Leelaben Harisinh Rathod vs State Of Gujarat
2021 Latest Caselaw 14635 Guj

     C/SCA/6351/2021                                 ORDER DATED: 21/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 6351 of 2021
                                  With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                    In
           R/SPECIAL CIVIL APPLICATION NO. 6351 of 2021
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                    LEELABEN HARISINH RATHOD
                                 Versus
                         STATE OF GUJARAT
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Appearance:
ANUJ H DAVE(8333) for the Petitioner(s) No. 1
MS NISHA THAKORE ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4,5
NOTICE SERVED(4) for the Respondent(s) No. 2,6
==========================================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 21/09/2021

ORAL ORDER

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

"8(A) Be pleased to admit and allow this Special Civil Application;

(B) Be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, to the Respondent Authorities by quashing and setting the bifurcation notification dated 30.06.2020 (Annexure-A);

(C ) Be pleased to issue a writ of certiorari or any other appropriate, writ order or direction, to the Respondent Authorities by quashing and setting aside the order dated 10.07.2020 (Annexure-B);

(D) Pending, admission and final hearing be pleased to stay execution and implementation of the steps and process of the order dated 30.06.2020 (Annexure-A);

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(E) Pending admission and final hearing be pleased to stay execution and implementation of the steps and process of the Order dated 10.07.2020 (Annexure-B);

(F) Grant ad-interim reliefs in terms of prayer clauses (D) & (E)'

(G) Your Lordship be pleased to grant such other and further reliefs as deemed fit in the interest of justice."

2. The case of the petitioner is that respondent no. 1 has issued Notification dated 30.06.2020 by virtue of which Maghasar Gram Panchayat has been bifurcated into two new Gram Panchayats namely Maghasar Gram Panchayat and Gate Muvala Gram Panchayat and consequently issued Notification on 10.07.2020 for appointing Administrator to take charge of Maghasar Gram Panchayat. According to the petitioner, on 30.10.2018, the Gram Sabha of Maghasar Gram Panchayat purportedly passed a Resolution to bifurcate Maghasar Gram Panchayat into two separate Gram Panchayats as stated above, which was moved with the signature of respondent no. 5 having no authority. It is the case of the petitioner that neither any meeting of Gram Sabha was held on 30.10.2018 nor any Resolution to bifurcate is passed to that effect. This information is received by the petitioner through Right to Information application dated 19.08.2018, whereby respondent no. 5 has admitted that on 13.10.2018, no such Resolution came to be passed.

2.1. The petitioner has further stated that on 21.12.2018, Maghasar Gram Panchayat received an application from the resident of Gate Muvala village requesting not to bifurcate Maghasar Gram Panchayat. Considering the said application, a Resolution came to be passed on 28.12.2018 in the General Meeting held by the Panchayat, Thereafter on 15.12.2018, respondent no. 5 according to the petitioner forwarded fraudulently the application to respondent no. 4 requesting to bifurcate Maghasar Gram Panchayat and same in turn was forwarded to respondent

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no. 3. Thereafter on 15.02.2019, respondent no. 3 vide his letter intimated to respondent no. 4 about several defects from the said application and called upon respondent no. 4 to provide justification for the said defects. According to the petitioner, on 15.12.2018, Halol Taluka Panchayat in Special General Meeting presided over by the leader, passed Resolution to forwarded proposal for bifurcation of Maghasar Gram Panchayat to the District Panchayat and aggrieved by the said order, the petitioner filed Special Civil Application No. 4897 of 2019 before this Court, challenging the said Resolution dated 15.12.2019. Simultaneously, another Special Civil Application No. 8461 of 2020 also came to be filed, based upon such averments, the Court was pleased to issue notice upon the authority, but on account of technical defects about maintainability of the petition, the said petition was withdrawn by the petitioner and while disposal of the said petition, liberty was granted to the petitioner to file a fresh petition in her individual capacity with all rights and contentions kept open, it is under this circumstance, the present petition is brought before the Court. Pursuant to the notice having been issued on 07.04.2021 by the co-ordinate Bench of this Court, an affidavit-in-reply as well as rejoinder is filed and since the pleadings were completed, both the learned advocates have requested the Court to take up the matter for hearing.

3. Learned advocate Mr. Anuj Dave appearing for the petitioner has raised multiple contentions, but in substance, the main contention is that there is non compliance of Section 7(2) of the Gujarat Panchayats Act (hereinafter referred to as the "Act") and consultation of the Taluka Panchayat being mandatory, without the same, it is not open to take such kind of decision. It has been submitted that there is a clear defiance of the procedure established by law by virtue of Section 7(2) of the Act and as a result of this, the Notification as well as consequential direction deserves to be quashed and set aside.

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3.1. To substantiate his contention, learned advocate for the petitioner has relied upon the decision delivered by this Court in the case of Pruthvinsinh Amarsinh Chauhan v. K.D. Rawat reported in 2004 (0) AIHC 3241 = [(2005) 4 GLR 2932] and has submitted that in absence of any meaningful consultation with the Taluka Panchayat, the decision to bifurcate and to entrust the affairs to the Administrator is quite contrary to the mandate of Statute. It has been further submitted that the Resolutions which have been passed in the present proceedings are not valid resolutions and there are serious disputes about such resolutions and according to the learned advocate for the petitioner, a fraudulent resolution came to be passed with a view to see that the bifurcation can take place. The Resolution one of such is brought to the notice of the Court whereby, it emerges that only Talati-cum-Mantri has put the signature and not the Sarpanch. Further the meeting which has been presided over on 15.12.2019 is presided over by the Hon'ble Minister which is otherwise impermissible and for that purpose, page 78 is brought to the notice of the Court and by referring to this Resolution and documents in substance, a contention is raised that there is hardly any need to bifurcate the Panchayat in any manner and as such, has requested to grant the reliefs as prayed for in the petition. Learned advocate Mr. Dave has further submitted that similar petition which was withdrawn was on account of technical defect about the maintainability issue, which has nothing to do with the present petition inasmuch as, all rights and contentions have been kept open and as such, the said disposal of the petition will not come in the way of the petitioner to agitate the issue as raised in the petition.

3.2. Learned advocate Mr. Dave has further strenuously relied upon the averments made in para (F) at running page 10 to contend that there is no meaningful consultation as required under Section 7 of the Act, but in

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view of the facts which are stated on record are seriously disputed question of facts and candidly the learned advocate for the petitioner has submitted that the Court cannot be called upon to examine such disputed version, but has reiterated the contention that there is no compliance of Section 7(2) of the Act and that being so, the petition deserves to be entertained.

4. As against this, Mr. H.S. Munshaw, learned advocate appearing for the respondent - authority has submitted that the petition contains seriously disputed question of facts and the complex factual details which are provided in the petition, are not possible to be adjudicated or examined whether the Resolution is passed in fraudulent manner or not is not possible to be analyzed in the writ jurisdiction. It has been contended that this bifurcation issue is basically a policy decision of the authority and as such keeping in view, self restrained on exercise of extra ordinary jurisdiction, such policy decision in the absence of any patent infirmity may not be a subject matter of writ jurisdiction. Learned advocate Mr. Munshaw has submitted that for some reasons, the petitioner went on agitating on bifurcation so as to retain the impact over the domestic politics of the area, otherwise there is no worthy reason to go on agitating the issue. It has been submitted that by way of filing a detailed affidavit- in-reply while taking decision of bifurcation, the authority has strongly applied its mind to various issues including the issue related to population census, distance between the villages as well as the income criteria has also been considered. Hence, on the basis of such critical analysis of relevant circumstance, when a decision is taken to bifurcate the Panchayat, there is hardly any reason for the petitioner to agitate.

4.1. Learned advocate Mr. Munshaw has submitted that when Resolution dated 30.06.2020 and consequential order which is already implemented in true letter and spirit, as such, no relief deserves to be

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granted at this stage. Apart from that, learned advocate Mr. Munshaw has submitted that there is a substantial compliance of Section 7(2) of the Act and it is not open for the petitioner to contend that there is no consultation at all and for substantiating such stand on the issue of consultation, the details mentioned in affidavit-in-reply in brought to the notice of this Court. Learned advocate Mr. Munshaw has submitted that the petitioner has been misled by incorporating the information provided in Right to Information Act and for which appropriate action has already been taken against the authority who supplied information by transferring and calling upon to show cause. Hence, in the absence of any patent illegality or any infirmity, there is hardly any case made out to call for any interference.

4.2. Learned advocate Mr. Munshaw has submitted that on the contrary, not only the issues which are relevant have been considered, but even the request of people of villages have also been taken into consideration and upon overall consideration of the material, a decision is taken which cannot be said to be unjust or arbitrary or mala fide. The petitioner has made an attempt by producing a bunch of papers to indicate the factual matrix which are seriously in dispute. Hence, no case is made out to call for any interference. Learned advocate Mr. Munshaw has relied upon the decision delivered by this Court in the case of Unchidhanal Group Gram Panchayat & Ors., v. State of Gujarat & Ors., reported in 2008 (2) GLR 1275 and has contended that such policy decision is not to be so lightly interfered especially when the petitioner has not made out any case and thereby requested the Court to dismiss the petition.

5. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, before dealing with the issue about compliance of Section 7 of the Act, which has been substantially raised by the learned advocate for the petitioner, the

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chronology of events which are mentioned in affidavit-in-reply of the District Development Officer, Panchmahal worth to be kept in mind and the Court deems it proper to reproduce the relevant extract contained in para nos. 2 to 9 hereunder :-

"2. The Respondent No.3 submits that the petitioner has preferred Special Civil Application (No.8461/20 before the Hon'ble High court of Gujarat in her capacity as Sarpanch of Maghasar Gram Panchayat challenging notification dated 30 6.20 issued by the respnt. no.1 through which Maghasar Gram Panchayat is bifurcated in to two Gram Panchayats i.e. Maghasar Gram Panchayat and Getmurada Gram Panchayat by way of excluding the local area of Getmuvada by way of exercising its power conferred by Clause-G of Article 243 of the Constitution of India read with Section-7 of Gujarat Panchayat Act, 1993. It is submitted that the said proceedings were heard at length on 10.3.21 and ultimately it was withdrawn to file a fresh petition in a personal capacity and a copy of the order dated 10.3.21is annexed as ANNEXURE-A It is pertinent to note that the petitioner herein was not a Sarpanch of Maghasar Gram Panchayat with effect from 14.7.20. The Administrator appointed the respnt. no.3 herein has taken over the charge of the Gram Panchayat.

3. The Respondent No.3 submits that the population of Maghasar Gram Panchayat was of 1,741 as per the Census of 2011 and the General Body of the Gram Panchayat consisted a Sarpanch and 8 Members. It is submitted that revenue villages of Maghasar and Gate Muvala as well as area of Saiyedpura were constituting Maghasar Gram Panchayat. It is submitted that pursuant to last General Elections of Maghasar Gram Panchayat held by State Election Commission, Gandhinagar, a newly elected body of the Gram Panchayat held its first meeting on 21 01.2017.

4. The Respondent No.3 submits that Maghasar Group Gram Panchayat consists of Village Maghasar and Village Gate Muvala.

It is submitted that the provisions of Section 7 of Gujarat Panchayats Act, 1993 provide for recommendation and specification of village and a copy of extract thereof is annexed herewith and marked as Annexure-B. It is most respectfully stated that the Respondent No 1 herein has issued a resolution on 25.05.2000 laying down names for bifurcation of group gram

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panchayats and a copy thereof is annexed herewith and marked as Annexure-C. From a kind perusal thereof, it would be clear that as per Clause 3(5) even a responsible worker or representative of public at large can also make a representation and the same is required to be considered on merits.

5. The Respondent No 3 submits that the Gram Sabha of Maghasar Group Gram Panchayat resolved on 30 10 2018 to bifurcate the Group Gram Panchayat and provide a separate Gram Panchayat for village Gate Muvala and a copy of the Resolution duly signed by Talati-cum-Mantri of Maghasar Gram Panchayat is annexed herewith and marked as Annexure-D It is stated that Talati-cum-Mantri of Maghasar Group Gram Panchayat forwarded a proposal dated 15.12 2018 to Taluka Development Officer, Halol in that regard and a copy thereof is annexed herewith and marked as Annexure-E. It is stated that the General Body of Halol Taluka Panchayat in its special meeting dated 15.12.2018 passed a resolution No 103 for bifurcation of Maghasar Group Gram Panchayat and a copy thereof is annexed herewith and marked as Annexure-F The Respondent No 3 submits that immediately Taluka Development Officer, Halol Taluka Panchayat forwarded a proposal on 17 12 2018 along with a copy of resolution of the Taluka Panchayat requesting to take further actions and a copy thereof is annexed herewith and marked as Annexure-G The Respondent No 3 submits that the general body of Panchmahal District Panchayat in its meeting dated 20.12.2018 resolved that Maghasar Gram Panchayat be bifurcated and proposal be sent to the Development Commissioner, Gujarat State, Gandhinagar along with necessary compliance and a copy of the resolution is annexed herewith and marked as Annexure-H.

It is most respectfully stated that in view of this resolution, a letter dated 15.02 2019 was addressed to Taluka Development Officer, Halol Taluka Panchayat by Dy District Development Officer (Development), Panchmahal District Panchayat for certain information and compliance and a copy of the letter is annexed herewith and marked as Annexure-1 The Respondent No.3 submits that the Taluka Development Officer. Halol Taluka Panchayat forwarded details on 27.02.2019 and a copy the letter is annexed herewith and marked as Annexure-J. The Respondent No 3 submits that thereupon a proposal is forwarded to the Development Commissioner, Gujarat State, Gandhinagar i.e the Respondent No 2 on 28.02 2019 for further actions and a copy of the proposal is

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annexed herewith and marked as Annexure-K.

At this stage, it is necessary to bring on record that the Gram Sabha as well as General Body of Maghasar Gram Panchayat passed separate resolutions in their respective meetings on 28 12 2018 against the bifurcation of the Gram Panchayat and minutes of the said two meetings are annexed herewith and marked as Annexure L & M respectively. The Respondent No.3 craves leave to submit that this factual aspect was made clear in a proposal forwarded to the Respondent No.2 on 28.02.2019.

6. The Respondent No.3 humbly submits that subsequently a further procedure is followed and the Respondent No 1 herein has issued a Notification on 30.06.2020 through which the area of Village Get Muvala is excluded from the Maghasar Gram Panchayat and a copy of the Notification dated 30 06 2020 IS annexed herewith and marked as Annexure-N.

7. The Respondent No 3 submits that thereafter an order dated 10.07.2020 is passed at his level under provisions of Section 263 of Gujarat Panchayats Act, 1993 and one Mr.S.N Tadvi, Extension Officer (Panchayat). Halol Taluka Panchayat is appointed as Administrator of Maghasar Gram Panchayat as well as Get Muvala Gram Panchayat and has accordingly taken over the charge immediately on 10 07 2020 and it is so intimated by Taluka Development Officer, Halol through a letter dated 14.07.2020 and copies of orders dated 10.07.2020 as well as letter dated 14.07.2020 are annexed herewith and marked as Annexure-O & P respectively.

8. The Respondent No.3 submits that certain issues cropped up when present petitioner submitted an application under the provisions of Right to Information Act, 2005 on 11.8.20. It is submitted that the Talati-cum-Mantri of Maghasar Gram Panchayat provided incorrect information in written response to the said application on 19.8.20 [wrongly written as 19.8.19] and copies of the application dated 11.8 20 as well as reply are annexed as Q & R respectively. It is submitted that the said Talati cum Mantri had erred in providing copies of the resolutions passed by Gram Sabha during the year of 2018-19 though the entire record is available. The Talati cum Mantri mischievously did not provide a copy of resolution passed by the Gram Panchayat in its meeting dated 30.10 18 for bifurcation by way of

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replying that the said resolution is not passed in meeting dated 30.10.18. It is submitted that the said Talati cum Mantri provided a copy of resolution no 11 passed by Maghasar Group Gram Panchayat in its meeting dated 28.12 19 It is submitted that as such Maghasar Group Gram Panchayat has passed a resolution in its meeting dated 28.12 18 as stated herein-above and the resolution opposing the bifurcation was bearing No 3[11] The respnt. no 3 submits that all these resolutions are attached to the affidavit in reply and, therefore, it is clear that the Talati cum Mantri has not genuinely provided the information to the petitioner and the information were incorrect. The respnt no 3 submits that, therefore, the said Talati cum Mantri Mr HS Patel is transferred on 19.920 and also issued a show cause notice on 22.9.20 and copies of transfer order as well as notice are annexed as ANNEXURE-S & T respectively.

9. In view of the above mentioned facts and circumstances it is crystal clear that a due procedure is followed and all the parameters are satisfied. It is reiterated that the population of village Maghasar was 1741 and out of that getmuvada was 576 as per census of 2011. It is further stated that the distance between two revenue villages i.e Maghasar and Getmuvada is of 4 kilo meters as per the certificate issued by Deputy Executive Engineer, Roads and Bldg. Sub-division [Panchayat] at Halol. It is further stated that the income of Getmuvada is Rs 2,90,8771 while all other taxes is of Rs.39,04,300/- In other words the relevant criteria are satisfied and even otherwise a decision has to be taken in the interest of villagers."

5.1. From the aforesaid averments made in affidavit-in-reply on oath, this Court is of the opinion that while taking decision of bifurcation, the relevant considerations have been kept in mind and it is not possible to be construed that there is no consultation with the Taluka Panchayats which may violate Section 7(2) of the Act and, therefore, the point which has been raised in substance about non compliance of Section 7(2) of the Act, is not possible to be safely concluded that there is any violation.

5.2. In addition thereto, it is also not possible to conclude that there is unilateral decision actuated by any political mala fides, in fact for not

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providing genuine information under the provisions of Right to Information Act, the action has been initiated against the Talati-cum- Mantri, and it has been properly dealt with from the conjoint reading of the particulars which are stated in affidavit-in-reply. It appears that before taking the decision most of the material circumstance related to population census, related to distance between the villages and the income criteria have also been taken into consideration and in addition thereto, the representations which have been made by village people reflecting on page 204 as well have been considered. As a result of this, it appears that such policy decision which has already been implemented does not deserves to be interfered with.

5.3. The decision which has been cited by the learned advocate for the petitioner about meaningful consultation, in the respectful agreement with the proposition of the said decision delivered by the Hon'ble Supreme Court in the case of Pruthivisinh Amarsinh Chauhan (supra), the Court is of the opinion that in the peculiar background of facts, as detailed out in affidavit, it is not possible to construe that no consultation is undertaken. Hence, even keeping in mind, the proposition as laid down, as stated herein before, this Court is of the opinion that it is not possible to hold that there is no consultation by which there is a violation of Section 7(2) of the Act. Hence, the substantial contention raised by the learned advocate for the petitioner is not possible to be accepted and as such, the decision relied upon by the learned advocate for the petitioner is of no assistance in the peculiar background of present facts.

5.4. At this stage, the decision delivered by the co-ordinate Bench of this Court on similar issue of bifurcation of gram panchayats has propounded that the declaration of the panchayats is basically a policy decision of the State Government and once the consultation is visible, in absence of any patent infirmity or arbitrariness or perversity, the High

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Court should not interfered with such policy decision. The relevant circumstance about geographical location, revenue, population and other relevant factors once having taken into consideration, such policy decision may not be so lightly interfered with. The relevant observations contained in para 17, 18, 19, 22 and 23 in the case of Unchidhanal Group Gram Panchayat (supra), since considered, the Court deems it proper to reproduce hereunder :-

17. While bifurcating the Unchidhanal Group Gram Panchayat into two Group Gram Panchayats, the competent authority has taken into consideration, all relevant factors, such as the geographical location, revenue, population and other related factors and the decision to bifurcate has been taken in the interest of the public at large. There is nothing on the record of the case, pointing to the contrary. As such, it cannot be said that civil consequences will ensue from the issuance of the Notification for bifurcation of the Gram Panchayat. The submission of the learned Counsel for the petitioner in this regard, therefore, is not sustainable. Moreover, the record reveals that there is no violation of the principles of natural justice as the applications/ representations of the people at large, including the petitioner No. 1 - Unchidhanal Group Gram Panchayat and the people of villages comprising the said Panchayat have been taken note of by the competent authority.

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 Sub-section (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 has clarified in paragraph 13.1 of the judgment that "the affected party must have an opportunity to express its opinion and view on the

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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 time-gap 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.

22. It is apparent that interested persons sent representations and objections in order to defer the proposal of bifurcation. However, it is for the competent authority to consider all the pros and cons of the matter and to take a policy decision in this regard. The mere fact that certain individuals have objected to the proposal cannot be a ground for not going ahead with the same, if it meets with the requirements of law envisaged in Section 7 of the Act and is in the interest of the public at large. In the present case, considering the material on record, it cannot be said that the Notification dated 1.10.2007 suffers from any legal infirmity.

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."

6. For the foregoing discussions, and keeping in view the proposition of law laid down in the aforesaid decision, this Court is of the opinion

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that no case is made out by the petitioner. As a result of this, the petition being devoid of merit, stands dismissed. Notice is discharged with no order as to costs.

Consequently, the connected Civil Application for stay also stands disposed of.

(ASHUTOSH J. SHASTRI, J) phalguni