Gujarat High Court
Raichandji vs State on 30 September, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
SCA/6583/2009 16/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6583 of 2009
With
SPECIAL
CIVIL APPLICATION No. 6541 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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RAICHANDJI
PUJAJI VAGHELA & 36 - Petitioner(s)
Versus
STATE
OF GUJARAT & 15 - Respondent(s)
=========================================
Appearance :
MR
VC VAGHELA for
Petitioner(s) : 1 - 37.
MR. NIRAJ SONI. AGP for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 1 - 2, 4, 7,
MR HS MUNSHAW
for Respondent(s) : 2 - 3.
MR YM THAKKAR for Respondent(s) :
4,
MR. J.R. NANAVATI FOR MR MAYURDHVAJ MAHETA for Respondent(s) :
5 - 6.
MR PS CHAMPANERI for Respondent(s) : 8 -
16.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 30/09/2010
CAV
JUDGMENT
1. As common question of law and facts arise in both these petitions and same impugned order passed by the State Government is under challenge, both these petitions are disposed of by this common judgment and order.
2. In both these petitions, respective petitioners have prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 1.6.2009 passed by the State Government in Revision Application No. 12 of 2009 and also to quash and set aside the orders passed by the Appellate Committee of the District Panchayat, Banaskantha dated 3.11.2008 passed in Appeal No. 7 of 2008 and Appeal No.13 of 2008 and to quash and set aside the resolution No.26 dated 7.1.2008 passed by the Gram Panchayat, Ranpur to uphold the resolution No.31 dated 1.2.2008 passed by the Ranpur Gram Panchayat.
3. The facts leading to the present Special Civil Application in nutshell are as under:
3.1. All the petitioners claimed that they are residents of Village Ranpur, Tal: Deesa, Dist. Banaskantha and are engaged in the occupation of cattle rearing and cattle grazing. That the Collector, Banaskantha communicated to the Ranpur Gram Panchayat to allot 45 acres of land from the gaucher land of village Ranpur for rehabilitation / allotting the aforesaid land to the persons affected by Mukteshwar Scheme. It is the case of the petitioners that the said letter / communication by the Collector was under the pressure of land grabbers and politicians. It is the case of the petitioners that some of the members of the village panchayat were already in connivance with the builders of Deesa and, therefore, a meeting of the gram panchayat was called on 7.1.2008 in an absolutely hurriedly manner, which was attended by only five members out of 12 members and a resolution came to be passed being Resolution No. 26 on dated 7.1.2008 transferring 45 acres of land to the State Government. It is the case of the petitioners that as soon as they came to know about the said resolution they made representation before the Sarpnach on 25.1.2008 objecting to transfer the 45 acres of land to the State Government from the gaucher land submitting that the village has only 140 acres of land for gaucher and the cattle in village are about 3837 and even there are many landless labourers in the village itself and many residents of the village had no plots for houses. It is the case of the petitioners that other persons also objected to the same and there was hue and cry in the village and therefore, agenda dated 28.1.2008 was issued for convening the meeting on 1.2.2008 to reconsider and/ or modify/ cancel the earlier resolution no.26 dated 7.1.2008 and immediately of the panchayat was convened and all 12 members remained present in the meeting and unanimously passed a resolution No.31 cancelling the resolution No.26 dated 7.1.2008. That TDO, Deesa informed the Deputy Collector, Land Acquisition, for Sipu Scheme at Palanpur vide communication dated 5.2.2008 informing him with regard to cancellation of resolution no.26 dated 07.1.2008. That despite the fact that resolution no.26 dated 7.1.2008 was already cancelled in the subsequent meeting dated 1.2.2008 vide Resolution No.31 and though there was no necessity to challenge the Resolution No.26 dated 7.1.2008, Deputy Sarpanch of the Village preferred appeal before the Appellate Committee of the District Panchayat being Appeal No.7 of 2008. It is required to be noted that in the appeal memo itself it is specifically pointed out that resolution no.26 dated 7.1.2008 has already been cancelled in the subsequent meeting dated 1.2.2008 vide Resolution No.31 and it was requested to quash and set aside the resolution No.26 dated 7.1.2008 and to confirm the resolution no.31 dated 1.2.2008. That the Appellate Committee of the District Panchayat by an order dated 3.11.2008 dismissed the said Appeal No.7 of 2008 by holding that resolution no.31 dated 1.2.2008 is in breach of principles of Rule 18 of Gujarat Panchayat Procedure Rules,1997 inasmuch as the agenda to modify / cancel the earlier resolution dated 1.7.2008 was not served upon the members of the Panchayat.
3.2. It appears that simultaneously respondent nos. 5 and 6 herein also preferred appeal No.13 of 2008 before the Appellate Committee of the District Panchayat, Palanpur challenging resolution No.31 dated 1.2.2008 by which earlier Resolution no.26 dated 7.1.2008 was set aside and Appellate Committee of the District Panchayat by order dated 3.11.2008 allowed the said Appeal No.13 of 2008 by quashing and setting aside Resolution No.31 dated 1.2.2008 by holding that the said resolution no.31 dated 1.2.2008 is in breach of Rule 18 of the Gujarat Panchayat Procedure Rules, 1997 inasmuch as no notice of agenda was served upon the members of the Panchayat. That being aggrieved and dissatisfied with the aforesaid orders passed by the Appellate Committee of the District Panchayat dated 3.11.2008 passed in Appeal Nos.7 of 2008 and 13 of 2008, petitioners preferred Public Interest Litigation before this Court being Special Civil Application No.1551 of 2009 contending inter alia that aforesaid orders passed by the Appellate Committee of the District Panchayat are absolutely illegal and the same is passed in connivance with the builders and other politicians, by further submitting that though some of the members of the Gram Panchayat are ready and willing to challenge the said resolution they are threatened by the Sarpanch of the village and, therefore, are not in a position to challenge the order of the Appellate Committee by which villagers of the village are also adversely affected. That the Division Bench of this Court relegated the petitioners to prefer the revision application before the State Government under Section 259 of the Gujarat Panchayats Act and petitioners preferred Revision Application being Revision Application No.12 of 2009 and Officer on Special Duty and Deputy Collector (Inquiry), Panchayat, Rural Housing and Rural Development Department, State of Gujarat by impugned order dated 1.6.2009 dismissed the said revision application confirming the orders passed by the Appellate Committee of the District Panchayat, Banaskantha dated 3.11.2008 passed in Appeal Nos. 7 of 2008 and 13 of 2008. Being aggrieved and dissatisfied with the impugned order passed by the Officer on Special Duty and Deputy Collector (Inquiry), Panchayat, Rural Housing and Rural Development Department, State of Gujarat passed in Revision Application No.12 of 2009, the respective petitioners have preferred the present Special Civil Application under Articles 226 & 227 of the Constitution of India.
4. Shri VC Vaghela, learned advocate appearing for the respective petitioners of Special Civil Application No.6583 of 2009 i.e. village people of Ranpur Gram Panchayat has vehemently submitted that the revisional authority has materially erred in dismissing the said revision application confirming the order passed by the Appellate Committee of the District Panchayat, Banaskantha quashing and setting aside the resolution no.31 dated 1.2.2008. It is submitted that both the authorities below have materially erred in quashing and setting aside the resolution no.31 dated 1.2.2008 on the ground that the same is in breach of Rule 18 of the Gujarat Panchayats Procedure Rules, 1997. It is submitted that as such the finding given by both the authorities below to the effect that notice of agenda for cancellation of earlier resolution was not served upon the members of panchayat is factually incorrect. It is submitted that in any case in the meeting convened on 1.2.2008 apart from the fact that in the agenda one of the business to be transacted was to modify / cancel the earlier resolution no.26 dated 7.1.2008, in the said meeting dated 1.2.2008 all the 12 members of the panchayat remained present and unanimously passed a resolution to set aside the earlier resolution no.26 dated 7.1.2008, on the ground that there is no sufficient gaucher land available with the panchayat and therefore, it is not possible to divert/transfer 45 acres of land to the State Government. It is submitted that therefore, the revisional authority has materially erred in confirming the orders dated 3.11.2008 passed by the Appellate Committee of the District Panchayat, Banaskantha in quashing and setting aside resolution No.31 dated 1.2.2008.
4.1. It is further submitted by Shri Vaghela, learned advocate for the respective petitioners of Special Civil Application No.6583 of 2009 that looking to the number of cattles in the village and the remaining land available, it is not in the interest of village people and the cattles to transfer 45 acres of gaucher land to the State Government. It is submitted that in fact looking to the number of cattles much more land is required for the purpose of grazing of the cattles etc. It is further submitted that in fact more than sufficient land has already been taken over from the gaucher land of Ranpur Gram Panchayat for rehabilitation and other purpose and it is not possible at all now to transfer further land for any purpose. It is submitted that therefore, resolution no.31 dated 1.2.2008 passed by the Panchayat cancelling their earlier resolution no.26 dated 7.1.2008 is absolutely just and proper and in the interest of village people and the cattles in the village. Therefore, it is requested to allow the present Special Civil Application.
4.2. Shri P.R. Nanavati, learned advocate for the petitioner of Special Civil Application No.6541 of 2009 has adopted the submissions made by Shri Vaghela, learned advocate for the petitioners of Special Civil Application No.6583 of 2009 and has requested to allow the said Special Civil Application by quashing and setting aside orders passed by the Appellate Committee of the District Panchayat, Banaskantha dated 3.11.2008 passed in Appeal Nos. 7 of 2008 and 13 of 2008, which came to be confirmed by the revisional authority by impugned judgment and order and to restore the resolution no.31 dated 1.2.2008.
5. Both these petitions are opposed by Shri JR Nanavati, learned advocate for respondent nos. 5 and 6 of Special Civil Application No.6583 of 2009, who preferred appeal no.13 of 2008 before the appellate committee of the District Panchayat, Banaskantha and in whose favour orders were to be passed / are passed to allot the plots as affected persons of Mukteshwar Scheme. It is submitted that as such none of the petitioners have any locus to prefer the present Special Civil Application and / or present petitions at the instance of the petitioners are not required to be entertained. It is submitted that as such the petitions filed by the respective petitioners are with a mala fide intention and to protect the land grabbers who or their relatives have encroached upon the gaucher land. It is further submitted the Collector has resumed the gaucher land for the purpose of rehabilitation of project for the persons like respondent nos. 5 and 6 and others i.e. respondents no. 8 to 16 of Special Civil Application No. 6583 of 2009 and as project affected persons, they are entitled to the plots for their rehabilitation and therefore, it is requested not to entertain the present petition.
6. Shri Nanavati, learned advocate for respondent nos. 5 and 6 and Shri Champaneri, learned advocate for respondent nos. 8 to 16 have submitted that even on merits also the petitioners have no case. It is submitted that the Appellate Committee of the District Panchayat had rightly dismissed the appeal No. 7 of 2008 and had rightly allowed the Appeal No.13 of 2008 by quashing and setting aside Resolution No.31 dated 1.2.2008 on the ground that the same is in breach of Rule 18 of the Gujarat Panchayat Procedure Rules 1997. It is submitted that as it was found that no notice of agenda for cancellation of the earlier resolution no.26 dated 7.1.2008 was issued before the one week, the Appellate Committee had rightly quashed and set aside resolution no.31 dated 1.2.2008 and the same is rightly confirmed by the revisional authority. It is further submitted that the revisional authority has rightly held that as the agenda was not issued at least one week earlier, which was required as per the provisions of Gujarat Panchayats Act and the agenda was issued on 29.1.2009 and meeting was convened on 1.2.2009 necessary procedure for issuance of the agenda and convening the meeting has not been followed and therefore, revisional authority has rightly dismissed the said revision application confirming the the order passed by the Appellate Committee of the District Panchayat, Banaskantha dated 3.11.2008 passed in the Appeal Nos. 7 of 2008 and 13 of 2008. Therefore, it is requested to dismiss the present Special Civil Applications.
7. Shri Munshaw, learned advocate appearing on behalf of the District Panchayat and Shri Niraj Soni, learned AGP appearing on behalf of the State have requested to pass an appropriate order by submitting that no illegality has been committed by both the authorities below.
8. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that there is a conflict of interest between the persons who are affected by the project as well as interest of the villagers of Ranpur. However, in both these petitions the only question which is required to be considered by this Court is with respect to legality and validity of the orders passed by the Appellate committee of the District Panchayat, Banaskantha dated 3.11.2008 passed in Appeal Nos. 7 of 2008 and 13 of 2008 by which the Appellate Committee has quashed and set aside the resolution No. 31 of the Gram Panchayat, Ranpur dated 1.2.2008 by which earlier resolution no.26 dated 7.1.2008 was set aside and impugned order passed by the revisional authority / State Government dated 1.6.2009 passed in Revision Application No.12 of 2009 confirming the aforesaid order passed by the Appellate committee.
9. It is to be noted that resolution no.26 dated 7.1.2008 was passed by the Ranpur Gram Panchayat taking a decision transferring the 45 acres of gaucher land of the Ranpur Gram Panchayat to the Collector/ State Government. It is to be noted that out of 12 members only 5 members of the panchayat remained present in the meeting convened on 7.1.2008 and the resolution no.26 dated 7.1.2008 was passed. It appears that thereafter number of representations and objections and hue and cry by the village people against the transfer of 45 acres of land from the gaucher land from the panchayat on the ground that there is no sufficient gaucher land available for cattles and looking to the number of cattles it is not possible to transfer 45 acres of gaucher land and to transfer 45 acres of land would be against the interest of the cattles of the panchayat and as well as village people. Therefore, an urgent meeting of the Gram Panchayat was called by issuing the agenda dated 29.1.2008 convening the meeting on 1.2.2008 and in the agenda one of the subject was to cancel the earlier resolution no.26 dated 7.1.2008 by which a decision was taken to transfer 45 acres of land from the gaucher land to the Collector. It is to be noted that all the members of the panchayat received a notice of agenda with regard to meeting to be held on 1.2.2008 and all the members of the panchayat remained present in the meeting convened and held on 1.2.2008 and unanimously passed a resolution no.31 canceling earlier resolution no.26 dated 7.1.2008. It is to be noted that said resolution came to be passed on 1.2.2008. Therefore, by passing resolution no.31 dated 1.2.2008 earlier resolution no. 26 dated 7.1.2008 was already cancelled and therefore, there was no necessity to prefer an appeal before the Appellate Committee of the District Panchayat, thereafter to challenge the resolution no.26 dated 7.1.2008 which was already cancelled by subsequent resolution no.31 dated 1.2.2008. Despite the above, it appears that with some oblique motive the Deputy Sarpanch preferred an appeal before the Appellate Committee of the District Panchayat challenging resolution no.26 dated 7.1.2008 on 31.3.2008. As stated above, as such when by resolution no.31 dated 1.2.2008 earlier resolution no.26 dated 7.1.2008 was already cancelled as such there was no necessity to prefer appeal by the Deputy Sarpanch before the Appellate Committee of the District Panchayat as resolution no.26 dated 7.1.2008 was already cancelled. This shows the mala fide intention on the part of the Deputy Sarpanch in preferring the appeal before the Appellate Committee of the District Panchayat, Banaskantha. At this stage, it is required to be noted that in the appeal memo itself it was specifically mentioned that by resolution no.31 dated 1.2.2008 the earlier resolution no.26 dated 7.1.2008 is already cancelled and therefore, it was requested to quash and set aside the resolution no.26 dated 7.1.2008 and to confirm the resolution no.31 dated 1.2.2008. It is to be noted that as such for confirmation on the resolution passed by the panchayat Appeal under Section 240(2) of the Gujarat Panchayats Act is not maintainable. Therefore, it is not appreciable at all the reason to prefer the appeal no. 7 of 2008 by the Deputy Sarpanch and as stated above it appears that the same was filed with mala fide intention and only with a view to bring the proceedings / appeal before the Appellate Committee of District Panchayat.
10. Simultaneously, respondent nos. 5 and 6 also preferred an appeal no.13 of 2009 before the Appellate Committee challenging resolution no.31 dated 1.2.2008 by which the earlier resolution no.26 dated 7.1.2008 was cancelled. While dismissing the appeal no. 7 of 2008 and allowing the appeal No.13 of 2008 and by quashing and setting aside the resolution no.31 dated 1.2.2008, the Appellate Committee of the District Panchayat has held that notice of agenda was not issued before one week and therefore, resolution no.31 dated 1.2.2008 was in breach of Rule 18 of the Gujarat Panchayat Procedure Rules, 1997. The Revisional Authority also confirmed the said order by observing that while passing the resolution no.31 dated 1.2.2008 there was a breach of Rule 18 of the Gujarat Panchayat Procedure Rules 1997 as the notice of agenda was not issued and served upon the members of the panchayat at least before one week and the meeting was convening on the very next date.
11. As stated herein above, it is an admitted position that in the meeting convened on 1.2.2008 all the members of the panchayat remained present. It is not the case on behalf of any of the members of the panchayat that before convening the meeting they were not served with the notice of the agenda of the meeting to be held and convened on 1.2.2008. The notice of agenda contained the subject with respect to cancellation of the earlier resolution no.26 dated 7.1.2008. Therefore, all the members were aware of the notice of agenda as well as to convene the meeting held on 1.2.2008. It is also required to be noted that resolution no.31 dated 1.2.2008 was passed unanimously and earlier resolution no.26 dated 7.1.2008 came to be cancelled. Considering the above facts, both the authorities below have materially erred in quashing and setting aside the resolution no.31 dated 1.2.2008 on the ground same is in breach of Rule 18 of the Gujarat Panchayat Procedure Rules, 1997. The purpose and object of issuing the notice and notice of agenda is that the members of the panchayat know the business to be transacted and the date of meeting. In the present case as stated above , notice of agenda was served upon the members of the panchayat and in fact all of them participated in the meeting convened on 1.2.2008 and passed unanimous resolution. Even otherwise, issuing a notice of Agenda not keeping time gap of one week is not such a lapse for which the unanimous resolution can be said to be illegal which required to be quashed and set aside. It is not such a material irregularity for quashing and setting aside an unanimous resolution.
12. Rule 18 of the Gujarat Panchayat Procedure Rules 1997 provides that subject to the provision of Section 97, the notice of motion for modification , amendment, variation of cancellation of any resolution of a panchayat shall be given to the members in accordance with the provisions of Rule 7 and the notice shall be set forth fully the resolution which is proposed to be modified, amended varied or cancelled at the meeting and also the motion for the modification amendment variation or cancellation of such resolution. Rule 7 of the Gujarat Panchayat Procedure Rules provides for mode of delivery of notice of Section 97 of the Gujarat Panchayt Act provides for modification and cancellation of the resolution and it provides that no resolution of panchayat shall be modified/ amended /verified or cancelled by the panchayat within a period of three months from the date of passing thereof, except by resolution supported by 2/3 of the whole number of members of such panchayat. Thus considering the facts and circumstances narrated herein above when notice of agenda containing one of the subject with respect to resolution no.26 dated 7.1.2008 and to convene the meeting on 1.2.2008 was served upon all the members of the panchayat and they participated in the meeting and unanimously resolution came to be passed cancelling the earlier resolution no.26 dated 7.1.2008, both the authorities below have materially erred in cancelling the resolution no.31 dated 1.2.2008. As stated herein above, as such the appeal preferred by the Deputy Sarpanch being Appeal No.7 of 2008 was filed with a mala fide intention as though resolution no.26 dated 7.1.2008 was already cancelled vide resolution no.31 dated 1.2.2008, still with an oblique reasons he preferred an appeal before the Appellate Committee of the District Panchayat bring to set aside the resolution no.26 dated 7.1.2008, which was already cancelled.
13. Under the circumstances, impugned orders passed by the Appellate Committee of the District Panchayat dated 3.11.2008 passed in passed in Appeal No. 7 of 2008 cancelling the resolution no.31 dated .12.2008 as well as the impugned order dated 1.6.2009 passed by the State Government in Revision Application No. 12 of 2009 deserves to be quashed and set aside and resolution no.31 dated 1.2.2008 deserves to be restored.
12.1. Now, so far as respondents who are project affected persons are concerned, it will always be open for the Collector and/ or State Government to allot the plots to them under the rehabilitation scheme from the other waste land available and Collector to consider the same at the earliest. However, they cannot be allotted the plots from the gaucher land in question as it has been found that looking to the number of cattles in the Ranpur village there is no sufficient gaucher land available and it is not possible to transfer 45 acres of land from the gaucher land and to transfer the gaucher land, will not be in the interest of village people and cattles of the village as sufficient land from the gaucher land has already been diverted earlier. Now, so far as contentions on behalf of the private respondents that there are encroachment on the gaucher land and / or some of the persons have grazing the gaucher land is concerned, the Collector, Banaskantha is to take appropriate steps in accordance with law and after following due procedure, for which this Court has not expressed any opinion on merits.
13. In view of the above and for the reason stated above, Special Civil Application No.6583 of 2009 succeed and impugned order dated 1.6.2009 passed by the State Government in Revision Application No. 12 of 2009 and the orders passed by the Appellate Committee of the District Panchayat, Banaskantha dated 3.11.2008 passed in Appeal No. 7 of 2008 and Appeal No.13 of 2008 is hereby quashed and set aside and resolution no.31 dated 1.2.2008 is hereby restored. Rule is made absolute to the aforesaid extent. No costs.
13.1. So far as Special Civil Application No.6541 of 2009 is concerned, in view of the order passed in Special Civil Application No.6583 of 2009, no further order is required to be passed as prayer sought in the Special Civil Application No.6541 is already granted in Special Civil Application No.6583 of 2009. Under the circumstances, Special Civil Application No.6541 of 2009 is accordingly disposed of. No costs.
(M.R.SHAH, J.) FURTHER ORDER After the above order is pronounced, Shri Rathod, learned advocate for the respondent No.5 has requested to stay the present order. In the facts and circumstances narrated herein above, the prayer is rejected.
(M.R.SHAH, J.) kaushik Top