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Nathalal M. Patel v. State Of Gujarat And Others
Structured Summary of the Court Opinion
Factual and Procedural Background
By a notification dated 28th November, 1991, the Development Commissioner, exercising powers under Section 9(2) of the Gujarat Panchayats Act, 1961, separated a local area known as Rairinagar from the local area comprising Bavala Nagar Panchayat. The notification declared that after division the local area comprising Bavala Nagar Panchayat would cover the area of Bavala Revenue village and that Ramnagar Gram Panchayat would cover the area of Ramnagar New Vasahat.
The President of Bavala Nagar Panchayat challenged the notification by filing Special Civil Application No. 9001 of 1991 in this Court. The learned single Judge who heard that petition rejected it summarily on the ground that the decision to bifurcate Bavala Nagar Panchayat was in accordance with law and that there was consultation as required by Section 9 of the Act. The President of Bavala Nagar Panchayat appealed from that decision, resulting in the present appeal considered by the Court in this opinion.
Legal Issues Presented
- Whether the requirement of prior consultation under Section 9(2) of the Gujarat Panchayats Act, 1961, is mandatory (the failure of which renders actions under Section 9(2) ineffective) or directory (non-compliance not necessarily voiding the action).
- Whether the consultation requirement was satisfied in respect of the impugned notification dated 28th November, 1991, given that the Government had earlier (24-12-1990) decided not to accept the proposal after consulting Bavala Nagar Panchayat but subsequently received fresh material.
- Whether, where fresh material is placed before the Government after an earlier decision not to accept a proposal, the Government was obliged to disclose that fresh material to the concerned Panchayat and seek its views afresh before issuing a notification under Section 9(2).
- Whether the impugned notification dated 28th November, 1991 should be quashed on the basis of any deficiency in consultation or disclosure of material to the Panchayat concerned.
Arguments of the Parties
Appellant's Arguments
- The Government had earlier (24-12-1990) decided not to accept the proposal to split Bavala Nagar Panchayat after consulting Bavala Gram Panchayat, taking into account that the area proposed for Ramnagar Gram Panchayat was not a village or hamlet, was a settlement of agricultural labourers across four survey numbers, did not meet revenue income standards for constituting an independent Gram Panchayat, and was not likely to be economically viable.
- The subsequent acceptance of the proposal and issuance of the impugned notification on 28-11-1991 was made without consulting Bavala Nagar Panchayat again; therefore, the consultation required by Section 9(2) was not carried out as contemplated by that provision.
- Prior consultation undertaken before 24-12-1990 cannot be treated as fulfilling the consultation requirement for the later notification, particularly because fresh material was placed before the Government after that date.
- Because the prior decision not to accept the proposal had been based on the Panchayat's representation, any fresh material requiring reconsideration obliged the Government to disclose that material and consult the concerned Panchayat afresh.
Respondents' Arguments
- The Bavala Nagar Panchayat had been consulted in respect of the proposal to bifurcate it, and it was not necessary to consult it again when the Government reconsidered the proposal.
- Section 9(2) has been held by this Court to be directory in nature (relying on precedent), so that even if consultation was not in strict compliance with the provision, the Government's decision and the consequent notification cannot be regarded as illegal or bad.
- The respondents relied on a subsequent single-Judge decision (Bhalod Gram Panchayat) which, according to them, holds that failure to consult renders exercises under Section 9(2) ineffective.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kalubhai v. Slate of Gujarat (1965) VI GLR 459 | Held that the provision in Section 9(2) is directory and not mandatory; the consultation requirement is a direction to take the sense of the Panchayat but the section does not prescribe consequences of non-compliance; not every departure from the duty to consult will render proceedings void. | The Court considered Kalubhai as a Division Bench decision directly addressing the mandatory/directory question; it relied on Kalubhai's characterization of Section 9(2) as directory while also stressing that the duty to consult must be meaningful and not merely formal. |
| Bhalod Gram Panchayat and Anr. v. State of Gujarat and Ors (1986 (1) XXVII (1) GLR 247) | Observed that before the State Government exercises power under Section 9(2) it must consult the Taluka Panchayats, the District Panchayat and the Gram Panchayat concerned and that failure to do so would render the exercise of power ineffective. | The Court distinguished Bhalod on the basis that it was a single Judge decision and that the specific mandatory/directory issue was not directly raised before that single Judge; nevertheless, the Court noted that Bhalod's observations find support in certain Supreme Court authorities and considered those observations substantively in its analysis. |
| Union of India v. Shankalchand Himatlal Sheth and Anr. (Supreme Court) | Construed the word "consultation" (in Article 222(1) of the Constitution) to mean full and effective consultation, not formal or unproductive; meaningful consideration requires disclosure of relevant facts and circumstances. | The Court invoked this principle to support the view that the duty to consult under Section 9(2) must be full and real (purposeful), implying disclosure of relevant data and an opportunity for meaningful response; failure to provide that may render the action arbitrary. |
| Baldev Singh v. State of Himachal Pradesh (Supreme Court) | Observed (in a different context) that persons affected by changes (such as alteration of local area limits) should be given an opportunity of being heard because such changes have civil consequences (loss of office, taxes, way of life etc.). | The Court relied on this observation to reinforce that affected persons/panchayats should be given an opportunity to be heard and that consultation must account for the serious civil consequences of altering local-area limits. |
Court's Reasoning and Analysis
The Court undertook a step-by-step analysis grounded in precedent and the facts before it:
- Assessment of Precedents: The Court noted that Kalubhai (Division Bench) held Section 9(2) to be directory, whereas Bhalod (single Judge) stated failure to consult would render action ineffective. The Court treated the direct Division Bench ruling in Kalubhai as authoritative on the mandatory/directory question but considered the observations in Bhalod insofar as they were consistent with higher authority.
- Support from Supreme Court Authorities: The Court observed that Bhalod's position received support from Supreme Court decisions construing "consultation" as requiring full and effective engagement (Shankalchand) and recognizing that changes affecting local-area status have grave civil consequences so affected persons must be heard (Baldev Singh).
- Nature of the Duty to Consult: Even if Section 9(2) is directory, the Court emphasized that the provision imposes a meaningful duty to consult. "Consultation" must be real and purposeful — entailing disclosure of relevant material and opportunity to consider and respond — not mere formality. If the purpose of consultation (arriving at an objective decision) is frustrated, the exercise of power may be arbitrary.
- Application to the Facts: The Government had earlier (24-12-1990) decided not to accept the bifurcation proposal based on representations and material that had been reviewed after consulting Bavala Nagar Panchayat. However, fresh material was placed before the Government after that date. The Court found it was an admitted position that Bavala Nagar Panchayat was not consulted again and that the Government did not disclose the new material to the Panchayat nor elicit its views on that material.
- Consequences of Non-Disclosure and Non-Consultation: Because the fresh material was not disclosed and no fresh consultation was undertaken, the Court concluded that the consultation was not "full and real" and that the Government's action in issuing the impugned notification was arbitrary. The Court noted that no reason had been shown for withholding disclosure or consultation, and no public interest prejudice from invalidating the action had been demonstrated.
Holding and Implications
Holding:
The Court ALLOWED the appeal, set aside the order of the learned single Judge, and quashed the impugned Notification dated 28th November, 1991.
Implications:
- Direct effect: The notification separating Rairinagar from Bavala Nagar Panchayat and constituting Ramnagar Gram Panchayat is quashed; the single Judge's dismissal of the original petition is set aside.
- Costs: The Court made no order as to costs.
- Precedential note: The opinion reasons about the mandatory versus directory nature of Section 9(2) and stresses that even if directory, the duty to consult must be meaningful. The Court did not purport to set aside prior authoritative pronouncements but applied existing precedent and Supreme Court principles to the facts; the opinion did not expressly state that it was laying down a new precedent beyond its application to the facts of this case.
1. By a notification dated 28th November, 1991, issued by the Development Commissioner in exercise of the powers under Section 9(2) of the Gujarat Panchayats Act, 1961, local area known as Rairinagar came to be separated from the local area comprising Bavala Nagar Panchayat and it was further declared that after division, the local area comprising Bavala Nagar Panchayat shall be known as Bavala Nagar Panchayat covering the area of Bavala Revenue village and Ramnagar Gram Panchayat covering the area of Ramnagar New Vasahat. This notification was challenged by the President of Bavala Nagar Panchayat by filing a petition in This Court, being Special Civil Application No. 9001 of 1991. The learned single Judge who heard the said petition, rejected the same summarily on the ground that the decision to bifurcate Bavala Nagar Panchayat cannot be said to be otherwise than in accordance with law and that it cannot be said that there was no consultation as required under the provisions of Section 9 of the Act. The President of Bavala Nagar Panchayat has, therefore, filed this appeal.
2. The Learned Counsel appearing for the appellant submitted that with respect to the proposal to split up Bavala Nagar Panchayat into Bavala Nagar Panchayat and Ramnagar Gram Panchayat, Bavala Gram Panchayat was earlier consulted and accepting what the Panchayat had to say in that behalf, the Government had on 24-12-1990 decided not to accept the said proposal. While taking that decision, the Government had taken into consideration the fact that the area for which Ramnagar Gram Panchayat was to be constituted was neither a village nor a hamlet, but it was a settlement of agricultural labourers on four survey numbers and also the circumstances that the standard of revenue income laid down for constituting independent Gram Panchayat was not satisfied and the new Panchayat was not likely to be economically viable. Thus, the said proposal was dropped and the new proposal came to be accepted by the Government without consulting the Bavala Nagar Panchayat and therefore, the impugned notification issued under Section 9(2) of the Act deserves to be quashed. It was submitted that the prior consultation done before 24th December, 1990 cannot be treated as consultation as contemplated by Section 9(2) of the Act, for the purpose of the impugned notification. It is not in dispute that Bavala Nagar Panchayat was not consulted again after 24th December, 1990. The contention raised on behalf of respondents Nos. 1 to 4 is that with respect to the proposal for bifurcating Bavala Nagar Panchayat, the said Panchayat was consulted and it was not necessary to consult it again while reconsidering the said proposal. It was also submitted that Section 9(2) has been held to be directory in nature by This Court and, therefore, even if the Court proceeds on the basis that there is no consultation as contemplated by Section 9(2), the decision of the Government and the consequent impugned notification cannot be regarded as illegal or bad.
3. This Court, in the case of Kalubhai v. Slate of Gujarat (1965) VI GLR 459 has held that the provision contained in Section 9(2) is directory and not mandatory. It is further held that the provision about prior consultation of the Panchayat concerned has not been included in the section as a safeguard of a right of a person, but seems to be a more direction to take the sense of the Panchayat before its limits are altered or added to. Since Section 9(2) provides for the reconstitution of a village, it also provides that the sense of the Panchayat should be taken before its limits are altered. The section, however, does not prescribe what consequences would follow if prior consultation is not made before taking an action under the section. Considering the consequences that are likely to follow on the taking of an action under the section and the effect of non¬compliance with that part of the section which provides for a prior consultation, and considering the subject matter of the provision and its relation to the general object thereby intended to be secured, and upon a review of the matter according to the principles of construction, it appears that the provision is directory and although it does not indicate a duty to consult the Panchayat before passing an order under the section, it does not follow that every departure from that duty will taint the whole proceeding with a fatal blemish and render it void and ineffective.
4. The Learned Counsel for the respondents, however, submitted that this view is no longer good law as subsequently in Bhalod Gram Panchayat and Anr. v. State of Gujarat and Ors. 1986 (1) XXVII (1) GLR 247 This Court has held that failure to comply with the requirement of consultation would render the exercise of power under Section 9(2) ineffective. In that case, me question which had arisen for consideration was different but while dealing with Section 9(2), the following observations have been made:
It is clear on a plain reading of this Sub-section before the State Government exercises power under this provision, it must consult the Taluka Panchayats, the District Panchayat and the Gram Panchayat concerned. Failure to do so would render the exercise of power ineffective. Only after the concerned Panchayat has been consulted that the State Government can exercise power by issuing a notification in the Official Gazette....
... After the enactment of the Act, inclusion within or exclusion from any gram any local area or the alteration of its limits must be made after proper consultation as provided by Section 9(2) of the Act. To hold otherwise would be to render the solutary provision of consultation nugatory. Alteration of the limits of any local area of a Gram or Nagar has several far reaching consequences, i.e. it affects the delimitation of wards, the constitution of existing committees, the revenue and financial assistance, etc., and hence it is only just and fair to consult the concerned Panchayats before any such change is effected....
5. This contention raised on behalf of the respondents cannot be accepted for the reasons that Kalubhai's case was decided by a Division Bench of two learned Judges while the decision in Bhalod Gram Panchayat is by a learned single Judge and that the question whether Section 9(2) is mandatory or directory arose directly before the Division Bench whereas no such question was raised before the learned single Judge who decided Bhalod Gram Panchayat's case.
6. But the observations made in Bhalod Gram Panchayat's case do get support from the two decisions of the Supreme Court in Union of India v. Shankalchand Himatlal Sheth and Anr. and Baldev Singh v. State ofHimachal Pradesh . In the case of Shankalchand Himatlal Sheth, the Supreme Court was called upon to construe the word 'consultation' as used in Article 222(1) of the Constitution of India. Construing that word, the Supreme Court has observed that 'consultation' means - full and effective and not formal or unproductive consultation. The Supreme Court also observed that there can be no purposeful consideration of the matter in the absence of facts and circumstances of the case and the nature of the problem involved. In Baldev Singes case, the Supreme Court has observed, though in a different context, that citizens of India have a right to decide, what should be the nature of their society in which they live - agrarian, semi-urban or urban. The Supreme Court has further observed in that case that admittedly, the way of life varies depending upon where one lives. Inclusion of an area covered by a Gram Panchayat within a notified area would certainly involve civil consequences. In such circumstances, it is necessary that people who will be affected by the change should be given an opportunity of being heard, otherwise they would be visited with serious consequences like loss of office in Gram Panchayat an imposition of a way of life, higher incidences of tax and the like.
7. It was faintly contended that the decision in Kalubhai's case stands impliedly overruled by the decision of the Supreme Court in Shankalchand's case. But we have not thought it necessary to consider it, as even while proceeding on the basis that Section 9(2) is directory and not mandatory, we are of the view that the impugned notification deserves to be quashed.
8. If the provision is directory then even if it is not fully complied with, or not complied with at all, that by itself will not invalidate the action. But as pointed out by This Court in Kalubhai's case. Section 9(2) casts a duty on the State Government to consult the concerned Panchayat before changing its limit. The legislature must have provided for good reasons that before effecting a change, the concerned Panchayats should be consulted. If the object of consultation - namely, arriving at a decision objectively-is not to be frustrated, then it has to be full and real and not formal and in name only. Such purposeful consultation implies making available all relevant data to the person or authority to be consulted and to elicit its views thereon. If this be the nature of duty to consult, then exercise of power in breach thereon may render the action arbitrary in absence of a reason justifying the departure from its performance.
9. In the case, on basis of the material which was before the Government and the representation made by the Bavala Nagar Panchayat, the Government had on 24-12-1990, taken a decision not to accept the proposal for bifurcation of Bavala Nagar Panchayat. If it had been a case of mere reconsideration of the material which was already there and in respect of which the concerned Panchayat was already consulted earlier, then it could have been said that it was not necessary to consult it again. But it is an admitted position that, fresh material was placed before the Government after 24-12-1990.
10. For making consultation effective and real the Government ought to have disclosed ins new material to the Panchayat and ascertained its view thereon. No reason has been pointed out for not doing that. It is also not pointed out that if the action of the Government is regarded as invalid, it would be prejudicial to public interest. Therefore, the impugned action of the Government will have to be regarded as arbitrary and thus liable to be declared as invalid.
11. We, therefore, allow this appeal and set aside the order passed by the learned single Judge and quash the impugned Notification dated 28th November, 1991. No order as to costs.
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