Nathkuva Group Gram Panchayat vs State Of Gujarat
2021 Latest Caselaw 3250 Guj

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 11448 of 2020

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        NATHKUVA GROUP GRAM PANCHAYAT
                     Versus
               STATE OF GUJARAT
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Appearance:
SHIVAM H CHOKSHI(9120) for the Petitioner
MR. K.M. ANTANI, AGP (99) for the Respondent No. 1
MR HS MUNSHAW(495) for the Respondent Nos. 2, 4
NOTICE SERVED(4) for the Respondent No. 3
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 25/02/2021

                                 ORAL ORDER

1. Heard learned advocate Mr. Shivam Chokshi for the petitioner, learned advocate Mr. H.S. Munshaw for the respondent nos.2 and 4 and learned Assistant Government Pleader Mr. K.M. Antani for the respondent no.1 - State through video conference. Though served, no one appears for the respondent no.3.

2. By this petition under Article 226 of the Constitution of India, the petitioner - Nathkuva Group Gram Panchayat through its Sarpanch Nakliben Maheshbhai Rathwa has challenged the order dated 10th July, 2020 passed by the District Development Officer, Godhara implementing the notification dated 30th June, 2020 whereby the petitioner Gram Panchayat is divided into two Gram Panchayats i.e. (1) Nathkuva Group Gram Panchayat and (2) Kankodakoi Gram Panchayat of Ghoghamba Taluka, District Panchmahal.

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3. According to the petitioner, the total population of Nathkuva Gram Panchayat is about 1800 persons and Nathkuva Gram Panchayat consists of two villages i.e. Nathkuva having 900 persons and Kankodakoi having 900 persons.

3.1 One Ranginsinh Salamsinh Solanki submitted an application before the Taluka Development Officer on 21st December, 2018 for separating the Kankodakoi village from Nathkuva Group Gram Panchayat without there being any consent of the members and signature of the petitioner - panchayat.

3.2 It appears that the Taluka Panchayat Ghoghamba in the meeting held on 23rd June, 2019 passed a Resolution no.92 to invite written application for separating Kankodakoi Gram Panchayat from the petitioner panchayat as the details were not complete. The petitioner panchayat raised an objection vide letter dated 2nd July, 2019 before the Taluka Development Officer (for short 'the TDO') contending that the application was made with signature of only one member of the panchayat with signature of few village persons. The TDO by letter dated 29th July, 2019 directed the petitioner to complete the irregularity in the application dated 21st December, 2018 along with the documents stated therein including the map, consent letter of the members of the gram panchayat, resolution etc. The petitioner panchayat, thereafter, addressed a letter dated 18th March, 2020 to the Development Commissioner raising objection with regard to the separation of Kankodakoi Gram Panchayat from the petitioner panchayat.

3.3. It is the case of the petitioner that in spite of the objection raised by the petitioner, the State Government issued the notification dated 30th June, 2020 separating the Kankodakoi Gram Panchayat from the petitioner Gram Panchayat, which was implemented by the District

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Development Officer by the impugned order dated 10th July, 2020. The petitioner has therefore, preferred this petition.

4. Learned advocate Mr. Choksi for the petitioner submitted that the provisions of Section 7 of the Gujarat Panchayat Act, 1993 (for short 'the Act, 1993') is not followed by the respondents and there is no effective consultation with the petitioner gram panchayat and therefore, the impugned order dated 10th July, 2020 is required to be quashed and set aside.

5. Learned advocate Mr. Munshaw appearing for the respondent nos.4 and 5 submitted that the petition is not maintainable as the petitioner panchayat is not in existence pursuant to the notification dated 30th June, 2020 issued by the State Government through its Panchayat Rural Housing and Rural Development Department, Gandhinagar bifurcating the Nathkuva Group Gram Panchayat into two panchayats i.e. Nathkuva Gram Panchayat and Kankodakoi Gram Panchayat and the administrator is appointed on 10th July, 2020, who has taken over the charge.

6. It was further submitted that the petitioner gram panchayat was constituted under the provisions of the Act, 1993 including the areas of Nathkuva village and Kankodakoi village and the population of both the villages is 1760 as per the census of 2011. It was further submitted that gram sabha of Nathkuva Group Gram Panchayat in the meeting held on 27th September, 2018 resolved for two separate gram panchayats for Nathkuva Gram Panchayat, as well as, Kankodakoi Gram Panchayat as the distance between the two villages is of 4 kms. having population of 846 and 914 respectively. It was further submitted that the representation for bifurcation into two village panchayats was also made in the Special General Meeting of Ghoghamba Taluka Panchayat on 12th

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February, 2020 and it was resolved that in the interest of administration of public at large, there should be two gram panchayats for two separate villages. Learned advocate Mr. Munshaw also pointed­out that separate proposal dated 27th February, 2020 was forwarded to the District Development Officer, Godhara for further action and clarification was also given that sarpanch of Nathkuva Gram Panchayat was not agreeable for the bifurcation and he has not signed the proposal.

7. It appears that thereafter, in the meeting held on 28th February, 2020 a resolution was passed in the District Panchayat, Panchmahal for bifurcation of Nathkuva Group Gram Panchayat and proposal was sent to the District Panchayat on 17th March, 2020. Learned advocate Mr. Munshaw also invited the attention of the Court to the checklist prepared for bifurcation of the gram panchayat which contains all the procedure followed for the proposal forwarded to the State Government for issuance of notification in exercise of the powers conferred by clause

(g) of Article 243 of the Constitution of India read with Section 7 of the Act, 1993.

8. It was therefore, submitted that no interference is required to be made in the impugned order dated 10th July, 2020, which is order giving effect to the Notification dated 30th June, 2020 which is not under challenge.

9. Having heard learned advocates for the respective parties and having gone through the materials on record, it appears that the respondent authority has followed the procedure prescribed under Section 7 of the Act, 1993 and the State Government has issued notification dated 30th June, 2020 after following the necessary procedure of effective, meaningful and genuine consultation to bifurcate

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the petitioner gram panchayat into two gram panchayats and therefore, it is a policy decision of the State Government and this Court cannot interfere in the policy decision as the same meets with the requirement of law. This Court in similar facts in case of Dharampur Gram Panchayat Vs. State of Gujarat in Special Civil Application no.14077 of 2020 vide order dated 22nd January, 2021 has held as under :­

"20. Section 7 of the Act, 1993 provides for recommendation, specification of village. Sub­section (2) of section 7 provides that after consultation with Taluka Panchayat, District Panchayat and Village Panchayat concerned, the competent authority may, at any time recommend inclusion within or exclusion from any village, any local area otherwise alternation of limits of any village or recommend cesser of any local area to be a village, to the Governor for exercise of his powers under clause (g) of Article 243 of the Constitution of India.

21. From the facts emerging from the record, it is apparent that there was a consultation with the petitioner­ Gram Panchayat as provided under sub­ section (2) of section 7 of the Act, 1993 by the competent authority for including the area of Dharampur village Panchayat as the area of Porbandar­Chhaya Municipality.

22. Sub­clause (d) of Article 243P provides for definition of 'Municipal Area' which means the territorial area of a municipality as is notified by the Governor. Article 243G provides powers, authority and responsibility of the Panchayat which reads as under:

"243G­ Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as

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institutions of self­government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to--

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.]

23. From the above provisions of Article 243G, it is clear that subject to provisions of the Constitution, the legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to the preparation of plans for economic development and social justice and the implementation of the schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in Eleventh Schedule.

24. Article 243Q prescribes for constitution of Municipalities. Clause (e) of Article 243P defines "Municipality" to mean an institution of self­ government constituted under Article 243Q. Therefore, when any local area is to be included within the territorial limits of any existing municipality, such area could be notified by the Government in exercise of powers under Article 243P(d) of the Constitution. By such exercise of powers, the Government is not constituting municipality for the first time but only it exercises the powers to exclude or include certain area from the limits of municipality.

25. This Court, in case of Junagadh Municipality

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vs. State of Gujarat (supra) while considering the exercise of powers by the Government under Article 243Q, has held as under:

"36. Article 243Q of the Constitution of India refers to the Constitution of Municipalities, which interalia, includes a Municipal Corporation for a larger urban area. Under Article 243 Q(2), the Governor of the State may constitute a 'larger urban area', having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in nonagricultural activities, the economic importance or such other factors as he may deem fit. The question, therefore, arises as to whether discretion exercised by the Governor should be based on his own personal satisfaction or the satisfaction of the Council of Ministers. Article 154 of the Constitution of India states that the executive powers of the State shall be vested in the Governor and shall be exercised by him either directly or through Officers subordinate to him in accordance with the Constitution. Article 163(1) of the Constitution makes it clear that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Alongwith this, Article 166(1) of the Constitution, requires to be noted, which says that all executive action of the Government of a state shall be expressed to be taken in the name of the Governor. In SAMSHER SINGH's case (SUPRA), the Hon'ble Supreme Court has observed that wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the Governor in the Constitutional sense in the cabinet system of Government, but is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. In the case of State of U.P. And Others V/S.

Pradhan Sangh Kshetra Samiti and Others (SUPRA), the Hon'ble Supreme Court had an occasion to deal with Article 243G of the Constitution, which requires the Governor to specify the village by a public

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Notification and in this context, it is observed that in view of the provisions of Art. 154 and 163 read with 166 of the Constitution, Governor means the Government of the State. On the basis of this reasoning, the discretion to be exercised by the Governor within the meaning of Art. 243Q(2) of the Constitution, can as well be construed as the discretion to be exercised by the Government of the State."

26. In case of Hansapur Gram Panchayat and ors vs. State of Gujarat and ors reported in 2016 (2) GLH 299 this Court, while considering the issue of merger under section 7 of the Act, 1993, has held as under:

"11. In the case of Jalgaon Municipal Council (supra), the Hon'ble Supreme Court examined the decision of the Government of conversion of Municipal Council (Jalgaon) to Municipal Corporation in exercise of the powers under Article 243Q of the Constitution of India. In the context of section 6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, read with section 3 of the Bombay Provincial Municipal Corporations Act, the Hon'ble Supreme Court held that the consultation with the municipal council was must before converting area of any municipal council into municipal corporation.

Learned Advocate Mr.Pandya submitted that section 6(d) of the Maharashtra Municipal Council Act which provided for alteration of limits of municipal area, based on which the Hon'ble Supreme Court held that the consultation was must with the municipal council, was the same as provided in section 7(2) of the Act for cesser of the local area of municipality, and therefore consultation was must before impugned notification under Article 243(g) of the Constitution of India was issued. However, the difference between section 6(d) of the Maharashtra Municipal Councils Act and sub section (2) of section 7 of the Act is required to be noticed closely. In section 6(d) of the Maharashtra Councils Act, 1965, nowhere specific purpose is provided. It is in general form where consultation is provided for cesser of the area of municipal council for any purpose including the purpose for inclusion in the municipal corporation

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whereas sub section 2 of section 7 of the Act provides for cesser of local area of the village only for the purpose of constitution of a village in exercise of the powers under Article 243(g) of the Constitution of India. For such marked distinction between the two provisions, decision in the case of Jalgaon Municipal Council (supra) will be of no help to the case of the petitioners.

12. In the case of Unchindhanal Group Gram Panchayat (supra), the Court was considering the question about consultation under section 7(2) of the Act before taking the decision by the State Government to bifurcate the Gram Panchayat and not for the purpose of declaring any area of the village to be the municipal area. This judgment will have no application to the present case.

13. In the case of Nathalal M. Patel (supra), the Court was considering the question about consultation under section 9(2) of the old Panchayats Act in connection with the decision of the State Government for division of the local area of Bavla Nagar Panchayat. This decision also will have no application to the facts of the present case.

14. The decision in the case of Kalabharti (supra) is relied on by the learned advocate Mr. Pandya to point out that the State is under obligation to act fairly without any ill will or malice in fact or in law. In para 25 of the said decision, it is observed that the legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable excuse.

15. As stated above, present is a case where the Court finds that on account of outgrown of Patan Municipality to the areas of these three villages, the Government has found it necessary to exercise powers under Article 243P(d) of the Constitution of India and while exercising such powers, the Government has considered and deliberated upon the views of three panchayats and the concerned authorities and

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thus, there is no violation of any fair play nor could it be said that the decision is taken arbitrarily or capriciously. Therefore, there appears to be no legal malice as suggested by the learned advocate Mr.Pandya in the matter of notifying the areas of three villages as municipal areas in exercise of the powers under Article 243P(d) of the Constitution of India.

16. In the case of Tehal Singh (supra), the Hon'ble Supreme Court held and observed in para 7,8,9 and 10 as under:

"7. The principles of law that emerge from the aforesaid decisions are ­ (1) where provisions of a statute provide for the legislative activity, I.e. making of a legislative instrument or promulgation of general rule of conduct or a declaration by a notification by the Government that certain place or area shall be part of a Gram Sabha and on issue of such a declaration certain other statutory provisions come into an action forthwith which provide for certain consequences; (2) where the power to be exercised by the Government under provisions of a statute does not concern with the interest of an individual and it relates to public in general or concerns with a general direction of a general character and not directed against an individual or to a particular situation and (3) lay down future course of actions, the same is generally held to be legislative in character.

8. Viewed in the light of the statement of law stated hereinbefore, we find that the provisions of Sections 3 and 4 of the Act which provide for declaring territorial area of a Gram Sabha and establishing a Gram Sabha for that area do not concern with the interest of an individual citizen or a particular resident of that area. Declaration contemplated under Section 3 of the Act relates to an area inhabited by the residents which is sought to be excluded or included in a Gram Sabha. The declaration under Section 3 of the Act by the Government is general in character and not directed to a particular resident of that area. Further, the declarations so made under Sections 3 and 4 of the Act do not operate for the past

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transactions but for future situations. Under the aforesaid situation, when declarations by issue of notifications by the Government are made under Sections 3 and 4 of the Act respectively, determining the territorial area of a Gram Sabha and establishing a Gram Sabha for that area, such declarations become operative at once. Once declarations are made under Sections 3 and 4 of the Act respectively and thereafter a Gram Panchayat is constituted under Section 10 of the Act, the entire remaining provisions of the Act becomes operative. On such declarations by a notification in the Gazette, the Gram Sabha - a body corporate comes into being with a number of powers and functions conferred upon it under the Act. As soon as Gram Sabha is established and Gram Panchayat is constituted, they are entrusted with many general functions viz., construction, repair, and maintenance of community assets, agriculture including agriculture extension, animal husbandry, dairy and poultry, fisheries, social and farm forestry, minor forest produce fuel and fodder, khadi, village and cottage industries, rural housing, rural electrification including distribution of electricity, nonconventional energy source, poverty alleviation programme, education including primary and secondary schools, adult and non­formal education, promotion of adult literacy, cultural activities, fairs and festivals, public health and family welfare, women and child development, social welfare etc. Further, a Gram Sabhas and Gram Panchayats have been conferred numerous other powers and duties enumerated in Section 35 of the Act. Besides that, the Gram Panchayat is entrusted with the judicial functions which are civil and criminal in nature. The power exercisable under Sections 3 and 4 of the Act respectively by the Government was, therefore, not an exercise of a judicial or quasi­ judicial function where the very nature of function involves the principle of natural justice or in any case of an administrative function effecting the rights of an individual. We are, therefore, of the view that on making of declaration under Section 3 of the Act determining the territorial area of Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act.

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9. Once it is found that the power exercisable under Sections 3 and 4 of the Act respectively is legislative in character, the question that arises is whether the State Government, while exercising that power, the rule of natural justice is required to be observed? It is almost settled law that an act legislative in character primary or subordinate, is not subjected to rule of natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principle of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. We have come across many enactments where an opportunity of hearing has been provided for before any area is excluded from one Gram Sabha and included it in different Gram Sabhas or a local authority. However, it depends upon the legislative wisdom and the provisions of an enactment. Where the Legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the Legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principle of natural justice before issue of a declaration either under Section 3 or Section 4 of the Act, the residents of the area cannot insist for giving an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority. In Rameshchandra Kachardas Porwal and others v. State of Maharashtra, this Court held as thus :

"In one of the Bihar cases it was further submitted that when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections. Failure to do so was a violation of the yard at one place and establishing it elsewhere was therefore, bad. It was objections before a "market area" was declared under the Act, so should objection

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be invited and heard before a 'market yard' was established at any particular place. The principles of natural justice demanded it. We are unable to agree. We are here not concerned with the exercise of a judicial or quasi­judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rules of natural justice."

10. In the present case, the provisions of the Act do not provide for any opportunity of hearing to the residents before any area falling under a particular Gram Sabha is excluded and included in another Gram Sabha. In the absence of such a provision, the residents of that area which has been excluded and included in a different Gram Sabha cannot make a complaint regarding denial of opportunity of hearing before issue of declarations under Sections 3 and 4 of the Act respectively. However, the position would be different where a house of a particular resident of an area is sought to be excluded from the existing Gram Sabha and included it in another Gram Sabha. There the action of the Government being directed against an individual, the Government is required to observe principles of natural justice. For the aforesaid reasons, we are of the view that no opportunity of hearing was required to be given before making declarations either under Section 3 or Section 4 of the Act by the Government."

17. In the case of Sundarjas Kanyalal Bhatija and others (supra), the Hon'ble Supreme Court while examining the decision of the Government of merging of municipal areas so as to form Kalyan Corporation, held and observed in para 27 and 28 as under:

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"27. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative Counsel for the appellants was right in his submission that it is legislative process indeed. No judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with, then, the Court could say no more. In the present case the Government did publish the proposal by a draft notification and also considered the representations received. It was only thereafter, a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under Section 3(2). The Court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for heirs".

28. Equally, the rule issued by the High Court to hear the parties is untenable. The Government in the exercise of its powers under Section 3 is not subject to the, rules of natural justice any more than is legislature itself. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to 'hear the parties who are not entitled to be heard under law."

27. This Court in case of Unchidhanal Group Gram Panchayat and ors vs. State of Gujarat reported in 2008 (2) GLR 1275 has held that the State Government has issued the notification after following the necessary procedure of effective, meaningful and genuine consultation, as held to be necessary by the Full Bench in case of Pruthvisinh Amarsinh Chauhan vs. K.D.Rawat reported in 2005(4) GLR 2932 (FB). The decision to merge the petitioner­ Gram Panchayat with that of Probandar­ Chhaya Municipality is a policy decision of the State

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Government and therefore, this Court cannot interfere in a policy decision if the same meets with the requirement of law. As there is no legal infirmity, arbitrariness or perversity in the decision of merger of the petitioner­Gram Panchayat, no interference of this Court is warranted. Para 8 of the judgement reads as under:

"8. Mr.Jaswant K.Shah, learned Assistant Government Pleader for the respondents Nos. 1 and 2, has submitted that the decision to bifurcate Unchidhanal Group Gram Panchayat into two Group Gram Panchayats by separating villages Tuver and Veekharan therefrom, is a policy decision of the State Government, which has been taken after taking into consideration the representations and objections of the concerned Gram Panchayat as well as the people of the area. It has been submitted by the learned Assistant Government Pleader that the decision to bifurcate Unchidhanal Group Gram Panchayat has been taken in the better interest of the public at large and the people of the concerned villages, looking to the geographical and administrative requirements of the area, and with a view to enhancing the developmental activities, for which various grants will be available to the newly­formed Gram Panchayats. It has been emphasized by the learned Assistant Government Pleader that there has been genuine and effective consultation with the concerned Gram Panchayat before the Notification dated 1.10.2007 has been issued. It is submitted that earlier, an application dated 7.6.2004 has been sent by the villagers of Tuver and Veekharan for bifurcation of Unchidhanal Group Gram Panchayat and thereafter, a proposal dated 3.7.2004 has been sent by the Sarpanch of Unchidhanal Group Gram Panchayat, consenting to the said bifurcation. It is, therefore, submitted that since the people residing in the villages of Tuver, Veekharan and Unchidhanal Group Gram Panchayat were in favour of bifurcation, the respondents have rightly taken the decision to bifurcate the said Gram Panchayat, keeping in view the applications made by the villagers, and in the interest of the public at large. The learned Assistant Government Pleader has further submitted that on 8.8.2007, vide Resolution No. 5, Unchidhanal Group Gram Panchayat has unanimously consented for the

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bifurcation of the Gram Panchayat and this Resolution was signed by the present respondent No. 2, as well. However, after a few days, another Resolution dated 17.8.2007 was passed by the same Gram Panchayat, wherein the earlier stand was changed and it was requested to postpone the bifurcation for a period of two years. It has been emphasized by the learned Assistant Government Pleader that the petitioner No. 1­Group Gram Panchayat has not objected to its bifurcation in principle, but has only requested that the bifurcation be postponed for a period of two years, with an oblique motive to enable the present office­bearers to continue their term of office and, therefore, the petition deserves to be dismissed. Mr.Shah has submitted that there is no material on record in support of the allegation of the petitioners that the impugned Notification has been issued with political motives and, as such, the allegations are baseless. It is emphasized by Mr.Jaswant K.Shah that initially, a proposal for bifurcation has been sent in the year 2004 by Unchidhanal Group Gram Panchayat itself, and at that point of time, there were no impending elections to the Legislative Assembly in the State of Gujarat, and, therefore, the allegation of the learned Counsel for the petitioners that the impugned Notification has been issued in order to gain political mileage, is without substance. It has been urged by the learned Assistant Government Pleader that the provisions of Section 7(2) of the Act have been complied with, by engaging in effective and meaningful consultation with the concerned Taluka Panchayat, District Panchayat and the Unchidhanal Group Gram Panchayat, before passing the impugned Notification. Mr.Shah has further emphasized that the inquiry, as contemplated under the provisions of Section 7(1) of the Act, was undertaken before the Notification dated 1.10.2007 was issued and, therefore, since the action of the respondents does not suffer from any legal infirmity, the petition may be dismissed.

13. A Full Bench of this Court in Pruthvisinh Amarsinh Chauhan v. K.D. Rawat and Ors. (supra) had occasion to deal exhaustively, with the requirement of consultation as envisaged in Section

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7(2) of the Act. After dealing with the points referred to it for decision, it has been held in paragraphs 9 and 14 as under:

9. ...When the statute requires an authority to consult before taking action, the consultation should not be a mere formality, but must be genuine and meaningful, then only the object of incorporation of this cause in the statute by the makers of law would be fulfilled, particularly in the case before us the consultation would enable the authority to understand and evaluate the implications of the proposed stage on a section of society which is likely to be affected. The authority would know their point of view which would assist it in evaluating or judging the situation and take decision in the best interest of the society....

14. After the consultation, once it culminates into a decision considering the pros and cons of the matter, the exercise comes to an end and chapter is closed. If it is proposed to make a fresh decision, in our opinion, it would be a new chapter and fresh exercise of consultation would be necessary. It will have to be examined whether there is change in circumstance or not and if so, what are the changes and for that reason, what is the view point of the Panchayat - the affected party. This requirement of law has to be, thus, saluted as if it is altogether a new proposal for decision on aspect of bifurcation. Summing upon its conclusions, the Full Bench answered the points referred for its determination as under:

16. In view of the above discussion, the points for our determination are answered as under:

(i) The term 'Consultation' has to be taken as an effective and meaningful and genuine consultation and not a formality.

(ii) There is no conflict between the ratio laid down in the case of Nathabhai (supra) and Likhi Group of Gram Panchayat (supra). The conclusions are based on fact of each case, but, there is no conflict

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in the ratio.

(iii) If proposal has culminated into a decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure there from may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken.

14. In paragraph 13.1 of the judgment, the Full Bench has held that though the requirement of consultation is not mandatory but is directory, the same cannot be given a total go­bye. What emerges from a cumulative reading of the judgment of the Full Bench is that though the provisions of Section 7(2) of the Act are not mandatory, but the consultation envisaged therein has to be effective, meaningful and genuine consultation and not a mere formality. Further, if a proposal has culminated into a decision, a fresh exercise of consultation would be necessary before taking a fresh decision. Applying the ratio of the above judgment of the Full Bench to the facts of this case, it is to be seen whether there has been effective, meaningful and genuine consultation with the Taluka Panchayat, District Panchayat and the concerned Gram Panchayat, before issuing the impugned Notification dated 1.10.2007.

18. The decision to bifurcate the Gram Panchayat is a policy decision of the State Government and this Court will not interfere in a policy decision, if the same meets with the requirements of law. As there is no legal infirmity, arbitrariness or perversity in the decision to bifurcate the petitioner No. 1 Gram Panchayat, the interference of this Court is not warranted. As laid down by the Full Bench in Pruthvisinh Amarsinh Chauhan v. K.D. Rawat and Ors. (supra), the provisions of Section 7 of the Gujarat Panchayats Act, 1993, are directory, and not mandatory. In the present case, the consultation, as envisaged in Sub­section (2) of Section 7 of the Act is found to be genuine, effective and meaningful, as held by the Full Bench in Pruthvisinh Amarsinh Chauhan v. K.D. Rawat and Ors. (supra). It is relevant to note that the Full Bench

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has clarified in paragraph 13.1 of the judgment that Sthe affected party must have an opportunity to express its opinion and view on the proposed decision. The term is used as a consultation, and it cannot be, by any stretch of imagination, taken as concurrence or consent, and therefore, after consultation a decision may be taken by the Government. Keeping in mind the above principles of law, the Notification dated 1.10.2007 issued by the respondent No. 1, therefore, suffers from no legal infirmity.

19. There can be no dispute regarding principles of law laid down by the Full Bench regarding the requirement of fresh consultation before taking a fresh decision. However, in the present case, the question of fresh consultation does not arise since the time­gap between the earlier resolution dated 8.8.2007, consenting to the bifurcation, and the subsequent resolution dated 17.8.2007, whereby it has been requested to postpone the bifurcation for a period of two years is negligible and there is no change in circumstances in the interregnum. The petitioner No. 1 Gram Panchayat has not objected to the bifurcation in principle but has only requested that it be deferred for a period of two years.

23. In view of the principles of law laid down by the Full Bench in Pruthvisinh Amarsinh Chauhan v. K.D. Rawat and Ors. (supra), which directly covers the point in issue, it is not necessary to refer to the other two judgments cited by the learned Counsel for the petitioners, namely Nathabai M. Patel v. State of Gujarat and Ors. (supra) and Baldev Singh and Ors. v. State of Himachal Pradesh and Ors. (supra), which also deal with the requirement of consultation and the principles of natural justice.

28. Thus, in view of the above dictum of law, by no stretch of imagination it can be said that the impugned notification dated 29.07.2020 notifying the area of the petitioner­ Gram Panchayat as area of Porbandar­Chhaya Municipality can be said to be

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arbitrary, perverse or contrary to the provisions of law. Section 7 of Act, 1993 is only with regard to effective consultation with the Gram Panchayat. Meaning thereby that if the Gram Panchayat is not agreeable with the merger then it is for the State Government to decide by way of policy decision whether merger should be effected or not. The provision of section 7 of the Act, 1993 does not stipulate that if the Gram Panchayat is not agreeable for inclusion or exclusion of any area from its limits, then no competent authority is debarred from issuing notification in consonance with the provisions of constitution of India as narrated above."

10. In view of the above dictum of law, it cannot be said that the notification dated 30th June, 2020 issued by the State Government bifurcating the petitioner gram panchayat into two gram panchayats i.e. Nathkuva Gram Panchayat and Kankodakoi Gram Panchayat is arbitrary, perverse and contrary to the provisions of section 7 of the Act, 1993 and as such the impugned order dated 10th July, 2020, which is passed to give effect to the notification dated 30th June, 2020 can not be interfered with in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. The petition therefore, being devoid of any merit is accordingly dismissed. Notice is discharged. No order as to costs.

(BHARGAV D. KARIA, J.) AMAR RATHOD...