MANU/SC/0002/2002

Equivalent/Neutral Citation: AIR2002SC 533, 2002(6)ALT14(SC ), 2002 INSC 3, JT2002(5)SC 40, 2002(2)RC R(C ivil)1, 2002(1)SC ALE18,
(2002)2SC C 7, [2002]1SC R27

IN THE SUPREME COURT OF INDIA

Appeal (civil) 5826 of 1999
Decided On: 07.01.2002
State of Punjab Vs. Tehal Singh and Ors.
Hon'ble Judges/Coram:
V.N. Khare and B.N. Agrawal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ranbir Yadav, Adv. for R.S. Suri, Adv
For Respondents/Defendant: K.K. Mohan and Hari Shankar K., Advs.
Case Note:
Constitution - Municipal law - Gram Panchayat - Declaration of territorial area
of Gram Sabha - Provisions of Punjab Gram Panchayat Act, 1952 do not
provide for any opportunity of hearing to the residents before any area falling
under a particular gram Sabha is excluded and included in another gram
Sabha - However the position would be different where a house of a
particular resident of an area is sought to be excluded from the existing gram
Sabha and included in another gram Sabha - There the action of the
government being directed against an individual, the government is required
to observe principles of natural justice - Therefore the notifications under
section 3 & 4 could be issued simultaneously.
JUDGMENT
V.N. Khare, J.
1. There is a village called Wazirpur in Block Ghal Khurd in the district of Firozepur,
Punjab. For the said village and certain other adjoining areas, Gram Sabha, Wazirpur
was constituted and established under Section 4 of the Punjab Gram Panchayat Act,
1952 (hereinafter referred to as the '1952 Act'). The areas included in the said Gram
Sabha were villages Khanpur and Harijan Colony. After 73rd Constitutional amendment
Act, 1992 came into force Punjab legislature enacted the Punjab Panchayati Raj Act,
1994 (hereinafter referred to as the Act) in conformity with the provisions of Part IX of
the Constitution. After the Act came into force, it appears that the residents of village
Khanpur represented to the Government for having an independent Gram Sabha for
village Khanpur by including certain portions of area of Gram Sabha, Wazirpur. The
Government after making inquiry issued notifications dated 24.10.97 under Sections 3,
4 and 10 of the Act respectively. By the said notification, the Government under Section
3 of the Act declared the territorial area of Gram Sabha Khanpur comprising of abadi
portions of village Wazirpur and village Khanpur and Harijan Colony. By another
notification of the same date, the Government declared the establishment of Gram
Sabha, Khanpur under Section 4 of the Act. The Government also constituted Gram
Panchayat for the Gram Sabha, Khanpur. It was at this stage, respondent No. 1, who
was Sarpanch of Gram Sabha, Wazirpur and respondent No. 2, who was the Member of
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the Gram Panchayat Wazirpur filed a writ petition under Article 226 of the Constitution
challenging the validity of the notifications dated 24.10.97. The contentions raised by
the writ petitioners before the High Court, inter alia, were that no opportunity of hearing
having been afforded before declaring the territorial area of village Khanpur inasmuch
as before establishing Gram Sabha Khanpur, the notifications were invalid; that, the
locality Harijan Colony not being contiguous to village Khanpur, the said locality could
not have been included in Gram Sabha Khanpur and, that, the notifications under
Section 3 and 4 of the Act could not have been issued simultaneously and, therefore,
the notifications are invalid. The aforesaid contentions advanced by the writ petitioners
found favour with the High Court. Consequently, the writ petition was allowed and the
impugned notifications dated 24.10.97 to the extent it related to the Gram Sabha,
Khanpur were set aside. It is against the said judgment of the High Court, the State of
Punjab has preferred this appeal by way of special leave petition.
2. Learned counsel appearing for the appellant assailed the reasoning given by the High
Court and argued that none of the reasons given by the High Court while allowing the
writ petition is tenable in law and, therefore, the judgment under challenge deserves to
be set aside. None has appeared for the respondents writ petitioners.
3 . After hearing learned counsel for the appellant, we are of the view that following
questions arise for our consideration in this appeal.
(1) Whether the State Government was required to give an opportunity of
hearing to the residents of the area excluded from Gram Sabha Wazirpur and
now included in the Gram Sabha Khanpur before issuing notifications under
Sections 3 and 4 of Act, respectively declaring territorial are of Gram Sabha
Khanpur and establishing Gram Sabha Khanpur.
(2) whether the notifications under Section 3 and 4 of the Act could be issued
simultaneously; and
(3) whether the Harijan colony being not contiguous to the village Khanpur it
could not have been included in Gram Sabha Khanpur under Section 3(ii) of the
Act.
4 . Coming to the first question, it is necessary to set out the relevant provisions of
Section 3 and 4 of the Act, which are as under:
"3. Establishment of Gram Sabha areas. (1) The State Government may, by
notification, declare any village or group of contiguous villages with a
population of not less than two hundred to constitute a Gram Sabha area:
Provided that a new Gram Sabha area may be constituted for any village or
group of contiguous villages in respect of a separate distinct abadi or group of
abadis having a population of not less than two hundred taking into
consideration its physical distance from the main village or villages, as the case
may be and other relevant facts:
Provided further that neither the whole nor any part of-
(a) a Notified Area under Section 241 of the Punjab Municipal Act,
1911, or any other Act for the time being in force; or
(b) a Cantonment; or

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 (c) a Municipality of any class; or
(d) a Municipal Corporation;
shall be included in a Gram Sabha area unless the majority of voters in any
Notified Area or Municipality of the Third Class desire the establishment of a
Gram Sabha in which case the assets and liabilities, if any, of the Notified Area
Committee or the Municipal Committee, as the case may be, shall vest in the
Gram Panchayat of that Gram Sabha and the Notified Area Committee or the
Municipal Committee shall cease to exist.
(2) That State Government may, by notification, include any area in or exclude
any area from the Gram Sabha area.
...
4. Constitution of Gram Sabhas. (1) The State Government may, by
notification establish a Gram Sabha by name for every area declared as Gram
Sabha area under Section 3.
(2) Every person who is entered as voter on the electoral roll prepared by the
State Election Commission and for the time being in force pertaining to the area
of a Gram Sabha, shall be member of the Gram Sabha".
5 . Before we consider the main question, it is necessary to trace out the nature of
power, that the State Government exercises under provisions of Section 3 and 4 of the
Act. The said power could either be legislative, administrative or quasi-judicial.
6 . I n Rameshchandra Kachardas Porwal and Ors. Etc v. State of Maharashtra and Ors.
etc. MANU/SC/0033/1981 : [1981]2SCR866 , it was held that making of a declaration
by notification that certain place shall be principal market yard for a market area under
the relevant agricultural produce Market Act was an act legislative in character. In Union
of India and Anr. v. Cynamide India Ltd. and Anr. MANU/SC/0076/1987 :
[1987]2SCR841 , this Court while making distinction between legislative, administrative
and quasi-judicial held thus:
"A legislative act is the creation and promulgation of a general rule of conduct
without reference to particular cases; an administrative act is the making and
issue of a specific direction or the application of a general rule to a particular
case in accordance with the requirements of policy. Legislation in the process of
formulating a general rule of conduct without reference to particular cases and
usually operating in future; administration is the process of performing
particular acts, of issuing particular orders or of making decisions which apply
general rules to particular cases'. It has also been said: "Rule making is
normally directed toward the formulation of requirements having a general
application to all members of a broadly identifiable class" while, "an
adjudication, on the other hand, applies to specific individuals or situations".
But this is only a broad distinction, not necessarily always true. Administration
and administrative adjudication may also be of general application and there
may be legislation of particular application only. That is not ruled out. Again,
adjudication determines past and present facts and declares right and liabilities
while legislation indicates the future course of action. Adjudication is
determinative of the past and the present while legislation is indicative of
future. The object of the rule, the reach of its application, the rights and
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 obligations arising out of it. Its intended effect on past, present and future
events, its form, the manner of its promulgation are some factors which may
help in drawing the line between legislative and non-legislative acts".
7 . The principles of law that emerge from the aforesaid decisions are-(1) where
provisions of a statue provide for the legislative activity, i.e. making of a legislative
instrument or promulgation of general rule of conduct or a declaration by a notification
by the Government that certain place or area shall be part of a Gram Sabha and on
issue of such a declaration certain other statutory provisions come into an action
forthwith which provide for certain consequences; (2) where the power to be exercised
by the Government under provisions of a statute does not concern with the interest of
an individual and it relates to public in general or concerns with a general direction of a
general character and not direct against an individual or to a particular situation and (3)
lay down future course of actions, the same is generally held to be legislative in
character.
8 . Viewed in the light of the statement of law stated hereinbefore, we find that the
provisions of Section 3 and 4 of the Act which provide for declaring territorial area of a
Gram Sabha and establishing a Gram Sabha for that area do not concern with the
interest of an individual citizen or a particular resident of that area. Declaration
contemplated under Sections 3 of the Act relates to an area inhabited by the residents
which is sought to be excluded or included in a Gram Sabha. The declaration under
Sections 3 of the Act by the Government is general in character and not directed to a
particular resident of that area. Further, the declarations so made under Sections 3 and
4 of the Act do not operate for the past transactions but for future situations. Under the
aforesaid situation, when declarations by issue of notifications by the Government are
made under Sections 3 and 4 of the Act respectively, determining the territorial area of
a Gram Sabha and establishing a Gram Sabha for that area, such declarations become
operative at once. Once declarations are made under Sections 3 and 4 of the Act
respectively and thereafter a Gram Panchayat is constituted under Section 10 of the Act,
the entire remaining provisions of the Act becomes operative. On such declarations by a
notification in the gazette, the Gram Sabha - a body corporate comes into being with a
number of powers and functions conferred upon it under the Act. As soon as a Gram
Sabha is established and Gram Panchayat is constituted, they are entrusted with many
general functions viz., construction, repair, and maintenance of community assets,
agriculture including agriculture extension, animal husbandry, dairy and poultry,
fisheries, social and farm forestry, minor forest produce fuel and fodder, khadi, village
and cottage industries, rural housing, rural electrification including distribution of
electricity, non-conventional energy source, poverty alleviation programme, education
including primary and secondary schools, adult and non-formal education, promotion of
adult literacy, cultural activities, fairs and festivals, public health and family welfare,
women and child development, social welfare etc. Further, Gram Sabhas and Gram
Panchayats have been conferred numerous other powers and duties enumerated in
Section 35 of the Act. Besides that, the Gram Panchayat is entrusted with the judicial
functions which are civil and criminal in nature. The power exercisable under Sections 3
and 4 of the Act respectively by the Government was, therefore, not an exercise of a
judicial or quasi-judicial function where the very nature of function involves principle of
natural justice or in any case of an administrative function effecting the rights of an
individual. We are, therefore, of the view that on making of declaration under Sections
3 of the Act determining the territorial area of a Gram Sabha and thereafter establishing
a Gram Sabha for that area is an act legislative in character in the context of the
provisions of the Act.

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9 . Once it is found that the power exercisable under Sections 3 and 4 of the Act
respectively is legislative in character, the question that arises is whether the State
Government, while exercising that power, that rule of natural justice is required to be
observed? It is almost settled law that an act legislative in character - primary or
subordinate, is not subjected to rule of natural justice. In case of legislative act of
legislature, no question of application of rule of natural justice arises. However, in case
of subordinate legislation, the legislature may provide for observance of principle of
natural justice or provide for hearing to the resident of the area before making any
declaration in regard to the territorial area of a Gram Sabha and also before establishing
a Gram Sabha for that area. We have come across many enactments where an
opportunity of hearing has been provided for before any area is excluded for one Gram
Sabha and included it in different Gram Sabhas or a local authority. However, it
depends upon the legislative wisdom and the provisions of an enactment. Where the
legislature has provided for giving an opportunity of hearing before excluding an area
from a Gram Sabha and including it in another local authority or body, an opportunity
of hearing is sine qua non and failure to give such an opportunity of hearing to the
residents would render the declaration invalid. But where the legislature in its wisdom
has not chosen to provide for any opportunity of hearing or observance of principle of
natural justice before issue of a declaration either under Section 3 or Section 4 of the
Act, the residents of the area cannot insist for giving an opportunity of hearing before
the area where they are residing is included in another Gram Sabha or local authority.
In Rameshchandra Kachardas Porwal & Ors. v. State of Maharashtra (supra), this court
held as thus:
"In one of the Bihar cases it was further submitted that when a market yard was
disestablished at one place and established at another place, it was the duty of
the concerned authority to invite and hear objections. Failure to do so was a
violation of yard at one place and establishing it elsewhere was therefore, bad.
It was objections before a "market area" was declared under the Act, so should
objection be invited and heard before a 'market yard' was established at any
particular place. The principles of natural justice demanded it. We are unable to
agree. We are here not concerned with the exercise of a judicial or quasi-
judicial function where the very nature of function involves the application of
the rules of natural justice, or of an administrative function affecting the rights
of persons, wherefore, a duty to act fairly. We are concerned with legislative
activity; we are concerned with the making of a legislative instrument, the
declaration by notification of the Government that a certain place shall be a
principal market yard for a market area, upon which declaration certain
statutory provisions at once spring into action and certain consequences
prescribed by statute follow forthwith. The making of the declaration, in the
context, is certainly an act legislative in character and does not oblige the
observance of the rules of natural justice."
10. In the present case, the provisions of the Act do not provide for any opportunity of
hearing to the residents before any area falling under a particular Gram Sabha is
excluded and included in another Gram Sabha. In the absence of such a provision, the
residents of that area which has been excluded and included in a different Gram Sabha
cannot make a complaint regarding denial of opportunity of hearing before issue of
declarations under Sections 3 and 4 of the Act respectively. However, the position
would be different where a house of a particular resident of an area is sought to
excluded from the existing Gram Sabha and included it in another Gram Sabha. There
the action of the Government being directed against an individual, the Government is
required to observe principles of natural justice. For the aforesaid reasons, we are of
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the view that no opportunity of hearing was required to be given before making
declaration either under Section 3 or Section 4 of the Act by the Government.
1 1 . Coming to the second question, the High Court had taken a view that since an
opportunity of hearing was required to be given before issuing a declaration under
Sections 3 of the Act, therefore, notifications under Section 3 and 4 could not have been
issued simultaneously has to be held erroneous, once we held that no opportunity of
hearing was required to be given before issue of declaration under Section 3 of the Act.
12. So far as the third question is concerned, we have been shown the map of villages
Gram Sabha Wazidpur and Khanpur and on its perusal we find that Harijan Colony
although not totally, but partially is contiguous to village Khanpur and, therefore,
therefore, there was substantial compliance of provision of Sub-section (i) of Section 3
of the Act, and, therefore, the view taken by the High Court was erroneous.
1 3 . For the reasons aforestated, this appeal deserves to be allowed. The judgment
under challenge is set aside. The appeal is allowed. Since none has appeared on behalf
of the respondents, there shall be no order as to costs.
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