1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R 1. S.B. CIVIL WRIT PETITION NO.1781/2008 (Mool Chand Vs. State of Raj. & Ors.) 2. S.B. CIVIL WRIT PETITION NO.1292/2008 (Satya Narayan Vs. State of Raj. & Ors.) 3. S.B. CIVIL WRIT PETITION NO.1293/2008 (Smt. Gopi Devi Vs. State of Raj. & Ors.) 4. S.B. CIVIL WRIT PETITION NO.1294/2008 (Tara Chand Vs. State of Raj. & Ors.) 5. S.B. CIVIL WRIT PETITION NO.1311/2008 (Ridmal Singh Vs. State of Raj. & Ors.) 6. S.B. CIVIL WRIT PETITION NO.1312/2008 (Banney Chand Vs. State of Raj. & Ors.) 7. S.B. CIVIL WRIT PETITION NO.1313/2008 (Ratan Lal Vs. State of Raj. & Ors.) 8. S.B. CIVIL WRIT PETITION NO.1314/2008 (Smt. Mohan Kanwar Vs. State of Raj. & Ors.) 9. S.B. CIVIL WRIT PETITION NO.1315/2008 (Chetan Lal Vs. State of Raj. & Ors.) 10. S.B. CIVIL WRIT PETITION NO.1316/2008 (Smt. Jubeda Vs. State of Raj. & Ors.) 11. S.B. CIVIL WRIT PETITION NO.1320/2008 (Bhanwar Lal Vs. State of Raj. & Ors.) 12. S.B. CIVIL WRIT PETITION NO.1321/2008 (Suleman Vs. State of Raj. & Ors.) 13. S.B. CIVIL WRIT PETITION NO.1322/2008 (Shanti Lal Vs. State of Raj. & Ors.) 14. S.B. CIVIL WRIT PETITION NO.1323/2008 (Rashid Vs. State of Raj. & Ors.) Date of order : October 23rd, 2008 2 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Mahesh Thanvi, for the petitioner. Mr. K.S. Saharan, for the respondent No.1 and 2. The controversy involved in all the above writ petitions is same, therefore, all the above writ petitions are being decided finally by this common order. However, for the sake of convenience, the facts narrated in SB Civil Writ Petition No.1781/2008 are taken into considerations. In the present writ petition, the petitioner has prayed for quashing of impugned notice dated 30.1.2008 issued by the Gram Sewak and Ex-officio Secretary, Gram Panchayat, Osian (Annexure-2) as well as the Resolution dated 9.2.2008 passed by Gram Panchayat, Osian (Annexure-3). Brief facts of the case are that a plot was allotted to the petitioner for carrying business by the Gram Panchayat Osian on a fixed monthly rent on 25.6.1978. The petitioner regularly deposited the rent as determined by the respondent – Gram Panchayat. However, all of a sudden on 30.1.2008, a notice was issued by the Gram Sewak cum Ex-officio Secretary, 3 Panchayat Samiti Osian whereby a direction was issued to the petitioner to vacate the shop in question because Gram Panchayat intends to construct shop on the plot of the petitioner upon which he is in possession as tenant and making payment of rent regularly. It is further stated in the notice that newly constructed shops would be given on rent by way of public auction and for that purpose a resolution was also passed by the Gram Panchayat Osian on 9.2.2008. According to the petitioner, such an action of the respondents is wholly violative of mandatory provisions of Rajasthan Panchayati Raj Rules, 1996, so also, violative of principles of natural justice because before initiating such an action neither any show cause notice has been issued nor any opportunity of hearing was provided to the petitioner. According to the petitioner, a method has been adopted to evict the petitioner from the plot upon which he is pursuing his business and regularly making payment of rent since 1978, therefore, if he will be evicted in illegal manner then certainly the petitioner will be deprived from his bread and butter, which is violative of Articles 19 and 21 of the Constitution of India. Learned counsel for the petitioner while inviting attention of this Court towards Rule 164 of the Rules of 1996 submitted that 4 there is provision under the Rules to let out the buildings and shops. Further, it is specifically provided that any Panchayati Raj Institution may let out their buildings to government offices, bank, post offices etc. on rent not less than the rates assessed by the competent officer of Public Works Department. Sub-rule (2) of Rule 164 of the Rules of 1996 provides that shops and other commercial sites be leased out for not more than three years and only through open auction by Committee consisting of 3 members. Meaning thereby, a complete procedure has been provided for letting out the shops by the Gram Panchayat and that procedure prescribed under Rule 164 (4) of the Rules of 1996 mandates that in case the premises are not vacated, then the Chief Executive Officer shall get the premises vacated after giving show cause notice for eviction of premises, if requested by concerned Panchayat or Panchayat Samiti. But in this case, neither the Gram Panchayat, Osian made a request to the Chief Executive Officer that they intends to construct the pucca shops on the disputed plots nor any show cause notice has been issued by the Chief Executive Officer to the petitioner for vacating the disputed premises, therefore, the impugned notice dated 30.1.2008 has been issued by the incompetent authority, which is contrary to the provisions of the Rules of 1996. As per the petitioner, the respondents are practising illegal method while violating mandatory provisions of the Rules of 1996. Further 5 upon perusal of impugned notice dated 30.1.2008, it is borne out that the Gram Panchayat Osian intends to construct shops on the disputed plots but it is no where mentioned in the impugned notice that such development plan prepared by Gram Panchayat, Osian has been duly approved by the Senior Town Planner or by the village planner not below the rank of assistant town planner posted in the department of rural development and Panchayati Raj as laid down by Rule 142 of the Rules of 1996. Therefore, there is no ground or basis for issuing impugned notice by the Gram Sewak cum Secretary who lacks jurisdiction to issue such notice. In this view of the matter, it is submitted that all these proceedings initiated by the respondents are illegal and in contravention of the procedure prescribed under the Rules of 1996. Therefore, whole proceedings initiated vide notice dated 30.1.2008 may be set aside and the respondents may be restrained from disturbing the petitioner from the plot in question. Per contra, by way of filing reply, preliminary objection has been raised by the respondents that the petitioner has not approached this Court with clean hands, therefore, he is not entitled to get equitable relief. It is pointed out in the reply that the petitioner has raised 6 construction over the disputed land without permission and further let out to one Shri Jagdish Sad while obtaining monetary benefits. It is also submitted that the petitioner was let out the land temporarily for use of Cabin measuring 4 x 5 sq. yds. in the year 1977, therefore, the lease in question was temporary in nature, so also Osian town is a popular place for tourism but the petitioner himself has unauthorizedly constructed the shop on the land which is let out to him, therefore, the object to use the place in question became prejudicial to the interest of the Panchayat as well as the public at large. The second preliminary objection has been raised that the present writ petition is against the show cause notice issued by the Panchayat, therefore, the writ petition is pre- mature. So also, the impugned notice and the resolution of the Gram Panchayat is appelable under Section 161 of the Rajasthan Panchayati Raj Act, 1994 before the appellate authority, therefore, this writ petition is to be dismissed on this ground also. In whole of the reply, it is contended by the respondents that the notice dated 30.1.2008 was rightly issued by the Gram Panchayat because the petitioner was user of land temporarily but now the land is required for development of the area in question as well as in the interest of Gram Panchayat. Further, it is submitted that the petitioner has not deposited the arrears of rent on the date of notice. 7 However, subsequently, he has deposited the rent but it creates no right in his favour. It is submitted by the respondents that the petitioner has incorrectly alleged in the writ petition that before issuance of notice and passing resolution, there was any condition precedent for inviting objections of the petitioner, therefore, the notice to show cause has been issued to the petitioner, which cannot be questioned by the petitioner on the ground that no opportunity of hearing was given to him prior to giving notice to him. More so, this notice itself is compliance of principles of natural justice, which is under challenge. The respondents in their reply specifically stated that the requisite procedure will be followed for re-allotment. The petitioner is not entitled to get any equitable and discretionary relief by this Court while submitting wrong facts in the writ petition. The action of the answering respondents is completely justified and within its jurisdiction and authority of law. Further, it is stated that no mandatory provisions have been flouted by the respondents while issuing notice to the petitioner for vacating the premises. In rejoinder, it is submitted by the petitioner that neither the petitioner has raised construction over the disputed land nor let out the 8 land to Shri Jagdish Sad, therefore, the first preliminary objection is totally false and has no force to stand before eye of law. With regard to second preliminary objection, it is submitted that a perusal of notice will reveal that the said notice cannot be termed as show cause notice because it is in the form of order, therefore, the right of hearing was to be given to the petitioner before passing such notice. In the notice, it is directed to vacate the land within seven days and in the event of non-vacating the shop the Panchayat will take steps at its own level to evict the petitioner from the land in dispute, therefore, the second preliminary objection also lacks merit. With regard to third preliminary objection, it is submitted that no appeal is provided under Section 161 of the Rajasthan Panchayati Raj Act, 1994 before any Appellate Authority against the impugned notice because in the Act there is no Section 161 in the Act. The total sections are 124, therefore, such preliminary objection is totally baseless and have no foundation to stand before eye of law. It is stated in the rejoinder further that the petitioner has regularly deposited the rent. He has placed on record Annexure-1 the receipt, which is not denied by the respondents and all the contents of 9 the reply are far from truth. Therefore, this writ petition deserved to be allowed and the impugned action initiated vide Annexure-2 and 3 deserves to be set aside. I have considered the rival submitted made by both the parties. It is not disputed by both the parties that at present Rajasthan Panchayati Raj Rules, 1996 are in force. It is also not disputed by the respondents that the petitioner is possessing a piece of land on rent which is allotted to him in the year 1977-78 by the respondent Gram Panchayat. It is also not disputed that there is any rent due against the petitioner. Meaning thereby, the petitioner is in legal possession of the plot. Therefore, obviously for eviction when particular procedure is laid down under Section 164 (4) of the Rules, then it is mandatory for the respondents to act upon while following the said procedure laid down under the Rules. Rule 164 of the Rules of 1996 is as follows : “164. Letting out of Panchayati Raj Buildings and Shops.- (1) Any Panchayati Raj Institution may let out their buildings to government offices, bank, post officers etc. on rent not less than the rates assessed by the competent officer of Public Works Department. 10 (2) Shops and other commercial sites be leased out for not more than three years and only through open auction by Committee consisting of 3 members, as under : (a) Chief Executive Officer, Accounts Officer and one member of Zila Parishad nominated by Pramukh for buildings of Zila Parishad. (b) Vikas Adhikari, Accountant and one Member of Panchayat Samiti nominated by Pradhan for immovable properties of Panchayat Samiti. (c) Committee as per Rule 151 at the Panchayat Level. (3) The agreements for leasing out such premises on rent shall include the condition of 10% increase of rental amount every years. (4) In case the premises are not vacated after three years time limit, or it is sub- let to some other persons in violation of terms of agreement or rent is not deposited regularly, Chief Executive officer shall get the premises vacated after giving show cause notice for eviction of premises, if requested by concerned Panchayat or Panchayat Samiti. (5) Panchayat and Panchayat Samiti may also negotiate the matter for extending the terms of three years but in such case yearly increase in rent shall be 20% amount every year by mutual agreement.” Upon perusal of Rule 164 (4) of the Rules of 1956, it is abundantly clear that there is a provision 11 to get the premises vacated and for that purpose, the Chief Executive Officer is having jurisdiction to issue show cause notice for eviction of the premises, if requested by the concerned Panchayat and Panchayat Samiti. Obviously in this case notice has been issued by the Gram Sewak cum Secretary, which is not in consonance with Rule 164 (4) of the Rules of 1956. There is no jurisdiction left with the Gram Sewak cum Secretary to issue such notice because all the powers are left with the Chief Executive Officer as per Rule 164 (4) of the Rules of 1996, therefore, on this ground alone, this writ petition deserves to be allowed. Similarly, if any resolution has been passed by the Gram Panchayat then also the respondents are required to request the Chief Executive Officer to take action against the person who is not vacating the premises let out by the Gram Panchayat. Further, the said action can be taken by the Chief Executive Officer as mentioned in sub-Rule (4) of Rule 164 of the Rules of 1996. In this view of the matter, all the writ petitions are allowed. The notice Annexure-2 dated 30.1.2008 issued by the Gram Sewak cum Ex-officio Secretary, Gram Panchayat, Osian is totally without jurisdiction. Hence, the notice Annexure-2 as well as the resolution Annexure-3 which is said to be passed on the basis of Annexure-1 is hereby set aside and further it is required to be observed that the 12 respondents are not precluded from taking any action for eviction against the petitioners in accordance with Rule 164 (4) of the Rules of 1996. (GOPAL KRISHAN VYAS), J. arun