SCA/5879/1993 of JAWANPURA GROUP GRAM PANCHAYAT Vs STATE OF GUJARAT on 6 September 1995

1. Whether Reporters of Local Papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ? 3. Whether their Lordships wish to see the fair copy of

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any other order made thereunder ? 5. Whether it is to be circulated to the Civil Judge ?

Shri P.B Majmudar, Advocate for the Petitioner.Shri K.C Shah, APP for Respondents No. 1 & 2Respondent No. 3 - served.Shri Tushar Mehta, Advocate for Respondent No. 4

���� CORAM : A.N. DIVECHA, J.

������ 6-9-1995

ORAL JUDGEMENT

The Notification issued on 5th December 1992 andpublished in The Gujarat Government Gazette (Extraordinary) on9th March 1993 is under challenge in this petition under Article 226 of the Constitution of India. Therebyretrospective effect was given to the Notification issued on16th November 1991 under section 9 (2) of the GujaratPanchayats Act, 1961 ("The Act" for brief).

2. It is not necessary to set out in detail the factsgiving rise to this petition. It may be sufficient to notethat the Development Commissioner {Respondent No. 2 herein)issued one Notification on 16th January 1971 under Section 9(2) of the Act excluding the area comprising of Survey Nos. 41and 42 from the village, named, Jawanpura, and included thesame in the Nagar Panchayat of Idar. Its copy is at Annexure-Ato this petition. As transpiring therefrom, it was to come ineffect from the date of its publication in the GovernmentGazette. It may be mentioned that the validity thereof waschallenged by means of certain litigations and interim orderswere obtained against its publication in the GovernmentGazette. It could not therefore be published for quite sometime. By its order passed on 16th June 1992 in Special CivilApplication No. 3544 of 1992, this Court directed holding ofelections to the Nagar Panchayat of Idar including thereinSurvey Nos. 41 and 42 of village Jawanpura. A copy of theaforesaid Order passed by this Court on 16th June, 1992 as atAnnexure-B to this petition. Thereupon, a Notification came tobe issued by Respondent No. 2 on 5th December 1992 publishedin the Government Gazette (Extraordinary) on 9th March 1993giving retrospective effect to the Notification at Annexure-Ato this petition. A gazetted copy of the aforesaidNotification issued on 5th December 1992 is at Annexure-C tothis petition. The petitioner has questioned its validity bymeans of this petition under Article 226 of the Constitution ofIndia.

3. It cannot be gainsaid that the validity of theNotification at Annexure-A to this petition has been upheld astranspiring from the preamble to the Notification at Annexure-Cto this petition. The validity of the Notification atAnnexure-C to this petition has been challenged only on theground that it gives retrospective effect to the Notificationat Annexure-A to this petition without its publication in theGovernment Gazette. In support of this submission, the learnedadvocate for the petitioner has relied on the unreported rulingof this Court in Special Civil Application No. 1582 of 1969decided on 12th March 1970, some portion of which is foundreproduced in (1970) 7 Guj. Law Times at p-64.

4. It cannot be gainsaid that, sitting as the single, I ambound by the aforesaid Division Bench ruling of this Court.Even otherwise, I am in respectful agreement therewith. Itcannot also be gainsaid that the Notification at Annexure-C tothis petition gives retrospective effect to the Notification at

Annexure-A to this petition. That is contrary to the aforesaidbinding Division Bench ruling of this Court. It has been urgedthat, in order to give effect to the notification at Annexure-A to this petition, the same is required to be published inthe Government Gazette and it cannot be brought into effect byany other notification even though the subsequent notificationis published in the Government Gazette.

5. Ordinarily I would have upheld the challenge to theNotification at Annexure-C to this petition on the aforesaidground. However, on the peculiar facts and circumstances ofthe case, the relief claimed by the petitioner in this petitionneed not be granted in exercise of the discretionary powervested in this Court under Article 226 of the Constitution ofIndia. The reason therefor is quite simple. As transpiringfrom the preamble to the notification at Annexure "C" to thispetition the Notification at Annexure-A to this petition couldnot be published in view of challenge to its validity by meansof certain litigations and grant of interim orders by Courtstherein. In the meantime, as aforesaid, by the order atAnnexure-C to this petition, this Court permitted theauthorities to hold elections to the Nagar Panchayat of Idar byincluding within its limits Survey Nos. 41 and 42 of VillageJawanpura. The effect of the order of this Court at Annexure-Bto this petition would be to give effect to the Notification atAnnexure-A fo this petition. It appears that, pursuant to theorder of this Court at Annexure-B to this petition,Notification at Annexure-C to this petition has been issued.It thus becomes clear that not only the validity of theNotification at Annexure-A to this petition has been upheld bythis Court, but this Court has also given effect to it by itsorder at Annexure-B to this petition. It is not in disputethat, pursuant thereto elections to the Nagar Panchayat of Idarwere held including within its limits the area comprising ofSurvey Nos. 41 and 42 of Village Javanpura. That means theeffect to the Notification at Annexure-A to this petition wasfully given without its publication in the Official Gazette.In that view of the matter, issuance of the NotificationAnnexure-C to this petition was a mere formality. It is thesepeculiar facts and circumstances of this case which hasprompted me to uphold the validity of the NotificationAnnexure-C to this petition bringing it into effectretrospectively from the date of the Notification at Annexure-Ato this petition without publication of the latter in theOfficial Gazette.

6. In view of my aforesaid discussion, the notification atAnnexure-C to this petition calls for no intereference by thisCourt and its validity deserves to be upheld.

7. In the result this petition fails. It is hereby rejected. Rule is accordingly discharged with no order as tocosts.

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