Gujarat High Court

Adiwasi Mul Niwasi Sangathan vs State Of Gujarat on 3 August, 2021

Bench: Biren Vaishnav

     C/WPPIL/83/2021                                 JUDGMENT DATED: 03/08/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/WRIT PETITION (PIL) NO. 83 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed                    NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                             NO

3     Whether their Lordships wish to see the fair copy                   NO
      of the judgment ?

4     Whether this case involves a substantial question                   NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        ADIWASI MUL NIWASI SANGATHAN
                                    Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
JAYDEEP H SINDHI(9585) for the Applicant(s) No. 1
MR KISHANKUMAR R MAURYA(10580) for the Applicant(s) No. 1
 for the Opponent(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
MS M.L.SHAH, LD. GP assisted by MS.SHRUTI PATHAK AND MR.MEET
THAKKAR, AGPs for the Respondent(s) No.1
==========================================================

    CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
          VIKRAM NATH
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                 Date : 03/08/2021

                                ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This petition styled as a Public Interest Litigation has been filed by

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

the Adiwasi Mul Niwasi Sangathan, an unregistered association

through its President Maheshkumar S. Vasava. The prayers in the

petition read as under:

"(A) This Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction int eh nature of mandamus directing the respondent authorities to constitute Gram Panchayat for each villages of Narmada District having population of more than 271 as compared to Mangu Village of Tilakwada Taluka in accordance with the constitutional mandate as well as the Gujarat Panchayat Act, 1993.

(B) This Honourable Court may be further pleased to declare the creation of Group Gram Panchayats as unauthorized under law;

(C) This Honourable Court may be pleased to declare that the classification made by the respondent authorities between the villages which have and which do not have separate Gram Panchayats illogical, arbitrary and against the provisions of the Gujarat Panchayats Act, 1993 and the Article 243-243(O) of the Constitution of India.

(D) This Honourable Court may be pleased to declare the creation of the Group Gram Panchayats as discriminatory and against the provision of Article 14 of the Constitution of India;

2. Facts in brief are as under:

2.1 It is the case of the petitioner that on 02.10.1997, the Gujarat

Government formed six new Districts, one of which was Narmada

District. Nandod, Dediyapada and Satpara Talukas of Bharuch

District and Tilakwada Taluka of Vadodara District formed the

Narmada District. Taluka Garudeshwar was included on

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

18.02.2014. Therefore, Narmada District now has five Talukas and

one Municipality. The case of the petitioner is that each of the five

Talukas have several villages, totaling 562 villages which have 222

Village Panchayats. The Public Interest Litigant, according to the

pleadings in the petition, is an association engaged in the activities

for upliftment of the people of the Narmada District. The case of

the petitioner is that in the district, the State Government has made

many Group Gram Panchayats. In other words, between more than

one or two villages, there is a Group Gram Panchayat.

Illustratively, the petitioner explains for example; the villages of

Bhacharwada and Kuwarpara have what is called the Bhacharwada

Group Gram Panchayat. Akuvada Group Gram Panchayat has five

villages viz. Akuvada, Amarpara, Dharikheda, Lodhan and

Virsingpura. The case of the petitioner is that several other

villages by virtue of they being part of the Group Gram Panchayat

are deprived of their own gram panchayats which causes great

hardships to the residents. The petitioner therefore wants a

declaration that the creation of such Group Gram Panchayats is bad

in law.

3. Mr.Kishankumar R. Maurya learned advocate for the petitioner

would submit as under:

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

3.1 He would submit that several representations have been

made to the District Development Officer, the Development

Commissioner, Gandhinagar and the Collector of Narmada

District, highlighting the grievance of the villagers who do not

have their own gram panchayat but are a part of the Group Gram

Panchayat. The only response that they have received is that as

and when the exercise of 2020-21 census is undertaken, necessary

attention will be made to their representation.

3.2 Mr.Maurya would submit that the action on the part of the

respondent authority to constitute Group Gram Panchayats of one

or more villages, thereby depriving some village to be a part of a

Group Gram Panchayat and not having its own panchayat, is in

violation of the provisions of law.

3.3 Mr.Maurya would submit that villages which do not have

separate gram panchayat and is a part of the Group Gram

Panchayat, are unable to take part in the proceedings of the Group

Gram Panchayat, wherein, there is a dominance of one village or

the other and therefore there is disparity of representation in

discussions of such Group Gram Panchayats.

3.4 Relying on the provisions of Section 3 of the Gujarat

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

Panchayats Act 1990, Mr.Maurya submits that there is no concept

of the Gram Panchayat under the provisions of the Gujarat

Panchayats Act. Reliance is also placed on Article 243B of the

Constitution of India which provides that in every State, there shall

be a panchayat. Therefore, Mr.Maurya would submit that there

was a violation of the mandate of the Constitution of India. It is

submitted that the provision of a Group Gram Panchayat between

more than two villages is against the concept of Gujarat Panchayat

Act.

3.5 Mr.Maurya would submit that as per the provisions of the

Panchayats (Extension to the Scheduled Area) Act, 1996,

constitution of Village Panchayats or Gram Panchayats is against

the provision of the Act. He would submit that if the Gram

Panchayat status is given to every village, the villages will have

their own Gram Panchayats which will eliminate the political tug

of war and there will be decentralization and a true reflection of the

concept of the local self government.

3.6 Mr.Maurya also relies on the decision of the Division Bench

of this Court passed in Special Civil Application No.30145 of

2007 by which the State was directed and accordingly a Municipal

Corporation for the City of Gandhinagar was set up. Mr.Maurya

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

would also rely on the notification of the State under the

department of Urban Development by which certain villages were

included in the municipal limits of Vadodara and Surat. He would

submit that if the Municipal limits of the city of Vadodara and

Surat can be changed, there is no reason why a similar treatment be

not given if the villages are given Gram Panchayat status.

4. Ms.Manisha Luvkumar learned Government Pleader appearing

with Ms.Shruti Pathak and Mr.Meet Thakkar learned AGPs

appearing for the State would submit that the petition at the hands

of the petitioner by way of a public interest litigation is not

maintainable. She would submit that if Section 7 of the Gujarat

Panchayats Act, 1993 is perused, the competent authority can after

making inquiries recommend any local area comprising of any

revenue village or a group of a revenue village or hamlets forming

part of a revenue village, for being specified a village under Clause

g of Article 243 of the Constitution. She would place on record a

notification issued by the Panchayats, Rural Housing and Rural

Development Department, dated 16.01.2014 placing the rules

called Gujarat Panchayats (Inquiry for Declaration of Village)

Rules, 2014. Relying on rule 3 thereof, she would submit that

before recommending any local area to be a village, the competent

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

authority would make inquiries which would also include whether

the Revenue village or other administrative units or parts thereof

can be conveniently grouped so as to form a village.

5. Having heard the learned advocates for the respective parties and

having considered the submissions, what is evident is that the

petitioner representing the residents of the district of Narmada set

up for welfare of the Tribal groups has filed this petition with

prayers referred to herein above.

5.1 The grievance of the Association essentially appears to be

that some villages which are part of a Group Gram Panchayat do

not get balanced representation in a Group Gram Panchayat as

compared to the other villages which constitute the Group Gram

Panchayat. By way of illustration, the petitioner has stated that for

example in case of Samota Group Gram Panchayat, the villages in

such Gram Panchayats are situated at a distance of 30 kms, 15 kms,

10 kms etc. and therefore it causes inconvenience to the people of

such villages to reach the Gram Panchayat office.

5.2 The submission of the learned counsel for the petitioner that

the concept of Group Gram Panchayats is beyond the provisions of

the Gujarat Panchayats Act, 1993, particularly Section 3 which

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

mandates constitution of Gram Panchayat for each villages, is

misconceived. Section 3 of the Gujarat Panchayats Act, 1993,

particularly Section cannot be read in isolation. One needs to also

read the provisions of Section 7 of the Act. For the sake of

convenience, Sections 3 and 7 of the Gujarat Panchayats Act, 1993,

which falls under Chapter-II dealing with the establishment of

different tiers read as under:

3. Establishment of Panchayats of different tiers.- For the purposes of this Act, there shall be in each district--

(1) a village panchayat for each village. (2) a taluka panchayat for each taluka and (3) a district panchayat for each district.

...

7. Recommendation, Specification of village.- (1) After making such inquiries as may be prescribed, the competent authority may recommend any local area comprising a revenue village, or a group of revenue villages, or hamlets forming part of a revenue village, for being specified a village under clause (g) of article 243 of the Constitution, if the population of such local area does not exceed fifteen thousand.

[Provided that while making a recommendation in respect of a local area in the Scheduled Areas it shall be ensured that the local area shall ordinarily consist of a habitation or a group of habitations or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with the traditions and customs.

(2) After consultation with the taluka panchayats, the district panchayat and village panchayat concerned (if already constituted), the competent authority may at any time recommend inclusion within or exclusion from any village, any local area or otherwise alternation of limits of any village, or recommend cesser of any local area to be a

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

village, to the Governor for exercise of his powers under clause (g) of article 243 of the Constitution.

[Emphasis Supplied]

6. Reading Sub-Section (1) of Section 7 makes it abundantly clear

that it is open for a competent authority to recommend any local

area comprising of a revenue village or a group of revenue

villages for being specified a village under clause (g) of Article

243 of the Constitution.

7. The submission therefore that the constitution of Group Gram

Panchayat is not in consonance with the provisions of the

Panchayats Act 1993, is misconceived. Even the notification of the

department of Panchayats Rural Housing and Rural Development

Department dated 16.01.2014 which made the rules known as the

Gujarat Panchayats (Inquiry for Declaration of Village) Rules 2014

provide that it is open for the competent authority recommending a

local area to be a village to make inquiries whether the revenue

villages or a part thereof can be conveniently grouped so as to form

a village. Rule 3 of the 2014 Rules is reproduced as under:

3. Inquiry by the State Government.-

(1) Before recommending any local area to be a village under sub-section (1) of section 7 of the Act, the competent authority shall make inquiries as to -

(a) the population and the ordinary land revenye of the revenue village or each of the revenue villagtes or hamlets or, as the case may be, any other administrative unit or part thereof, comprised in the

C/WPPIL/83/2021 JUDGMENT DATED: 03/08/2021

local area,

(b) whether the revenue villages or hamlets or other administrative units or parts thereof can be conveniently grouped so as to form a village.

(2) For the purpose of sub-rule (1) above, the Competent authority, when so required by the State Government, shall submit to the state Government a statement in the form appended hereto.