Rajesh Shankar, J. - (1.) The present writ petition has been filed for quashing the notification issued under Sections 4, 56 of the Jharkhand Municipal Act, 2011 (hereinafter referred to as ' the Act, 2011- ) dated 01.09.2017 as contained in Gazette Notification No. 643 published on 31.08.2017 (Annexure-4 to the writ petition) whereby different Panchayats have been reconstituted to form a Nagar Panchayat, namely, Domchanch Nagar Panchayat. An alternative prayer has been made that the said notification dated 01.09.2017 should be applicable prospectively i.e. after the end of the elected tenure of the petitioners. Further prayer has been made for holding that in terms of Article 243-E(2) of the Constitution of India, the elected period of the petitioners (which is still subsisting) cannot be curtailed by way of reconstitution of Panchayat.
(2.) The factual background of the case, as stated in the writ petition, is that the petitioners are the elected Mukhias of various Panchayats and in terms of Section 25 of the Panchayati Raj Act, 2001 (hereinafter referred to as ' the Act, 2001- ). The tenure of the elected body is five years from the date of the first sitting. Since the first sitting of the petitioners was held on 07.12015, their tenure will end on 06.12020. In the meantime, a notification dated 23.01.2017 as contained in memo No. 666 was published by the respondent-authorities under Section 4 of the Act, 2011 declaring an intention to create a Nagar Panchayat (including the Panchayat(s) from which the petitioners were elected as Mukhias) under Section 3(2)(b) of the Act, 2011 on the recommendation of the Deputy Commissioner, Koderma-respondent No. 5 as contained in letter No. 07 dated 04.01.2017. In terms of Section 5 of the Act, 2011, the objection to the said notification was to be filed within 30 days from the date of notification. Since the said notification was issued on 23.01.2017, the petitioners and other villagers made an objection through letter addressed to the President of India with copy to all the different authorities including the respondent No. 5 by Registered Post on 14.02017 i.e. within 22 days of the notification. On receipt of the objection, a letter dated 06.03.2017 was issued by the Deputy Secretary, Urban Development and Housing Department, Government of Jharkhand asking an opinion from the respondent No. 5 with regard to the said objection. The petitioners have claimed that the respondent-authorities without considering the objection of the petitioners, have issued the notification dated 01.09.2017 (published on 31.08.2017) declaring a new Nagar Panchayat, namely, Domchanch Nagar Panchayat, which includes total seven Panchayats including the Panchayats of the petitioners i.e. Domchanch East-Manju Devi, Mahathadih-Rinki Devi, Domchanch North-Munni Devi, Tetaryadih (part of the said Panchayat)-Subhadra Devi.
(3.) Mr. Rajiv Ranjan, learned Sr. counsel for the petitioners, submits that Chapter IX of the Constitution of India deals with the constitution of Panchayat, duration of the elected tenure and the manner in which the same can be dissolved. Article 243-E of the Constitution of India provides for duration of the Panchayat and under no circumstance any constituted Panchayat can be dissolved before the expiry of the period of five years from the date appointed for its first meeting. Clause (2) of Article 243-E specifically provides that no amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level. Since the impugned notification dated 01.09.2017 also comes within the definition of "law" under Article 13(2) of the Constitution of India, the same would have no effect. The petitioners are the elected Mukhiyas for a tenure of 5 years according to the provisions laid down in Section 25 of the Act, 2001 as well as Article 243-E of the Constitution of India and as such it is the statutory right of the petitioners to serve as Mukhiya till completion of their tenure which cannot be curtailed by any amendment of law. The first sitting of the petitioners was held on 07.12.2015 and as such their tenure will end on 06.12.2020. The petitioners and other villagers had filed objection under Section 5 of the Act, 2011 against the declaration for constitution of Domchanch Nagar Panchayat and thus the respondent-authorities were duty bound to consider the said representation, but the same was not even objectively considered. Even though the notification was issued whereby a new Nagar Panchayat was formed, it should have been given a prospective effect, meaning thereby, the election for the newly constituted Nagar Panchayat could have been effected only after the completion of the elected tenure of the petitioners. The provisions of Article 243-E of the Constitution of India as well as Section 24(3) and Section 25 of the Act, 2001 clearly mandate that a Gram Panchayat shall continue for a term of five years from the date appointed for its first meetings. Even in case of dissolution of the Gram Panchayat before the expiry of the tenure, the elected member shall continue to hold the office till the expiry of the tenure. Sub-section (2) of Section 615 of the Act, 2011 will not apply to the fact situation of the present case, rather sub-section (7) of Section 615 of the Act, 2011, which saves any council constituted under the Jharkhand Municipal Act, 2000 and Ranchi Municipal Corporation Act, 2001, also supports the case of the petitioners. ;