\ DsT THE fflGH COURT OF JUDICATURE OF CHHATTISGARH ATBILASPUR WRIT PETITION UNDER ARTICLES 226/227 OF THECONSTITUTION OF INDIA ^y rf.t .^J. te-t^ "J»tt*^ WRIT PETITIONNO. OF 2004 PETITIONER \^^ ^^y < ^yy <^^ '^-" ^^ ..•<...'l"^Y^"" •^y" JAI BUDHADEV SELF HELP GROUP (^-^iWi ^^), ACTBSTG THROUGH ITS PRESIDENT SANTOSH KUMAR DHURVE, S/o. SITARAM DHURVE AGED ABOUT 29 YEARS, R/0. VILLAGE BIRKONA, TAHSIL KAWARDHA, DISTT. KABIRDHAM (C.G.). VERSUS RESPONDENTS 01) 02) 03) 04) 05) STATE OF CHHATTISGARH ACTING THROUGH PANCHAYAT & SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF CHHATTISGARH D.K.S.BHAVAN, RAIPUR (C.G.) JANPAD PANCHAYAT, KAWARDHA, ACTING THROUGH ITS CHIEF EXECUTIVE OFFICER, DISTRICT KABIRDHAM (C.G.). COLLECTOR DISTRICT KABIRDHAM) (C.G.) DIRECTOR, PANCHAYAT AND SOCIAL WELFARE, GOVERNMENT OF CHHATTISGARH (RAIPUR) JAI LAXMt SELF HELP GROUP (BHADU MATSYA SAMUH) VILLAGE BIRKONA, TAHSIL KAWARDHA, DISTT. KABIRDHAM (C.G.). ACTWG THROUGH ITS PRESIDENT BHADURAM BBW*'^ --2-- WRIT PETITION UNDER ARTICLES 22/6/227 OF THE CONSTITUTION OF INDIA FOR^ ISSUANCE OF APPROPRIATE WRIT / WRITS, ORDER L ORDERS DIRECTION/DIRECTIQNSJ;TC. L^ C-—-7< v^-; / ft ! ^) ,1^~ ,/ HIGH COURT OF CHHAmSGARH : BILASPUR SINGLE BENCHi HO]^BI^ SHRI MANINDRA MOHAN SHRIVASTAVA.J. PETITIONER RESPONDENTS Writ Petition (•I No.989 ofL2004 Jai Budhadev Self Help Group (Swa- Sahayata Samuh^ Acting through its President Versus State of Chhattisgarh and others ^..-... -„- FOR PRONOUNCEMENT OF ORDER ON ''' JULY,2011 Sd/- Manindra Mohan Shrivastava Judge •y- ^— HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAILSHRiyASTAVA.J. PETITIONER RESPONDENTS Writ Petition !•) No.989 of 2004 Jai Budhadev Self Help Group (Swa- Sahayata Samuh) Acdng through its President Versus State of Chhattisgarh and others Writ Petitlon under Article 226/227 of the Constitution of India Appearance: Shri K. A. Ansari, Senior Advocate with Shri Devesh Kela, counsel for the petitioner. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondents No.l, 3 & 4. Shri Sandeep Dubey, counsel for respondent No.2. Shri Malay Shrivastava, counsel for respondent No.5. ORDER (Passed on _/^.07.2011) 1. The petitioner has filed this petition assailing the correctness and validily of order dated 08-12-2003 (Annexure P-21) passed by the Collector, District Kabir Dham, order dated 23-12-2003 (Annexure P-22) passed by the Chief Executive Officer, Janpad Panchayat, Kawardha and order dated 10-03-2004(Annexure P-28) passed in revision by the Director, Panchayat. 2. The facts necessary for adjudication of controversy involved in the petition are that in the matter of grant of lease of fish tank known as Darri Tank, situated at Village Birkona, applications were invited in the month of August, 2002, pursuant to which, the petitioner as well as respondent No.5 and one Netaji Matsya Udyog Sahkari Samid, Kawardha submitted -2- \^-—:."... applications. After considering applications, the Agriculture Standing Cominittee of the Janpad Panchayat, Kawardha resolved to grant lease to respondent No.5. When the resolution was sent for approval of the Collector, The Collector suspended the resolution in exercise of its power under Section 85(1) of Chhattisgarh Panchayat Raj Adhiniyam, 1993 (In short "the Adhiniyam of 1993") vide its order dated 30-08-2002 (Annexure P-1). The said order of suspension was confirined by the Commissioner, Raipur Division vide its order dated 12-09-2002 (Annexure P-2). On 10- 10-2002, the Collector vide his letter dated 10-10-2002(Annexure P-3) directed the Chief Executive Officer, Janpad Panchayat, Kawardha, to consider received applications for grant of lease in accordance with the govemment instructions, rules and on its own merits. Thereafter, the Agriculture Standing Committee of Janpad Panchayat, Kawardha, convened its meeting on 21/22-11-2002 (Annexure P-6) and it is the case of the petitioner that the committee resolved that petitioner's group is entitled for grant of lease of Darri Tank. A report was prepared by the committee on 05-12-2002(Annexure P-7). Thereafter, the Additional Collector vide its order dated 12-12-2002 (Annexure P-8), recommended to the Chief Executive Officer, Janpad Panchayat, Kawardha, for grant of lease to the pedtioner, upon which, the Chief Executive Officer vide his letter dated 23-12-2002 (Annexure P-9) directed the petitioner to deposit the requisite amount of Rs.10,523/- in the account of the Janpad Panchayat, Kawardha, to facilitate execution of lease deed. Thereafter, lease deed (Annexure P-10) was executed between the petitioner and the Chief Executive Officer, Janpad Panchayat, Kawardha, on 20-12-2002 and possession of the tank was handed over to the petitioner's group on 24-12-2002, whereafter the petitioner started rearing fish from the tank. -3- ./ .^ •<.. Aggrieved by the order dated 23-12-2002 passed by the Chief Executive Officer, Janpad Panchayat, Kawardha, an appeal was preferred by the respondent No.5 before the Collector. The Collector vide its order dated 08-12-2003 (Annexure P-21) allowed the appeal. In compliance of the order passed in appeal, the Chief Executive Officer, Janpad Panchayat, Kawardha, vide its letter dated 23-12-2003 (Annexure P-22) communicated the petitioner that as lease has been cancelled, possession of the tank be handed over to Janpad Panchayat, Kawardha. 3. Being aggrieved by the order passed in appeal by the Collector, the pedtioner preferred revision before the Director, Panchayat, but vide impugned order dated 10-03-2004 (Annexure P-28), revision petition has been dismissed. 4. Learned counsel for the petitioner submits that the order passed by the appellate authority and the Revisional authority are iUegal and unsustainable in the eye of law inasmuch as the petitioner was granted lease upon due consideration of his claim on merits by the Agriculture Standing Committee of the Janpad Panchayat, Kawardha, which resolved on 22-11-2002 that the respondent No.5 is disqualified for grant of lease and as the petitioner alone was found qualified and eligible for grant of lease, on the basis of which, the Additional Collector vide its order dated 12-12-2008 (Annexure P-8), recommended to the Chief Execudve Officer, Janpad Panchayat, Kawardha for grant of lease, and therefore, the Chief Executive Officer was fully justified in issuing letter dated 23-12-2002 (Annexure P-9) directing the pedtioner to deposit the amount of lease to facilitate execution of lease deed. Next submission of learned counsel for the petitioner is that the appeal filed by the respondent No.5 before the Collector itselfwas misconceived in law, because letter dated 23-12-2002 :"'•.-- -4- ^••- 'sy —!-^/ (Annexure P-9) did not constitute any order, but it was merely a coramunication directing the petitioner to deposit the requisite amount for execution of lease deed. He further submitted that the appeal itself was not competent because neither resoludon dated 22-11-2002 (Annexure P- 6) of the Agriculture Standing Coramittee of the Janpad Panchayat, Kawardha, nor recommendadon dated 12-12-2002 (Annexure P-8) of the Additional Collector was challenged, and therefore, the comniunication alone could not be made a subject inatter of appeal. It is next contended that the Collector has passed the order ignoring its eariier order dated 30-08-2002 (Annexure P-1) and order of the Commissioner dated 12-09- 2002 (Annexure P-2), by which, the decision earlier taken to grant lease to respondent No.5 was suspended. It is further submitted that the ground on which the appeal was allowed was not tenable, because the petidoner was granted lease pursuant to the recommendation of the Agriculture Standing Committee of the Janpad Panchayat, Kawardha. It is also submitted fhat the Revisional authority also did not apply its mind on the aspect that as' the respondent No.5 was found disqualified under resolution dated 22-11-2002 passed by the Agriculture Standing Committee of the Janpad Panchayat, Kawardha and the petitioner was recommended, there was no illegality in communication dated 23-12-2002 of the Chief Executive Officer, requiring the petitioner to deposit the lease amount to facilitate the execution oflease deed. 5. On the other hand, learned counsel for respondents No.l, 3 & 4 submitted that as the dispute is between the petitioner and the respondent No.5, they have nothing to say in the matter. Learned counsel further submitted that the Collector as well as the Director, Panchayat -5- .'\..~--' / ^ ':"- •n'-' / '":i " acted as a quasi judicial authority, and therefore, they are only forinal parties. 6. Learned counsel appearing for respondents No.2 submitted that the order passed by the appellate authority and the Revisional Authority does not call for any interference. He submitted that the communication dated 23-12-2002 (Annexure P-9) constitutes an order because by this letter, the Chief Executive Officer directed the petidoner to deposit the amount of lease stating that the lease is required to be executed. He next contended that in compliance of order dated 10-10-2002 passed by the Collector, the Agriculture Standing Committee of the Janpad Panchayat, Kawardha on 02-12-2002 decided to grant lease to the petitioner. It is next submitted that in view of the order passed by the Collector in appeal, the Agriculture Standing Coramittee of the Janpad Panchayat, Kawardha cancelled order dated 23-12-2002 passed by the Chief Executive Officer and resolved to grant lease of the fish tank to the respondent No.5, whereafter, the Janpad Panchayat, Kawardha has granted lease to respondent No.5 on 11-03-2004 after corapleting formalities and possession of the fish tank has been handed over the respondent No.5. 7. Leamed counsel appearing for respondent No.5 submitted that by communication dated 23-12-2002 (Annexure P-9), the Chief Execudve Officer directed the petidoner to deposit the lease amount, so that, lease deed may be executed, which constitutes an order, and therefore, the appeal was maintainable. It is further submitted that the order passed by ftie Collector does not suffer from illegality, because the CoUector rightly held that in compliance of order dated 10-10-2002 (Annexure P-3), the matter relating to grant of lease was required to be considered by the Janpad Panchayat, Kawardha and without decision of the Janpad ,' .-.'-\ -6- Panchayat, Kawardha in that regard, the Chief Executive Officer had no authority to proceed to grant lease to the petitioner. He submits that the appeal in substance is against the grant of lease to the petitioner and against the decision taken by the Agriculture Standing Committee of the Janpad Panchayat, Kawardha on the ground that without consideration on merits, lease was granted in favour of the petitioner. 8. Next submission of learned counsel for respondent No.5 is that no resolution was passed by the Janpad Panchayat, Kawardha in fhe matter of grant of lease in favour of the petitioner. Learned counsel for the respondent No.5 next submitted that the writ petition is liable to be dismissed only on the ground that the petitioner had suppressed material fact while giving informadon in para 10 of the writ petition. Learned counsel submitted that the petitioner has already filed a suit for injunction and declaration in the Court of Civil Judge Class-II, Kabirdham, in which, same issue, as has been raised in the writ petition, has been raised. The leamed trial Court vide its order dated 29-03-2004 (Annexure R-5/3) rejected petitioner's application for grant of temporary injunction, thereafter, the petitioner preferred Miscellaneous Appeal registered as M.A.No.Ol of 2004, in which, an application for ex parte stay was dismissed on 12-04-2004 (Annexure R-5/4) and without disclosing all these facts, the pedtioner has preferred the instant writ petition. It is next contended that the order passed by the Collector and the Commissioner does not call for any interference. On 21/22-11-2002, the Agriculture Standing Committee of the Janpad Panchayat, Kawardha only examined the respective claim of the petitioner and the respondent No.5, but no resolution was passed by the Agriculture Standing Committee of the Janpad Panchayat, Kawardha and in the absence of the same, the Chief -7- ^ ^ •'^ '^x^ Executive Officer had no jurisdiction and authority to issue order dated 23-12-2002 directing the petitioner to deposit the amount of lease stating that the lease is required to be executed. He further submits that after the order was passed by the Collector in appeal on 08-12-2003, the Agriculture Standing Committee of the Janpad Panchayat, Kawardha also passed a resoludon on 22-12-2003 nullifying order dated 23-12-2002 of the Chief Executive Officer and resolved to give tank to the respondent No.5. Thereafter, vide permission letter dated 29-12-2003, the Assistant Director, Fisheries also granted permission for grant of lease to respondent No.5. Thereafter, on 29-12-2003, the Chief Executive Officer called the respondent No.5 with all requisite documents for completion of formalities and on 01-01-2004 directed the respondent No.5 to deposit the requisite ainount towards deed amount, which was also deposited and thereafter, order granting lease was passed on 05-01-2004 in favour of the respondent No.5. After that, on 11-03-2004, the respondent No.5 has been granted possession of the fish tank and after dismissal of revision petition and application for temporary injunction in the Civil Suit, an agreement was executed in favour of the respondent No.5 on 24-03-2004. It is lastly submitted that the writ petition involves highly disputed quesdon of fact, which may not be gone into in the present writ petition and further that the finding recorded in appeal as well as in the revision, cannot be said to be perverse as the same is based on proper appreciadon of material available on record, which calls for no interference. 9. Respondent No.5 has raised serious objection to the maintainability of the writ petition and has prayed for dismissal of the writ petition on the ground of suppression of material fact. In fact, respondent No.5 raised preliminary objection on the ground that the writ petition is liable to be /"^/('..,^ y/ \<;.'< y dismissed as the petitioner has mislead the Court by suppressing that the petitioner had already filed a civil suit seeking declaration in his favour and also for grant of permanent injunction on the same issue, which has been raised in this writ petidon, though in the garb of challenging the order passed by the Collector as appellate authority and the Director, Panchayat as Revisional authority. It is not in dispute that the petitioner has ffled Civil Suit No.lS-A/2004 in the Court of Civil Judge Class II, Kabirdham. In fhe list of dates of event, averred in para 9 of the return of respondent No.5, it has been mendoned at S.No.16 that the petitioner filed civil suit on 18-03-2004. The fact of filing of suit on 18-03-2004 has not been substantially disputed by the petitioner. A copy of the plaint has been placed on record as Annexure R-5/1 along with the preliminary objection of respondent No.5. A perusal of the plaint shows that the petitioner and its meinbers filed a suit against the Janpad Panchayat and respondent No.5 praying for declaradon that agreement, if any, executed by the Janpad Panchayat in favour of the respondent No.5 in respect of the tank in quesdon, is illegal and void. The petitioner also prayed for grant of permanent injunction to restrain the Janpad Panchayat and the respondent No.5 from interfering with the petitioner's right of rearing fish during the period ofagreement till 30-06-2012. The pleadings in the plaint clearly show that the suit is in respect of the same tank, in respect of which, present writ petition has been filed. The basis, on which, petitioner claims decree is the agreement under which lease was granted in favour of the petitioner, which was subsequently cancelled by order dated 08-12-2003 (Annexure P-21) passed by the Collector in appeal preferred by the respondent No.5. Though, the appeal was allowed by the Collector on 08-12-2003, against which, revision was preferred, this fact has not been disclosed in the plaint while filing suit on 18-03-2004. It would not ,'\ -9- M'^- ^. \ ^'' /'•' '..2 i;? \'' ^ ^z- out of place to mention that vide order dated 10-03-2004, the Director, Panchayat, dismissed the revision, affirming fhe order dated 08-12-2003 passed by the Collector. The fact that the petitioner had prayed for temporaiy injunction, which applicadon was rejected by the trial Court on 29-03-2004 (Annexure R-5/3) has also not been disputed by the petitioner. This writ petition has been filed on 02-04-2004 and in support of the writ petition; affidavit of Santosh Kumar Dhurve sworn on 17-03-2004 has been filed. A perusal of the plaint shows that Santosh Kumar Dhurve is Plaintiff No.2 and he has jointly verified the plaint and has also been filed affidavit along with the plaint as also in support of the application for temporary injunction. True it is that on the date when the affidavit in the writ petition was sworn on 17-03-2004, order on the application for grant of temporary injuncdon was not passed, but the civil suit had already been filed along with the application for grant of temporary injunction, which was pending. Moreover, the Collector had already passed order dated 08-12-2003 allowing appeal of respondent No.5 and canceling agreement of lease, quashing fhe order dated 23-12- 2002 (Annexure P-9) passed by the Chief Executive Officer. These facts were not disclosed by the petidoner while filing the suit, the fact of filing suit was definitely suppressed by the petidoner by filing instant writ petition. Moreover, the revision petition filed by the petitioner was dismissed on 10-03-2004. Even though, specific allegation of suppression of fact leveled by the respondent No.5, the petitioner as well as the respondent No.5 have not come out with a case either in reply to preliminary objection or otherwise by any pleading that till the date of filing of writ petition, the pedtioner had no knowledge of order passed by the Commissioner in revision petition. Though, the peddoner could challenge the order passed by the Collector and the Revisional authority 1' '(SfeS^1:' °• ^ '^—^^ '^.'^"^.-^ -10- / .~)" / i .-. ... w^' "-^. by filing writ petition, the petitioner filed civil suit to enforce his right arising out of the lease granted in his favour by seeking decree for declaration and injuncdon. Therefore, substantially the claim of the petitioner in both the cases arose out of the lease, which was executed in his favour, pursuant to order dated 23-12-2002 (Annexure P-9) of Chief Executive OfBcer, which was set aside vide order dated 08-12-2003 by the Collector. Therefore, I am of the opinion that the petitioner has not come with clean hands before this Court. In all fairness, the petitioner ought to have disclosed that he has already filed a suit seeking declaration and permanent injunction on the basis of right claimed under lease, because the orders of the appellate authority and the Revisional authority decided the case of the petitioner in respect of the same tank and the lease, which was granted in his favour. Therefore, the petitioner is guilty of suppression of material fact. 10. A perusal of Annexure P-6 would show that on 21/22-11-2002,the Agriculture Standing Committee had examined the merits of the claim of the petidoner and the respondent No.5. However, the minutes do not show that any resolution was passed by the Agriculture Standing Committee. Though, the leamed Senior Counsel for the petitioner has submitted that the minutes of the meeting dated 21/22-11-2002 disclosed that nothing adverse was recorded against the peddoner and several discrepancies were found in the case of respondent No.5 recording communicadon that the respondent No.5 is not qualified for grant of lease yet the records does not by itself show fhat the resolution was passed by the Agriculture Standing Committee of Janpad Panchayat, Kawardha. On 02-12-2002, a note sheet was prepared by the Secretaiy of the Agriculture Standing Committee stating that upon examination of the case of the petitioner and -11- the respondent No.5, petitioner is entitled for grant of lease, whereas respondent No.5 is guilty of violation of terms and conditions and the inatter was placed before the Chief Executive Officer for grant of sanction. Thereafter, the Chief Executive Officer issued letter dated 23-12-2002 directing the petidoner to deposit the araount of lease stating the lease is to be granted. 11. The Collector vide its order dated 08-12-2003 quashed order (Annexure P-9) on the consideration that the matter had remained pending and under discussion before the Agriculture Standing Committee and during that period, the Chief Executive Officer passed the order, which is beyond his authority. The appeal was filed on specific pleading that the case of the petitioner and the respondent No.5 were considered by the Agriculture Standing Committee on 21-12-2002 and 22-12-2002 and the matter was to be further enquired on 23-12-2002. 12. Leamed counsel for respondents No.2 8s 5, both have also submitted that even if it is assumed that the Agriculture Standing Committee resolved to award lease in favour of the petitioner, the snatter was required to be approved in the General Body Meeting of the Janpad Panchayat, Kawardha, which was not done and the Chief Executive Officer traveling beyond its authority issued letter dated 23-12-2002 (Annexure P- 9). It has been submitted that the State Government issued order on 24-03-2003 and in class-I (1.2), it is mentioned that the power to grant lease in respect of the land exceeding 10 Hectare, but less than 100 Hectare vested in Janpad Panchayat. The aforesaid order has been placed before me during the course of arguments, on which, no dispute has been raised by the parties. -12- i^y %S- 13. Section 47 of the Adhiniyam of 1993 provides for constitution of Standing Committee of Janpad Panchayat and Zila Panchayat and sub section(l) of Section 47 provides for constitudon of Agriculture Standing Cominittee. Sub Section (6) of Section 47 also provides that every conimittee shall, in relation to fhe subject assigned to it, exercise such powers and perform such of the functions of the Janpad Panchayat or Zila Panchayats, as the case may be, as may be prescribed. In exercise of rule making power, the State Govemraent has framed rules known as Janpad Panchayat and Zilla Panchayat Standing Committees (Election of Members, Powers and Functions and Term of Members and Procedure for the Conduct of Business) Rules, 1994 (In short " Rules of 1994"). Powers of Standing Committee have been prescribed under Rule 16, whereas funcdons have been prescribed under Rule 17 of the Rules of1994. None of the provisions contained in Rule 16 show that the Committee has been empowered to grant lease of tanks. Rule 17 Sub Rule(a) provides that the concemed standing cominittee shall perform the functions falling within the purview of sub-section(l) of Section 50, in so far as Janpad Panchayat is concerned. A perusal of the provision contained in Section 50 sub- section(l) of the Adhiniyam of 1993 reveals that though Janpad Panchayat may make reasonable provision in the block in respect of the matters provided therein which includes animal husbandiy and fisheries it does not by itself empower the standing committee to grant lease. No other provisions contained in sub-section (1) of Section 50 of the Adhiniyam of 1993 authorize standing committee to exercise ppwers and functions of Janpad Panchayat in the matter of grant of lease. Clausefxii) of sub section 1-A of Section 50 of the Adhiniyam of 1993 provides that subject to the provisions of this Act and rules made thereunder and -13- f4.>/ ^&i subject to Policy, directions, instructions, general or special orders as may be issued by the State Government from time to time, it shall be the duty of the Janpad Panchayat to exercise and perform such other powers and functions as the State Government inay entrust to it. The State Govemment vide order dated 24-03-2003 has entrusted the powers and functions relating to grant of lease for rearing fish from tank of area exceeding 10 Hectare, but less than 100 Hectare. Therefore, the Agriculture Standing Coramittee by itself is not empowered to grant lease and the resolution passed by it, in addition to approval from the State Govemment or any other prescribed authority, is required to be approved by the Janpad Panchayat itself, which would mean the general body in its meeting, in accordance with the provisions relating to conduct of business as contained in Section 44 of the Adhiniyam of 1993, which generally deal with the conduct of business and procedures of Panchayat. In the present case, after the Agriculture Standing Coinmittee held its meeting on 21/22- 12-2002 and considered merits and demerits of the petitioner/respondent No.5, the Secretary of the Committee sent the matter to the Chief Executive Officer, who issued the letter dated 23-12-2002 to the petitioner to deposit the lease araount stating that the lease is required to be executed. There is nothing on record to show