Smt. Umeshawari Bai vs State of Chhattisgarh and Others

Dhirendra Mishra, J.—The petitioner by the instant petition has prayed for declaring the notification published in the Rajpatra dated 3rd September, 2008 (Annexure-P/2) ineffective whereby Nagar Panchayat Kunkuri, District Jashpur has been constituted by amalgamating existing Revenue village Gadakata and Gram Panchayat Kunkuri and notice dated 29-9-2008 (Annexure-P/1) issued by the Collector, Jashpur in exercise of powers u/s 126(2) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short `the Act'') disestablishing Gram Panchayat Gadakata consisting of village Gadakata on account of constitution of Nagar Panchayat Kunkuri.

The case of the petitioner is that she is elected Sarpanch of Gram Panchayat Gadakata. The Collector vide order dated 29-9-2008 (Annexure-P/1) disestablished Gram Panchayat Kunkuri and Gadakata on the ground that vide notification dated 3rd September, 2008 published in the Chhattisgarh Gazette (Extraordinary) Nagar Panchayat Kunkuri has been constituted consisting of Gram Panchayat Kunkuri and Gram Panchayat Gadakata. Copy of this order was endorsed to the petitioner also.

After obtaining certified copy of the order dated 15-9-2008 passed by the Commissioner cum Co-Secretary of the Directorate of Town Administration and Development, Chhattisgarh, the petitioner came to know that an order has been passed u/s 7 of the Chhattisgarh Municipalities Act, 1961 (for short `the Act of 1961'') (Annexure-P/4) requesting the Collector to initiate proceeding of disestablishment u/s 126(2) of the Act.

The petitioner and other villagers submitted their representation (Annexure-P/5) dated 2nd October, 2008 to the Collector through SDO Kunkuri and requested not to disestablish Gram Panchayat Gadakata as village Gadakata was not in transition from rural area to urban area. On inspection of the proceeding register of the Panchayat, the petitioner discovered that Panchayat Secretary under undue pressure and direction of respondent No. 4, the Chief Executive Officer, Janpad Panchayat Kunkuri, fabricated a false entry as para-11 in the proceeding dated 3-7-2008 that Gram Panchayat has passed resolution for including Gram Panchayat Gadakata in the area of Nagar Panchayat Kunkuri.

Another representation was submitted against the false entry by the petitioner and villagers to the Sub Divisional Officer vide Annexure-P/6. The SDO forwarded their representation to the Collector, Jashpur for needful action vide Annexure-P/7. The Collector issued a notice dated 30-9- 2008 (Annexure-P/8) u/s 125 of the Act and proposed to amalgamate Lotapani village of disestablished Gram Panchayat Gadakata to the area of Gram Panchayat Kharijhariya and invited objections.

Learned Counsel for the petitioner submitted that the State Government in exercise of powers conferred by Section 5(1)(b) of the Act of 1961 issued a notification dated 5th July, 2008 signifying its intention for constitution of Nagar Panchayat Kunkuri. The boundaries of the proposed Nagar Panchayat Kunkuri were shown as existing revenue village and Gram Panchayat Kunkuri. The objections were invited in writing from the persons and local authority within 30 days from the date of publication against the aforesaid intention. From bare perusal of the notification, it is evident that by the said notification, no intention was signified for amalgamating Gram Panchayat Gadakata and its dependent villages. However, vide notification of Annexure-P/2 published in the official gazette, Nagar Panchayat Kunkuri was constituted with the boundaries of Gram Panchayat Kunkuri and revenue village Gadakata without issuing any public notice.

Referring to Section 5 of the Act of 1961, it was argued that village Gadakata is not a village in transition to the urban area and the Governor has not declared Gadakata as transitional area by public notification in the official gazette as required u/s 5(2) of the Act of 1961 and also under Article 243Q(2) of the Constitution. Vide notification of Annexure-P/9 dated 5-7-2008, intention to constitute Nagar Panchayat Kunkuri in place of Gram Panchayat Kunkuri was signified. The boundaries of Nagar Panchayat Kunkuri were proposed to be the boundaries of existing revenue village and Gram Panchayat Kunkuri. However, while constituting Nagar Panchayat Kunkuri by including village Kunkuri and Gadakata as its boundaries vide Annexure-P/2, no notice was issued to the villagers nor the same was affixed in the public place. Thus, constitution of Nagar Panchayat Kunkuri by including village Gadakata is in violation of Article 243Q of the Constitution of India as well as Section 5 of the Act of 1961. The order of Annexure-P/1 passed by the Collector disestablishing Gram Panchayat Gadakata u/s 126(2) of the Act is also illegal, as aforesaid order has been passed without issuing any notice as contemplated u/s 126(1) of the Act.

On the other hand, Shri Vinary Harit, learned Deputy Advocate General appearing on behalf of the State/respondents argued that the petitioner has impugned constitution of Nagar Panchayat Kunkuri by including village Gadakata within its boundaries. However, from the averments in the petition, it is not clear as to how the petitioner or the residents of village Gadakata shall be adversely affected by the aforesaid action. Gram Panchayat Gadakata was included as per resolution of the Gram Panchayat Gadakata vide Annexure-R/1. The Sub Divisional Officer (Revenue) vide its memo dated 5-4- 2008 (Annexure-R/3) submitted a proposal for constitution of Nagar Panchayat Kunkuri along with resolution of Gram Panchayat Gadakata keeping in view the criteria fixed for transitional area as notified under Annexure-R/2. On the basis of aforesaid proposal, notification of Annexure-P/9 was issued. Since no objections were filed after publication of notification of Annexure-P/9 within the stipulated period, notification of Annexure-P/2 constituting Nagar Panchayat Kunkuri was issued.

We have heard learned Counsel for the parties.

Indisputably, the proceedings were commenced for constitution of Nagar Panchayat Kunkuri. Gram Panchayat Kunkuri and Gram Panchayat Gadakata were two different Panchayats with its separate elected office bearers. The petitioner was Sarpanch of Gram Panchayat Gadakata. The Sub Divisional Officer (Revenue) vide its memo dated 5th April, 2008 addressed to the Collector, Jashpur in reference to memo dated 4th April, 2008 of the Collector, proposed constitution of Nagar Panchayat by including Gram Panchayat Kunkuri and Gadakata. He also annexed the resolution of the Gram Panchayat Gadakata expressing its consent with the above proposal. The State Government vide its notification dated 5th July, 2008 (Annexure-P/9) signified its intention to constitute Nagar Panchayat Kunkuri in place of Gram Panchayat Kunkuri with village Kunkuri as boundaries of the proposed Nagar Panchayat and invited objections.

In notification of Annexure-P/9, village Gadakata was not included within the proposed boundaries of Nagar Panchayat Kunkuri, thereafter notification of Annexure-P/2 dated 3rd September, 2008 was issued whereby Nagar Panchayat Kunkuri was constituted by including village Kunkuri and Gadakata within its boundaries. By the said notification, it was also notified that the present elected Gram Panchayat Kunkuri shall continue to function as Nagar Panchayat for the purposes of the Act of 1961 till newly elected Nagar Panchayat of Kunkuri is constituted. The Collector, Jashpur vide order dated 29-9- 2008 disestablished Gram Panchayat Kunkuri and Gram Panchayat Gadakata on account of constitution of Nagar Panchayat Kunkuri in purported exercise of power u/s 126(2) of the Act.

Part IXA of the Constitution, which deals with the Municipalities, was inserted in the Constitution vide Eighty- third constitution amendment with effect from 8-9-2000. Article 243-Q deals with constitution of municipalities. Article 243-Q(2) reads as under:

In this article, `a transitional area'', `a smaller urban area'' or `a larger urban area'' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.

Section 5 of the Act of 1961 deals with constitution of Municipal Councils and Nagar Panchayats which reads as under:

(1) There shall be constituted,-

(a) a Municipal Council for a smaller urban area; and

(b) a Nagar Panchayat for a transitional area, that is to say, an area in transition from a rural area to an urban area:

Provided that a Municipal Council or a Nagar Panchayat, as the case may be, may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment or a group of such establishments in that area and such other factors as he may deem fit, by public notification specify to be an industrial township:

Provided further that when an area is notified to be a transitional area, the Gram Panchayat having jurisdiction over such area shall continue to function until a duly elected nagar Panchayat is constituted under this Act.

(2) In this section, ''a smaller urban area'' or a transitional area'' means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors, as he may deem fit, specify, by public notification for the purposes of this Act.

From plain reading of the aforesaid provisions of the Constitution and the Act of 1961, it is manifestly clear that the Nagar Panchayat for a transitional area may be constituted by publication of notification in the official gazette. By notification of Annexure-P/9 intention to constitute Nagar Panchayat Kunkuri with Gram Panchayat Kunkuri as its boundary was notified and objections were invited from the local bodies and all concerned within a period of 30 days from the publication of that notice. In the said notification, Gadakata was not included within the boundaries of Nagar Panchayat Kunkuri.

The averment of the respondents/State in para 10 and 11 of return that notification of Annexure-P/9 inviting objections was issued as per the proposal of he Sub Divisional Officer of Annexure-R/3 is not substantiated from the notification of Annexure-P/9 as Gram Panchayat Gadakata is not included in the boundaries of proposed Nagar Panchayat Kunkuri.

The contention of the petitioner is that resolution of Annexure-R/1 was interpolated in the proceedings book with the connivance of the Secretary of the Gram Panchayat and no resolution was passed in the Gram Sabha of Gram Panchayat Gadakata expressing its consent to include Gram Panchayat Gadakata and its dependent villages Gadakata, Ramadand and Lotapani in Nagar Panchayat Kunkuri. Even otherwise, since there was no proposal in the notification of Annexure-P/9 to include Gram Panchayat Gadakata or its dependent villages in the proposed Nagar Panchayat Kunkuri, question of submitting any objection against constitution of Nagar Panchayat Kunkuri by Gram Panchayat Gadakata or its inhabitants does not arise.

By notification of Annexure-P/2 dated 3rd September, 2008 Nagar Panchayat Kunkuri is constituted by including village Kunkuri and Gadakata within its boundaries. The said notification further stipulates that elected Gram Panchayat at Kunkuri shall continue to function as Nagar Panchayat till newly elected Nagar Panchayat Kunkuri is constituted. Vide notification of Annexure-P/9 Nagar Panchayat Kunkuri with village Kunkuri was proposed to be constituted and objections were invited. However, before constituting Nagar Panchayat Kunkuri and including village Gadakata within its boundaries vide Annexure-P/2, no notification was issued declaring Gadakata as a transitional area, as required under Article 243-Q(2) or Section 5(2) of the Act of 1961.

By issuance of notification of Annexure-P/2, it was also notified that elected Gram Panchayat Kunkuri would discharge the functions of Nagar Panchayat Kunkuri till Nagar Panchayat Kunkuri is constituted. Thus, from notification of Annexure- P/9 and Annexure-P/2, it is manifestly clear that initially Nagar Panchayat Kunkuri was proposed to be constituted and thereafter it was constituted and village Gadakata which fell within the boundaries of Gram Panchayat Gadakata was excluded from Gram Panchayat Gadakata and included in Nagar Panchayat Kunkuri vide notification of Annexure-P/2.

Before including or excluding any area from the limits of municipal area, it was incumbent on the part of the State Government to issue public notification declaring its intention to do so and consider objections of the local authority having jurisdiction in the said area or any person resident therein as provided u/s 5A of the Act of 1961. Every notification u/s 5 or Section 5A is to be published in the official gazette and also in at-least one Hindi newspaper having circulation in the area to which it relates. A copy of such notification is to be further published in the office of the Collector, Municipality and the area affected by notification as provided u/s 6 of the Act of 1961.

In the instant case, we observe that there is total non- compliance of Section 5(2) of the Act of 1961 read with Article 243-Q(2) of the Constitution of India, as no notification was issued declaring Gadakata as transitional area. Village Gadakata was included within the boundaries of Nagar Panchayat Kunkuri vide notification of Anneuxre-P/2 without notification as contemplated u/s 5A of the Act of 1961. Section 126 of the Act provides that the Governor or authority authorized by him may by an order in writing disestablish the village, however, no such order disestablishing the village can be issued unless a notice of the proposal inviting objection from the persons likely to be affected thereby is published in the prescribed manner and the objections received and have been considered.

In the instant case, the order of Annexure-P/1 was passed u/s 126(2) of the Act and village Gadakata was disestablished on account of constitution of Nagar Panchayat Kunkuri, however, from bare reading of the order, it is clear that no notice as contemplated u/s 126(1) inviting objections from the persons likely to be affected was issued.

On the basis of aforesaid discussion, we are of the opinion that constitution of Nagar Panchayat Kunkuri vide gazette notification of Annexure-P/2 dated 3rd September, 2008 including village Gadakata within its boundaries is illegal and against the constitutional provisions of Article 243-Q(2) of the Constitution of India. Similarly, the order of Annexure-P/1 passed by the Collector, Jashpur, disestablishing Gram Panchayat Gadakata on account of constitution of Nagar Panchayat Kunkuri can also not be sustained.

In the result, the petition is allowed and the order of Annexure-P/1 passed by the Collector, Jashpur disestablishing Gram Panchayat Gadakata on account of constitution of Nagar Panchayat Kunkuri and gazette notification of Annexure-P/2 dated 3rd September, 2008, constituting Nagar Panchayat Kunkuri with revenue village Gadakata and Gram Panchayat Kunkuri as its boundaries are hereby quashed. No orders as to costs.