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2020 DIGILAW 334 (ALL)

Mohd. Rais v. State Of U. P.

2020-01-31

PANKAJ MITHAL, YOGENDRA KUMAR SRIVASTAVA

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JUDGMENT : 1. The petitioner is having land Gata Nos. 34, 38 & 39, situate in Village Tatarpur Patti, Tehsil Hasanpur, District Amroha. 2. The petitioner was granted permission to hold a weekly market on every Wednesday on the said land for the sale and purchase of tractor and farm implements by the Gram Vikas Adhikari (Village Development Officer), Gram Panchayat Saidangali, Vikas Khand, Hasanpur, District Amroha on 05.11.2018 for a period of about 5 months ending 31.03.2019 on payment of Rs.10,000/-as licence fee with the annual renewal clause. 3. The petitioner had to file Writ-C No.13166 of 2019 seeking a direction upon the respondents not to interfere in his holding of the weekly market on his aforesaid land. The said writ petition was disposed of vide order dated 16.04.2019 without going into the merits of the claim of the petitioner with the direction to the District Panchayat Raj Officer (In short D.P.R.O.) to consider the grievance of the petitioner in accordance with law on his representation. 4. It is in pursuance of the above direction that the D.P.R.O. has now passed an order dated 05.10.2019 narrating the entire facts cancelling the licence/permission granted to the petitioner for holding the weekly market inter alia on the ground that the Gram Vikas Adhikari is not possessed of any authority of law to grant any such licence/permission for holding the weekly market and accordingly the licence/permission granted by him on 05.11.2018 is against the provisions of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act). 5. The petitioner has invoked the writ jurisdiction of this court challenging the above order dated 05.10.2019 passed by respondent No.2, D.P.R.O. and for issuance of a writ in the nature of mandamus commanding the respondents not to interfere in his holding of the weekly market every Wednesday on his aforesaid land for the sale and purchase of tractors and farm implements. 6. The moot question which arises for consideration is whether the Gram Vikas Adhikari has any authority in law to issue any licence/permission to hold a weekly market on the private land within the Panchayat. 7. 6. The moot question which arises for consideration is whether the Gram Vikas Adhikari has any authority in law to issue any licence/permission to hold a weekly market on the private land within the Panchayat. 7. In view of the above legal issue, in the facts and circumstances of the case which are not in dispute, with the consent of the parties, we proposed to dispose of the petition at the threshold without calling for any counter affidavit to which there was an agreement. 8. Village Tatarpur Patti, Tehsil Hasanpur, District Amroha is undisputedly an area which falls within the Gram Panchayat Saidangali, Block Hasanpur, District Amroha. It does not fall in any city or notified area or a cantonment and as such the provisions of U.P. Municipal Corporation Act or the U.P. Municipalities Act or the Cantonment Act are not applicable to it rather it has to be governed by the U.P. Panchayat Raj Adhiniyam, 1947. 9. The functions, powers and duties of the Gram Panchayat are enumerated under Section 15 of the Act. It provides that a Gram Panchayat shall perform functions inter alia relating to markets and fairs i.e. for the regulations of the melas, markets and haats in the panchayat areas. 10. The Gram Pradhan is the elected and a representative officer of a Gram Panchayat, who is the over all incharge of all administrative functions of a Gram Panchayat. He is to be assisted by the staff and a secretary as provided under Sections 21, 25 and 25A of the Act to discharge administrative functions. 11. Gram Vikas Adhikari is one of such an Administrative Officer of the State Government on deputation who aids the Gram Pradhan in discharging the duties and functions of a Gram Panchayat. 12. The Uttar Pradesh Panchayat Raj Act nowhere specifically provides for the powers, functions and duties of a Gram Vikas Adhikari except for providing for the powers, duties and functions of the Gram Panchayat and all those functions have to be discharged by the Gram Panchayat and not individually by the Gram Vikas Adhikari or any other Officer provided by the State Government either under Sections 21 or 25/25A of the Act. 13. 13. In view of the above scheme of the Act it is thus evident the power to regulate melas, markets and haats in the Panchayat area vest with the Gram Panchayat and not in any particular person. Therefore, the said power has to be exercised by the resolution of the Gram Panchayat. In the absence of any such resolution the Gram Vikas Adhikari would have no authority of law to exercise the said power such as granting a licence to hold market in the Panchayat area may be on the private land. 14. No Rules, Regulations or Bye-laws have been placed before us which may authorise in general or in particular Gram Vikas Adhikari to exercise any power in respect of holding markets in the Panchayat area. 15. Learned counsel for the petitioner has placed reliance upon Section 37 of the Act to demonstrate that realisation of the tax from the persons indulging in sale of goods in melas, markets and hatts by the Gram Panchayat amounts to Tehbazari and as such no market or a weekly market can be held by any individual unless there is a licence/permission from the Officer concerned of the Gram Panchayat i.e. Gram Vikas Adhikari. 16. Section 37 of the Act provides for the imposition of taxes and fees by the Gram Panchayat inter alia on persons exposing goods for sale in melas, markets and haats belonging to or under the control of the Gram Panchayat. The imposition and realisation of tax from persons holding markets in the area under the control of the Gram Panchayat is altogether a distinct thing other than the authority to issue licence for holding such melas, markets and haats. 17. In view of above, the petitioner does not derive any benefit out of Section 37(1)(e) of the Act. 18. It is well settled that for an exercise of power to be valid the same must be within the terms of the law conferring the power. If the power does not exist, the exercise of the same would be without basis and legally unsustainable. An order passed without an authority of law would neither create any right in favour of a party in whose favour the order is made nor would impose any obligation on the party against which the same has been passed. If the power does not exist, the exercise of the same would be without basis and legally unsustainable. An order passed without an authority of law would neither create any right in favour of a party in whose favour the order is made nor would impose any obligation on the party against which the same has been passed. An administrative authority, if exercises the power beyond the limits of the statute, the action will have to be held ultra vires and having no effect in law. 19. The plea of ultra vires in respect of an order passed without any authority of law was considered in the case of M.V.Janardhan Reddy Vs. Vijaya Bank and others, (2008) 7 SCC 738 , and it was stated thus :- “25....An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed.” 20. In the case at hand in the absence of any express power conferred upon the Gram Vikas Adhikari to issue licence to an person for holding a market or a weekly market without the support of any resolution of the Gram Panchayat, it is as clear as crystal that the licence/permission so granted by the Gram Vikas Adhikari was illegal and without jurisdiction. It therefore, in no way confered any valid right in favour of the petitioner to hold a weekly market for the sale and purchase of tractor and farm implements on his personal land. 21. Moreover, the permission/licence so granted had lapsed on 31.03.2019 and has not been renewed either by the Gram Vikas Adhikari or by any other competent authority. Therefore, the petitioner has no right subsisting to hold any market on the basis of the permission allegedly granted by the Gram Vikas Adhikari. 22. In view of the over all facts and circumstance of the case, we find no error or illegality in the order passed by the D.P.R.O. in rejecting the representation of the petitioner as a consequence to the direction of this court contained in the order dated 16.04.2019 passed in Writ-C No.13166 of 2019 and to cancel the permission for holding the weekly market granted by the Gram Vikas Adhikari. 23. 23. However, before parting we would like to mention that the order impugned has been passed on the legal advice given by the counsel. We may note that a peculiar practice has developed amongst Administrative Officers to pass orders solely on the basis of the legal advice which clearly shows that they try to avoid their responsibilities of taking decision of their own. This practice is simply abdication of duties and is highly deprecated. We expect that all administrative decisions should be taken by the Officers with their independent mind without any dictates from outside force may be keeping in mind any opinion by the expert in the field but it should not form the sole basis of the order. 24. In the over all facts and circumstance, we find no substance in the petition and accordingly we decline to exercise our extraordinary jurisdiction. 25. The writ petition is dismissed with no order as to costs.