CASE NO.:
Appeal (civil) 42 of 1995
PETITIONER:
KARMAIL SINGH AND ANR.
RESPONDENT:
DARSHAN SINGH AND ORS.
DATE OF JUDGMENT: 16/12/1994
BENCH:
K. RAMASWAMY & G.N. RAY
JUDGMENT:
1994 SUPPL. (6) SCR 700
The following Order of the Court was delivered :
Leave granted.
The State Government of Haryana exercising the power under section 4 of the
Punjab Gram Panchayat Act, 1952, (for short ‘the Act’) issued the
notification dated 18.12.1991 amalgamating Bhorakh and Harigarh Gram Sabhas
as Bhorakh Madan Harigarh Gram Sabha with consequential changes in the
respective columns in Block Pehowa in Kurukshetra District. The said
notification when was challenged by the second respondent and others in
W.P.No. 499 of 1992, the learned Single Judge of the Punjab and Haryana
High Court by his order dated November 2, 1993 quashed the said
notification. On appeal in L.P.A. No. 893/93, by order dated 21.12.1993,
the Division Bench summarily dismissed the appeal. Thus, this appeal by
special leave.
It is not in dispute that in the year 1988 separate Gram Sabha areas were
constituted which was upheld by the High Court. On November 13, 1991, the
Gram Panchayat, Bhorakh had resolved requesting the Government to
amalgamate the two Gram Panchayats into one. Thereon, the Block Development
and Panchayat Officer in his Report dated November 28, 1991 recommended for
amalgamation which was reaffirmed by his subsequent report dated
30.11.1991. But the Deputy Commissioner in his recommendation dated
December 2, 1991 opined to maintain the two Panchayats. On a representation
made by the people, the Minister for Panchayats caused an enquiry made by
the Director, Panchayats, who had noticed that the then Sarpanch one Atma
Ram, by obtaining fictitious decrees in the names of third parties from
Courts had unlawful possession of 86 acres and 2 kanals of Gram Panchayat
(Shamlat) land and that therefore, it was a matter for amalgamation to
avoid such mismanagement and misuse of the office. When if was sent back
for further enquiry, the Deputy Director had agreed to it. In the
meanwhile, a notification was issued on 11.12.1991 to maintain the two
panchayats separately. After receipt of the second report, the Government
have resolved and the Minister concerned had agreed for the amalgamation of
the two panchayats and constitution of one panchayat as stated
hereinbefore. As stated earlier, when the notification published under
section 4(2) came to be challenged in the writ petition, the learned Single
Judge quashed it mainly on the ground that misuse of the office by the
Sarpanch could be prevented by other alternative correctional methods and
on account of his misuse of the office, the two gram sabhas, existing
earlier and were functioning smoothly on democratic basis, cannot be
disturbed.
The question, therefore, is whether the High Court was right in its
conclusion that the action of the Government is vitiated by any arbitrary
exercise of power? Shri Manoj Swarup, learned counsel for the appellants
neatly argued raising two-fold contentions. Firstly, it is argued that
under section 4(1) read with section 3(q) of the Act, for constitution of a
gram sabha area, the village must be a revenue estate as defined under
section 3(q). Harigarh was not a revenue estate while Bhorakh is a revenue
estate. There cannot be two gram sabhas in one revenue estate. The High
Court, therefore, has not considered this question of law. Though prima
facie at first blush we were inclined to agree with him, but on proper
analysis we find that there is no force in the contention. Section 3(q)
reads thus :
“3. Definitions : In this Act unless the context otherwise requires:
xx xx
xx
(q) ‘Village’ means any local area, recorded “as a revenue estate” in the
revenue records of the district in which it is situated.”
Section 4 reads thus:
“4. Demarcation of Sabha area:
(1) Government may, by notification, declare any village or group of
contiguous villages with a population of not less than five hundred to
constitute one or more sabha areas:
xx xx xx
(2) Government may, by notification, include any area or exclude any area
from the Sabha area.”
Under s.5 of the Act, the Government have the power, by a notification
published in that behalf, to constitute a panchayat by name in every sabha
area. The constitution by a notification of a sabha area declared by the
State Government, under section 4(1), may consists of any village, in other
words, any revenue estate as defined under section 3(q) or group of
contiguous villages with a population of not less than 500. The word ‘or’
at the end of the first clause cannot be read as ‘and’. Sub-s.(l) of
section 4 indicates that a gram sabha area with a population of not less
than 500 may be constituted, by a notification, by the Govt. to be a gram
panchayat and that village must be a revenue estate. But in a village,
which, in other words a revenue estate, if population is more than 500, but
needs one or more gram sabhas, there is no prohibition under section 4(1)
for the Govt. to exercise the power declaring such a gram sabha area within
the same revenue estate to be a Panchayat. Take for instance in a revenue
estate the population may be approximately 5,000 and in the revenue estate
there may be more than one village or hamlets or contiguous parts. For
better or proper administration of the panchayat in the same revenue estate
on or more gram sabha areas could be constituted by a notification
declaring them to be separate gram panchayats. Therefore, the words ‘or a
group of contiguous villages’, in the second part of section 4(1) need not
necessarily be construed to mean for amalgamation of two revenue estates
into one revenue estate. That is not the purport and import of the section
or legislative intention. Take an instance that where one revenue estate
consists of only 300 population and another revenue estate may consists of
400 population, each revenue estate cannot be declared to be a separate
gram panchayat, as minimum of 500 population required under section 4(1)
was a must but were not available. By amalgamation of the two revenue
estates one gram sabha area may be constituted by a declaration. Section
4(1) intends to operate in that perspective and the second clause of
section 4 appears to operate in that arena. Thus considered, we find that
in the same revenue estate, depending upon the facts and exigencies for
smooth, proper, efficient or convenient administration of the gram sabha
area, one or more than one sabha areas could be declared by a notification
constituting for each sabha area a gram panchayat for the purpose of the
Act. After the constitution of separate gram sabha areas, by operation of
sub-section{2), power has been given to the State Govt. for the same
reasons, again to include or exclude same sabha area or a part thereof from
the notified sabha area. In other words, section 4(2) gives power for the
State Govt. to amalgamate two or more than one sabha areas and to
constitute, by a declaration under s. 4(2) a single Gram Panchayat. In
other words, power to constitute a panchayat included power to amalgamate
two or more than one sabha area as one gram sabha. It would thus be clear
that the Government had exercised the power under section 4 (2) to
amalgamate Harigarh and Bhorakh and also Madan was added by public
notification and named as “Bhorakh Madan Harigarh Gram Panchayat.”
But the second contention of Sri Manoj merits acceptance. It is seen that
the Government not only had taken into consideration that there exist a
high school, a mini bank and veterinary hospital but also with a view to
avoid friction among the people of their respective locations, the
Government thought it expedient to amalgamate the two gram sabhas into one.
It would also be clear that Atma Ram appears to have misused his office and
obtained fictitious and collusive decrees in the names of his supporters
and had appropriated valuable 86 acres 2 kanals of the panchayat land for
his personal benefit. The Govt. appears to have thought that such a misuse
or abuse of the powere should be prevented by amalgamating two panchayats.
Other corrective measures though may be evolved, the action of the Govt.
cannot be said to be unwarranted or illegal or invalid. Atma Ram represents
Harigarh and Bhorakh gram panchayat is represented by another sarpanch. It
would appear that if a person, having sufficient influence over the people
in the one area, when he had managed to secure the valuable gram panchayat
property in his name for personal benefit, the Govt. thought it expedient
mat such misuse or abuse of office could be curbed and such insidious
effects could be prevented by amalgamation. The decision taken, thereby,
cannot be said to be irrelevant, arbitrary and unwarranted, on the facts of
the case. It is seen that the public interest would be better served for
taking appropriate decision by the Government either for constituting one
or more than one gram sabha areas or amalgamating into an existing one. It
is a public policy and an administrative decision taken by the Government.
It is an administrative action. But the Government should have material and
should consider the material before it takes the decision. In the absence
of any material, it can be said that it is an arbitrary decision taken by
the Government. But when there is some material before the authority or the
Government and the same was considered though two views may be possible to
be taken on the same material, it must be left to the Govt. to take a
decision which unless it is vitiated by mala fides, the court cannot
substitute its view to that of the Government in constituting two separate
gram panchayats situated in the revenue estate or two contiguous villages
with a population of not less than 5 hundred.
Mr. M.K. Dua, learned counsel appearing for the respondent has stated that
the two gram sabhas, created on June 30, 1988, have been properly
functioning and that, therefore, the Government was not justified in
amalgamating the two panchayats into one. We have already stated that it is
only an executive policy decision taken by the Government to create
separate Panchayats or to amalgamate the existing gram sabhas. It would not
be for the courts to evaluate and decide whether the existence of the two
gram sabhas should be continued or further bifurcated or amalgamated. It is
also stated in the additional affidavit that Atma Ram had not misused his
office nor has taken the properties into his possession had in support
thereof relied on the entries from the revenue records. It is further
stated that it was done in the year 1966. We cannot appreciate that
evidence. The report given by the Director of Panchayats shows that the
Sarpanch had misused the office and obtained fictitious decrees.
Necessarily the entries in the revenue records should be in the names of
the spurious persons but that does not conclude that Atma Ram had not
misused the office and the circumstance taken by the Government cannot be
said to be irrelevant or arbitrary.
Under these circumstances, the learned Single Judge has committed manifest
error of law in interfering with the notification. The Division Bench had
not properly considered the problem from this perspective and merely
dismissed the appeal in limine. The appeal is, accordingly, allowed. The
impugned orders are set aside and the notification dated 18.12.1991 is
upheld. Any action taken pursuant to the decision of the High Court or any
elections were conducted to the respective gram panchayats, the same would
be illegal and should be done once again in accordance with law, the appeal
is allowed and the writ petition stands dismissed. No costs.