Himachal Pradesh High Court
The Gram Panchayat Bandli vs State Of H.P. & Ors on 7 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 6229/2020
Decided on: 5.1.2021
.
The Gram Panchayat Bandli .....Petitioner
Versus
State of H.P. & ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 No.
For the Petitioner: Mr. V. D. Khiktta & Mr. Daleep Chand,
r Advocates.
For the Respondents: Mr. Ashok Sharma, A.G. with Mr. Vinod
Thakur, Mr. Vikas Rathore, Mr. Shiv Pal
Manhans, Addl. A.Gs., Mr. Bhupinder
Thakur, Ms. Seema Sharma and
Mr.Yudhvir Singh Thakur, Dy. A.Gs. for
the respondentsState.
Mr. Ajeet Singh Saklani, Advocate, for
the respondentElection Commission.
(Through Video Conferencing)
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The instant petition has been filed for grant of following
substantive relief:
That the respondents may kindly be directed to consider
and decide the claim of the petitioner Panchayat for
bifurcation/formation of new Gram Sabha/Gram
Panchayat Siyasu in Development Block Shillai, Tehsil
Shillai, District Sirmour, from existing Gram Sabha/Gram
Panchayat Bandli, Development Block Shillai, Tehsil
Whether reporters of the local papers may be allowed to see the judgment? Yes.
Shillai, District Sirmour, H.P. and issue notification/order
.
accordingly.
2 The residents of Gram Panchayat Bandli, who wanted
to bifurcate the Panchayat to form new Gram Sabha Siyasu, had
sent request through the Gram Panchayat to this effect to the
Deputy Commissioner, Sirmaur, on 23.3.2020. The District
Panchayat Officer,
r Nahan, issued letter dated 24.8.2020
requesting the Block Development Officer, Shillai, to issue process
and after evaluating the representation sent report to his office so
that the same could be sent to the Director, Panchayati Raj for
further necessary action. The Deputy Commissioner, Sirmaur,
sent his recommendation for bifurcation of new Gram Sabha, yet
the Gram Sabha was not bifurcated constraining the petitioner to
file the instant petition.
3 Even though, the respondents have not filed reply, but
necessary instructions in this behalf have been placed on record
by the learned Advocate General, a perusal whereof reveals that as
per criteria, number of villages in the existing/old Gram Sabha is
required to be equal to 5 or more in number, whereas in the
instant case, the existing/old Gram Sabha had only 3 villages.
Moreover, the population of newly proposed Gram Sabha was
816, whereas minimum resultant population of the existing and
.
newly proposed Gram Sabha before and after bifurcation is
required to be 1000 minimum. It is in this background that the
proposal of the Gram Sabha was not accepted.
4 Section 3 of the Act reads as under:
3. Declaration of Sabha area. (1) The Government may, by
notification, declare any village or group of contiguous
villages with a population of not less than one thousand
and not more than five thousand to constitute one or more
Sabha areas for the purposes of this act and also specify its
headquarter:
Provided that in a Scheduled area the Government may by
order declare any village or group of contiguous villages
with a population of less than one thousand to constitute a
Sabha area:
Provided further that the Government may, after having
due regard of the geographical location, lack of means of
transport and communication and administrative
convenience, declare an area comprising a village or group
of contiguous villages having a population either less than
one thousand or more than five thousand to constitute a
Sabha area.
(2) The Government may, at the request of the Gram Sabha
concerned or otherwise, and after previous publication of a
proposal by a notification, at any time,
(a) increase any Sabha area by including within such
Sabha area any village or group of villages; or
(b) diminish any Sabha area by excluding from such Sabha
.
area any village or group of villages; or
(c) alter the headquarter of any Sabha area; or
(d) alter the name of any Sabha area; or
(e) declare that any area shall cease to be a Sabha area:
2[***********]
3[(2A) When on account of the reason that the Sabha area
is, during the term of the Gram Panchayat, increased or
diminished or ceased under subsection (2), the increase or
diminution or cessation of the Sabha area shall not affect
the term of the office bearers of Gram Panchayat, till the
expiration of the duration of the Gram Panchayat specified
in subsection (1) of section 120 or its dissolution under
section 140 of this Act.]
(3) If the whole of the Sabha area is included in a
municipality, the Sabha area shall cease to exist and its
assets and liabilities shall in the manner prescribed be
disposed of.
5 It would be noticed that unlike other provisions of the
Act, Section 3 thereof does not envisage impliedly muchless
expressly postulate an opportunity for inhabitants of the area to
file objections and being heard before ordering bifurcation of the
Panchayat(s).
6 Once the legislature, in its wisdom, has not chosen to
provide for any opportunity of hearing for inhabitants of the area
and to file objections, as aforesaid, the same cannot be presumed
or read into as it would amount to legislating or rewriting the
.
provision, which indisputably is beyond the domain of this Court.
What is not expressly provided cannot be presumed by necessary
implication.
7 It cannot even be remotely suggested that the
legislature by default omitted to provide the right to file objections
and be heard under Section 3 of the Act. In fact, it is by a
conscious legislative decision that such a right is designedly not
acknowledged under Section 3 of the Act. Procedural requirement
of hearing is not required in the exercise of legislative power
unless such a right or hearing was expressly provided.
8 In coming to such conclusion, we are fortified by the
decision rendered by the Hon'ble Supreme Court in State of
Punjab vs. Tehal Singh and ors. (2002) 2 SCC 7, wherein it was
held that determining the territorial area of a 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
and hence, does not subject to rules of natural justice. It was
further held that the enactment may provide for observance of
principles of natural justice and if the provisions are there, the
same should be observed and if provisions do not provide for the
same, the residents of the area cannot insist for giving an
.
opportunity of hearing. It shall be apt to reproduce relevant
observations as contained in paras 5 to 9, which read as under:
5. Before we consider the main question, it is necessary to
trace out the nature of power, that the State Government
exercises under provisions of Sections 3 and 4 of the Act.
The said power could either be legislative, administrative or
quasijudicial.
6. In Rameshchandra Kachardas Porwal and Ors. etc. v.
State of Maharashtra and Ors. etc., [1981] 2 SCC 722, it
was held that making of a declaration by notification that
certain place shall be principal market yard for a market
area under the relevant agricultural produce Market Act
was an act legislative in character. In Union of India and
Anr. v. Cynamide India Ltd. and Anr., [1987] vol. 2 SCC
720, this Court while making distinction between
legislative, administrative and quasijudicial held thus:
"A legislative act is the creation and promulgation of a general
rule of conduct without reference to particular cases; an
administrative act is the making and issue of a specific
direction or the application of a general rule to a particular
case in accordance with the requirements of policy.
Legislation in the process of formulating a general rule of
conduct without reference to particular cases and usually
operating in future; administration is the process of
performing particular acts, of issuing particular orders or of a
making decisions which apply general rules to particular
cases'. It has also been said: "Rule making is normally
directed toward the formulation or requirements having a
general application to all members of a broadly identifiable
.
class" while, "an adjudication, on the other hand, applies to
specific individuals or situation". But, this is only a broad
distinction, not necessarily always true. Administration and
administrative adjudication may also be of general application
and there may be legislation of particular application only.
That is not ruled out. Again, adjudication determines past
and present facts and declares rights and liabilities while
legislation indicates the future cause of action. Adjudication
is determinative of the past and the present while legislation
in indicative of future. The object of the rule, the reach of its
application. The rights and obligations arising out of it. Its
intended effect on past, present and future events, its form,
the manner of its promulgation are some factors which may
help; in drawing the line between legislative and non
legislative acts".
7. The principles of law that emerge from the aforesaid
decisions are(l) 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 its 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 Sections 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 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 one. 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 Sabhaa body corporate comes
into being with a number of powers and functions
conferred upon it under the Act. As soon as a Gram Sabha
is established and Gram Panchayat is constituted, they are
entrusted with many general functions viz., constructions,
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, non conventional 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, 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 quasijudicial
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 a 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.
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 characterprimary 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 Ors. v. State of Maharashtra (supra), 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 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."
9 Learned counsel for the petitioner would argue that
declaration of Gram Sabha area, in terms of Section 3 of the Act,
undoubtedly is a legislative act, however implementation of
Section 3, by issuing a notification, can, by no stretch of
imagination, be said to be an act of legislature, therefore, the
present petition questioning the action of the respondents to be
.
an administrative act, is definitely maintainable.
10 Strong reliance, in support of aforesaid contention, is
placed on a division bench judgment of the Punjab and Haryana
High Court in Jarmal Singh vs. State of Punjab & ors., (20191)
193 PLR 714, more particularly, paras 9 and 12 to 15 thereof,
which read as under:
9. Mr. Anupam Gupta, learned Senior Advocate (Amicus
curiae) submitted as under:
(i) It is true that by virtue of 73rd amendment to the
Constitution of India, Panchayat Raj amendment was
brought into the constitution and thus, Panchayats and
Municipal Committees were given the constitutional status.
Commenting on Sections 3 and 4 of the Act of 1994, he
submitted that it would make no difference due to the said
constitutional amendment, Sections 3 and 4 of the Act of
1994 could be interpreted in any different manner. He
submitted that, though, it is true that in Tehal Singh's case
(supra), no reference has been made to the said 73rd
amendment giving Panchayats the constitutional status.
The principals of transparency and openness in governance
which have been propounded by the Supreme Court at a
later point of time will have to be kept in mind while
interpreting to Sections 3 and 4 of the Act of 1994. The
larger bench decision of the Apex Court, in fact, support
the said view;
It has been contended that creation of Sections 3 and 4 of
.
the Act of 1994 itself undoubtedly is a legislative Act.
However, implementation of Sections 3 and 4 of the Act of
1994 by issuing notifications can, by no stretch of
imagination, be said to be the act of legislature and that is
the point that arises in these writ petitions;
(ii) In support of his propositions on the aforesaid legal
question, Mr. Anupam Gupta, learned Senior Advocate has
cited several decisions and the gist thereof would be cited
by us in the present judgment.
12. We have heard learned counsel for the rival parties at
length so also the preliminary objection raised by the
learned State counsel.
13. In the case of Smt. Indira Nehru Gandhi versus Shri
Raj Narain, AIR 1975 SC 2299, interpreting the
constitutional provisions, Mathew J., in so far as the
relevant aspect in the present case is concerned, stated
thus:
"278. According to the historic analysis, the essence of the
distinction between legislative power and judicial power is
that the legislature makes new law which becomes binding
on all persons over whom the legislature, exercises
legislative power; the judicature applies already existing
law in the resolution of disputes between particular parties
and Judges may not deviate from this duty. This view of the
distinction between the obligation to apply and enforce
rules and a discretion to modify rules or make new rules
was at one time applied uncompromisingly in describing
functions as legislative or judicial. Thus, De Lolme said
that courts of equity as then existing in England had a
.
legislative function. They are, he said, a kind of inferior
experimental legislature, continually employed in finding
out and providing law remedies for those new species of
cases for which neither the courts of common law, nor the
legislature have as yet found it convenient or practicable to
establish any.3 Though this would show that neither for
logic nor in language has the boundary between legislation
and adjudication ever been rigidly and clearly drawn, the
distinction between the two is well established.
.............
284. ............... A despotic decision without ascertaining the
facts of a case and applying the law to them, though
dressed in the garb of law, is like a bill of attainder. It is a
legislative judgment.
.............
291. A statute is a general rule. A resolution by the
legislature that a town shall pay one hundred dollars to
Timothy Coggan is not a statute, John Chipman Gray :
Nature and Source of Law, p. 161.
.............
327. A sovereign in any system of civilised jurisprudence is
not like an oriental despot who can do anything he likes, in
any manner he likes and at any time he likes. That the
Nizam of Hyderabad had legislative, judicial and executive
powers and could exercise any one of them by a firman has
no relevance when we are considering how a prosovereign
the holder of the amending power in a country governed
.
by a constitution should function. ............."
14. In so far as the transparency and openness in
governance is concerned, the Apex Court in the case of
Cellular Operators Association of India and others versus
Telecom Regulatory Authority of India and others, (2016) 7
SCC 703 stated thus:
"82. In fact, a judgment of the Court of Appeal in England,
being R v. North and East Devon Health Authority, ex p
Coughlan, puts the meaning of "consultation" rather well
as follows:
"It is common ground that, whether or not consultation of
interested parties and the public is a legal requirement, if it
is embarked upon it must be carried out properly. To be
proper, consultation must be undertaken at a time when
proposals are still at a formative stage; it must include
sufficient reasons for particular proposals to allow those
consulted to give intelligent consideration and an intelligent
response; adequate time must be given for this purpose;
and the product of consultation must be conscientiously
taken into account when the ultimate decision is taken....
(emphasis supplied)
................
86. The question of transparency raises a more
fundamental question, namely, that of openness in
governance. We find that the Right to Information Act of
2005 has gone a long way to strengthen democracy by
requiring that the Government be transparent in its
actions, so that an informed citizenry is able then to
.
contain corruption, and hold Governments and their
instrumentalities accountable to the people of
India. ............" (emphasis supplied)
..........
89. In another context also this Court has emphasized the
importance of openness of governance. In Global Energy
Ltd. v.Central Electricity Regulatory Commission, this
Court stated: (SCC p. 589, para 71) "The law sometimes
can be written in such a subjective manner that it affects
the efficiency and transparent function of the Government.
If the statute provides for pointless discretion to agency, it
is in essence demolishing the accountability strand within
the administrative process as the agency is not under
obligation from an objective norm, which can enforce
accountability in decisionmaking process. All lawmaking,
be it in the context of delegated legislation or primary
legislation, has to conform to the fundamental tenets of
transparency and openness on one hand and
responsiveness and accountability on the other. These are
fundamental tenets flowing from due process requirement
under Article 21, equal protection clause embodied in
Article 14 and fundamental freedoms clause ingrained
under Article 19. A modern deliberative democracy cannot
function without these attributes." (emphasis supplied)"
In the said decision, finally, vide Para92, the Apex Court
exhorted the parliament to take up the issue in respect of
transparency in supporting legislation:
"92. We find that, subject to certain well defined
.
exceptions, it would be a healthy functioning of our
democracy if all subordinate legislation were to be
"transparent" in the manner pointed out above. Since it is
beyond the scope of this judgment to deal with subordinate
legislation generally, and in particular with statutes which
provide for rule making and regulation making without any
added requirement of transparency, we would exhort
Parliament to take up this issue and frame a legislation
along the lines of the U.S. Administrative Procedure Act
(with
certain well defined exceptions) by which all
subordinate legislation is subject to a transparent process
by which due consultations with all stakeholders are held,
and the rule or regulation making power is exercised after
due consideration of all stakeholders' submissions,
together with an explanatory memorandum which broadly
takes into account what they have said and the reasons for
agreeing or disagreeing with them. Not only would such
legislation reduce arbitrariness in subordinate legislation
making, but it would also conduce to openness in
governance. It would also ensure the redressal, partial or
otherwise, of grievances of the concerned stakeholders
prior to the making of subordinate legislation. This would
obviate, in many cases, the need for persons to approach
courts to strike down subordinate legislation on the ground
of such legislation being manifestly arbitrary or
unreasonable."
14. The last judgment which we are referring is on the U.P.
Panchayat Raj (Amendment) Act, 1994 that was brought
into force. We think the judgment in the State of U.P. and
others' case (supra) and in particular the concluding para
.
thereof, namely Para52, is essentially required to be seen.
We quote Para52 of the same, which reads thus:
"52. We are, therefore, more than satisfied that there were
no mala fide intentions on the part of the State Government
in giving the short time for submitting the objections and
for hearing and disposing them of. We may, however, make
it clear that although, as pointed out earlier, the challenge
to the delimitation of the panchayat areas on the said
grounds could not have been made in the present case
after the election notification was issued, the State
Government should bear it in mind that if and when the
next regrouping of the villages and redetermination of the
panchayat areas is undertaken, the authorities will have to
give sufficient opportunity to the people of the areas
concerned for raising the objections. This is with a view to
remove their grievances,if any, with regard to the
difficulties, inconveniences and hardships, likely neglect of
their interests, domination of certain sections and forces,
remoteness of the seat of administration, want of proper
transport and communication facilities etc. The opportunity
will also provide an occasion for the people to come forward
with suggestions for better and more viable, compact and
cohesive regrouping of the villages for efficient
administration and economic development. The objections
are not to be invited to enable the people to exercise the
sort of a right of self determination which is sought to be
spelt out by the High Court. The final decision with regard
to the delimitation of the panchayat areas, after hearing the
objections and suggestions, will, of course, be that of the
.
State Government acting through Director."
15. We have carefully seen the clarification that the
challenge to the objections, panchayati areas could not
have been made after the election notification was issued.
The present petitions were, however, filed much before the
election notification came to be issued on 05.12.2018 and
therefore, we think, we will be entitled to entertain these
petitions. A careful look at the aforesaid Para52 in the
State of U.P. and others' case (supra) clearly shows that the
Apex Court has asked the authorities to give sufficient
opportunity to the people of the areas concerned for raising
objections to remove their grievances. The aforesaid
direction by the Apex Court is binding on the respondents.
But what we find is that the orders made are not based on
the required criteria or the relevant considerations or in
some cases, no hearing took place. In the light of the
various principles of law shown to us by Mr. Anupam
Gupta, the learned Senior Advocate, we are inclined to hold
that implementation of Section 3 of the Act of 1994 by
issuing notifications as to the decision/amalgamation of
the Gram Panchayat is not a legislative act or legislative
function and is rather a quasijudicial function attracting
the principles of natural justice, openness in governance
and transparency. In this context, the aforesaid Para52
has apt application. To sum up, in the light of the above
law that is discussed above, we overrule the preliminary
objection raised by the learned State counsel and proceed
to determine the petitions on their own merits.
11 We have considered the submissions of the learned
.
counsel for the petitioner and have minutely analyzed the
judgment in Jarmal Singh's case (supra), however with due
respect, we are unable to concur with the judgment of the Punjab
and Haryana High Court as the same has been rendered per
incuriam inasmuch as most of earlier division bench judgments of
that very Court i.e. Punjab and Haryana High Court including
Gram Panchayat Bassi Sekhan vs. State of Punjab & ors.,
2009 (1) RCR (Civil) 242, CWP No. 3705/2007, titled as
Inderjit Singh & ors. vs. State of Haryana &ors., decided on
18.2.2014, Som Prakash & ors. vs. State of Haryana & ors.,
2016 (3) RCR (Civil) 885 and the one rendered by the FiveJudge
Bench in Suraj Bhan & ors. vs. State of Haryana & anr., (2017
2) 186 PLR 605, wherein, after placing reliance on Tehal Singh's
case (supra) and other judgments of the Hon'ble Supreme Court, it
was clearly held that function of the government in establishing a
Corporation or Panchayat is a legislative act, to which rules of
natural justice are inapplicable have not at all been considered.
12 In addition to the aforesaid judgments, judgment in
Jarmal Singh's case (supra) runs contrary to the judgment of the
Division Bench of that Court in CWP No. 1725/2008, titled as
.
Gram Panchayat Mann Majra vs. State of Punjab & ors. Dated
2.4.2012, which in turn, has been repeatedly followed by, not
only Punjab and Haryana High Court, but has also been followed
by Madhya Pradesh High Court in Gyan Prakash Patel vs. State
of Madhya Pradesh, 2018(2) MPLJ 574.
13 In view of aforesaid exposition of law, we are clearly of
the view that the power exercisable under Section 3 of the Act by
the Government is not an exercise of a judicial or quasijudicial
function, where the very nature of function involves the principles
of natural justice or in any case of an administrative function
affecting the rights of an individual. As observed above, the
function is legislative in character.
14 In this background, further question which arises for
consideration is - whether the State is obligated to adhere to the
principles of audi alteram partem before ordering bifurcation of
the Panchayat(s), even though this is a legislative function?
15 Even this question already stands answered in para 9
of the judgment in Tehal Singh's case (supra), however we may
notice that a fine distinction qua scope of judicial review of
legislation/subordinate legislation visavis executive decision has
.
been meticulously laid down by the Hon'ble Supreme Court in
Bombay Dyeing & MFG. Co. Ltd. (3) vs. Bombay
Environmental Action Group & ors., (2006) 3 SCC 434,
wherein it was observed as under:
197. A matter involving environmental challenges may have
to be considered by a superior court depending upon the
fact as to whether the impugned action is a legislative
action or an executive action. In case of an executive
action, the court can look into and consider several factors,
namely,
(i) Whether the discretion conferred upon the
statutory authority had been property exercised;
(ii) Whether exercise of such discretion is in
consonance with the provisions of the Act;
(iii) Whether while taking such action, the executive
government had taken into consideration the purport
and object of the Act;
(iv) Whether the same subserved other relevant factors
which would affect the public in large;
(v) Whether the principles of sustainable development
which have become part of our constitutional law
have been taken into consideration; and
(vi) Whether in arriving at such a decision, both
substantive due process and procedural due process
had been complied with.
198. It would, however, unless an appropriate case is made
.
out, be difficult to apply the aforementioned principles in
the case of a legislative act. It is no doubt true that Articles
14, 21, 48A of the Constitution of India must be applied
both in relation to an executive action as also in relation to
a legislation, however, although the facet of reasonableness
is a constitutional principle and adherence thereto being a
constitutional duty may apply, the degree and the extent to
which such application would be made indisputably would
be different. Judicial review of administrative action and
judicial review of legislation stand on a different footing.
What is permissible for the court in case of judicial review
of administrative action may not be permissible while
exercising the power of judicial review of legislation. It may,
however, be a different thing to contend that the legislation
had been enacted without constitutional principles in
mind. The real question is whether the constitutional
mandates had been complied with in making such
legislation.
16 Judicial review of administrative action and judicial
review of legislation stand on a different footing. What is
permissible for the Court in case of judicial review of
administrative action may not be permissible while exercising the
power of judicial review of legislation.
17 It would, thus, be abundantly clear that in case of an
executive action, the court can look into and consider several
factors, as enumerated above, however principles will not apply or
.
are not applicable in case of legislative act unless and until
appropriate case is made out. Unfortunately, no such case has
been set out in any of the petitions.
18 Similar issue came up before a Coordinate Bench of
this Court, of which one of us (Tarlok Singh Chauhan, J.) was a
member, in Yudh Chand Saklani vs. State of Himachal Pradesh
& ors., ILR 2016 (VI) HP 1733, and the question therein was
with regard to establishment of municipality and it was observed
that the Courts cannot interfere with the legislative function
unless the decision was not in public interest, but was taken with
ulterior motive at the behest of some interested persons. It shall
be apposite to refer to the necessary observations as contained in
paras 35 to 42 of the judgment, which reads as under:
35. Even otherwise, declaration of Municipalities is a
legislative function, which is undertaken by the
Government in larger public interest and ordinarily Courts
are not to interfere in the decisions so undertaken by the
State Government until and unless the judicial conscious
of the Court is satisfied that the decision so taken is not in
public interest, but has been taken with ulterior motive at
the behest of some interested person or persons who
personally stand to gain by the declaration of such
Municipality. In this case, the petitioner has not been able
.
to demonstrate or prove the same. Petitioner has not been
able to demonstrate or prove that the declaration of area
subject matter of the writ petition into a Nagar Parishad is
either not in public interest or this decision has not been
taken by the Government in larger interest of inhabitants of
the area, but the same has been taken by the State
Government to help a few individuals or the declaration
was not done by following statutory requirements of the
Himachal Pradesh Municipal Act, 1994.
36. It is settled law that function of the Government while
establishing a Municipality is neither executive nor
administrative, but it is a legislative process.
37. In Tulsipur Sugar Co. Ltd. Vs. The Notified Area
Committee, Tulsipur, (1980) 2 SCC 295, the Hon'ble
Supreme Court while dealing with U.P. Town Areas Act,
1914 has held that power of the State Government to make
a declaration under the same is legislative in character.
38. The Hon'ble Supreme Court in Baldev Singh and Ors.
Vs. State of Himachal Pradesh, (1987) 2 SCC 510, has held
that affording of hearing to affected persons is essential
prerequisite for constituting notified area, however, hearing
contemplated is not required to be oral and can be by
inviting objections and disposing them of in a fair way.
39. The Hon'ble Supreme Court in Sundarjas Kanyalal
Bhathiaja and ors. Vs. The Collector, Thane, Maharashtra
and ors., AIR 1990 SC 261,has also held that rules of
natural justice are not applicable to legislative action
plenary or subordinate. The Hon'ble Supreme Court in
.
para23 of the judgment has held:
―23. 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 theirs."
40. In Karnail Singh and another Vs. Darshan Singh and
Ors., 1995 Supp.(1) SCC 760, the Hon'ble Supreme Court
has held that amalgamation of two gram sabhas into one is
an administrative decision taken by the authorities in
public interest and the Court would not interfere unless the
same is vitiated with malafides.
41. The Hon'ble Supreme Court in Solapur Midc Industries
.
Association and ors. Vs. State of Maharashtra and ors.,
reported in (1996) 9 SCC 621,has held: ―3. It is not
disputed that since the State Government has not yet
withdrawn the industrial estate/industrial area concerned
from the hold of the Corporation, the provisions of the 1961
Act continue to apply. The Preamble thereof is suggestive of
its objects sought to be achieved namely the orderly
establishment in industrial areas and industrial estates of
industries, and to assist generally in the organisation
thereof, and for that purpose to establish the Industrial
Development Corporation and for purposes connected with
the matters therewith. The purpose of the 1949 Act on the
other hand, as is suggestive from its Preamble, is to provide
for the establishment of Municipal Corporations with a view
to ensure a better municipal government of the cities in
which municipal corporations are set up. These being the
basic differences as to the ambit of the two statutes, the
High Court, in our view, rightly arrived at the conclusion
that there was inter se no conflict between the two. There
may be certain areas such as provision for civil amenities
in which there is identity of purpose but these are ancillary
and incidental to the main purpose of the respective two
statutes. The suggestion drawn from the Assembly debates,
to which our attention has been drawn, while passing the
1961 Act, suggestive of the fact that the industrial estates
or industrial areas on ripening were meant to be kept
under the purview of the 1961 Act until some civic
administration in the form of a Panchayat or Municipality
could take over is not supported by any statutory provision
available in the respective two Acts. As said before the
.
topics of legislation being different, there was no question
of their rubbing against each other because being enacted
under two different legislative fields.
42. The Hon'ble Supreme Court in Nagar Panchayat Kurwai
and another v. Mahesh Kumar Singhal and ors., reported
in (2013) 12 SCC 342, has held that Nagar Panchayat, is a
unit of selfgovernment, which is a sovereign body having
both constitutional and statutory status and considerable
powers are conferred on it to carry out various schemes for
economic development and social justice at the local level.
19 As regards allegations of mala fides, by long
established practice, which has received approbation from the
authorities of the Hon'ble Supreme Court, the Court has always
refrained from attributing malafides to the legislature. In fact,
such a thing is unknown to law. Here, it shall be apt to reproduce
relevant observations as contained in para 36 of the judgment
rendered by the Hon'ble Supreme Court in K. Nagaraj vs. State
of Andhra Pradesh, AIR 1985 SC 551, wherein it was observed
as under:
36. The argument of mala fides advanced by Shri A.T.
Sampat, and adopted in passing by some of the other
counsel, is without any basis. The burden to establish
ma/a fides is a heavy burden to discharge. Vague and
casual allegations suggesting that a certain act was done
with an ulterior motive cannot be accepted without proper
.
pleadings and adequate proof, both of which are
conspicously absent in these writ petitions. Besides, the
ordinancemaking A power being a legislative power, the
argument of mala Fides is misconceived. The legislature, as
a body, cannot be accused of having passed a law for an
extraneous purpose. Its reasons for passing a law are those
that are stated in the Objects and Reasons and if no
reasons are so stated, as appear from the provisions
enacted by it. Even assuming that the executive, in a given
case, has an ulterior motive in moving a legislation, that
motive cannot render the passing of the law mala fide. This
kind of 'transferred malice' is unknown in the field of
legislation.
20 In addition to the aforesaid, we otherwise do not find
the petition to be maintainable as the same though appears to
have been filed on behalf of the Gram Panchayat, but the
authorization letter appended thereto clearly shows that there is
no valid resolution passed by the Gram Panchayat in favour of the
petitioner herein.
21 It is more than settled that if the officials of the State
do not act upon the resolutions, then the aggrieved, if any, shall
only be the Gram Panchayat and not any individual(s). If the Gram
Panchayat is no longer in existence on account of its bifurcation,
then a petition can only be filed after authorization by majority of
.
the people of the area.
22 No doubt, the petitioner has tried to improve its case
by supplying authorization document dated 3.1.2021, but the
same cannot be considered to be a valid authorization as the
petition in this case was filed much earlier on 21.12.2020 and in
such circumstances, there cannot be any ratification of the
authorization subsequent to the filing of the petition.
23 In view of the aforesaid discussion, we find no merit in
the instant petition and the same is accordingly dismissed, so also
the pending miscellaneous application(s), if any, leaving the
parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
5.1.2021 Judge
(pankaj)
