Gaon Sabha/Land Management ... vs State Of U.P. And 6 Others
2018 Latest Caselaw 1946 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 32
 

 
Case :- WRIT - C No. - 19147 of 2018
 

 
Petitioner :- Gaon Sabha/Land Management Committee Gram Panchayat And Another
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Ashish Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Dhiraj Srivastava,Mukesh Kumar,Pushpendra Singh Jadon
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Ajit Kumar,J.

1. The petitioner No.1, who is Gaon Sabha/ Land Management Committee duly constituted under the U.P. Panchayat Raj Act, 1947 and the petitioner No.2 duly elected Pradhan thereof have questioned the license/ renewal of license granted at the instance of Zila Panchayat, Firozabad dated 9th May, 2018 permitting respondent no.6 and 7 to hold a cattle market in Srinagar Pachokhara for the year 2018-2019, within its territorial limits.

2. The factual matrix as we draw in a narrow compass is that for the first time, father of the petitioners late Laxmi Narain Upadhyay was granted license in the year 1957 for holding cattle market on every Friday in village Pachokhara, District- Firozabad. He continued to enjoy license to hold cattle market on year to year basis by the District Administration and later on by the Zila Panchayat. Sometimes in the year 1977 Gaon Sabha by some resolution tried to restrain late Laxmi Narain Upadhyay from holding cattle market and also filed civil suit bearing O.S. No. 239 of 1977 which came to be dismissed. However, the appeal filed by the Gaon Sabha was allowed but the judgment of the first Appellate Court was reversed in second appeal by the High Court holding that the Gaon Sabha had no power to prohibit or restrict holding of the cattle market vide judgment in Laxmi Narain Upadhya and others v. Gram Sabha, 1998 (3) AWC 1629. Vide Para 16 and 17 the court held thus:

"16. In conclusion, it is found that the resolution dated 14.8.1977 adopted by the Gaon Sabha purporting to be under Section 15 (h) of the Act is invalid, Ineffective and Inoperative in the absence of rules framed by the State Government in exercise of power conferred under Section 110 or the bye-laws as contemplated under Section 112 of the Act. The Gram Sabha has no authority, power or competence to restrict the right of the defendant-appellants in holding the cattle market on their own land. The restriction put by the Gram Sabha on the right of the defendant-appellants by resolution dated 14.8.1977 is wholly illegal arid of no consequence.

17. In the result, this appeal succeeds. It is allowed and the Judgment and decree dated 23.1.1991 passed by Special Judge (E. C. Act)/Additional District Judge, Agra in Civil Appeal No. 24 of 1986 are set aside. The resultant effect would be that the Suit No. 239 of 1977 filed by the Gaon Sabha-Pachokhra plaintiff-respondent shall stand dismissed with costs throughout."

3. Thereafter the Gaon Sabha applied for license to hold the cattle market. The said application was rejected by the Licensing authority on 20th June, 1998. In the Meanwhile, Gaon Sabha preferred Special Leave Petition against the judgment of this Court passed in second appeal No. 234 of 1991 dated 11th March, 1998 but Special Leave Petition filed by the Gaon Sabha bearing No. 374 of 1999 however, was withdrawn by it. Late Laxmi Narain Upadhyay, died on 01.04.2010 and the license was renewed in favour of the petitioners who succeeded bhumidhari land of their father late Laxmi Narain Upadhyay.

4. Zila Panchayat, passed resolution dated 05.03.2011 that cattle market shall be held jointly only by Gaon Sabha and Zila Panchayat and consequently partnership agreement took place on 19.04.2011 between the Gaon Sabha and the Zila Panchayat whereunder it was agreed that the cattle market shall be jointly held by Zila Panchayat and Gram Sabha over the gram sabha land. This agreement was entered between the parties on the basis of resolution dated 05.03.2011 passed by the Zila Panchayat, which was later on annulled/ cancelled by the Zila Panchayat itself vide resolution dated 28th December, 2013. However, in the meanwhile, in view of the agreement between the Zila Panchayat and Gaon Sabha, the contesting respondents were not granted license/ renewal of the license from 22.04.2011 to 02.09.2011. Under the circumstances, the contesting respondents filed Writ Petition No. 24599 of 2011 before this Court questioning the agreement between the Zila Panchayat and Gaon Sabha but the same came to be dismissed by judgment and order dated 12th May, 2011. Against the said judgment the contesting respondents preferred Special Leave Petition bearing No. 16410 of 2011 in which initially interim stay order was granted on 25.07.2011. Later on since the period of license/ authorization to hold cattle market was only for a period of one year, the Special Leave Petition vide order dated 22.04.2013 was disposed of with the direction to the appellant (contesting respondents herein in this case) to move an application before the Chief Executive Officer to grant license to hold the cattle market on their bhumidhari land and the Chief Executive Officer of Zila Panchayat was directed to decide the application on its own merit after hearing the Gaon Sabha who had been raising objections. In compliance of the order of the Supreme Court, the contesting respondents moved an application before the Chief Executive Officer, who vide order dated 12th August, 2013 rejected the application for grant of license to the contesting respondents but since the interim protection was already granted by the Supreme Court to the contesting respondents, the Chief Executive Officer also continued the said protection for a further period of two weeks. The said order of the Chief Executive Officer dated 12th August, 2013 was further challenged by the contesting respondents by way of appeal before the Chairman, Zila Panchayat, Firozabad, who vide order dated 16th August, 2013 allowed the same and reversed the order passed by the Chief Executive Officer, Zila Panchayat, Firozabad dated 12th August, 2013 and further directed for grant of license to the petitioners on their own bhumidhari land for the period of 2013-2014. This order of the appellate authority dated 16th August, 2013 has been challenged before this Court by these very petitioners vide Writ Petition No. 1515 of 2014 which is still pending but without their being any interim order. The said writ petition is cognizable by the Single Judge.

5. It appears that in compliance of the order of the appellate authority dated 16th August, 2013, the petitioners were granted license for the year 2013-2014 and thereafter 2014-2015, 2015-2016 and 2017-2018 for holding the cattle market on their bhumidhari land and the same has remained unchallenged till date. In the present writ petition, the petitioners have challenged the grant of license/ renewal of earlier license for the year 2018-2019.

6. The argument advanced by the learned counsel for the petitioners is that the contesting respondents were not entitled to hold the cattle market even on their bhumidhari land in the face of the fact that there existed an agreement between the Gram Sabha and Zila Panchayat and that the land of Gaon Sabha is already reserved for the said purpose. It is contended that the right of the Gaon Sabha flows from the registered agreement dated 18.04.2011 which has been entered between the petitioners and the Zila Panchayat. Though there is no pleadings and foundation laid in the writ petition but by means of the supplementary affidavit a further ground is sought to be raised that the grant of license to the contesting respondent No. 6 and 7 is opposed to public policy as respondent no.7 is an elected member of Zila Panchayat. Learned counsel for the petitioners for this purpose has placed reliance upon the judgment in the case of Ram Bishwash v. District Officer (1997) 2 AWC 1231 of learned Single Judge who concurred with a view of another judge in a case Division Bench where there was the difference of opinion.

7. Per contra, the argument advanced by the learned counsel for the contesting respondents is that their rights have come to be crystallized in view of the order passed by the Appellate authority dated 11th December, 2013 and the grant of the present license is nothing but a renewal of license earlier granted to the petitioners in compliance of the order passed by the Appellate Authority (supra). So, unless and until the said order is set aside, altered or reversed, the petitioners do not get any right to challenge the present license. Thus, the contesting respondents have questioned the maintainability of the writ petition in the face of the fact that earlier writ petition bearing Writ - C No. 1515 of 2014 challenging the order of the appellate authority is pending adjudication before this Court.

8. In reply to the argument of the learned counsel for the petitioner that grant of license to a member of Zila Panchayat was opposed to public policy, further argument is advanced that as far as the grant of license is concerned to the contesting respondents that included the respondent No.7, who is the member of the Zila Panchayat is concerned, the license has continued to be granted to the petitioners' father since 1957 and thereafter to the petitioners since 2010 and except for a brief period of five months in the year 2011, they have continued to enjoy license to hold the cattle market over the bhumidhari land whereas the contesting respondent no.7 has become member of Zila Panchayat only in the year 2016. It is also contended that there is no such provision under the by-laws framed for regulating the grant of license to hold the cattle market, which bars Zila Panchayat from granting license to its member. Yet another argument is advanced that it is neither a Theka to say contract of work or a lease or tender which can be said involving any public participation and, therefore, granting of license to the member of Zila Panchayat can be held to be opposed to be public policy.

Rival submissions fall for consideration.

9. We consider it appropriate in this case to deal first with preliminary objections raised by learned counsel for the contesting respondents about the maintainability of the present writ petition and if we come to hold that the present writ petition is not maintainable on account of a earlier filed writ petition pending adjudication before this Court, it would not be necessary for us to go into other questions at this stage.

10. Having heard learned for the parties and having examined the record carefully, we find that the there has been three round of litigation between Gaon Sabha and contesting respondents. In the first round of litigation, it was the Gaon Sabha who instituted suit of permanent injunction against the contesting respondents and ultimately judgment in the second appeal which became final with the withdrawal of SLP from the Supreme Court dismissing the Special Leave Petition filed by the Gaon Sabha. In the second round of litigation, Gaon Sabha succeeded in getting license denied to the contesting respondents by entering into some partnership agreement with the Zila Panchayat to hold cattle market on the Gaon Sabha land. This agreement was entered in the year 2011. It is true that when agreement is entered in respect of the license or authorisation which is on year to year basis there cannot be any agreement ad infinitum i.e. perennial in nature and, therefore, we do not find any error much less a legal one in the resolution of the Zila Panchayat dated 28th December, 2013 whereby the earlier resolution dated 05.03.2011 has been cancelled. Even though the writ petition of the contesting resopndents challenging the partnership agreement came to be dismissed on 12.05.2011 but in the Special Leave Petition before the Supreme Court there was interim protection granted to the contesting respondents and ultimately, since authorisation to hold cattle market which continued till 22.04.2013 and these respondents continued to enjoy license, and license/ renewal of license if any, is on year to year basis, the Supreme Court rightly permitted the contesting respondents to move appropriate application before the Licensing authority for grant of license, getting protection to the petitioners for the continuing period vide order dated 22.04.2013. Thus, the second round of litigation would have come to end and also with the resolution of Zila Panchayat dated 28th December, 2013 which recalled/ amended its own earlier resolution dated 05.03.2011, the agreement reached between parties also came to an end but, since writ petition is still pending adjudication before this Court filed by the very petitioners against the order of appellate authority, the second round of litigation, it can safely be concluded is still on.

11. This is now third round of litigation. We find here at this stage that it was in view of the order of Supreme Court dated 22nd April, 2013 the application of the contesting respondents for grant of license was to be considered afresh and the rejection of the said application by the Chief Development Officer/ Chief Executive Officer dated 12th August, 2013 came to be reversed in appeal filed before the Chairman, Zila Panchayat vide order dated 11th December, 2013. It is necessary to reproduce the operative portion of the order dated 11th December, 2013:

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12. So, it is in pursuance of the aforesaid direction given in appeal that the contesting respondents were granted license for the year 2013-2014 and onwards. This order is effective even today as challenge to the same made by the petitioners in Writ Petition No. 1515 of 2014 is still pending adjudication without there being any interim order.

13. We had summoned the record of the Writ Petition No. 1515 of 2014 (supra) for perusal purposes and we find that the grounds as raised in the said writ petition centre around the claim of Gaon Sabha as a public body to have preferential right to hold the cattle market.

14. In the face of these facts, we do not find any justification for the petitioners to challenge the grant of license in the year 2018 when the contesting respondents had enjoyed the earlier license for holding the same cattle market from 2013 onwards under the order passed by the appellate authority and, therefore, we are of the considered opinion that unless and until the petitioners get their Writ- C No. 1515 of 2014 decided which is cognizable by the Single Judge, we do not find any justification or merit in the present writ petition which is confined to the license of a particular year 2018-2019 granted as a sequel to continued grant of license since 2013. Thus, we have no hesitation in holding that the present writ petition is not maintainable as no effective relief can be granted to the petitioners unless and until their rights are determined in writ petition cognizable by the Single Judge.

15. The argument raised in the supplementary affidavit that a member of Zila Panchayat cannot be granted license to hold the cattle market even on his own bhumidhari land as it would be opposed to be public policy has been advanced because the contesting respondent No.7 got elected as member of Zila Panchayat in 2016. At this stage, when a party has been enjoying a license since 2013 pursuant to the order passed by the appellate authority, it would be too far an inference to draw that in the year 2018 license was granted only to favour one of the licensees who became member of the Zila Panchayat. We do not, prima facie, find any material much less a substantial in the entire writ petition which may manifest any act of malafides or favoritism by the authority for respondents.

16. So far the question that even a mere grant of license to a bhumidhar to hold his private cattle market would by itself amount to an act opposed to public policy if such a licensee happens to be member of Zila Panchayat, is concerned, we would have been persuaded to enter into this controversy and adjudicate the same, had there been sufficient pleadings to that effect raised in the writ petition but we find that there are no such pleadings and grounds raised in the entire writ petition. Further, the special facts of this case where license has been enjoyed for over five decades and present license is under the direction of an appellate authority, in the absence of any foundation laid in the writ petition, we do not consider it to be an appropriate case to enter and decide such controversy. The judgment that has been cited by the learned Single Judge, is therefore, distinguishable on facts. Besides all these, we are also not persuaded to hold that the grant of license to hold cattle market on bhumidhari land would amount to a contract/ Theka, lease or any kind of such activity which may be said to have invited public participation in grant of such license.

17. In view of the above, writ petition lacks merit and is, accordingly, dismissed.

18. However, we may observe that any observation made hereinabove will not influence the learned Single Judge in deciding the writ petition bearing Writ-C No. 1515 of 2014 which shall be decided on its own merit.

Order Date :- 13.8.2018

Atmesh