Chandrasinh Manibhai Makwana and Others vs State of Gujarat and Others

Rajesh H. Shukla, J.—The present petition has been filed by the petitioners under Articles 14, 21 and 226 of the Constitution of India, under the provisions of the Gujarat Panchayats Act, 1993 as well as under the provisions of the Gujarat Panchayats Procedure Rules, 1997 for the prayers inter alia that the impugned notification dated 19.11.2011 may be quashed and set aside on the grounds set out in the petition. Heard learned counsel, Shri P.J. Kanabar for the petitioners and learned AGP Shri Manan Mehta for the respondents.

Learned counsel, Shri Kanabar referred to the papers and submitted that there is no effective consultation as required. For that purpose, he referred to Section 7 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Panchayat Act"). He submitted that the consultation has to be meaningful and should not be mere formality. He therefore submitted that the resolution of 2003 passed by the Kanthariya Gram Panchayat is dehors the relevant provisions of law and the Rules. He submitted that as stated in detail, till 1998 Anklav was part of Borsad taluka of Anand District, however on bifurcation, Anklav and Borsad talukas have come into existence and village Kanthariya prior to 1998 was part of Borsad taluka which has now become a part of Anklav taluka. He submitted that Ranchhodpura is near to village Kanthariya and the notification which has been issued regarding the bifurcation of Kantharya Village Panchayat without effective consultation as required u/s 7 of the Panchayat Act is therefore arbitrary and illegal. He referred to the papers and submitted that as per voters'' list of Kanthariya Village Panchayat and Ranchhodpura Village Panchayat, wards are constituted and, therefore, when the impugned resolution/notification passed by the State is without considering relevant aspects and, therefore, it may be quashed and set aside. He also submitted that the respondents have given undue weightage to the recommendation of one Dipakbhai Ravjibhai, the Member of Anand District Panchayat with political reasons which has led to this resolution and, therefore, is arbitrary and illegal. In support of his submission, he referred to and relied upon the judgment of this High Court in case of Mohanbhai Haribhai Desai Vs. State of Gujarat, and emphasized the observations and also judgment of Full Bench in case of Pruthvisinh Amarsinh Chauhan Vs. K.D. Rawat or his Successor in Office Secretary, He emphasized that as observed in this judgment, the requirement of consultation should be effective and real, which is not followed. He submitted that as it follows the civil consequences as observed in the judgment in case of Nathalal M. Patel v. State of Gujarat & Ors., reported in 1993 (2) G.L.H. 91, views have to be ascertained and since the procedure u/s 7 of the Panchayat Act has not been followed properly, the notification may be quashed and set aside.

Learned AGP Shri Mehta however referred to the background of the facts and submitted that Article 243 of the Constitution of India provides for such exercise of powers read with provisions of the Panchayat Act. He pointedly referred to the affidavit-in-reply and submitted that at the relevant time, the concerned Taluka Panchayat was Borsad and the recommendation from the Borsad Taluka Panchayat was taken into consideration. He submitted that there was an opinion for the division of the Gram Panchayat as per the unanimous resolution of Borsad Taluka Panchayat produced with the affidavit-in-reply. He emphasized that there was a recommendation that Kanthariya may be separated from Ranchhodpura with separate gram panchayat and based on such recommendation, further steps have been taken. He submitted that Kanthariya Gram Panchayat has also passed Resolution No. 103 dated 12.11.2010. He pointedly referred to the Annexures produced with the affidavit and submitted that the District Panchayat has considered this and has referred to in Annexure-III that the Anklav Taluka was separated and Kanthariya Gram Panchayat has been separated as stated above resulting in two villages viz., Kanthariya and Ranchhodpura and both have been granted gram panchayats. He therefore submitted that the decision has been taken after considering positive opinion of the Gram Panchayat, Taluka Panchayat and District Panchayat at every level. He submitted that Borsad Taluka Panchayat included Kanthariya and Ranchhodpura villages and, therefore, passed resolution in favour of the division of the Gram Panchayat, which has been taken after considering at every level and the District Development Officer as well as the Government has granted approval. He therefore submitted that the present petition may not be entertained.

In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.

As it appears from the papers including the contentions raised in the petition and the affidavit-in-reply, the petitioner is challenging the Government Resolution at Annexure-D dated 19.11.2011 with regard to Kanthariya and Ranchhodpura. However, main plank of submission is with regard to the provisions of Section 7 of the Panchayat Act and the consultation as observed in the judgment of the Full Bench in case of Pruthvisinh Amarsinh Chauhan (supra), wherein it has been observed that "consultation has to be effective though it is not mandatory but directory". In the facts of the case as stated above, it cannot be said that there was no consultation as provided u/s 7 of the Panchayat Act. In fact due to circumstances, there was a division of the Anklav taluka and Borsad taluka and due to situation created thereafter, both village Kanthariya and village Ranchhodpura, which were forming part of same Taluka Panchayat, are sought to be separated with separate Gram Panchayat. The basic idea is with regard to decentralization of the power and function at the local level for which such local bodies are created. As could be seen from the record that the Resolution No. 103 of Kanthariya Gram Panchayat produced with affidavit-in-reply has explained the reasons for such bifurcation. In fact it was earlier recommended when there was Borsad Taluka Panchayat. Therefore considering the situation at the local level, the decision has been taken which cannot be said to be illegal. It is required to be mentioned that Section 7 of the Panchayat Act provides for exercise of such power and, therefore, it provides for such bifurcation. In other words, the challenge is not with regard to the power or the authority but the manner in which it is exercised is sought to be questioned. As discussed above, the decision is taken after due deliberation at different levels, which cannot be faulted or said to be illegal. In fact, the judgment of this High Court in case of Mohanbhai Haribhai Desai (supra), which has been referred to by learned counsel, Shri Kanabar also provides that "It would always depend on the facts and circumstances of each case as to how much weightage should be given to a particular factor vis-a-vis another factor but the wishes of the village people". Therefore merely because some people like the petitioners have a different view by itself would not be a ground to entertain the present petition much less when it has not been shown about violation of any statutory provisions and also the constitutional provision. The petition is said to have been filed under Articles 14 and 21 of the Constitution of India without any reference to very basis as to how same could have any application. All that is complained is compliance with Section 7 of the Panchayat Act and the effective consultation, which has been as discussed above undertaken. Therefore, it cannot be said that the impugned resolution/notification is illegal. The present petition therefore cannot be entertained and deserves to be dismissed. Accordingly, the present petition stands dismissed. Rule is discharged. No order as to costs.