(1) This petition under Article 226 and 227 of the Constitution raises an interesting question of the interpretation of S. 4 of the Bombay Village Panchayats Act, 1958.
(2) Petitioner No. 1 is a village panchayat of the local area of villages Dharna and Wadhona Buzruk, while petitioners 1(a) to 5 are some of the members of this village panchayats. They have challenged the validity of a notification No. C-27102 1686-VPT-64, published in the Maharashtra Government Gazette, dated 2nd December, 1965, in Part -I-A of the Nagpur Supplement , page 619. The relevant notification is as follows:-
'No C-27102-1686-VPT-V-64. - In exercise of the powers conferred by sub-section (2) of Section 4 of the Bombay Village Panchayats Act, 1958 (Bom III of 1959), read with Government Notification, Local Self-Government and Public Health Department No. VPS-2459-P, dated the 25th May, 1959, and after consultation with the Standing Committee of the Yeotmal Zilla Parishad and the Village Panchayats of (1) Wagada, (2) Dharna, and (3) Saki Bk in Pandharkaoda Panchayat Samiti in Kelapur Taluka of the Yeotmal District, I, M. N. Desai, Commissioner, Nagpur Division, Nagpur, with effect from the date of publication of this notification in the official Gazette, hereby exclude from the villages shown in column (3) of the following table, the local area comprising the villages shown in column (4) of the table for establishment of separate Village Panchayats:-
TABLESerial Name of Jurisdiction Villages to be Serial Name of Jurisdiction.No. Group over villages. excluded from No. Village PanchayatVillage the Group to be establi-Panchayat Village shed/recons- Panchayat. tituted. (1) (2) (3) (4) (5) (6) (7)x x x x x x x2. Dharna.... 1. Dharna... . . . 3 Dharna. . . 1. Dharna.2. Wadhona Wadhona Bk. Bk.x x x x x x' The notification purports to have been issued under Section 4(2) of the Bombay Village Panchayats Act, 1958. The grievance of the petitioners is that they have not been consulted before the issue of the notification as required by the provisions of Section 4 and, therefore, the notification is bad.
(3) Under the Bombay Village Panchayats Act, power is given to the State Government to constitute a panchayat for every village. Under Section 2(24) of the Act, a 'village' is defined as 'any local area declared to be a village under Section 4 or deemed to be a village.' Under Section 4(1) of the Act, the State Government is empowered to declare any local area comprising a revenue village or a group of revenue villages or hamlets forming part of a revenue village or other such administrative until or part thereof, to be a village. 'Thus under the statutory definition of village, area comprising more than two revenue villages can form a unit as a village panchayat under the Act. Such a village panchayat was cons constituted for the two villages of Dharna and Wadhona Buzruk, combined under one unit of administration as a village panchayat.
(4) In 1961, to be precise, on 18-7-1961, the then members of the Village Panchayat of Dharna-Wadhona Bk. Passed a resolution, which has been reproduced by the petitioners as Annexure A, resolving that in view of the demand of the villagers of Wadhona Bk., Wadhona Bk village may be made separate and accordingly a request was made by the Village Panchayat to the State Government. In other words, by this resolution, the petitioner No. 1, the Village Panchayat recommended to the State Government that Villages Dharna and Wadhona Bk should have separate village panchayats.
(5) Fresh elections seem to have taken place when a new body came into office in 1962. On 29-7-1963 the Village Panchayat passed a unanimous resolution expressing an opinion exactly contrary to that expressed by their resolution of 1961. By this resolution, the Panchayat resolved that it was the desire of villagers of both the villages i.e. Dharna and Wadhona Bk., that they should continue to form one village panchayat and it was resolved that this decision should be brought to the notice of the Government A similar resolution was also passed subsequently on 7-12-1964 of which Annexure C is a copy.
(6) The petitioners' grievance is that in spite of these later resolutions the first respondent, i.e. the Commissioner of Nagpur Division had issued the notification reproduced above but without consulting either petitioner No. 1 the Village Panchayat or any of its members who are affected by the notification.
(7) The petition is contested principally by the second respondent, i.e. the Zilla Parishad, Yeotmal, representing its Standing Committee. They have filed a return in this case, and the learned Additional Government Pleader supported the action of the first respondent on their behalf. A return is also filed on behalf of the fifth respondent, who is a member of the Village Panchayat. Respondent No. 4 has supported the cause of the petitioners while the fifth respondent, who is also a member, has opposed the petition. It may be noted at this stage that the first respondent has not filed any return nor any appearance is entered on behalf of the first respondent.
(8) In supporting the action of the first respondent, the second and the fifth respondents contend that there was no occasion, nor any necessity for a fresh consultation with any of the petitioners inasmuch as the resolution of 1961 had already accepted the desirability of splitting up of the two villages into two separate units as panchayats and there being no contrary indication before the authorities, the action taken by the first respondent is not open to challenge on any ground. The Standing Committee of the Zilla Parishad, the second respondent was consulted by the first ability of splitting up of the two villages into two separate panchayats inasmuch as the villagers of Wadhona Bk desired a change in their status.
(9) It is urged on behalf of the contesting respondents that at no stage the petitioner No. 1 or any of the other members, who are now making a grievance, brought to the notice of the first respondent that they did not desire the splitting up of the two villages into two separate panchayats and if the first respondent acted on the basis of the resolution of 1961, that would be adequate compliance with the provisions of Section 4(2) of the Bombay Village Panchayats Act. In this connection it is pointed out that the first respondent must be presumed to be aware of the resolution of 1961 because, under rule 40 of the Rules framed for regulating the meetings of the village panchayats under the Bombay Village Panchayats Act, a copy of the proceeding had to be submitted to the Chairman of the District Village Panchayat Mandal within seven days of the meeting. A presumption would, therefore, arise that a copy of the resolution of 1961 must have been submitted to the District Village Panchayat Mandal as required by the ruled. Under the Bombay Village Panchayats Act a District Village Panchayats Mandal was to be cons constituted under Section 134 of the Act. There being a presumption of official acts being done properly and regularly if such a resolution had been forwarded to the District Village Panchayat Mandal, that resolution would, in its turn, form part of the record of the Zilla Parishad. There is a reference to this resolution in the proceedings before the Standing Committee when the Standing Committee was consulted by the first respondent with regard to the proposal for reconstitution of the Panchayats. In this manner the first respondent being made aware of the opinion of the Panchayat as reflected in its resolution of 1961 there was neither any necessity nor occasion for a consultation and, in absence of any complaint to the contrary, the exercise of power by the first respondent cannot be challenged. It is further submitted that the scheme of the Village Panchayats Act is that every village should have its own panchayat. In pursuance of this objective, steps are being taken to give separate panchayat for each village as a unit of village administration and, in the course of implementation of this policy, if action is taken by the first respondent in this case, it cannot be seriously objected to. It is claimed that the decision is an administrative decision and is not open to challenge nor justiciable in these proceedings under Article 226 and 227 of the Constitution. Support is claimed for this latter contention from a decision of the Supreme Court in Radheshyam Khare v. State of M. P., : 1SCR1440 .
(10) After hearing the contesting respondents, we have come to the conclusion that the objections are not well founded. It will be convenient to deal with the last objection to the jurisdiction of this Court. The power that is vested in the State Government and delegated to the first respondent, in this case under Section 4(2) of the Bombay Village Panchayats Act is not an exercise of an administrative power. The first respondent is acting under a statute and is bound by the terms of the statute. We are unable to appreciate how in exercising the power under any provision of the statute, any question of policy, other than that laid down by the Legislature, is germane or claim protection from scrutiny. If the exercise of the statutory power is shown to be in contravention of the provisions of the statute persons affected by such exercise of the power are certainly entitled to invoke the jurisdiction of this Court. The matter which went before the Supreme Court was under Section 53-A of the C. P. & Berar Municipalities Act, and , as far as we can see, what seems to have been decided is that, when power is vested in an authority to take a policy decision in respect of exercise of an administrative power, it is not vulnerable nor is it justiciable ordinarily by a writ of certiorari. We do not, therefore, think that the decision on which reliance is placed is of any assistance to the respondents.
(11) The consequences of action under Section 4(2) of the Bombay Village Panchayats Act are provided for in Section 160 of that Act. That section is as follows:-
'160. (1) Where any local area comprised within the limits of a village ceases to be a village and is declared as constituting two or more new villages by virtue of a notification under Section 4, with effect from the date on which such notification is issued (hereinafter in this section referred to as 'the said date'), the following consequences shall ensure, that is to say.-
(a) the panchayat cons constituted in respect of such local area shall cease to exist and all the members of the panchayat shall vacate office;
(b) until panchayats are cons constituted for the new villages, the State Government shall appoint an administrator or administrators to exercise the powers and perform the functions of the panchayat for each of the new village.
(C) the unexpended balance of the village fund and all the property (including arrears of rates, taxes, and fees) belonging to such panchayat shall vest in the new panchayat in such proportion and in such manner as the State Government may direct:
(d) the officers and servants of such panchayat shall be allocated by the State Government to the new panchayats in such manner a s the State Government may direct;
(e) subject to clauses (a) to (d) the provisions of Section 159 shall mutatis mutandis apply to the administrator or administrators of the new panchayats and their members.
(2) Within one year of the said date the Panchayats for the new villages shall be cons constituted in accordance with the provisions of this Act.
(3) If any difficulty arises in giving effect to the provisions of Section 159 or this section, the State Government may, by order, as the occasion may require do anything which appears to it to be necessary to remove the difficulty.'
(12) It was be seen that one of the effects of a decision to constitute or making a declaration under Section 4 is that a panchayat previously functioning as cons constituted prior to the action taken under Section 4, ceases to exist and a further effect of such notification is that all the members of that Panchayat vacate office automatically. Thus a notification under Section 4(2) of the Bombay Village Panchayats Act has a two-fold effect. Firstly, the ex-panchayat in respect of which a notification is issued ceases to exists as a legal entity. The second and more serious effect is that the members constituting that panchayat automatically vacate office. The notification thus affects the status of the members as representing their wards in the local body. It is precisely for this reason, in our opinion, that the Legislature has made advisably a provision in sub-section (2) of Section 4 for consulting the panchayat concerned before action is taken under Section 4(2) of the Bombay Village Panchayats Act.
(13) There is a specific averment in para 5 of the petition that the Panchayat was not consulted nor was it granted a hearing to place its point of view before the notification was issued. This allegation raises a question of fact, viz., whether, in fact, the petitioner No. 1 the Panchayat was or was not consulted by the first respondent. The only party which could have made any statement in reply to this averment would be, with propriety, the first respondent. It is the first respondent who is required by law to consult the Village Panchayat, and we are constrained to observe that, in absence of any return being filed or any appearance being entered on behalf of the first respondent, it is not possible to hold that this allegation has been refuted as required by law. It is true that the second respondent has denied this allegation. But the second respondent is not an authority which could have any direct knowledge about the fact of consultation by the first respondent with the first petitioner, the Panchayat. The alternative argument that the resolution passed by the first petitioner in 1961 and a knowledge of that resolution would be adequate compliance with the requirements of sub-sec (2) of Section 4 is also not tenable. Section 4(2) speaks of consultation with 'the panchayat concerned.' The panchayat concerned will not only mean the panchayat with respect to which the action is proposed to be taken but the panchayat as cons constituted at the time when consultation has to be made. It is true that the Village Panchayat cons constituted under the Act is a legal personality or entity and is having a perpetual seal, and succession. But it is wellknown that the complexion of the panchayat will change from time to time and especially when new bodies come in. There is nothing like inalterability of decisions of the deliberative body like panchayat cons constituted as a corporation. It will be, therefore, difficult to uphold the contention that, because of the resolution of 1961, the Panchayat was bound by the resolution for all time to come. We put it to the learned counsel for the second respondent whether a resolution of a prior date could be operative and held good against the Panchayat for all time to come. The resolution may be good in the light and context of circumstances then prevailing. But, if there is nothing in law preventing the Panchayat from coming to a contrary or different conclusion, then we fail to see why the first respondent was not liable to consult the Panchayat when action was actually proposed to be taken, i.e. when the notification is dispute was about to be issued or action was initiated for issuing of such a notification.
(14) We are also not satisfied that there is any reliable evidence on record to presume that the resolution of 1961 passed by the first petitioner was within the cognizance of the first respondent. The process of reasoning by which such an argument is pressed before us is as follows: The resolution as passed in 1961 must, in the ordinary circumstances and in compliance with the rules of meetings then prevailing, have been forwarded to the District Village Panchayat Mandal. The District Village Panchayat Mandals, which were functioning under Section 134 of the Panchayat Act, were abrogated as a result of the Maharashtra Zilla Parishads Act which came into force on 1st of May, 1962. Zilla Parishad is the succeeding district unit of local administration and should be taken as a successor of the District Village Panchayat Mandal under Section 134 of the Bombay Village Panchayats Act. If the records of the District Village Panchayat mandal could properly be sent and might have been sent along with the resolution of the Panchayat which must have been sent through the Panchayat Mandal to the Zilla Parishad, the Zilla Parishad would have access to such resolution. Support is sought for this submission on the basis of reference to this resolution passed by petitioner No. 1, in the proceedings of the Standing Committee of the Zilla Parishad (respondent No. 2), which assented to the change proposed by the first respondent. The second respondent has not filed a copy of those proceedings before us. But even assuming that there is a reference to the resolution of 1961 passed by the petitioner No. 1 Panchayat agreeing to split up the two villages, we fail to see how a mere reference to that resolution is a substitute of the requirement of consultation with the Panchayat by the first respondent when he proposed to take action under Section 4(2) of the Act.
(15) The Panchayat concerned which ought to be consulted is the Panchayat as cons constituted on the date the decision is required to be taken by the first respondent. Under Section 9 of the Bombay Village Panchayats Act, the Panchayat is made a corporate body; but under Section 10 what shall comprise or consist of the Panchayat is provided, and under Section 10(1) (a) a panchayat shall consists of such number of members as the Collector may determine. So all members of the panchayat are a vital and integral part of the panchayat itself. When any action is proposed to be taken under Section 4(2), it has its impact on the status of the members constituting the panchayat. If for nothing else, at least in obedience to the well accepted principles of natural justice, the members, who constitute the panchayat and are affected by the action, have a right to be consulted. Consulting the panchayat does not mean consulting office-bearers or any selected representative, but the panchayat as a whole comprising of totality of its membership. An opportunity must, therefore, be given to all the members comprised in the panchayat to express their opinion with respect to the proposal initiated by the first respondent under Section 4(2) of the Bombay Village Panchayats Act. If that has not been done and we must observe in this case that, that is not complied with in this case then an action taken under Section 4(2) is liable to be struck down as an exercise of power without due compliance with the requirement of the section itself.
(16) Even in absence of a provision like Section 4(2) regarding consultation, one should have thought that in exercise of a power under the Act, the authority exercising the power would normally consult the persons affected by the exercise of such power. This principle is a salutary principle in dealing with representative institutions and that has been recognized by the Legislature in the provision it made in Section 4(2). The requirement of this important provision, therefore, cannot be either ignored or whittled down by following a circuitous procedure.
In the instant case, it is not even averred by the authority concerned, that such a procedure was followed. The mere statement in the notification that the power is exercised after consultation with the Panchayat concerned, will be no answer to the charge when there is a specific averment that no such consultation had taken place. From the facts disclosed on record also, it does not appear that the first respondent independently, at any time, given an opportunity to the petitioner No. 1 and its members constituting the Panchayat to say what they wanted with respect to the proposal for splitting up the two villages. In view of the serious lacuna in the exercise of the power it must be held that the notification concerning these villages is not validly issued and is ineffective. We accordingly quash that notification, so far as it affects village panchayat of local area of Dharna and Wadhona Bk.
(17) The petition is allowed. In the circumstances, the petitioners will be entitled to costs from the second respondent. The consequences of the quashing of the notification will follow in due course.
(18) Petition allowed.