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2003 DIGILAW 1417 (RAJ)

Madan Lal Soni v. The Divisional Commissioner

2003-10-16

S.K.KESHOTE

body2003
JUDGMENT 1. - In this group of four writ petitions a common question of law has 1 been raised these, in sum and substance, are identical matters and, as such, bring taken up for hearing and decided together by this common order. 2. For disposal of these writ petitions, the facts are taken from S.B. Civil Writ Petition No. 274/2001. 3. Petitioners in Writ Petition No. 274/2001, 14 in number, by this petition under Article 226 of the Constitution of India, are praying for quashing and setting aside of the order dated 23rd of December, 2000 (Annexure- 17) of the Divisional Commissioner, Jaipur. Under this order the Divisional Commissioner, Jaipur directed the District Collector, Sikar to cancel the decision of the Gram Panchayat, Sahpura, to give on rent the shops to the petitioners. These are 28 in number. The directions, relevant for the decision of these writ petitions, given to the District Collector, Sikar under this orders are as under, (English Version) 1. While getting all the shops vacated immediately from the concerned tenants, proceedings may be taken to recover the outstanding rent; 2. While putting the numbers on all the 28 shops, a Committee may be constituted to let out these shops by way of public auction. 4. Briefly stated the facts of the case are that the Gram Panchayat Sahpura let out different shops on rent by following due process of law provided under the Rajasthan Panchayat Raj Act, 1994 (for short, the Act, 1994) and the Rules framed thereunder to the petitioners No. 1 to 10. The rent notes were executed by the petitioners No. 1 to 10 in favour of the Gram Panchayat. Enclosed to the writ petition, the petitioners have produced the rent receipts. These shops were let out to the petitioners No. 1 to 10 in different years 1991, 1992 and onwards. 5. At the relevant time, one Gauri Shankar Tiwari was the Sarpanch of Gram Panchayat. In the year 1995, one Mewa Ram became the Sarpanch of the said Gram Panchayat. He constituted the auction committee to let out other shops on rent. Auction notices were issued. Auction notice was affixed in the public chowk of Village Sahpura as well as outside of the Panchayat Building. A copy of the same was also sent to the Block Development Officer of Panchayat Samiti Sahpura. He constituted the auction committee to let out other shops on rent. Auction notices were issued. Auction notice was affixed in the public chowk of Village Sahpura as well as outside of the Panchayat Building. A copy of the same was also sent to the Block Development Officer of Panchayat Samiti Sahpura. The copy of the auction notice dated 21st of December, 1998 has been produced by the petitioners on record of the petition as Annexure- 11. Auction proceedings to let out different shops on rent were held and therein several persons participated. 6. The petitioners No. 11 to 14 made the highest bid and fulfilled all other formalities and deposited the prescribed amount. Thereafter they started paying the monthly rent regularly to the Gram Panchayat. Other auction proceedings were held on 4th of January, 1999 in which four other persons gave the highest bid. 7. Against the rent of the shops which were given to the petitioners No. 11 to 14 and four others by the Auction notice dated 21.12.1998, certain persons including the ex-Sarpanch Madan Lal Dargada preferred a revision petition before the District Collector, Sikar for cancellation of the auction notice and the auction proceedings. This revision petition was submitted somewhere in the month of May, 1999. The revisionist did not implead the petitioners No. 11 to 14 and four others as parties to the revision petition. The petitioners No. 11 to 14 and four others moved an application before the District Collector, Sikar under Order 1 Rule 10 C.P.C. for their impleadment as parties to the revision petition. On their application, they were impleaded as parties to the revision petition. The District Collector, Sikar decided the revision petition on 28th of August, 2000. The revision petition was dismissed. Letting out the shops by the Gram Panchayat by auction was held to be legal. 8. The order of the District Collector, Sikar was not taken in further appeal or revision by the revisionist and thus it attained finality against those complainants including the ex-Sarpanch Madan Lal Dargada. The revision petition was dismissed. Letting out the shops by the Gram Panchayat by auction was held to be legal. 8. The order of the District Collector, Sikar was not taken in further appeal or revision by the revisionist and thus it attained finality against those complainants including the ex-Sarpanch Madan Lal Dargada. Sri Madan Lal Dargada and others having got apprehension that they may fail in the revision petition and behind the back of the petitioners submitted a complaint to the Divisional Commissioner, Jaipur for cancellation of the rent note of all the 28 shops in number, on the false pretext and allegation that Sarpanch Mewa Ram has illegally let out all those shops during his tenure. 9. This complaint appears to have been sent to the Collector, Sikar for inquiry. On his turn, the Collector, Sikar sent the matter for inquiry to the Sub Divisional Officer, who, without giving an opportunity of hearing to the petitioners, submitted the report adverse to them, to the Collector, Sikar, who, in turn, transmitted the same to the Divisional Commissioner, Jaipur. The Divisional Commissioner, Jaipur passed the order aforesaid dated 23rd of December, 2000 and thus this writ petition by petitioners. 10. The learned counsel for the petitioners raised manifold contentions challenging the order of the Divisional Commissioner, Jaipur but as this writ petition deserves to be accepted only on one ground, neither is it necessary to nor desirable to refer, discuss and give decision on each and every contention. 11. One of the contentions raised by the learned counsel for the petitioners is that the order dated 23rd of December, 2000 of the Divisional Commissioner, Jaipur is ab-initio void as the same has been passed without notice and opportunity of hearing to the petitioners. It is submitted that the action taken in consequence of this order by the Block Development Officer or the Gram Panchayat is also void ab-initio. 12. Learned counsel appearing on behalf of the respondents, on the other hand, supported the said order. However, despite of asking repeatedly learned counsel for the respondents could not produce on the record any material in support of his contention that the Divisional Commissioner, Jaipur has passed impugned order after notice and opportunity of hearing to the petitioners. 13. I have given my thoughtful consideration to this contention raised by the learned counsel for the parties. 14. However, despite of asking repeatedly learned counsel for the respondents could not produce on the record any material in support of his contention that the Divisional Commissioner, Jaipur has passed impugned order after notice and opportunity of hearing to the petitioners. 13. I have given my thoughtful consideration to this contention raised by the learned counsel for the parties. 14. It is not in dispute that the Collector, Sikar, under its order dated 29th of August, 2000 on the revision petition filed by as many as seven persons including ex- Sarpanch held valid the action of the Gram Panchayat to let out the shops to the petitioners no. 11 to 14 and four others by public auction. It is also not in dispute that this order of the Collector, Sikar has attained finality. Once this order of the Collector, Sikar on the complaint of seven persons including ex-Sarpanch, held the action of the Gram Panchayat to let out the shops in question by public auction, to be valid and legal and which has attained finality also, I fail to see how the Divisional Commissioner, Jaipur could have adopted this course. Once the order of the District Collector, Sikar has attained finality, the Divisional Commissioner, Jaipur could not have brushed it aside. 15. The complainants, who could not get success in revision, filed the complaint to the Divisional Commissioner, Jaipur. Before acting upon the complaint so made, it was incumbent upon the Divisional Commissioner, Jaipur to get the information about the proceedings filed by these persons, from the Collector in respect of these shops. 16. In reply to the writ petition, even there is no whisper how this order of the Collector, Jaipur given in favour of the petitioners No. 11 to 14 and four others, in a statutory provided revision petition, is not of any value and substance and binding on the Divisional Commissioner, Jaipur. In sub-para D of pare 8 of the writ petition, the petitioners have made the following pleadings, "D) Because the complainant including Madan Lal preferred a revision petition against the resolution dated 21.12.1998 passed by Gram Panchayat Sahpura by which auction notice of the 8 shops were issued and thereafter the shops were allotted to the petitioners Na 11 to 14 and 4 others without impleading them as party to the revision petition. It is most respectfully submitted here that petitioners No. 11 to 14 and 4 others moved an application under Order 1 Rule 10 CPC for impleading them as party to the revision petition their application regarding impleading was allowed and they were impleaded as party and ultimately after hearing both the parties the Learned District Collector, Sikar vide its order dated 29.8.2000 rejected the revision petition of the complainant and hold that after pursuing the record of the Gram Panchayat and the proposal dated 21.12.1998 by which auction notice was issued and auction proceedings were rightly conducted by the Auction Committee and the auction proceedings were held publicly and all the shops were rightly auctioned by the said committee and after completion of the auction the requisite amount was deposited by the tenants (petitioners No. 11 to 14 and 4 others) and all of them deposited the 6 month's rent in advance and Agreements/Ekrarnama was also executed by them. And it was further held that the auction was conducted legally by following the rules and hence the revision petition of the complainants were rejected by the learned District Collector. Sikar by its order dated 29.8.2000. It is most respectfully submitted here that the orders passed by Learned District Collector, Sikar has attained finality because the complainant has not assailed or challenged the validity of the order dated 29.8.2000 passed by District Collector, Sikar before any appropriate forum of law. It is most respectfully submitted here that the District Collector, Sikar can not allow to take two views one view by passing the legal order in judicial capacity and saying that the auction proceedings were held in accordance with law after following the due process and the shops were rightly allotted to the petitioners No. 11 to 14 and 4 others and such order of the District Collector when attained finality then how the same District Collector take a different view by holding that an enquiry against 28 persons without affording them any opportunity of hearing and that too by mixing the shops with 8 shops which were in fact not allotted by the present Sarpanch Meva Ram to the Petitioners No. 1 to 10 and 10 others. Hence under such circumstances it appears that the whole proceedings were done by the respondents in a collusion manner and their such arbitrary action should be deprecated because it is quite unjust and illegal and against the provisions of law hence the order passed by Divisional Commissioner, Jaipur on 23.12.2000 is liable to be quashed and set aside and other orders passed by the appropriate authorities are also liable to be quashed and set aside and the rights of the petitioners should be protected." 17. The reply to these proceedings is given by the respondents as under: "D. That the contents of ground (D) of the writ petition are denied being misconceived. The detailed reply has already been given in the earlier pares". These grounds raised by the petitioners are not denied.In pare no. 6 of the writ petition the petitioners have made reference to the order of the Collector, Sikar and the respondents could not give out how this order of the Collector, Sikar is bad or not binding on them. The resultant position is that the respondents have accepted that order of the Collector, Sikar made in the revision petition filed by 7 persons dismissing the same, as legal and justified, which has attained the finality and it is binding between the parties. 18. In para no. 7 of the writ petition the petitioners have raised the contention that the Sub Divisional Officer conducted the enquiry behind the back of the petitioners. 19. In para no. 8 of the writ petition the petitioners stated that the Divisional Commissioner, Jaipur passed the order Annexure- 17 without notice and opportunity of hearing to them. 20. In sub pare 1 of pare 8 of the writ petition, the petitioners have made following pleadings, "B) Because the impugned orders passed by the respondents are against the principles of natural justice and the principles of audi alterm partm has been grossly violated in this case, because no opportunity of hearing whatsoever or no notice whatsoever was given to them before passing the illegal impugned orders against them by which the allotment of the shops has been illegally cancelled by the respondents." 21. In reply to the para Nos. In reply to the para Nos. 7 and 8 of the writ petition, it is not denied that Sub Divisional Officer has conducted the enquiry after notices and opportunity of hearing to the petitioners and similarly the Divisional Commissioner, Jaipur has passed the order without notice and opportunity of hearing to them. 22. Thus, it is an undisputed fact that the Sub Divisional Officer has conducted the enquiry behind the back of the petitioners and the Divisional Commissioner, Jaipur passed he order Annexure- 17 without notice and opportunity of hearing to the petitioners. It Is a prejudicial order passed by the Divisional Commissioner, Jaipur against the petitioners. The Divisional Commissioner, Jaipur behind the back of the petitioners and without giving notice and opportunity of hearing to them, has ordered for their eviction from the shops in question which were let out to them by the Gram Panchayat and monthly rent is being paid by them regularly. 23. The Sarpanch has been disqualified or some other action has been taken against him, is hardly of any material. The order passed by the Divisional Commissioner, Jaipur is adverse to the petitioners, they are likely to be evicted in pursuance thereof from the suit shops which they had taken on rent from the Gram Panchayat and paying regularly rent and thus they are likely to be deprived of carrying on their earning of livelihood. Passing such a prejudicial order, which may affect the earning of livelihood of the petitioners, without notice and opportunity of hearing to them, is not justified and the same is void ab-initio and cannot be allowed to stand. The consequential orders passed by the Block Development Officer and the Gram Panchayat in pursuance of the order of the Divisional Commissioner, Jaipur, suffer from same infirmity and illegality. 24. Consequently, these writ petitions succeed and the same are Mowed. The order dated 23rd of December, 2000 (Annexure- 17) of the Divisional Commissioner, Jaipur is quashed and set aside. Upon quashing and setting aside of the order of the Divisional Commissioner, the so consequential proceedings drawn by the Block Development Officer and the Gram Panchayat as also stand quashed and set aside. 25. The order dated 23rd of December, 2000 (Annexure- 17) of the Divisional Commissioner, Jaipur is quashed and set aside. Upon quashing and setting aside of the order of the Divisional Commissioner, the so consequential proceedings drawn by the Block Development Officer and the Gram Panchayat as also stand quashed and set aside. 25. These poor petitioners have been dragged into unnecessary and uncalled for litigation by the Divisional Commissioner, Jaipur without there being any fault on their part as the Divisional Commissioner, Jaipur has passed the impugned order without notice or opportunity of hearing to them, of their eviction from the shops in question which they had taken on rent from the Gram Panchayat and are regularly paying monthly rent. The litigation in these days heavily costs. The learned counsel for the petitioners given out that they have incurred heavy expenses for filing of these writ petitions. 26. In my opinion, it is a fit case where exemplary cost is to be awarded in favour of the petitioners against the Divisional Commissioner, Jaipur. Consequently, the respondent no. 1, the Divisional Commissioner, Jaipur is directed to pay Rs. 5000/- as costs to the petitioners of each petition, by way of Account Payee Cheque/DD/Pay Order.In view of this order, the stay application, filed along with the writ petition, stands disposed of.Writ Petition Allowed with Exemplary Costs of Rs. 5000/-. *******