JUDGMENT N.V. Dabholkar, J.
1. By this petition, the petitioners, who represent the village panchayat Talegaon and who are also members of the said village panchayat, challenge the notification dated 16th August, 2007, No. VPM 2607/CR-4334/PR-4(22) issued by the Rural Development and Water Conservation Department, Government of Maharashtra. By the said notification, original revenue village Talegaon, which within its territorial limits, comprises Krishnanagar, was bifurcated into two revenue villages by exercising the powers as conferred by Article 243(g) of the Constitution of India Rule with Section 4 of the Bombay Village Panchayats Act, 1958 (Bombay Act III of 1959). The two newly constituted revenue villages are Talegaon and Krishnanagar, both within Chalisgaon tahsil of Jalgaon district. Consequently, the notification issued by the Additional Collector, Jalgaon on 26.10.2007, No. Sasha/gramapa/kavi/85/2007, inviting objections for constitution of wards in the gram panchayat for election of panchayat of Krishnanagar is also sought to be quashed.
2. It is admitted position that the proposal for such bifurcation was initiated by the Group Gram Panchayat Talegaon which comprises within it hamlet (Tanda) Krishnanagar, Talathi had certified the population of Talegaon to be 4,238 and of Krishnanagar to be 2,246. The Block Development Officer had given no objection to the said proposal in view of the fact that village Krishnanagar was one and half Kms. away from Talegaon. During the pendency of the said proposal with the State Government, the State Election Commission had also issued proposal for election process of village Talegaon (erstwhile inclusive of Krishnanagar).
3. It is the contention of the petitioners that the notification is vitiated by two vices (I) According to the petitioners, the notification is issued after election process for village panchayat Talegaon (Original) had commenced and the Code of Conduct was made applicable. This was in breach of Condition (Z) as incorporated in the Government Resolution No. 2603/ prakra.1544/ parra-4(22) dated 12th February, 2004 issued by the Deputy Secretary. A copy of this notification is at Exh.N (paper-book pages 60 to 62) and it is evident that the notification is issued by order and in the name of Governor of Maharashtra. According to Advocate Shri Deshmukh, the conditions in the notification, therefore, have statutory force; (II) The notification is also issued in breach of the requirement of Sub-section (2) of Section 4 of the Bombay Village Panchayats Act, 1958, which reads thus:
4. Declaration of Village:
(1) xxx xxx xxx (2) Where the circumstances so require to include or exclude any local area from the local area of a village or to alter the limits of a village or Page 0036 that a local area shall cease to be a village, then the notification issued in the like manner after consultation with the Standing Committee and the Gram Sabha and the panchayat concerned, at any time, may provide to
(a) include within, or exclude from any village, any local area or otherwise alter the limits of any village, or
(b) declare that any local area shall cease to be a village; and thereupon the local area shall be so included or excluded, or the limits of the village so altered, or, as the case may be, the local area shall cease to be a village.
According to Advocate Shri Deshmukh for the petitioners, there has been no consultation with the standing committee of the Zilla Parishad, Jalgaon and also with the Gram Sabha of village Talegaon and, therefore, the notification vitiates being in breach of legal mandate and he has, therefore, prayed for striking it down.
4. Rule, made returnable forthwith by mutual consent.
5. So far as first objection is concerned, Advocate Shri Shelke, on instructions, has produced on record a communication from the Addl. Collector, Jalgaon which is taken on record and marked as Exh.X, which indicates that the notification regarding formation of wards for the election of original gram panchayat of Talegaon was finalised on 6th August, 2007 and the programme for this process of formation of wards had commenced on 3.7.2007. It is further informed that election programme was declared on 22.8.2007 and, therefore, the Code of Conduct became applicable w.e.f. 22.8.2007 and was to remain in force till conclusion of the election process.
Advocate Shri Deshmukh insisted for holding that the election process started w.e.f. 3rd July, 2007 when the Collector, Jalgaon started taking steps for constitution of suitable wards for the purpose of holding election. The submission of Advocate Shri Deshmukh stands supported by learned Counsel Shri Shelke for the Election Commission by his interpretation of the details furnished with Exh.X. According to Advocate Shri Shelke, the process of constitution of appropriate wards for the purpose of voting is part and parcel of election process. What commenced on 22nd August, 2007 with application of Code of Conduct was the election programme. Advocate Shri Shelke explains that election programme is part and parcel of entire larger election process. The election process begins with State Election Commission taking appropriate steps for formation of wards, constituencies etc. and election process concludes with conclusion of election programme by declaration of result etc. Advocate Shri Deshmukh for the petitioners was justified in placing reliance on the Government Resolution dated 12th February, 2004 and more particularly, Condition (Z) incorporated in the same, certainly there is a bar created for creation of new village panchayat after commencement of election process of a village panchayat and also after Code of Conduct has become applicable. The actual words used are .............. (i.e. after process for election of a village panchayat has started, so also if Code of Conduct has become applicable). Page 0037 Advocate Shri Shelke explains that what started with the notification dated 22nd August, 2007 is the election programme which is part and parcel of the election process. The election process really started when the State Election Commission proceeded for taking steps for the purpose of constitution of wards for the purpose of election.
6. The interpretation of Advocate Shri Shelke cannot be lightly brushed aside, because once exercise of constitution of wards is completed by the Election Commission, the platform is ready for declaration and holding of elections. Probably, the use of words .............. (i.e. election process and not election programme) in the Government Resolution is aimed at covering the preparatory stages of the election programme i.e. stages which are required to be taken for the purpose of coming to a stage of readiness to declare and conduct election programme.
7. If that be so, in our case, the election process had commenced on 3.7.2007. Election programme was declared, had commenced and Code of Conduct had become applicable w.e.f. 22.8.2007. The impugned notification was issued on 16.8.2007 which was before commencement of election programme and applicability of Code of Conduct but, after commencement of election process. Viewed thus, the notification is vitiated by breach of Condition (Z) in Government Resolution dated 12th February, 2004.
8. So far as breach of Sub-section (2) of Section 4 of the said Act is concerned, Advocate Shri Deshmukh for the petitioner placed reliance upon the reported judgments, to which we intend to refer.
In the matter of Ashok Ganapat Jadhav and Anr. v. State Election Commission and Ors. 2000 (Supp.) Bom.C.R. 337. The Division Bench of this High Court observed thus, in paragraph 13:
13. By now it is well settled in law that after the introduction of Part IX in the Constitution and the consequent amendments to the provisions of Section 4 of the V.P. Act, an opportunity of hearing prior to the delimitation order is passed, is mandatory and the order to be passed by the State Government for delimiting the areas of a Village Panchayat or separating a group Grampanchayat into two village Panchayats mandate a prior opportunity of hearing to the village residents in keeping with the rule of audi alteram partem. Even the language of the amended provisions of Section 4 of the Act is distinctly different from the old provisions and the amended provisions reflect the constitutional mandate so as to meet the aspirations and ambitions of the villagers.
A village is a community which has its own rights, privileges, aspirations, obligations and responsibilities, etc. and, therefore, it would not be sufficient to consult only the Village Panchayat or a committee of the Village Panchayat before delimiting the village areas. What is explicit in the Constitutional mandate and the provisions of Section 4 of the Act is the mandatory requirement of the villagers being heard before such an order of delimiting is passed by the Government. Page 0038 This opportunity of hearing may be by way of displaying notice on the village Chawdi/Panchayat or any place prominent in the respective wards and/or by giving a public notice by beat of drums and it may not be necessary to give individual notice of hearing to every villager. So long as the mode of giving notice to all the villagers by way of publication, the announcement by beat of drums, etc., is followed and they are called upon to put up their say on the proposal of delimitation, the principles of natural justice would be met.
In the matter of Baldev Singh and Ors. v. State of Himichal Pradesh and Ors. , the Honourable the Supreme Court was dealing with Section 256 of Himichal Pradesh Municipal Act and following observations in paragraph 5 are relied upon by Advocate Shri Deshmukh:
We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after considering the views of the residents. Denial of such opportunity is not in consonance with the scheme of the Rule of Law governing our society. We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way.
That the provision regarding consultation is not a mere formality, is sufficiently emphasized by the observations of the Division Bench of this High Court as well as the observations of Honourable the Apex Court. On reference of Sub-section (2) of Section 4 of the said Act, it is evident that consultation by the State Government is necessary at three levels:
(1) Standing Committee (of Zilla Parishad), (2) Gram Sabha i.e. entire population of the village and (3) the Panchayat.
9. In the peculiar facts and circumstances of the case, we may not find fault with the notification merely because Panchayat was not consulted. This is because initially the proposal was moved by the panchayat. It is the contention of Advocate Shri Deshmukh that the proposal is upheld by the State Government in modified form and, therefore, panchayat also ought to have been consulted.
10. However, no reply is filed on behalf of the Zilla Parishad, Jalgaon and the learned Counsel for the Zilla Parishad informed across the Bar that he is under instructions to inform the Court that there was no consultation with the Standing Committee of Zilla Parishad, Jalgaon before passing the impugned resolution.
So far as the consultation is concerned, reply is filed on behalf of Respondents 1 to 3 by Shri M.B. Aher, Residential Naib Tahsildar, Chalisgaon, Dist. Jalgaon of which the contents in paragraph 10 relate to the issue of consultation:
Page 0039 It is clear that, the Government have published notification after consultation with the standing committee of Zilla Parishad, Jalgaon and Village Panchayat and Gram Sabha Talegaon, Tq. Chalisgaon, Dist. Jalgaon.
On reading paragraph 10 as a whole, it is evident that the affiant is relying on the contents of the Government Notification to the effect that Government declared bifurcation of the said two revenue villages after consultation with the standing committee of Zilla Parishad, Jalgaon. The affidavit is not accompanied by the documents which would support his statement. We may illustrate that the affidavit is not supported by any panchanama drawn by Village Officer such as Talathi or Gram Sevak or Kotwal that the notice was published for all citizens of the two villages inviting objections, if any, to the proposal of bifurcation of village Talegaon into two villages. There is no document to indicate that any Gramsabha was invited, held and a resolution was passed either unanimously or by majority in favour of bifurcation with or without any suggestion or modification. In the absence of such supporting material, we are unable to place reliance upon the averments which are based upon the contents of the Government Resolution. Even if, we presume for the sake of argument that there had been a Gramsabha which agreed to the bifurcation, the fact remains that there was no consultation with the Standing Committee of the Zilla Parishad, Jalgaon. In Sub-section (2) of Section 4 of the said act, consultation with all three is necessary and there is no exemption so far as consultation with either of the three, if there is consultation with remaining two. We, therefore, feel that the impugned resolution bifurcating original Talegaon village into two revenue villages i.e. Talegaon and Krishnanagar is also in breach of the requirement of Sub-section (2) of Section 4 of the Bombay Village Panchayats Act, 1958 and, therefore, cannot be sustained.
11. Writ Petition is, therefore, allowed by making Rule absolute in terms of prayer Clause (B).