1. Petitioners Rajinder Singh was elected Sarpanch of Gram Panchayat, Gurgaon, and was later on elected as one of the Primary Members of the Panchayat Samiti, Gurgaon. The Primary Members of the Panchayat Samiti were summoned into a meeting for January 19, 1985 for co-opting two women members and four scheduled caste members to the Samiti. On January 9, 1985 a notification was said to have been issued by the Government whereby some area of the Gram Sabha, Gurgaon, was included in the Municipal Committee, Gurgaon. On the strength of the said notification Deputy Commissioner, Gurgaon, issued a letter to the Block Development and Panchayat Officer, Gurgaon, on January, 10, 1985, informing him that petitioners Rajinder Singh cannot take part in Samiti-meeting scheduled for January 19, 1985 because vide notification dated January 9, 1985 the area of the Gram Panchayat, Gurgaon, stood included in the Municipal Committee, Gurgaon. The petitioners filed the present writ petition No. 255 of 1985 challenging the aforesaid direction of the Deputy Commissioner, Gurgaon, inter alia, asserting that the notification dated January 9, 1985 had not been published in the Haryana Government Gazette on January 9, 1985, and therefore, it did not take effect and hence no area of Gram Sabha, Gurgaon, stood included in the Municipal Committee, Gurgaon.
2. In the reply to the said petition filed by the Block Development and Panchayat Officer it was, inter alia, asserted that in fact the notification had been published on January 9, 1985. In that reply it was also further asserted that the whole of the Sabha area of Gram Panchayat, Gurgaon, had been included in the Municipal Committee, Gurgaon. The said notification, however, was in fact published in the Government Gazette only on February 19, 1985. When it was brought to the notice of the Court that a wrong assertion that the notification had been published on January 9, 1985 was made in the written statement when in fact the Government published the notification on February 19, 1985, a suo motu contempt notice was issued to the Block Development and Panchayat Officer. However, the petition was later on dismissed as infructuous vide order dated February 25, 1985 because of the fact that the notification having been published of February 19, 1985 allegedly including the entire Sabha area of Gram Panchayat, Gurgaon, in the Municipal Committee, Gurgaon, as a result whereof the Gram Panchayat stood dissolved and the petitioners consequently ceased to be a member of the Panchayat Samiti.
3. The petitioners has moved the present application Civil Misc. No. 670 of 1985 in which prayer is made to recall the order dated February 25. 1985, dismissing the writ petition as infructuous and for allowing the petition. It is asserted in this application that in fact even the assertion in the affidavit of the Block Development and Panchayat Officer that the entire Sabha area had been included in the Municipal Committee, Gurgaon, was false. and that in fact the notification published on February 19, 1985, leaves out part of the Sabha area. Reply to this assertion is made in affidavit filed on May 16, 1985. The relevant portion of para 7 whereof reads as under.-
'......... It is correct that some abadi area adjoined to Mata Masani of village Gurgaon has been left out and the part of the known as Rajindra Park has been left out of the Municipal Committee limit but it is pertinent to mention here that more than 90 per cent of the inhabited area of village Gurgaon shown in between Red and Yellow lines in the map annexed hereto as Annexure R-1 has been included in the Municipal limit of Gurgaon'.
4. Relevant provisions of Section 4(3) of the Punjab Gram Panchayat Act, 1953 (hereinafter referred to as 'the Act') envisaging inclusion of the Sabha area into the Municipal; Committee and spelling out the sequences is in the following terms:--
'If the whole of the Sabha area is included in a Municipality, Cantonment or Notified Area u/s. 258 of the Haryana Municipal Act. 1973, the Gram Panchayat shall cease to exist and its assets and liabilities shall be disposed of in the manner prescribed'.
5. From a perusal of para 7 of the written statement reproduced above it is clear that approximately only 90 per cent of the Sabha area of the Gram Panchayat has been included in the Municipal Committee. Gurgaon, whereas perusal of S. 4(3) of the Act would show that the Gram Panchayat shall cease to exist only when whole of the Gram Sabha area is included in the Municipal Committee.
6. In case of Gram Panchayat Nasrali v. State of Punjab, 1984 Pun LJ 113, the provisions of S. 4(3) of the Act fell for consideration, which provisions are in pari materia with sub-section(3) of S. 4 of the Act as applicable to Haryana. It was held by the learned Judge that the condition precedent for the application of sub-section(3) of S. 4 of the Act was the inclusion of the whole of the Sabha area within the Municipal limits and that by partial inclusion of Sabha area within Municipal limits, the Gram Sabha and Gram Panchayat would not cease to be juristic persons and thus the property vesting in the Gram Panchayat, would continue to vest in the Gram Panchayat and not in the Municipal Committee. The properties remain the properties of the Gram Panchayat which owned and could not vest in the Municipal Committee.
7. With respect we endorse the aforesaid view. In view of the above the Gram Panchayat, Gurgaon. continues to exist as such and the petitioners continues to be its Sarpanch and also an elected Primary Member of the Panchayat Samiti, Gurgaon, and thus entitled to take part in all the proceedings.
8. In view of the above we allow the application and recall the order dated February 25, 1985 and allow the writ petition and declare that the petitioners continues to be the Member of the Panchayat Samiti. Gurgaon, with all attendant rights. The petitioners shall have Rs. 500/- by way of costs to be paid by the State.
9. Petition allowed.