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Judgment
R.S. Pathak, C.J.—The Nagheta Sabha area consisted of nine villages. On 1st July, 1972 a notification was issued by the Himachal Pradesh Government u/s 4(2) of the Himachal Pradesh Panchayati Raj Act, 1968, excluding five villages from it. The notification intimated that the five villages had been merged in the Gram Sabha of Danda Annj. Apparently, the five villages were constituted into the Danda Annj Sabha area u/s 4(1) of the aforesaid Act. The Danda Annj Gram Sabha was established in respect of that Sabha area u/s 5(1) of the Act. Subsequently, on 5th August, 1972, another notification was issued stating that the operation of all the earlier notifications under which Sabha Areas had been constituted stood terminated, and under the powers conferred by Section 4(1) and Section 5(1) the Sabha areas specified therein were constituted. It purported to restore the five villages to the Naghcta Sabha areas which had originally been excepted from it. This writ petition has been filed by the Danda Annj Gram Sabha and some residents of those villages. They challenge the validity of the notification dated 5th August, 1972.
Section 4(1) and Section 4(2) of the Act deal with Sabha areas. Section 4(1) enables the Government to constitute a Sabha Area of one or more villages. Section 4(2) empowers the Government to include any area in the Sabha area or exclude any area from the Sabha area. Section 5 deals with Gram Sabhas. Section 5(1) empowers the Government to establish a Grain Sabha by name in every Sabha area. Section 5(2) declares that every Gram Sabha shall be a body corporate having perpetual succession and a common seal, and subject to any restriction by or under the Act or any other law, it has power to acquire, hold, administer and transfer property, movable or immovable, and to enter into contracts, and it can sue or be sued by its name and do all such things as are necessary for which it is constituted.
The notification of 5th August, 1972 purports to have been made in exercise of the powers u/s 1(1) and Section 5(1) of the Act. It takes away all the villages from the Danda Annj Sabha area and includes them in the Nagheta Sabha area. Thereby, the said Danda Annj Sabha area ceases to exist. The result is that the Danda Annj Gram Sabha is left without a Sabha area. There is nothing in the notification to indicate that the Danda Annj Gram Sabha has been abolished. Although the notification purports to have been made u/s 5(1) also, no order has been made therein affecting the establishment of the Danda Annj Gram Sabha. It is concerned only with Sabha areas. A Gram Sabha is a body corporate having perpetual succession, and continues to exist in law. The mere removal of the Sabha Area in respect of the Grm Sabha does not thereby put an end to the Gram Sabha. Assuming the Government has power to abolish the Danda Annj Gram Sabha, it can only do so by a specific order to that effect. The notification of 5th August, 1972, does not do so. Accordingly, the case is one where the Danda Annj Gram Sabha remains established but there is no Sabha area over which it has jurisdiction. That, in my opinion, is opposed to the necessary intention of the Act. If the Government intended to remove the entire Sabha area from the jurisdiction of the Danda Annj Gram Sabha, it could have done so only by first abolishing the Gram Sabha itself and thereafter putting an end to the constituted Sabha area. The villages comprised in that Sabha area would then be available for inclusion in another Sabha area.
The learned Advocate-General has referred me to the return filed on behalf of the Respondents, where it is said that the Nagheta Gram Sabha was erroneously bifurcated and the notification had to be superseded in order to restore the status quo. It is apparent that the Respondents have confused the Gram Sabha with the Sabha area. While a Sabha area may be bifurcated by excluding some villages from it and constituting another Sabha area, a Gram Sabha, which is a corporate body, [cannot be bifurcated. Reliance is also placed upon Section 4(2) of the Act, but that again refers to a Sabha area and not to a Gram Sabha. Throughout the return suffers from the error of identifying a Sabha Area with a Gram Sabha.
I am of opinion that the Petitioners are right in contending that the notification of 5th August, 1972 is invalid so far as it concerns the Danda Annj Sabha area.
In the circumstances, it is not necessary to consider the further submission of the Petitioners that the notification of 5th August, 1972, could have been passed only after affording an opportunity of being heard to the Danda Annj Gram Sabha and further that the said notification is invalid as being arbitrary.
The petition is allowed. The notification dated 5th August, 1972 is quashed so far as it relates to the live villages comprised in the Danda Annj Sabha area. The Petitioners are entitled to their costs, which I assess at Rs. 100.