MANJU DEVI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the notification issued under Sections 4, 56 of the Jharkhand Municipal Act, 2011 (hereinafter referred to as ' the Act, 2011- ) dated 01.09.2017 as contained in Gazette Notification No. 643 published on 31.08.2017 (Annexure-4 to the writ petition) whereby different Panchayats have been reconstituted to form a Nagar Panchayat, namely, Domchanch Nagar Panchayat. An alternative prayer has been made that the said notification dated 01.09.2017 should be applicable prospectively i.e. after the end of the elected tenure of the petitioners. Further prayer has been made for holding that in terms of Art. 243-E(2) of the Constitution of India, the elected period of the petitioners (which is still subsisting) cannot be curtailed by way of reconstitution of Panchayat.

(2.) The factual background of the case, as stated in the writ petition, is that the petitioners are the elected Mukhias of various Panchayats and in terms of Sec. 25 of the Panchayati Raj Act, 2001 (hereinafter referred to as ' the Act, 2001- ). The tenure of the elected body is five years from the date of the first sitting. Since the first sitting of the petitioners was held on 07.12015, their tenure will end on 06.12020. In the meantime, a notification dated 23.01.2017 as contained in memo No. 666 was published by the respondent-authorities under Sec. 4 of the Act, 2011 declaring an intention to create a Nagar Panchayat (including the Panchayat(s) from which the petitioners were elected as Mukhias) under Sec. 3(2)(b) of the Act, 2011 on the recommendation of the Deputy Commissioner, Koderma-respondent No. 5 as contained in letter No. 07 dated 04.01.2017. In terms of Sec. 5 of the Act, 2011, the objection to the said notification was to be filed within 30 days from the date of notification. Since the said notification was issued on 23.01.2017, the petitioners and other villagers made an objection through letter addressed to the President of India with copy to all the different authorities including the respondent No. 5 by Registered Post on 14.02017 i.e. within 22 days of the notification. On receipt of the objection, a letter dated 06.03.2017 was issued by the Deputy Secretary, Urban Development and Housing Department, Government of Jharkhand asking an opinion from the respondent No. 5 with regard to the said objection. The petitioners have claimed that the respondent-authorities without considering the objection of the petitioners, have issued the notification dated 01.09.2017 (published on 31.08.2017) declaring a new Nagar Panchayat, namely, Domchanch Nagar Panchayat, which includes total seven Panchayats including the Panchayats of the petitioners i.e. Domchanch East-Manju Devi, Mahathadih-Rinki Devi, Domchanch North-Munni Devi, Tetaryadih (part of the said Panchayat)-Subhadra Devi.

(3.) Mr. Rajiv Ranjan, learned Sr. counsel for the petitioners, submits that Chapter IX of the Constitution of India deals with the constitution of Panchayat, duration of the elected tenure and the manner in which the same can be dissolved. Art. 243-E of the Constitution of India provides for duration of the Panchayat and under no circumstance any constituted Panchayat can be dissolved before the expiry of the period of five years from the date appointed for its first meeting. Clause (2) of Art. 243-E specifically provides that no amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level. Since the impugned notification dated 01.09.2017 also comes within the definition of "law" under Art. 13(2) of the