REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4832 OF 2012
(Arising out of SLP (C) No. 1758 of 2011)
Village Panchayat, Calangute … Appellant
Versus
The Additional Director of Panchayat-II and Others … Respondents
with
CIVIL APPEAL NO. 4833 OF 2012
(Arising out of SLP (C) No. 10569 of 2011)
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Whether a Village Panchayat established under Section 3 of the Goa
Panchayat Raj Act, 1994 (for short, ‘the Act’) or any other statutory
dispensation existing prior to the enactment of the Act has the locus to
file a petition under Article 226 and/or 227 of the Constitution for
setting aside an order passed by the designated officer exercising the
power of an appellate authority qua the action/decision/resolution of the
Village Panchayat is the question which arises for consideration in these
appeals filed against order dated 18.08.2010 passed by the learned Single
Judge of the Bombay High Court, Goa Bench in Writ Petition Nos. 16 and 312
of 2010.
3. M/s. Kay Jay Constructions Company Pvt. Ltd. (hereinafter described
as, ‘the company’) (respondent No.4 in the appeal arising out of SLP (C)
No.1758 of 2011) was granted permission by the appellant in 2006 for
raising construction on property bearing Survey No. 362/12 and part of
Survey No. 362/10 at Porbawado, Calangute, Bardez. The company is said to
have illegally constructed a wall and thereby blocked access to the water
well situated in Survey No.362/10 and the chapel situated beyond Survey
No.362/12 as also the existing water drains. When the local residents
complained against the illegal construction, the appellant passed
resolution dated 24.03.2008 for revocation of the occupancy certificate,
which was issued by the Secretary on the basis of what were termed as
manipulated resolutions passed on 22.12.2007 and 28.02.2008. The appellant
passed another resolution dated 25.3.2009 and revoked the permission
granted to the company. The latter challenged the same by filing Panchayat
Petition No.6/2009 on the ground that the decision taken by the appellant
was contrary to the rules of natural justice. On realizing that the action
taken by it was not proper, the appellant revoked resolution dated
25.03.2009. Thereafter, the Sarpanch issued notice dated 29.7.2009 under
Section 64 of the Act and directed the company to stop further
construction. Simultaneously, he fixed 4.8.2009 as the date for inspection
of the site. The company challenged the notice in Panchayat Appeal
No.12/2009. Respondent No.1 - the Additional Director of Panchayat
entertained the appeal and passed an ex-parte interim order dated 3.8.2009.
4. In the meanwhile, application dated 24.7.2009 was made on behalf of
the company for grant of permission to use the property for running a guest
house. The same was rejected by the appellant vide resolution dated
4.8.2009. The Managing Director of the company challenged the decision of
the Gram Panchayat in Panchayat Appeal No.174/2009. On being noticed, the
appellant made a request that hearing of Panchayat Appeal No. 174/2009 may
be deferred till the disposal of Panchayat Appeal No. 12/2009 and it may be
permitted to inspect the construction made by the company. Respondent No.1
rejected the appellant’s request and fixed Panchayat Appeal No.174/2009 for
final hearing.
5. It is borne out from the record that some residents had also filed
complaint before Block Development Officer, Bardez, Goa against the illegal
construction raised by the company and the consequential blockage of access
to the well and change of the natural flow of rain water resulting in water
logging. Initially, the Block Development Officer passed an injunction
order against the company but after considering the latter’s reply, he
dismissed the complaint by observing that the construction made by the
company was not illegal and any restriction on the use of property would
seriously prejudice its cause.
6. The appellant challenged orders dated 3.8.2009 and 30.11.2009 passed
by respondent No.1 and order dated 19.10.2009 passed by the Block
Development Officer in Writ Petition No.16/2010 on the ground that
respondent No.1 did not have the jurisdiction to entertain an appeal
against the notice issued under Section 64 of the Act and, in any case,
such notice could not be stayed under Section 178. It was also pleaded
that even if the appeal filed by the company was treated as maintainable,
there was no justification to pass an interim order which had the effect of
allowing the appeal. As regards the order of the Block Development
Officer, it was pleaded that he could not have exercised power under
Section 66 of the Act and disposed of the complaint filed by the local
residents and thereby allowed the company to continue the illegal
construction which had effectively blocked access to the water well and the
chapel.
7. During the pendency of Writ Petition No.16/2010, respondent No.1
passed final order dated 12.02.2010 in Panchayat Appeal No. 12/2009 and
directed the appellant to reconsider the application made by the company
for grant of permission to use the property for running a guest house. The
appellant challenged that order in Writ Petition No. 312/2010.
8. The learned Single Judge of the High Court relied upon the order
passed in Writ Petition No.620/2009 and dismissed both the writ petitions
as not maintainable.
9. Shri Shyam Divan, learned senior counsel relied upon the judgment of
the learned Single Judge in Village Panchayat of Calangute v. The Deputy
Director of Panchayats 2004(2) Goa LR 497 and of the Division Bench of the
Kerala High Court in Karunagappally Grama Panchayat v. State of Kerala 1996
(1) KLT 419 and argued that summary dismissal of the writ petitions was not
at all warranted because the issues raised by the appellant were of
considerable public importance. Shri Divan submitted that the illegal
construction raised by the company has the effect of preventing the public
from having access to the water well in Survey No. 362/10 and the chapel
situated beyond Survey No.362/12 and argued that the appellant being a
representative body of the people of the village has the right to question
the orders passed by respondent No.1 and the Block Development Officer and
the High Court could not have non-suited it by accepting the narrow
interpretation of the term ‘person aggrieved’.
10. Shri V.C. Daga, learned senior counsel for the company relied upon
the judgment of the Division Bench of the High Court in Village Panchayat
of Velim v. Shri Valentine S.K.F. Rebello and another 1990(1) Goa L.T 70
and order dated 13.08.2010 passed by learned Single Judge in Writ Petition
No. 620/2009 and batch and argued that the writ petitions filed by the
appellants were rightly dismissed as not maintainable. Shri Daga also
relied upon the judgment in Rex v. London Quarter Sessions Ex parte
Westminster Corporation (1950) 1 KB 148 and argued that the appellant
cannot be treated as a ‘person aggrieved’ by the orders passed by
respondent No.1 and the Block Development Officer. Learned senior counsel
also pointed out that Writ Petition No. 5/2010 filed by the local residents
questioning order dated 19.10.2009 passed by the Block Development Officer
was dismissed by the learned Single Judge vide order dated 20.10.2010 and
argued that in view of that order the appellant is estopped from
questioning order dated 19.10.2009 .
11. We have considered the respective submissions. Before independence,
majority population of the States which merged in the Union was rural.
After independence and even now India continues to be a pre-dominantly
rural country. There are almost six lakh villages in the country and almost
75% of the population lives in the villages. Article 40 of the
Constitution, which enshrines one of the Directive Principles of State
Policy was incorporated in the Draft Constitution in the light of the
suggestions made by S/Shri M.A. Ayangar, N.G. Ranga, Surendra Mohan Ghose
and Seth Govind Das, all of whom strongly advocated that the dream of the
Father of Nation of initiating democracy at the grass root (rural India) be
translated into reality by making Panchayats as units of self-Government.
This Article mandates the State to take steps to organize Village
Panchayats and endow them with such powers and authority as may be
necessary to enable them to function as units of self-Government.
Notwithstanding the mandate of Article 40, the State failed to take
effective steps to make Village Panchayats as units of self-Government. In
1977, a Committee was constituted under the chairmanship of Shri Ashok
Mehta to evaluate Panchayati Raj institutions and their functioning. In
its report, the Committee observed that the existing model of Panchayats
has failed to transfer the fruits of democracy to the weaker sections of
society because they are dominated mostly by socially and economically
privileged people.
12. In 1992, the Constitution (Seventy-third Amendment) Act was
introduced in Parliament and the existing Part IX was substituted. The
background in which this amendment was introduced is evinced from the first
two paragraphs of the Statement of Objects and Reasons, which are extracted
below:
“Though the Panchayati Raj institutions have been in existence for
a long time, it has been observed that these institutions have not
been able to acquire the status and dignity of viable and
responsive people's bodies due to a number of reasons including
absence of regular elections, prolonged supersessions, insufficient
representation of weaker sections like Scheduled Castes, Scheduled
Tribes and women, inadequate devolution of powers and lack of
financial resources.
Article 40 of the Constitution which enshrines one of the directive
principles of State Policy lays down that the State shall take
steps to organise Village Panchayats and endow them with such
powers and authority as may be necessary to enable them to function
as units of self-government. In the light of the experience in the
last forty years and in view of the shortcomings which have been
observed, it is considered that there is an imperative need to
enshrine in the Constitution certain basic and essential features
of Panchayati Raj institutions to impart certainty, continuity and
strength to them.”
13. The aforesaid amendment is a turning point in the history of local
self-Government. By this amendment Panchayat became an ‘institution of self-
governance’ – Article 243(d) and comprehensive provisions came to be
incorporated for democratic decentralization of governance on Gandhian
principle of participatory democracy. The Panchayati Raj institutions
structured under 73rd Amendment are meant to bring about sweeping changes
in the governance at the grass root level. By this amendment, Parliament
introduced three tier system of Panchayati Raj institutions at Village,
Block and District levels. Article 243-C provides for composition of a
Panchayat and filling up of the seats in a Panchayat by direct election.
Article 243-D provides for reservation of seats and Article 243-E provides
for duration of Panchayat. Article 243-F enumerates the grounds of
disqualification of membership of the Panchayat and Article 243-G
prescribes the powers, authority and responsibilities of a Panchayat.
Article 243-H gives power to the State Legislatures to enact law and
authorise a Panchayat to levy, collect and appropriate taxes, duties, tolls
and fees; assign to a Panchayat such taxes, duties, tolls and fees levied
and collected by the State Government and also provide for making such
grants-in-aid to the Panchayats from the Consolidated Fund of the State.
Clause (d) of this Article envisages a legislative provision for
constitution of appropriate provisions for crediting all monies received by
or on behalf of the Panchayats and also for withdrawal of such monies.
Article 243-I envisages constitution of Finance Commission to review
financial position of the Panchayats. Article 243-K (1) declares that the
superintendence, direction and control of the preparation of electoral
rolls for, and the conduct of, all elections to the Panchayats shall be
vested in a State Election Commission. Clause 4 of this Article empowers
the State Legislature to make law with respect to all matters relating to,
or in connection with, elections to the Panchayats. By virtue of Article
243-L, the provisions of Part IX have been made applicable to the Union
Territories. Article 243-M declares that provisions of Part IX shall not
apply to the Scheduled Areas referred to in clause (1) and the tribal areas
referred to in clause (2) of Article 244, the States of Nagaland,
Meghalaya and Mizoram, hill areas in the State of Manipur for which
District Councils exist as also the hill areas of Darjeeling. Clause 3(a)
of this Article excludes the application of the provisions relating to
reservation of seats for the Scheduled Castes insofar as the State of
Arunachal Pradesh is concerned. Article 243-N contains a transitory
provision for continuance of the existing laws for a maximum period of one
year. Article 243-O contains a non-obstante clause and declares that the
validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies, made or purporting to be made
under Article 243-K, shall not be called in question in any Court and that
no election to any Panchayat shall be called in question except by an
election petition presented to such authority and in such manner as is
provided for by or under any law made by the State Legislature. Article
243(d) and Article 243-G which have bearing on the issue raised in theses
appeals read as under:
“243(d). In this Part, unless the context otherwise requires,-
(d) “Panchayat” means an institution (by whatever name called)
of self-government constituted under article 243B, for the rural
areas;
243G. Powers, authority and responsibilities of Panchayat - Subject
to the provisions of this Constitution, the Legislature of a State
may, by law, endow the Panchayats with such powers and authority
and may be necessary to enable them to function as institutions of
self-government and such law may contain provisions for the
devolution of powers and responsibilities upon Panchayats, at the
appropriate level, subject to such conditions as may be specified
therein, with respect to
(a) the preparation of plans for economic development and social
justice;
(b) the implementation of schemes for economic development and
social justice as may be entrusted to them including those in
relation to the matters listed in the Eleventh Schedule.”
14. In the light of the Constitution (Seventy-third Amendment) Act, the
State legislature enacted the Act, as is evident from its preamble, which
reads thus:
“Whereas it is expedient to replace the present enactment by a
comprehensive enactment to establish a two-tier Panchayat Raj System
in the State with elected bodies at village and district levels, in
keeping with the Constitution Amendment relating to Panchayats for
greater participation of the people and more effective implementation
of rural development programmes.”
15. Chapter I of the Act contains definitions of various terms including
“Panchayat” which means a Village Panchayat established under Section 3.
Chapter II contains provisions relating to Gram Sabha and constitution of
Panchayats including election to the Panchayats in which every person
enrolled in the electoral roll of the Legislative Assembly of the State is
entitled to participate. Chapter III contains provisions relating to
functions, duties and powers of Panchayats, Sarpanch and Deputy Sarpanch.
Since, we are not concerned with the provisions relating to staff of
Panchayats, constitution of Taluka Panchayats and related provisions,
constitution of Zilla Panchayats and related provisions, we do not consider
it necessary to make a detailed reference to the provisions contained in
Chapters IV to IX. Chapter X contains provisions relating to inspection
and supervision etc. of Panchayats. Chapter XI relates to financial
control and audit. Chapter XII incorporates miscellaneous provisions.
For the sake of reference, Sections 2(14), 3(1), (2), 47-A, 60, 62, 64, 66,
70, 84, 178, 201, 201-A and relevant portions of Schedule-I are reproduced
below:
“CHAPTER I
Preliminary
2. Definitions.— In this Act, unless the context otherwise requires,-
(14) “Panchayat” means a Village Panchayat established under
section 3;
CHAPTER II
Gram Sabha — Constitution of Panchayats
3. Declaration of Panchayat areas and establishment of Panchayats.—
(1) After making such inquiry as may be necessary, the Government may,
by notification, declare a local area, comprising of a village or a
group of villages or any part or parts thereof, or a combination of
any two or more of them to be a Panchayat area for the purposes of
this Act and also specify its headquarters.
(2) For every Panchayat area, there shall be a Panchayat as from such
date as the Government may, by notification, appoint.
47-A. Executive powers of the Sarpanch.— Notwithstanding anything
contained in this Act and the rules framed thereunder, the Sarpanch
shall exercise the powers on the following matters, namely:—
(i) to implement the programme of welfare schemes and other
developmental works;
(ii) to execute and implement the resolution passed by the Panchayat
on the matters not specified in section 47.
(Inserted by the Amendment Act 1 of 1997)
CHAPTER III
Functions, Duties and Powers of Panchayats, Sarpanch and Deputy
Sarpanch
60. Functions of the Panchayat.— (1) Subject to such conditions as may
be specified by the Government from time to time, the Panchayat shall
perform the functions specified in Schedule-I.
(2) The Panchayat may also make provision for carrying out within the
Panchayat area any other work or measure which is likely to promote
the health, safety, education, comfort, convenience or social or
economic well-being of the inhabitants of the Panchayat area.
62. General powers of the Panchayat.— Panchayat shall have powers to
do all acts necessary for or incidental to the carrying out of the
functions entrusted, assigned or delegated to it and in particular and
without prejudice to the foregoing powers to exercise all powers
specified under this Act.
64. Powers and duties of the Sarpanch and Deputy Sarpanch.— (1) The
Sarpanch of the Panchayat shall, in addition to the power exercisable
under any other provision of this Act or rules made thereunder,—
(j) stop any unauthorized construction erected in the Panchayat area
notwithstanding anything contained in sub-section (3) of section 66 of
this Act and place the matter immediately before the ensuing meeting
of the Panchayat for taking suitable decision;
(k) remove encroachment and obstruction upon public property, street,
drains and open sites not being private property;
(l) ensure due compliance of the provisions of the Act; and
66. Regulation of the erection of buildings.— (1) Subject to such
rules as may be prescribed, no person shall erect any building or
alter or add to any existing building or reconstruct any building
without the written permission of the Panchayat. The permission may be
granted on payment of such fees as may be prescribed.
(2) If a Panchayat does not, within thirty days from the date of
receipt of application, determine whether such permission should be
given or not and communicate its decision to the applicant, the
applicant may file an appeal within thirty days from the date of
expiry of aforesaid period, to the Deputy Director who shall dispose
of the same within thirty days from the date of filings of such
appeal. If the Deputy Director fails to dispose of the appeal within
thirty days, such permission shall be deemed to have been given and
the applicant may proceed to execute the work, but not so as to
contravene any of the provisions of this Act or any rules or bye-laws
made under this Act.
(3) Whenever any building is erected, added to or reconstructed
without such permission or in any manner contrary to the rules
prescribed under sub-section (1) or any conditions imposed by the
permission granted, the Panchayat may,—
(a) direct that the building, alteration or addition be stopped;
or
(b) by written notice require within a reasonable period to be
specified therein, such building alteration or addition to be
altered or demolished.
70. Control of hotels etc.— No place within the jurisdiction of a
Panchayat shall be used as a hotel, restaurant, eating house, coffee
house, sweetmeat shop, bakery, boarding house or lodging house (other
than a hostel recognized by the Government), or a dharmashala or for
manufacturing ice or aerated water except under a licence granted or
renewed by the Panchayat and except in accordance with condition
specified therein.
84. Powers and duties in regard to sources of water supply.— The
Secretary or any officer authorized by the Panchayat in this behalf
may at any time by written notice require that the owner or any person
who has control over any well, stream, channel, tank, or other source
of water supply shall, whether it is private property or not,—
(a) if the water is used for drinking,-
i) keep and maintain any such source of water supply other than
a stream, in good repair; or
ii) within a reasonable time to be specified in the notice,
cleanse any such source of water supply from silt, refuse and
decaying vegetation; or
iii) in such manner as the Panchayat may direct, protect any such
source of water supply from pollution by surface drainage;
or
iv) desist from using and from permitting others to use for
drinking purposes any such sources of water supply, which not
being a stream in its natural flow, is in the opinion of the
Panchayat unfit for drinking; or
v) if notwithstanding any such notice under sub-clause (iv),
such use continues and cannot, in the opinion of the
Panchayat, be otherwise prevented, close either temporarily
or permanently, or fill up or enclose or fence in such manner
as the Panchayat considers sufficient to prevent such use,
such source of water supply; or
vi) drain off or otherwise remove from any such source of water
supply, or from any land or premises or receptacle or
reservoir attached or adjacent thereto, any stagnant water
which the Panchayat considers as injurious to health or
offensive to the neighbourhood;
178. Power of suspending execution of unlawful orders or
resolution.— (1) If in the opinion of the Director, the execution
of any order or resolution of a Panchayat or Zilla Panchayat or any
order of any authority or officer of the Panchayat or the Zilla
Panchayat or the doing of anything which is about to be done, or is
being done, by or on behalf of a Panchayat or a Zilla Panchayat is
unjust, unlawful or improper or is causing or is likely to cause
injury or annoyance to the public or to lead to a breach of peace,
he may by order suspend the execution or prohibit the doing
thereof.
(2) When the Director makes an order under sub-section (1), he
shall forthwith forward to the Government and the Panchayat or
Zilla Panchayat affected thereby a copy of the order with a
statement of the reasons for making it, and the Government may
confirm or rescind the order or direct that it shall continue to be
in force with or without modification permanently or for such
period as it thinks fit:
Provided that no order of the Director passed under sub-section (1)
shall be confirmed, revised or modified by the Government without
giving the Panchayat or the Zilla Panchayat concerned a reasonable
opportunity of showing cause against the proposed order.
201. Appeals.— (1) Any person aggrieved by original order of the
Panchayat under section 76, 77, 84, 104 and 105 of the Act, may,
within such period as may be prescribed, appeal to the Director.
(2) The Appellate Authority may, after giving an opportunity to the
appellant to be heard and after such enquiry as it deems fit,
decide the appeal and its decision shall be final.
201-A. Appeal on miscellaneous matter dealt by the Panchayats. —
(1) Where no appeal has been specifically provided in this Act on
any miscellaneous matter which is dealt with by the Panchayat or
the Village Panchayat Secretary or the Sarpanch, an appeal shall
lie to the Block Development Officer within a period of thirty days
from the date of refusal of any request by the said authority and
his decision on such appeal, subject to the provision of sub-
section (2), shall be final.
Explanation:— For the purpose of this section, "refusal" means
rejecting of any request in writing or non conveying of any reply
to the application within a period of fifteen days from the receipt
of application in his office.
(2) A revision shall lie to the Deputy Director against any order
passed by the Block Development Officer under sub-section (1)
within a period of thirty days from the date of
the order. ”
SCHEDULE – I
FUNCTIONS AND RESPONSIBILITIES OF VILLAGE PANCHAYAT
I. General functions:
(1) Preparation of annual plans for the development of the Panchayat
area.
(7) Demolition of unauthorised construction.
VIII. Drinking water:
(1) Construction, repairs and maintenance of drinking water well,
tanks and ponds.
(2) Prevention and control of water pollution.
(3) Maintenance of rural water supply schemes.”
16. The Preamble, Part IV and Part IX of the Constitution must guide our
understanding of the Panchayati Raj institutions and the role they play in
the lives of the people in rural parts of the country. The
conceptualization of the Village Panchayat as a unit of self government
having the responsibility to promote social justice and economic
development and as a representative of the people within its jurisdiction
must be borne in mind while interpreting the laws enacted by the State
which seek to define the ambit and scope of the powers and the functions of
Panchayats at various levels.
17. An analysis of Article 40 and Articles 243 to 243-O shows that the
framers of the Constitution had envisaged Village Panchayat to be the
foundation of the country’s political democracy - a decentralized form of
Government where each village was to be responsible for its own affairs. By
enacting the Constitution (Seventy-third Amendment) Act, Parliament has
attempted to remedy the defects and remove the deficiencies of the
Panchayati Raj system evolved after independence, which failed to live up
to the expectation of the people in rural India. The provisions contained
in Part IX provide firm basis for self-governance by the people at the
grass root through the institution of Panchayats at different levels. For
achieving the objectives enshrined in Part IX of the Constitution, the
State Legislatures have enacted laws and made provision for devolution of
powers upon and assigned various functions listed in the Eleventh Schedule
to the Panchayats. The primary focus of the subjects enumerated in the
Eleventh Schedule is on social and economic development of the rural parts
of the country by conferring upon the Panchayat the status of a
constitutional body. Parliament has ensured that the Panchayats would no
longer perform the role of simply executing the programs and policies
evolved by the political executive of the State. By virtue of the
provisions contained in Part IX, the Panchayats have been empowered to
formulate and implement their own programs of economic development and
social justice in tune with their status as the third tier of government
which is mandated to represent the interests of the people living within
its jurisdiction. The system of Panchayats envisaged in this Part aims at
establishing strong and accountable systems of governance that will in turn
ensure more equitable distribution of resources in a manner beneficial to
all.
18. In the light of the above, it is to be seen whether the appellant has
the locus to challenge the orders passed by respondent No.1 in the appeals
filed by the company. A conjoint reading of the provisions contained in
Chapter III of the Act shows that a Panchayat is generally required to
perform the functions specified in Schedule I and also make provision for
carrying out any other work or measures likely to promote the health,
safety, education, comfort or convenience or social or economic well-being
of the inhabitants of the Panchayat area. It also has the power to do all
acts necessary for or incidental to carrying out the functions entrusted,
assigned or delegated to it. The Sarpanch is not only entrusted with the
duty to implement the programme of welfare schemes and other development
works, but also stop any unauthorised construction erected in the Panchayat
area. Section 66 which regulates erection of buildings within Panchayat
area empowers it and/or the Sarpanch to take action against erection of
building without obtaining permission from the competent authority or any
violation of the conditions imposed at the time of grant of such
permission. The Panchayat is also empowered to issue direction for up-keep
and maintenance of sources of water supply which are in private hands.
19. Section 178 empowers the Director to suspend the execution of any
order or resolution passed by a Panchayat or prohibit the doing of anything
by or on behalf of a Panchayat if he is satisfied that the execution of any
such order or resolution or doing of anything by or on behalf of the
Panchayat is unjust, unlawful or is improper or is causing or is likely to
cause injury or annoyance to the public or lead to a breach of peace.
Section 178(2) casts a duty on the Director to forward to the Government
and the Panchayat affected by his order a copy of the statement of reasons
for making the order. The Government has the power to confirm or rescind
the order or direct that it shall continue to remain in force with or
without modification permanently or for a specified period. Proviso to
this Section imposes an obligation on the Government to give reasonable
opportunity of showing cause to the concerned Panchayat against the
proposed confirmation, revision or modification of the order of the
Director. Section 201 provides for appeal against an order of the
Panchayat made under Sections 76, 77, 84, 104 and 105. Where no appeal has
been provided under the Act on any miscellaneous matter dealt with by the
Panchayat or the Village Panchayat Secretary or the Sarpanch, an appeal
lies to the Block Development Officer under Section 201-A(1). In terms of
Section 201-A(2), Deputy Director is empowered to exercise revisional power
qua the order which may be passed by the Block Development Officer under
sub-section (1).
20. In this case, the appellant had entertained the complaint made by
local residents, revoked occupancy certificate and also cancelled the
permission granted to the company for raising construction. The resolution
cancelling the permission was recalled apparently because the rules of
natural justice had not been followed. Thereafter, the Sarpanch issued
notice under Section 64 and directed the company to stop further
construction. The company challenged the notice and succeeded in persuading
respondent No.1 to pass an ex-parte interim order. The application made by
the company for permission to use the property for running a Guest House
was rejected by the appellant because legality of the construction made by
the company was under scrutiny. In both the cases, respondent No.1 set
aside the resolutions passed by the appellant as also the notice issued by
the Sarpanch. The orders passed by respondent No.1 do not refer to the
particular provision under which the concerned officer was exercising the
appellate power. Surely, he could not have exercised the power vested in
the appellate authority under Section 201 because the source of power of
the resolutions passed by the appellant and the notice issued by the
Sarpanch cannot be traced in Sections 76, 77, 84, 104 and 105 of the Act
which relate to removal of any building or part thereof or any tree or
branch of a tree if it is in a ruinous state or is likely to fall or is
otherwise dangerous to any person occupying such building or part thereof
or matters relating to sanitation, conservancy and drainage or exercise of
power by the Secretary in relation to any well, stream, channel, tank or
other source of water supply or which postulates right to carry drain
through land or into drain belonging to other persons. Similarly,
respondent No.1 cannot be said to have exercised power under Section 201-A
because under that provision, only the Block Development Officer is
competent to entertain an appeal in a miscellaneous matter which is dealt
with by the Panchayat or the Village Panchayat Secretary or the Sarpanch
and against which no appeal has been specifically provided under the Act.
Therefore, it is reasonable to infer that respondent No.1 had exercised
power under Section 178(1). However, instead of suspending the execution
of the resolutions passed by the appellant or the notice issued by the
Sarpanch and sending the matter to the State Government for confirmation,
the concerned officer suo-moto annulled the resolutions and the notice by
assuming that he had the power to do so.
21. It is thus evident that while the appellant and the Sarpanch had
exercised their respective powers in public interest, respondent No.1
nullified that exercise because he felt that the resolution/action was
contrary to law and was unjustified. While exercising the power under the
Act, the Panchayat was not acting as a subordinate to respondent No.1 but
as a body representing the will of the people and also a body corporate in
terms of Section 8 of the Act. Therefore, it had the locus to challenge the
orders passed by respondent No.1 and the High Court was clearly in error in
holding that the writ petition was not maintainable.
22. In Karunagappally Grama Panchayat v. State of Kerala, 1996 (1) KLT
419, the Division Bench of the Kerala High Court considered an identical
question. In that case, the Writ Petition filed by the appellant – Gram
Panchayat questioning the order of the State Government whereby a direction
was issued to permit construction of a multi-storied building was dismissed
by the learned Single Judge by observing that the Panchayat cannot be
treated as an aggrieved person. While reversing the order of the learned
Single Judge, the Division Bench made the following observations:
“If a Panchayat has a legal right to sue, then its corollary is
that it can mention an action under Art. 226 of the Constitution.
The legal character of a Panchayat is very
much analogous to that of a Municipality or such other local body.
In the case of a municipality, the position seems to be settled
that it can sue or be sued. The right of a company registered under
the Companies Act for suing another and also for moving under Art
226 has been recognised by the Apex Court in D. C. & G. M. Co. Ltd.
v. Union of India (AIR 1983 SCC 937). It may be that an officer of
a Company or local body is incompetent to challenge an order passed
by any authority superior to the local body through a suit or writ
petition. He has to abide by the order. But that principle cannot
be imported to the situation where the Juristic person itself
becomes the aggrieved party.
In this context, we refer to S. 5 of the Act which says "every
Panchayat shall be a body corporate by the name of the Panchayat…".
It shall have perpetual succession and a common seal. It shall,
subject to any restriction or qualification imposed by or under the
Act or any other law "be vested with the capacity of suing or being
sued on its corporate name". The Section further says that
Panchayat shall be vested with the capacity of acquiring, holding
and transferring property, movable or immovable or entering into
contracts, and of doing all things necessary, proper or expedient
for the purpose for which it is constituted.
Legal concept envisaged in S. 5 of the Act makes the position clear
that Panchayat is a body corporate. If so it can sue or be sued. In
that position Panchayat cannot be denuded of the right to move
under Art. 226 of the Constitution when any of its legal right is
infringed by the authorities including the Government.”
23. In High Court of M.P. v. Mahesh Prakash and others (1995) 1 SCC 203,
this Court considered several questions including the one whether the High
Court has the locus to challenge the order passed on judicial side by
filing a petition under Article 136 of the Constitution. While rejecting
the decision of the High Court, this Court observed:
“The order that the first respondent challenged in the writ
petition filed by him before the High Court was an order passed by
the High Court on its administrative side. By reason of Article 226
of the Constitution it was permissible for the appellant to move
the High Court on its judicial side to consider the validity of the
order passed by the High Court on the administrative side and issue
a writ in that behalf. In the writ petition the first respondent
was obliged to implead the High Court for it was the order of the
High Court that was under challenge. It was, therefore, permissible
for the High Court to prefer a petition for special leave to appeal
to this Court against the order on the writ petition passed on its
judicial side. The High Court is not here to support the judicial
order its Division Bench passed but to support its administrative
order which its Division Bench set aside. We find, therefore, no
merit in what may be termed the preliminary objection to the
maintainability of the appeal.”
24. In State of Orissa v. Union of India 1995 Supp. (2) SCC 154, the
Court considered the question whether the State Government has locus standi
to challenge the order passed by the Central Government in exercise of its
revisional power under the Mineral Concession Rules, 1960. While answering
the question in affirmative, this Court observed:
“In this connection, it is necessary to note that in the first
place, the State Government is not merely an authority subordinate
to the Central Government which would, undoubtedly, be bound by the
revisional orders of the superior authority. It is also the owner
of the mines and minerals in question. If it is directed to issue a
mining lease in favour of any party, it has locus standi to
challenge that order under Article 226 of the Constitution of
India.”
25. In Godde Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC
828, this Court examined the issue of locus standi of a President of
Panchayat Samithi to challenge the decision of the Government in the matter
of location of Primary Health Centre and held:
“Article 226 confers a very wide power on the High Court to issue
directions and writs of the nature mentioned therein for the
enforcement of any of the rights conferred by Part III or for any
other purpose. It is, therefore, clear that persons other than
those claiming fundamental right can also approach the court
seeking a relief thereunder. The Article in terms does not describe
the classes of persons entitled to apply thereunder; but it is
implicit in the exercise of the extraordinary jurisdiction that the
relief asked for must be one to enforce a legal right. The right
that can be enforced under Art. 226 also shall ordinarily be the
personal or individual right of the petitioner himself, though in
the case of some of the writs like habeas corpus or quo warranto
this rule may have to be relaxed or modified.
Has the appellant a right to file the petition out of which the
present appeal has arisen? The appellant is the President of the
Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem
formed a committee with the appellant as President for the purpose
of collecting contributions from the villagers for setting up the
Primary Health Center. The said committee collected Rs.10,000/- and
deposited the same with the Block Development Officer. The
appellant represented the village in all its dealings with the
Block Development Committee and the Panchayat Samithi in the matter
of the location of the Primary Health Center at Dharmajigudem. His
conduct, the acquiescence on the part of the other members of the
committee, and the treatment meted out to him by the authorities
concerned support the inference that he was authorized to act on
behalf of the committee. The appellant was, therefore, a
representative of the committee which was in law the trustees of
the amounts collected by it from the villagers for a public
purpose. We have, therefore, no hesitation to hold that the
appellant had the right to maintain the application under Art. 226
of the Constitution. This Court held in the decision cited supra
that "ordinarily" the petitioner who seeks to file an application
under Art. 226 of the Constitution should be one who has a personal
or individual right in the subject-matter of the petition. A
personal right need not be in respect of a proprietary interest :
it can also relate to an interest of a trustee. That apart, in
exceptional cases, as the expression "ordinarily" indicates, a
person who has been prejudicially affected by an act or omission of
an authority can file a writ even though he has no proprietary or
even fiduciary interest in the subject matter thereof. The
appellant has certainly been prejudiced by the said order. The
petition under Art. 226 of the Constitution at his instance is,
therefore, maintainable.”
26. By applying the ratio of the aforesaid judgments to the facts of
these cases, we hold that the writ petitions filed by the appellant were
maintainable and the learned Single Judge of the High Court committed grave
error by summarily dismissing the same. We also declare that the contrary
view expressed by the High Court in other judgments does not represent the
correct legal position.
27. In the result, the appeals are allowed, the impugned order is set
aside and the writ petitions filed by appellant are restored to their
original numbers. The High Court shall now issue notice to the respondents
and decide the writ petitions on merits.
28. It will be open to the appellant to apply for interim relief. If any
such application is filed, then the High Court shall decide the same on its
own merits.
…...……..….………………….…J.
[G.S. Singhvi]
…………..….………………….…J.
[Sudhansu Jyoti Mukhopadhaya]
New Delhi,
July 02, 2012.
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