Gujarat High Court
Ghanshyam vs State on 18 April, 2011
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LPA/1110/2005 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1110 of 2005
In
SPECIAL
CIVIL APPLICATION No. 11362 of
1994
=================================================
GHANSHYAM SEVA SANGH Versus STATE OF GUJARAT AND OTHERS Present:
Shri A.J. Patel, Advocate, assisted by Shri. Gaurang H Bhatt, Advocate for the appellant ================================================= CORAM :
HONOURABLE MR.JUSTICE G.S.SINGHVI and HONOURABLE MR.JUSTICE A.S.DAVE Date : 22/08/2005 (Per : HONOURABLE MR.JUSTICE G.S.SINGHVI) .
This appeal is directed against order dated 4.8.2005 passed by the learned Single Judge, whereby he allowed the Special Civil Application filed by Timbanna Muvada Gram Panchayat (respondent No.4) and quashed orders dated 6.5.1992, 19.5.1992 and 11.3.1993 passed by Collector, Kheda (respondent No.2) for transfer of gaucher land belonging to respondent No.4 to the appellant.
For deciding the issue raised by the appellant, we may briefly notice the facts. Uptill 1995, there was one Gram Panchayat for the villages of Padal and Timbanna Muvada. Vide Notification dated 28.5.1985 issued under Section 9(3) of the Gujarat Panchayats Act, 1961 (for short 'the Act') separate Panchayats were constituted for the two villages. After six years, the State Government issued Notification dated 5.9.1991 for segregating the revenue limits of the two Gram Panchayats. Land bearing block Nos. 305, to 307, 309 to 324, 353 to 381, 382 paiki, 383 to 416, 533 to 539, 552 to 748, 757 to 759, 760 + 771, 761 to 770, 777 to 814 along with the land of village site Vabela, Rasta-marg, river-nala, nala, Vangha-khotar, Naher etc. was amalgamated in the area of village Timbanna Muvada. Of these, following block numbers were ear-marked for gaucher:
Block No. Acre-Guntha Gaucher Akar 536 3.31 5.25 537 3.01 4.62 557 1.09 2.5 559
2.39 2.12 586 2.21 3.31 587 3.39 6.01 589 3.39 6.37 590 2.01 4.44 591 2.34 2.06 592 2.25 4.62 637 1.05 1.69 638 1.04
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63934.31
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6404.05 6.37 641 2.21 3.87 72.26 Out of the 72 Acres of gaucher land, 34 Acres 32 Gunthas were acquired by the State Government for construction of Narmada Main Canal. The remaining land is being used by the villagers for grazing their cattle.
It is born out from the record that in the year 1990, the appellant had made an application for allotment of a portion of land which presently forms part of the gaucher land of respondent No.4, for construction of a Ashram Shala. Gram Panchayat, Padal passed resolution dated 22.4.1991 for allotment of land to the appellant and acting on that resolution, respondent No.2 passed orders dated 6.5.1992, 19.5.1992 and 11.3.1993 for allotment of total land measuring 3 Acres to the appellant out of gaucher land belonging to respondent No.4.
Respondent No.4 challenged the allotment of land to the appellant by filing writ petition under Article 226 of the Constitution of India, which was registered as Special Civil Application No. 1136 of 1994. The main grounds on which respondent No.4 challenged the allotment of land to the appellant were:
(i) Respondent No.2 did not have the jurisdiction, power or authority to transfer gaucher land to the appellant and that too without consulting and giving opportunity of hearing to the Gram Panchayat;
(ii) The Gram Panchayat was already short of land for gaucher purpose and availability of land for grazing of cattle would be substantially reduced by virtue of the impugned allotment;
(iii)Respondent No.2 was not justified in allotting land for the ostensible purpose of constructing Ashram Shala because there already exist eight schools in the vicinity;
(iv) The allotment of land is liable to be declared as vitiated due to malafides because the same was made for serving the personal ends of Shri Karsandas Soneri (respondent No.3) who is a member of the Council of Ministers.
In the counter-affidavit filed by the appellant it was averred that the land in question does not belong to Gram Panchayat Timbanna Muvada and that entry No. 4442 made in the record of rights i.e. Village form No.6 had been cancelled. It was further averred that the land was allotted for construction of Ashram Shala for the children belonging to Scheduled Tribes and that Gram Panchayat Timbanna Muvada will be deemed to have been heard by the Collector because the Talati-cum-Mantri who is representing both the Gram Panchayats had given his consent. It was also pleaded that in terms of Section 96 of the Act, the Collector was empowered to allot land for Ashram Shala and the Gram Panchayat does not have the locus to challenge the same.
The learned Single Judge took cognizance of the fact that after creation of separate Gram Panchayat for village Timbanna Muvada, Survey No. 639 was allotted to village Timbanna Muvada and held that respondent No.2 was not justified in treating the land of that survey number as belonging to village Padal. The learned Single Judge observed that on the date of allotment of land to the appellant, bifurcation of the survey numbers had been finalised and, therefore, respondent No.2 could not have treated the disputed land as part of village Padal. The learned Single Judge rejected the appellant's plea that respondent No.4 will be deemed to have been heard because Talati-cum-Mantri was present at the time of measurement of the land. He also discarded the appellant's plea that Sarpanch of Gram Panchayat Timbanna Muvada, namely Shri Narsinhbhai Shankarbhai Patel had attended the proceedings and observed:
?SThe petitioner Panchayat has in the petition clearly stated that no hearing or opportunity of hearing was granted to the petitioner. In the affidavit-in-reply, respondent No.4 contended that Sarpanch of the petitioner Panchayat namely Shri Narsinhbhai Shankarbhai Patel had also attended the proceedings from time to time. This averments has been denied by the petitioner in its rejoinder. It is stated that the then Sarpanch had never attended the proceedings as suggested. It is contended that the petitioner Panchayat was totally ignorant about the proceedings. Curiously, the respondent No.4 has obtained an affidavit of Shri Narsinhbhai Shankarbhai Patel dated 23rd November, 1994. In this affidavit the same Shri Narsinhbhai Shankarbhai Patel has stated that he was Sarpanch of Padal Gram Panchayat from the year 1975 to 1985 and, thereafter, of Timba Na Muvada Gram Panchayat from the year 1985 to 1990-91. He has stated that he has personally attended the proceedings in question along with Talati Cum Mantri and that he was informed about the progress of the proceedings regarding the allotment of land in favour of the respondent No.4. He has stated that the proceedings were within his knowledge and since the land was meant for public purpose, he did not object to grant of the land in favour of the respondent No.4. I find the stand of Shri Narsinhbhai Shankarbhai Patel rather strange. Nowhere, in his affidavit, he has stated that he brought to the notice of the Gram Panchayat the proceedings going on before the Collector. Nowhere has he stated that Gram Panchayat resolved not to object to the grant of land. Nowhere, has he stated that he has taken the members of the Panchayat into confidence before deciding not to object to the grant of the land. The Sarpanch of the village Panchayat may be the Head of the Panchayat, independently he has no right to take such an important policy decision for and on behalf of the Panchayat and thereby on behalf of the entire population of the village. It was the duty of the Sarpanch, if he was aware about the proceedings to have brought the same to the knowledge of the entire elected body of the Gram Panchayat and, thereafter, to represent the wish of the elected body of the Gram Panchayat before the Collector. Individually in his personal capacity in my opinion, Sarpanch totally lacked authority to make such an important commitment on behalf of the village Panchayat and in turn on behalf of the people of the village. Section 47 of the Gujarat Panchayats Act, 1961 as it existed at the relevant time provided for the Executive functions of Sarpanch, Upa-Sarpanch etc. In so far as the said section is relevant for our purpose, same is reproduced hereinbelow:
?SSection-47, Executive Functions of Sarpanch, Chairman, Upa-sarpanch or as the case may be, Vice Chairman (i) Save as otherwise expressly provided by or under this Act, the executive power, for the purpose of carrying out the provisions of this Act and the resolutions passed by a Gram Panchayat or Nagar Panchayat vests in the Sarpanch or, as the case may be, the Chairman thereof who shall be directly responsible for the due fulfilment of the duties imposed upon the Panchayat by or under this Act. In the absence of the Sarpanch or as the case may be the Chairman, his powers and duties shall, save as may be otherwise prescribed by rules, be exercised and performed by the Upa-sarpanch or as the case may be, the Vice Chairman.
(2) Without prejudice to the generality of the foregoing provisions -
(i) in the case of Gram Panchayat, its Sarpanch and in the case of a nagar Panchayat, its Chairman shall -
(a) preside over and regulate the meetings of the Panchayat,
(b) exercise supervision and control over the acts done and action taken by all officers and servants of the Panchayat;
(c) incur contingent expenditure upto (fifty rupees) at any one occasion.
(d) operate on the fund of the Panchayat including authorisation of payment, issue of cheques and refused.
(e) be responsible for the safe custody of the fund of the Panchayat.
(f) cause to be prepared all statements and reports required by or under this Act;
(g) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder.??
From the above reproduction of the portion of section 47 of the Gujarat Panchayats Act, 1961, it can be clearly seen that Sarpanch exercises the executive power for the purpose of carrying out the provisions of this Act, and the resolutions passed by Gram Panchayat. It is also provided that the Sarpanch shall be directly responsible for the due fulfilment of the duties imposed upon the Panchayat by or under this Act. Sub-section (2) of Section 47 further makes it clear that the Sarpanch presides over and regulates the meetings of the Panchayat. He exercises supervision and control over the acts done and action taken by all officers and servants of the Panchayat. He is authorised to incur contingent expenditure upto the limit prescribed. He is authorised to operate on the fund of the Panchayat and is responsible for its safe custody. He is also empowered to exercise such powers and discharge such functions as may be conferred or imposed upon him by this act or rules made thereunder.
Considering the provisions made in Section 47 of the Gujarat Panchayat Act, 1961, it is amply clear that Sarpanch does not have power to make commitments and binding on behalf of the Panchayat in his personal capacity at least in so far as the question of policy decisions are concerned. The use and enjoyment of gaucher land is a valuable right of the residents of the village, such rights cannot be surrendered by the Sarpanch without even consulting the Gram Panchayat. It is only Gram Panchayat through a validly passed resolution by the elected body that can take a binding decision with respect to its stand on the question of surrendering any part of gaucher land of the village.??
The learned Single Judge then held that before allotting a portion of gaucher land of the village, respondent No.2 was duty bound to hear the petitioner Gram Panchayat and his failure to do so had the effect of vitiating the orders of allotment.
Shri A.J. Patel, learned counsel appearing for the appellant laid considerable stress on the fact that the land has been allotted for the purpose of construction of Ashram Shala and argued that the learned Single Judge committed a serious error by quashing the allotment on the spacious ground of denial of hearing to the petitioner Gram Panchayat. Shri Patel argued that the Gram Panchayat Timbanna Muvada will be deemed to have been heard because the Talati-cum-Mantri was very much associated with the process of allotment. Learned counsel further argued that the allotment made in favour of the appellant should be treated as regular because it was preceded by a valid resolution passed by Gram Panchayat, Padal.
In our opinion, there is no merit in either of the contentions urged by the learned counsel for the appellant. Undisputedly, the land in question was amalgamated in the area of village Timbanna Muvada vide Notification dated 5.9.1991 i.e. eight months prior to the first allotment made in favour of the appellant. It is also an admitted position that the land in dispute forms part of gaucher of the village and is being used by the villagers for grazing their cattle. Therefore, respondent No.4 was vitally interested in protecting the status of the entire gaucher for the benefit of the village population. As a corollary, it must be held that respondent No.2 was duty bound to give an opportunity of hearing to respondent No.4 before depriving the said respondent of a portion of the gaucher land, which was admittedly not done. Therefore, the finding recorded by the learned Single Judge that the allotment made in favour of the appellant is vitiated due to violation of the principles of natural justice does not call for interference.
We also agree with the learned Single Judge that the presence of Talati-cum-Mantri who was representing both the Gram Panchayats or the so-called consent given by the Sarpanch, namely Shri Narsinhbhai Shankarbhai Patel cannot be treated as a substitute for opportunity of hearing which respondent No.2 was required to give to the Gram Panchayat as a body corporate and unit of self-government before it could be deprived of gaucher land.
The argument of the learned counsel that allotment made in favour of the appellant should not have been cancelled by the learned Single Judge ignoring the purpose of allotment sounds attractive but sans merit. In our view, the learned Single Judge had rightly taken the view that depriving the village population of their right qua gaucher land was a serious matter and respondent No.2 could not have relied on the resolution passed by Gram Panchayat, Padal for depriving the villagers of Timbanna Muvada of the gaucher area which had already been depleted by virtue of utilisation of a part thereof for constructing Narmada Main Canal. In this connection it is apposite to mention that reduction in the area of gaucher land would vitally affect fundamental right guaranteed to the village population under Article 19 of the Constitution and the respondent No.2 could not have allotted land to the appellant ignoring the interest of the villagers.
No other point has been argued.
In the result, the appeal is dismissed.
(G.S. Singhvi) Judge (Anant S.Dave) Judge */Mohandas Top