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1995 DIGILAW 706 (RAJ)

Jamat Singh v. State of Rajasthan

1995-08-04

J.R.CHOPRA, P.K.PALLI

body1995
Honble CHOPRA, J. - By this writ petition filed under Art. 226 of the Constitution, the petitioners Jamatsingh and Hanspuri have prayed that by an appropriate writ, order or direction, the provisions of s. 124(2) of the Rajasthan Panchayati Raj Act, 1994 (for short the Act) be declared illegal and be struck down; the notice (Annexure-2) dated 24.1.1995 issued by respondent No.3 Vikas Adhikari, Panchayat Samiti, Revdar District Sirohi be declared illegal and quashed and respondent No.4 Vikash Adhikari, Panchayat Samiti, Sirohi may be restrained from issuing similar notice to petitioner No.2 Hanspuri; and it be declared that Gram Sabha is entitled to exercise all the rights and powers conferred upon it under the provisions of the Rajasthan Gramdan Act, 1971 (hereinafter to be referred as the Act of 1971). (2). The facts necessary to be noticed, for the disposal of this writ petition briefly stated are : that petitioners No.1 Shri Jamatsingh and petitioner No.2 Shri Hanspuri are the elected Presidents of Gram Sabhas of Gramdan villages Anadara and Krishanganj in District Sirohi. These Gram Sabhas are the creation of the Act of 1971. S. 11 of the Act of 1971 authorises the Collector of the District to declare a particular village as a Gramdan village and after declaration of a particular village as a Gramdan village, a Gram Sabha is constituted under s. 13 of the Act of 1971 and, thereafter, its executive committee is constituted and President is elected under s. 15 of the Act of 1971. S. 20 of the Act of 1971 further lays down that all land of the Gramdan village shall vest in the Gram Sabha. S.26 deals with allotment of land by the Gram Sabha and s. 27 provides for the rights of the Gramdan Kisan. S.30 deals with vesting of common lands in Gram Sabha and s. 31 provides for vesting of management of other unoccupied lands of the State Govt. in Gram Sabha. S. 43 of the Act of 1971 empowers the Gram Sabha to function as Panchayat. (3). According to the petitioners, recently the State Legislature has amended the Rajasthan Panchayati Raj Act, 1994 by introducing sub-s. (2) to s. 124 of the Act, which reads as under : "S. 124(2). in Gram Sabha. S. 43 of the Act of 1971 empowers the Gram Sabha to function as Panchayat. (3). According to the petitioners, recently the State Legislature has amended the Rajasthan Panchayati Raj Act, 1994 by introducing sub-s. (2) to s. 124 of the Act, which reads as under : "S. 124(2). On the date of commencement of the Rajasthan Panchayati Raj (Amendment) Act, 1994 (Act No.....of 1994), s. 43 of the Rajasthan Gramdan Act, 1971 (Act No.12 of 1971) shall stand deleted and as a result of such deletion, consequences enumerated in clauses (a) to (d) of sub-s. (1) shall ensue as if the Gram Sabha of a Gramdan Village referred to in the aforesaid deleted section was an existing Panchayati Raj Institution." Thus, it is clear that by adding sub-s. (2) to s. 124 of the Act, the provisions of s. 43 of the Act of 1971 have been delected. (4). It has been contended by the petitioners that after deletion of the provisions of s. 43 of the Act of 1971 by adding sub-s. (2) to s. 124 of the Act, petitioner No.l Jamatsingh has been served with a notice (Annexure 2) dated 24.1.1995, whereby he has been asked to handover the charge of the entire record of the Gram Sabha to the concerned Gram Sewak of the Panchayat Samiti. The petitioner No.2 Hanspuri is also expected to be served with a similar notice from the Vikash Adhikari, Panchayat, Samiti, Sirohi. According to the petitioners, insertion of sub-s. (2) to s. 124 of the Act is unconstitutional. They have also pleaded that even if the provisions of s. 43 of the Act of 1971 have been deleted by insertion of sub-s. (2) to s. 124 of the Act, the constitution of Gram Sabhas under the provisions of the Act of 1971 does not come to an end and, therefore, the management of the property vesting in the Gram Sabhas cannot be taken over by the concerned Panchayat Samitis or for that matter, Gram Sabhas. In this respect, they have placed reliance on the minutes (Annexure 3) of the meeting dated 3.8.1994 held under the Chairmanship of the Revenue Minister, Govt. of Rajasthan. Reliance has also been placed on a letter (Annexure 4) dated 15.11.1994 written by the Deputy Secretary to the Govt., Revenue Department, Govt. of Rajasthan to the Secretary, Gramdan Board, Jaipur. (5). In this respect, they have placed reliance on the minutes (Annexure 3) of the meeting dated 3.8.1994 held under the Chairmanship of the Revenue Minister, Govt. of Rajasthan. Reliance has also been placed on a letter (Annexure 4) dated 15.11.1994 written by the Deputy Secretary to the Govt., Revenue Department, Govt. of Rajasthan to the Secretary, Gramdan Board, Jaipur. (5). The petitioners have challenged the validity of the provisions of s. 124(2) of the Act and in addition to that, they have also sought the reliefs as aforesaid. (6). A reply to the writ petition has been filed on behalf of respondent Nos. 1,3 and 4 jointly and a separate reply to the writ petition has also been filed on behalf of respondent No.5. In the reply to the writ petition filed on behalf of respondents No.l, 3 and 4, a preliminary objection has been raised that this writ petition is not maintainable because insertion of sub-s. (2) to s. 124 of the Act is the result of 73rd Amendment of the Constitution whereby Art. 243-N was incorporated in the Constitution and unless, the validity of Art. 243-N in challenged, the validity of sub-s. (2) to s. 124 of the Act cannot be challenged. (7). A rejoinder has also been filed on behalf of the petitioners reiterating the contentions raised in the writ petition. (8). We have heard Mr. M.S. Singhvi, the learned counsel appearing for the petitioners, Mr. Vijay Bishnoi, learned counsel for respondents No.l to 4 and Mr. K.N. Joshi, the learned counsel appearing for respondent No.5 and have carefully gone through the record of the case. (9). It has been contended by Mr. M.S. Singhvi, the learned counsel appearing for the petitioners that keeping in view the aims and objects of the promulgation of the Act of 1971, the insertion of sub-s. (2) to s. 124 of the Act is totally unconstitutional. He has submitted that s. 4 of the Act of 1971 provides that the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force and, therefore, the provisions of the Act of 1971 will prevail over the provisions of the Act and so, the provisions of s. 43 of the Act of 1971 could not have been deleted without bringing an amendment in the Act of 1971. Mr. Mr. Singhvi has further contended that even if it is held that insertion of sub-s. (2) to s. 124 of the Act is a valid piece of legislation, the Gram Sabhas constituted under the provisions of the Act of 1971 do not cease to function. The existence of Gram Sabha is still kept in tact and at best, it cannot exercise the powers conferred on it by "S-. 43 of the Act of 1971. This alternate submission has been supported by Mr. Vijay Bishnoi, the learned counsel appearing for respondents No.l, 3 and 4. (10). However, Mr. K.N. Joshi, the learned counsel appearing for respondent No.5 has opposed this submission and has submitted that there can be either a Gram Sabha or a Gram Panchayat and they cannot co-exist. According to him, two autonomous bodies cannot function in the same field in the same village. (11). We have given our thoughtful consideration to the rival submissions made at the bar. (12). To decide the controversy involved in this case, it will be very useful to quote the Statement of Objects and Reasons of the Act of 1971: "The Gramdan Movement initiated by Acharya Vinoba Bhave, has its roots in the past, looks to the realities of the present and plans for the further. The basic idea behind the Gramdan Movement is the establishment of Gram Raj. The idea is that the working of the village should be regulated by the community of the entire village. The pre-requisite for the formation of such a community is that the land in the village should come under the common ownership of the village. It is, in the words of Vinobaji, "voluntary liquidation of private ownership in land and vesting the same in Gram Sabha, that is that Representative Council of the village." Thus, the main object in promulgation of the Act of 1971 was Voluntary liquidation of private ownership in land and vesting the same in Gram Sabha, that is that Representative Council of the village. (10). Gram Sabha has been defined in s. 2 (i) of the Act of 1971 to mean a Gram Sabha constituted under s. 13. (10). Gram Sabha has been defined in s. 2 (i) of the Act of 1971 to mean a Gram Sabha constituted under s. 13. S. 13 provides that with effect from the date specified in the notification issued under sub.s. (1) of s. 11 declaring a village to be a Gramdan village, all persons whose names are included in the register referred to in s. 14 shall be deemed to constitute a Gram Sabha for the Gramdan village and the Gram Sabha shall have all such powers and discharge all such functions as are vested in, or conferred on it by or under this Act, or otherwise. It further provides that every Gram Sabha so established shall be a body corporate by the name of Gram Sabha of......." having perpetual succession and a common seal, with power to enter into contracts and, subject to the provisions of this Act, to acquire, hold, administer or dispose of property, both movable and immovable, whether within or without the limits of the Gramdan village over which it has authority, and may in its corporate name sue and be sued. S.14 of the Act of 1971 deals with Register of Members and it lays down that the electoral roll of the Rajasthan Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, for such part of the constituency of the Assembly as is included in the Gramdan village shall be deemed to be the register of members of the Gram Sabha for such Gramdan village, till a register is prepared in accordance with sub-s. (2). The register shall also include names of the persons who have donated their lands by way of Gramdan but who are not residing in the Gramdan village, Sub-s. (2) of s. 14 of the Act further lays down that within three months of the formation of the Executive Committee under s. 15, the register mentioned in sub-s. (1) shall be revised by the Executive Committee and brought up-to-date and thereafter, it shall be revised in every subsequent year in the prescribed manner. S. 20 of the Act of 1971 vests the Gram Sabha with the powers to administer the lands which are donated under the Act of 1971. S. 20 of the Act of 1971 vests the Gram Sabha with the powers to administer the lands which are donated under the Act of 1971. It is, therefore, clear that the main aim and object in constitution of a Gram Sabha is to manage the agricultural lands of the Gramdan village by abolition of individual ownership rights. (14). We may frankly state here that the agricultural lands of the village do not vest in the Gram Panchayat. Neither the agricultural land of the village are being managed by the Gram Panchayat nor they are allotted by it. Only their mutations are attested by it in certain circumstances. Thus, the Gram Panchayats have nothing to do with the agricultural lands of the village and, therefore, the main object in promulgation of the Act of 1971 is not at all contradictory with the spirit in which the Rajasthan Panchayati Raj Institutions have been established and have been conferred with a constitutional flavour by introducing Chapter IX in the Constitution. Chapter IX of the Constitution contains Arts. 243 to 243-0. The original part IX of the Constitution consisting of Art. 238 was repealed in 1956 and Part IX of the Constitution has now been inserted by Constitution (73rd Amendment) Act, 1992. (15). Art. 24(3 of the Constitution defines Gram Sabha means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level. Thus, the Gram Sabha has been conceived as a village unit within the area of the Panchayat at the village level. Art. 243(d) defines Panchayat, which means an institution (by whatever name called) of self government constituted under Art. 243-B, for the rural areas. As per Art. 243 (e), Panchayat area means the territorial area of a Panchayat. Population has been defined in Art. 243(f), which means the population as ascertained at the last preceding census of which the relevant figures have been published. Art. 243 (g) defines village to mean a village specified by the Governor by public notification to be.a village for the purpose of this Part and includes a group of villages so specified. (16). Art. 243-B deals with constitution of Panchayats and it provides that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this part. (16). Art. 243-B deals with constitution of Panchayats and it provides that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this part. Art. 243-N of the Constitution, specifically provides that notwithstanding anything in this part, any provision of any law relating to Panchayats in Force in a State immediately before the commencement of the Constitution (Seventy third Amendment) Act, 1992, which is in consistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. Thus, it is clear that any provisions in any law which is inconsistent with the provisions of Part IX of the Constitution as regards constitution of a Panchayat and its governance will stand repealed either by a specific Amendment Act of the State legislature or by implication, after the expiry of one year from the date seventy-third Amendment of the Constitution came into force. Thus, it is clear that as per Art. 243-B of the Constitution, there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of Part IX of the Constitution and a Gram Sabha constituted under Chapter IX of the Constitution is a Gram Sabha which means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level and may exercise such powers and perform such functions at the village level as the Legislature of a State easy by law provide. Thus, a Gram Sabha which is constituted under Chapter IX of the Constitution can be invested with only those powers which can be exercised by a Gram Panchayat and no other powers. The management of the agricultural land is neither in the powers nor in the domain or jurisdiction of a Panchayat. Keeping in view the aforesaid provisions of the Constitution contained in Chapter IX of the Constitution and more particularly, the provisions of Arts. 243-B and 243-N of the Constitution, section 124 of the Act was amended and sub-s. (2) was inserted in s. 124 of the Act. (18). Keeping in view the aforesaid provisions of the Constitution contained in Chapter IX of the Constitution and more particularly, the provisions of Arts. 243-B and 243-N of the Constitution, section 124 of the Act was amended and sub-s. (2) was inserted in s. 124 of the Act. (18). Sub-s. (2) of S. 124 of the Act has already been quoted by us and by insertion of sub-s. (2) to s. 124 of the Act, the provisions of s. 43 of the Act of 1971 have been delected. S. 43 of the Act of 1971 reads as under: "S. 43— Gram Sabha to be empowered to function as Panchayat : (1) The State Govt. shall, on the constitution of a Gram Sabha for a Gramdan village in which a Panchayat is functioning, by notification in the official Gazette, declare that the Gram Sabha shall exercise all the powers and discharge all the duties and functions of the Panchayat in relation to the Gramdan village. (2) Upon the issue of a notification under sub-s. (1)— (a) the Panchayat which functioned immediately before the date of the notification shall, in relation to the Gramdan village, cease to function therein; (b) all the powers, duties and functions attaching to the Panchayat under the Rajasthan Panchayat Act, 1953, or under any law for the time being in force in the State, shall, in relation to the Gramdan village, attach to the Gram Sabha and accordingly, the Gram Sabha shall exercise the powers and discharge the duties and functions aforesaid; and the officers and servants of the Panchayat shall, subject to the provisions of the Rajasthan Panchayat Act, 1953, become the Officers and servants of, or as the case may be, work under the Gram Sabha; (c) the person elected by the Panchayat for the purpose of constituting a Nyaya Panchayat under the Rajasthan Panchayat Act, 1953, shall be deemed to be the person elected by the Gram Sabha out of its members for the constitution of that Nyaya Panchayat until the Gram Sabha elects any other person as provided in that Act; (d) the provisions of the Rajasthan Panchayat Act, 1953 shall, subject to such restrictions and modifications as the State Govt. may specify in the notification, apply to the Gram Sabha as if it were a Panchayat constituted under that Act for the Gramdan village; (e) the Gram Sabha shall be entitled to all the assets and be subject to all the liabilities of the Panchayat (including all rights and liabilities under any contract made by it) as on the date of the notification; (f) where immediately before the date of the notification aforesaid, a Panchayat was a party to any legal proceeding in any court or tribunal in the State, the Gram Sabha shall stand substituted for that Panchayat as a party to that proceeding, or added as party thereto, as the case may be, and the proceedings, continued accordingly. (3) Any notification issued under sub-s. (1) may contain such supplemental, incidental and consequential provisions as the State Govt. may deem necessary and in particular, may direct: — (i) that any tax, fee or other sum due to the Panchayat shall be payable to the Gram Sabha; (ii) that appeals, petitions or other applications with reference to any such tax, fee or sum which are pending on the date of such notification shall be disposed of by the Gram Sabha." It is, therefore, clear that s. 43 of the Act of 1971 authorises a Gram Sabha constituted under the provisions of Act of 1971 with all powers and functions of a Panchayat and these powers have to be conferred on the Gram Sabha of a Gramdan village in which a Panchayat was functioning, by notification in an Official Gazette and the Panchayat which functioned immediately before the date of the notification shall, in relation to the Gramdan village shall cease to function. As stated above, Art. 243-B clearly provides that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of Chapter IX of the Constitution and a Gram Sabha constituted under Chapter IX of the Constitution may exercise such powers and perform such functions at the village level as the legislature of the State may by law, provide. The Gram Sabhas which are constituted under Chapter IX of the Constitution are the units of the Gram Panchayats and the Gram Sabha which is constituted under the provisions of the Act of 1971 has nothing to do with the Gram Sabhas constituted by 73rd Amendment of the Constitution because that Gram Panchayat or Gram Sabha has no powers to deal with the ownership of the land and its distribution and, therefore, the Gram Sabha which has been constituted under the provisions of the Act of 1971 ipso facto does not come to an end by insertion of sub-s. (2) to s. 124 of the Act. The deletion of s. 43 of the Act of 1971 is in consonance with Arts. 243 B read with Art. 243-N of the Constitution. The Gram Sabha constituted under the provisions of the Act of 1971 cannot exercise those powers which are to be exercised by the Gram Sabhas or the Gram Panchayat constituted under Chapter IX of the Constitution and, therefore, the provisions of s. 43 of the Act being in derogation to the provisions of Chapter IX of the Constitution have rightly been deleted by insertion of sub-s. (2) of s. 124 of the Act. The deletion of s. 43 of the Act of 1971 does not bring to an end the Gram Sabhas which are constituted under the provisions of the Act of 1971 to manage the agricultural lands of the Gramdan villages and still, they will be bodies corporate with perpetual succession and will exercise all those powers in the Gramdan villages which are conferred on them under the provisions of the Act of 1971. They do not cease to function. They only cannot exercise powers conferred on them by s. 43 of the Act of 1971. As stated above, the provisions of s. 43 of the Act of 1971 have rightly been deleted by insertion of sub-s. (2) to s. 124 to the Act. Thus, the provisions of s. 124(2) of the Act cannot be held as unconstitutional. (19). In this view of the matter, we are firmly of the view that the notice (Annex. 2) dated 24.1.1995 issued to petitioner No.l Jamatsingh by respondent No.3 Vikas Adhikari, Panchayat Samiti, Revdar in District Sirohi cannot be sustained and deserves to be quashed. (20). In the result, we allow this writ petition in part. (19). In this view of the matter, we are firmly of the view that the notice (Annex. 2) dated 24.1.1995 issued to petitioner No.l Jamatsingh by respondent No.3 Vikas Adhikari, Panchayat Samiti, Revdar in District Sirohi cannot be sustained and deserves to be quashed. (20). In the result, we allow this writ petition in part. The validity of s. 124(2) of the Rajasthan Panchayati Raj Act, 1994 is upheld and we hold that the provisions of s. 43 of the Rajasthan Gramdan Act, 1971 have rightly been deleted by insertion of sub-s. (2) to s. 124 of the Act. However, by deletion of s. 43 of the Rajasthan Gramdan Act, 1971, the Gram Sabhas constituted under the provisions of the Rajasthan Gramdan Act, 1971 will not come to an end and they shall function independently in the Gramdan villages to carry out the scheme of the Rajasthan Gramdan Act, 1971 and they will not exercise those powers which are conferred on them by s. 43 of the Act of 1971 because the provisions of s. 43 of the Act of 1971 have been deleted by insertion of sub-s. (2) to s. 124 of the Act and those powers shall now be exercised by the concerned Gram Panchayats. These Gram Sabhas are directed to deliver only those relevant record and properties to the concerned Gram Panchayats which relate to the administration of the Gram Panchayats under the provisions of the Rajasthan Panchayati Raj Act, 1994 and properties which have been delivered to them by erstwhile Gram Panchayats which ceased to function as per s. 43 of the Act of 1971 or which have been purchased or constructed by them out of the funds allotted to such Gram Sabhas from Panchayati Raj Institutions, Departments or the Govt. of Rajasthan for the purposes of carrying out function and duties and development work of Gram Panchayats. (21). There will be no order as to costs.