NATHABHAI M PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By a notification dated 28/11/1991, issued by the Development Commissioner in exercise of the powers under Sec. 9(2) of the Gujarat Panchayats Act, 1961, local area known as Ramnagar came to be separated from the local area comprising Bavala Nagar Panchayat and it was further declared that after division, the local area comprising Bavala Nagar Panchayat shall be known as Bavala Nagar Panchayat covering the area of Bavala Revenue village and Ramnagar Gram Panchayat covering the area of Ramnagar New Vasahat. This notification was challenged by the President of Bavala Nagar Panchayat by filing a petition in this Court, being Special Civil Application No. 9001 of 1991. The learned single Judge who heard the said petition, rejected the same summarily on the ground that the decision to bifurcate Bavala Nagar Panchayat cannot be said to be otherwise than in accordance with law and that it cannot be said that there was no consultation as required under the provisions of Sec. 9 of the Act. The President of Bavala Nagar Panchayat has, therefore, filed this appeal.

(2.) The learned Counsel appearing for the appellant submitted that with respect to the proposal to split up Bavala Nagar Panchayat into Bavala Nagar Panchayat and Ramnagar Gram Panchayat, Bavala Gram Panchayat was earlier consulted and accepting what the Panchayat had to say in that behalf, the Government had on 24-12-1990 decided not to accept the said proposal. While taking that decision, the Government had taken into consideration the fact that the area for which Ramnagar Gram Panchayat was to be constituted was neither a village nor a hamlet, but it was a settlement of agricultural labourers on four survey numbers and also the circumstances that the standard of revenue income laid down for constituting independent Gram Panchayat was not satisfied and the new Panchayat was not likely to be economically viable. Thus, the said proposal was dropped and the new proposal came to be accepted by the Government without consulting the Bavala Nagar Panchayat and therefore, the impugned notification issued under Sec. 9(2) of the Act deserves to be quashed. It was submitted that the prior consultation done before 24/12/1990 cannot be treated as consultation as contemplated by Sec. 9(2) of the Act, for the purpose of the impugned notification. It is not in dispute that Bavala Nagar Panchayat was not consulted again after 24/12/1990. The contention raised on behalf of respondents Nos. 1 to 4 is that with respect to the proposal for bifurcating Bavala Nagar Panchayat, the said Panchayat was consulted and it was not necessary to consult it again while reconsidering the said proposal. It was also submitted that Sec. 9(2) has been held to be directory in nature by this Court and, therefore, even if the Court proceeds on the basis that there is no consultation as contemplated by Sec. 9(2), the decision of the Government and the consequent impugned notification cannot be regarded as illegal or bad.

(3.) This Court, in the case of Kalubhai v. State of Gujarat, (1965) VI GLR 459 has held that the provision contained in Sec. 9(2) is directory and not mandatory. It is further held that the provision about prior consultation of the Panchayat concerned has not been included in the section as a safeguard of a right of a person, but seems to be a more direction to take the sense of the Panchayat before its limits are altered or added to. Since Sec. 9(2) provides for the reconstitution of a village, it also provides that the sense of the Panchayat should be taken before its limits are altered. The section, however, does not prescribe what consequences would follow if prior consultation is not made before taking an action under the section. Considering the consequences that are likely to follow on the taking of an action under the section and the effect of noncompliance with that part of the section which provides for a prior consultation, and considering the subject matter of the provision and its relation to the general object thereby intended to be secured, and upon a review of the matter according to the principles of construction, it appears that the provision is directory and although it does not indicate a duty to consult the Panchayat before passing an order under the section, it does not follow that every departure from that duty will taint the whole proceeding with a fatal blemish and render it void and ineffective.