as yet and as and when they are taken, the due process will be followed.

8. As far as submission of Shri Dhorde, that the delegate of the State had exercised his power is concerned, he relied upon the decision of the Apex Court in the case of Chandrika Jha (supra). Now what is material to note is that, in that matter, there was a statutory power, which was made available under the By-laws to the Registrar and a revision was available against the decision of the Registrar to the State Government. It is in this context, that the Apex Court had laid down that when a specific power is given to a subordinate authority and it is sought to be usurped, that will not be permissible. In the present case, it is the power of the State Government itself under Section 4 of the Code and it is in exercise of this power, that the Collector had issued the impugned notification. The administrative guidelines by the State Government can not be read to mean anything beyond what is stated in those circulars. Although the impugned notification is issued by the Collector, it clearly states that it is in exercise of the powers under Section 4(1) of the Code and in view of the delegation of those powers. The earlier letter from the Collector to Deputy Secretary dated 6.5.1998 only brings to the notice of the Deputy Secretary that the Gram Panchayat had passed a Resolution on 7.4.1995 opposing the division. However, the letter itself records that the population of separate Ward is 1212, as per Census of 1991 arid it is at a distance of 3.5 kms. from the main village. This letter itself seeks appropriate guidance from the Government. This being the position, it cannot be said that the power had been exercised by the delegate and it has been exhausted. It is the power of the State Government under Section 4(1) of the Act and it is duly exercised by the Collector, by issuing the impugned notification. This letter is in the nature of internal communication and it is fully permissible for the Collector to communicate with the authorities of the department and thereafter, take a necessary decision.

9. As far as principles of natural justice are concerned, Shri Gorde, learned Counsel appearing for the intervenors, has drawn our attention to the recent judgment of the Apex Court in the case of State of Punjab v. Tehal Singh and Ors. where, while dealing with the provisions of Punjab Panchayat Raj, the Apex Court has held that when it comes to establishment of the gram sabha area by the State Government it may not require the compliance of principles of natural justice, if the statute does not provide therefor. Shri Dhorde has, on the other hand relied on the decision in the case of Ashok Ganpat Jadhav (supra) to submit that hearing is necessary under our Act. Shri Kadam, learned Assistant Government Pleader has, however, stated that the necessary procedure will be followed as and when this separate area is constituted into a village panchayat for the purposes of the said Act. That being so, it cannot be said that there is any infringement of provisions of the said Act or that of the Constitution of India.

10. Shri Gorde, learned Counsel for intervenors submitted that the State Government be directed to constitute a separate village panchayat and hold election to this new village at the earliest. We are told that the election to the village panchayat of the undivided village is to be shortly held. There is no reason to interfere therewith. As stated earlier, it will be for the concerned authority to decide after fallowing due process of law as to whether a separate village panchayat should be constituted and when elections be held to that panchayat.

11. In view of what is stated above, the Petition stands dismissed. Rule discharged. Interim relief stands vacated.