Bombay High Court
Gajanan Baburao Sankpal vs 4 Divisional Commissioner on 17 October, 2012
Bench: S.C. Dharmadhikari
*1* wp.4595.10.sxw
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4595 OF 2010
Gajanan Baburao Sankpal,
Age : 43 years, Occupation : Agriculture,
R/o Shirol, Tal. Shirol,
District : Kolhapur. ..Petitioner
-versus-
1 Avinash Bhauso Kamble,
Age : Adult, Occ: Agriculture,
R/o Shirol, Tal.: Shirol,
District : Kolhapur.
2 Gramsevak, Gram Panchayat,
Shirol, Tal: Shirol,
District : Kolhapur.
3 Additional Collector,
Kolhapur, District : Kolhapur.
4 Divisional Commissioner,
Pune Division, Pune,
District : Pune. ..Respondents.
............
Mr.Amit Sale, for the Petitioner.
Mr.Rahul Walvekar, for the Respondent Nos.1 and 2.
Mr.R.M.Patne, AGP, for the Respondent Nos.3 and 4.
............
CORAM : S.C.DHARMADHIKARI, J.
Reserved on : 11th September, 2012
Pronounced on : 17th October, 2012.
Judgment:
1 Rule. The Respondents waive service.
*2* wp.4595.10.sxw
2 By consent, Rule is made returnable forthwith.
3 By this Writ Petition under Articles 226 and 227 of the
Constitution of India, the Petitioner is challenging the order passed by the
Commissioner, Pune Division, Pune dated 06.05.2010 in an appeal. That
appeal was challenging the order passed by the Additional Collector,
District : Kolhapur dated 14.12.2009.
4 The relevant facts are that there is a Village Panchayat in
Shirol, Taluka : Shirol, District : Kolhapur. That Village Panchayat has
constituted a Committee called "Pani Purvatha Ani Swachhata Samiti"
(Water Supply and Sanitation Committee). That Committee was
constituted in the Gram Sabha dated 26.01.2006. The Petitioner was
unanimously appointed as the Chairman of the said Committee. In the
election of the Village Panchayat held in June-July, 2008, the Respondent
No.1 was initially elected as a member and later on as Sarpanch of this
Village Panchayat on 09.07.2008. It is the case of the Petitioner that after
the change in the ruling party in the Village Panchayat, the Respondent
No.1 hastily inserted an agenda of formation of the said Pani Purvatha Ani
Swachhata Samiti. This item was introduced in the agenda of the Gram
Sabha held on 15.08.2008. This Gram Sabha of village Shirol was held on
15.08.2008 and it concluded within a short span of 08 minutes. The
agenda item No.2 was inserted in the notice of Gram Sabha in respect of
*3* wp.4595.10.sxw
formation of this Committee though such Committee was already
functioning in the Village Panchayat. It had completed 40% of the total
work. Thus, insertion of agenda item No.2 hurriedly and hastily and
without intimating villagers well in advance, was with ulterior motive.
The ulterior motive was that the Respondent No.1 wanted to form a new
Committee of himself and his group.
5 When the Gram Sabha was over and the decision on agenda
item No.2 was taken, the Petitioner lodged a complaint with the Block
Development Officer of the Panchayat Samiti, Shirol. The Petitioner
pointed out that the Extension Officer from the office of Block
Development Officer was to attend the Gram Sabha on the relevant date,
however, he could not attend it as when he reached the venue at 10:08
a.m., he was informed that the Gram Sabha was over. It is in these
circumstances that the Petitioner complained to the Block Development
Officer. The Petitioner was accompanied by about 1000 villagers.
6 The Block Development Officer on receipt of this complaint
on 15.08.2008 at 12:15 p.m. took telephonic instructions and was
informed that the Gram Sabha proceedings were not complete and under
preparation. Thus, a farce of meeting was held and the resolution passed
at that Gram Sabha was not acceptable to even majority. Therefore, the
Petitioner relying on this complaint filed a revision application before the
*4* wp.4595.10.sxw
Additional Collector, Kolhapur. The Petitioner pointed out in the
application that the Gram Sabha is invalid as it was concluded within 08
minutes. The Sarpanch has left before conclusion of the meeting. The
Gram Sabha was not held in Sabhagruha. One person has signed twice or
thrice for his attendance. There was no quorum. There was no resolution
passed leave alone by majority and thus, there was no Gram Sabha in the
eyes of law.
7 This Revision Application was opposed by the Respondent
No.1 and he denied the contents and asserted that the Gram Sabha was
held and it was valid.
8 The Additional Collector, after hearing both sides, passed an
order on 14.12.2009 holding that the Gram Sabha cannot be said to be
validly convened particularly in terms of a Government Resolution dated
19.05.2004. It is impossible that 07 subjects were read out, discussed and
voted within a short span of 08 minutes. Therefore, he allowed the
Revision Application No.50/2008 and declared the Gram Sabha of
15.08.2008 as cancelled.
9 Aggrieved and dissatisfied with this order, the Respondent
Nos.1 and 2 preferred an appeal being Appeal No.602/2010. This appeal
was contested by the Petitioner by urging that it was not maintainable.
However, the Commissioner, Pune Division, Pune allowed this appeal by
*5* wp.4595.10.sxw
the impugned order dated 06.05.2010 and therefore, this Writ Petition.
10 Mr.Sale, learned counsel appearing for the Petitioner, firstly
submitted that the impugned order passed by the Commissioner is
contrary to the principles of natural justice as the Petitioner was not
heard. The hearing could not have been held as the Petitioner and his
Advocate appeared on 05.04.2010. On that day no effective proceedings
were held as it was the first appearance. The 06 th May, 2010 was the day
on which the hearing was adjourned and the Petitioner remained present,
but even on that day, there was an issue of maintainability raised by the
Petitioner by filing an application. There was no reply filed to that
application and the matter was not argued as well. However, inspection of
records by the Petitioner on 17.05.2010 revealed that the Commissioner
has already passed an order allowing the appeal on 06.05.2010.
Therefore, the impugned order is passed in flagrant breach and violation
of the principles of natural justice and must be set aside on this ground
alone.
11 Secondly, there was inordinate delay in passing this order
inasmuch as the Gram Sabha Resolution of 2006 was sought to be
nullified in 2008 which nullification was not accepted by the Additional
Collector vide his order dated 14.12.2009. There was no occasion for
setting aside this order of the Additional Collector after four months. For
*6* wp.4595.10.sxw
all these reasons, Mr.Sale submits that, the impugned order must be set
aside.
12 It must also be set aside because the Commissioner has
erroneously held that the Collector has no power to set aside a decision of
the Gram Sabha. The reasoning of the Commissioner in that behalf is
contrary to law. There is no question of the Collector possessing no power
as far as Gram Sabha proceedings are concerned. If the Collector as
delegate of the State Government can issue directions and control the
proceedings of Village Panchayat as a whole, then, it is inconceivable that
he does not possess any power to set aside a resolution or decision of the
Gram Sabha even if same is contrary to the object and purpose of the Act.
In such circumstances the order under challenge should be set aside.
Mr.Sale has relied upon a judgment of the Honourable Supreme Court
reported in AIR 1984 SC 626 (Corporation of the City of Nagpur, Civil
Lines, Nagpur and another v/s Ramchandra G. Modak and others).
13 On the other hand, Mr.Walvekar, learned counsel appearing
for the Respondent Nos.1 and 2 and Mr.Patne, learned AGP appearing for
the Respondent Nos.3 and 4, have submitted that in this case while the
Additional Collector has proceeded to set aside the Gram Sabha, what the
Commissioner has done and rightly, is to peruse the provisions of the Act
and come to an independent conclusion that the Collector has no
*7* wp.4595.10.sxw
jurisdiction to cancel the Gram Sabha which is covered by Section 7 of the
Act.
14 It is contended and very strenuously that if there was some
irregularity found in the Gram Sabha meetings and if the Gram Sabha is
not held in accordance with the Bombay Village Panchayat (Meeting of
Gram Sabha) Rules, 1959 and if any member, Sarpanch or Upa-Sarpanch
of the Village Panchayat, violated any rules of these Rules, the Petitioner
can file a complaint/ application before the Commissioner under Section
39 of the Act. Since the Collector has no jurisdiction to cancel the Gram
Sabha, it is clear that the order of Collector cannot be sustained and the
Commissioner has rightly set aside the same.
15 For properly appreciating the rival contentions, what must be
immediately noticed is that a complaint was made based on a report
submitted to the Block Development Officer that Shirol Gram Panchayat
had convened a Gram Sabha, but even authorized official reached at
about 10:08 a.m., at that time, he was informed that the Gram Sabha was
over. Even the Gram Sabha proceedings were incomplete as was informed.
In such circumstances what the Petitioner had alleged was that the
proceedings have been initiated and concluded on account of political
enmity and for political reasons. In the earlier Gram Sabha of 26.01.2006
the Petitioner was unanimously appointed as the Chairman of the
*8* wp.4595.10.sxw
aforementioned Committee. Later on, the Respondent No.1 was elected as
a member of the Gram Panchayat in elections held in June-July, 2008. He
was elected as Sarpanch on 09.07.2008. The allegation is that he was
anxious of changing the Committee and that is why in the Gram Sabha a
subject was introduced at the last minute and about 08 subjects in all
were taken up for discussion and the meeting concluded within 08
minutes. It was alleged that there was objection taken to all this before
the Block Development Officer and thereafter, there is a complaint lodged
in the Civil Court.
16 To this application, the contesting Respondent No.1 filed a
reply and stated that this application is not maintainable and in addition,
what has been stated is that all allegations are false and the Petitioner has
made a false complaint. The Petitioner needs to be proceeded against in
accordance with law. The Petitioner has failed to obtain any interim orders
in the proceedings before the Civil Court. The Petitioner has failed to
bring to notice of the Collector that in terms of Section 39 of the Act r/w
Government Circular dated 06.12.2006 the "Gram Arogya, Poshan, Pani
Purwatha and Swachhata Samitis" (Rural Health, Nutrition, Water Supply
and Sanitation Committees) have been set up and that is in terms of a
Agenda Item No.2 of the Gram Sabha meeting dated 15.08.2008. A report
based on the decision taken in the Gram Sabha was forwarded to the
*9* wp.4595.10.sxw
Chief Executive Officer, Zilla Parishad, Kolhapur and the said decision has
been approved. It is stated that all other allegations are false and
absolutely untenable.
17 The Additional Collector curiously has rejected the argument
of the Petitioner that constitution of the Water Supply and Sanitation
Committee was an item introduced at last minute in Agenda of the Gram
Sabha. However, what he has held is that the Chief Executive Officer, Zilla
Parishad, Kolhapur has by a letter dated 10.10.2008 informed that he has
approved the Rural Health, Water Supply and Sanitation Committee.
However, he has not approved the Gram Sabha of 15.08.2008. In such
circumstances it would not be proper to hold that the Chief Executive
Officer has approved the Gram Sabha.
18 By relying on a report of one Mr.Y.K.Jadhav, Extension Officer,
Panchayat Samiti, Shirol, what the Additional Collector has held is that
the Gram Sabha was convened at 10 a.m. and it got over within 08
minutes. In 08 minutes, 07 subjects were called out and resolutions are
stated to have been passed, as set out in the minutes of the Gram Sabha.
According to the Additional Collector, it will not be possible within this
short span to obtain signatures of those present, elect a Chairman of
meeting, ascertain whether there is requisite quorum or not and most
importantly whether, directives in the Government circular dated
*10* wp.4595.10.sxw
19.05.2004 have been followed or not. These directives contemplate that
subjects have to be called out and discussed. Therefore, it is impossible
that in a short span of 7 to 8 minutes all subjects or items on Agenda were
called out, discussed and were put to vote by the House. In these
circumstances the Gram Sabha deserves to be cancelled.
19 Such conclusion of the Additional Collector has been set aside
by the Additional Commissioner by holding that the power conferred vide
Section 153 of the Act is to ensure control and implementation of the
provisions of the Act by giving directions from time to time. By Section
154 what is contemplated is that the Commissioner and the Collector have
the same powers as are conferred upon them by the Maharashtra Land
Revenue Code, 1966, of monitoring and controlling the functioning and
working of officials subordinate to them. Similarly, by Section 155 the
State has been conferred the powers to go into and decide the validity and
legality of any order passed by officials of the Panchayat by calling for
records and proceedings in relation thereto.
20 All such powers as are referred to in these provisions do not
envisage and contemplate annulling or cancelling the Gram Sabha and
decisions taken there at. Therefore, if the Additional Collector was to call
for records and proceedings in relation to the Gram Sabha to verify and
scrutinize them and later on set aside the same, then, he must be
*11* wp.4595.10.sxw
conferred with such specific powers. That is not covered by these
provisions and therefore, he had no jurisdiction to set aside the Gram
Sabha. His powers do not enable him to interfere with a Gram Sabha
when Gram Sabha is properly convened and there is requisite quorum at
the same. In such circumstances and when there is nothing indicated in
the rules as to how much time has to be given for each subject nor is there
any outer limit prescribed for conclusion of the Gram Sabha, then, the
Gram Sabha should not have been cancelled. In other words, duration of
meeting, time for discussion on each subjects have not been prescribed in
the Rules. If they are not so prescribed, then, the finding and conclusion
of the Additional Collector that the Gram Sabha was convened and
concluded hastily cannot be upheld. On this basis, the Additional
Commissioner proceeded to set aside the order of the Additional Collector,
Pune.
21 To my mind, these observations are too wide and sweeping in
nature. What the Additional Commissioner has done is to separate a Gram
Sabha from Gram Panchayat or Village Panchayat and its affairs. He has
proceeded on the footing that a Gram Sabha is a meeting of villagers as a
whole. The meeting of Village Panchayat, its functioning, its decisions,
resolutions and orders are distinct matters and the control thereof only is
permissible in law. A Gram Sabha is a distinct entity and though governed
*12* wp.4595.10.sxw
by the Act, but its functioning and its affairs are beyond powers of control
envisaged by the Act. It is difficult to accept such conclusions.
22 The Bombay Village Panchayats Act, 1958 is an Act to amend
and consolidate the law relating to the constitution and administration of
Village Panchayats in the State of Bombay with a view to establishing a
Village Panchayat for every village or group of villages and investing them
with such powers and authority as may be necessary to enable them to
function as units of local self-government and of development activities in
rural areas, and for certain other matters. Section 3 contains definitions
and the term "Gram Sabha" is defined in clause (9) as under:-
"Section 3(9) "Gram Sabha" means a body consisting of
persons registered in the electoral rolls relating to
village comprised within the area of the Panchayat."
The term "Panchayat" is defined in Section 3(14) whereas the
term "prescribed" as defined in Section 3(15) means prescribed by rules.
The terms "Village" and "a group of villages" have been defined in Section
3(24) and read as under:-
"Section 3(24) "Village" and "a group of villages" means
the village or, as the case may be, a group of villages
specified in the notification issued under clause (g) of
Article 243 of the Constitution of India."
Equally the word "Village Development Committee" is
defined in Section 3(24A). Importantly, the term "Panchayat" is defined in
*13* wp.4595.10.sxw
Section 3(14) to mean a Panchayat established or deemed to have been
established under this Act. Section 5, therefore, appears after Section 4
under Chapter-II which deals with Gram Sabhas, Establishment and
Constitution of Panchayats. Section 4 provides for Declaration of Village
and Section 5 provides for Establishment of Panchayats. Section 7
provides for Meetings of Gram Sabha and reads as under:-
"7. Meetings of Gram Sabha:-
(1) There shall be held at least six meetings of the Gram
Sabha every financial year on such date, at such time
and place, and in such manner, as may be prescribed
and if the Sarpanch or in his absence the Upa-Sarpanch
fails without sufficient cause to hold any of such four
meetings, he shall be disqualified for continuing as
Sarpanch, or as the case may be, Upa-Sarpanch or for
being chosen as such for the remainder of the term of
office of the members of the Panchayat; and the
Secretary of the Panchayat shall also if, prima facie,
found responsible of any lapse in convening such
meeting, be liable to be suspended, and for being
proceeded against, for such other disciplinary action as
provided under the relevant rules. The decision of the
Collector on the question whether or not there was such
sufficient cause shall be final:
Provided that, the Sarpanch may, at any time of his
own motion, and, shall, on requisition of the Standing
Committee, Panchayat Samiti, or Chief Executive
Officer, call a meeting of the Gram Sabha within the
period specified in the requisition; and, on failure to do
so, the Chief Executive Officer shall require the Block
Development Officer to call the meeting within fifteen
days from the date he is so required to do. The meeting
shall, notwithstanding the provisions of sub-section (3),
be presided over by him or any officer authorized by the
Block Development Officer, in that behalf.
Provided further that, a period of not more than
three months shall be allowed to elapse between the two
*14* wp.4595.10.sxw
meetings of the Gram Sabha:
Provided also that, if the Sarpanch or Upa
Sarpanch, as the case may be, fails to call any such
meeting within the specified period, the Secretary shall
call the meeting and it shall be presumed that such
meeting has been called with the concurrence of the
Sarpanch or, as the case may be, Upa Sarpanch;
(2) Any officer authorised in this behalf by the Standing
Committee, Panchayat Samiti or Chief Executive Officer
by general or special order shall have the right to speak
in and otherwise to take part in the proceedings of a
meeting of the Gram Sabha, but shall not be entitled to
vote.
Unless otherwise provided in this Act, the first meeting
of the Gram Sabha after each general election to a
Panchayat and thereafter the first meeting of every year,
shall be presided over by the Sarpanch and in his
absence by the Upa-Sarpanch; and all other subsequent
meetings of the year of the Gram Sabha, shall be
presided over by a person elected by the persons present
in that meeting of the Gram Sabha.
(4) If any dispute arises as to whether a person is entitled to
attend a meeting of Gram Sabha, such dispute shall be
decided by the person presiding, regard being had to the
entry in the list of voters for a whole village or ward
thereof, as the case may be, and his decision shall be
final.
(5) The meeting of the women members of the Gram Sabha,
shall be held before every regular meeting of the Gram
Sabha, convened under sub-section (1).
(6) The Gram Sabha shall have the disciplinary control
over the Government, semi-Government and Panchayat
employees working in the village including the matters
relating to their daily attendance in the office. The
annual evaluation of such employees shall be brought to
the notice of their respective higher authorities by the
Gram Sabha.
*15* wp.4595.10.sxw
(7) The Gram Sabha shall report to the concerned Block
Development Officer, the irregularities, if any,
committed by any of such employees. The Block
Development Officer shall consider such report within
the period of three months from the date of its receipt.
Such matters and the actions taken thereon shall be
reviewed in the regular meetings of the Panchayat
Samiti. If, the Block Development Officer fails to dispose
of such reports within the specified period of three
months, the same shall on the expiry of the said period,
stand transferred to the Chief Executive Officer of the
concerned Zilla Parishad for disposal, whose decision
shall be final. The Chief Executive Officer of the Zilla
Parishad shall take the decision on such reports so
transferred to him, within a period of three months
from the date of their receipt.
(8) The Gram Sabha shall select the beneficiaries for
individual beneficiary schemes of the State, or as the
case may be, of the Central Government.
(9) The Gram Sabha shall generally fix the date, time and
place of the next meeting of the Gram Sabha, in its
previous meeting.
(10) Unless exempted by the Gram Sabha, all the
Government, semi-Government and Panchayat
employees working in the village shall attend the
meetings of the Gram Sabha.
(11) The proceedings of every meeting of the Gram Sabha
shall be prepared and maintained by the concerned
Secretary of the Panchayat and in his absence, the
proceedings shall be prepared by any Government, semi-
Government or Panchayat employee working in the
village, such as Teacher, Talathi or Anganwadi Sevika as
directed by the Sarpanch and the same shall be handed
over to the Panchayat for records."
Sections 8 and 8AA read as under:-
*16* wp.4595.10.sxw
"8. Panchayat to place before Gram Sabha statement of
accounts etc., and duties of Gram Sabha:-
(1) The first meeting of the Gram Sabha in every financial
year shall be held within two months from the
commencement of that year, and the Panchayat shall
place before such meeting,
(i) the annual statement of accounts;
(ii) the report of the administration of the preceding
financial year;
(iii) the development and other programme of work
proposed for the current financial year;
(iv) the last audit note and replies (if any) made
thereto;
(v) any other matter which the Standing Committee,
Panchayat Samiti or Chief Executive Officer or any
officer authorised by the Standing Committee or
Panchayat Samiti in this behalf, require to be placed
before such meeting.
(1A) The Panchayat shall place the report of the expenditure
incurred on the development activities before the Gram
Sabha once in every six months, and display the
information thereof on the notice board of the
Panchayat.
(2) It shall be open to the Gram Sabha to discuss any or all
of the matters placed before it under sub-section (1) or
sub-section (1A) and the Panchayat shall consider
suggestions, if any made by the Gram Sabha.
(3) A Gram Sabha shall carry out any other functions as
the State Government may by general or special order
require.
8AA. Powers and duties of Gram Sabha:-
It shall be competent for every Gram Sabha:
(i) to approve the social or economic development plans,
programmes and projects to be implemented by the
Panchayat before such plans, programmes and projects
are taken up for implementation by such Panchayat;
(ii) to grant permission for incurring any expenditure by the
Panchayat on the development schemes;
*17* wp.4595.10.sxw
(iii) to convey its views to the Panchayat before taking any
decision by the Panchayat in respect of any proposal for
acquisition of any land falling within the jurisdiction of
such Panchayat, for the Government purpose, by the
Land Acquisition Authority concerned."
23 Then comes Section 9 which provides for Incorporation of
Panchayats whereas Section 10 provides for its constitution. Rest of the
provisions in this Chapter deal with eligibility for contesting election to
the Panchayat, role of the State Election Commission, manner in which
elections have to be held, list of voters, persons qualified to vote and to be
elected, vacation of seats, disqualifications, determination of validity of
elections, enquiry by judge and procedure. Sections 15A, 16, 18, 19 to 26
provide for elections and matters in relation thereto. Section 27 onwards
provide for term of office of members, commencement of term of office,
resignation whereas further provisions deal with Sarpanch and Upa-
Sarpanch, manner of their election, their resignation and no confidence in
them. Section 36 provides for time and place of sitting of Panchayat and
procedure of meetings whereas Section 37 deals with modification or
cancellation of resolutions. Section 38 deals with executive power of
Panchayat and functions of Sarpanch and Upa-Sarpanch whereas Section
39 deals with removal of Sarpanch and Upa-Sarpanch from office. Section
39A confers power on the Government to direct inquiry whereas Sections
*18* wp.4595.10.sxw
40 to 44 deal with various aspects in relation to Panchayat.
24 Then comes Chapter-III which provides for administrative
powers and duties of Panchayats (Section 45). Therein Sections 46 to 48
provide for matters which have to be dealt with by the Panchayat and
then comes Section 49 which deals with Village Development Committees.
It reads as under:-
"49. Village Development Committees:-
(1) A Gram Sabha may, in consultation with the
Panchayat, from amongst the members of the
Panchayat, representatives of community based
organizations working in the Panchayat area, village
level functionaries of Panchayat, Zilla Parishad, State
Government and voters, constitute one or more Village
Development Committees, by whatever name called.
(2) The term of such committee shall be co-terminus with
the term of the Panchayat.
(3) Such committees shall exercise such powers, discharge
such duties and perform such functions of the
Panchayat, as may be delegated or assigned to them by
the Gram Sabha in consultation with the Panchayat,
relating to the subjects and activities enumerated in
Schedule I and such other works and activities related
to or associated with the Panchayat as may be entrusted
by the Gram Sabha, Zilla Parishad, Government or any
other competent authority to the Panchayat, from time
to time. The Gram Sabha may, subject to the general
supervision and control of the Panchayat, regulate the
procedure of such committees.
(4) The total number of the members in a Village
Development Committee shall not be less than twelve
and not more than twenty four:
Provided that:-
(a) not less than one third of its members shall be
from amongst the members of the Panchayat;
(b) not less than one-half of its members shall be
women; and
*19* wp.4595.10.sxw
(c) such number of members, as may be specified by
the Government in that behalf, shall be from the
Scheduled Castes, Scheduled Tribes, Vimukta Jatis and
Nomadic Tribes (hereinafter referred to as the
"vulnerable class"):
Provided further that, the strength of the women
members of the vulnerable class members on the Village
Development Committee shall be not less than three-
fourths of the total strength of such committee
members, when such committee is constituted for the
purpose of an activity, scheme or utility exclusively for
the benefit of women or, as the case may be, for the
vulnerable class;
(d) the Gram Sabha shall ordinarily nominate such
women members to the Village Development Committee
as recommended by Village Mahila Mandal or a Gram
Sabha of the women voters specially called for the
purpose, unless it has sufficient reason, to be recorded
in the proceedings, to reject any such recommendation;
(e) the Gram Sabha, in its discretion, may give
preference to the members of the village level
institutions, if any, like Mahila Mandals, Youth Clubs,
etc.;
(f) the Gram Sabha may, also invite any village level
Government, semi-Government, Zilla Parishad officials
or employees working in the village, such as teachers,
talathis, anganwadi sevikas, village water men, village
health workers, to attend any meeting or meetings of
the Village Development Committee, as a special invitee
for the purpose of assisting or advising it on any matter
or matters. Such special invitee may take part in the
deliberations in the meeting but, shall have no right to
vote in such meeting.
(5) The Village Development Committee constituted under
sub-section (1) shall be deemed to be a committee of the
Panchayat and shall be under the overall supervision
and control of the Panchayat. The administrative
machinery of the Panchayat shall assist such committee
as it assists the Panchayat.
(6) The annual statement of accounts and proceedings of
the Village Development Committee shall be kept and
managed separately for day to day convenience but
*20* wp.4595.10.sxw
shall form an integral part of the Panchayat record,
accounts and proceedings, and shall be presented
through the Panchayat in the meeting of the Gram
Sabha specially called for the purposes of approving
annual budget and passing of the annual accounts of
the Panchayat.
(7) The Panchayat shall normally not exercise the powers,
discharge the duties and perform the functions
entrusted to the Village Development Committee by the
Gram Sabha unless, so resolved by the Gram Sabha in
an extra-ordinary circumstances to be mentioned and
approved by the majority of not less than two thirds of
the members present and voting, in a meeting specially
called for the purpose of withdrawing such powers,
duties and functions of the Village Development
Committee, and allowing the Panchayat to take over
the same.
(8)(a) The members of the Village Development Committee,
once appointed, shall not be removed or withdrawn
before the completion of their term as provided in sub-
section (2) except:
(i) by an express resolution passed by the Gram
Sabha in a special meeting duty called for the purpose,
or
(ii) when such member suffers from any of the
disqualification specified in section 14 for the members
of the Panchayats.
(b) Any vacancy caused by the death, resignation, removal
or withdrawal, or otherwise disqualification of a
member of the Village Development Committee, shall be
filled up as provided under sub-section (1) read with
sub-sections (2) and (4).
(9) On constitution of a new Panchayat, the Village
Development Committee shall be reconstituted within
forty-five days of the constitution of the new Panchayat:
Provided that, there shall be no bar for the
members of the previous committee to be reappointed
on the new committee, if otherwise eligible."
*21* wp.4595.10.sxw
25 A bare perusal of the said provision, which was substituted by
Maharashtra Act No.23 of 2003 dated 01.08.2003, would indicate that a
Gram Sabha may, in consultation with the Panchayat, from amongst the
members of the Panchayat and other representatives constitute one or
more Village Development Committees and the term of such committees
shall be co-terminus with the term of the Panchayat. The powers, duties
and functions of such committees are set out in sub-section (3) of Section
49 and it is for the Gram Sabha, but subject to the general superivision
and control of the Panchayat, to regulate the procedure of such
committees. Thereafter, there are further safeguards so that the Village
Development Committees function effectively and properly. There can be
joint committees as dealt with by Section 50. The Government may vest
certain lands in Panchayat and that is by Section 51. Whereas, Sections 52
and 53 deal with control on erection of buildings, obstructions and
encroachments upon public streets and open sites. Section 54 deals with
numbering of premises.
26 Chapter-III-A makes special provisions for Gram Sabha and
Panchayat in the scheduled areas whereas Chapter-IV deals with property
and fund of the Panchayat. Chapter-V provides for establishment, budget
and accounts of the Panchayat. Then comes Chapter-IX which deals with
levy and recovery of taxes and fees due to the Panchayat. Chapter-X
*22* wp.4595.10.sxw
provides for financial assistance to the Panchayat. Chapter-XI is entitled
"control". The word "control" in legal terminology and parlance means "to
restrain, to check, to regulate, to govern, to keep under check, to rule and
direct, to subject to authority, superintendence." In AIR 1972 SC 1248
(The Shamrao Vithal Cooperative Bank Ltd. v/s Kasargode Panduranga
Mallya) the Honourable Supreme Court outlined the meaning of this term
in the following words:-
"6. ....... The word 'control' is synonymous with
superintendence, management or authority to direct,
restrict or regulate (See p.442 of Words and Phrases
(Vol.9) Permanent Edition). Control is exercised by a
superior authority in exercise of its supervisory power.
......."
Similar is the meaning ascribed or given to this term in a later
decision State of Mysore v/s Allum Karibasappa and others, reported in AIR
1974 SC 1863. Finally, in the case of Corporation of the City of Nagpur v/s
Ramchandra G. Modak, AIR 1984 SC 626, the Honourable Supreme Court
holds as under:-
"4. It is thus now settled by this Court that the term
'control' is of a very wide connotation and amplitude
and includes a large variety of powers which are
incidental or consequential to achieve the powers vested
in the authority concerned. In the aforesaid case,
suspension from service pending a disciplinary inquiry
has clearly been held to fall within the ambit of the
word 'control'. On a parity of reasoning, therefore, the
plain language of Clause (b) of Sec.59(3), as extracted
above irresistibly leads to the conclusions that the
*23* wp.4595.10.sxw
Municipal Commissioner was fully competent to
suspend the respondents pending a departmental
inquiry and hence the order of suspension passed
against the respondents by the Municipal Commissioner
did not suffer from any legal infirmity. The High Court
was, therefore, in error in holding that the order of
suspension passed by the Municipal Commissioner was
without jurisdiction. In this view of the matter the order
of the High Court cannot be maintained and has to be
quashed."
Therefore, to hold that the power does not include
questioning or scrutinizing the decision or resolution of a Gram Sabha
would be contrary to the mandate of Chapter-XI. The Sections therein
read together and harmoniously will demonstrate the sweep of the power
of the State acting through various Agencies and Officials. There is
nothing in Parts IX and IX-A of the Constitution of India which dilutes the
scope of the State's authority to control the affairs and administration of
the Panchayat. It is not possible to agree with the learned AGP or the
learned Advocate for the other Respondents that this power does not
include any authority and jurisdiction to set aside the decision or act of
the Gram Sabha. Accepting their argument would mean Gram Sabha is
distinct from a Panchayat in so far as Village administration is concerned.
That would mean that it is separate authority by itself, although Gram
Sabha is creation of the Bombay Village Panchayats Act, 1958. That would
not be a proper reading of the Act. In AIR 1995 SC 1512 (State of U.P. v/s
*24* wp.4595.10.sxw
Pradhan Sangh Kshettra Samiti) the Honourable Supreme Court
considered all three concepts, namely, "Village", "Panchayat" and "Gram
Sabha" as defined in Part IX of the Constitution of India and held thus:-
"7. It is common knowledge that the needs of the people
change with the development in the economic, scientific
and technological fields as also with the developments in
transport and communication. With them, the concept
of self-sufficiency and the means, mode and range of
self-governance also change. What is more, the units of
self-governance at the lower level being interrelated and
integrated with those at the higher levels as parts of the
whole scheme of administration and development in the
State, have to respond to and fall in line with the
growth in the size and operation of the units at the
higher level to form a coordinated democratic polity and
administrative machinery. The concept of grassroot or
lowest level administration must, therefore, necessarily
change with the advance and progress at other levels.
The governing units at all levels have to fit in in a
pattern, and a scheme for administration both for law
and order and economic growth. They have to act as
vehicles of overall stability and progress. For that
purpose, their constitution and functioning have to be in
conformity with the larger social, political and economic
goals.
Hence there cannot be any immutable social,
political, economic or organisational concept of village
as a self governing unit. In a developing country like
ours, where the population is growing fast, where the
society is in ferment on all fronts, where divisive forces
of all kinds abound, where the vast majority of
population is illiterate and is the victim of ignorance,
superstition, blind-faith, biases and prejudices, and is
shackled by tradition, and irrational customs and
practices, there is an urgent need to evolve means to
unite and integrate the society, to expose the populace to
larger and higher goals, to imbibe in them the wider
perspectives and to forge a socially cohesive front for
breaking the barriers of race, caste, class, religion and
*25* wp.4595.10.sxw
region rather than to pander to the age-old, self-centered
physical and mental barriers. As stated earlier, Article
40 not only does not define "village" but also does not
require that the village panchayats should be organised
on the basis of any particular concept of village much
less the vintage concept which appears to have appealed
to the High Court. There is further nothing in the
Mahathma Gandhi's advocacy of "village panchayat raj"
from which the High Court has taken support to suggest
that the village that Mahatmaji had in mind was of a
particular description or dimension. It is amusing in this
respect to note that the High Court in support of its
concept of village has even gone to the extent of
observing that "it must be remembered that in
considering the aspirations of the people, more so at the
first level of democracy, the phenomena of a case of
identity of the people, their sentiments, feelings and
chauvinism, cannot be forgotten" the considerations
which were, with respect, farthest from the mind of
Mahathmaji and against which he fought throughout
his life. If separate identities, chauvinism, divisible
sentiments and feelings are nurtured from the grassroot
level, they are bound to erode the foundation of the
unity and integrity of the country and should be the last
thing on the social and political agenda of the country.
On the other hand, the need of the day is to create
social, political and economic entities crossing all
barriers and wedded to the nationhood as the ultimate
goal. Anthropological and sociological entities may be
natural so far as the blood and familial relationships
and attachments go and have their place in certain
limited spheres. But they have no place while shaping
democratic, political and administrative units. Nor are
they necessarily conducive to social and economic
progress. On the other hand, they may prove and have
in the past proved a positive hindrance to them.
Although, therefore, it is true that most of the villages
have developed with the initial settlement of a family or
a group of families belonging to either the same tribe or
ethnic group and in that sense have their historical and
sociological identity, these identities are not necessarily
healthy or desirable for promoting wider and diverse
*26* wp.4595.10.sxw
interests and attaining larger goals. On the other hand,
they often prove insurmountable blockades to promoting
the ideals enshrined in the Preamble of our Constitution,
viz., social, political and economic justice; liberty of
thought and expression, belief, faith and worship;
equality of status and of opportunity; and fraternity
assuring the dignity of the individual and the unity and
integrity of the nation. Sometimes, smaller the social,
political and administrative entities, the greater the
dominance of one section or the other and deeper the
prejudices. The need is to organise viable social,
political, economic and administrative units of optimum
size at the lowest level on a rational basis keeping in
mind the size of population, the needs of social and
economic development, availability of resources, the
transport and communication facilities, convenience of
administration and other relevant factors. Old is not
always gold and mere historic accidents through which
the villages of the concept of High Court have developed,
cannot justify their perpetuation as political and
administrative units to attain the modern goals of social
and economic progress or furnish the rationale for their
survival as basic democratic entities. What is further
forgotten is that over the years, not only the population
in the rural areas has grown enormously but the
complexion of the rural areas has also undergone a
change. With the increasing pressure on land, there has
been a steady migration from the rural to the urban and
semi-urban areas. Some villages are almost deserted
while others survive much below the poverty line. At the
same time, some have emerged as small pockets of
comparative prosperity, thanks to marginal industrial
and commercial activities around them and the nearness
to the urban and semi-urban areas. There is further a
limit to the number of village panchayats which may be
constituted with all the overhead expenses involved in
the exercise which must have a rational relation to the
result sought to be achieved. In the State o U.P., there
are 1,20,000 villages. Before the present exercise of
constituting the village panchayats under the Act, there
were 74,000 gram sabhas which are now reduced to
55,000. With the nature and range of functions
*27* wp.4595.10.sxw
entrusted to the new village panchayats under the Act,
and the expenditure that may have to be incurred in
constituting and running them, it can hardly be said
that their number, structure and Organisation militate
in any way against the concept of democracy and the
principle of self-governance. Section 11-F (1) by laying
down for non-hilly areas a norm of a village panchayat
for every 1000 population as far as practicable and for
hilly areas, for every 5 kilometres radius distance, has in
fact tried to observe the principle of self-governance as
closely as possible.
The first premise of the High Court's reasoning is,
therefore, faulty and it has led it to build an edifice
which is equally defective. It is for this reason that we
are unable to appreciate the portions of the impugned
judgment dealing with the sentiments, feelings,
chauvinism and will of the people (pages 16-20);
holding that power to specify villages vests with the
people and not with the State Government and that the
villages cannot simply be a revenue village (pages 21 to
25); holding that the Governor is obliged to specify a
village giving due regard to the wishes of the people
(pages 26-27); holding that provisions of the Act
referring to establishment of Gram Sabha for a group of
villages are ultra vires, and beyond the intention of the
Constitution (pages 32-33); that status of Gram Sabha
has been compromised and belittled in the Act itself
(pages 37-38); holding that the Act in explaining the
expression 'gram sabha' offends the Constitution and
negates the concept of local self-government (page 40);
and stating that Section 11-F gives rise to
misunderstanding as it has scope for overlapping and
duplication in notifying and declaring areas comprising
a village or group of villages into panchayat area (page-
59).
8. As pointed out above, Article 243(g) of the Constitution
defines village to mean "a village specified by the
Governor to be village and includes a group of villages
so specified". In other words, according to this definition,
any existing village or a group of the existing villages
may be specified by the Governor as a village for the
*28* wp.4595.10.sxw
purposes of organising a village panchayat. The
definition begs the question as to what is a village which
the Governor can specify as a village for the purposes of
constituting the "village panchayat". It is not disputed
that almost all villages in the State have been recorded
in the revenue records of the respective districts, in
which they are situate. No material has been placed on
record to show that villages have been recorded as such
in any other record. There may be some villages and
new settlements which are not so recorded. There is,
therefore, nothing wrong if the Governor specifies the
revenue villages as villages and settlements which are
not so recorded in the revenue records as villages for the
purposes of constituting village panchayats. The
"revenue village" is, therefore, a documented ready-made
concept of village and the Governor while acting under
Article 243(g) for specifying the village may adopt the
same as village. No restriction has been placed by Article
243(g) on the Governor for accepting the revenue village
as a village for the purposes of constituting village
panchayat. In fact, the Governor has been empowered
by the said constitutional provision to declare even a
group of villages as a village. If this is so, we are unable
to appreciate as to why the definition of village in
Section 2(t) will fall foul of the provisions of Article
243(g). Section 2(t) not only speaks of villages recorded
in the revenue records as such but also includes in the
definition, any area which the State Government may
by general or special order declare to be a village for the
purposes of the Act. The concept of village is not foreign
either to the Constitution or to the State legislation.
Apart from the U.P. Land Revenue Act, the concept of
village finds place in other State enactments such as U.P.
Village and Road Police Act, 1873 and U.P. Villages
Sanitation Act, 1892, U.P. Village Courts Act, 1892, U.P.
Village Panchayats Act, 1920 which was replaced by the
unamended U.P. Panchayat Raj Act, 1947, U.P. District
Boards Act, 1922, U.P. Local Rates Act, 1914 which
latter two Acts were replaced by the U.P. Kshettra
Samities and Zila Parishads Adhiniyam, 1961. If,
therefore, there is no restriction placed by the
Constitution on the Governor in accepting any inhabited
*29* wp.4595.10.sxw
rural are as a village, it is difficult to appreciate how the
Act is violative of the Constitution when the State
Government declares any area including a revenue
village as a village. In any case, the Court cannot
substitute its concept of village for that of the State
Government.
9. ........... In the present case, by the notification dated 9th
May, 1994 issued under Section 96-A of the Act by the
Governor, the powers of the State Government under
Section 3 and Section 11-F of the Act were delegated to
the Director, Panchayat Raj, U.P., Lucknow [hereinafter
referred to as the `Director']. Pursuant to this
delegation, on 4th August, 1994 the Director issued
notification establishing gram sabhas under Section 3
and declaring panchayat areas under Section 11-F of
the Act. This was a composite notification both for
establishing gram sabhas and declaring panchayat
areas. It is true that neither in the notification dated 9th
May, 1994 delegating powers under Sections 3 and 11-F
to the Director nor in the notification dated 4th August,
1994 establishing gram sabhas and declaring the
panchayat areas, there is a mention either of Section 2
(t) of the Act or of the power delegated to declare the
village under the said provision. However, keeping in
mind the scheme of the Act and the provisions of
Sections 2(t), 3 and 11-F, it is clear that Section 2(t)
merely defines 'village' and by itself does not give power
to the State Government to declare the village. It states
that village means "any local area recorded as a village
in the revenue records of the district in which it is
situate and includes any area which the State
Government may by general or special order declare to
be a village for the purposes of the Act. The said section
is therefore in two parts. By the first part, it adopts the
villages recorded in the revenue records of the districts
as villages for the purposes of the Act. By the second
part, it accepts as village any area which the State
Government may for the purposes of the Act declare as
such village. There is no separate provision giving power
to the State Government to declare any area as village
for the purposes of the Act. The legislature, probably
*30* wp.4595.10.sxw
rightly thought that since the power given to the State
Government by Section 3 to establish a gram sabha and
by Section 11-F to declare the panchayat area comprise
in them the power to declare the village within the
meaning of Section 2(t) and particularly of the second
part of it, was not necessary to make an independent
provision to enable the State Government to declare the
village for the purposes of the Act. It cannot be said that
this view of the State Government is wrong for it is not
possible to establish a gram sabha or declare the
panchayat area unless the village for which such gram
sabha is to be established and its area are first
determined. The notification which is issued on 4th
August, 1994 further shows that the gram sabha which
is inappropriately titled as gram panchayats are
established for villages within the meaning of Section 2
(t) and they comprise the area either of one revenue
village or of more revenue villages than one. ..........
10. The High Court has also held that there is a substantial
difference between the definition of 'gram sabha' in
Article 243 (b) of the Constitution and in Section 2(g)
of the Act and, therefore the latter definition is ultra
vires the provisions of the Constitution. Frankly, we
have been unable to understand the reasoning of the
High Court in that behalf Article 243(b) of the
Constitution defines 'gram sabha' to mean "a body
consisting of persons registered in the electoral rolls
relating to a village comprised within the area of
panchayat at the village level" whereas Section 2(g) of
the Act defines 'gram sabha' to means "a body
established under Section 3 of the Act consisting of
persons registered in the electoral rolls relating to village
comprised within the area of a gram panchayat". The
High Court has taken exception to the word 'established'
in Section 2(g) of the Act. It must be remembered in this
connection that there is no provision in Part IX of the
Constitution such as Section 3 of the Act for establishing
a gram sabha for a village or a group of villages by such
name as may be specified, and to name the gram sabha
in the name of the village having the largest population
when the gram sabha is established for a group of
*31* wp.4595.10.sxw
villages. One may have quarrel with the use of the
expression 'established' in this connection. For it is true
to say that gram sabha is nothing but the electorate of
the village or villages comprised within the area of a
gram panchayat and in that sense there is nothing to be
established as far as gram sabha is concerned. What is
to be established is the panchayat for a particular area
and for the electorate constituted in that area. The
moment the panchayat area is declared the electorate
comprised in it gets automatically constituted into the
gram sabha. It no longer remains merely an electorate.
Whether such constitution is called establishment is
immaterial. These are matters of description. Having
followed a particular pattern, the legislature has used
the expression 'established' also in connection with the
gram sabha along with the panchayat. We, however, do
not see how the use of the said expression makes any
difference to the intendment of the said provision and
how the said provision goes counter to the provisions of
the Constitution. Surely, it is not suggested that the
gram sabha that the Act seeks to establish does not
consist of the entire electorate in the panchayat area or
excludes some of it. So long as, therefore, the definition
given in Section 2(g) and the provisions of Section 3 of
the Act do not in any way detract from the provisions of
Article 243 (b) or their intendment, they cannot be held
ultra vires the provisions of the Constitution. ..........
The High Court has also held that the provisions
of Section 3 of the Act which empower the State
Government to establish a gram sabha for a group of
villages by the name of the village having the largest
population would result in the loss of identity of the
village or villages with smaller population comprised in
the gram sabha. The High Court has committed an
obvious error here in that it has identified the village
with the gram sabha and the village panchayat. When
villages are united to form a gram sabha and a village
panchayat, they do not lose their name and identity as
separate villages. They come together only for the
purpose of running the gram panchayat. In that process,
they may also stand to gain inasmuch as they may have
access to more resources, and the benefit from bigger
*32* wp.4595.10.sxw
schemes and projects and availability of better
infrastructure and equipment to implement the projects
and schemes. ..........."
27 Thus, the survey of provisions and particularly those referred
by me hereinabove, leave me in no manner of doubt that if a Gram Sabha
in some matters is subjected to supervision of the Panchayat and the
Panchayat in turn is bound by authority of the State in terms of Chapter-
XI, then, the Standing Committee, Panchayat Samiti, the Chief Executive
Officer of Zilla Parishad, the State are conferred with varied powers to
deal with a situation of default or deliberate act of omission and
commission by the Panchayat. To then hold that the Panchayat is bound
by orders, directions and decisions of the State, but a Gram Sabha is not,
would run counter to the object and purpose of inserting Chapter-XI. In
this behalf, one may usefully refer to Sections 152 to 155 of the Act. They
read as under:-
"152. Panchayat to conform to instructions given by Parishad
and Samiti:-
A Panchayat shall conform to any instructions that may,
from time to time, be given to it by the Zilla Parishad or
the Panchayat Samiti or both, in the execution by the
Panchayat of its duties and functions under this Act.
153. Inquiry by officers of State Government:-
(1) The State Government may order an inquiry to be held
by any officer appointed by it in this behalf into any
matters concerning the village administration of any
Panchayat or any matters with respect to which the
sanction, approval, consent or order of the State
*33* wp.4595.10.sxw
Government is required by this Act.
(2) The Officer holding such inquiry shall have the powers
of a Court under the Code of Civil Procedure, 1908 (V of
1908), to take evidence and to compel the attendance of
witnesses and the production of documents for the
purposes of the inquiry.
(3) The State Government may make orders so as to the cost
of inquiries under sub-section (1) and as to the parties
by whom and the funds out of which they shall be paid
and any such order may, on the application of the State
Government or of any person named therein, be
executed as if it were a decree of a Civil Court.
153A. Power of State Government to give instructions and
issue of directions to the Panchayats:-
The State Government may give to any Panchayat
general instructions as to matters of policy to be
followed by the Panchayat in respect of its duties or
functions, and in particular, it may issue directions in
the interest of the national or State Development plans
in respect of the execution and maintenance of works
and development schemes. Upon the issue of such
instructions and directions it shall be the duty of the
Panchayat to give effect to such instructions and
directions.
153B. Power of State Government to give instructions and
issue directions to Gram Sabha or Panchayat in
Scheduled Areas:-
The State Government may give to any Gram Sabha or
Panchayat in the scheduled areas general or special
instructions as to the matters of policy to be followed by
the Gram Sabha or Panchayat, as the case may be, in
the interest of the tribals in the scheduled areas with
reference to the implementation of or compliance with
the provisions of the Panchayats (Extension to the
Scheduled Areas) Act, 1996. Upon the issue of such
instructions or directions it shall be the duty of the
Gram Sabha or the Panchayat, as the case may be, to
give effect to such instructions or directions.
154. Authority of State Government, Commissioner and
*34* wp.4595.10.sxw
Collectors:-
(1) In all matters connected with this Act, the State
Government and the Commissioners and Collectors shall
have and exercise the same authority and control over
the Commissioner, the Collectors and their subordinates,
respectively as they have and exercise over them in the
general and revenue administration.
(2) In all matters connected with this Act, the State
Government shall have and exercise the same authority
and control over the Zilla Parishad and the Panchayat
Samiti as it has and exercises over them under the
Maharashtra Zilla Parishad and Panchayat Samitis Act,
1961 (Mah.V of 1962).
155. State Government may call for proceedings:-
The State Government may call for and examine the
record of proceedings of the Zilla Parishad, Panchayat
Samiti or Standing Committee, as the case may be or of
any officer for the purpose of satisfying itself as to the
legality or propriety of any order passed and may revise
or modify the order as it shall deem just."
28 To my mind, therefore, it would not be proper to construe
these provisions narrowly and read into them any restrictions much less of
the nature read by the Additional Commissioner in this case. That would
mean that a Gram Sabha can perform such acts or take such decisions or
pass such resolutions as it desires or deems fit and proper, even contrary
to the object and purpose of the Act and by brushing aside the same. In
that event, such acts cannot be remedied or corrected is a improper and
incomplete or erroneous reading of the provisions in question. That would
make mockery of power of control conferred by Chapter-XI of the Act.
*35* wp.4595.10.sxw
Such is not intent of the Legislature and once the concept of Gram Sabha
is understood as above. If a Gram Sabha is not a higher or superior body,
but consists of persons registered in the electoral rolls relating to a village
comprised within the area of the Panchayat and is understood as such,
then, it is definitely a prominent and major part of village set up.
However, it essentially performs the duties enumerated in Section 8AA of
the Act. Its powers and duties are to approve the social or economic
development plans, programmes and projects to be implemented by the
Panchayat before such plans, programmes and projects are taken up for
implementation by such Panchayat, to grant permission for incurring any
expenditure by the Panchayat on development schemes and to convey its
views to the Panchayat before taking any decision by the Panchayat in
respect of any proposal for acquisition of any land falling within the
jurisdiction of the Panchayat for the Government purpose, by the Land
Authority concerned. Thus, it is a body comprising of the electorate of the
village. It is a body which approves all plans, programmes and projects to
be implemented by the Panchayat before they are taken up for
implementation. Thus, the Panchayat will have to seek approval of the
Gram Sabha before it implements the plans, programmes and projects.
The Gram Sabha also grants permission for incurring any expenditure by
the Panchayat on development schemes and equally, conveys its views to
*36* wp.4595.10.sxw
the Panchayat in the matter of any proposal for acquisition of any land.
Nonetheless if one peruses Section 8 carefully, what the Gram Sabha can
do, in the matters enumerated in sub-section (1) and sub-section (1A) of
Section 8, is to discuss any or all of these matters and make suggestions
and which suggestions have to be considered by the Panchayat. Moreover,
the mandate is that a Gram Sabha shall carry out any other functions as
the State Government may by general or special order require. Therefore,
to hold that a Gram Sabha is not answerable to the State Government or
is not bound by any directions of the State Government, would mean that
a Gram Sabha is free to act contrary to the mandate of the Act itself or to
the authority of the State as a controlling body. That is not envisaged by
the Act and therefore, it will not be proper on my part to accept the
submissions of the learned counsel appearing for the Respondents
including the learned AGP. That would mean that a Gram Sabha consisting
of the electorate of a village can act contrary to interest of the village and
the Panchayat and equally the State must accept its decisions,
recommendations and suggestions straightaway. A helpless State is not
conducive to democracy or democratic form of the Government. That
would mean democracy itself is in peril and danger. It cannot be
presumed that in all matters the Gram Sabha will act necessarily in the
interest of villagers or in public good. It would mean that a Gram Sabha
*37* wp.4595.10.sxw
recommendation and suggestion to the Panchayat in all matters, is beyond
scrutiny and must be acted upon by the Panchayat. Equally, it must be
accepted by the State. Even if the role of a Gram Sabha is taken as a body
advising the Panchayat or giving directions to the Panchayat in the
matters covered by Sections 8 and 8AA of the Act, still the role of the
State as a superior controlling and monitoring body is not ruled out, but
rather provided by the Statute itself. Therefore, to construe the provisions
in the manner suggested by the Respondents would render Chapter-XI
redundant and derogatory. Any interpretation which results in this, has to
be avoided. Without diluting the rigor of the provisions regarding a Gram
Sabha, its functions and duties, its role in the village affairs, the power of
control and supervision can be exercised by the State.
29 In a recent decision of the Honourable Supreme Court in the
case of Village Panchayat, Calangute v/s Additional Director of Panchayat-II
and others, reported in (2012) 7 SCC 550, what the Honourable Supreme
Court has held would some what reinforce the conclusion with regard to
the role of the Panchayat, village administration and the people connected
with the village affairs. In this behalf, paragraphs 11, 12, 21, 22 and 23 of
this judgment are relevant, which read thus:-
"11. In 1992, the Constitution (Seventy-third Amendment)
Act was introduced in Parliament and the existing Part
IX was substituted. The background in which this
amendment was introduced is evinced from the first two
*38* wp.4595.10.sxw
paragraphs of the Statement of Objects and Reasons,
which are extracted below:
"1. Though the Panchayati Raj institutions
have been in existence for a long time, it has been
observed that these institutions have not been able to
acquire the status and dignity of viable and responsive
people's bodies due to a number of reasons including
absence of regular elections, prolonged supersessions,
insufficient representation of weaker sections like
Scheduled Castes, Scheduled Tribes and women,
inadequate devolution of powers and lack of financial
resources.
2. Article 40 of the Constitution which
enshrines one of the directive principles of State Policy
lays down that the State shall take steps to organise
village panchayats and endow them with such powers
and authority as may be necessary to enable them to
function as units of self-government. In the light of the
experience in the last forty years and in view of the
shortcomings which have been observed, it is considered
that there is an imperative need to enshrine in the
Constitution certain basic and essential features of
Panchayati Raj institutions to impart certainty,
continuity and strength to them."
12. The aforesaid amendment is a turning point in the
history of local self-Government. By this amendment
panchayat became an 'institution of self-governance' -
Article 243(d) and comprehensive provisions came to
be incorporated for democratic decentralization of
governance on the Gandhian principle of participatory
democracy. The Panchayati Raj institutions structured
under the Seventy-third Amendment are meant to bring
about sweeping changes in the governance at the grass
root level. By this amendment, Parliament introduced
three-tier system of Panchayati Raj institutions at
village, block and district levels. Article 243-C provides
for composition of a panchayat and filling up of the
seats in a panchayat by direct election. Article 243-D
provides for reservation of seats and Article 243-E
provides for duration of panchayat. Article 243-F
enumerates the grounds of disqualification of
*39* wp.4595.10.sxw
membership of the panchayat and Article 243-G
prescribes the powers, authority and responsibilities of
a panchayat.
21. The Preamble, Part IV and Part IX of the Constitution
must guide our understanding of the Panchayati Raj
institutions and the role they play in the lives of the
people in rural parts of the country. The
conceptualisation of the village panchayat as a unit of
self-government having the responsibility to promote
social justice and economic development and as a
representative of the people within its jurisdiction must
be borne in mind while interpreting the laws enacted by
the State which seek to define the ambit and scope of the
powers and the functions of panchayats at various
levels.
22. An analysis of Article 40 and Articles 243 to 243-O
shows that the Framers of the Constitution had
envisaged the village panchayat to be the foundation of
the country's political democracy - a decentralised form
of government where each village was to be responsible
for its own affairs. By enacting the Constitution
(Seventy-third Amendment) Act, Parliament has
attempted to remedy the defects and remove the
deficiencies of the Panchayati Raj system evolved after
independence, which failed to live up to the expectation
of the people in rural India. The provisions contained in
Part IX provide firm basis for self-governance by the
people at the grass root through the institution of
Panchayats at different levels.
23. For achieving the objectives enshrined in Part IX of the
Constitution, the State Legislatures have enacted laws
and made provision for devolution of powers upon and
assigned various functions listed in the Eleventh
Schedule to the panchayats. The primary focus of the
subjects enumerated in the Eleventh Schedule is on
social and economic development of the rural parts of
the country by conferring upon the panchayat the
status of a constitutional body. Parliament has ensured
that the panchayats would no longer perform the role
*40* wp.4595.10.sxw
of simply executing the programs and policies evolved
by the political executive of the State. By virtue of
the provisions contained in Part IX, the panchayats
have been empowered to formulate and implement their
own programs of economic development and social
justice in tune with their status as the third tier of the
government which is mandated to represent the interests
of the people living within its jurisdiction. The system of
panchayats envisaged in this Part aims at establishing
strong and accountable systems of governance that will
in turn ensure more equitable distribution of resources
in a manner beneficial to all."
30 As a result of the above discussion, it is not possible to agree
with the Commissioner that the Collector had no power to scrutinize the
proceedings of Gram Sabha of the relevant date and equally, the
Commissioner possesses no such power. The conclusion of the
Commissioner means even the State does not possess such power and that
is unsustainable considering the plain language of the Statute in question.
31 Once the above view is taken, then, the apprehension
expressed by the learned counsel appearing for the Respondents that the
Collectors and the Commissioners and equally the State Government may
call for records of every Gram Sabha and set at naught every decision or
resolution or act of the Gram Sabha, is not well founded. This cannot be
done as a matter of routine or normal course. A complaint with regard to
a specific Gram Sabha and equally which action or decision in the same, is
impugned is necessary to be set out with details for the State and its
*41* wp.4595.10.sxw
agencies and officers to act. Equally, there must be cogent, proper and
complete material enabling the State to take suo-motu action. It is not
that accountability and answerability of a Gram Sabha to the State means
a Gram Sabha surrenders its power to the State. The State is expected to
act as a patriarch, namely, as a parental body giving guidance, issuing
directions and undertaking scrutiny of Gram Sabha in exceptional and
specific cases. The State cannot ignore recommendations and views of the
Gram Sabhas merely because they express a different political or social
view point. In democracy the freedom of people is paramount. Their role
is predominant because it is people residing in village and registered as
voters of a village, who are expected to participate in affairs and
administration of the village through Gram Sabha. Their views may not be
politically palatable or acceptable. As long as the proceedings of Gram
Sabha are not vitiated by fraud, its acts and decisions do not usurp the
authority of the State or the Gram Sabha does something which is
contrary to or defeats the object and purpose of setting up institutions or
units of the self-government at village level, the Gram Sabha does
something which is beyond the powers conferred in it by Part-IX of the
Constitution of India, the Gram Sabha does something which shocks the
conscience of any reasonable, peace loving and law abiding person
inasmuch as public interest or public good is disregarded, completely
*42* wp.4595.10.sxw
given a go bye by the Gram Sabha, it will not be permissible for the State
to intervene. Thus, the proceedings should be such as would undermine
the role and authority of the State as a larger entity and incharge of
upholding public trust and public interest. It is only then the State can
interfere and not otherwise. There are instances for illustration of a call by
Gram Sabha of social boycott, withdrawal of essential services to any
particular community, giving any call or taking any decision which affects
the social fabric in such a manner that the constitutional goal as enshrined
in the Preamble to the Constitution of India is defeated to such an extent
that there is a apprehension of the breakdown of the constitutional order.
Ultimately, Gram Sabha comprises of the electorate of a village. They are
residents of a village, but citizens of India. They have to perform the
duties, which are fundamental as enshrined by Article 51A of the
Constitution of India. Therefore, their role as a citizen of India who enjoys
fundamental rights which are subject to reasonable restrictions and
equally has to abide by his fundamental duties, cannot be forgotten and
overlooked. Every right has a corresponding duty without which it is
incomplete. Village and local interests and the larger role as emphasized
by the Honourable Supreme Court in the above decision have to be
balanced and a reasonable approach is required to be taken in such
matters.
*43* wp.4595.10.sxw
32 Thus, no general rule can be laid down, but interference and
intervention in the exercise of people's power should be not routine or as
a matter of course, but in rare and deserving cases. The satisfaction on all
these and such matters must be recorded before the Gram Sabha is
interfered and its acts and decisions are set aside. Thus, the interference
and intervention should be minimum and exceptional. The Authorities
have to assign reasons while arriving at a satisfaction that the Gram Sabha
as a whole or qua a particular act should be set aside.
33 If once the above conclusion is arrived at, then, ultimate act
of the Gram Sabha in this case need not be interfered with. If the above
tests are applied and which alone can be applied, to my mind, the
decision in the instant case of the Gram Sabha is not of such nature which
requires interference or intervention by the State. It appears to be a
political dispute and on account of political enmity that the complaint was
made. The Gram Sabha has not done anything beyond constituting
another Rural Health, Nutrition, Water Supply and Sanitation Committee.
That the earlier Committee is displaced and a new committee has been
put in place which does not include the Petitioner, is no ground to
interfere in this case. This Committee is functional since 2008. After a
lapse of nearly four years it will be futile to examine the grievance and
that too of a political nature. The Gram Sabha has not done something by
*44* wp.4595.10.sxw
which village interests are surrendered or sacrificed or given a go bye. It
has not done something by which village administration itself is in
jeopardy. Further, it has not called upon the Panchayat to do anything by
which one can conclude that the object and purpose of the Act itself is
defeated and frustrated. If merely a Committee is replaced and that
decision was taken expeditiously inasmuch as the meeting concluded in
08 minutes, by itself and without anything more is no ground to interfere
and intervene. If as alleged by the Petitioner about 1000 villagers marched
to the Office of Block Development Officer complaining about the Gram
Sabha, but in absence of any material of the above nature, this itself will
not enable the Collector to set aside the Gram Sabha. The Commissioner,
therefore, was in no error while setting aside the decision of the Collector.
However, that is a conclusion which can be sustained on merits and not
on the ground of lack of power or jurisdiction in the Collector, as
erroneously held. Ordinarily, therefore, the matter should have been
remanded to the Commissioner, Pune Division for scrutiny of the order of
the Collector on merits, but finding that there was nothing in the
complaint which would warrant interference and intervention in the Gram
Sabha of 15.08.2008, this course need not be adopted. For the reasons
enumerated above, this is not a fit case for interference in writ
jurisdiction, which is equitable and discretionary. Thus, while upholding
*45* wp.4595.10.sxw
the final conclusion of the Commissioner in setting aside the order of the
Collector, but on different grounds, I proceed to dismiss this Writ Petition.
Rule is discharged, but without any order as to costs.
(S.C. Dharmadhikari, J)
