The Coram declared the notification creating Khalipathar Gram Panchayat bad for non-application of mind and total non-consideration of available materials, setting aside that portion of the impugned order.
The notification creating Khalipathar Gram Panchayat was declared bad for non-application of mind and set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
ORISSA HIGH COURT, CUTTACK.
W.P. (C) No.21265 of 2016
In the matter of an application under Article 226 of the Constitution of India.
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Dambarudhar Budek & others … Petitioners
Versus
| The State of Odisha & others … Opposite parties |
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| For Petitioners : M/s. Himansu Sekhar Mishra, A.K. Mishra, Dr. A.K. Tripathy, R. Dash. |
| For opposite parties : Mr. K.K. Mishra, Learned Additional Government Advocate |
PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
--------------------------------------------------------------------------------------------------- Date of hearing: 16.01.2017 Date of Judgment : 02.02.2017 ---------------------------------------------------------------------------------------------------
Biswanath Rath, J. This is the second round of litigations at the instance of the petitioners. In the first round of litigation, these five petitioners had made an approach to this Court vide W.P.(C) No.13524 of 2016 assailing the notification vide Annexure-4 in the matter of reorganization of the Gramapanchayat particularly creating Khalipathar Gramapanchayat by deleting the village Bhuliabandha from the original Grampanchayat Juba. Considering the rival contentions therein and after perusing the materials produced therein, this Court disposed of the writ petition vide W.P.(C) No.13524 of 2016 on 31.8.2016 directing the Commissioner-cum-Secretary,
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Panchayat Raj Department to look into the grievance of the petitioners appearing under Annexure-2(series) & 3 (series) therein and take a decision as appropriate after taking into consideration the objections of the petitioners and giving opportunity of hearing to the persons concerned. The entire exercise was also directed to be concluded within a period of three months. The matter was reconsidered by the Commissioner-cum-Secretary and by its order under Annexure-8 the Commissioner-cum-Secretary held that the constitution of new Khalipathar Grampanchayat out of the existing Juba Grampanchayat as well as tagging of the village Bhuliabandha under the newly created Khalipathar Grampanchayat is justified and in the larger interest of the general public.
In the second round of litigation, in filing this writ petition, the petitioners again challenged the action of the Commissioner-cumSecretary involving Annexure-8 vis-à-vis the decision in the matter of reorganization of the Gramas vide Annexure-6.
2. In assailing the impugned order, Sri H.S. Mishra, learned counsel for the petitioners alleged that the procedures prescribed in Annexure-1 for reorganization of Gramas have not been followed. It is contended that the criteria in the matter of reorganization of Gramapanchayat will be made within the Panchayat Samiti area, population census of 2011 will be taken as criteria for reorganization propose, existing Grampanchayat headquarters will remain unchanged, revenue village shall not be bifurcated and particularly the Grampanchayat having population around 10,000 or more shall be bifurcated and reorganized taking into consideration the geographical locations, natural barrier and administrative convenience for
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constitution of new Gram Panchayat. It is alleged that the above procedures have not been followed at all. Procedures in the matter of constitution of District Level Committee have not been followed. No notice has been given to the general public inviting objections against the proposals received from Blocks concerning the particular Gram Panchayat. Representation at the instance of the petitioners as well as the villagers indicating their convenience and inconvenience have not been considered. The resolution has been passed in the general meeting in presence of previous ward members, ladies and gentlemen indicating that there will be inconvenience in the event the Bhuliabandha alongwith Khalipathar is constituted as a new Gram Panchayat but the villagers however agreed for creation of a Gram Panchayat with headquarter at Jharpatamunda at Annexure-3 (series). In addition to the above resolution, the people at large of village Bhuliabandha as well as Jharpatamunda also made request at different level opposing creation of Khalipathar out of Juba Gram Panchayat. Even there is no proposal for creation of Khalipathar as a Gram Panchayat. A decision has been taken in absence of any discussion in the matter of creation of Khalipathar Grampanchayat, which otherwise indicates the District Level Committee has never received any proposal from the Block or the public for bifurcation of Juba Gram Panchayat. The proceeding vide Annexure-5 nowhere discloses the same. It is claimed that on consideration of the aforesaid facts only, this Court in the previous occasion on disposal of the earlier writ petition directed the authority to reconsider the issue and the reconsideration has not only been made illegally but also in a mechanical and arbitrary manner.
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Under the circumstances, Sri H.S. Mishra, learned counsel for the petitioners further contended that this Court should interfere with the orders vide Annexures-6 & 8 and quash the same so far it relates to creation of Khalipathar Gram Panchayat as a new Gram Panchayat.
3. Sri K.K. Mishra, learned Additional Government Advocate on the other hand referring to the counter affidavit contended that creation of new Khaliapathar Gram Panchayat by way of bifurcating the existing Juba Gram Panchayat was taken up to provide better service to the rural people. Sri Mishra, strongly disputed the contentions of the learned counsel for the petitioners that the Juba Gram Panchayat will be convenient to the villagers of the Bhuliabandha and they will face inconvenience if they join with the new Gram Panchayat, Khalipathar while referring to the clear statements in the paragraph No.5 of the counter affidavit. As regards the representation of the petitioners is concerned, Sri K.K. Mishra, learned Additional Government Advocate submitted that the Block Level Committee as well as the District Level Committee did not consider the same as the same did not deserve any merit. So far as the distance factor is concerned, Sri K.K. Mishra, learned Additional Government claimed that the submission in the said regard by the learned counsel for the petitioners remain contrary to the materials available on record. In justifying the impugned order under Annexure8, learned Additional Government Advocate contended that the decision vide Annexure-8 have been taken taking into consideration the contentions of the petitioners and the materials available on record. It is thus claimed that the decision impugned herein not only
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remains justified but also based on the materials available on record and further looking to the convenience of the local people.
4. Sri K.K. Mishra, learned Additional Government Advocate also contended that the allegations with regard to noncompliance of requirements under Annexure-1 are not only baseless but also remain unfounded. Referring to the representation at Annexure-2, learned Additional Government Advocate submitted that the representation find place at page 24 in the matter of objection to the creation of Khalipathar Gram Panchayat appears to have been submitted having no date and further the opposite parties have never received any such representation. The subsequent representations are only the expression of the objection of the villagers in the matter of their assignment with new Grampanchayat Khalipathar. Learned Additional Government Advocate also contended that the representations at pages 26 & 28 have not only been received by the opposite parties but the date appearing on it being subsequent to the cutoff date under Annexure-1 had no chance for consideration. Similarly, the representations so far it relates to Annexure-3(series), it is contended that these were also the resolutions but never the forming part of the consideration process and further since the writ petition is represented by three persons belonging to Bhuliabandha from out of its total population 584, it is presumed that at least 581 persons of Bhuliabandha remained satisfied with the decision of the State Government and they have not come forward to challenge such decision of the State. So far as the other two persons are concerned, particularly the petitioner Nos.4 & 5 being the resident of Jharpatamunda and since continued under the Juba Gram Panchayat
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cannot have any grievance in the matter of the creation of the new Gram Panchayat.
5. Hearing the rival contentions of the respective parties, this Court finds that it is true that in the first round of litigation, this Court finding that the decision has been taken without consideration of the case of the petitioners therein directed for reconsideration of the issue afresh and following the decision passed by some other Bench sending back the matters to the competent authority for their fresh decision in the matter of creation of new Gram Panchayat giving opportunity to the persons involved therein and the decision vide Annexure-8 is an outcome of such direction. Considering the rival contentions of the parties, this Court finds the learned counsel for the petitioner has a specific allegation that creation of new Gram Panchayat namely Khalipathar was never a point of discussion pursuant to the notification vide Annexure-1 and particularly in absence of a demand or recommendation by the District Level Committee as clearly appearing at paragraph No.1 particularly when the District Level Committee did not propose creation of Khalipathar Gram Panchayat by reorganizing the Juba Gram Panchayat as mentioned in paragraph No.10. Further referring to a document vide Annxure-4 again a submission was made by the learned counsel for the petitioner that the information provided in the matter of reorganization of the Gram Panchayat vide Annexure-4 even did not disclose creation of any new Grampanchayat so far as the Belpada Block is concerned. Considering the aforesaid submission, this Court finds, there is absolutely no counter to such statements of the petitioners by the opposite parties.
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6. Considering the above allegation to be a serious allegation, this Court on perusal of the Annexure-4 finds that in fact the Annexure-4 is a document in the matter of reorganization of Gram Panchayat in the District of Bolangir prepared by the Collector of Bolangir at serial No.14 it clearly discloses no addition of Gram Panchayat in this particular Block. In the next document vide Annexure-5 the Collector has also provided proposals for reorganization/creation of Gram Panchayat pertaining to Bolangir District in the prescribed format (i)(ii)(iii)(iv) alongwith the proceedings of the District Level Committee for kind information of the Commissioner-cum-Secretary. The document at page-53 has a clear indication that some consideration for creation of Gram Panchayat in the Belpada Block namely Jhankripali, Balikhamar and Baijalsagar for having less population and also for the distance factor have not been considered for reorganization as clearly observed in the last column in the statement provided vide Annexure-5. Consequently, the proceeding of the District Level Committee at page 59 of the brief has a clear indication of cases of refusal of creation of new Gram Panchayat as well as the cases of recommendation for creation of 10 Gram Panchayat which even does not include Khalipathar Gram Panchayat and finally recommending reorganization of 18 existing Gram Panchayats find place at page 60. Recommendation wholly remains silent on creation of new Gram Panchayat, Khalipathar or even bifurcation of Juba Gram Panchayat. The name of Gram Panchayats indicated therein did not discloses the name of Juba Gram Panchayat or Khalipathar Gram Panchayat and this Court finds, the notification under Annexure-6 creating Khalipathar as a new Gram Panchayat under the Belpada block was nowhere involved in the process under Annexure-1. There is no consideration of such case at
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all at any level except, this Court finds a surprise incorporation of the name of new Gram Panchayat Khalipathar only at the time of preparation of Annexure-6 and they have no foundation, right through Annexure-5.
7. This Court further observes that the Annexure-1 at internal Annexure-II brings out the procedures for working out the proposals and disposal of suggestions for proposed reorganization of Gram Panchayats, where also it prescribes formation of Committee as well as Block Level Team for the purpose. Internal Annexure-III at clause 1) prescribes the date of Notification, 2) Block Level Committee to initiate the work. On reorganization of the Gram Panchayat following modalities etc., clause 3) the District Level Committee was required to publish the reorganization proposal as received from Block for inviting the public objections / suggestion lastly at clause 4) provisions has been made for hearing objections/suggestions if any, within the specified time. It appears in the present case, none of the above provisions have been followed. This Court even do not find any foundation / proposal for bringing the Khalipathar as a new Gram Panchayat upon reorganization of Juba Gram Panchayat. Documents vide Annexures-5 & 6 remain completely silent on the same. Nothing is also coming out in the said regard from the counter affidavit filed by the contesting parties.
8. In view of the above, this Court declares the order at Annexure-8 as bad for being passed on total non-application of mind and further not only in non-consideration of materials available on record but taking decision contrary to the materials available on record. Thus, while declaring the creation of Khalipathar Gram
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Panchayat in the Belpada Block at page 65 of the brief as bad, sets side that part of the notification vide Annexure-6.
9. This writ petition thus stands allowed but in the circumstances no cost.
…………………….. Biswanath Rath, J.
Orissa High Court, Cuttack. The 2nd day of February, 2017.
1 issue framed by the court
Whether the creation of a new Gram Panchayat without prior proposal or consideration by the District Level Committee violates procedural norms.
Dambarudhar Budek & others
The State of Odisha & others
Biswanath Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
