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Gram Panchayat, Kundli and anr. Vs. the State of Haryana and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1223 of 1981
Judge
Reported inAIR1982P& H159
ActsConstitution of India - Article 226; Punjab Gram Panchayat Act, 1953 - Sections 26, 26(3) and 26(4); Punjab Excise Act, 1914; Code of Civil Procedure (CPC), 1908 - Sections 80
AppellantGram Panchayat, Kundli and anr.
RespondentThe State of Haryana and anr.
Cases ReferredGholian Khurd v. The Excise and Taxation Commr
Excerpt:
.....that intoxicating liquor may not be sold at any licensed shop within the local area of the gram panchayat. even if a copy of the resolution passed by the panchayat had been sent by the sarpanch or the gram sachiv, which was duly signed by the sarpanch and had the seal of the panchayat, and was duly received by the excise and taxation commissioner before 31st oct, yet another hyper-technical objection could well be raised on a strict reading of s. ..there fore, it could well be argued that it should be the resolution which should reach the excise and taxation officer before 31st oct, and not a copy of the same, i am endeavouring to discuss this point in this case so that in some other case the aforesaid objection may not be raised because to my mind the entire underlying object of..........for stopping the sale of intoxicating liquor at any licensed shop within the local area of the gram panchayat.2. in march, 1980, two liquor vends within the panchayat are of village kundli were auctioned by the state of haryana which started functioning on 1st april, 1980. the gram panchayat of kundli passed a unanimous resolution dated 3rd april, 1980 (annexure p-1) to the effect that the government has caused harm to the rights of the panchayat as also the residents of the village by opening the liquor vends. it was mentioned in the resolution that near the village there was factory area and the workers after taking liquor create nuisance and quarrel on the road side and create lawlessness which affects the students besides the residents of the village. by the resolution, the.....
Judgment:
ORDER

1. Gram Panchayat, Kundli Tahsil and district Sonepat, and its Sarpanch have come to this Court under Art. 226 of the Constitution of India seeking a writ of mandamus for stopping the sale of intoxicating liquor at any licensed shop within the local area of the Gram Panchayat.

2. In March, 1980, two liquor vends within the Panchayat are of village Kundli were auctioned by the State of Haryana which started functioning on 1st April, 1980. The Gram Panchayat of Kundli passed a unanimous resolution dated 3rd April, 1980 (annexure P-1) to the effect that the Government has caused harm to the rights of the Panchayat as also the residents of the village by opening the liquor vends. It was mentioned in the resolution that near the village there was factory area and the workers after taking liquor create nuisance and quarrel on the road side and create lawlessness which affects the students besides the residents of the village. By the resolution, the opening of the vends was opposed and it was decided to request the Government to close the same immediately. In nutshell, the resolution was that the Panchayat did not want any liquor vend within the Panchayat area. Copies of this resolution were sent by the Gram Panchayat, through their Advocate Shri J. S. Malik, by registered A. D. Post, along with a forwarding letter dated 30th April, 1980, to the following four authorities:--

1. The Excise and Taxation Commissioner, Haryana, Chandigarh.

2. The Minister, Excises and Taxation, Haryana, Chandigarh.

3. The Secretary, Excise and Taxation Department, Haryana, Chandigarh, and

4. The Director, Gram Panchayats, Haryana, Chandigarh.

A copy of the forwarding letter is annexure P. 2 which was receive by all the four aforesaid authorities on 5th May, 1980, as is clear from the original A. D. receipts filed as annexures P-3 to P-6. The resolution annexure P-1 was passed in pursuance of S. 26 of the Punjab Gram Panchayat Act, 1953, as amended by the State of Haryana, which was in force at the time of the passing of the resolution. S. 26 ibid, which was in force on 3rd April, 1980, read as under:--

'26. (1) A Gram Panchayat may, by vote of at least two-thirds majority of Panches, direct that intoxicating liquor may not be sold at any licensed shop within the local area of the Gram Panchayat.

(2) When a resolution has been passed under sub-section (1) above, it shall take effect from the 1st day of April of the year next after such resolution.

(3) Notwithstanding anything contained in the Punjab Excise Act, 1914, or any other Act for the time being in force and the rules made thereunder with regard to the powers and functions of the Collector under the said Act, such a resolution will be binding upon the excise and Taxation Commissioner: Provided that if the Excise and Taxation Commissioner is of the opinion for reasons to be recorded in writing that within such local area illicit distillation or smuggling of alcohol has been carried on or connived at, within two years preceding the date of the passing of such resolution, in such local area, such resolution shall not be binding upon him, unless the government orders that it shall be so binding.'

The aforesaid provision was interpreted by D. Ss. Tewatia, J., in Gram Panchayat, Oon v. Excise and Taxation Commissioner, Haryana, 1974 Pun LJ 360. There two resolutions were passed by the Gram Panchayat, one on 6th march, 1974, and the other on 20thMarch, 1974, to enforce prohibition in the Panchayat area and it was held that those two resolutions would take effect from 1st April, 1974 and, therefore, the State Government could not auction any vend in the Panchayat area for the year Ist of April 1974 to 31st of March, 1975. According to the aforesaid decision, the resolution passed in the present case dated 3rd April, 1980, would have taken effect from Ist April, 1981, and, therefore, the State Government could not auction any liquor vends for the year 1st April, 1981 to 31st March, 1982. It is worthwhile to notice that the decision of Tewatia, J., was doubted and the matter was considered by a Division Bench in S. A. No. 1096 of 1980--Hawa Singh v. State of Haryana, decided on 24th March, 1981.* and it was held that if resolution for prohibition is passed up to 31st December of a year, that resolution would take effect from Ist April of the following year and on this reasoning the decision of Tewatia, J., was overruled. The fact remains that on the facts of this case, under any of the two views, according to the aforequoted provisions of S. 26, the resolution passed by the Gram Panchayat on 3rd April, 1980, would have become applicable w. e. f. 1st, April, 1981, and the prohibition policy in the Panchayat are had to commence from that date and no earlier date.

3. The Haryana Legislature made amendment in sub-sections (1) and (2) of S. 26 of the principal Act by the Haryana Act 8 of 1980, which was published in the Government Gazette on 11th April, 1980. The amended sub-sections (1) and (2) are as under:--

'26(1) A Gram Panchayat may, at any time, during the period commencing on the 1st day of April and ending with the 30th day of September of any year, by resolution passed by majority of panches holding office for the time being, direct that intoxicating liquor may not be sold at any licensed shop within the local area of the Gram Panchayat.

(2) When a resolution has been passed under sub-section (1) and is received in the office of the Excise and Taxation Commissioner, Haryana, on or before the 31st day of October, it shall take effect from the 1st day of April of the year next after such resolution.'

According to the aforesaid provision, if a resolution was passed by a Gram Panchayat by majority during the period commencing on 1st day of April and ending with 30th day of September of any year directing that intoxicating liquor may not be sold on any licensed shop within the local area of the Gram Panchayat and if such a resolution is received in the office of the Excise and Taxation Commissioner. Haryana on, or before the 31st day of October, it shall take effect from the first day of April of the year next after such resolution. Therefore, applying the aforesaid amended provision to the present case, it is evident that the resolution passed on 3rd April, 1980, was not only conveyed to the Excise and Taxation Commissioner Haryana, on 5th May, 1980, but to three more authorities also. therefore, there was due compliance of sub-sections (1) and (2) of S. 26 as amended by the Haryana Act No. 8 of 1980. Accordingly, the resolution had to take effect from 1st April, 1981, and, therefore, the Excise and Taxation Commissioner, Haryana, or the State Government through the Excise and Taxation Department could not auction any liquor vend within the local area of Gram Panchayat, Kundli. In spite of the situation being the same under S. 26 before or after the Haryana Act No. 8 of 1980, on the facts of the present case two liquor vends were auctioned in the local vends were auctioned in the local area of Gram Panchayat, Kundli, in the end of March, 1981. When the Gram panchayat came to know of it, the present writ petition was filed on 28th March, 1981, challenging the same and to have the sale of intoxicating liquor stopped within the local area of the Panchayat.

4. Reply has been filed by the Excise and Taxation Commissioner, Haryana. Therein it is admitted that Shri J. S. Malik, Advocate, did send the letter dated 30th April, 1980, annexing thereto an unauthenticated copy of the resolution of Gram Panchayat, Kundli, alleged to have been passed on 3rd April, 1980, for the closure of the liquor vends. However, it was pleaded that no copy of the resolution was received from Gram Panchayat, Kundli, or from the Gram Sachiv concerned and reliance has been placed on S. 16 of the Act wherein the duties of Gram Sachiv have been defined as follows :--

'16. Duties of Gram Sachiv.--It shall be the duty of the Gram Sachiv to-

(a) maintain accounts, record and other property of the Gram Sabha and the Gram Panchayat under the general supervision of the Sarpanch and to assist the Gram Panchayat in the discharge of its duties and functions under this Act or under any other law for the time being in force.

(b) Carry out the resolution of the Gram Panchayat :

(c) omitted by Haryana Act. 16 of 1973:

(d) perform such other duties and function as may be prescribed.'

According to the stand of the Excise and Taxation Commissioner, if the Gram Sachiv or the Sarpanch had sent a copy of the resolution of the Panchayat duly certified with the common seal of the Gram Panchayat on or before 31st October, 1980, as required by amended sub-section (2) of S. 26 of the Act. then the matter would have been different, otherwise the answering respondent was justified in auctioning the liquor vends in the village for the year 1981-82. It has further been highlighted in the written statement that the copy of the resolution attached with the letter of Shri. J. S. Malik, Advocate, neither bore the common seal of Gram Panchayat, Kundli nor was it certified to be a true copy of the original either by the Gram Sachiv or the Sarpanch and, therefore, such a copy of the resolution did not call for any action and accordingly it was consigned to record. It was then pleaded that according to Rule 7 (ii) of the Gram Panchayat Rules, 1965, the record of the proceedings of a Gram Panchayat are to be signed by the Sarpanch and all other Panches attending the meeting of the Panchayat and a copy of the resolution annexed with the petition as P-1 does not indicate if the alleged resolution was actually signed in accordance with the aforesaid provision. If it was so signed, then annexure P-1 is not a true copy of the original and if it was not so signed then the resolution has not been passed in accordance with law.

5. As the law stood, when the resolution was passed on 3rd April, 1980. a decision had to be taken by the Gram Panchayat by two-thirds majority of the Panches to direct that intoxicating liquor may not be sold at any licensed shop within the local area of the Gram Panchayat. Such a resolution was duly passed and the result of it would have been according to the law as applicable at that time, that the Excise and Taxation Commissioner could not auction any liquor vend w. e. f. 1st April, 1981, as no sale of intoxicating liquor could take place in the local area of Gram Panchayat, Kundli, from that date. it appears that to obviate the difficulty caused by the decision of D. S. Tewatia, J., in Gram Panchayat Oon's case (supra), sub-sections (1) and (2) of S. 26 were amended because, according to that decision, even if the resolution was passed by the Panchayat on 31st March, for enforcing prohibition, the same would have become effective from the following day, namely 1st of April. It cannot be lost sight of that the policies and the budget of the State are made before 1st April and accordingly provision is made in the budget as to how the revenue is to be collected.

Keeping that in view, the liquor vends, which also contribute towards the revenue of the State, are generally auctioned towards the end of March which start functioning from 1st April. Therefore, in such a situation if the resolution passed by the Gram Panchayat on 31st of March were to become effective from 1st of April, without knowledge of from State Government in the Excise and Taxation Department, that was likely to cause material difference in the revenue of the State so as to upset their programmes. Although that view was overruled by the Division Bench in Hawa Singh's case (supra) and according to the Division Bench of the resolution had been passed on 31st of December, then there was clear three months' time for the Government to prepare is budget keeping in view the resolution passed by the Panchayat. But by the amendments made by the Haryana Act No. 8 of 1980, the Government has enlarged the minimum period to five months because even if a resolution is passed up to 30th Sept. unless the same is received by the Excise and Taxation Commissioner by 31st Oct, it shall not become effective from 1st day of April of the ensuing year. Therefore, the minimum period for the Government to consider the matter in the light of the resolution passed by the Gram Panchayat would be from 1st of November till the end of March of the ensuing year. In spite of the aforesaid amendment, what I find is that the Excise and Taxation Commissioner has thrown to the winds the provision made in sub-secs. (1) and (2) of S. 26 made by the Legislature by not giving effect to the resolution passed on 3rd of April, 1980, a copy of which was admittedly received by him on 5th of May, 1980. The sole purpose of S. 26 is to carry out the Directive Principle of Prohibition enshrined in Art. 47 of the Constitution of India. As the law stood before the Haryana Act. No. 8 of 1980, only the passing of the resolution before the end of the year was necessary and that would have taken effect from the following 1st of April and there was no provision that the resolution must be conveyed to the Excise and Taxation Commissioner before the end of the year. To obviate that eventuality also, a specific provision was made in sub-section (2) in the amended Act, besides giving clear five months' notice to the Excise and Taxation Commissioner of the prohibition policy adopted by the Panchayat. The provision contained in sub-s. (2) is being misconstrued by the Excise and Taxation Commissioner because the whole purpose was to give information of a resolution of the Panchayat so that the same could be given effect to with effect from 1st of April of the ensuing year. It is admitted by the Excise and Taxation Commissioner that the letter of Shri J. S. Malik, Advocate, was duly received by him along with an unattested copy of the resolution. A reading of annexure P-2 shows that it was resolution dated 3rd of April, 1980 passed under S. 26 of the Act, the two liquor vends be closed and intoxicating liquor may not be sold within the local area of the Gram Panchayat and it was a specifically stated that a copy of the resolution was attached. A reading of the resolution (copy annexure P-1) clearly goes to show that a unanimous decision was taken by the Panchayat directing that intoxicating liquor may not be sold at any licensed shop within the local area of the Gram Panchayat. The counsel for the Panchayat produced the original resolution book containing the resolution in dispute which was signed by the Sarpanch and six members of the Panchayat and the seventh member of the Panchayat was absent. The same was seen by the counsel for the Excise and Taxation Commissioner and he could not point out any infirmity therein.

6. This brings me to the consideration of the hyper-technical objection raised on behalf of the Excise and Taxation Commissioner to the effect that the copy of the resolution which was sent with letter annexure P-2 could be ignored by him and was filed as the same was not sent to him by the Sarpanch or the Gram Sachiv and that it was without the seal of the Gram Panchayat and the signatures of the Sarpanch. I do not find any merit whatsoever in this objection. As already observed above, the sole purpose of passing a resolution by a Panchayat is to take a decision to enforce prohibition within its local area and to give information of the same to the Excise and Taxation Commissioner so that he may proceed accordingly. S. 80 of the Code of Civil Procedure provides for giving of a notice before a suit is to be, filed against the State or an officer of the State. The notice can be issued by the party himself but it has been seen that generally it is issued through a counsel. To ensure that the notice is received by the Excise and Taxation Commissioner, in the present case, it was sent through Shri J. S. Malik, Advocate, and it was stated in the notice that the Panchayat has unanimously resolved to enforce the prohibition policy and requested for the closure of the liquor vends. Along with the notice, and uncertified copy of the resolution was sent. To my mind, it would have been due compliance of the provisions of S. 26 of the act if the Excise and Taxation Commissioner had enquired into the matter whether such a resolution has been passed by the Panchayat instead of filing the same without taking any action thereon. Let us try to analyse the stand taken by the Excise and Taxation Commissioner and take it to a logical end. If a copy of the resolution is duly received by the Excise and Taxation Commissioner before 31st October, which copy is duly signed by the Sarpanch and bears the seal of the Panchayat concerned and is sent under the signatures of the Sarpanch or the Gram Sachiv, containing a decision that intoxicating liquor may not be sold within the local area of the Gram Panchayat concerned, would the Excise and Taxation Commissioner blindly accept that copy of the resolution without finding whether it was really passed by the Gram Panchayat, for it may be a fabricated document To my mind. even in such a case it would be in the fitness of things that he should make an enquiry and find out whether the Panchayat has really passed the resolution because if it is found that no such resolution was passed then necessarily that would be a forged document. Therefore, in either eventuality, it will be the duty of the Excise and Taxation Officer to find out whether the Panchayat has really decided to enforce prohibition in its local area and if he comes to the conclusion that such a resolution was passed then it must be given effect to subject to the provisions of sub-secs. (3) and (4) of Section 26 of the Act.

7. To my mind, the matter may not rest here. Even if a copy of the resolution passed by the Panchayat had been sent by the Sarpanch or the Gram Sachiv, which was duly signed by the Sarpanch and had the seal of the Panchayat, and was duly received by the Excise and Taxation Commissioner before 31st Oct, yet another hyper-technical objection could well be raised on a strict reading of S. 26(3) of the Act because it does not talk of sending of a copy of the resolution but says that when a resolution has been passed and is received in the office of the Excise and Taxation Commissioner.......... There fore, It could well be argued that it should be the resolution which should reach the Excise and Taxation Officer before 31st Oct, and not a copy of the same, I am endeavouring to discuss this point in this case so that in some other case the aforesaid objection may not be raised because to my mind the entire underlying object of S. 26 is that if a Panchayat takes a decision to prohibit sale of intoxicating liquor within its local area and information of the same is sent to the Excise and Taxation Commissioner before 31st Oct, then it would become the duty of the Excise and Taxation Commissioner to enquire into the matter. According to the provision made in the amended S. 26(1), every year a given Panchayat will have to pass a resolution between 1st day of April and 30th day of September and to convey information of the same on or before 31st day of October so that from the ensuing 1st of April no liquor vend is opened in the local area of that Panchayat. Accordingly, the objection raised by the Excise and Taxation Commissioner is overruled and it is held that due information of the resolution dated 3rd April, 1980, to stop the sale of intoxicating liquor was duly conveyed to the Excise and Taxation Commissioner on 5th May, 1980, in pursuance of which he could not auction the liquor vends to function within the local area of Gram Panchayat, Kundli, w. e. f. 1st April, 1981, and the action of the Excise and Taxation Commissioner to the contrary is clearly against the provisions of S. 26 of the Act and is struck down.

8. It is well know but deserves to be highlighted that Advocates profession is an honourble profession and as such every Advocate deserves to be given due respect. The letter of Shri J. S. Malik, Advocate, sent along with the unattested copy of the Panchayat's resolution dated 3rd April, 1980, which was duly received by the Excise and Taxation Commissioner on 5th May, 1980, should have engaged his attention to find out if really the Panchayat had passed the resolution to enforce prohibition in its local area. It cannot be disputed that the Gram Panchayats are local Government for their respective Panchayat areas, just like municipalities for their respective limits. These are wings of the State Government and come under the Panchayat or Local Government Departments. It pains to notice that the letter and the resolution were filed unceremoniously and the law made by the Legislature in pursuance of the Directive Principle of enforcing prohibition, contained in the Constitution of India, was thrown to the winds.

9. In Gram Panchayat Mehtabgarh v. State of Punjab. 1973 Punj LJ 619 : (AIR 1974 Punj 89) and Gram Panchayat, Gholian Khurd v. The Excise and Taxation Commr, Punjab, 1975 Punj LJ 21, while quashing the action of the Excise and Taxation Commissioner in auctioning the liquor vends, thirty days' time was given by Sharma, J. and Tewatia, J., respectively in the aforesaid cases, to the State for closure of the vends. A reading of the facts of the aforesaid cases shows that the Panchayat concerned had passed a resolution in the month of March for enforcing prohibition with effect from 1st April of that very year. But, in the present case, I find that the resolution was passed on 3rd April, 1980, the information of which was received by the Excise and Taxation Commissioner on 5th May, 1980, which had to take effect from 1st April, 1981. Therefore, on the facts of the present case. I do not find any sufficient ground to grant even a single day's time for enforcing prohibition. Accordingly, this writ petition is allowed with costs and a writ of mandamus is issued to the respondents to stop the sale of intoxicating liquor in the liquor vends auctioned within the local area of Gram Panchayat, Kundli. Tahsil and District Sonepat, forthwith, Counsel's fee Rs. 200/-.

10. Petition allowed.


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