Maheswar Bhatra vs State of Odisha

Vineet Saran, C.J.—The petitioner, who is the resident of Purniguda village under Phupugaon Gram Panchayat has filed this application objecting

to the recommendation made by the District Level Committee on 26.08.2015 recommending for setting up of the Gram Panchayat Headquarter at

Bhalukanadi instead of Tarakonadi.

The brief facts of the case are that in terms of Government Notification dated 1.7.2015 with regard to reconstitution of Gram Panchayat in the

State of Odisha, by report dated 25.07.2015, the Block Level Committee recommended for reconstitution of Gram Panchayat with Headquarters

at Tarakonadi which was forwarded to the Collector. The District Level Committee invited objection/suggestion and accordingly objections were

filed by the residents of the village Bhalukanadi and from the record produced by the Addl. Govt. Advocate, it is clear that on 21.08.2015, the

Collector directed the Block Development Officer, Jharigam ""to submit the field visit report along with proceeding of the Block Level Team by

25.08.2015 basing on petition of the villagers regarding creation of New Gram Panchayat at village Bhalukanadi"".

On the basis of such direction issued by the Collector, a fresh report was submitted by the Block Level Committee on 25.08.2015 proposing for

creation of the Headquarters of Gram Panchayat at Bhalukanadi instead of Tarakonadi. Based on the aforesaid recommendation, on 26.08.2015,

the District Level Committee recommended for creation of Headquarters of new Gram Panchayat at Bhalukanadi. Such matter is pending

consideration before the State Government which is in terms of the notification dated 01.07.2015. Hence, this petition.

Heard Mr. S.K. Dalai, learned counsel for the petitioner as well as learned Addl. Govt. Advocate appearing for the State-opposite parties and

perused the records. We have also heard Mr. Neelakantha Panda, learned counsel for the residents of village Bhalukanadi, who have filed an

intervention application.

Earlier time was granted to learned Addl. Govt. Advocate to obtain instructions and produce the record, which has been produced today. We

have perused the same.

By the Constitution (Seventy-third Amendment) Act, 1992, Part-IX containing Articles 243, 243A to 243O has been inserted. Article 243C

states about Composition of Panchayats. Sub Article (1) of Article 243C states as follows:-

243C. Composition of Panchayats. - (1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with

respect to the composition of Panchayats;

Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be

filled by election shall, so far as practicable, be the same throughout the State.

The State Legislature amended the Orissa Gram Panchayat Act, 1964 in the year 1994 to bring it in tune with the Constitution (Seventy-third

Amendment) Act, 1992. Chapter-II of Gram Panchayat Act, 1964 deals with Grama, Grama Sasan, Grama Sabha and Palli Sabha whereas

Chapter-III deals with Constitution of Gram Panchayats. Section 8 of Chapter-III deals with Constitution and delimitation of wards, which reads

as follows:-

(1) As soon as may be after the constitution of a Gram the Collector shall for the purpose of constitution of the Grama Panchayat determine the

number of wards into which the Grama is to be divided and the extent of each such ward and shall prepare a statement showing the number of

wards and the extent of each ward which shall be published by him in the prescribed manner for the prescribed period inviting objections from the

persons interested to be filed within the said period;

Provided that-

(i) the determination of the number of such wards shall be subject to the provisions in Article 243-C of the Constitution;

(ii) the total number of wards in any Grama shall not be less than eleven and more than twenty five and

(iii) the population of every ward shall, as far as practicable, be equal.

(2) The Collector shall after considering all such objections and making such further inquiry as he may deem necessary cause such alternation as

may be necessary to be made in the statement shall finally publish the statement so as altered in the prescribed manner and thereupon the division

of the Gram into wards as shown in the statement shall become final.

(3) In cases where the population of any Grama according to the relevant figures of a census has exceeded its population, as recorded in the

preceding census, the Collector may re-delimit the wards of the Grama and form new wards wherever necessary and in doing so, he shall follow

the same procedure as is provided in respect of division of wards under Sub-sections (1) and (2).

To give effect to the provisions contained in Section 8 of the Gram Panchayat Act, the State Government issued notification on 01.07.2015 for

reorganisation of the existing Gram Panchayats on the basis of its location, area, population fixing a new Gram Panchayat Headquarters.

Accordingly, Block Level Committees and District Level Committees have been constituted and finally the decision rests on the State Level

Committee with regard to the reconstitution of the Gram Panchayats.

Mr. S.K. Dalai, learned counsel for the petitioner states that the District Level Committee on 26.08.2015 recommended for setting up of the

Gram Panchayat Headquarters at Bhalukanadi instead of Tarakonadi. It is stated that after recommendation is made by the Block Level

Committee, the parties have to be given opportunity to file objections. However, it is contended that when the fresh report of the Block Level

Committee was submitted on 25.08.2015, no opportunity was given to the petitioners and other villager to file any objection as on the very next

dated i.e. 26.08.2015, the recommendation was made by the Collector basing it on the subsequent report and ignoring the earlier report dated

25.07.2015. Consequentially, he seeks for interference of this Court.

Mr. B.P. Pradhan, learned Addl. Govt. Advocate produced the record and stated that opportunity of hearing has been given to the petitioners.

Therefore, this Court should not interfere with the recommendation made by the Collector to the State Government to have the Headquarters at

Bhalukanadi instead of Tarakonadi.

Mr. Neelakanta Panda, learned counsel appearing for the intervenors supported the contentions raised by learned Addl. Govt. Advocate and

urged that since the recommendation made by the Collector is justified in the eye of law, this Court should not interfere with the same at this stage

when the matter is pending before the Government for consideration.

Having heard learned counsel for the parties and after going through the records, with the consent of learned counsel for the parties, this

petition is disposed of at this stage without calling for any counter affidavit.

On the basis of the facts pleaded above, it is clear that no opportunity as contemplated in the Government Notification dated 01.07.2015 was

given to the petitioners and other residents of the village in question. As such, the recommendation made by the Collector on 26.08.2015 without

inviting objections on the fresh recommendation by the Block Level Committee deserves to be quashed. Even otherwise, once recommendation is

made by the Block Level Committee, there is no provision of changing the recommendation and, if at all, it is the District Level Committee which

can make fresh recommendation and was not to direct the Block Level Committee to give a fresh report basing on the representation of the

petitioner or objection filed by any such villages.

In Mahipal Singh Tomar v. State of Uttar Pradesh, 2013 (12) SCALE 304, the Apex Court held that in administrative law, the ''rules of

natural justice'' have traditionally been regarded as comprising ''audi alteram partem'' and ''nemo judex in causa sua''. The first of these rules

requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make

representation. The second rule disqualifies a person from judging a cause if he has direct pecuniary or proprietary interest or might otherwise be

biased. The first principle is of great importance because it embraces the rule of fair procedure or due process. Generally speaking, the notion of a

fair hearing extends to the right to have notice of the other side''s case, the right to bring evidence and the right to argue. This has been used by the

Courts for nullifying administrative actions. The premise on which the Courts extended their jurisdiction against the administrative action was that

the duty to give every victim a fair hearing was as much a principle of good administration as of good legal procedure.

In view of the aforesaid, the entire proceedings initiated, with regard to the creation of Headquarters of reconstituted Gram Panchayat, are set

aside and it is directed that the Block Level Committee shall give its fresh proposal/recommendation in terms of the Government Notification dated

01.07.2015 which shall be considered by the District Level Committee in terms of the Government Notification dated 01.07.2015 after inviting

objections from all concerned. The State Government shall thereafter take a final decision in the matter after considering the recommendations of

the Block Level Committee as well as District Level Committee and the objections, if any, filed by the residents of the villages in question.

The writ petition is allowed with the extent indicated above.