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Som Krishan and ors. Vs. the State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 158 of 1978
Judge
Reported inAIR1979HP35
ActsHimachal Pradesh Panchayati Raj Act, 1968 - Section 4, 4(1), 5 and 5(1); ;Constitution of India - Articles 14, 40 and 245
AppellantSom Krishan and ors.
RespondentThe State of Himachal Pradesh and ors.
Appellant Advocate O.P. Thakur and; Kamlesh Sharma, Advs.
Respondent Advocate M.G. Chitkara, Adv. General and; H.M. Sharma, Adv.
Cases ReferredDanda Annj Gram Sabha v. State of Himachal Pradesh
Excerpt:
.....raj act, 1968 - respondent issued notification under section 4 and 5 for bifurcating existing gram sabha into two - later issued notification canceling earlier order of bifurcation - petitioner challenged vires of section 4 contending that it delegates uncontrolled, unrestricted and unguided power to state government for purpose of formation of sabha as well as exclusion and inclusion of any area in and out of sabha area - section 4 contains sufficient guidelines not only for purpose of constitution sabha but also for taking decisions regarding exclusion and inclusion of any area from and into an already existing sabha area - guidelines sufficient for government to come to final judgment as to whether particular area would be included in gram sabha or not - if government intended to..........of tehsil kursog situated in mandi district of this state. they previously belonged to chanyana gram sabha which was constituted in the year 1972. this sabha consisted of 12 villages. the petitioners, however, wanted a separate sabha for 7 of these 12 villages. these seven villages for which they wanted a separate sabha are sheglinal, badyog, d. p. f. alyas, kalangar, khadkan, kot and sawindhar. it appears that they could persuade the government to bifurcate the chanyana gram sabha into two and to establish a separate sabha for the above referred seven villages known as sawindhar gram sabha. the remaining five villages were to form chanayana gram sabha. the government accordingly issued notification dated 11th may, 1978 as found at annexure p-14. by this notification the original.....
Judgment:

T.U. Mehta, C.J.

1. In this writ application show cause notice was issued to the respondents and reply has been filed; the rejoinder has also been filed. The petitioners are the residents of Tehsil Kursog situated in Mandi District of this State. They previously belonged to Chanyana Gram Sabha which was constituted in the year 1972. This Sabha consisted of 12 villages. The petitioners, however, wanted a separate Sabha for 7 of these 12 villages. These seven villages for which they wanted a separate Sabha are Sheglinal, Badyog, D. P. F. Alyas, Kalangar, Khadkan, Kot and Sawindhar. It appears that they could persuade the Government to bifurcate the Chanyana Gram Sabha into two and to establish a separate Sabha for the above referred seven villages known as Sawindhar Gram Sabha. The remaining five villages were to form Chanayana Gram Sabha. The Government accordingly issued notification dated 11th May, 1978 as found at Annexure P-14. By this notification the original Chanyana Gram Sabha was bifurcated with the result that Chanyana Gram Sabha came to have five villages in its area, and Sawindhar Gram Sabha, to which the petitioners belong, came to have seven villages in its area. This notification has been issued by the Government under Sections 4 and 5 of the Himachal Pradesh Panchayati Raj Act, 1968 (Act 19 of 1970) (hereinafter referred to as the 'Act').

2. About two months thereafter, i. e. on 5th July, 1978, the Government seems to have changed its mind and issued another notification by virtue of which some other Gram Sabha areas were reorganised. We are not concerned with the other reorganised Gram Sabhas. But so far as Chanyana Gram Sabha was concerned, this notification stated as under:

'And the Governor is further pleased to cancel the notification of even number dated 11th May, 1978 of this Department vide which Gram Sabha Chanyana was bifurcated'.

A copy of this notification is found at Annexure P-16. The effect of this notification is that the bifurcation of Chanyana Gram Sabha made on 11-5-1978 stood cancelled, but at the same time, Sawindhar Gram Sabha, which was constituted and established under the previous notification dated 11th May, 1978, was rendered without any Sabha area though it has not been specifically abolished.

3. Shri Thakur who appears on behalf of the petitioners has challenged the vires of Section 4 of the Himachal Pradesh Panchayati Raj Act, 1968 contending that it delegates uncontrolled, unrestricted and unguided powers to the State Government for the purpose of formation of a Sabha area as well as for the inclusion and the exclusion of any area in and out of a Sabha area. In order to appreciate this contention it would be necessary to quote Section 4 which is in the following terms:

'The Government may, by notification, declare any village or group of contiguous villages with a population of not less than five hundred and not more than five thousand to constitute one or more Sabha areas:

Provided that neither the whole nor any part of a cantonment, municipality of any class, or a notified area under Section 241 of the Punjab Municipal Act, 1911, as in force in Himachal Pradesh, or a small town committee shall be included in a Sabha area:

Provided further that the Government may, in any particular case, relax these limits.

(2) The Government may, by notification, include any area in, or exclude any area from the Sabha area.

(3) If the whole of the Sabha area is included in a municipality, cantonment, notified area under Section 241 of the Punjab Municipal Act, 1911, as applicable to Himachal Pradesh, or small town committee, the Sabha shall cease to exist and its assets and liabilities shall be disposed of in the manner prescribed.'

It was pointed out that by virtue of Sub-section (2) of Section 4 quoted above, the Government is empowered by the legislature to act arbitrarily to include and to exclude any area in and out of a Sabha area and, therefore, this provision of Section 4 is invalid. We find ourselves unable to accept this argument, because on scrutiny of the provisions contained in Section 4 itself, we find that it contains sufficient guidelines not only for the purpose of constituting a Sabha area but als6 for the purpose of taking decision as regards exclusion and inclusion of any area from and into an already exising Sabha area. In this connection, if a reference is made to Sub-section (1) of Section 4 it is found that no Sabha area can be constituted unless any village or group of contiguous villages has the population of not less than five hundred and not more than five thousand. There are thus the guidelines about the contiguity of the area concerned as well as about its population. The section, therefore, provides these two guidelines. But guidelines for the exercise of a particular power need not always find their place in the concerned provision which confers a particular authority. For the purpose of seeking the guidelines the Court can look into the whole scheme of the Act including its long title and preamble. Now, if that is done, it is evident that the main purpose of establishing a Gram Sabha is primarily to carry out the Directive principle contained in Article 40 of the Constitution. Panchayat is the smallest cell of a democratic polity which seeks to educate people to manage their own affairs themselves in a democratic manner. Therefore, one basic principle which would guide the Government in constituting a particular area into a Gram Sabha area is to see whether by that constitution the people residing in the area would be able to manage their panchayat affairs efficiently, properly and in a democratic manner. Chapter IV of the Act makes provisions about the conduct of business, duties, functions and powers of the Panchayat established under the Act. Section 18 which is contained in this Chapter speaks about the administrative duties of a Gram Panchayat. Therefore, at the time of constituting a Sabha area, the Government has to see whether the Sabha functioning in this Sabha area would be able to discharge its duties and functions as described in Chap. IV, properly or not. In our opinion, these guidelines are sufficient guidelines, because, the factual data on which the ultimate decision complying with these guidelines. is required to be taken would be only of the Government, and, therefore, it is for the Government to come to a final judgment as to whether a particular area should constitute a Sabha area, and also as to whether a particular area should be inclulded or excluded into or from a particular Sabha area. We, therefore, dp not agree with the learned Advocate of the petitioners that the powers which are to be exercised by the Government under Section 4 of the Act are arbitrary and without any guidelines.

4. In this connection reliance was placed on an unreported decision of the Punjab and Haryana High Court given in L.P.A. No. 348 of 1975 of that Court on 23-8-1978 : (AIR 1979 Punj & Har 46). The Court in that case considered the vires of Section 10 of the Punjab Municipal Act which empowers the State Government to withdraw by a notification from the operation of the Act any area of any municipality constituted thereunder. We were taken through the reasoning given in that decision, and we find that the decision is based on the fact that according to Section 4 oi the Punjab Municipal Act a detailed procedure is prescribed for constituting a municipality. Under Section 5 of that Act provisions are made for altering the limits of a municipality, and under Section 7 provisions have been made for the exclusion of the local area from the municipality. Considering these provisions, the High Court of Punjab and Haryana came to the conclusion that if for excluding a particular area from a municipal area detailed-procedure is required, some procedure would 'in ordinary course be required for taking out the whole area from the Municipal Act, and since that is not done, the operation of Section 10, as read with the intention of the legislature with regard to the previously mentioned sections of that Act, amounts to the conferment of unguided, unchannelled and excessive delegation in favour of the State Government.

5. So far as Section 4 of the Himachal Pradesh Panchayati Raj Act is concerned, this decision would be of no help, because, as stated above, Section 4 itself contains some guidelines and also because the Himachal Pradesh Panchayati Raj Act does not contain any provisions which can be construed as similar to Sections 4, 5 and 7 of the Punjab Municipal Act.

6. It was then contended that the impugned notification dated 5th July, 1978 offends Article 14 of the Constitution. Article 14 of the Constitution enshrines in it the doctrine of equality. We fail to understand how by abolishing the bifurcation of Chanyana Gram Sabha any doctrine of equality can be said to have been infringed. No legal right of the petitioners is infringed and all the citizens residing in Chanyana Gram Sabha area are to be treated equally even after the abolition of the bifurcation. This argument is, therefore, devoid of any force.

7. It was lastly contended that at any rate as a result of the bifurcation made by the notification dated 11th May, 1978, Sawindhar Gram Sabha had come into legal existence as a corporate body. This Sawindhar Gram Sabha is not abolished by the impugned notification. What the impugned notification dated 5th July, 1978 seeks to do is to cancel the previous notification as regards bifurcation of Chanyana Gram Sabha. Therefore, the net result is that by this notification Sawindhar Gram Sabha is rendered devoid of any Sabha area and, therefore, that part of the impugned notification would be illegal, because there cannot be any Gram Sabha without any Sabha area.

8. We find good deal of force in this contention of the petitioners. The scheme of the Act is to make clear the distinction between a Gram Sabha and Sabha area. This is made clear by Clause (m) of Section 3 (1) of the Act which says that a Gram Sabha or Sabha means a Gram Sabha established under Section 5 of the Act and 'Sabha Area' means an area declared to be Sabha Area under Section 4 of the Act. If a reference is made to Section 4 it would be found that it stipulates the constitution and demarcation of a Sabha area while Section 5 is about the establishment and construction of a Gram Sabha. Section 5 (1) says that the Government may by notification establish Gram Sabha by name in every Sabha area. It is thus apparent that a Gram Sabha cannot exist without a Sabha area. If it does, all the provisions of Chap. IV which refer to the conduct of business, duties, functions and powers of a Gram Pancha-yat and many other provisions of the Act would be rendered nugatory. Under the circumstances, the impugned part of notification dated 5th July, 1978, which i severable from the rest of it, must be declared illegal and void inasmuch as it effect is to render Sawindhar Gram Sabha without any Sabha area.

9. The view which we are taking has been taken by a single Judge of this Court in Danda Annj Gram Sabha v. State of Himachal Pradesh reported in ILR (1973) Him Pra 390. The facts of that case were that by a notification dated 5th August 1972 the Government took away all the villages from Danda Annj Sabha area and included them in Nagheta Sabha area and thereby Danda Annj Gram Sabha ceased to exist. With regard to this position the Court observed as under:

'The result is that the Danda Annj Gram Sabha is left without a Sabha area. There is nothing in the notification to indicate that the Danda Annj Gram Sabha has been abolished. Although the notification purports to have been made under Section 5 (1) also, no order has been made therein affecting the establishment of the Danda Annj Gram Sabha, It is concerned only with Sabha areas. A Gram Sabha is a body corporate having perpetual succession, and continues to exist in law. The mere removal of the Sabha Area in respect of the Gram Sabha does not thereby put an end to the Gram Sabha. Assuming the Government has power to abolish the Danda Annj Gram Sabha, it can only do so by a specific order to that effect. The notification of 5th August, 1972, does not do so. Accordingly, the case is one where the Danda Annj Gram Sabha remains established but there is no Sabha area over which it has jurisdiction. That, in my opinion, is opposed to the necessary intention of the Act. If the Government intended to remove the entire Sabha area from the jurisdiction of the Danda Annj Gram Sabha, it could have done so only by first abolishing the Gram Sabha itself and thereafter putting an end to the constituted Sabha area. The villages comprised in that Sabha area would then be available for inclusion in another Sabha area.''

This decision was a complete guide to the Government but in spite of the existence of this decision the Government seems to have committed the same mistake by issuing the notification dated 5th July, 1978, We, therefore, strike down the latter portion of this notification which refers to the cancellation of the previous notification dated 11th May, 1978 regarding bifurcation of Gram Sabha Chanyana. The rule is made absolute to this extent without any order as to costs.

10. Dasti orders on usual terms.


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