- (1.) The petitioner in this writ petition has challenged the Notification issued on 10th sept., 1992 by which the village Bhavsar-Ishwarwala has been excluded from the panchayat Mansar-Khedi. Before holding elections of the Gram Panchayats in the State, the work of establishment of the panchayat as required under Section 3 of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as 'the Act') was started. The procedure for including, excluding and transferring any area in a panchayat circle from another panchayat circle has been prescribed in Section 86 of the Act, which reads as under : "86. Power to include, exclude or transfer areas (1) The State Government may at any time after one month's notice published in the prescribed manner either on its own motion or at the request of the panchayat or of the residents of any Panchayat Circle, village or other area and by notification in the Official Gazette (a) include any area in a Panchayat Circle, (b) exclude any area from a Panchayat Circle, or (c) transfer any area from one Panchayat Circle to another Provided that the publication of the said notice may if, deemed expedient in public interest by the State Government be dispensed with in a case involving transfer (which term shall include the constitution, reconstitution or re-delimitation of a Panchayat Circle) of any area from one Panchayat Circle to another. 1-A Notwithstanding any judgment or order of any Court, a notification issued under the provisions of sections 86-A before the publication of the Rajasthan Panchayat (Second Amendment) Ordinance, 1986 in the Official Gazette shall be deemed to have been issued under the provision to sub-section (1) and after dispensing with the publication of the notice on the ground of being expedient in public interest and consequently to be a valid notification. (2) Any area included in a Panchayat Circle under sub-section (1) shall become subject to this Act and all notifications, rules, bye-laws and orders made under this Act in respect of such Circle from the date on which such inclusion is to take effect. (3) Any area excluded from a Panchayat Circle under sub-section (1), shall cease to be subject to this Act and not to all notifications, rules, bye-laws and orders made under this Act in respect of such Circle from the date on which such exclusion is to take effect. (4) Any area transferred under sub-sec. (1) from any Panchayat Circle to another shall, with effect from the date on which such transfer is to take effect, cease to be subject to the Panchayat which previously to such transfer had jurisdiction therein and to the notifications, rules, bye-laws and orders applicable thereto. The Panchayat to which such area is so transferred shall exercise jurisdiction therein with effect from the said date and all notifications, rules, bye-laws and orders applicable to the latter Panchayat shall apply to that area. (5) When any area is transferred under sub-section (1), the State Government shall place at the disposal of the Panchayat to whose jurisdiction such area has been transferred, such portion of the property and funds, as it may deem fit, of the Panchayat from whose jurisdiction that area has been transferred. (6) When an order under sub-section (1) is passed, the State Government shall also, if it considers necessary, order re-selection or confirm the existing Panchayat for the altered area. (7) When an order under sub-section (1) has been or is passed and the State Government order under sub-section (6), the re-selection of Panchas to the Panchayat for the altered area, it may issued further directions in respect of the number of the Panchas which such Panchayat shall consist of and in respect of other matter incidental to, or consequential upon, such re-selections and the term of the Panchayat thereby reconstituted shall be for the residue of the term for which the existing Panchayat would have held office if re-selection had not been ordered under sub-selection (6)." According to the learned counsel for the petitioner, any area can be transferred from one panchayat circle to another only after following the procedure prescribed by the Act and the Rajasthan Panchayat (General) Rules, 1961 and in this case, the village Bhavsar Ishwarwala earlier formed the part of village Mansar Khedi was included in gram panchayat Jeetawala and this has been done without following the procedure prescribed under Section 86 of the Act.
(2.) The inclusion and exclusion of areas in a Panchayat Circle or from a Panchayat Circle and transfer of areas from one Panchayat Circle to another can be made at any time by the Govt. either on its own motion or at the request of the Panchayat or at the request of the residents of the village or area but before doing so, one month's notice has to be published and after publication of the notice and hearing objections as provided under the Rules, the Government can by notification in official Gazette, include any area in a panchayat or exclude any area from a panchayat circle or transfer any area from one panchayat circle to another. Rule 344 of the Rules provides for the issue/publication of notice. Under this rule after considering the report of the collector or recommendations of the Officer incharge of the Panchayats, the State Government or such officer or authority to whom the powers of State Government have been delegated to act under Section 86 of the Act, it shall cause a notice inviting objections to the proposed transfer or inclusion or exclusion to be issued inviting objections to the proposed transfer, inclusion or exclusion within one month from the date of publication of this notice. This notice shall be pastbd at a conspicuous place in each of the areas affected by the proposal and at the office of each panchayat and Panchayat Samiti concerned. Under rule 345 of the Rules, after considering objections received in response to the notice, the Government or the Officer or the authority to whom the powers of the Government have been delegated may either drop or may confirm or vary the same, and a final notification in accordance with the order shall be issued.
(3.) A detailed reply to the writ petition has been filed but at this stage we are only concerned with the fact whether the procedure prescribed under the law has been complied with or not in issuing the final notification changing the constitution of a Panchayat. In order to show that objections were invited, the respondents have placed reliance on Annexure R/2, which is a public notice stating that under Section 86 of the Act, the State Government on its own motion wants to reconstitute and redefine the boundaries of a Panchayat, any body having objections to the same may submit the same before the District Collector and the objections received after the date fixed shall not be considered. The notice further mentions that the proposals for reconstitution/re-delimitation are available in the office of the Panchayat, Panchayat Samiti and Zila Parishad which can be examined during the office hours. The notice does not specify the names of the Panchayats/Panchayat Samities where it was pasted and further the proposals about the changes which the State Government wanted to make in each panchayat have not been mentioned. Unless it can be shown that proposals for reconstitution of the Panchayat in question were mentioned in the notice and the concerned persons had an opportunity of submitting objections, this notice cannot be said to be the compliance of Section 86 of the Act.;