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Bhaiyalal and ors. Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 999 of 1983
Judge
Reported inAIR1984MP55
ActsMadhya Pradesh Panchayat Adhiniyam, 1981 - Sections 4, 4(1) and 120
AppellantBhaiyalal and ors.
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateS.L. Saxena, Govt. Adv.
DispositionPetition dismissed
Cases ReferredMohinder Singh v. Chief Election Commr.
Excerpt:
- - otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. it was contended by the learned government advocate that at best, it could only be said to be an order under section 4 (1) which contemplates the constitution of panchayats and it is not in dispute that if the collector was constituting a panchayat under section 4 (1), it was not necessary for him to invite objections and to decide them......of the panchayat act on 27-2-1983 proposing to alter the constitution of jhanjhankheda and nandner gram panchayats. by this notice, it was proposed to exclude village bankhedi from the gram panchayat jhanjhankheda and to include that village in gram panchayat nandner. it is further alleged that panchas of gram panchayat jhanjhankheda who were residing at jhanjhankheda and bankhedi objected to this proposal in writing and this objection is said to be d/- 5-3-1983 and it was alleged in this objection that 5 years back, a separate gram panchayat for jhanjhankheda was established. it is also alleged that gram panchayat, nandner also passed a resolution on 3-3-1983 opposing the inclusion of village bankhedi in gram panchayat, nandner and this resolution also was submitted to the collector as.....
Judgment:

Oza, Ag. C.J.

1. This is a petition filed by the petitioners challenging an order passed by the Collector, Narsinghpur on 12-3-1983 disallowing objections to the notification issued by the Collector about the constitution of a Panchayat and fixing its boundaries.

2. According to the petitioners, the Collector, Narsinghpur published, a notice under Section 120 of the Panchayat Act on 27-2-1983 proposing to alter the constitution of Jhanjhankheda and Nandner Gram Panchayats. By this notice, it was proposed to exclude village Bankhedi from the Gram Panchayat Jhanjhankheda and to include that village in Gram Panchayat Nandner. It is further alleged that Panchas of Gram Panchayat Jhanjhankheda who were residing at Jhanjhankheda and Bankhedi objected to this proposal in writing and this objection is said to be D/- 5-3-1983 and it was alleged in this objection that 5 years back, a separate Gram Panchayat for Jhanjhankheda was established. It is also alleged that Gram Panchayat, Nandner also passed a resolution on 3-3-1983 opposing the inclusion of village Bankhedi in Gram Panchayat, Nandner and this resolution also was submitted to the Collector as an objection. It is alleged that the Collector, Narsinghpur passed an order ruling out these objections and constituting the Panchayats as indicated in the notice by his orders dated 12-3-1983 and it is alleged by the petitioner that in this order, there are no reasons stated as to why these objections were overruled and this order is, therefore, challenged in this petition.

3. It is alleged that the petitioners are residents of village Bankhedi and Jhanjhankheda and. therefore they are persons affected by this order passed by the Collector. It is also alleged that after this order passed by the Collector, a programme of election was notified and it appears that the elections have also been concluded.

4. In the return filed by the State, it is contended that the Panchayats which were constituted 5 years back under 1962 Act continued to function when the Act was repealed and an ordinance was brought into force as under Section 121 of this ordinance these Panchayats existing under 1962 Act were saved. But when this ordinance was repealed by the present Act i.e. Act of 1981, no saving Clause has been enacted in that and, therefore, these Panchayats were constituted under this Act for the first time and therefore, the notice which was issued by the Collector although mentions Section 120 but in fact it only will be a notification under Section 4 (I) constituting a Panchayats under Section 4 (1) of the new Act and in the scheme of Section 4 (1) of the new Act no objections are required to be invited nor it is contemplated that the Collector is expected to dispose of these objections.

5. Learned counsel for the petitioners contended that although the Panchayats were constituted under the 1962 Act, but they were continued till the ordinance which repealed the Act of 1962 and it was contended that the Collector issued a notice under Section 120 treating it to be a Panchayat continuing under this Act and, therefore, now it could not be contended that it was not a notice under Section 120 and the Collector was not exercising jurisdiction under that provision.

6. Learned Government Advocate, on the other hand, contended that a Division Bench of this Court in Misc. Petition No. 1187/83 decided On 4-5-1983. held that the constitution of Panchayats under the Act of 1981 is only a fresh constitution of Panchayats under Section 4 and no procedure as contemplated under Section 120 is necessary and it was contended that although in this Division Bench judgment, it has been observed that the saving under Section 10(b) of the General Clauses Act would allow the Panchayat to continue and it was to continue till the new Panchayats were constituted under the new Act and the new Panchayats were constituted under Section 4. But according to the learned Government Advocate, Section 10(b) could not be read to mean that the Panchayats constituted under the 1962 Act were saved by this provision and the result was that when the Ordinance was repealed by the 1981 Act, the Panchayats ceased to exist and what is done thereafter is only a constitution of Panchayats under Section 4. It was also contended that Section 2 (v) of the M.P. Pancha-yat Adhiniyam. 1981 defines the term 'Gram Panchayat' and that means a Gram Panchayat established under Subsection (1) of Section 4 and it is only such Gram Panchayat which is referred to in Section 120 and, therefore, Section 120 will only be applicable ha a case where the Gram Panchayat which is constituted under Section 4 of 1981 Act is to be reconstituted or its area is to be altered or its headquarters are to be changed and in this view of the matter, it was contended that Section 120 will not be applicable.

7. Learned counsel for the petitioners contended that if the Collector chose to proceed under Section 120, it could not be contended that he was not acting under Section 120 but acting under Section 4 and reliance was placed on Mohinder Singh v. Chief Election Commr., AIR 1978 SC 851. In Mohinder Singh's case (supra) it was observed (Para 8).

'...... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observation of Bose J. in Gordhandas Bhanji, AIR 1952 SC 16 at p. 18.'

What has been observed is that the order passed by a statutory authority could only be adjudged on the basis of reasons stated in the order. So far as the case in hand is concerned, it is not the question as to whether the order passed by the Collector refixing the boundaries of the Panchayat is to be adjudged on the basis of reasons either stated, in the order or otherwise. The question that has been raised by the learned Government Advocate is that although the Collector in his notification mentioned Section 120 but in fact, he could not exercise powers under Section 120 of the M.P. Panchayat Adhiniyam, 1981 as there was no panchayat in existence constituted under Section 4 (1) of this Act and, therefore, the order passed by the Collector could only be said to be an order under Section 4 (1) and not under Section 120. It is, therefore, plain that if the order of the Collector is an order which could only be justified under Section 4 (1), it could not be contended that it was an order under Section 120 even though the Collector it appears has mentioned Section 120 in his notice for redistribution of the area of the Panchayats.

8. It is not disputed that these Panchayats were constituted under the 1962 Act and it is also not disputed that under the Ordinance i.e. M.P. Panchayat Ordinance No. 6 of 1981, Section 121 is the section for repeal and savings and Sub-clause (2) (a) of this saved the Gram Sabha and the Gram-Panchayat constituted under the old Act. It is also not disputed that Section 9 of the M.P. Panchayat Sanshodhan Ordinance No. 8 of 1981, provided for dissolution of certain Panchayats and it appears that under this Section 9 of this Ordinance, the nominated Panchayats stood dissolved but it is plain that when M.P. Panchayat Adhiniyam 1981 was enacted there is no saving clause and, therefore, there is no provision to continue the Panchayats which were constituted under the Act of 1981 (1962?)

9. In the Division Bench decision relied on by the learned Government Advocate, it has been observed, 'Even so, in our opinion similar saving must be deemed to continue under Section 10(b) of the General Clauses Act which preserves the previous operation of the Act which is repealed.' But in our opinion, it is not necessary to go into the question as to whether Section 10(b) of the General Clauses Act could be interpreted to mean that the Panchayats constituted under the 1962 Act were continued. It has been further observed in this decision that even if this continuance is presumed, it will only be up to a time till the Panchayats under Section 4 of the 1981 Act are constituted But the language of Section 120 of M.P. Panchayat Act, 1981 indicates:--

'120. Change of headquarter of Gram Panchayat, division, amalgamation and alteration of Gram Panchayat area. -

(1) The State Government or the prescribed authority may by an order change headquarter of a Gram Panchayat or alter the limits of gram panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein or amalgamate two or more gram panchayat areas and constitute one gram panchayat area in their place or split up a gram panchayat area and constitute two or more gram panchayat areas in its place :

Provided that no order under this section shall be made unless a proposal in this behalf is published for inviting suggestions and objections in such manner as may be prescribed and objections are considered. (2) On the issuance of the order under Sub-section (1) of the State Government or the prescribed authority shall pass such consequential orders as may be necessary.

This section talks of Gram Panchayat and the term 'Gram Panchayat' has been defined in Section 2 (v) which reader- ' 'Gram Panchayat' means a Gram Panchayat established under Sub-section (1) of Section 4.'

10. It is, therefore, clear that Section 120 comes into operation only when a Gram Panchayat constituted under Section 4 is in existence and it is desired to alter its boundaries or to change its headquarter. It is therefore, clear that when the Collector issued the impugned notification and passed the impugned order, there was no Gram Panchayat constituted, under Section 4 (1) and, therefore, there could not be any action under Section 120 and therefore, when the Collector issued the notice and passed the impugned order, it could not be said that he was exercising jurisdiction under Section 120 of the M.P. Panchayat Adhiniyam, 1981. It is therefore clear that the challenge to this order not being in accordance with law, is of no avail. It was contended by the learned Government Advocate that at best, it could only be said to be an order under Section 4 (1) which contemplates the constitution of Panchayats and it is not in dispute that if the Collector was constituting a Panchayat under Section 4 (1), it was not necessary for him to invite objections and to decide them. In this view of the matter, therefore, the contention advanced by the learned counsel for the petitioners could not be accepted.

11. We, therefore, see no reason to entertain this petition. It is, therefore, dismissed. In the circumstances of the case, parties are directed to bear their own costs. The security amount deposited shall be refunded to the petitioners.


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