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Gujarat High Court · body

2009 DIGILAW 204 (GUJ)

CHILODA (D)GRAM PANCHAYAT v. STATE OF GUJARAT

2009-03-25

K.A.PUJ

body2009
S. V. PARMAR, J. ( 1 ) HEARD learned advocate appearing for the petitioner and Mr. Amit Patel, learned Assistant Government Pleader, appearing for the respondent State. Considering the relevant statutory provisions as well as the case law cited before the Court, the Court is not convinced with the submissions made by Mr. Parmar and the Court is of the view that the decision taken by the high power committee does not call for any interference. The petition is, therefore, dismissed. The reason for dismissal is to follow. ( 2 ) THE petitioner- Chiloda Gram Panchayat through its Sarpanch has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the decision of High Power Committee dated 28. 5. 2007 forwarded to the petitioner on 27. 7. 2007 whereby the High Power Committee has taken the decision that the amount of rent cannot be given to the petitioner - Gram Panchayat and that the said amount is required to be credited to the account of the State Government. ( 3 ) IT is the case of the petitioner that the petitioner had approached this Court by way of Special Civil Application No. 17994 of 2003 challenging the legality and validity of the Revisional Authority's order dated 11. 8. 2003 rendered under Section 259 of the Gujarat Panchayats Act, 1993 ignoring relevant materials and thereby holding that the petitioner had not adduced any evidence to establish that the lands in question vest in the petitioner Panchayat in respect of which it has been collecting amounts as per Section 269 of Panchayats Act. On this basis the revisional authority remanded the matter to Appellate Committee of Gandhinagar District Panchayat. While the said matter was pending before this Court on 23. 6. 2004 the Appellate Committee decided against the petitioner. On the plea of alternative remedy against the Appellate Committee's order, the Special Civil Application was rejected on 23. 7. 2004. The petitioner Panchayat therefore filed Letters Patent Appeal No. 1770 of 2004 and the Misc. Civil Application No. 1968 of 2006 and Misc. Civil Application No. 2304 of 2006 for withdrawal of the said matter. The Division Bench of this Court had held in Letters Patent Appeal that the reliance placed by the petitioner on the provisions of Section 269 is misplaced. Civil Application No. 1968 of 2006 and Misc. Civil Application No. 2304 of 2006 for withdrawal of the said matter. The Division Bench of this Court had held in Letters Patent Appeal that the reliance placed by the petitioner on the provisions of Section 269 is misplaced. It is the grievance of the petitioner that the Division Bench had not afforded opportunity to point out the material which was already annexed to the writ petition being Special Civil Application No. 17994 of 2003 to establish that the lands in question vest in and are under the control of the petitioner Panchayat. The petitioner Panchayat was, therefore, constrained to file Special Leave Petition (Civil) No. 6018 of 2007 before the Hon'ble Supreme Court of India under Article 136 of the Constitution of India, challenging legality of order made in Letters Patent Appeal as well as other Misc. Civil Applications. ( 4 ) IT is also the case of the petitioner that during the pendency of the SLP before the Hon'ble Supreme Court another development took place. The petitioner Panchayat earlier filed Special Civil Application No. 5476 of 1996, against the order made by the revisional authority on 14. 12. 1995 under Section 259 of the Panchayat Act on identical facts about the quantum of money leviable by the petitioner Panchayat. Though revisional authority had upheld the resolution made on 18. 4. 1994 of petitioner Panchayat about authority of the Panchayat to recover amounts under Section 269 of the Panchayat Act but on question of quantum the revisional authority had directed that the matter should be referred by the District Development Officer to the Dy. Town Planner and, thereafter, to fix the quantum of amount recoverable. After by-parte hearing the said Special Civil Application was disposed of. The learned Single Judge has taken the view in the said petition that on account of dispute between the Gram Panchayat and the Collector/state about vesting of or control over suit land, the unauthorized occupiers who have encroached land should not be allowed to reap any benefit. The learned Single Judge, therefore, constituted High Power Committee for Resolution of question about entitlement of petitioner Panchayat to recover amount under Section 269 of Panchayat Act and withdrawal of amount deposited by encroachers with petitioner Panchayat. ( 5 ) THE legality of the judgment dated 7. 12. The learned Single Judge, therefore, constituted High Power Committee for Resolution of question about entitlement of petitioner Panchayat to recover amount under Section 269 of Panchayat Act and withdrawal of amount deposited by encroachers with petitioner Panchayat. ( 5 ) THE legality of the judgment dated 7. 12. 2006 rendered in Special Civil Application No. 5476 of 1996 and the High Power Committee's decision were challenged in Letters Patent Appeal (Stamp) No. 2712 of 2006 and Civil Application for amendment No. 1135 of 2009. In order that judicial pronouncement in Special Leave Appeal (Civil) No. 6018 of 2007 filed before the Hon'ble Supreme Court and in Letters Patent Appeal (Stamp) No. 2712 of 2006 filed before this Court may not be at variance, the SLP was withdrawn with permission of the Hon'ble Supreme Court on 28. 11. 2008 to avail further remedy against the decision of the High Power Committee dated 28. 5. 2007. Similarly, Letters Patent Appeal (Stamp) No. 2712 of 2006 and Civil Application for amendment No. 1135 of 2009 were withdrawn on 20. 2. 2009 to challenge the legality and validity of the decision rendered by the High Power Committee. ( 6 ) IT is in the above background of the matter, the present petition is filed before this Court. ( 7 ) MR. S. V. PARMAR, learned advocate appearing for the petitioner has submitted that the Government of Gujarat under Revenue Department Resolution No. JMV 3966/77886g dated 17. 9. 1966 authorized the District Collector to vest in village Panchayat unreserved open plots for administration and disposal as an agent of Government. The purposes for such vesting are (i) to involve village Panchayats in administration and disposal of open plots which otherwise, the Panchayats cannot, and (ii) to become helpful to village Panchayats in their development activities. He has further submitted that Section 38 of the Bombay Land Revenue Code confers powers on District Collector to set apart lands for free pasturage, popularly known as 'gaucher' for forest reserves or any public or municipal purpose. The lands of village Chiloda of Block Nos. 474 admeasuring acres 03-34 guntha and of Block No. 475 acres 03-03 guntha were earlier so set apart for Gaucher and were vested in petitioner village Panchayat. The petitioner Panchayat felt need for extension of Village site to meet need of landless persons for houses. The petitioner, therefore, passed Resolution on 20. 4. 474 admeasuring acres 03-34 guntha and of Block No. 475 acres 03-03 guntha were earlier so set apart for Gaucher and were vested in petitioner village Panchayat. The petitioner Panchayat felt need for extension of Village site to meet need of landless persons for houses. The petitioner, therefore, passed Resolution on 20. 4. 1967, 9. 12. 1967, 27. 7. 1972 and 15. 11. 1972 requesting the District Collector to dis-assign gaucher lands of Block No. 474 and 475 and further requested the Collector for its assignment of extension of Village site. The Collector made order accordingly on 14. 3. 1973, simultaneously vesting in petitioner Panchayat lands of Block No. 474 and 475 other than lands admeasuring acre 0-13 guntha of Block No. 475 unauthorizedly occupied by State Transport Corporation and put to use of bus stop. The Collector has in order dated 14. 3. 1973 stated that the lands now vested in Gram Panchayat are to be administered and disposed off by Village Panchayat as an agent of Government according to policy laid down in the Government Resolution dated 17. 9. 1966. Thus, the petitioner Panchayat exercises control over the lands. Since the order made by the Collector on 14. 3. 1973 divesting gaucher land and its utilization for extension of village site and its revesting in petitioner Panchayat, is self executing and also for the reason that the lands continue to be vested in the petitioner Village Panchayat uninterruptedly, no question of handing over and of taking over of possession of lands had arisen. Necessary entries have been made in record of right. ( 8 ) MR. PARMAR has further submitted that before further actions could be taken for disposal, portion of lands Block No. 474 and 475 including lands ear-marked for State Transport Corporation were encroached by approximately 200 shopkeepers by erecting structures for doing business. Since the encroached lands are State Government lands, as per proviso to Section 105 (2) of the Gujarat Panchayats Act, 1993 unless permitted by the District Collector the petitioner Panchayat cannot eject the encroachers out from encroached lands. No permission has been given by the State Government. ( 9 ) MR. PARMAR has further submitted that Section 269 of 1993 Act empowers a Village Panchayat to recover from encroachers the amount assessed at the rate not exceeding four times the rent of encroached public property vesting in or under control of Panchayats. No permission has been given by the State Government. ( 9 ) MR. PARMAR has further submitted that Section 269 of 1993 Act empowers a Village Panchayat to recover from encroachers the amount assessed at the rate not exceeding four times the rent of encroached public property vesting in or under control of Panchayats. Since the lands of Block No. 474 and 475 are vested by the District Collector in petitioner Panchayat for administration and disposal and since portion of such lands are encroached the petitioner Panchayat has authority to recover from encroacher shopkeepers amounts specified in section 269 of the Panchayats Act. The petitioner Panchayat by following due process of law, assessed amount recoverable by making Resolution No. 3 on 18. 4. 1994. ( 10 ) THE learned Single Judge of this Court while disposing of the Special Civil Application was of the opinion that there is dispute between the State and the petitioner Panchayat as to authority to recover the amounts, constituted High Power Committee. The High Power Committee placing reliance on the Government Resolution dated 3. 6. 1980 had rendered decision on 28. 5. 2007. ( 11 ) MR. PARMAR further submitted that conjoint reading of the Government Resolution dated 3. 6. 1980 and 17. 9. 1966 makes it explicitly clear that the petitioner Panchayat is in occupation of lands of Block No. 474 and 475 and, therefore, the entries have been mutated in record of rights and possession is shown to be of Chiloda (d) Gram Panchayat. He has further submitted that the Collector's order unequivocally shows that the lands of Block No. 474 and 475 of Village Chiloda (d) are vested in and are under control of the petitioner Gram Panchayat. The subsequent Resolution does not make any difference. He has further submitted that the word 'vest' has been considered by the Courts in catena of decisions. In Fruit and Vegetable Merchant Union Vs. Delhi Improvement Trust, reported in AIR 1957 SC 344 the Court held that the word 'vest' has not got a fixed connotation meaning in all cases that the property is owned by the person or authority in whom it vests. It may vest in title or it may vest in possession or it may vest in limited sense as indicated in the context in which it may have been used. It may vest in title or it may vest in possession or it may vest in limited sense as indicated in the context in which it may have been used. This decision has been followed in Bharat Cooking Coal Ltd. , Vs. Karamchand, reported in (2003) 1 SCC 6 , wherein it is held that the expression 'vest' is a word of variable import since it has no fixed connotation, and the same has to be understood in different context in different set of circumstances. ( 12 ) MR. PARMAR has further submitted that Section 269 of the Gujarat Panchayat Act uses the concept 'property vesting in' or under control of Panchayat has to be understood in the context of the authority given by the legislature to the Gram Panchayat to levy and recover from the encroacher the sums upto four times the amount of rent of the land encroached. The concept 'vesting in' is not used to denote ownership. He has further submitted that the petitioner Panchayat recovers amount specified and calculated at the rate of and in the manner prescribed under Section 269 of the Panchayat Act read with relevant rules after following due process of law. The amount recovered by the petitioner Gram Panchayat under the authority of Section 269 of the Panchayat Act cannot be confiscated by the State Government. The amounts recovered, collected and deposited in Bank accounts belong to Chiloda (d) Gram Panchayat and are to be utilized for performing functions specified in Schedule I under Section 9 of the Gram Panchayat Act, 1993. He has further submitted that the High Power Committee has misconceived the amounts recovered by the Gram Panchayat under Section 269 of the Panchayat Act with the amounts of the occupancy price that may be collected on disposal of plots. The reasons given by the High Power Committee for treating the amounts recovered by Panchayat under Section 269 of the Act to be of same status and of same nature as income that accrues under GR dated 17. 9. 1966. Mr. Parmar further submitted that the High Power Committee has without considering the provisions of Section 105 (2) of the Panchayat Act has given erroneous finding that the petitioner Gram Panchayat instead of removing the encroachers, it motivates, unauthorized persons to encroach lands of Block No. 474 and 475 for collecting the amount from encroachers. 9. 1966. Mr. Parmar further submitted that the High Power Committee has without considering the provisions of Section 105 (2) of the Panchayat Act has given erroneous finding that the petitioner Gram Panchayat instead of removing the encroachers, it motivates, unauthorized persons to encroach lands of Block No. 474 and 475 for collecting the amount from encroachers. This finding of the High Power Committee is arbitrary, capricious, violative of Article 14 of the Constitution of India. Mr. Parmar has further submitted that no rent can be recovered from the encroacher who has unauthorizedly entered on lands vested in and in control of Panchayat. The petitioner Panchayat recovers the amounts specified under Section 269 of the Panchayat Act by following due process of law. The petitioner Panchayat has not acted as lessor nor the encroachers are lessees to whom the land has been demised by written document. He has, therefore, submitted that the High Power Committee has erroneously held that the petitioner Panchayat is recovering rents from encroachers. ( 13 ) CONSIDERING the entire facts and circumstances of the case as well as all statutory provisions and the decided case law on the subject Mr. Parmar has strongly urged before the Court that the decision taken by the High Power Committee is required to be stayed and the petition be accordingly admitted and allowed. ( 14 ) MR. AMIT Patel, learned Assistant Government Pleader, on the other hand, has supported the decision of the High Power Committee and submitted that the Sarpanch of the petitioner Panchayat was also a Member of the High Power Committee and the decision was taken unanimously by all the Members of the High Power Committee. It is, therefore, not open to the petitioner to challenge the decision of the High Power Committee before this Court. Even otherwise, on merits the said decision does not call for any interference of this Court while exercising its jurisdiction under Article 226 of the Constitution of India. He has, therefore, submitted that the petition deserves to be dismissed. It is, therefore, not open to the petitioner to challenge the decision of the High Power Committee before this Court. Even otherwise, on merits the said decision does not call for any interference of this Court while exercising its jurisdiction under Article 226 of the Constitution of India. He has, therefore, submitted that the petition deserves to be dismissed. ( 15 ) HAVING heard learned advocates appearing for the parties and having gone through the facts stated and averments made in the petition as well as documents attached therewith and also the earlier proceedings which have reached upto the Hon'ble Supreme Court, the Court is of the view that the High Power Committee has taken into consideration all the relevant facts and arrived at the conclusion which may not be said to be unlawful or irrational. The High Power Committee vide its order dated 28. 5. 2007 has carved out four broad propositions. They are as under:- (i) The State Government through its Revenue Department had issued a Resolution dated 3. 6. 1980 wherein it is clarified that the open plots situated at gamtal lands are of the ownership of the State Government and such plots are not vested in the Village Panchayat. Such plots are entrusted to the Village Panchayat only for the purpose of administration. The Resolution dated 3. 6. 1980 specifically states that the sale consideration of such plots should be deposited with the State Government and, thereafter, such amount should be credited in the development funds. (ii) The Village Panchayat has to work on the basis of agent principal relationship. The Village Panchayat is not entitled to recover the rent from the encroachers as per the provisions contained in Section 269 of the Act. (iii) It is an obligation of the Village Panchayat to remove all encroachers of the Government land, as per the provisions contained under Section 105 of the Gujarat Panchayat Act. The recovery of rent from the encroachers is absolutely illegal act and no such permission can be given to the Village Panchayat to recover such rent unauthorizedly. (iv) The petitioner Panchayat has failed to protect the disputed land or to take care of the land. Instead of removing the encroachers from the disputed land other encroachers are inspired by the Village Panchayat to make encroachment and rent is being recovered from them. (iv) The petitioner Panchayat has failed to protect the disputed land or to take care of the land. Instead of removing the encroachers from the disputed land other encroachers are inspired by the Village Panchayat to make encroachment and rent is being recovered from them. It is only because of this attitude on the part of the Village Panchayat encroachments are made on the land on a large scale. Under these circumstances, if the rents recovered by the Panchayat are to be given to the Village Panchayat then many other Panchayats would be inspired to do illegal activities. The High Power Committee has, therefore, clearly held that the amount of rent received from the Village Panchayat should be handed over to the State Government. ( 16 ) THE main grievance of the petitioner in the present petition is that the "property vesting in or under the control of Panchayat" appearing under Section 269 of the Gujarat Panchayat Act, 1993 empowers the Village Panchayat to recover the rent. For this purpose, it is necessary to have a close look at the provisions contained under Section 269 of the Act which reads as under:- "section 269 Liability to pay rent for unauthorized occupant or possession of property of Panchayat:- (1) Who ever not being duly authorized in that behalf occupies or is in possession of any property vesting in, or under control of, a Panchayat shall without prejudice to any other action which may be taken under this Act, be liable to pay into the Panchayat a sum up to four times the amount of rent which would have been payable to the Panchayat for the period of such occupation or possession, had the property been let by the Panchayat. (2) The sum so payable shall be determined by the Panchayat in the prescribed manner and thereafter the sum shall become due to the Panchayat. " ( 17 ) THE submission of Mr. Parmar is that the lands in question may not be in the ownership of the petitioner Panchayat. However, the land was certainly vested in the Panchayat and it was under the control of the Panchayat. " ( 17 ) THE submission of Mr. Parmar is that the lands in question may not be in the ownership of the petitioner Panchayat. However, the land was certainly vested in the Panchayat and it was under the control of the Panchayat. Once it is established that the land is vested in the Panchayat and the Panchayat is in the control of the land, all the persons who are not duly authorized to occupy or in possession of any property, are liable to pay to the Panchayat a sum upto four times the amount of land. The Panchayat has passed a Resolution resolving therein that the rent is to be recovered a sum upto one and one and half time. The High Power Committee has, therefore, committed an error in law as well as on facts in observing that the Panchayat is not entitled to recover the said rent and it is to be deposited in the account of State Government. The submissions of Mr. Parmar are not weighed with the Court. Even in earlier round of litigation this argument was not accepted and hence the amount was ordered to be deposited in the separate account. The petitioner has lost at all levels. Even the High Power Committee has also taken the same view. The decision of the Hon'ble Supreme Court in the case of Fruit and Vegetable Merchant Union (Supra) does not render any assistance to the petitioner Panchayat as in that case also the Hon'ble Supreme Court has made it very clear that the word 'vest' is a word of variable import as shown by provisions of Indian statutes also. After considering the provisions of Section 56 of the Provincial Insolvency Act, the Court took the view that, it empowers the Court at the time of making order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that "such property shall thereupon vest in such receiver". The property vests in the receiver is for the purpose of administering the estate of the insolvent for the payment of his debts after realizing his assets. The Court has also made it clear that the property of the insolvent vests in the receiver is not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. The Court has also made it clear that the property of the insolvent vests in the receiver is not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. Simultaneously, in the present case also the Village Panchayat has to administer and work as an agent of the State Government and the amount so collected cannot be used by the Panchayat for its own benefit. It is true that when the provision of the Improvement Act speaks of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them. ( 18 ) SECTION 269 can be invoked only when the property absolutely vests in the Village Panchayat and Village Panchayat is in exclusive control of such property. Here, in the present case, the Village Panchayat is answerable to the State Government in all respects and no amounts can be taken by the Village Panchayat. The High Power Committee has, therefore, rightly taken the decision that the amount should go to the State Government. The whole idea is that because of the dispute between the Village Panchayat and the State Government the encroachers should not derive any benefit, undue advantage and because of that the Village Panchayat has to recover the amount from the encroachers. Simply because it recovers amount from the encroachers it cannot claim the utilization of the said amount as per its own choice. The Court, therefore, does not find any infirmity in the order passed by the High Power Committee. The petition is, therefore, dismissed at the threshold.