Vishram Prasad Baishwar vs State Of U P And Others

Court No. - 34

Case :- WRIT - C No. - 60657 of 2015

Petitioner :- Vishram Prasad Baishwar

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Mohammad Farooque Ansari,Satyash Chandra Maurya

Counsel for Respondent :- C.S.C.,Tarun Agrawal

Hon'ble Sudhir Agarwal,J. Hon'ble Ajit Kumar,J.

1. Dispute raised in writ petition relates to delimitation and reservation of Gram Panchyat Parasi as backward set for election of Pradhan on 2015 at serial no. 46 and order dated 5.10.2015 rejecting representation of petitioner.

2. We are of the view that reconstitution of village panchayats is a statutory power of legislature and it cannot be challenged on the ground of bias. Power of constitution of a particular area as a Gaon Sabha or Village Panchayat is a legislative function. Neither the principle of natural justice are attracted nor, such legislative function can be challenged on the ground of political bias.

3. In Rameshchandra Kachardas Porwal and Ors. etc.

v. State of Maharashtra and Ors. 1981(2) SCC 722, it was held that making of a declaration by notification that certain place shall be principal market yard for a market area under the relevant agricultural produce Market Act was an act legislative in character.

4. In State of Punjab Vs. Tehal Singh and others, (2002)2 SCC 7 Apex Court said:

"7. The principles of law that emerge from the aforesaid decisions are-

(l) where provisions of a statute provide for the legislative activity, i.e. making of a legislative instrument or promulgation of general rule of conduct or a declaration by a notification by the Government that certain place or area shall be part of a Gram Sabha and on issue of such a declaration certain other statutory provisions come into an action forthwith which provide for certain consequences; (2) where the power to be exercised by the Government under provisions of a statute does not concern with the interest of an individual and it relates to public in general or concerns with a general direction of a general character and not directed against an individual or to a particular situation and (3) lay down future course of actions, the same its generally held to be legislative in character.

8. Viewed in the light of the statement of law stated hereinbefore, we find that the provisions of Section 3 and 4 of the Act which provide for declaring territorial area of a Gram Sabha and establishing a Gram Sabha for that area do not concern with the interest of an individual citizen or a particular resident of that area. Declaration contemplated under Section 3 of the Act relates to an area inhabited by the residents which is sought to be excluded or included in a Gram Sabha. The declaration under Section 3 of the Act by the Government is general in character and not directed to a particular resident of that area. Further, the declarations so made under Sections 3 and 4 of the Act do not operate for the past transactions but for future situations. Under the aforesaid situation, when declarations by issue of notifications by the Government are made under Sections 3 and 4 of the Act respectively, determining the territorial area of a Gram Sabha and establishing a Gram Sabha for that area, such declarations become operative at one. Once declarations are made under Sections 3 and 4 of the Act respectively and thereafter a Gram Panchayat is constituted under Section 10 of the Act, the entire remaining provisions of the Act becomes operative. On such declarations by a notification in the gazette, the Gram Sabha-a body corporate comes into being with a number of powers and functions conferred upon it under the Act. As soon as a Gram Sabha is established and Gram Panchayat is constituted, they are entrusted with many general functions viz., constructions, repair, and maintenance of community assets, agriculture including agriculture extension, animal husbandry, dairy and poultry, fisheries, social and farm forestry, minor forest produce fuel and fodder, khadi, village and cottage industries, rural housing, rural electrification including distribution of electricity, non- conventional energy source, poverty alleviation programme, education including primary and secondary schools, adult and non-formal education, promotion of adult literacy, cultural activities, fairs and festivals, public health and family welfare; women and child development, social welfare etc. Further, Gram Sabhas and Gram Panchayats have been conferred numerous other powers and duties enumerated in Section 35 of the Act. Besides that, the Gram Panchayat is entrusted with the judicial functions which are civil and criminal in nature. The power exercisable under Sections 3 and 4 of the Act respectively by the Government was, therefore, not an exercise of a judicial or quasi-judicial function where the very nature of function involves the principle of natural justice or in any case of an administrative function effecting the rights of an individual. We are, therefore, of the view that on making of declaration under Section 3 of the Act determining the territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act.

9. Once it is found that the power exercisable under Sections 3 and 4 of the Act respectively is legislative in character, the question that arises is whether the State Government, while exercising that power, the rule of natural justice is required to be observed? It is almost settled law that an act legislative in character-primary or subordinate, is not subjected to rule of natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises." "10. In the present case, the provisions of the Act do not provide for any opportunity of hearing to the residents before any area falling under a particular Gram Sabha is excluded and included in another Gram Sabha. In the absence of such a provision, the residents of that area which has been excluded and included in a different Gram Sabha cannot make a complaint regarding denial of opportunity of hearing before issue of declarations under Sections 3 and 4 of the Act respectively. However, the position would be different where a house of a particular resident of an area is sought to be excluded from the existing Gram Sabha and included it in another Gram Sabha. There the action of the Government being directed against an individual, the Government is required to observe principles of natural justice. For the aforesaid reasons, we are of the view that no opportunity of hearing was required to be given before making declaration either under Section 3 or Section 4 of the Act by the Government.

11. Coming to the second question, the High Court had taken a view that since an opportunity of hearing was required to be given before issuing a declaration under Section 3 of the Act, therefore, notifications under Sections 3 and 4 could not have been issued simultaneously has to be held erroneous, once we held that no opportunity of hearing was required to be given before issue of declaration under Section 3 of the Act."

5. Similar view as taken by this Court in Rakesh Kumar Sharma and others Vs. State of U.P. and another, 2004(3) AWC 2234 and in paras 68 and 69 it held as under:

"68. As noted hereinearlier and applying the test as laid down by the Apex Court in State of Punjab's case (supra), it is clear that the notification issued by the State Government under Section 11 of the Act is a legislative instrument of general rule of conduct and the power exercised does not concern with the interest of an individual and it relates to public in general. In this connection, Section 4 (42B) of the U. P. General Clauses Act, 1904, which defines statutory instrument must be looked into. Section 4 (42B) of the U. P. General Clauses Act, 1904, runs as under :

"4 (42B) 'statutory instrument' shall mean any notification, order, scheme, rule, or bye-law issued under any enactment and having the force of law ;"

69. It cannot be disputed that the power exercised by the State Government is admittedly the power exercised under the Act, 1901 and the order passed under Section 11 of the Act has the force of law. It can also not be disputed that the notification issued by the State Government under Section 11 of the Act falls within the definition of statutory instrument as defined in Section 4(42B) of U. P. General Clauses Act, 1904."

6. In view of above exposition of law challenge of reconstitution of Village Panchayat on the ground of bias, in our view, cannot be sustained.

7. The writ petition lacks merit. Dismissed.

8. Interim order, if any, stands vacated.

Order Date :- 7.11.2017 Sanjeev