Panchayat:Repo18/Law Manual Page0091

From Panchayatwiki
Jump to navigation Jump to search

of villages and the discharge of the liabilities of the Village Panchayat relating to such property or arising from such village including all matters connected therewith or incidental thereto.


What could be discerned from S.4(1) of the Panchayat Raj Act is that, it envisages constitution of a Village Panchayat only for a village or group of village. Similarly under S.4(2), the increase in area of the existing Village Panchayat or the reduction in area of the existing Village Panchayat can be only by addition of or exclusion of any village or group of village. That means the legislation never envisages a Panchayat for a part of a village. A declaration by the Governor in exercise of powers under Art.243(g) of the Constitution is mandatory for the formation of a village for the purpose of Part IX of the Constitution. Without such declaration, no village comes into existence. Therefore, without a prior notification conferring the status of village over the area in respect of which the Panchayat has to be formed, no Village Panchayat can be constituted. It is also crucial to note that Art.243B of the Constitution which says about the Constitution of Panchayats does not envisage the Constitution of Panchayats for part of a village. The gist of the arguments advanced by the counsels is that a Panchayat cannot be constituted without a declaration by the Governor under Art.243(g) of the Constitution. If a village has come into existence on the basis of a notification issued by the Governor, then, nothing prevents the Government to form a Panchayat for that village. However, as the Legislature in its wisdom has prescribed a particular method to constitute a Panchayat as well as for varying the area of existing Panchayats, the same method has to be adhered to in letter and spirit. Presumably, such a method is provided to safeguard the interest of general public. If portions of a village come under different Panchayats, the same may cause inconvenience to the residents of that village. The inevitable result is that a village cannot be bifurcated by including portions of the same in different Panchayats. In the instant cases, portions of the villages have been carved out to form the newly formed Panchayats. - Saifudeen K. and Others v. State of Kerala and Others - 2015 (4) KHC 454 : 2015 (4) KLT 50: 2015 (3) KLJ 804. When an area where a building is situate was originally part of a Panchayat which was notified under S.1(3) of the Act is deleted from that Panchayat and included in a Panchayat which is not so notified under the said provision, the Act would have no application to such area and the Civil Court would have jurisdiction to entertain suits for eviction of tenants of buildings situated in that area. - Karam Veettil Parukutty Amma v. Muhammedkutty - 2013 (1) KHC 56 : 2013 (1) KLT 140 : ILR 2013 (1) Ker. 363 : 2013 (1) KLJ 423.

The words "or Block Panchayat" was not there before the amendment and now it is added after the words "village Panchayat". For diminishing the area of a Block Panchayat, the Government can "exclude from such panchayat area any village or group of villages." When there is a village panchayat for a village or group of villages, such exclusion will automatically result in exclusion of that village panchayat from the block panchayat. Therefore, even if the words "village panchayat" are not mentioned in the last limb of sub-sections 2(a) or 2(b), by way of any amendment, that is immaterial – Saju K.P. and Another v. State of Kerala and Others – 2010 (3) KHC 833.

It is evident that the Government acted upon the resolutions of the existing Block Panchayats and the Village Panchayats with regard to the formation of Panoor Block Panchavat. Of course, the petitioners contention that the entire details with regard to the proposals were not communicated to the various panchayats and block panchayats, is significant. But even with regard to the proposals, the respective panchayats and block panchayats have responded and after considering their views, the final notification has been issued. Thus, the Government accepted their views while issuing the final notification. Therefore, New Mahi Panchayat which is included in Thalassery Block Panchayat is retained in the said Block Panchayat itself, in view of their preference. Similar is the case of various other block panchayats also. In that view of the matter, the situation herein is not identical to the batch of cases considered by this Court in WP (C) No. 21166/2010 and other connected cases. Therefore, evidently the Government has more or less accepted the views of certain village panchayats - Saju K.P. and Another v. State of Kerala and Others - 2010 (3) KHC 833. It was specifically held that "the Panchayat has to be consulted before the area of the Village Panchayat is diminished." When the words or 'Block Panchayat' are introduced in the amendment, the same yardstick will apply to a Block Panchayat also. What is mentioned in Section 4(2) is that in a case where action is not being taken at the request of the Panchayat, the Government may, after consultation with the Panchayat and after previous publication of the proposal, issued the final notification. Therefore, two elements are to be satisfied, i.e. "consultation and previous publication of the proposal, "Herein, Ext. P1 is the proposal. Consultation and previous publication being two elements of the statutory mode to