{"id":11229,"date":"2004-04-28T00:00:00","date_gmt":"2004-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pruthvisinh-amarsinh-chauhan-vs-k-d-rawat-or-his-successor-in-on-28-april-2004"},"modified":"2017-05-05T15:35:36","modified_gmt":"2017-05-05T10:05:36","slug":"pruthvisinh-amarsinh-chauhan-vs-k-d-rawat-or-his-successor-in-on-28-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pruthvisinh-amarsinh-chauhan-vs-k-d-rawat-or-his-successor-in-on-28-april-2004","title":{"rendered":"Pruthvisinh Amarsinh Chauhan vs K.D. Rawat Or His Successor In … on 28 April, 2004"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Pruthvisinh Amarsinh Chauhan vs K.D. Rawat Or His Successor In … on 28 April, 2004<\/div>\n
Author: A Dave<\/div>\n
Bench: J Bhatt, K R Vyas, A Dave<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
A.L. Dave, J.<\/p>\n
1. These two matters are placed before this Larger  Bench, by virtue of an order passed by Hon’ble the Acting  Chief Justice, on 19th June,2003, following an order  passed by the learned Single Judge of this Court, on 8th  October,2001 in these matters, referring the matters to  Division Bench \/ Larger Bench.\n<\/p>\n
2. These petitions are filed under Articles 226 and  227 of the Constitution of India for a Writ of mandamus  or direction for quashing and setting aside Notification  dated 3rd April,2001, issued by the State of Gujarat  under Section 7 of the Gujarat Panchayat Act,1993  (hereinafter referred to as “the New Act”). Under the  said Notification, the State Government excluded the  local area of Govindpura from existing area of Veda Gram  Panchayat. By the said Notification, the State  Government created new areas of Veda and Govindpura Gram  Panchayatas comprising of local areas of Veda (Revenue  Village) and Govindpura (Petapara). A challenge is also  made to Notification dated 16th April,2001 issued by the  District Development Officer, Gandhinagar, by which the  Government has deprived Veda (Govindpura Gram Panchayat)  and Kalol Taluka of Gandhinagar District and created Veda  and Govindpura, two separate Villages and also appointed  Administrator.\n<\/p>\n
3. In order that the points under Reference and the  contentions in Reference thereto can be better  appreciated, certain facts in backdrop of which issues  have arisen, need to be stated :\n<\/p>\n
3.1 The State of Gujarat issued a Notification on  23rd May,1984 in exercise of powers under Section 9 of  the Gujarat Panchayat Act,1961 ( hereinafter referred to  as “the Old Act”) of which the area covered by Govindpura  was excluded from Veda Gram Panchayat and a separate Gram  Panchayat was declared in respect of the excluded area of  Govindpura. This resulted into filing of Special Civil  Application No.3322 of 1984 before this Court by Veda  Gram Panchayat challenging the said Notification. The  said petition was rejected by learned Single Judge of  this Court by order dated 5th July,1984. Aggrieved by  the said order, Letters Patent Appeal No.290 of 1984 was  preferred and the Division Bench of this Court dismissed  the said Letters Patent Appeal by order dated 20th  July,1984. While dismissing the Letters Patent Appeal,  the Division Bench observed that, “the Panchayat can  bring their grievances or complaints before the Competent  Authority and there is nothing in law or logic to take  away their right to re-consider the above decision”.\n<\/p>\n
3.2 Thereafter, the Development Commissioner passed  an order on 24th October,1984, by which, it was held that  earlier division of the Group Panchayat into two  Panchayats required re-consideration and the bifurcation  of these two Panchayats should not be made, and these two  villages should continue to be governed by the common  Group Panchayat and enjoy common set of facilities  jointly as was the case in past. Being aggrieved by the  said Notification, resident of Village Govindpura  preferred Special Civil Application No.5539 of 1984 in  this Court, where learned Single Judge rejected the said  petition by order dated 29th January,1985. The Letters  Patent Appeal bearing No.46 of 1985 was preferred against  that order, which was also dismissed vide order dated  14th February,1985.\n<\/p>\n
3.3 Thus, the decision of the Government to bifurcate  the area taken and effected earlier was challenged on  judicial side and the decision was upheld. However, the  said decision was reviewed subsequently and bifurcation  was cancelled. That decision was also challenged on  judicial side and that was also not entertained and  confirmed by the Court, and both the Panchayats continued  as a Group Panchayats till 1996. When in the year 1996,  the State Government consulted the Gram Panchayats on  1.1.1996, 9.1.1996 and 7.3.1996 and thereafter, the State  Government by order dated 9th October,1998 decided not to  bifurcate Veda Gram Panchayat and informed the  Development Commissioner in this behalf.\n<\/p>\n
However, subsequently on 13th June,1997, the  Government issued a Notification in exercise of powers  under Section 7 of the New Act after consultation with  the concerned Village Panchayat and Taluka Panchayat and  excluded local area of Himmatpura from the local area of  existing village of Veda and after exclusion of the said  areas, specified the new villages Veda and Himmatpura.\n<\/p>\n
3.4 The controversy arose when the Government has  decided to review its previous decision dated 9th  October,1998 (not to bifurcate Veda Gram Panchayat) and  deemed it necessary to bifurcate Veda Gram Panchayat and  create two villages – Veda and Govindpura Gram  Panchayats, and issued Notification dated 3rd April,2001.  As a result of which Special Civil Application No.2804 of  2001 came to be preferred by the Sarpanch of Veda Gram  Panchayat, seeking following reliefs :\n<\/p>\n
(A) Be pleased to allow this petition.\n<\/p>\n
(B) Be pleased to issue a writ of mandamus or any  other writ or direction or order in the nature of  the writ quashing and setting aside the impugned  notification vide Annexure-A dated3.4.2001, as  well as dated 16.4.2001.\n<\/p>\n
(C) Be pleased to issue the writ of mandamus or any  other writ or order or direction in the nature of  the writ, restraining the respondents from  execution, operation and further implementation  of the notifications vide Annexure-A Collectively  pending hearing, admission and final disposal of  this petition.\n<\/p>\n
(D) Be pleased to grant any other relief which deems  fit and proper in the interest of justice.\n<\/p>\n
3.5 Special Civil Application No.4597 of 2001 is  preferred by Gunvantbhai B.Mehta, who happens to be an  elected Deputy Sarpanch of Veda and Govindpura Gram  Panchayats, seeking following reliefs :\n<\/p>\n
(A) Be pleased to allow this petition.\n<\/p>\n
(B) Be pleased to issue a writ of mandamus or any  other writ or direction or order in the nature of  the writ quashing and setting aside the impugned  notification vide Annexure-A dated 3.4.2001 as  well as dated 16.4.2001.\n<\/p>\n
(C) Be pleased to issue the writ of mandamus or any  other writ or order or direction in the nature of  writ or order or direction in the nature of writ,  restraining the respondents from execution,  operation and further implementation of the  notification vide Annexure-A Collectively pending  hearing, admission and final disposal of this  petition.\n<\/p>\n
(D) Be pleased to direct the respondents to give the  Charge to the Elected Body of the Veda Govindpura  Gram Panchayat pending admission, hearing and  final disposal of the present petition.\n<\/p>\n
(E) Be pleased to grant any other relief which deems  fit and proper in the interest of justice.\n<\/p>\n
3.6 Learned Single Judge, before whom, these two  petitions were placed, after dealing with the back ground  of the matters, the controversy and the issues involved  in the matters and the legal propositions emerging from  various judicial pronouncements, found that the  Government has initially consulted a necessary Taluka  Panchayats and Gram Panchayats and taken a decision not  to bifurcate the village. Thereafter, the Government  took a decision to bifurcate the villages without fresh  consultation and therefore, it would be necessary to  decide the scope of review in such a matter and to  consider whether Government can issue Notification  without again consulting Taluka Panchayats and Gram  Panchayats. Learned Single Judge also found that it will  have to be considered whether in light of various  judicial pronouncements whether it would be necessary to  issue a fresh consultation in this behalf. He,  therefore, directed the Office to place the matter before  the Hon’ble the Chief Justice, so that the matters can be  placed before the appropriate Court for considering the  points.\n<\/p>\n
3.7 In the order the learned Single Judge made  reference to the decision rendered by three different  Division Benches in three different cases viz. (i)  Kalubhai Keshrisingh Vs. State of Gujarat and  others,1965 (6) GLR 459 (ii) Nathabhai M. Patel Vs.  State of Gujarat, 1993 (2) GLR 992 and (iii) Likhi Group  Gram Panchayat Vs. State of Gujarat, 2001 (1) GLR 827  and held that ratio decidendi of Nathabhai’s case is  really in conflict with the ratio decidendi in case of  Likhi Group Gram Panchayat. Thus, from the order of the  learned Single Judge, following points arise for our  consideration :\n<\/p>\n
(i) What meaning could be attributed to term  “Consultation” after due consideration of  Kalubhai’s case, Nathabhai’s case and the case of  Likhi Group Gram Panchayat (supra), and the case  of Chhani Nagar Panchayat and Another Vs. State  of Gujarat, 2000 (2) GLR 1263 ?\n<\/p>\n
(ii) Whether there is any conflict between ratio  decidendi settled in Nathabhai’s case and in the  case of Likhi Group Gram Panchayat ?\n<\/p>\n
(ii) Whether the Government, after taking a decision  on the issue of bifurcation after due  consultation, can again issue a Notification  without fresh consultation of the Taluka  Panchayats and Village Panchayats or whether the  Government will have to undertake the exercise of  fresh consultation ?\n<\/p>\n
4. We have heard learned advocates Mr.Anant Dave and  Mr.B.M.Mangukia and learned Government Pleader  Mr.A.D.Oza.\n<\/p>\n
5. Learned Advocate Mr.Dave for the petitioner  submitted that in the affidavit of the Government, it is  stated that consultation has been made with the Gram  Panchayats, Taluka Panchayats and District Panchayatas in  the year 1996. It also emerges from the  affidavit-in-reply that a decision was taken on 9th  October,1998 to reject the proposal for bifurcation of  the said Panchayat, as all the three Panchayats did not  agree for bifurcation. Mr. Dave submitted that the said  decision was taken for re-consideration and ultimately,  Notification dated 3rd April,2001 came to be issued after  2 and 1\/2 years, and there was no consultation after the  decision not to bifurcate was taken on 9th October,1998.  He, therefore, submitted that the mandatory exercise of  consultation having not been complied with, the  Notification of bifurcation of Panchayats cannot be  permitted to stand. Mr.Dave submitted that as such there  is no conflict in the decision, reference to which has  been made by the learned Single Judge in the order,  except that in the case of Likhi Group Gram Panchayat.  In the facts and circumstances of the case, it was  observed that as time lag was too short, fresh  consultation would not have made any difference.  Otherwise, the consultation is a must and that having not  been done, the Notification would stand vitiated.\n<\/p>\n
6. Learned Advocate Mr.Mangukia submitted that there  is no conflict in the judgments, but, factually following  the Notifications, elections were held and Govindpura  Gram Panchayat has come into existence which is governed  by the elected body. Although, he conceded to the fact  that people of Veda Village boycotted election and  therefore, an Administrator is running the Panchayat.\n<\/p>\n
7. Learned Government Pleader Mr.Oza submitted that  in the case of Likhi Group Gram Panchayat, there is no  reference to Nathabhai’s case, but, that by itself would  not bring any conflict between the ratio laid down in the  aforesaid cases, presumably, because fresh consultation  was not an issue before the Division Bench which decided  Nathabhai’s case. He submitted further that from the  tenor of the Notification date 3rd April,2001 it is clear  that before issuance of the said Notification, there was  a consultation made with the Village Panchayat, Taluka  Panchayat and District Panchayat concerned. He submitted  that in affidavit-in-reply of the State Government in  Special Civil Application No.2804 of 2001, it is  categorically stated that decision taken previously by  the State of Gujarat on 9th October,1998 was taken into  consideration and thereupon, it was found necessary by  the State of Gujarat to bifurcate Veda Gram Panchayat  (Govindpura Gram Panchayat) and therefore, it was decided  to bifurcate Veda Gram Panchayat (Govindpura Gram  Panchayat), whereupon the Notification was issued on 3rd  April,2001. He further submitted that there is no denial  on part of the petitioners when there was consultation  with the Gram Panchayat, but, all that is said, all the  three Gram Panchayats did not agree for bifurcation and  that there was no effective and meaningful consultation.  He submitted that in other words, there is a tacit  admission on part of the petitioner that there was a  consultation by the State Government with Gram Panchayat.  In these circumstances, he submitted that points may be  answered accordingly.\n<\/p>\n
8. We have given a thoughtful consideration to the  contentions raised before us. The following factual  scenario remains undisputed. In the year 1984-1985, the  process for bifurcation of the Panchayat started and a  decision was taken to bifurcate the Panchayat. The said  decision was challenged before the High Court, but, was  upheld by the High Court, both in Special Civil  Application as well as in Letters Patent Appeal.  However, at a later point of time, somewhere in 1986, the  said decision was reviewed and revoked and the bifurcated  Panchayats were re-united.\n<\/p>\n
8.1 Again, in the year 1996, a proposal was made,  followed by a consultation for bifurcation and in the  year 1998, a decision was taken not to accept the  proposal and not to bifurcate the Panchayats. Subsequent  thereto, the said decision was reviewed and impugned  Notification was passed bifurcating the Panchayats.  Admittedly, after the consultation in 1996 and decision  in 1998 not to bifurcate the Panchayats, there was no  fresh consultation. Thus, while the Notification was  issued, the exercise of consultation as contemplated  under Section 7(2) of the New Act was not followed.\n<\/p>\n
9. The reference order culminates into three  material questions, as narrated above. The question that  would be required to be dealt with, first, would be what  meaning can be attributed to term ‘Consultation’. In  this regard, the decision in the case of Union of India  Vs. Sakalchand S. Sheth and Another, AIR 1977 SC 2328  and Baldevsingh Vs. State of Himachal Pradesh, AIR 1977  SC 1239, followed by observations in the case of Bhalod  Gram Panchayat Vs. State of Gujarat,1986 (1) GLR 247  would be relevant. The Apex Court has observed in the  case of Sakalchand (Supra) that, “the term ‘Consultation’  means full and effective and not formal or unproductive  consultation”. The term used is consultation and not  concurrence or consent which are not synonyms to each  other, and operate differently. For an important that  the consultation has to be meaningful and not formal. In  the case of Nathabhai (Supra), this Court observed that,  “for making consultation effective and clear, the  Government ought to have disclosed a new material to the  Panchayats and ascertained its view thereon, and  thereafter held that as no result has been pointed out  for not doing so, and because it does not point out that  if the action of the Government is regarded invalid, it  would be prejudicial to the public interest. The action  of the Government was arbitrary and liable to be declared  as invalid”. We are also of the view that when the  statute requires an Authority to consult before taking  action, the consultation should not be a mere formality,  but must be genuine and meaningful, then only the object  of incorporation of this cause in the statute by the  makers of law would be fulfilled, particularly in the  case before us the consultation would enable the  authority to understand and evaluate the implications of  the proposed stage on a section of Society which is  likely to be affected. The authority would know their  point of view which would assist it in evaluating or  judging the situation and take decision in the best  interest of the society.\n<\/p>\n
10. The next point that is required to be considered  by us is whether there is any conflict between the ratio  decidendi emerging from Nathabhai’s case and from the  case of Likhi Group of Gram Panchayat.\n<\/p>\n
10.1 We have given a close scrutiny to both the cases.  In the case of Nathabhai (Supra), the Division Bench,  after referring to Kalubhai Vs. State of Gujarat, 65 GLR  459, observed that in the said decision Section 9  Subsection (2) of the Old Act is pari-materia with  Section 7 Subsection (2) of the New Act is directory and  not mandatory. The Division Bench held that Section does  not prescribe what consequences would follow if prior  consultation is not made before taking an action under  the said Section. The Division Bench, ultimately, held  and observed “….it appears that the provision is  directory and although it does not indicate a duty to  consult Panchayat before passing an order under the  Section, but, it does not follow that every departure  from that duty will taint the whole proceedings with a  fatal blemish and render it void and ineffective”.\n<\/p>\n
10.2 Making observations on factual aspect of the  case, the Division Bench in Para.9 of the judgment  observed, thus :\n<\/p>\n
 “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  consideration 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. For making  consultation effective and real the Government  ought to have disclosed the 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”.\n<\/p>\n
10.3 Thus, according to the Division Bench, in the  case of Nathabhai (supra) as the decision of the  Government founded on fresh material was without  consultation and therefore, although the requirement of  consultation was not mandatory, the decision was held to  be invalid. No reason was indicated by Government for  not undertaking the exercise of consultation. The ratio  decidendi therefore is that requirement of consultation  is not mandatory and is directory. However, the  consultation has to be effective and real, and for making  it effective and real, the new material considered by  Government ought to have been disclosed to the Panchayat  and ascertained its view.\n<\/p>\n
11. In the case of Likhi Group Gram Panchayat (supra)  also the Division Bench held that requirement of Section  9(2) of the Old Act is not mandatory. What is required  is the consultation and not consent or concurrence.  Before that Bench, it was also argued that the  Development Commissioner has turned down the proposal for  division \/ bifurcation and thereafter, without  consultation of the Gram Panchayat or Taluka Panchayat, a  different view was taken to bifurcate the Panchayat. The  Division Bench observed that looking at the resolution,  it was clear that there was no mala fide on part of the  Development Commissioner in issuing the Notification.  Earlier there was consultation and this different view  was taken within a short time and therefore, the Division  Bench observed that if ultimately the Development  Commissioner has issued Notification within such a short  period, it cannot be said that within such a short period  further consultation was required. The Division Bench  relied on Kalubhai’s case that a duty to consult  Panchayat before passing an order under Section does not  necessarily mean that every departure from their duty  will take the whole proceedings with a fatal damage and  render it void and ineffective. Thus, the Division  Bench, in the facts of that case found that there was no  much lapse of time and non-consultation did not affect  the decision.\n<\/p>\n
12. What emerges from these two judgments therefore  is that in case of Nathabhai, the Division Bench found  that as the decision was taken on fresh material, earlier  consultation would not be effective or real. Whereas in  the case of Likhi Group of Gram Panchayat there was no  fresh material, there was no change in circumstance and  the time lag was so narrow that the Division Bench,  probably, felt in the facts of the case that fresh  consultation was not required. Both the decisions  concurred on the aspect that requirement of consultation  is not mandatory, but, is directory. The decision taken  in both the cases in respect of further consultation were  based on facts of those cases and in our opinion, as  such, there is no conflict between the ratio laid down in  the two decisions.\n<\/p>\n
13. The third point that requires consideration by  virtue of the reference is whether the Government can  issue Notification without again consulting the Panchayat  as per the requirement of Section 7(2) of the New Act.\n<\/p>\n
13.1 As discussed above, though the requirement of  consultation is not mandatory and is directory, in our  opinion, it cannot be given a total go-bye to it. Since  the Legislature in its wisdom has incorporated this  provision, it has to be given its due importance. It is  true that in other case non-compliance would not vitiate  the decision, valid reasons therefore have to be  indicated. The object behind the enactment has to be  saluted. The affected party must have an opportunity to  express its opinion and view on he proposed decision.  The term is used as a consultation and it cannot be, by  any stretch of imagination , taken as concurrence or  consent and therefore, after consultation a decision may  be taken by the Government.\n<\/p>\n
14. After the consultation, once it culminates into a  decision considering the pros and cons of the matter, the  exercise comes to an end and chapter is closed. If it is  proposed to make a fresh decision, in our opinion, it  would be a new chapter and fresh exercise of consultation  would be necessary. It will have to be examined whether  there is change in circumstance or not and if so, what  are the changes and for that reason, what is the view  point of the Panchayat – the affected party. This  requirement of law has to be, thus, saluted as if it is  altogether a new proposal for decision on aspect of  bifurcation.\n<\/p>\n
15. If after undertaking an exercise a final decision  one way or the other is not taken, probably fresh  exercise may not be undertaken once again. If there is a  lapse of time resulting into change into factual  scenario, the Government or the Authority can  legitimately be expected to undertake a fresh exercise of  consultation.\n<\/p>\n
16. In view of the above discussion, the points for  our determination are answered as under :\n<\/p>\n
(i) The term ‘Consultation’ has to be taken as an  effective and meaningful and genuine consultation  and not a formality.\n<\/p>\n
(ii) There is no conflict between the ratio laid down  in the case of Nathabhai (supra) and Likhi Group  Gram Panchayat (supra). The conclusions are  based on fact of each case, but, there is no  conflict in the ratio.\n<\/p>\n
(iii) If proposal has culminated into a decision, fresh  exercise of consultation would be necessary  before taking a fresh decision. We may reiterate  that the consultation is not mandatory and every  departure therefrom may not render it void or  ineffective, but, the provisions of law has to be  saluted in its spirit and exercise of  consultation should be undertaken.\n<\/p>\n
17. The Reference stands disposed of accordingly.\n<\/p>\n
 J.N. Bhatt, J. (Concurring):\n<\/p>\n
18. I, while agreeing with the ultimate conclusion  and supporting reasons, highlighted and heralded, by my  learned brother, Justice Dave, respectfully, propose to  add the following grounds and propositions for more  effective, better and efficient, understanding,  proposition and exposition as well as interpretation of  the provisions of sub-section 2 of Section 7 of the  Gujarat Panchayat Act, 1993 (“Act).\n<\/p>\n
19. By virtue of Section 2 of Constitutional (73rd)  Amendment Act, 1992, which came into effect, from  24-04-1993, and the resultant inclusion of Chapter IX  under the heading of “the Panchayats”, “a village” means  a village specified by the Governor, by a public  notification to be a village for the purpose of this part  and includes a group of villages so specified and  “Panchayat” means an instrument, by whatever name called,  as the Government constituted under Article 243-B, for  the rural areas. A Constitutional Mechanism of Gram  Sabha, Panchayats, including a provision of a bar to  interfere by the Courts in electoral matters of  Panchayats play significant role in highlighting the  purposive, useful, real and meaningful interpretation of  expression, “Consultation” employed in Section 7 (2) of  the Act corresponding to the provision of Section 9 (2)  of the Gujarat Panchayat Act, 1961 (“old Act”.)<\/p>\n
20. The Division Bench decisions rendered in Kalubhai  Kesri Singh Mahida Vs. State of Gujarat, 1965 (6) GLR  451 and Nathubhai M. Patel Vs. State of Gujarat, 1993  (2) GLR 992 were prior to the aforesaid amendments in the  Constitution relating to the composition and  administration of the Panchayats. While upholding the  nature of the provisions contained in sub-section 2 of  Section 9 of the old Act corresponding to sub-section (2)  of Section 7 of the new Act as `directory’ and not  `mandatory’, it has been, succinctly, held that the  scheme of the provisions in the context of the particular  provisions under consideration and the intended benefit  of the provision, as well as, the material danger by its  contravention out to be seen and not only the actual  words used in the statute. The proposition laid down for  sublime and significant use of expression “consultation”,  at the time of reconstitution of a village and  administration of Panchayat under the Act, has been  materially signified and reinforced by the inclusion of  Chapter IX in the Constitution of India. Needless to  reiterate that the Court is required to determine and  decide, appreciate and check the merits of each case,  having regard to the subject-matter in the backdrop of  the factual premise and profile, and the resultant impact  and effect, in the event of failure or departure, as it  “ipso-facto” may not constitute invalidity of the action.  It may, also, be remembered that the legislature must  have provided, for good reasons, that before effecting  reconstitution of a village or a change in the  administrative set-up for a Panchayat, the concerned  Panchayat ought to be consulted and departure from  non-compliance in the light of constitutional status to  Panchayat Raj Institute, ought to be viewed, very  seriously and, therefore, by now, the said provision has  to be taken almost like a mandatory prescription though  the expression employed in Section 7 (2) of the Act is  “may”.\n<\/p>\n
21. As a grass-root institution, the Panchayat  administration concept and philosophy has deep old roots  all along in the ancient days. The growth of Panchayat,  as an institution in villages and towns, as a system of  governance, is phenomenal and remarkable, notwithstanding  that during the times of kingdoms, autocracies, feudal  Rajas and Maharajas, this institution has played an  important and effective role in creating democratic  public opinion. Those were the days when Panchayats, as  effective instrument, as a popular democratic public  opinion, as to morality had impelled King Ram to banish  wife, Sita, on suspicion, whereas these days, worst,  criminals, escape moral obligations to quit till the  crime is established beyond doubt. It was an information  technology leading to effective public opinion, which  gave various authority to behave elderly through  consensus building. Human rights are implicitly  preserved, observed and subserved in revolutionary  evolution of the institution of the Panchayat.  Fragmentations and factionalism, fanaticism and  fundamentalism should remain miles away from the  administration of self-government like institution of  Panchayats for the better welfare of society and higher  interest of the common man and the concept of better  governance. The object of Panchayat Raj inheres,  `dil-bandi’ and not `dal-bandi’. Once upon a time,  villages were very happy in their splendid isolation.  Today, isolation is neither splendid nor desirable for  the growth of Gram Republic philosophy and effective  participation in development and governance.\n<\/p>\n
22. Unfortunately, the glowing scenario of the  expression, “Panchayat” underwent a sea change after  independence. Dynamics of “Village Panchayat” needs no  emphasis in a democratic and republic set-up of  governance. The creation of Panchayat should not be  oriented only to ensure the realisation of revenues and  power. It should not be compromised with the various  forces from political parties to penetrate the peace and  tranquility, objectivity and morality. The institution  of Panchayat has to be taken as an instrument of  transformation of socio-economic life and liberty. It  is, rightly, said that for such institutions, elections  are not the democracy. Panchayats are meant for pious  and progressive governance and not mere drum-beating.  Empty democracy is retrogressive and disillusionary. It  was rightly, observed in Balwant Rai Mehta Report (1978)  on Panchayats that at times political parties hierarchies  and a State were clashing in contradictions, which were  contrary to the policy and planning for the Panchayati  Raj institutions and vice-versa importance of achieving  success of revivalist Panchayati system in the party  demanded parochial environments without their ability and  commitment to oversee and closely supervise the  re-establishment of clear, composed and clean democratic  and developed institutions village upwards. Ashok Mehta  Report, 1978 was even more illustrating on Panchyati Raj  failure. It said the Panchayati Raj story of ups and  downs in three phases: one, the phase of ascendancy  (1959 65); two, stagnation (1965-69) and decline  (1969-77). The Committee, also, highlighted and repeated  the Balwant Rai team’s observation and made observations  and suggestions.\n<\/p>\n
23. The Panchayati Raj, like democracy at national  and State level, has both, an end and means. This is in  essence even of an integrated democratic polity. It is  essential for de-centralisation, better development.  More importantly, for the creations of an integral  structure of self-governing institutions from village  upwards to national level, Panchayati Raj is to be the  foundations of swaraj.\n<\/p>\n
24. It is in this context necessary to emphasise that  there should be no intrusion or intervention of the  rights and duties, custom and culture, composition and  character of the institution of Panchayati Raj. It is in  this context, it is, rightly, said that the consensus is  going to be the integral cultural system of the  governance and if Consensus Raj and Panchayati Raj made  for each other, so much the better. The political  hierarchies and the State leadership cannot underscore  and underestimate the significance and the content of the  Panchayati Raj by not following statutory provisions,  even whether it is directory, more so in the text and  context of inclusion of Chapter IX of the Panchyati set  up and mechanism in the Constitution of India in 1993 and  it is in this context and environment though Section 7  (3) speaks of “consultation” and not “consent” or  “concurrence”. The direct adherence and observance of  the expression, “consultation” employed by the  legislature in its wisdom and magnified and reinforced by  the inclusion of Chapter IX in the Constitution of India  should, always, be insisted and ought to be the hallmark  of the growth and development of the concept of Panchayat  which is in the higher public interest.\n<\/p>\n
25. There is a dynamic reform in approach to  governance and dealing increasingly with the provision  for consultation with civil society in relation to  legislative, public policy and developmental activities  in a democratic set up. While this development may have  led to enhanced understanding of consultation, as a mode  of involving larger sections of society or the people of  the territorial units, in decision-making, the term  “consultation” constituted, has to be used  interchangeably with, for example, “participation” and  “involvement” understandably in the context of informal  or non-formal dialogue. This practice risks of obscuring  a clear understanding of the expectation that can be had  of consultation as a function of forming public opinion  or public decision-making.\n<\/p>\n
26. Consultation with the people or the  representative organisations and individual citizens in  relation to any public better or public policy  initiatives can summarily be highlighted as being a  commitment on the part of the government or a  governmental agency to actively listen to and take into  consideration the views of the individual or  representative organisation on a given set of legislative  or public policy reformative proposals. Indisputably,  process of consultation is a mode of involvement that  brings with it no guarantee that the view-point of an  individual citizens or representative organisations,  shall be reflected in actions or documents arising from  given public consultation, let alone be translated into  actions.\n<\/p>\n
27. There is a considerable philosophical and  conceptual body of literature available to facilitate the  development of a single coherent definition of  “consultation” as “a mechanism for involving rural folks  or people or citizens in decision-making, including in  relation to public policy development”. Let it be  mentioned that in a period spanning over 30 years,  Arnstain (1969), Hart (1992), John (1996), Franklin  (1997), Treseder (1997) and Lendonz (2001) are among  those who have forwarded the definition of consultation  and moreover to have constituted these definitions  schematically in relation to other modes on involvement.  Roger Hart’s adaptation of Armstein’s ladder of  participation is worth mentioning because it was the  model chosen for presentation in national development  strategical approach.\n<\/p>\n
28. As this philosophical and conceptual aspect of  the word, “consultation” illustrates clearly not only the  meaning of consultation, but the regard and esteem in  which it is held that it can be a focus for divergent  opinions and views.\n<\/p>\n
29. The consultation, therefore, has to be understood  as a mechanism for collecting views, selecting opinions,  eliciting information that can inform about development  of a policy to a public policy maker at the state and  national level. The views of the people of village in  getting them participated in the process of  decision-making and influencing decision-making process  is not of a notion, but is a vision and has to be  understood with missionary zeal in a democratic  governance. The concept of consultation in a democratic  set up also augments culture and concept of a federalism.  Consultation provides an involvement of obtaining  important advice, ideas and divergent opinions from  various kinds of people regarding the formation,  evaluation, monitoring. Failure to consult or departure  from the statutory mechanism of consultation, even if it  be directory, has to be taken very seriously, as  departure of such process entails evil and civil  consequences directly or indirectly, knowingly or  unknowingly, deliberately or otherwise, for, effective,  efficient and meaningful governance and autonomy of  self-government at the bottom of the pyramid will result  into de-generation, de-composition and disintegration of  the process of democratic values, rule of law and  fundamental principles of natural justice as opposed to  the evolution of the humanistic and logistic rights. The  Reference is, in the result, answered accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Pruthvisinh Amarsinh Chauhan vs K.D. Rawat Or His Successor In … on 28 April, 2004 Author: A Dave Bench: J Bhatt, K R Vyas, A Dave JUDGMENT A.L. Dave, J. 1. These two matters are placed before this Larger Bench, by virtue of an order passed by Hon’ble the Acting Chief Justice, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-11229","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPruthvisinh Amarsinh Chauhan vs K.D. 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