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Judgment
Akil Kureshi, J.
1.This appeal is directed against the order dated 18.2.09 of the learned single Judge in Special Civil Application No. 1399 of 2009.
Briefly stated, facts of the case are as follows:
2.1 Appellant was the original petitioner in Special Civil Application No. 1399 of 2009. The petition has been preferred by Lalpur Gram Panchayat through the Sarpanch challenging the order dated 31st December 2008 passed by the State Government bifurcating Lalpur Gram Panchayat into two different Gram Panchayats, viz. Lalpur and Laxmipura.
2.2 Vide letter dated 6.8.07, Panchayat, Rural Housing and Rural Development Department called for the response of the newly elected Panchayat of Lalpur village regarding the proposal for bifurcation. The Panchayat held its meeting on 17.8.07 and by majority of 5 versus 3 opposed the bifurcation of the village.
2.3 On 1.7.08, the Deputy Secretary to the Panchayat, Rural Housing and Rural Development Department conveyed to the Development Commissioner that proposal for bifurcation of Lalpur Group Gram Panchayat is rejected since the requisite criteria are not followed. Without any further consultation with the petitioner-Panchayat, once again the Government passed order on 31st December 2008 bifurcating the Lalpur Gram Panchayat which order came to be challenged in the Special Civil Application.
2.4 The Special Civil Application came to be dismissed by the learned single Judge, upon which the original petitioner is in appeal before us.
The petitioner had mainly contended in the petition that the village Panchayat was consulted regarding proposal for bifurcation and the Panchayat had opposed such bifurcation. Proposal for bifurcation was rejected by the Government. Thereafter, fresh order came to be passed on 31st December 2008 bifurcating the Panchayat into two parts. Thus the decision was without following the requirements of Section 7 of the Gujarat Panchayats Act. Bifurcation is sought to be opposed on other grounds of advisability and requirement of such bifurcation also.
State has filed affidavit in the present Letters Patent Appeal and mainly contended that the decision for bifurcation of the Gram Panchayat was a policy decision. The same was taken on the request made by the people of Laxmipura area. That the area is situated at a distance 2.5 k.m. from Lalpur village which causes difficulties. Though the Village Panchayat opposed the proposal for bifurcation, the Taluka Panchayat had recommended bifurcation. It is further pointed out that earlier also, Lalpur Gram Panchayat had by passing resolution dated 23.12.03 opposed the bifurcation. In the fresh consideration also, the Gram Panchayat by resolution dated 17.8.07 opposed bifurcation. It is stated that though initially the proposal was not considered, thereafter considering the demand and need of Laxmipura village, fresh decision was taken in public interest.
Learned single Judge dismissed the petition observing that the earlier proposal was not accepted by the State Government only because the requisite criteria were not followed. At that time, village Panchayat was already consulted and since there was no fresh material before the Government, fresh consultation was not necessary. It was further observed that all members of Laximpura village had favoured bifurcation.
Learned advocate Ms. Mandavia appearing for the appellant submitted that the decision of the Government was wholly illegal. Earlier, the proposal for bifurcation was rejected since the criteria were not followed. Thereafter, fresh decision was taken on 31.12.08 without consultation with the Panchayat and without fulfillment of necessary criteria.
6.1 She produced on record a copy of the Government resolution dated 25.5.2000 in which it is provided, inter alia, that for bifurcation of village Panchayat, distance between two village must be minimum 2 k.ms. However, if per capita income of village is more than Rs. 25/- in such a case, relaxation of 1 k.m. can be granted. She submitted that distance between the two villages is 1.2 k.m. and since the income criterion was not fulfilled, the Government erred in ordering bifurcation.
6.2 Reliance was placed on a decision of Division Bench of this Court in the case of Nathabhai M. Patel Vs. State of Gujarat and Others, wherein it is observed that consultation with local authority regarding inclusion or exclusion of any local area should be meaningful and not sham or unreal. Reliance is also placed on a Full Bench decision of this Court in the case of P.A. Chauhan v. K.D. Rawat 2004(2) GLH 640 wherein also the Full Bench observed that consultation u/s 7 of the Panchayats Act should not be a mere formality, but must be genuine and meaningful.
On the other hand, learned AGP, Shri Devang Vyas opposed the appeal and submitted that the Government has taken a policy decision in the larger public interest which calls for no interference. He further submitted that the Village Panchayat was already consulted. However, their opposition need not bind the Government. In any case, after rejection of the proposal, there was no fresh material taken into consideration by the Government and therefore fresh consultation before passing the impugned order dated 31st December 2008 was not necessary.
8.1 He relied on the decisions of the learned single Judge of this Court in the case of Paroya Group Gam Panchayat and Others Vs. State of Gujarat and Others, and in the case of Unchidhanal Group Gram Panchayat and Others Vs. State of Gujarat and Others,
We had, in addition to hearing the learned advocates appearing for the parties, summoned and perused the original file pertaining to bifurcation.
From the record, it emerges that the proposal for bifurcation was placed before the Gram Panchayat way back in the year 2003. The proposal was opposed and resolution to that effect was also passed. Once again, pursuant to communication dated 6.8.07, from the Government to the Development Commissioner, the Panchayat was consulted with respect to the proposal for bifurcation. The Panchayat in its meeting dated 17.8.07 once again passed resolution opposing bifurcation. Presumably after taking into consideration all factors including the opposition of the Panchayat, the Government decided on 1.7.08 not to bifurcate the Group Gram Panchayat. The communication dated 1.7.08 clearly records that the proposal is rejected since the requisite criteria were not satisfied. Without any further consultation with the Panchayat, the Government took fresh decision on 31.12.08 ordering bifurcation of the Group Gram Panchayat.
Nature of consultation required u/s 7 of the Panchayats Act before deciding bifurcation of Gram Panchayat has been elaborately considered by the Full Bench in the case of P.A.Chauhan (supra). In para 16, it is observed and held as follows:
In view of the above discussion, the points for our determination are answered as under:
the term ''Consultation'' has to be taken as an effective and meaningful and genuine consultation and not a formality.
There is no conflict between the ratio laid down in the case of Nathabhai (supra) and Likhi Group Gram Panchayat (supra). The conclusions are based on fact of each case, but there is no conflict in the ratio.
If proposal has culminated into a decision, fresh exercise of consultation would be necessary before taking a fresh decision. We may reiterate that the consultation is not mandatory and every departure therefrom may not render it void or ineffective, but, the provisions of law has to be saluted in its spirit and exercise of consultation should be undertaken.
Justice J.N. Bhatt, as he then was, in a separate concurring order, highlighting the importance of local self-governance and the constitutional amendments in this respect observed that direct adherence and observance of the expression consultation should always be insisted and had to be the hallmark of growth and development of the concept of Panchayat which is in the higher public interest. It was further observed:
...in the event of failure or departure, as it ipso facto may not constitute invalidity of the action. It may, also be remembered that the legislature must have provided, for good reasons, that before effecting reconstitution of a village or a change in the administrative set-up for a Panchayat, the concerned Panchayat ought to be consulted and departure from non-compliance in the light of the constitutional status to Panchayat Raj Institute, ought to be viewed, very seriously and, therefore, by now the said provision has to be taken almost like a mandatory prescription though the expression employed in Section 7(2) of the Act is may.
As already noted, on two separate occasions, the petitioner Panchayat had by passing resolutions opposed bifurcation. The entire issue was thus closed when the Government finally decided to reject the proposal and conveyed to the Development Commissioner under communication dated 1.7.08. Even thereafter if fresh proposal was mooted on representations of the people of Laxmipura or for any other reason, fresh consultation was necessary as observed by the Full Bench. This was admittedly, not done. Sole ground urged in defence was that no fresh material was taken into consideration for coming to a fresh decision. The question, therefore, immediately, came to our mind was that if there was no fresh material, what was the reason for change of opinion on the part of the Government. For this purpose, we had called for the files and minutely perused the same. Earlier order of rejection was on the ground that necessary criteria were not followed. From the files, it clearly emerges that though representations were made from some quarters that village Laxmipura is situated at a distance of 2.5 kms. from Lalpur, the certificate dated 28.10.04 issued by the Deputy Executive Engineer clearly states that the distance between the areas is 1200 meters. It was perhaps on this ground that the Government earlier opined that necessary criteria are not fulfilled. The Government resolution, as already noted, requires that the distance between two villages should be more than 2 k.ms. to permit bifurcation. This condition can be relaxed upto 1 k.m. if it is found that per capita income of the village is more than 25 rupees. From the record it again emerges that even this requirement was not fulfilled as the income is stated to be Rs. 16.25 per head.
From the original file, we find that a submission was placed by the Office of the Hon''ble Minister suggesting that earlier on 19.6.08 decision has been taken not to bifurcate the village as the distance between two villages is 1.2 k.m. As per rules, distance should be at least 2 k.m. However, if income per head is in excess of Rs. 25/-, distance can be relaxed upto 1 k.m. In the present case, however, the income criteria is not maintained. The Gram Panchayat has also opposed the bifurcation. However, people of Laxmipura Panchayat have represented to the Hon''ble Minister on 30.6.08 and requested for bifurcation. On this submission, noting was made to the effect that the report of the MLA suggests that the distance between two areas is 2.5 k.ms. whereas the reports suggests that distance is of 1.2 k.ms. Since daily complaints are received, the difficulties being faced by the village people can be appreciated. Hence as a special case, permission may be granted. We also find that letters were written by some MLAs and Ministers urging bifurcation of the Group Gram Panchayat. We may not go in detail in these aspects of the matter since no case of personal malafides have been made out nor are we building any such impression. However, suffice it to say that though in a democratic process, it may be open for the concerned authority to rely on representations received from various quarters, the process of consideration must at all times be transparent and reasonable. In the present case, the entire situation that emerges is that once having decided to reject the proposal for bifurcation on the ground that requisite criteria are not satisfied, without there being any further material on record, the entire decision was reversed and order for bifurcation was passed. At two earlier stages, the Gram Panchayat was consulted and it stoutly opposed the proposal. Fresh decision was taken by the Government without any fresh consultation. The decision was also opposed to the Government''s own resolution. Indisputably, distance between two sub-villages is less than 2 k.ms. and per capita income is less than Rs. 25/-. It may be that the resolution is in the form of executive instructions and for valid reasons it may be open for the Government to deviate from the requirement thereof. However, in the present case, we do not find any such reasons on the file. Particularly when on the very same set of facts, the Government had decided to drop the proposal for bifurcation on the strength of the opposition by the Village Panchayat, fresh decision contrary to the previous one without any further material on record and without fresh consultation to the Panchayat could not have been taken.
The observations of the learned single Judge that representatives from Laxmipura area had voted in favour of bifurcation and that therefore consultation with the Panchayat was not necessary cannot be approved. Village Panchayat, as an elected body, acts as per the wish of the majority of the representatives of the people by passing resolutions. It is ultimately the resolution which becomes the decision of the Panchayat and not the individual vote of the concerned member/members.
We are informed that fresh election for the newly constituted Gram Panchayats of Lalpur and Laxmipura have not yet been held.
In view of the above discussion, the order of the learned single Judge is set aside. The notification of the Government dated 31st December 2008 bifurcating the Group Gram Panchayat is also quashed and set aside. The appeal is allowed accordingly. Consequently, the Civil Application is disposed of. This order will not, however, preclude the State Government from taking a fresh decision in accordance with law.