Allowed

State of Chhattisgarh v. Krishnakumar Yadav

Chhattisgarh HC6 Feb 2025WA/94/2025

Case brief

AI extract

What is this about?

State appealed against a Single Judge order allowing writ petitioners (elected panchayat members) to continue functioning after Brela was converted into a Nagar Panchayat. Following its earlier identical decision in WA No. 714/2024, the Division Bench allowed the appeal on the same terms.

What did the court decide?

Appeal allowed in terms of the order dated 12.12.2024 passed in WA No. 714/2024 along with bunch of appeals.

State of Chhattisgarh Vs Krishnakumar Yadav — Municipal and Town Planning | Chhattisgarh HC (2025)

2025:CGHC:6965-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WA No. 94 of 2025

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1 - State Of Chhattisgarh Through Its Secretary, Government Of Chhattisgarh, Department Of Urban Administration And Development, Mantralaya, Mahanadi Bhawan, Nava Raipur, Atal Nagar, DistrictRaipur (C.G.)

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2 - The Director Directorate Of Urban Administration And Development, Indravati Bhawan, Nava Raipur, Atal Nagar, District- Raipur (C.G.)

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3 - The Collector Mungeli, District - Mungeli (C.G.)

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... Appellant(s)

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versus

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1 - Krishnakumar Yadav S/o Banshilal Yadav Aged About 46 Years Elected Sarpanch Of Brela Panchayat, Village- Brela, District- Mungeli (C.G.)

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2 - Smt. Kritika Dhuri W/o Hetram Dhuri Aged About 37 Years Elected Up Sarpanch Of Brela Panchayat, Village- Brela, District- Mungeli (C.G.)

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3 - Vashudev Patel S/o Shri Mulchand Patel Aged About 34 Years Elected Panch Of Ward No. 01, Brela Village Panchayat, VillageBarela, District- Mungeli (C.G.)

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4 - Babulal Patel S/o Shri Avadh Ram Patel Aged About 44 Years Elected Panch Of Ward No. 03, Brela Village - Panchayat, VillageBrela, District- Mungeli (C.G.)

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5 - Smt. Jamuna Bai Patel W/o Shri Jiv Rakhan Patel Aged About 46 Years Elected Panch Of Ward No. 04, Brela Village Panchayat, VillageBrela, District- Mungeli (C.G.)

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6 - Pawan Kumar Patel S/o Shri Chandra Lal Patel Aged About 52 Years Elected Panch Of Ward No. 05, Brela Village Panchayat, VillageBrela, District- Mungeli (C.G.)

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7 - Jiv Rakhan Patel S/o Shri Chandra Lal Patel Aged About 49 Years Elected Panch Of Ward No. 06, Brela Village Panchayat, Village- Brela, District- Mungeli (C.G.)

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8 - Smt. Rekha Dhuri W/o Shri Samaru Dhuri Aged About 30 Years Elected Panch Of Ward No. 15, Brela Village Panchayat, Village- Brela, District- Mungeli (C.G.)

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9 - Surendra Agrawal S/o Shri Keshar Dev Agrawal Aged About 47 Years Elected Panch Of Ward No. 17, Brela Village Panchayat, VillageBrela, District- Mungeli (C.G.)

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10 - Smt. Priya Gupta W/o Shri Ram Kumar Gupta Aged About 34 Years Elected Panch Of Ward No. 19, Brela Village Panchayat, Village- Brela, District- Mungeli (C.G.)

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11 - Smt. Lalita Patel W/o Shri Ramavatar Patel Aged About 32 Years Panch Of Ward No. 02, Brela Gram Panchayat, Village- Brela, DistrictMungeli (C.G.)

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12 - Sanjay Nirmalkar S/o Shri Sukhdev Nirmalkar Aged About 35 Years Panch Of Ward No. 20, Brela Village Panchayat, Village- Brela, DistrictMungeli (C.G.)

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13 - Smt. Kumari Bai Sahu W/o Shir Baliram Sahu Aged About 33 Years Panch Of Ward No. 16, Brela Village Panchayat, Village- Brela, DistrictMungeli (C.G.)

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14 - Durpat Dhuri S/o Shri Jehuram Dhuri Aged About 34 Years Panch Of Ward No. 11, Brela Gram Panchayat, Village- Brela, District- Mungeli (C.G.)

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15 - Purushottam Yadav S/o Late Janakram Yadav Aged About 37 Years Panch Of Ward No. 10, Brela Village Panchayat, Village- Brela, DistrictMungeli (C.G.)

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16 - Shekh Jainul S/o Late Shiekh Ajeej Aged About 35 Years Panch Of Ward No. 07, Brela Village Panchayat, Village- Brela, District- Mungeli (C.G.)

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17 - Ramesh Dhuri S/o Late Shri Laxman Dhuri Aged About 33 Years Panch Of Ward No. 18, Brela Gram Panchayat, Village- Brela, DistrictMungeli (C.G.)

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18 - Nagar Panchayat Brela Through Its Chief Municipal Officer, Nagar Panchayat Brela, District- Mungeli (C.G.)

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... Respondent(s)

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For Appellant(s) : Mr. Shashank Thakur, Dy. A.G. For Respondent(s) : Mr. Neeraj Choubey, Advocate

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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07.02.2025

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Heard Mr. Shashank Thakur, learned Deputy Advocate General for the appellants / State. Also heard Mr. Neeraj Choubey, learned counsel, appearing for respondents.

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The present writ appeal is preferred assailing the order dated - 05.09.2024 passed by the learned Single Judge in WPC No. 3789/2024 (Krishnakumar Yadav vs. State of Chhattisgarh and Others) , whereby, the writ petition filed by the writ petitioners / respondents No. 1 to 10 herein was allowed by the learned Single Judge.

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It has been pointed out by learned counsel, appearing for the appellants as well as learned counsel appearing for the respondents that in an identical matter, this Bench had allowed WA No. 714/2024 (State of Chhattisgarh & Others vs. Smt. Priyadarshani Singh Nahrel and Others) along with bunch of appeals vide order dated 12.12.2024, relevant paras of which are reproduced below :

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“18. A bare reading of provisions contained under Section 16 of the Act of 1961 would disclose that once an area is declared to be a Municipality by Provisions of the Act, 1961, the State Government is mandatorily required to notify and constitute a committee consisting of President, Vice President and any such members for the purpose of the Act. In similar fashion Section 7(a), (b) and (c) when read together clearly establishes that the immediate effect of establishment of Municipality would be cessation of Panchayat from the date of such establishment of Municipality. It further provides that the panchayat funds and other property of the panchayat including all rights and powers which vested in the panchayat prior to such notification shall vest in the Committee. Hence, the State Government is obliged to notify the committee constituted when an area is declared to be Municipality for the first time under this Act. The word "Municipality' would include "Nagar Panchayat" as provided under Section 3(18) of the Act of 1961. Similarly, word "Council" also includes and means "Nagar Panchayat as provided under Section 3(8). Hence, there is not any iota of doubt that after declaring a Panchayat for the first time as a Nagar Panchayat, the State

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Government was obliged to constitute a committee by notification consisting of President, Vice President and any such members. Further, the Committee so notified/ constituted shall be deemed to be a Council for the purposes of the Act, i.e., it would assume powers of Nagar Panchayat. Further, from bare perusal of Section 5 of the Act of 1961, which provides for constitution of Municipal Council and Nagar Panchayats, when an area is intended to be constituted from rural to urban area, i.e. from Village Panchayat to Nagar Panchayat, the said area would be referred to as "Transitional Area". In other words "Transitional Area" is referred to as area of village Panchayat which is intended to be constituted/included as Nagar Panchayat and would include a period from the date of notification of intention of the Government to declare a village Panchatyat as Nagar Panchayat till the date of final notification after expiration of period of objection as prescribed under Section 5(A) of the Act of 1961.

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The learned Single Judge has discussed Section 5 of the Act of 1961 at paragraph 19 of its order and observed that it would be the Gram Panchayat who would continue to function as Nagar Panchayat until a duly elected Nagar Panchayat is constituted. Further, in paragraph 20, reliance has been placed on the decision of the Supreme Court in Rajendra Prasad Yadav & Others v. State of M.P. & Others {(1997) 6 SCC 678) to hold that the provisions in the statute have to be harmoniously read so that all the provisions under the Act of 1961 can be given effect to so that the object of enacting the provision is achieved. Further, in

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paragraph 20, reliance has been placed on the circular issued by the Governor which is in the form of executive instructions dated 20.03.2003, which states that the constitution of Committee under Section 16 of the Act of 1961 would be for Municipal Council, whereas for Nagar Pancyhayats, earlier elected village Panchayat will perform the function of Council, and as such, the learned Single Judge has held that the State Government, in exercise of the powers under subsection (1) of Section 16 of the Act of 1961, can constitute a Committee for Municipal Council and not for Nagar Panchayats.

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Section 5 of the Act of 1961 is in respect of constitution of Municipal Council and Nagar Panchayats. Section 5A is in regard to power of Governor to include or exclude certain areas from the limits of municipal area. Sub-section (3) states that once the prescribed period for submission of objection in writing to the Collector is over and the Governor has considered the objection under sub-section (2), the Governor may by notification include within or exclude from the limits of the municipal area, any specified area. As soon as this exercise is done, and an area is notified to be a Municipal Council or Nagar Panchayat, then Section 7 of the Act of 1961 comes into play.

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The learned Single Judge has relied upon the second proviso to Section 5 which states 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. However, the

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learned Single Judge has lost sight of the fact that the above arrangement is for the transitional period and not after the notification of Section 5 of the Act of 1961 by which the Nagar Panchayat or the Municipal Council has come into existence. The meaning of any Section of an Act has to be derived from the intention of the legislature and from the facts and circumstances of the present cases, it appears that the intention of the legislature was that for a limited period i.e. till the transitional phase, the body elected earlier would continue to function but as soon as the notification under Section 5 is issued, Section 7 and 16 of the Act of 1961 would come into play and the State Government would be bound to constitute a Committee.

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Reliance placed by learned counsel for the writ petitioners on the circular dated 20.03.2003 is of no assistance to the writ petitioners as it is well settled that any executive instructions cannot override the statute or statutory rules. In Lalit Mohan Deb v. Union of India {(1973) 3 SCC 862), the Apex Court has observed that the executive instructions have to be in conformity with the rules and not inconsistent therewith. In State of Orissa & Others v. Prasana Kumar Sahoo {(2007) 15 SCC 129) the Apex Court has reiterated that a purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions.

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Further, in State of Kerala v. K. Prasad {(2007) 7 SCC 140), it has been observed by the Apex Court as under:

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"10... It needs little emphasis that the Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any rule, unless such power exists under the rules, is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is required to be made strictly in consonance with the rules. Therefore, when an executive order is called in question, while exercising the power of judicial review the court is required to see whether the Government has departed from such rules and if so, the action, of the Government is liable to be struck down."

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In view of the above discussion, we are in disagreement with the observations and findings arrived at by the learned Single Judge and as such, the order dated 28.08.2024 passed by the learned Single Judge in WPC No. 3459/2024 and connected writ petitions, are quashed and the appeals filed by the appellant/State are allowed . Consequently, the writ petitions filed by the writ petitioners viz. WPC No. 3459/2024, 3484/2024, 3464/2024, 3572/2024 and 3594/2024, stand dismissed. ”

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They further submit that since the facts and issue involved in the present case is identical to that of WA No. 714/2024 along

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with bunch of appeals , this appeal may also be allowed in the same terms.

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Having considered the rival submissions made by learned counsel for the parties and having gone through the materials on record, it is evident that the facts and issue involved in this appeal is identical to WA No. 714/2024 along with bunch of appeals, this Court deems it appropriate not to take a view other than what has been taken in WA No. 714/2024 along with bunch of appeals.

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Accordingly, the present appeal is allowed in terms of the order dated 12.12.2024 passed in WA No. 714/2024 along with bunch of appeals .

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Manpreet

State of Chhattisgarh v. Krishnakumar Yadav

Case brief

What is this about?

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State of Chhattisgarh v. Krishnakumar Yadav

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