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High Court Of Himachal Pradesh
T.U.MEHTA,C.R.THAKUR
SOM KRISHAN - Appellant
Versus
STATE OF H.P. - Respondent
Civil Writ Petn. No. 158 of 1978
Decided On : 10/28/1978
PANCHAYATI RAJ - Himachal Pradesh Panchayati Raj Act, 1968 (Act 19 of 1970) - Ss. 4 and 5 - Constitution of Gram Sabha and Sabha area - Guidelines for exercise of power by Government - Vires of S. 4 - Whether arbitrary and without guidelines - Whether offends Art. 14 of the Constitution - Whether Gram Sabha can exist without Sabha area - Cancellation of notification bifurcating Gram Sabha - Effect.
Fact of the Case:
Petitioners, residents of Tehsil Kursog, Mandi District, Himachal Pradesh, sought to challenge the vires of S. 4 of the Himachal Pradesh Panchayati Raj Act, 1968, contending that it delegated uncontrolled, unrestricted, and unguided powers to the State Government for the formation of a Sabha area and inclusion and exclusion of any area in and out of a Sabha area. The Government had issued a notification bifurcating Chanyana Gram Sabha into two, creating Sawindhar Gram Sabha, but subsequently issued another notification canceling the bifurcation, leaving Sawindhar Gram Sabha without any Sabha area.
Finding of the Court:
The Court held that S. 4 of the Act contained sufficient guidelines for the constitution of a Sabha area and inclusion or exclusion of any area from and into an already existing Sabha area, such as population and contiguity of the area. The Court also considered the purpose of establishing a Gram Sabha, which was to carry out the Directive principle contained in Art. 40 of the Constitution, and held that the Government had to consider whether the Sabha functioning in a particular area would be able to discharge its duties and functions properly.
Issues: 1. Whether S. 4 of the Himachal Pradesh Panchayati Raj Act, 1968, is arbitrary and without guidelines, thereby violating the principles of natural justice? 2. Whether the impugned notification dated 5th July 1978 offends Art. 14 of the Constitution? 3. Whether a Gram Sabha can exist without a Sabha area?
Ratio Decidendi: 1. The Court held that S. 4 of the Act contained sufficient guidelines for the constitution of a Sabha area and inclusion or exclusion of any area from and into an already existing Sabha area, such as population and contiguity of the area. The Court also considered the purpose of establishing a Gram Sabha, which was to carry out the Directive principle contained in Art. 40 of the Constitution, and held that the Government had to consider whether the Sabha functioning in a particular area would be able to discharge its duties and functions properly. 2. The Court held that the impugned notification did not offend Art. 14 of the Constitution, as no legal right of the petitioners was infringed, and all citizens residing in Chanyana Gram Sabha area were to be treated equally even after the abolition of the bifurcation. 3. The Court held that a Gram Sabha cannot exist without a Sabha area, as the scheme of the Act made a clear distinction between the two. The Court relied on the provisions of the Act and a previous decision of the Court in Danda Annj Gram Sabha v. State of Himachal Pradesh, which held that the removal of the Sabha area from the jurisdiction of a Gram Sabha did not put an end to the Gram Sabha, and that the Government could only abolish the Gram Sabha by a specific order to that effect.
Final Decision: The Court struck down the latter portion of the impugned notification dated 5th July 1978, which referred to the cancellation of the previous notification dated 11th May 1978 regarding the bifurcation of Gram Sabha Chanyana, holding that it rendered Sawindhar Gram Sabha without any Sabha area. The rule was made absolute to this extent without any order as to costs.
T. U. Mehta, C. J. :- In this writ application show cause notice was issued to the respondents and reply has been filed; the rejoinder has also been filed. The petitioners are the residents of Tehsil Kursog situated in Mandi District of this State. They previously belonged to Chanyana Gram Sabha which was constituted in the year 1972. This Sabha consisted of 12 villages. The petitioners, however, wanted a separate Sabha for 7 of these 12 villages. These seven villages for which they wanted a separate Sabha are Sheglinal, Badyog, D.P.F. Alyas, Kalangar, Khadkan, Kot and Sawindhar. It appears that they could persuade the Government to bifurcate the Chanyana Gram Sabha into two and to establish a separate Sabha for the above referred seven villages known as Sawindhar Gram Sabha. The remaining five villages were to form Chanayana Gram Sabha. The Government accordingly issued notification dated 11th May, 1978 as found at Annexure-P-14. By this notification the original Chanyana Gram Sabha was bifurcated with the result that Chanyana Gram Sabha came to have five villages in its area, and Sawindhar Gram Sabha, to which the petitioners belong, came to have seven villages in its area. This notification has been issued by the Government under Ss.4 and 5 of the Himachal Pradesh Panchayati Raj Act, 1968 (Act 19 of 1970) (hereinafter referred to is the Act).
2. About two months thereafter, i.e. an 5th July, 1978, the Government seems to have changed its mind and issued another notification by virtue of which some other Gram Sabha areas were reorganised. We are not concerned with the other reorganised Gram Sabhas. But so far as Chanyana Gram Sabha was concerned, this notification stated as under : "And the Governor is further pleased to cancel the notification of even number dated 11th May, 1978 of this Department vide which Gram Sabha Chanyana was bifurcated". A copy of this notification is found at Annexure-P-16. The effect of this notification is that the bifurcation of Chanyana Gram Sabha made on 11-5-1978 stood cancelled, but at the same time, Sawindhar Gram Sabha, which was constituted and established under the previous notification dated 11th May, 1978, was rendered without any Sabha area though it has not been specifically abolished.
3. Shri Thakur who appears on behalf of the petitioners has challenged the vires of S.4 of the Himachal Pradesh Panchayati Raj Act, 1968 contending that it delegates uncontrolled, unrestricted and unguided powers to the State Government for the purpose of formation of a Sabha area as well as for the inclusion and the exclusion of any area in and out of a Sabha area. In order to appreciate this contention it would be necessary to quote S.4 which is in the following terms : The Government may, by notification, declare any village or group of contiguous villages with a population of not less than five hundred and not more than five thousand to constitute one or more Sabha areas : Provided that neither the whole nor any part of a cantonment, municipality of any class, or a notified area under Section 241 of the Punjab Municipal Act, 1911, as in force in Himachal Pradesh, or a small town committee shall be included in a Sabha area : Provided further that the Government may, in any particular case, relax these limits. (2) The Government may, by notification, include any area in, or exclude any area from the Sabha area. (3) If the whole of the Sabha area is included in a municipality, cantonment, notified area under S.241 of the Punjab Municipal Act, 1911, as applicable to Himachal Pradesh, or small town committee, the Sabha shall cease to exist and its assets and liabilities shall be disposed of in the manner prescribed." It was pointed out that by virtue of Sub-Section (2) of S.4 quoted above, the Government is empowered by the legislature to act arbitrarily to include and to exclude any area in and out of a Sabha area and, therefore, this provision of Sec. 4 is invalid. We find ourselves unable to ac
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