KALUBHAI KESRISINGH MAHIDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India is brought by the petitioner on the following facts:

(2.) The petitioner is a resident of village Deva Vanta in Petlad Taluka District Kaira. The village Panchayat of the village Deva Vanta was established for the first time in 1956 under the provisions of the Bombay Village Panchayats Act of 1933. Under section 4 of that Act the local area comprising of the village Deva Vanta with its suburb Ruun was declared to be a village for the purposes of the said Act. That village was comprised of S. Nos. 1 to 738 including roads. pasture lands and other waste lands. The Village Panchayats Act 1959 came into force in January 1959 and the village Panchayat constituted immediately before the Act of 1959 came into force were continued to be village panchayats thereafter Therefore the local area for the Panchayat of the village Deva Vanta continued to be the same as before and comprised of S. Nos. 1 to 736 which included within the local area the village side of Ruun. The Gujarat Panchayats Act 1961 came into force on 24th February 1962 and section 325 of that Act provided that any local area which was declared to be a village immediately before the coming into force of that Act shall be deemed to be the Gram under the Gujarat Panchayats Act of 1961 and the Panchayats constituted under the Act immediately before the said date shall be deemed to be the Panchayats of the respective Grams and the Sarpanch or Up-Sarpanch and the members of the Panchayat elected or appointed for the Village Panchayat holding office immediately before the Act would respectively be deemed to be the Sarpanch the Up-sarpanch and the members of the new Panchayat. According to the petition elections were held in the year 1961. The petitioner and opponents Nos. 5 to 12 were returned to the Panchayat and respondent No. 9 and the petitioner were elected as Sarpanch and Up-sarpanch respectively. Respondent No. 9 having resigned from his office of Sarpanch the petitioner has been officiating as Sarpanch of the Panchayat. By an order addressed to the Panchayat the Mamlatdar Petlad informed the Panchayat that the Government intended to separate the Ruun area of the Panchayat and by a Resolution dated July 9 1960 the Panchayat resolved that there was no objection to the separation of the Runn area from the local area of the Panchayat. By a Notification dated October 14 1963 the Commissioner Ahmedabad Division purporting to act under sec. 9(1) and (2) of the Gujarat Panchayats Act of 1961 altered the limits of the local area for which the Panchayat was established by excluding from the local area the village site of the village Ruun and S. Nos. 247 to 532 of the village Deva Vanta and it is this order passed by the Commissioner under sec. 9(1) and (2) of the Act that has been challenged in the present petition.

(3.) The main grievance of the petitioner is that under sub-sec. (2) of sec. 9 the Government may by a notification in the Official Gazette after consultation with the Panchayat concerned include within or exclude from any Nagar or Gram any local area or otherwise alter the limits of the Nagar or Gram and that the Panchayat in the present case was consulted only on the question of the formation of a separate Gram Panchayat for the village Ruun but not on the question as to what survey numbers should be included in the local area of the said newly formed village of Ruun or what survey numbers should be encluded from the village Deva Vanta. According to the petitioner it was true that by a Resolution dated July 9 1960 the Panchayat had declared that there was no objection to a separate village Panchayat for the village of Ruun but according to the petitioner the Panchayat was never consulted as required by sub-sec. (2) of sec. 9 of the Gujarat Panchayats Act on the question as to what particular local area was to be included in the newly constituted Gram of Ruun.