BANSIDHAR KHATUA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The only question urged in this petition is inclusion of the two villages, namely, Chuliapasi and Patpur in the Udala N.A C. by virtue of the notification Under Section 4 (3) (b) of the Orissa Municipal Act without excluding the two villages from the Khaladi, Grama Panohayat in which they were earlier continuing. The admitted facts are that the two villages were continuing in the Khaladi Grama Pnnchayat as per reconstitution of the Grama notified Under Section 3 (1) of the Orissa Grama Panchayat Act The State Government issued notification on 30 7 -1988 inviting objections to the inclusion of the two villages in the Udala N.A.C. and thereafter the impugned notification was issued on 25 -10 -1989 declaring inclusion of the to villages in the N.A.C. It is the submission of the learned counsel for the petitioners who are inhabitants of the two villages, that the notification was had in law as by the time it was made the two villages were statutorily continuing in the Khaladi Grama and no notificntion had been issued Under Section 3 (2) of the Orissa Grama Panchayat Act excluding them from the Gram. It is the submission that as constitution of a Grama is a statutory declaration and the villages with which the Grama is constituted continue to be in the Grama until reconstitution is made, the two villages were not available to be included in the N.A.C. until they were excluded from the Grama by notification Under Section 3 (2) of the Orissa Grama Panchayat Act and consequently the notification under the Orissa Municipal Act including the two villages in the N.A C. could not have been made. A counter affidavit has been filed accepting the statement made in the writ petition. It is the averment therein that after the inclusion of the two villages in the N.A.C. the G.D. and R.R, (G.P.) Department recognised the Khaladi Grama Panchayat excluding the two villages as per the notification No. 447 -LS -XIII -2/90 -GP dated 6 1 -1990 published in the extraordinary issue of the Orissa Gazette No. 70 dated 16 -1 -1990, a copy of which has also been produced before us in Court today by the learned Addl. Govt. Advocate. The submission of the learned counsel for the petitioners is in law unassailable. The villages before their inclusion in the N.A.C. were to have been physically available for such annexation, but until the exclusion notification of the Grama was made, they were not so available. The impugned notification as such becomes still born despite the fact that the procedure otherwise necessary for inclusion of the Grama in the N.A.C. had been undergone. Because of such reasons, the notification becomes liable for cancellation. We are however aware that even if th3 notification becomes bad in law, yet all that remains to be done is to publish a fresh notification of inclusion in the N.A.C. of the two villages since all other steps have been taken and the villages have in fact been excluded from the Grama since 6 -1 -1990.

(2.) IN that view of the matter, wa allow the writ application and quash the notification in Annexure 6. Hearing fee is assessed at Rs. 300/ -.