High Court
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.16627 of 2016 (In the matter of an application under Article 226 of the Constitution of India, 1950) ******* Radhashyam Mahakur and others … Petitioners Mr. Himansu Sekhar Mishra, Advocate State of Odisha and others -versus- … Opposite Parties Mr. Baibaswata Panigrahi, Additional Standing Counsel (For Opposite party Nos.1 to 3) Mr. Amit Prasad Bose, Advocate (For Interveners) ------------------------------------------------------------------------------- Date of Judgment: 17.04.2023 ------------------------------------------------------------------------------- CORAM: JUSTICE KRUSHNA RAM MOHAPATRA JUDGMENT KRUSHNA RAM MOHAPATRA, J. 1. 2. This matter is taken up by virtual/physical mode. This Writ Petition has been filed assailing order dated 30th July, 2016 (Annexure-2) passed by Commissioner-cum- Secretary, Panchayatiraj Department, Government of Odisha-Opposite Party No.1, whereby a new Grampanchayat (GP), namely, ‘Khursel’ has been constituted by bifurcating ‘Larambha’ GP under Patnagarh block in the district of Balangir. W.P.(C) No.16627 of 2016 Page 1 of 14
Legal Reasoning
the direction of this Court in W.P.(C) No.8863 of 2016, the Commissioner-cum-Secretary, Panchayatiraj Department, took up the matter and issued Annexure-2, which is in flagrant violation of norms and procedure prescribed under Annexure-1 for creation of Grama Panchayats and fixation of headquarter. He, therefore, prays for setting aside the impugned order under Annexure-2. 3.4 It is his submission that in case it is held that creation of ‘Khursel’ as new GP is justified, the villagers of Indupur should be allowed to be with Larambha GP in view of geographical barriers as well as convenience of villagers of Indupur at large. W.P.(C) No.16627 of 2016 Page 4 of 14 3.5 Mr. Panigrahi, learned ASC vehemently objected the submission made by learned counsel for the Petitioners. It is his contention that admittedly no recommendation was made by the DLC to the Government for creation of ‘Khursel’ GP in the instant case. But, one Subala Mahalinga and some villagers of Debhuin, Khursel and Indupur (interveners herein), had filed W.P.(C) No.8863 of 2016 before this Court with a prayer to constitute a new GP, namely, ‘Khursel’ by including the villagers of above named villages under Patnagarh block. This Court, vide order dated 24th June, 2016, disposed of the said writ petition with a direction to the Petitioners therein to file appropriate application before Commissioner-cum- Secretary, Panchayatiraj Department-Opposite Party No.1 along with a copy of the said order and in that event, the Opposite party No.1 was directed to consider and dispose of the same after affording reasonable opportunity of personal hearing to the parties within sixty days of receipt of such application. Accordingly, personal hearing in the matter was conducted by Opposite Party No.1 on 27th July, 2016 at 11.30 AM in the Panchayatiraj Department Conference Hall in presence of District Panchayat Officer, Balangir along with interveners. Thereafter, order under Annexure-2 was issued constituting ‘Khursel’ GP consisting of three villages, namely, Indupur, Khursel and Debhuin. Considering that village Khursel is centrally located and keeping in mind the convenience of other two W.P.(C) No.16627 of 2016 Page 5 of 14 villagers, headquarter of the newly bifurcated GP was directed to be fixed at Khursel village. 3.6 It is his submission that population of a village is not the sole criteria to fix headquarter of a GP. It is keeping in mind the geographical contiguity, natural barriers and administrative convenience, distance factor from farthest villages of proposed GP headquarter; the same has been fixed at village ‘Khursel’. Since the reconstitution of GP was undertaken pursuant to the direction of this Court, the procedure for reconstitution of GP by constituting BLC and consideration of their report was not necessary in the instant case. However, objections of the villagers and interveners were taken into consideration and they were given personal hearing as directed by this Court in W.P.(C) No. 8863 of 2016. Hence, no illegality has been committed by creating a new GP, namely, Khursel or fixing its headquarter in that village. 3.7 Mr. Panigrahi, learned ASC further submitted that since creation of Khursel GP is the decision of the State Government in Panchayatiraj Department keeping in view the criteria provided under Annexure-1, this Court should not interfere with said decision like an appellate authority. In support of his decision, he relied upon the case of Harihar Swain and others Vs. State of Orissa and others, reported in 96 (2003) CLT 454, wherein it is held as under:- W.P.(C) No.16627 of 2016 Page 6 of 14 have weighed with “6. Fixation of headquarters of a Grama Panchayat in any particular village is essentially an administrative matter and so long as relevant considerations the Government, in fixing the headquarters in a particular village, the High Court cannot interfere with the decision of the Government like an Appellate Authority and quash the decision of the Government. While exercising power under judicial review, the High Court under Article 226 of the Constitution has only to see whether the administrative power has been exercised within the limits of law and taking into account the relevant considerations and so long as the High Court is satisfied that the power has been exercised within the limits of law after taking into account the relevant considerations, the High Court will not interfere with the same on the ground that it should have been located at a different place.” He also relied upon a decision in the case of Keshab Sahukar Vs. State of Orissa represented through Commissioner-cum-Secretary, Panchayatraj Department and others, reported in (2016) 121 CLT 152, wherein at para-7, it is held as under: “7. Sub-Section (3) of Section 4 of the Orissa Gram Panchayat Act, 1964 reads as follows :- "(3) The office and headquarters of the Grama Sasan shall be situated within the limits of the Grama and unless otherwise ordered by the State Government in the village bearing the name of the Grama." Interpreting the aforesaid provision, this Court in the case of Sarpanch, Allaori G.P. and others vs. State of Orissa and others, 2011 (Supp.-II) OLR - 943, has held that, ordinarily the Headquarter of the Gram Panchayat should be fixed in the village bearing the name of the Grama. In appropriate case, it can be fixed in some other village. Almost same is the view of this Court in the case of Pedenti Malana and others vs. State of Orissa W.P.(C) No.16627 of 2016 Page 7 of 14 to locate ignoring the Government and others, 97 (2004) C.L.T. 607. So far as the power of the Headquarter of a Gram Panchayat is concerned, this Court in a catena of decisions has held that such power is an administrative power of the Government. This Court, in the case of Bijay Kumar Behera & others vs. State of Orissa & others, 91 (2001) C.L.T. 249, has held that discretion is vested upon the Government to locate the Headquarter of the Gram Panchayat. That discretionary power has to be exercised on relevant consideration germane to the issue and cannot be permitted to be exercised on extraneous consideration. Though the Court is restrained to interfere with the discretion exercised by the State Government so long as the said discretion is exercised bona fide, but it would be fully entitled to interfere when it comes to the conclusion that the discretion has been exercised arbitrarily basing on extraneous consideration or has been exercised relevant materials. the Absence of any mode or guidelines does not vest unfettered power upon the Government. …….. Same is the view of this Court in the case of Harihar Swain and others vs. State of Orissa and others, 96 (2003) C.L.T. 454. It is specifically held in that case that, fixation of the Headquarter of a Gram Panchayat in any particular village is essentially an administrative matter and, so long as relevant considerations have weighed with the Government in fixing the Headquarters in a particular village, the High Court cannot interfere with the decision of the Government like an appellate authority and quash the decision of the Government. While exercising powers under judicial review, the High Court under Article 226 of the Constitution has only to see whether administrative power has been exercised within the limits of law after taking into account the relevant considerations, and so long as the High Court is satisfied that the power has been exercised within the limits of law after taking into account the relevant considerations, the High Court will not interfere with the same on the ground that it should have been located at a different place. It has further been held that, power has been vested in the State Government to decide the Headquarters of the Grama Sasan and such the office and location of the W.P.(C) No.16627 of 2016 Page 8 of 14 to time time depending upon power can be exercised by the State Government from the requirements of the public interest and there is no statutory bar for the Government to re-consider and take a fresh decision in the public interest. Same is the view of this Court in the case of Smt. Babita Negi and others vs. State of Orissa and others, 100 (2005) C.L.T. 397.” In view of the above, although village Indupur has the highest population in comparison to other two villages of Khursel GP, but taking into consideration that Khursel is the centrally located and is convenient for the villagers of tagged villages together with the fact that there is no natural barrier etc., decision under Annexure-2 has been taken. As such, the same warrants no interference. 4. Mr. Bose, learned counsel for the interveners submitted that pursuant to order dated 17th March, 2021 passed in Misc. Case No.17157 of 2016, the interveners have been impleaded as parties to the writ petition. However, the Petitioners have not filed consolidated cause title as yet. It was his submission that while reconstituting or bifurcating a GP Clauses-5, 6, 7 and 10 of the notification under Annexure-1 should be harmoniously construed. The said Clauses read as follows:- “5. Grama Panchayats having population around 10,000 or more shall be bifurcated and reorganized basing on geographical location, natural barrier and administrative convenience for constitution of a new Grama Panchayat. 6. Boundary of existing Grama Panchayat will be changed by inclusion and exclusion of villages on the ground of geographical contiguity, natural barrier and administrative convenience. W.P.(C) No.16627 of 2016 Page 9 of 14 selecting 7. The distance factor from the farthest village to the proposed Grama Panchayat headquarter should be the G.P. around 2-5 Kms. While Headquarters, proper care should be taken that the proposed G.P. headquarter is easily approachable from the and administratively convenient to the people. Overall, the average population of the Grama Panchayat should be around 5000. centrally villages, located tagged xx xx xx The number of Zilla Parishad Constituencies 10. the Panchayat Samiti area shall remain within unchanged and accordingly, the Zilla Parishad Constituencies shall be reorganized comprising number of Grama Panchayats coming under the concerned Z.P. constituency. The following priority shall be given to cover the village as G.P. Headquarter; i) Population of 2,000 and above as 1st priority; ii) Population of 1,500 and above as 2nd priority; iii) Population of 1,000 and above as 3rd priority In case two or more villages come under the same category, then higher population, locational advantage and administrative convenience should be given preference for constitution of new Grma Panchayat headquarter. xx xx” xx
Arguments
3. Mr. Mishra, learned counsel submitted that the villagers of Indupur under Patnagarh block are the Petitioners in this Writ Petition. Previously village Indupur was part and parcel of Larambha GP along with nine other villages. The State Government in the Department of Panchayatiraj in exercise of power under Section 149 of the Odisha Grama Panchayats Act, 1964 (for brevity ‘the Act’) issued Notification No.10729 of 1st July, 2015 (Annexure-1) prescribing norms, procedure and time table for reorganization and delimitation of Gramas of State of Odisha. Accordingly, process was initiated for reorganization and delimitation of Gramas throughout Odisha. However, without following the prescribed procedure prescribed under Annexure-1, Khursel GP has been constituted comprising of three villages, namely, Indupur, Khursel and Debabhuin bifurcating the same from Larambha GP. The Petitioners in particular and villagers of Indupur in general, who are natives of Indupur village, are facing immense difficulties after creation of Khursel GP. 3.1 It is his submission that taking into consideration the geographical barriers as well as location of the village, village Indupur should have been part and parcel of Larambha GP. Further, fixation of headquarter of GP at Khursel is contrary to the prescription under Clause-10 of Annexure-1, which provides as under:- W.P.(C) No.16627 of 2016 Page 2 of 14 “10. ……….. The following priority shall be given to cover the village as G.P. Headquarter; i) Population of 2,000 and above as 1st priority; ii) Population of 1,500 and above as 2nd priority; iii) Population of 1,000 and above as 3rd priority In case two or more villages come under the same category, then higher population, locational advantage and administrative convenience should be given preference for constitution of new Grma Panchayat headquarter. xx xx xx” Since village Indupur has the highest number of population priority should have been given for fixation of headquarter of bifurcated GP at Indupur. 3.2 He further submitted that Annexure-II to the notification under Annexure-1 provides the procedure for reorganization and delimitation of Gramas. It provides that a Block Level Committee (BLC) will be constituted consisting of the concerned Block Development Officer, Tahasildar, Child Development Project Officer and Grampanchayat Extension Officer as its members, who are assigned to take up preparation of data sheet of proposed reorganization of Grama Panchayats by bifurcation or amalgamation of villages adjoining to the Grama as per law. The BLC will finalize the report within a month from the date of issue of notification by the Department and submit it to the District Level Committee (DLC) for verification and recommendation to the Government. Recommendation of the BLC along with trace map in W.P.(C) No.16627 of 2016 Page 3 of 14 distinguished colour for proposed new Grama Panchayat is to be furnished to the DLC who in turn scrutinize the same and make recommendation to the Government for creating of new Grama Panchayat. In the instant case, neither any BLC has been constituted for bifurcation of Larambha GP nor has any recommendation been made by the DLC to the State Government. The Government in Panchayatiraj Department took up the matter at its level and issued order under Annexure-2. Neither any objection was called for from the villagers nor was any opportunity of hearing given more particularly to the villagers of Indupur before issuing Annexure-2. 3.3 In the counter affidavit, it has been stated that pursuant to
Decision
In view of the above, population of a village is not the sole criterion to fix headquarter of the GP. Along with population, geographical contiguity, natural barriers, administrative convenience, location of the village for fixation of headquarter as well as easy approachability of the villagers of the tagged villages were taken into consideration while issuing order under Annexure- 2 by creating Khursel GP and fixing headquarter at Khursel. Referring to the village map at Annexure-A/2 to the counter affidavit filed by the State Government Mr. Bose submitted that Khursel is the centrally located village, which situates in between Indupur and Debhuin. There is W.P.(C) No.16627 of 2016 Page 10 of 14 also no natural barrier in between three villages. Further, the farthest point of village Indupur is within three kilometers from the proposed headquarter. No case has been made out by the Petitioners to fix headquarter at Indupur. Only vague statements have been made in the writ petition raising objection for fixation of headquarter at village Khursel. Initially there was no proposal for creation of a GP bifurcating from Larambha GP. It is at the instance of the villagers of Indupur, Khursel and Debhuin writ petition bearing W.P.(C) No.8863 of 2016 was filed. As per the direction of this Court, the Commissioner-cum- Secretary, Panchayatiraj Department-Opposite Party No.1 considered the grievance of the interveners herein and giving ample opportunity to the persons to have their say, passed the order under Annexure-2. Perusal of averments made in the writ petition makes it abundantly clear that the Petitioners are aggrieved by the decision of fixation of headquarters at Khursel. Since village Khursel is centrally located and convenient for villagers of other two villages there is no illegality for fixation of headquarter. As such, order under Annexure-2 warrants no interference. Hence, he prays for dismissal of the writ petition. 5. Heard learned counsel for the Parties; perused the materials on record. Admittedly, no recommendation was made for creation of Khursel GP. Thus, submission of report by the BLC and recommendation for creation of new GP by the DLC does not arise in this case. At the instance of the W.P.(C) No.16627 of 2016 Page 11 of 14 interveners W.P.(C) No.8863 of 2016 was filed and pursuant to the direction of this Court, the Commissioner- cum-Secretary took up the matter and upon consideration of the objections raised and giving opportunity of personal hearing of the parties concerned. Khursel GP has been created consisting of three villages, i.e., Indupur, Khursel and Debhuin. As per Clause-10 of Annexure-1 notification priority for fixation of headquarter should be given to the village which has the largest population. But population is not the sole criteria for fixation of headquarter of a GP in view of Clause-6 of the notification under Annexure-1. The distance factor from the farthest village to the proposed Grama Panchayat headquarter should be around 2-5 Kms. It is also prescribed therein while selecting the G.P. Headquarters, proper care should be taken so that the proposed G.P. headquarter is easily approachable from the tagged villages, centrally located and administratively convenient to the people. Admittedly, Khursel is the centrally located village, which situates in between Debhuin and Indupur. There is no natural barrier in between these three villages. It is stated in the counter affidavit that the distance between two villages, i.e., Indupur and Debhuin to village Khursel, where headquarter of the GP is proposed, is less than three kilometers from the center point, i.e., new GP Khursel. Although it is stated in the writ petition that the villagers of Indupur will face immense difficulties if the headquarter of W.P.(C) No.16627 of 2016 Page 12 of 14 GP is fixed at Khursel, but no specific material has been placed in support of the same. 6. Mr. Mishra, learned counsel for the Petitioners submitted that since headquarter of Larambha GP is less than one kilometer from village Indupur, it should be allowed to be tagged with Larambha GP instead of newly bifurcated Khursel GP. This contention has no legal basis. Firstly, there is no material on record to show that headquarter of Larambha GP is less than one kilometer from village Indupur. Secondly, only because approaching headquarter at Larambha GP will be convenient for some of the villagers of Indupur the larger interest of said village cannot be brushed aside and given a goby. As held in the case of Harihar Swain (supra) and Keshab Sahukar (supra) the power to fix the GP headquarter is administrative in nature. Hence, this Court should not sit over the same as an appellate authority. 6. A contention has been raised by learned counsel for the Petitioners that procedure prescribed in the notification under Annexure-1 has not been followed while constituting Khursel GP or fixation of its headquarter. As discussed earlier, since the process of creation of new GP was initiated pursuant to the direction of this Court in the earlier writ petition filed by the interveners herein, initial report by BLC and recommendation by DLC are immaterial in the case at hand. On perusal of Annexure-2, it appears that upon hearing parties concerned and W.P.(C) No.16627 of 2016 Page 13 of 14 consideration of representation filed by the interveners, the same has been passed. Submissions made by learned counsel for the parties does not make out any manifest error or glaring defect in reconstituting Khursel GP and fixation of its headquarter. Although pursuant to the interim order, the office of the headquarter has not been opened at Khursel, but there is no objection of the public at large of the above named three villages in receiving benefits under different Schemes and benefits of the Governance. 7. As such, this Court finds no reason to interfere with the order under Annexure-2. Accordingly, the writ petition being devoid of any merit stands dismissed. 7.1 Interim order dated 28th September, 2016 passed in Misc. Case No.15555 of 2016 stands vacated. Urgent certified copy of the Judgment be issued on proper application. (KRUSHNA RAM MOHAPATRA) JUDGE s.s.satapthy High Court of Orissa, Cuttack 17th April, 2023 W.P.(C) No.16627 of 2016 Page 14 of 14