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Jagdish Vs. Collector - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 332 of 1978
Judge
Reported in1978WLN(UC)319
AppellantJagdish
RespondentCollector
DispositionPetition allowed
Excerpt:
.....article 226--opportunity of hearing--raj panchayat act, 1953--section 27a--collector terminating 'theka without hearing parties--held, order of collector suffers from an infirmity & it is therefore set a side.;writs allowed - 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..........conclusion in respect of the matter as to whether the said 'theka' was given for the period of one year, two years or for three years only after hearing the concerned parties, including the petitioner. learned counsel for both the parties are agreed that the matter should be re-heard by the collector in the presence of all the parties concerned, including the petitioner, as well as gram panchayat, mainawali and such other persons whom the collector may consider proper.7. in view of the aforesaid infirmity in the order passed by the collector on april 28, 1978 that it was passed without affording an opportunity of hearing to the petitioner, there is no alternative but to set aside the same.8. the writ petition is accordingly allowed and the collector, sri ganganagar is directed to re-hear.....
Judgment:

D.P. Gupta, J.

1. This writ petition was taken up today for final hearing with the. consent of the learned Counsel for the parties.

2. The petitioner, in this case, has urged that the Collector, Sri Ganganagar has passed as order dated April 28, 1978 (Annexure 4) terminating the lease (Theka) of the petitioner for the year 1978-79 without giving any mice to him and that the said order should be quashed by this Court as it was passed against the principles of natural justice.

3. The petitioner's case is that the land mentioned in schedule A, attached to the writ petition, situated in village Mainawali, was given to him on lease for a period of three years from the year 1976-77, at the rate of 500/- perbigha by a resolution of the Gram Panchayat, Mainawali dated October 1, 1976 after it was kinked down in his favour at a public auction held on August 4, 1976 and that while he was enjoying the possession of the aforesaid land, and was cultivating the same, the Collector. Sri Ganganagar passed his order dated April 28, 1978 terminating the aforesaid 'theka' of the petitioner for the year 1978-79 because according to him the theka was given to the petitioner for a period if two years only, namely for the years 1976-77 and 1977-78, and that the petitioner is a nephew of the former Serpent, Khyali Ram and that although the theka was given only for a period of one year, yet by making certain interpolations in the documents it was shown by the former Sarpanch as if the theka was given for a longer term of three years. According to respondents, the former Sarpanch Khyali Ram of Gram Panchayat, Mainawali in collusion with the petitioner, caused interpolations in the relevant documents for the purpose of giving undue and illegal benefit to the petitioner who was his close relative.

4. However, it was not contested before me that the order dated April 28, 1978 was passed by the C Elector, Sri Ganganagar without affording the petitioner an opportunity of hearing. At the time of hearing of the writ petition, learned Counsel appearing for respondent No. 2 admitted that the petitioner was not heard by the Collector while passing the impugned order dated April 28, 1978

5. The Collector, Sri Ganganagar while passing the impugned order dated April 28, 1978 was purporting to exercise jurisdiction under Section 27-A of the Rajasthan Panchayat Act, 1953, which runs as under:

Section 27-A Power to call for records--The State Government may for the purpose of satisfying itself as to the correctness, legality and propriety of

(a) any other passed by the Collector or the officer-in-charge of Panchayats under any provision of this Act, or,

(b) any order passed by a Panchayat Samiti in administrative matters under Section 26 A, or otherwise or

(c) any order passed under this Act in administrative matters by a panchayat from which no appeal lies under Section 26A

call for and examine the connected records and may confirm, vary or rescind such order.

6. But while passing an order to the prejudice for any party under the aforesaid provision it was obligatory upon the Collector to hear the concerned party. In the present case, it is not contested before me that a 'theka' was given to the petitioner in respect of the land specified in schedule A annexed to the writ petition. The dispute between the parties was in respect of the period of the aforesaid 'theka', According to the petitioner the 'theka' was given for a period of three years, while according to the respondents it was given only for a period of one year, but according to the Collector, the said 'theka' was given for a period of two years. If the 'theka' was given for a period or' two years only, then the question of cancellation of the said 'theka' for the year 1978-79 did not arise, as it stood terminated automatically on the expiry of the term thereof. But the Collector could come to n firm conclusion in respect of the matter as to whether the said 'theka' was given for the period of one year, two years or for three years only after hearing the concerned parties, including the petitioner. Learned Counsel for both the parties are agreed that the matter should be re-heard by the Collector in the presence of all the parties concerned, including the petitioner, as well as Gram Panchayat, Mainawali and such other persons whom the Collector may consider proper.

7. In view of the aforesaid infirmity in the order passed by the Collector on April 28, 1978 that it was passed without affording an opportunity of hearing to the petitioner, there is no alternative but to set aside the same.

8. The writ petition is accordingly allowed and the Collector, Sri Ganganagar is directed to re-hear the matter in the presence of the parties, including the petitioner and the Gram Panchayat Mainawali. The parties, whose counsel are present today are directed to present themselves before the Collector for a fresh hearing in the matter on August 28, 1978. It would be open to the Collector, Sri Ganganagar to decide the matter either by himself or he can send the same for fresh decision to the Additional Collector, Sri Ganganagar However, the matter should be decided afresh within a period of six weeks thereafter.

9. Mr. Hastimal, appearing for the petitioner, states that the petitioner shall not extend his cultivation beyond the area which is at present under cultivation, which is nearly six bighas, until the matter is finalized by the Collector, Sri Ganaganagar afresh. The parties are left to bear their own costs.


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