KARMALL SINGH AND ANR.versusDARSHAN SINGH AND ORS.

A                        KARMAlL SINGH AND ANR.
                                   v.
                         DARSHAN SINGH AND ORS.

                             DECEMBER 16, 1994

B                   [K. RAMASWAMY AND G.N. RAY, JJ.]

        Punjab Gram Panchayat Act, 1952~ Sections 3(q), 4 and 5.

        State-Notification amalgamating two Gram Sabhas-Decision of
    amalgamation taken with a view to preventing misuse of office by one
c   Sarpanch-Decision held not arbitrary exercise ofpower by Government.
         In exercise of its power under Section 4 of the Punjab Gram
    Panchayat Act, 1952 the State of Haryana issued a Notification dated
    18.12.1991 amalgamating two Gram Sabhas namely Bhorakh and
    Harigarh Gram Sabhas. The State Government took the aforesaid
    decisions after taking into account the Report of Director of Panchayat
D
    that one Sarpanch has mismanaged and misused his ·office by illegally
    appropriating 86 acres and 2 kanals of land by obtaining fictitious and
    collusive decrees in the name of his supporters. The second respondent
    challenged the validity of the Notification before the Punjab and
    Haryana High Court. A Single Judge quashed it on the ground that
    misuse of office by a Sarpanch could be prevented by other alternative
E
    correctional methods; the two existing gram sabhas which were
    functioning smoothly on democratic basis could not be amalgamated o~
    account of misuse by one Sarpanch. The Division Bench also dismissed
    the appeal in Iimine.

        In appeal to this Court, on the question whether the High Court
F   was right in its conclusion that the action of Government was vitiated
    by arbitrary exercise of power, it was contended on behalf of the
    appellant that ·under Section 4(1) read with section 3(q) of the Act, for
    constitution of a gram sabha area, the village must be a revenue estate
    as defined under section 3(q); Harigarh was not a revenue estate while
    Bhorakh is a revenue estate. There cannot be two gram sabhas in one         I
G   revenue estate.                                                             '


        Allowing the appeal, this Court

         HELD: 1. The decision taken by the state Govt. cannot be said to
    be irrelevant, arbitrary and unwarranted on the facts of the case.
H                                                                    [705 F]
                                    700
                  KARMAIL SINGH v. DARSHAN SINGH                    701

    2. It is an executive policy decision taken by the Government to A
create separate Panchayats or to amalgamate the existing gram sabhas.
It would not be for the courts to evaluate and decide whether the
existence of the two gram sabhas should be continued or further
bifurcated or amalgamated. [706 CJ

     3. But the Government should have material and should consider B
the material before it takes the decision. In the absence of any material,
it can be said that it is an arbitrary decision taken by the Government.
But when there is some material before the authority or the
Government and the same was considered though two views may be
possible to be taken on the same material, it must be left to the Govt. to
take a decision which unless it is vitiated by mala tides, the court C
cannot substitute its view to that of the Government in constituting two
separate gram panchayats situated in the revenue estate or two
contiguous villages with a population of not less than five hundred.
                                                            [705 H, 706 A]

    4. In this case, the Government appears to have thought that D
misuse or abuse of the power by a Sarpanch should be prevented by
amalgamating two panchayats. Other corrective measures though may
be evolved, the action of the Government cannot be said to be
unwarranted or illegal or invalid. Accordingly, the impugned orders
are set aside and the notification date 18.12.1991 is upheld.
                                                            (705 E, 706 F] E

    5. Sub-section (1) of section 4 of the Punjab Gram Panchayat Act,
1952 indicates that a gram sabha area with a population of not less
than 500 may be constituted, by a notification, by the Government to
be a gram panchayat and that village must be a revenue estate as
defined in Section 3(q) . But in a village, which, in other words a F
revenue estate, if population is more than 500, but needs one or more
gram sabhas, there is no prohibition under section 4(1) for the
Government to exercise the power declaring such a gram sabha area
within the same revenue estate to be a Panchayat. For better or proper
administration of the panchayat in the same revenue estate one or more
gram sabha areas could be constituted by a notification declaring them G
to be separate gram panchayats. Therefore, the words 'or a group of
contiguous villages', in the second part of section 4(1) need not
necessarily be construed to mean for amalgamation of two revenue
estates into one revenue estate. That is not the purport and import of
the section or legislative intention. By amalgamation of the two revenue
estates one gram sabha area may be constituted by a declaration. H
    702                    SUPREME COURT REPORTS             [1994] SUPP. 6 S.C.R

A   Section 4(1) intends to operate in that perspective and the second clause
    of section 4 appears to operate in that arena. Thus considered in the
    same revenue estate, depending upon the facts and exigencies for
    smooth, proper, efficient or convenient administration of the gram
    sabha area, one or more than one sabha areas could be declared by a
    notification constituting for each sabha area a gram panchayat for the
B   purpose of the Act. [704 D, E, G, H, 705 A]

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 42of1995.

        From the Judgment and Order dated 21.12.93 of the Punjab and
    Haryana High Court in LP.A.No. 893of1993.
c         Manoj Swarup for the Appellants

          M.K. Dua for the Respondents.

          Ms. Nisha Baagchi for Ms. Indu Malhotra, for the State.

D         The following Order of the Court was delivered :

          Leave granted.

         The State Government of Haryana exercising the power under section
    4 of the Punjab Gram Panchayat Act, 1952, (for short 'the Act') issued the
E   notification dated 18.12.1991 amalgamating Bhorakh and Harigarh Gram
    Sabhas as Bhorakh Madan Harigarh Gram Sabha with consequential
    changes in the respective columns in Block Pehowa in Kurukshetra District.
    The said notification when was challenged by the second respondent and
    others in W.P.No. 499of1992, the learned Single Judge of the Punjab and
    Haryana High Court by his order dated November 2, 1993 quashed the said
F   notification. On appeal in L.P.A. No. 893/93, by order dated 21.12.1993,
    the Division Bench summarily dismissed the appeal. Thus, this appeal by
    special leave.

         It is not in dispute that in the year 1988 separate Gram Sabha areas
    were constituted which was upheld by the High Court. On November 13,
G
    1991, the Gram Panchayat, Bhorakh had resolved requesting the
    Government to amalgamate the two Gram Panchayats into one. Thereon,
    the Block Development and Panchayat Officer in his Report dated
    November 28, 1991 recommended for amalgamation which was reaffirmed
    by his subsequent report dated 30.11.1991. But the Deputy Commissioner
H   in his recommendation dated December 2, 1991 opined to maintain the two
                   KARMAIL SINGH v. DARSHAN SINGH                       703

Panchayats. On a representation made by the people, the Minister for A
Panchayats caused an enquiry made by the Director, Panchayats, who had
noticed that the then Sarpanch one Atma Ram, by obtaining fictitious
decrees in the names of third parties from Courts had unlawful possession
of 86 acres and 2 kanals of Gram Panchayat (Shamlat) land and that
therefore, it was a matter for amalgamation to avoid such mismanagement
and misuse of the office. When it was sent back for further enquiry, the B
Deputy Director had agreed to it. In the meanwhile, a notification was
issued on 11.12.1991 to maintain the two panchayats separately. After
receipt of the second report, the Government have resolved and the
Minister concerned had agreed for the amalgamation of the two pachayats
and constitution of one panchayat as stated hereinbefore. As stated earlier,
when the notification published under section 4(2) came to be challenged in C
the writ petition, the learned Single Judge quashed it mainly on the ground
that misuse of the office by the Sarpanch could be prevented by other
alternative correctional methods and on account of his misuse of the office,
the two gram sabhas, existing earlier and were functioning smoothly on
democratic basis, cannot be disturbed.
                                                                               D
     The question, therefore, is whether the High Court was right in its
conclusion that the action of the Government is vitiated by any arbitrary
exercise of power? Shri Manoj Swarup, learned counsel for the appellants
neatly argued raising two-fold contentions. Firstly, it is argued that under
section 4(1) read with section 3(q) of the Act, for constitution of a gram
sabha area, the village must be a revenue estate as defined under section      E
3(q). Harigarh was not a revenue estate while Bhorakh is a revenue estate.
There cannot be two gram sabhas in one revenue estate. The High Court,
therefore, has not considered this question of law. Though prima facie at
first blush we were inclined to agree with him, but on proper analysis we
find that there is no force in the contention. Section 3(q) reads thus :
                                                                               F
              "3. Definitions : In this Act unless the context otherwise
              requires:

              xx                       xx                              xx

              (q) 'Village' means any local area, recorded "as a revenue       G
              estate" in the revenue records of the district in which it is
              situated."

Section 4 reads thus:

              "4. Demarcation ofSabha area:                                    H
    704                    SUPREME COURT REPORTS              [1994] SUPP. 6 S.C.R

A                  (1) Government may, by notification, declare any village or
                   group of contiguous villages with a population of not less
                   than five hundred to constitute one or more sabha areas:

                      xx                 xx                xx

B                  (2) Government may, by notification, include any area or
                   exclude any area from the Sabha area."

          Under s.5 of the Act, the Government have the power, by a notification
    published in that behalf, to constitute a panchayat by name in every sabha
    area. The constitution by a notification of a sabha area declared by the State
c   Government, under section 4(1), may consists of any village, in other
    words, any revenue estate as defined under section 3(q) or group of
    contiguous villages with a population of not less than 500. The word 'or' at
    the end of the first clause cannot be read as 'and'. Sub-s.(1) of section 4
    indicates that a gram sabha area with a population of not less than 500 may
    be constituted, by a notification, by the Govt. to be a gram panchayat and
D   that village must be a revenue estate. But in a village, which, in other words
    a revenue estate, if population is more than 500, but needs one or more
    gram sabhas, there is no prohibition under section 4(1) for the Govt. to
    exercise the power declaring such a gram sabha area within the same
    revenue estate to be a Panchayat. Take for instance in a revenue estate the
    population may be approximately 5,000 and in the revenue estate there may
E   be more than one village or hamlets or contiguous parts. For better .or
    proper administration of the panchayat in the same revenue estate on or
    more gram sabha areas could be constituted by a notification declaring
    them to be separate gram panchayats. Therefore, the words 'or a group of
    contiguous villages', in the second part of section 4( 1) need not necessarily
    be construed to mean for amalgamation of two revenue estates into one
F   revenue estate. Th<l;t is not the purport and import of the section or
    legislative intention. Take an instance that where one revenue estate
    consists of only 300 population and another revenue estate may consists of
    400 population, each revenue estate cannot be declared to be a separate
    gram panchayat, as minimum of 500 population required under section 4(1)
    was a must but were not available. By amalgamation of the two revenue             >
G
    estates one gram sabha area may be constituted by a declaration. Section
    4( 1) intends to operate in that perspective and the second clause of section 4
    appears to operate in that arena. Thus considered, we find that in the same
    revenue estate, depending upon the facts and exigencies for smooth, proper,
    efficient or convenient administration of the gram sabha area, one or more
H   than one sabha areas could be declared by a notification constituting for
                    KARMAiL SINGH v. DARSHAN SINGH                         705

each sabha area a gram panchayat for the purpose of the Act. After the A
constitution of separate gram sabha areas, by operation of sub-section(2),
power has been given to the State Govt., for the same reasons, again to
include or exclude same sabha area or a part thereof from the notified sabha
area. In other words, section 4(2) gives power for the State Govt. to
amalgamate two or more than one sabha areas and to constitute, by a
declaration under s. 4(2) a single Gram Panchayat. In other words, power to B
constitute a panchayat included power to amalgamate two or more than one
sabha area as one gram sabha. It would thus be clear that the Government
had exercised the power under section 4 (2) to amalgamate Harigarh and
Bhorakh and also Madan was added by public notification and named as
"Bhorakh Madan Harigarh Gram Panchayat."
                                                                                  c
     But the second contention of Sri Manoj merits acceptance. It is seen
that the Govenment not only had taken into consideration that there exist a
high school, a mini bank and veterinary hospital but also with a view to
avoid friction among the people of their respective locations, the
Government thought it expedient to amalgamate the two gram sabhas into            D
one. It would also be clear that Atma Ram appears to have misused his
office and obtained fictitious and collusive decrees in the names of his
supporters and had appropriated valuable 86 acres 2 kanals of the
panchayat land for his personal benefit. The Govt. appears to have thought
that such a misuse or abuse of the powere should be prevented by
amalgamating two panchayats. Other corrective measures though may be              E
evolved, the action of the Govt. cannot be said to be unwarranted or illegal
or invalid. Atma Ram represents Harigarh and Bhorakh gram panchayat is
represented by another sarpanch. It would appear that if a person, having
sufficient influence over the people in the one area, when he had managed
to secure the valuable gram panchayat property in his name for personal
benefit, the Govt. thought it expedient that such misuse or abuse of office       F
could be curbed and such insidious effects could be prevented by
 amalgamation. The decision taken, thereby, cannot be said to be irrelevant,
arbitrary and unwarranted, on the facts of the case. It is seen that the public
 interest would be better served for taking appropriate decision by the
 Government either for constituting one or more than one gram sabha areas
 or amalgamating into an existing one. It is a public policy and an               G
 administrative decision taken by the Government. It is an administrative
 action. But the Government should have material and should consider the
 material before it takes the decision. In the absence of any material, it can
 be said that it is an arbitrary decision taken by the Government. But when
 there is some material before th authority or the Government and the same
 was considered though two views may be possible to be taken on the same          H
    706                   SUPREME COURT REPORTS               (1994) SUPP. 6 S.C.R

A   material, it must be left to the Govt. to take a decision which unless it is
    vitiated by ma/a fides, the court cannot substitute its view to that of the
    Government in constituting two separate gram panchayats situated in the
    revenue estate or two contiguous villages with a population of not less than
    5 hundred.

B        Mr. M.K. Dua, learned counsel appearing for the respondent has stated
    that the two gram sabhas,•created on June 30, 1988, have been properly
    functioning and that, therefore, the Government was not justified in
    amalgamating the two panchayats into one. We have already stated that it is
    only an executive policy decision taken by the Government to create
    separate Panchayats or to amalgamate the existing gram sabhas. It would                ~
c   not be for the courts to evaluate and decide whether the existence of the two
    gram sabhas should be continued or further bifurcated or amalgamated. It is
    also stated in the additional affidavit that Atma Ram had not misused his
    office nor has taken the properties into his possession had in support thereof
    relied on the entries from the revenue records. It is further stated that it was
    done in the year 1966. We cannot appreciate that ev:dence. The report
D   given by the Director of Panchayats shows that the Sarpanch had misused
    the office and obtained fictitious decrees. Necessarily the entries in the
    revenue records should be in the names of the spurious persons but that
    does not conclude that Atma Ram had not misused the office and the
    circumstance taken by the Government cannot be said to be irrelevant or
    arbitrary.                                                                         -~
E
         Under these circumstances, the learned Single Judge has committed
    manifest error of law in interfering with the notification. The Division
    Bench had not properly considered the problem from this perspective and
    merely dismissed the appeal in limine. The appeal is, accordingly, allowed.
    The impugned orders are set aside and the notification dated 18.12.1991 is
F   upheld. Any action taken pursuant to the decision of the High Court or any
    elections were conducted to the respective gram panchayats, the same
    would be illegal and should be done once again in accordance with law, the
    appeal is allowed and the writ petition stands dismissed. No costs.

G   T.N.A.                                                        Appeal allowed.      t