B.S. Verma, J.@mdashHeard learned Counsel for the parties and perused the record.
2. By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 15-5-2010 passed by the Delimitation Committee headed by its chair person-Collector Haridwar in respect of village Badheri Rajputan and Shantershah, Block Roorkee, District Haridwar and the final list published in furtherance thereof. Further prayer of a writ of mandamus commanding the Respondents to constitute and declare the Gram Panchayat Shantershah as separate Gram Panchayat has been made.
3. Brief facts, giving rise to the present writ petition, according to the Petitioner, are that the Petitioner is a permanent resident of village Shantershah, Block Roorkee, district Haridwar and has interest in delimitation of Gram Panchayat constituencies. The village Shantarshah is situated at a distance of about 1,1/2- 2 Kms from the revenue village Badheri Rajputan, consisting of a population of 3446 as per census report of 2001, while the population of village Badheri Rajputan was 3509. Earlier village Shantershah was a separate Panchayat till the year 1982.
4. The Respondent No. 2-District Magistrate Haridwar issued a notification on 8-4-2010 declaring programme for delimitation exercise of Gram Panchayats in district Haridwar in furtherance of G.O. No. 274/xii/2010/88/(15)/2009 dated 6-4-2010. In delimitation process, the Block Development Officer concerned gave his report and recommended for formation of Gram Panchayat Shantarshah separately from Badheri Rajputan. The recommendation has been annexed as Annexure-4 to the writ petition.
5. The tentative list was published. The Respondent No. 5-Tejpal Singh has filed objection against the tentative proposal before the Committee on the ground that Section 11-F of the U.P. Panchayat Raj Act, 1947 (for short the Act) provides for declaration of Panchayat area.
6. Section 11-F of the Act in relation to State of Uttarakhand reads as under:
11-F. Declaration of Panchayat area.-(1) For the purposes of this Act the State Government may by notification declare any area comprising a village or group of villages, having, so far as practicable, a population of 300 in hill area and 1000 in plane area to be a Panchayat area for the purpose of this Act by such name as may be specified:
Provided that the population shall not exceed 1000 in hill area and 5000 in plane area of the state as far as practicable:
Further provided that if it is not practically possible to follow the above provisions then the State Government may relax the aforesaid restrictions by order in the specific and unavoidable circumstances.
(2) The State Government may, on the request of the Gram Panchayat concerned or otherwise, and after previous publication of the proposal, by notification at any time- (a) modify the area of any Panchayat area by including therein or excluding therefrom any area of a village or group of villages;
(b) alter the name of the Panchayat area; or (c) declare that any area shall cease to be a Panchayat area.
7. According to the Petitioner, in view of the provisions contained in second proviso appended to Section 11-F of the Act, for the purpose of declaration of a Panchayat, no revenue village or any hamlet thereof shall be divided.
8. On the basis of the objection, considering the provisions of Section 11-F of the Act, the Committee came to the conclusion that since village Shantarshah is situated within the revenue area of village Badheri Rajputan, it cannot be bifurcated. This fact is not disputed that village Shantarshah is located in revenue area of village Badheri Rajputan and most of the abadi mentioned in the report resides in revenue area of that village Badheri Rajputan, but while the decision has been taken by the delimitation committee, the persons of village Shantarshah have not been heard and the committee did not consider the second proviso of Section 11-F of the Act, wherein it is also provided that if it is not practically possible to follow the provisions as mentioned in the earlier part of Section 11-F, then the State Government may relax the aforesaid restrictions of proviso first by order in the specific and unavoidable circumstances.
9. Counter affidavit has been filed on behalf of the Respondent Nos. 2 to 4. In paragraph No. 6, the following averments have been made:
That the contents of paras 7 to 13 of the writ petition are not admitted, hence, are denied. In reply thereof it is submitted that on the basis of the report submitted by the Block Development Officer, Roorkee with regard to the population in accordance of Census 2001, which was shown as 3446, a proposal for constitution of new Village Panchayat was sent before the Delimitation Committee on the basis of which publication was made by the Committee and in furtherance thereof objections were invited from the Villagers; against which one Sri Tej Pal Singh, a resident of revenue village Shantarshah submitted objection that most of the resident of revenue village Shantarshah have been shifted/migrated in the area of revenue village Badheri Rajpootan and only some of the families are residing in revenue village Shantarshah and thus, to declare this revenue village Shantarshah as a separate Village Panchayat may create problems in future. In the objection a separate enquiry was conducted by the District Magistrate, Haridwar and the facts stated in the objection by Sri Tej Pal Singh were found true. Therefore, the Committee took a decision unanimously for not constituting the separate Village Panchayat Shantarshah as it was brought in the knowledge of the answering Respondent that on the spot i.e. revenue village Shantarshah, the population living is found only 15 families.
As submitted above that almost population of therevenue village Shantarshah have been shifted/migrated in the area of revenue village Badheri Rajpootan; thus, it is not possible for the answering Respondent to have recognition of separate Village Panchayat to revenue village Shantarshah.
It is pertinent to point out here that since almost population of revenue village Shantarshah has been shifted in the area of revenue village Badheri Rajpootan; thus, it the revenue village Shantarshah is declared as separate Village Panchayat, in such circumstances it would violate the provision of Section 11 of the U.P. Panchayat Raj Act, 1947 and only the villagers residing in revenue village Badheri Rajpootan will be elected as Gram Pradhans and Gram Panchayat Members for two separate Gram Panchayats, which causes great problems and violation of Act & Rules as well.
10. I have perused the provision of Section 11-F of the Act. The averments made in the counter affidavit are not entirely correct. It appears from a perusal of the record that the villages Badheri Rajputan and Shantarshah are situated separately and as per report of the Settlement Officer Consolidation, most of the population of village Shantarshah is situated within the revenue area of Badheri Rajputan. The villages are separate but the revenue village is one. The learned Delimitation Committee did not consider the second proviso of Section 11-F of the Act, which provides that if it is not practically possible to follow the provisions as contained in Section 11-F, referred to above, the revenue village may also be divided.
11. For the reasons and discussion above, liberty is given to the Petitioner to file objection before the learned Collector Haridwar in the matter before 25th December 2010 and the Delimitation Committee after giving opportunity of hearing to the Petitioner as well as Respondent No. 5-Tej Pal Singh shall decide the objection of the Petitioner by 31-12-2010 afresh by a reasoned and speaking order, considering the second proviso of Section 11-F of the Act. Till then, the impugned order dated 15-5-2010 shall be kept in abeyance. The Respondent No. 5 shall put in his appearance in the matter before the Delimitation Committee Haridwar.
12. With the above direction, the writ petition is disposed of finally.
13. A certified copy of this order be issued to the learned Counsel for the parties by tomorrow (21-12-2010) on payment of usual charges.
