Rajasthan High Court - Jodhpur

Gram Panchayat Kora vs The State Of Rajasthan ... on 18 September, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:30191]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10758/2023

Gram Panchayat Kora, Through Its Sarpanch Khemraj Desai S/o Teja Ram Desai, Aged About 65 Years R/o Village Post Kora, Tehsil Bhinmal, Dist Jalore.

----Petitioner Versus

1. The State Of Rajasthan, Through Principal Secretary, Department Of Revenue, Secretariat, Jaipur, Rajasthan.

2. District Collector, Jalore.

3. Additional District Collector, Jalore.

4. Sub Divisional Officer Bhinmal, District Jalore.

5. Tehsildar Bhinmal, District Jalore.

6. Executive Engineer, Public Health And Engineering Department, Project Block Bhinmal.

----Respondents

For Petitioner(s) : Mr. Mahendra Bishnoi. For Respondent(s) : Mr. RD Bhadu, Dy. G.C.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

18/09/2023

1. Learned counsel for the petitioner has referred to the order

dated 02.09.2021 passed by this Court in the matter of Gram

Panchayat Bakaner & Ors. Vs. State of Rajasthan & Ors.

(S.B. Civil Writ Petition No.1287/2021), which reads as

follows:-

"This writ petition has come to be filed by the Sarpanch, Gram Panchayat, Bakaner inter-alia challenging the directions issued by the respondent State i.e. Revenue Department as well as the Panchayati Raj

[2023:RJ-JD:30191] (2 of 7) [CW-10758/2023]

Department, under which directions have been issued for location of the Gram Panchayat headquarter at a particular piece of land.

It is submitted on behalf of the petitioner that the Gram Sabha had met on 05.07.2020, 14.09.2020 and 11.01.2021, wherein it was decided regarding the location for construction of Bhawan for Gram Panchayat headquarter as well as the other ancillary facilities therein. It appears that on the same day i.e. on 11.01.2021 under Annexure 21, the Gram Sabha resolution dated 11.01.2021 was forwarded to the District Collector, Banswara for necessary compliance.

Learned counsel appearing for the State vehemently contends that there were various disputes arising within the Gram Panchayat regarding the exact location of the Gram Panchayat Bhawan. Consequently, committees were constituted by the State and the committees took into consideration various aspects in terms of the guidelines issued by the State and accordingly, decision was made to establish the headquarter of the Gram Panchayat under Annexure 20 dated 07.01.2021.

Learned counsel for the Panchayati Raj Department has placed reliance on certain judgments passed by the Single Bench of this Court in S.B. Civil Writ Petition No. 7626/2021 Ramniwas Vs. State of Raj. & Ors. decided on 06.07.2021 as well as in S.B. Civil Writ Petition No. 8069/2021 Sajjan Singh & Ors. Vs. Gram Panchayat Nagana & Ors. decided on 06.07.2021, wherein this Court refused to entertain the challenges to the location of the headquarter of the Gram Panchayat on the ground that the same was an executive decision.

Having heard learned counsel for the respective parties, it is important at this stage to take into consideration the fact of Constitution (Seventy-third Amendment) Act, 1992 introduced by Part IX under the heading "The Panchayats" and most importantly Article

[2023:RJ-JD:30191] (3 of 7) [CW-10758/2023]

243A and 243B, incorporated therein, which reads as follows:

"243A. Gram Sabha- A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide.

243B. Constitution of Panchayats- (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs."

It is pursuant to these constitutional amendments that the Rajasthan Panchayati Raj Act, 1994 was amended vide Rajasthan Panchayati Raj(Amendment) Act of 2000 dated 03.05.2000 by introducing Chapter IIA and Sections 8A and 8E into the Act. The relevant portion of Sections 8A and 8E read as follows:-

"8A. Gram Sabha and its meetings.-(1) There shall be a Gram Sabha for each Panchayat Circle consisting of the persons registered in the electoral rolls relating to the village or the group of villages comprised withing the area of the Panchayat. (2) There shall be at least two meetings of the Gram Sabha every year, one in the first and the other in the last quarter of the financial year... 8E. Functions of the Gram Sabha.- The Gram Sabha shall, subject to such conditions and upto such extent and in such manner as may be specified by the State Government from time to time, perform the following functions:-

(a) approve the plans, programmes and projects for social and economic development in order to priority from out of the plans, programmes and projects

[2023:RJ-JD:30191] (4 of 7) [CW-10758/2023]

approved by the Ward Sabha before such plans, programmes and projects are taken up for implementation by the Panchayat;

(j) identification and approval of development works in order of priority from out of the works recommended by the Ward Sabha;

(n) control over local plans and resources for such plans including tribal sub-plans;"

In view of the Constitution (Seventy-third Amendment) Act, 1992 as quoted herein above, as well as the Rajasthan Panchayati Raj. (Amendment) Act, 2000, it is clear therefrom that it is the Gram Sabha alone which is vested with the powers to exercise such powers and perform such functions at the village level as the "Legislature of a State may, by law, provide" and Article 243B vests the duty on the State for constituting Panchayats. It is important here to take note of the fact that under Section 8E of the Rajasthan Panchayati Raj Act, and in particular it is stipulated that the "Gram Sabha" shall, subject to such conditions and upto such extent and in such manner as may be specified by the State Government from time to time perform the functions inter-alia to approve the plans, programmes and projects for social and economic development in order to priority from out of the plans, programmes and projects approved by the Ward Sabha before such plans, programmes and projects are taken up for implementation by the Panchayat.

In view of the aforesaid provisions, both constitutional and statutory, it is imperative that since the role of the Gram Sabha is that of legislature, while the Gram Sabha retains its legislative powers, the power to execute the decisions of the Gram Sabha is left with the Panchayat and all concerned of the State and its agencies and officers are to assist in implementing such decisions. In the case at hand, the Gram Sabha had

[2023:RJ-JD:30191] (5 of 7) [CW-10758/2023]

repeatedly held three meetings and on each occasion reiterated its decision to establish the Gram Panchayat Bhawan at a particular location and such a decision of the Gram Sabha has to be accepted by this Court as well as the State as part of the legislative action on the part of the Gram Sabha. The obligation of both the Panchayat as well as the State is to ensure implementation of the decision taken by the Gram Sabha and not vice versa. The State in the present case is not an arbitrator, but is an agency for the purpose of carrying out its responsibilities and providing necessary funds for the purpose of the activities of the Panchayat.

Although various contentions have been advanced by the State as to why a committee was required to be formed, this Court is of the considered view that such formation of committee is without any statutory and/or constitutional basis. Such committee ought not to have been formed since they have no legislative foundation. This Court is of the clear view that the mandate of the Constitution is binding on all concerned and also the amendments carried out in the Rajasthan Panchayati Raj Act are also of huge relevance and meaning.

It is clear that in the judgments relied upon by the learned counsel for the State(Panchayati Raj Department), as referred to herein above, the learned Single Judge did not take into consideration the Constitution (Seventy-third Amendment) Act, 1992 and introduction of Articles 243A and 243B in the Constitution and the amendments carried out by the Rajasthan Panchayati Raj(Amendment) Act of 2000, whereby Section 8A and 8E were incorporated. Consequently, the same have no application to the present case.

Consequently, the writ application is allowed and all the directions issued by the State Government regarding location of the headquarter of the Gram Panchayat Bhawan are set aside and the State and its organs are

[2023:RJ-JD:30191] (6 of 7) [CW-10758/2023]

directed to ensure approval of the location of the headquarter of the Gram Panchayat Bhawan at the location decided by the Gram Sabha in its meetings held on 05.07.2020, 14.09.2020 and 11.01.2021 forthwith."

2. Learned counsel for the petitioner submits that the petitioner

is an elected Sarpanch of Gram Panchayat and in spirit of the

Constitution, the Panchayat Laws as well as the order cited above

is having a substantial domain over the decision making process of

the location of over head water tank in question.

3. Learned counsel for the petitioner has tried to demonstrate

that there was a discrepancy in the earlier resolution to the extent

that one of them was forged.

4. Learned counsel for the respondents, however, submits that

they have gone by one of the resolutions and pass the orders.

5. Looking into the peculiarity of the facts and the order passed

by this Court in Gram Panchayat Bakaner (Supra), the petition