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Bhaiyalal Brijlal And Others v. State Of M.P And Others
Factual and Procedural Background
The petition challenges an order of the Collector, Narsinghpur dated 12-3-1983 which disallowed objections to a notification regarding the constitution of a Gram Panchayat and alteration of its boundaries. The Collector had published a notice dated 27-2-1983, stated to be under Section 120 of the Panchayat Act, proposing to exclude village Bankhedi from Gram Panchayat Jhanjhankheda and include it in Gram Panchayat Nandner. Objections were filed by Panchas of Jhanjhankheda and by Gram Panchayat Nandner (resolutions submitted as objections). The Collector overruled those objections by the order of 12-3-1983. Petitioners claim they are residents affected by this order and allege the Collector's order gave no reasons for overruling the objections. Elections were thereafter notified and appear to have been concluded. The State's return contended that, in substance, the action was a constitution of panchayats under Section 4(1) of the 1981 Act (and not an exercise of Section 120), because earlier panchayats under the 1962 Act did not survive without an express saving in the 1981 Act; the notice mentioned Section 120 but really constituted panchayats afresh under Section 4(1).
Legal Issues Presented
- Whether the Collector could validly exercise powers under Section 120 of the M.P. Panchayat Adhiniyam, 1981 when, at the relevant time, no Gram Panchayat constituted under Section 4(1) of the 1981 Act existed.
- Whether panchayats constituted under the earlier (1962) Act were continued by saving provisions (ordinance or the General Clauses Act) so that the procedure under Section 120 would apply, or whether the panchayats had to be constituted afresh under Section 4(1) of the 1981 Act.
- Whether an order by the Collector overruleing objections had to contain reasons and be judged solely by reasons stated in the order (as argued by reference to precedents about assessing statutory orders by their stated reasons), and whether that principle affected the present jurisdictional question.
Arguments of the Parties
Petitioners' Arguments
- The Collector issued the notice under Section 120 treating the Panchayats as continuing under the prior law; having treated it as a Section 120 notice, the Collector could not later contend he was not exercising jurisdiction under that provision.
- Objections by Panchas and a resolution from Gram Panchayat Nandner were submitted and overruled without reasons in the Collector's order; the petitioners relied on authorities (Mohinder Singh v. Chief Election Commr.) for the proposition that an order must be judged by the reasons stated in it.
State / Respondent's Arguments
- The Panchayats that existed under the 1962 Act continued only under the temporary Ordinance (savings under Section 121 of the Ordinance), but when the Ordinance was replaced by the 1981 Act there was no saving clause continuing those panchayats; therefore the Collector's notice and order were effectively constitutions under Section 4(1) of the 1981 Act, not actions under Section 120.
- In the scheme of Section 4(1) of the new Act, no objections are required to be invited nor is the Collector expected to dispose of such objections in the manner contemplated by Section 120; therefore the procedure under Section 120 was inapplicable.
- Reliance was placed on a Division Bench decision (Misc. Petition No. 1187/83, decided 4-5-1983) holding that constitution under the 1981 Act is a fresh constitution under Section 4 and that Section 120 procedure is not necessary in that context.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohinder Singh v. Chief Election Commr., AIR 1978 SC 851 | The principle that when a statutory functionary makes an order based on stated grounds, the validity of that order must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons subsequently. | The court acknowledged this principle (quoted from Mohinder Singh) but explained that the present case raised a jurisdictional question (whether the Collector was acting under Section 120 or under Section 4(1)). The court noted that the Mohinder Singh principle concerns adjudication of an order by its stated reasons, whereas the present issue was whether the Collector had authority under Section 120 at all. |
| Gordhandas Bhanji, AIR 1952 SC 16 (as cited in Mohinder Singh) | Authority cited in support of the proposition (in Mohinder Singh) that an order must be judged by the reasons stated and cannot be validated by additional grounds later brought out. | Used indirectly as part of the authoritative quotation in Mohinder Singh; the court referenced the citation but confined its application to observing that the present dispute was about jurisdiction (Section 120 vs Section 4(1)), not solely about the sufficiency of reasons in the Collector's order. |
| Division Bench decision in Misc. Petition No. 1187/83 (decided 4-5-1983) | Held that constitution of panchayats under the 1981 Act is a fresh constitution under Section 4 and that the procedure under Section 120 is not necessary; also observed that Section 10(b) of the General Clauses Act might operate as a saving to allow prior panchayats to continue until new panchayats are constituted. | The court acknowledged and quoted this decision but stated it was unnecessary to decide whether Section 10(b) of the General Clauses Act actually preserves the prior panchayats. The court accepted the Division Bench's practical conclusion that Section 4 constitutes panchayats afresh and emphasized that Section 120 applies only where a Gram Panchayat constituted under Section 4 exists. |
Court's Reasoning and Analysis
The court proceeded by examining the statutory scheme and the factual sequence of enactments. It noted:
- The Collector published a notice mentioning Section 120 but the essential legal question was whether any Gram Panchayat constituted under Section 4(1) of the 1981 Act existed at the time such that Section 120 could be invoked.
- The 1962 Act's panchayats continued temporarily by virtue of an Ordinance (specifically Section 121 of M.P. Panchayat Ordinance No. 6 of 1981 saved certain entities), but when the 1981 Act was enacted there was no explicit saving clause continuing the panchayats constituted under the 1962 Act.
- The court observed the Division Bench decision which suggested Section 10(b) of the General Clauses Act could be read as a deemed saving, allowing prior panchayats to continue until new panchayats under Section 4 were constituted; however, the court expressly stated it was unnecessary to decide whether Section 10(b) has that effect in this case.
- The court analyzed Section 120 and the definition of "Gram Panchayat" in Section 2(v), which defines "Gram Panchayat" as one established under sub-section (1) of Section 4. The statutory language therefore indicates Section 120 applies only to an existing Gram Panchayat constituted under Section 4 whose limits/headquarters are to be altered.
- Because, on the court's analysis, there was no Gram Panchayat in existence that had been constituted under Section 4(1) when the Collector issued the impugned notification and order, the court concluded Section 120 could not be the legal basis for the Collector's action. Consequently, the Collector's action was treated as constituting a panchayat under Section 4(1) rather than exercising power under Section 120.
- Finally, the court observed that constitution under Section 4(1) does not require the procedure of inviting objections and disposing of them as envisaged by Section 120; therefore, the petitioners' contention that the Collector improperly overruled objections without reasons (insofar as characterized as an exercise under Section 120) could not succeed because the Collector was acting under Section 4(1).
Holding and Implications
HOLDING: The petition is dismissed. The court concluded that the Collector was not exercising jurisdiction under Section 120 (because no Gram Panchayat constituted under Section 4(1) existed at that time) and that the action was to be regarded as constitution of panchayats under Section 4(1) of the 1981 Act; accordingly the procedure under Section 120 did not apply.
Direct consequences for the parties: The petition was dismissed; parties were directed to bear their own costs; the security amount deposited by the petitioners was ordered to be refunded.
Implications: The decision's direct effect is dismissal of this challenge and the validation of the Collector's action as constituting panchayats under Section 4(1) rather than as action under Section 120. The opinion does not purport to lay down a new broad precedent on the application of Section 10(b) of the General Clauses Act; the court expressly declined to decide whether Section 10(b) continued panchayats constituted under the previous Act.
1. This is a petition filed by the petitioners challenging an order passed by the Collector, Narsinghpur on 12-3-1983 disallowing objections to the notification issued by the Collector about the constitution of a Panchayat and fixing its boundaries.
2. According to the petitioners, the Collector, Narsinghpur published, a notice under Section 120 of the Panchayat Act on 27-2-1983 proposing to alter the constitution of Jhanjhankheda and Nandner Gram Panchayats. By this notice, it was proposed to exclude village Bankhedi from the Gram Panchayat Jhanjhankheda and to include that village in Gram Panchayat Nandner. It is further alleged that Panchas of Gram Panchayat Jhanjhankheda who were residing at Jhanjhankheda and Bankhedi objected to this proposal in writing and this objection is said to be D/- 5-3-1983 and it was alleged in this objection that 5 years back, a separate Gram Panchayat for Jhanjhankheda was established. It is also alleged that Gram Panchayat, Nandner also passed a resolution on 3-3-1983 opposing the inclusion of village Bankhedi in Gram Panchayat, Nandner and this resolution also was submitted to the Collector as an objection. It is alleged that the Collector, Narsinghpur passed an order ruling out these objections and constituting the Panchayats as indicated in the notice by his orders dated 12-3-1983 and it is alleged by the petitioner that in this order, there are no reasons stated as to why these objections were overruled and this order is, therefore, challenged in this petition.
3. It is alleged that the petitioners are residents of village Bankhedi and Jhanjhankheda and. therefore they are persons affected by this order passed by the Collector. It is also alleged that after this order passed by the Collector, a programme of election was notified and it appears that the elections have also been concluded.
4. In the return filed by the State, it is contended that the Panchayats which were constituted 5 years back under 1962 Act continued to function when the Act was repealed and an ordinance was brought into force as under Section 121 of this ordinance these Panchayats existing under 1962 Act were saved. But when this ordinance was repealed by the present act i.e. act of 1981, no saving Clause has been enacted in that and, therefore, these Panchayats were constituted under this Act for the first time and therefore, the notice which was issued by the Collector although mentions Section 120 but in fact it only will be a notification under Section 4 (I) constituting a Panchayats under Section 4 (1) of the new Act and in the scheme of Section 4 (1) of the new Act no objections are required to be invited nor it is contemplated that the Collector is expected to dispose of these objections.
5. Learned counsel for the petitioners contended that although the Panchayats were constituted under the 1962 Act, but they were continued till the ordinance which repealed the Act of 1962 and it was contended that the Collector issued a notice under Section 120 treating it to be a Panchayat continuing under this Act and, therefore, now it could not be contended that it was not a notice under Section 120 and the Collector was not exercising jurisdiction under that provision.
6. Learned Government Advocate, on the other hand, contended that a Division Bench of this Court in Misc. Petition No. 1187/83 decided On 4-5-1983. held that the constitution of Panchayats under the Act of 1981 is only a fresh constitution of Panchayats under Section 4 and no procedure as contemplated under Section 120 is necessary and it was contended that although in this Division Bench judgment, it has been observed that the saving under Section 10(b) of the General Clauses Act would allow the Panchayat to continue and it was to continue till the new Panchayats were constituted under the new Act and the new Panchayats were constituted under Section 4. But according to the learned Government Advocate, Section 10(b) could not be read to mean that the Panchayats constituted under the 1962 Act were saved by this provision and the result was that when the Ordinance was repealed by the 1981 Act, the Panchayats ceased to exist and what is done thereafter is only a constitution of Panchayats under Section 4. It was also contended that Section 2 (v) of the M.P. Pancha-yat Adhiniyam. 1981 defines the term "Gram Panchayat" and that means a Gram Panchayat established under subsection (1) of section 4 and it is only such Gram Panchayat which is referred to in Section 120 and, therefore, Section 120 will only be applicable ha a case where the Gram Panchayat which is constituted under Section 4 of 1981 Act is to be reconstituted or its area is to be altered or its headquarters are to be changed and in this view of the matter, it was contended that Section 120 will not be applicable.
7. Learned counsel for the petitioners contended that if the Collector chose to proceed under Section 120, it could not be contended that he was not acting under Section 120 but acting under Section 4 and reliance was placed on Mohinder Singh v. Chief Election Commr., AIR 1978 SC 851. In Mohinder Singh's case (supra) it was observed (Para 8).
"...... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observation of Bose J. in Gordhandas Bhanji, AIR 1952 SC 16 at p. 18."
What has been observed is that the order passed by a statutory authority could only be adjudged on the basis of reasons stated in the order. So far as the case in hand is concerned, it is not the question as to whether the order passed by the Collector refixing the boundaries of the Panchayat is to be adjudged on the basis of reasons either stated, in the order or otherwise. The question that has been raised by the learned Government Advocate is that although the Collector in his notification mentioned Section 120 but in fact, he could not exercise powers under Section 120 of the M.P. Panchayat Adhiniyam, 1981 as there was no panchayat in existence constituted under Section 4 (1) of this Act and, therefore, the order passed by the Collector could only be said to be an order under Section 4 (1) and not under Section 120. It is, therefore, plain that if the order of the Collector is an order which could only be justified under Section 4 (1), it could not be contended that it was an order under Section 120 even though the Collector it appears has mentioned Section 120 in his notice for redistribution of the area of the Panchayats.
8. It is not disputed that these Panchayats were constituted under the 1962 Act and it is also not disputed that under the Ordinance i.e. M.P. Panchayat Ordinance No. 6 of 1981, Section 121 is the section for repeal and savings and Sub-clause (2) (a) of this saved the Gram Sabha and the Gram-Panchayat constituted under the old Act. It is also not disputed that Section 9 of the M.P. Panchayat Sanshodhan Ordinance No. 8 of 1981, provided for dissolution of certain Panchayats and it appears that under this Section 9 of this Ordinance, the nominated Panchayats stood dissolved but it is plain that when M.P. Panchayat Adhiniyam 1981 was enacted there is no saving clause and, therefore, there is no provision to continue the Panchayats which were constituted under the Act of 1981 (1962?)
9. In the Division Bench decision relied on by the learned Government Advocate, it has been observed,
"Even so, in our opinion similar saving must be deemed to continue under Section 10(b) of the General Clauses Act which preserves the previous operation of the Act which is repealed."But in our opinion, it is not necessary to go into the question as to whether Section 10(b) of the General Clauses Act could be interpreted to mean that the Panchayats constituted under the 1962 Act were continued. It has been further observed in this decision that even if this continuance is presumed, it will only be up to a time till the Panchayats under Section 4 of the 1981 Act are constituted But the language of Section 120 of M.P. Panchayat Act, 1981 indicates:--
"120. Change of headquarter of Gram Panchayat, division, amalgamation and alteration of Gram Panchayat area. -
(1) The State Government or the prescribed authority may by an order change headquarter of a Gram Panchayat or alter the limits of gram panchayat area by including within it any local area in the vicinity thereof or by excluding therefrom any local area comprised therein or amalgamate two or more gram panchayat areas and constitute one gram panchayat area in their place or split up a gram panchayat area and constitute two or more gram panchayat areas in its place :
Provided that no order under this section shall be made unless a proposal in this behalf is published for inviting suggestions and objections in such manner as may be prescribed and objections are considered.
(2) On the issuance of the order under Sub-section (1) of the State Government or the prescribed authority shall pass such consequential orders as may be necessary.
This section talks of Gram Panchayat and the term 'Gram Panchayat' has been defined in Section 2 (v) which reader-
" "Gram Panchayat" means a Gram Panchayat established under Sub-section (1) of Section 4."
10. It is, therefore, clear that Section 120 comes into operation only when a Gram Panchayat constituted under Section 4 is in existence and it is desired to alter its boundaries or to change its headquarter. It is therefore, clear that when the Collector issued the impugned notification and passed the impugned order, there was no Gram Panchayat constituted, under Section 4 (1) and, therefore, there could not be any action under Section 120 and therefore, when the Collector issued the notice and passed the impugned order, it could not be said that he was exercising jurisdiction under Section 120 of the M.P. Panchayat Adhiniyam, 1981. It is therefore clear that the challenge to this order not being in accordance with law, is of no avail. It was contended by the learned Government Advocate that at best, it could only be said to be an order under Section 4 (1) which contemplates the constitution of Panchayats and it is not in dispute that if the Collector was constituting a Panchayat under Section 4 (1), it was not necessary for him to invite objections and to decide them. In this view of the matter, therefore, the contention advanced by the learned counsel for the petitioners could not be accepted.
11. We, therefore, see no reason to entertain this petition. It is, therefore, dismissed. In the circumstances of the case, parties are directed to bear their own costs. The security amount deposited shall be refunded to the petitioners.
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