Gujarat High Court

Prahladbhai Madhavlal Patel vs Patel Jitendrakumar Somabhai on 1 July, 2025

Author: Sunita Agarwal

Bench: Sunita Agarwal

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                               C/LPA/187/2022                               ORDER DATED: 01/07/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                          R/LETTERS PATENT APPEAL NO. 187 of 2022

                                     In R/SPECIAL CIVIL APPLICATION NO. 22802 of 2019

                                                             With
                                          CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                         In R/LETTERS PATENT APPEAL NO. 187 of 2022
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                                            PRAHLADBHAI MADHAVLAL PATEL & ORS.
                                                          Versus
                                           PATEL JITENDRAKUMAR SOMABHAI & ORS.
                        ==========================================================
                        Appearance:
                        MR TEJAS P SATTA(3149) for the Appellant(s) No. 1,10,11,2,3,4,5,6,7,8,9
                        MS HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the
                        Respondent(s) No. 10,12
                        MR JIGAR G GADHAVI(5613) for the Respondent(s) No. 1,2,3,4,5,7
                        MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 11
                        RULE SERVED for the Respondent(s) No. 6,8,9
                        ==========================================================

                        CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
                              JUSTICE SUNITA AGARWAL
                              and
                              HONOURABLE MR.JUSTICE D.N.RAY

                                                        Date : 01/07/2025

                                                         ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

ORDER IN CIVIL APPLICATION (FOR STAY) NO. 1 of 2025:-

At the outset, Mr. Tejas P. Satta, learned advocate

appearing for the applicants submits that cause of action for

filing civil application no more survives, he prays for and is

granted permission to withdraw the same. Dismissed as

withdrawn.

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ORDER IN LETTERS PATENT APPEAL NO. 187 of 2022:-

1. The appellants herein are villagers/ residents of Balol

Gram Panchayat of Taluka and District Mehsana. They are

seeking to challenge the judgment and order dated

31.08.2021 passed by the learned Single Judge in quashing

the notification dated 19.11.2019 passed under Section-7(2) of

the Gujarat Panchayat Act, 1993 read with Article 243(g) of

the Constitution of India holding that the procedure for

issuance of the said notification has not been followed.

However, while holding so, liberty was granted to the State

Government to initiate fresh procedure under Section-7 of the

Gujarat Panchayat Act, 1993 if deem fit after following due

procedure.

2. We may record, at the outset, that the State is not in

appeal before us. This appeal in the year 2022, has been filed

by few villagers/ residents of Balol Gram Panchayat, who had

filed an impleadment application before the learned Single

Judge, which was never allowed. On a query made by the

Court, it is submitted by the learned advocate for the

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appellants that the application seeking impleadment before

the writ court was not allowed and appellants were not

impleaded as party to the writ proceedings. It is, however,

submitted by the learned advocate for the appellants that the

appellants were heard in Civil Application No.1 of 2020 [for

impleadment] alongwith the main matter wherein the

judgment and order dated 31.08.2021 has been rendered and

hence, they have a right to maintain the present appeal.

3. Considering the above, suffice is to note that even in the

final judgment and order dated 31.08.2021, there is no order

to allow the application seeking impleadment of the appellants

herein by the writ court on the issue as to whether they are

necessary and proper party to the proceedings before the writ

court. Mere fact that the impleadment application has been

decided with the main matter will not give right to the

appellants to maintain this appeal without filing an application

seeking leave to appeal, raising a grievance that they were

necessary and proper party before the writ court and have a

right to challenge the decision of the writ court.

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4. The present appeal having been filed by a third party

without any application seeking leave to appeal, therefore, is

liable to be dismissed outrightly.

5. However, on the submission of the learned counsel for

the appellants that the appellants are affected parties to the

decision of the learned Single Judge and the process for

bifurcation of the Balol Gram Panchayat had been initiated on

their application, we have also heard the learned counsel for

the appellants on the claim of the appellants. Pertinent is to

note that the learned Single Judge has recorded a categorical

finding in paragraphs-12, 13, 14, as under to arrive at a

decision which is expressed in the following terms:-

"12. From the above averments made on oath in the different affidavit-in-replies filed on behalf of the respondents, it clearly emerges that the respondent authorities are not clear as to when the proposal was received for division of the Balol Gram Panchayat after the period of one year is over from the date of the last election. It is apparent that the proposal, which was made on 17th May, 2017 only was carried further and recommendation was made by the Development Commissioner on 22nd October, 2019 misinterpreting the Resolution no.37 dated 3rd January, 2018 passed by the Balol Gram Panchayat for recommendation for division of

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the Gram Panchayat. (Annexure-AF-5 page no.284). The resolution no.37 dated 3rd January, 2018 on the contrary was passed by the Sarpanch and members of the Gram Panchayat by majority that they were not willing to relinquish their post and were not ready to file any undertaking or declaration to that effect for division of the Balol Gram Panchayat. However, the fact remains that no fresh resolution as required by the letter dated 26 th October, 2018 of the Development Commissioner was passed by the Balol Gram Panchayat in favour or against the division of the Gram Panchayat. Therefore, in absence of any proposal, there could not have been any recommendation by the Development Commissioner. As stated hereinabove, different stand is taken by the State Government, Development Commissioner and DDO with regard to the date of proposal. As it emerges from the averments, letter dated 5th March, 2019 is not the proposal nor letter dated 30th September, 2019 can be said to be a proposal. Both the said letters are written to give the replies to the queries raised by the Development Commissioner in the letter dated 26th October, 2018, which was issued on the basis of the resolution passed by the Balol Gram Panchayat on 17th May, 2017 which was contrary to the Government Circular dated 16 th May, 2001. Therefore, there was no proposal after the period of one year is over from the last date of the election made by any authority so as to enable the Development Commissioner to make recommendations to the State Government for division of the Balol Gram Panchayat.

13. Reliance was placed for interpretation of the

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Government Resolution/Circular dated 20th May, 2000, 16th May, 2001 and 27th May, 2016 are misplaced inasmuch as the respondent authorities cannot adopt different yardstick for application of such Circulars to justify the impugned Notification.

14. There cannot be any other view with regard to the settled legal position that impugned notification is in a nature of policy decision or is a legislative function of the State Government and therefore, no interference can be made by the Court, but, in the facts of the case, when there is no proposal for recommendation after the period of one year from the date of the last election either by the Gram Panchayat or by the DDO to the Development Commissioner and by misinterpreting the Resolution dated 3rd January, 2018 passed by the Balol Gram Panchayat, it cannot be said that there was an agreement by the Gram Panchayat for the division. As canvassed by the learned AGP that there was consultation with the Gram Panchayat in view of the resolution dated 3rd January, 2018 is also not tenable in the facts of the case because the said resolution was passed by the Balol Gram Panchayat in relation to the Resolution dated 17th May, 2017 only and the Resolution dated 17th May, 2017 was passed within one year of the date of the last election of the Balol Gram Panchayat and therefore, any consequential resolution to the said resolution cannot be said to be consultation as sought to be canvassed in the facts of the case.

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The conclusion drawn in Paragraph-15 reads that:-

15. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned Notification dated 19th November, 2019 passed by the State Government for bifurcation of the Balol Gram Panchayat into two different Gram Panchayats is hereby quashed and set aside with a rider that the State Government can initiate fresh proceedings under Section- 7 of the Act, 1993 if thought fit after following due process. Rule is made absolute to the aforesaid extent. No order as to costs."

6. In view of the above noted findings returned by the

learned Single Judge and for the fact that the challenge before

the writ court was by the Sarpanch and other office bearers of

the Gram Panchayat and further that the Gram Panchayat is

not a party to the present proceedings, we do not find any

good ground to maintain this appeal at the ends of few

villagers who claim to have mooted the proposal and at whose

instance the process for bifurcation of Balol Gram Panchayat

was initiated with the recommendations of the District

Development Officer, which was found to be faulty for the

reasons noted hereinabove in the judgment impugned.

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