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Ashola Fatehpur Beri Co-operative Labour and Construction Society Ltd. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 1409 of 1973
Judge
Reported inAIR1975Delhi4
ActsDelhi Land Reform Rules, 1954 - Rule 47-A; Constitution of India - Articles 19(1) and 226
AppellantAshola Fatehpur Beri Co-operative Labour and Construction Society Ltd.
RespondentUnion of India and ors.
Appellant Advocate Chitle, Sr. Adv. and; A.C. Gambhir, Adv
Respondent Advocate P.N. Tewari and ; S.S. Dalal, Advs.
Excerpt:
a) the case debated on the requirement of sanction in the lease of land by the gaon panchayat - it was held that sanction should precede the auction and should not follow the acceptance of one of the bids simultaneously b) the case debated on whether the order involving the disputed questions of fact, could be interfered with by the high court - it was held that, if there was a disputed question of fact between the parties to a writ petition which could not be decided without taking oral evidence, then the high court would not entertain the writ petition but would leave the petitioner for his remedy c) the case debated on the construction of resolutions of gram panchayat - it was held that it must be liberal and not literal d) the case debated on the validity of administrative orders,..........7. certain waste land in village ashola vests in the gaon sabha ashola, which is managed by the gaon panchayat, ashola, respondent no. 7. minor minerals like stone and sand can be quarried from this land. under section 160 of the delhi land reforms act 1954, the chief commissioner may issue such orders and directions to the gaon sabha or the gaon panchayat as may appear to be necessary for purposes of the said act and it shall be the duty of the gaon sabha or the gaon panchayat to carry out such orders and comply with such directions. in exercise of this power, the lt. governor, delhi, issued the following direction on 13th august, 1970:-'i direct all gaon sabhas/gaon panchayats not to allot or auction land without the written consent of the deputy commissioner, delhi, who shall give.....
Judgment:
ORDER

1. The background of law and facts leading to the filing of this writ petition may be first stated so that the questions arising for decision may be properly appreciated. Under Section 154 of the Delhi Land Reforms Act, 1954, all lands other than lands comprised in any holding or grove vest in the Gaon Sabha under the Mines and Minerals (Regulation and Development) Act, 1957. However, prospecting or mining operations have to be under a license or a lease in respect of the minerals. Under Section 3(e) of the Mines and Minerals (Regulation and Development) Act. 1957, building stones, gravel and sand are 'minor minerals'. According to the Delhi Minor Minerals Rules, 1969, made under the said Act, an application for grant of a permit to quarry minerals has to be made to the Collector who may grant or refuse the permit for the same under Rule 7. Certain waste land in village Ashola vests in the Gaon Sabha Ashola, which is managed by the Gaon Panchayat, Ashola, respondent No. 7. Minor minerals like stone and sand can be quarried from this land. Under Section 160 of the Delhi Land Reforms Act 1954, the Chief Commissioner may issue such orders and directions to the Gaon Sabha or the Gaon Panchayat as may appear to be necessary for purposes of the said Act and it shall be the duty of the Gaon Sabha or the Gaon Panchayat to carry out such orders and comply with such directions. In exercise of this Power, the Lt. Governor, Delhi, issued the following direction on 13th August, 1970:-

'I direct all Gaon Sabhas/Gaon Panchayats not to allot or auction land without the written consent of the Deputy Commissioner, Delhi, who shall give consent after satisfying himself that the provisions and principles of the aforesaid Act have been complied with.'

2. On 27-9-1971, a meeting of the Gaon Panchayat Ashola, took place and revsold that permission should be sought from the relevant authority of the Delhi Administration for leasing out by auction a large area of waste land for one year for quarrying stone and sand. The resolution was forwarded to the Assistant Development Commissioner who sent it to the Deputy Commissioner, Delhi, vide his letter dated 24-11-1971. The Deputy Commissioner, Delhi, accorded his permission for granting the lease of the land for extraction of sand and stone vide his letter dated 28-8-1972 which stated that the Panchayat may be permitted to auction the leasehold rights of hilly land amongst the Co-operative Societies. Rule 47-A of the Delhi Land Reforms Rules, 1954, seems to lay down the procedure for leases of land for purposes other than agricultural. Though it refers to Sections 23 and 75 of the Act, none of which is relevant for the auction of waste land vested in the Gaon Sabha for the purposes of quarrying stone and sand the rules, seem to apply to leases by the Gaon Panchayat of waste land for the purposes of quarrying minor minerals. As per the rule the Gaon Panchayat advertised the auction and fixed 27-9-1972 as the date for holding the auction. What happened at the auction is the subject of some dispute. On one hand is the resolution passed by the Gaon Panchayat on 27-9-72 which stated that the right to quarry was to be auctioned but after discussion among the Federation and other Co-operative Societies, none of the Societies was ready to bid for the said right for more than Rs. 20 or Rs. 25 per bigha. As this could have resulted in loss to the Panchayat, after taking the advice of the Secretary of the Panchayat, the proceeding of the bidding of that day was advised to be cancelled and it was decided to cancel the proceedings of action on that day and to take the necessary steps about it in future. The Gaon Panchayat then met on 3-10-72 and after referring to the meeting of 27-9-1972 resolved that the lease of land measuring 526 bighas and 17 bids was be given for three years for the purpose of extraction of sand to the petitioner at the rate of Rs. 50 per bigha per year and requested the Development Commissioner to grant permission in this regard. According to respondents 1 to 6, namely, Union of India, the Delhi Administration and the concerned authorities, these resolutions of the Gaon Panchayat show that actually no auction was held on 27-9-1972 and that the resolution to grant lease to the petitioner was passed on 3-10-1972 without holding an auction.

3. On the other hand, the petitioner has made a specific averment in the petition that auction was held on 27-9-1972 in which the petitioner offered the highest bid of Rs. 50 per bigha per year. This allegation was denied by a counter affidavit filed by Shri Dharam Dutt, who was not the Assistant Development Commissioner, on the relevant dates, and has, thereforee, no personal knowledge as to whether the auction took place or not. He relies only on the language of the resolutions of the Gaon Panchayat and the records of the Government. On the other hand, in a rejoinder, the petitioner has specifically stated that when it gave the highest bid on 27-9-1972. it was asked to make the offer in writing and 3-10-1972 was fixed for consideration of the matter. thereforee, on 3-10-1972 the offer in writing was made and it was accepted by the Gaon Panchayat which included the Secretary of the Panchayat Shri Kailash Chand a government servant who had been appointed by the Deputy Director (Panchayats) and was representative of the Delhi Administration. The resolution of 3-10-1972 has been signed by the Pradhan and the members of the Gaon Panchayat including Shri Desh Rai. The said Pradhan, Shri Mir Singh, and the member, Shri Desh Rai, who is now the Up-pradhan of the Gaon Panchayat from 1st January 1973 and has personal knowledge of resolutions passed on 27-9-1972 and 3-10-1972, have filed affidavits supporting the version of the petitioner about the happening on those dates.

4. On 17-12-1972 the election of Pradhan and Up-Pradhan and members of the Gaon Panchayat took place and in place of Mir Singh. Shri Ram Pat was elected as the new Pradhan of the Gaon Panchayat. Under Rule 6 of the Delhi Panchayat Rules, however, the term of the office of Pradhan, Up-Pradhan and the members of the Gaon Panchayat shall be three years from the dates of their respective elections or if the Chief Commissioner so declares by notification in the Official Gazette for such longer term not proceeding 5 years. The petitioner and Mir Singh have both asserted that the term of the office of Mir Singh enended by 15th January 1973, when he handed ever charge to the new Pradhan Shri Ram Pat. During the arguments I asked the learned counsel for the respondents to let me know the date on which Mir Singh had been elected as Pradhan. The learned counsel even after enquiry could met give the date of the election but had the information that the term of office of the Pradhan of Gaon Panchayat and members preceding the terms of Mir Singh and his team of members had lasted till the end of December 1969. If so, the term of office of Mir Singh and his team of members under Rule 6 lasted up to the end of December 1972.

5. On 24-12-1972 a meeting of the Gaon Panchayat took place and referred to the sanction which bad been asked for from the Deputy Commissioner for extraction of 'bajri' from the hilly land. As no information had been received till then and the Panchayat was suffering loss due to the non-utilisation of the resources and as the petitioner Society consisted of backward class of People whose livelihood depended upon the extraction of 'bajri' from the hilly land, the letter from the office of the Deputy Commissioner dated 28-8-1972 referred to above which had given permission for the auction of the land for extraction of 'bajri' etc., was treated as the permission required under the directions issued by the Lieutenant Governor and it was resolved that lease should be executed in favor of the petitioner. Accordingly, part payment of lease money was made on 27-12-1972 when lease was executed on 27-12-1972 and full payment was made on 29-12-1972. The petitioner also made an application to the Collector under the Minor Minerals (Concession) Rules for the grant of permit for extraction of 'bajri'. On 3-9-1973, however, the then Assistant Development Commissioner Sukh Rai Bahadur wrote a letter to the Block Development Officer that the lease granted by the Gaon Sabha to the petitioner was illegal as it was (i) without public auction, and (ii) without prior sanction of the Deputy Commissioner. The Gaon Sabha was to be informed accordingly. This order has been impugned in the Present writ petition as being illegal.

6. The questions for decision, thereforee, are (i) whether the lease executed by the Respondent No. 17 in favor of the petitioner for extraction of 'bajri' from the waste land of Respondent No. 7 is according to law: (ii) If so, what relief should be granted to the petitioner ?.

Question No. 1:-

Only two reasons are given in the impugned order as to why the lease was held to be illegal, namely, (i) not holding of public auction and (ii) not having obtained the prior sanction of the Deputy Commissioner.

Public Auction.

7. The necessity of holding the public auction for the grant of lease of land for purposes other than agricultural is undoubtedly in view of R. 47-A. The manner in which the auction is to be conducted is also laid down in the Rules. The question whether auction was held is initially one of fact. The usual practice of this Court is that if there is a disputed question of fact between the parties, to a writ petition which cannot be decided without taking oral evidence then this Court will not entertain the writ petition but leave the petitioner for his remedy by way of a suit. Is there a disputed question of fact in this case The answer is two-fo1d. On the one hand is the conflict between the version of the petitioner, Mir Singh and Desh Rai on the one hand, and of the Government and the new Pradhan Ram Pat on the other hand. This conflict is not however, real. For the petitioner Mir Singh and Desh Rai had personal knowledge of the auction. The Assistant Development officer, Dharam Dutt who had signed the counter affidavit of the Government and the new Pradhan, Ram Pat have no such personal knowledge. The former version is, thereforee, alone entitled to credence on the other hand the resolutions passed on 27-9-1972 and 3-10-1972 did not expressly say that an offer was made by the petitioner on 27-9-1972 for Rs. 50/- per bigha, and that it was this offer which was accepted on 3-10-1972. The learned counsel for the respondents laid stress on the word 'rad' used in the resolution of 27-9-1972. On the other hand the learned counsel for the petitioner laid stress on the word 'Sthagit' used in the resolution of 3-10-1972. What is an auction? It consists of offers made by bidders the highest of which may or may not be accepted. The resolution of 27-4-1972 says that bids on 27-9-1972 did not exceed the rate of Rs. 20/- or Rs. 25/- per bigha. This could be ascertained only because some such offers had been made. If no offer had been made then the resolution would not have referred to the fact that the Federation and the Societies were not ready to offer a rate higher than Rs. 20/-or Rs. 25/- per bigha. It is true that these offers were not recorded and were not signed by the bidders as required by Rule 47-A. Similarly, there was no reserve Twice fixed by the Panchayat as required by the Rule. Lastly, the 1/4th amount of the bid was not deposited on the spot as required by the rule. If these requirements of the Rule are taken to be mandatory then the auction was vitiated by these irregularities or illegalities. But this is not the stand taken in the impugned order. The order says that no public auction at all was held. In view of this stand in the impugned order the respondents cannot now take the position that an auction was held but it was not in accordance with the strict requirements of Rule 47-A. In the total absence of any personal knowledge on the side of the Government and the new Pradhan, the version of the petitioner and Mir Singh and Desh Rai has to be accepted and, further the language of the resolutions of 27-9-1972 and 3-10-1972 has was also to be understood in the way in which it was understood by the petitioner Mir Singh and Desh Rai. The resolutions were drafted by Mir Singh. Mir Singh and the petitioner were vitally interested in them. It is significant that while on 27-9-1972 the word 'Rad' was used on 3-10-1972 the word 'Sthagit' was used in relation to the auction on 27-9-1972. The parties are villagers. The rural democracy has newly started functioning in India. The acts of* the Panchayat have to be construed in a sympathetic manner with regard to the substance and not to their form. The question thereforee is whether in substance an auction was held on 27-9-1972. In my view there can be no doubt that such an auction was held. It is true that the bids were low and were not thereforee accepted on that date. It is, also true that very soon after that the bid of the petitioner which was for double the rate offered on 27-9-1972 was accepected on 3-10-1972. The question is whether the meeting on 3-10-1972 was a continuation of the meeting on 27-9-1972. On the one hand, the resolution of 27-9-1972 does not fix the date of the next meeting to be 3-10-1972. On the other hand, the said resolution definitely says that the matter would be considered again. The petitioner is not the author of the resolutions. It has sworn an affidavit that it had made an offer on 27-9-1972 but was asked to put it in writing and this it did on 3-10-1972. This may be a reason why the resolution of 27-91972 did not mention the offer of the petitioner of Rs. 50/- per bigha. It is only because the petitioner, Mir Singh and Desh Rai alone have the personal knowledge of what happened that I am constrained to construe the language of the resolutions in their favor. There is no rebuttal at all on the side of the Government. I hold thereforee that the auction held on 27-9-1972 was on1y suspended and postponed and that the acceptance of the bid of the petitioner on 3-10-1972 was a continuation of the same auction. The offer made by the petitioner is very attractive. There is absolutely no suggestion that any other Co-operative Society was willing to give a better offer, The other offers were half or less than half the offer of the petitioner. The question has to be considered from the view point of the welfare of the Gaon Panchayat. The control vested in the Government in only to see that public interest does not suffer. There is not only no suggestion that public interest suffers by the acceptance of the bid of the petitioner but, on the other hand, it is clear on the record that public interest was greatly served by the acceptance of the offer of the petitioner as the said offer was for double the rate of the other offers.

8. This is the way in which the Executive Councillor, Krishan Sarup considered the matter when the resolution passed by the Panchayat on 3-10-1972 was considered by him. He also took the view that as against the other offers of Rs. 20/- to Rs. 25/- Per bigha the offer by the petitioner of Rs. 50/- Per bigha should be immediately accepted. The minutes signed by him on 4-12-1972 were marked to the Deputy Commissioner and were seen by the Deputy Commissioner Additional District Magistrate and the Officer on Special Duty who were all the officers concerned with the subject. According to Rule 47-A (2) (b) the auction had to be attended by a representative of the Director of Panchayats. Shri Kailash Chand who is the Secretary of the Panchayat, is a Government servant belonging to the Department of Panchayats. He could be regarded as the representative of the Director of Panchayats. He has signed the resolutions and there by confirmed that the bid of the petitioner was properly accepted. The petitioner is, thereforee, on good ground to say that not only the auction was held but the authorities also approved of it. The authorities did not take a technical view of the requirements of the auction. The first ground urged in the impugned order does not. thereforee stand scrutiny.

Prior Sanction

9. Rule 47-A does not require any prior sanction. The only safeguard of the public interest therein is that a lease could be given only by an auction. Another safeguard was imposed by the Lieutenant Governor in his directive dated 13-8-1970 directing Panchayats not to auction land without the written consent of the Deputy Commissioner, who shall give consent after satisfying himself that the provisions and principles of the Act have been complied with. The consent has to be given to the Panchayat to auction the land. The impugned order says that Prior sanction of the Deputy Commissioner was necessary. The admitted case of the Government thereforee is that the sanction has to precede the auction. Learned counsel for the respondents, however. Pointed out that the Deputy Commissioner had to be satisfied that the provisions and the Principles of the Act had been complied with. They say, that the Deputy Commissioner could be so satisfied only after the auction had been held. I quite appreciate that auction is a process starting with the bids and ending in the acceptance of one of the bids. The sanction of the Deputy Commissioner has thereforee to precede the bids and not to follow the acceptance of one of the bids. The language of the Directive issued by the Lieutenant Governor is consistent only with the view that the sanction has to precede the bid. It is not consistent with the view that it has to follow the acceptance of one of the, bids. For, the Directive was that the Panchayat was not to auction the land without the written consent of the Deputy Commissioner. This does not fit in with the saving that the consent of the Deputy Commissioner was to be given after the bid was accepted by the Panchayat. The impugned order thereforee rightly uses the expression 'Prior consent'. I hold thereforee that the consent of the Deputy Commissioner had to be given before the auction was held.

10. The consent dated 28-8-1972 is precisely such a consent it refers to the letter of the Assistant Development Commissioner dated 24-11-1971 which itself was written in response to the request of the Panchayat for permission to auction the land. It specifically says that the Panchayat may be directed to auction the lease-hold rights among the Cooperative Societies. This is the final is safeguard imposed by the Government to see that the public interest is protected. The Deputy Commissioner has imposed the condition that the auction shall be in favor of the Co-operative Societies only. This is a big safeguard and a very rigorous condition it eliminates anyone else except Co-operative Societies. The Deputy Commissioner could not say anything more. Rule 47-A (2) (d) says that where no objections are filed to the auction or objections are filed and are disallowed, the auction shall be confirmed. There is nothing in Rule 47-A saving that auction shall not be confirmed without a subsequent sanction of the Deputy Commissioner. I find thereforee that only a prior sanction was necessary and this was given and auction held after such a prior sanction had to be confirmed automatically in the absence of objections. There were no objections and the Panchayat was thereforee bound to confirm the auction as it did. The contention of the Government in this respect is also not well founded.

11. The land belongs to the Panchayat and they have a right to grant the lease of it subject to the condition that the lease must be granted by any auction with the prior sanction of the Deputy Commissioner to a Co-operative Society. The imposition of these conditions on the exercise of the right of the Panchayat is a reasonable restriction on the fundamental right of the Panchayat guaranteed by Article 19(1)(f) of the Constitution. In the present case such conditions have been held to have been satisfied. If the Government had any doubt as to whether these conditions had been satisfied the Government should have given an opportunity to the Panchayat and to the petitioner to show that an auction was actually held with the prior sanction of the Deputy Commissioner. The law has now advanced to the position that even an administrative action which would have civil consequences adverse to the interests of a person should not be taken without hearing such a person. Such a hearing would not be necessary if no legal right of a person is affected and the Government is acting in exercise of its own legal rights or privilege. In the present case it is the fundamental right of the Panchayat which was in question. The petitioner had paid a large sum of money and had acquired a lease of the land. The petitioner also thereforee had a fundamental right in the property guaranteed by Article 19(1)(f). The impugned order seriously prejudiced the fundamental rights of the Panchayat and the petitioner involving huge monetary losses to both of them. This was thereforee pre-eminently a case in which the Government should not have acted without giving an opportunity to the Panchayat and the petitioner to show cause why the lease granted by the Panchayat to the petitioner should not be held to be illegal. This is thereforee another reason why the impugned order was bad.

12. The conclusion on Question No. 1 thereforee is that a public auction was held with the prior sanction of the Deputy Commissioner. How is it then that the Panchayat again thought that the sanction of the Deputy Commissioner was needed even after the bid of the petitioner was accepted? The Panchayat could not be expected to know all the rules governing the subject. A Part from Rule 47-A there are Rules 176, 179 and 180 of the Delhi Panchayat Rules. R. 176 requires that Gaon Panchayat shall not transfer otherwise than by way of lease any immovable property except with the previous approval of the Chief Commissioner or the Deputy Commissioner, as the case may be. This rule does not apply to a lease but could have been in the mind of a layman like the Panchayat. Rule 179 merely requires that the lease should be made by auction it does not lay down the procedure of the auction as is done in Rule 47-A of the Delhi Land Reforms Rules. Rule 180 of the Panchayat Rules says that when these rules require a previous approval of the Deputy Commissioner the fact of the said approval shall be recorded in the instrument of transfer. The Delhi Panchayat Rules seem to apply to all lands. Rule 47-A of the Land Reforms Rules applies only to nonagricultural land and is a specific rule. It prevails over the general rules. It was not necessary thereforee that the fact of the approval should be mentioned in the lease deed inasmuch as Rule 180 refers to the requirement of a previous approval under the Panchayat Rules with which we are not concerned. But the duplication of these rules could have confused the Panchayat and it may have waited for the further permission of the Deputy Commissioner. By 24-12-1972, however, the Panchayat realised that the Prio2 sanction of the Deputy Commissioner which had already been given was all that was required. It thereforee rightly went ahead with the completion of the lease. The non-deposit of the 1/4th money on the spot by the Petitioner was not regarded as a mandatory requirement by the Government as is apparent from the impugned order. We cannot thereforee now regard it as a vitiating factor. I thereforee, answer Question No. 1 in the affirmative and in favor of the Petitioner.

Question NO. 2

13. The impugned letter does not, thereforee, take the correct view of the facts and law. It was issued after a long time without hearing the parties and after the auction was confirmed by the Panchayat with the prior sanction of the Deputy Commissioner. It is also contary to the view of the Executive Councillor, the Deputy Commissioner. A. D. M. and the O. S. D. The impugned letter is thereforee quashed.

14. The petitioner has already made an application for the permit to quarry under the Delhi Minor Minerals Rules. This application was probably not decided by the Collector awaiting the decision of this writ petition. The decision of the writ petition will, no doubt, be conveyed by the petitioner to the Collector who will thereupon dispose of the application of the petitioner in accordance with the rules expeditiously. The writ petition is, thereforee, allowed in the above terms, but in the circumstances, without any order as to costs.

15. Petition allowed.


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