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Gram Panchayat Barwa Vs. Addl. Collector - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 954 of 1974
Judge
Reported in1975(8)WLN86
AppellantGram Panchayat Barwa
RespondentAddl. Collector
DispositionPetition allowed
Excerpt:
.....of encroachment & imposing fine are appeasable--revision does not lie to the additional collector--orders set aside. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a ..........day during which disobedience continues. it is, however, important to note that an order imposing fine is appealable under section 27(4). in the present case, it appears that by a composite order encroachment was ordered to be removed and fine was also imposed, in case of disobedience. i do not wish to comment on the merits of the panchayat's orders in any way all that i wish to point out is that the order of the panchayat dated 18-3-72 whereby encroachment was ordered to be removed and fine imposed, was appealable and the orders ex. 7 and ex. 9 passed later on were only in the course of execution and implementation of the order dated 18-3-72. the contention of mr. rajpurohit that the panchayat's order dated 18-3-72 did dot fall under section 26a, as a part of it comes under section.....
Judgment:

C.M. Lodha, J.

1. This petition under Article 226 of the Constitution of India has been directed against the order of the Addl. Collector, Pali dated 8-2-1974 marked Ex. 26 (sic) page 75 to 83 of the paper book), The validity of the order has been challenged on the ground that the Addi. Collector had no jurisdiction to entertain the revision petition filed by the non-petitioner No. 3 Shri. Satyadeo from the orders of the Gram Panchayat, Barwa dated IS 3 1973, 23 3 1972 and 30th March, 1973 marked Ex. 3 Ex. 7 and Ex 9 respectively.

2. In order to appreciate the point canvassed before me, it would be proper to state a few relevant facts. On receiving a complaint from some villagers that the non-petitioners No. 2 aid 3, who are father and son have encroached upon a part of the public way, the Gram Panchayat, issued, a notice dated 16-3-72 to the non petitioner No. 2 to show cause why the encroachment be not removed, and fixed the case on March 18, 1972 The petitioner's case is that since the non-petitioner No. 2 did not appear in response to the notice issued by it, the petitioner directed the non-petitioners No. 2 and 3 to stop the construction which they were raising on a part of the public way, and to remove the encroachment already made, by a certain date failing which the Panchayat would do so at his cost. The Panchayat also directed that a penalty of Rs. 1/- per day may be imposed upon the non-petitioners till compliance report was made. Notice Ex. 6 dated 18-3-1973 was issued to the non petitioner No. 2 Jasraj in pursuance of the 6aid resolution. The Panchayat again took up this matter in its meeting held on 12-3-72, & observed that the non petitioner No. 2 was continuing construction in spite of notice, and was bent upon encroaching upon the public way, & therefore, the Panchayat decided to seek help from the police for implementation of its order. By another order dated 30th March 1972 Ex. 9, the Panchayat held that the non-petitioners No. 2 and 3 had encroached upon public way to the extent of 15' east to west and 2'-9' north to south, and thereby had obstructed the passage. It further directed that the Panchayat may itself employ labour and get the encroachemnt removed, and that the cost of removal be recovered from the said-non-petitioners.

3. Aggrieved by the aforesaid three orders of the Panchayat dated 18-3-72 (Ex 3), 23rd March, 1972 (Ex 7) and 30th March, 1972 (Ex. 9), Non-petitioner No. 3 filed a revision petition before the Addl. Collector. Pali on 15/4/72, a copy of which has been placed on the record, and marked Ex. 16. The non petitioners No. 2 and 3 also filed an appeal before the Panchayat Samiti, Bali from the aforesaid orders of the Panchayat. Copy of the grounds of appeal filed before the Panchayat Samiti is marked Ex. 14. An objection was taken by the petitioner Gram Panchayat before the Additional Collector that no revision applicant on lay from the orders of the Panchayat Ex. 3, Ex. 7 and Ex. 9, as the same were appeasable. It appears that the revision application remained of riding for a long time, and the counsel for the petitioner stopped putting in appearance after 11/12/1972, with the result that after hearing arguments of non-petitioner No. 3 only, the Additional Collector, by his order dated 6-2-1974 (Ex. 27) set aside the orders of the Gram Panchayat, and directed the Panchayat to restore the material belonging to the petitioners which was taken away by the petitioner at the time of removal of the alleged obstruct on from the way. It has been urged that the impugned orders of the Panchayat it appeasable under Section 26A and 27 of the Rajasthan Panchayat Act, 1953, (which will hereinafter be called as the Act), as these orders do not fall under any of the Clauses (a), (b) and (c) of Section 27A which provides for revision. On the other hand, Mr. Satyadeo Rajpurohit, who is himself non-petitioner No. 3, has argued that a revision petition did he from the orders of the Panchayat under Section 27A(c) of the Act.

4. After having heard the learned Counsel for the petitioner and Mr. Rajpurohit, and after perusal of the relevant record, I have come to the conclusion that this writ petition must be allowed on the short point that the Addl. Collector had no jurisdiction to entertain revision petition from the aforesaid Panchayat, which were appeasable, and against which an appeal H bad, in fact, been filed. I shall now state the reasons in support of my conclusion.

6. There is no denying the fact that the order dated 18-3-1972, whereby the Panchayat had given a finding that the public way had been encroached upon by the non-petitioners No. 2 and 3, and that a notice be issued o them to remove the encroachment, clearly fell within the ambit of Section 26(1)(ii). which reads as under:

Section 26 Administrative Powers of Panchayat:

(1) A Panchayat shall have power to do all acts necessary for and incidental to the execution of its duties and in particular and without prejudice to the generality of the foregoing provision shall have power, by notice in writing:

(i) ...

(ii) to require the owner or occupier of any building to remove any encroachment on a public way or drain:

6. An order requiring the owner or occupier of any building to remove any encroachment on a public way is clearly appealable under Section 26-A, which reads as under:

Section 26-A, Appeal from orders of Panchayat under Chapter III : Any prison aggrieved by any order or direction of a panchayat under this chapter or under any rule or bye laws made thereunder may appeal from such order or direction to the Panchayat Samiti having jurisdiction within 30 days from the date of such order nr direction exclusive of the time requisite for obtaining a copy thereof.

7. Section 27 of the Act confers power on the Panchayat to impose fine in administrative cases. It runs as follows:

Section 27. Power to fine in administrative cases:

(1) Any person who disobeys a general regulation or special order under the foregoing provisions of this chapter may be punished by the Panchayat with fine which may extend to fifteen rupees and if the disobedience is a continuing one, with a further fine which may extend to on? rupee for every day after the first, during which the disobedience continues.

(2) ...

(3) ...

(4) Any Person aggrieved by an order of the Panchayat passed under this section may, within thirty days from the date of such order exclusive of the time requisite for obtaining copy thereof, appeal therefrom to the Panchayat Samiti having jurisdiction and the provisions of Sub-sections (2), (3) and (4) of Section 26A shall apply.

8. It is conceded by Mr. Rajpurohit, and in my opinion rightly, that an order by the panchayat imposing floe is appealable under Sub-section (4), as reproduced above.

9. There is no denying the fact that the orders of the Panchayat Ex. 3, Ex. 7 and Ex. 9 are composite orders passed under Section 26(1)(ii) and Section 27{i) &,are, therefore, appealable. This position in not disputed by Mr. Rajpurohit In fact Mr. Raj Purobit has filed an appeal before the PS. against these orders, and that is admittedly still pending His contention is that he had concurrent remedy by way of appeal as well as revision, and he availed of the latter, first, by filing a revision petition two days before be filed the appeal He further contends that the Additional Collector had jurisdiction to entertain the revision application and decide it under Clause (c) of Section 27A.

10. Section 27-A. inter alia, provides that the State Government may, for the put pose of satisfying itself as to the correctness, legality and propriety of any order pasted under this Act in administrative matters by a Panchayat from which no appeal lies under Section 26-A, Clause (c) call (sic) & examine the connected records and may confirm, vary or rescind such order. The argument of Mr. Rajpurohit is that as soon as the Panchayat passed the order of fine, tie order ceased to be appealable under Section 26-A, and, therefore, revision lay to the State Government, I am, however, unable to accept this contention. Merely because a composite order was passed whereby the Panchayat directed removal of encroachment, and also imposed a fine on the part of the owner of the building to comply with its order, the order is not taken out of the purview of Section, 26, The scheme of the Act seems to be that in the first instance under Section 26, the Panchayat may direct the owner or occupier of any building to remove any encroachment on the public way or drain, and it may grant time to such person to carry out the order and if such person disobeys the order then he may be punished by the Panchayat with fine which may extend to Rs 15/- and if the disobedience is a continuing one, the Panchayat may impose further fine which may extend to Rs. 1/- for every day during which disobedience continues. It is, however, important to note that an order imposing fine is appealable under Section 27(4). In the present case, it appears that by a composite order encroachment was ordered to be removed and fine was also imposed, in case of disobedience. I do not wish to comment on The merits of the Panchayat's orders in any way All that I wish to point out is that the order of the Panchayat dated 18-3-72 whereby encroachment was ordered to be removed and fine imposed, was appealable and the orders Ex. 7 and Ex. 9 passed later on were only in the course of execution and implementation of the order dated 18-3-72. The contention of Mr. Rajpurohit that the Panchayat's order dated 18-3-72 did Dot fall under Section 26A, as a part of it comes under Section 27(4), and, therefore, the order is revisable, is, in my opinion, not well founded, that Mr. Rajpurohit seeks to argue is that on account of imposition of the fine, the order fell within the purview or Section 27(4), and since it is mentioned in Clause (c) of Section 27-A, that an order pasted, in administrative matters by a Panchayat, from which no appeal lies under Section 26-A is revisable, the orders in question become revisable as they did not completely fell under Section 26A The argument is indeed ingenious, but is devoid of substance. Consequently, I hold that the orders Ex. 3, Ex. 7 and Ex. 9 were appealable and did not fall within the ambit of Section 27-A(c) of the Act.

11. There is, yet, another aspect of the case If it is accepted for a moment that the orders of the Panchayat can be assailed by appeal as well as by revision petition, it would lead to an anomalous position in as much as even after the revision application has been decided, the appellate tribunal viz. the Panchayat Samiti would be free to decide the appealable any way, it like as it has a right to do so. It would be open to it to take a view different from the one taken by the re visional authority. Thus such an interpretation would, in my opinion, do incalculable mischief. It is also trite that revision is a discretional remedy, and the revisional authority ordinarily could not interfere where there is a right of appeal, whereas appeal is a matter of right. Looked at from any angle, there is no escape from the conclusion that the Addl. Collector had no jurisdiction, and not the least justification for entertaining the revision application by the non-petitioner No. 3 and deciding the same.

12. Mr. Rajpurohit has also argued that this Court should not interfere with the impugned order of the Addl. Collector in exercise of extraordinary jurisdiction of, as the petitioner has misrepresented material facts. However, after bearing him, I am satisfied that there is no such misrepresentation of facts, or suppression of material facts, as may disentitle the petitioner to invoke the writ jurisdiction of the Court. Moreover, the question involved is one of inherent lack of jurisdiction. I am convinced that the petitioner is not guilty of any fraud or suppression, or misstatement of material facts.

13. The result is that I allow this writ petition, set aside the impugned order of the Addl. Collector dated 3/2/74, and direct the Panchayat Samiti, Bali to proceed with the heating of the appeal, and dispose it of in accordance with law. No order as to coats of this petition.


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