Delhi High Court
Gambhir Singh Negi vs State Of Uttarakhand & Others on 1 May, 2014
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2063 of 2013 (M/S)
Gambhir Singh Negi .....Petitioner
Versus
The State of Uttarakhand and others
..........Respondents
Present:
Mr. Sharad Sharma, Senior Advocate assisted by Ms. Vandana Singh,
Advocate for the petitioner.
Mr. R.C. Arya, Standing Counsel assisted by Mr. Gajendra Tripathi, Brief
Holder for the State/respondent nos. 1 & 2.
Mr. N.S. Pundir, Advocate for respondent no. 3.
Hon'ble Alok Singh, J (Oral).
In the present petition, order dated 23.4.2013 is
under challenge, whereby, State of Uttarakhand was
pleased to stay the grant of licenses for the water sports
and motor boats in Tehri Jheel till further orders.
Brief facts of the present case, inter alia, are that
Zila Panchayat, Tehri Garhwal, while exercising the
power under Section 239-F (b) & (c) of the Uttar Pradesh
Kshettra Panchayat and Zila Panchayat Adhiniyam,
1961, framed bye-laws making provisions for the purpose
of grant of licenses for running the motor boats and
water sports in Tehri Jheel. Bye-laws, so framed, were
approved by the Commissioner Garhwal while exercising
the power under Section 242 (2) of the Act, 1961, and
consequently got published in the Government Gazette
on 29.3.2012, copy of which is available on record as
Annexure No. 1 to the writ petition. After bye-laws came
into force, Zila Panchayat, Tehri Garhwal invited
applications, vide advertisement dated 8.3.2013, from all
eligible for running motor boats in Tehri Jheel. Petitioner
and others applied, however, meanwhile, impugned order
dated 23.4.2013 came to be passed by the State
Government staying further proceeding of grant of license
by Zila Panchayat, till further orders of the Government.
I have heard Mr. Sharad Sharma, learned Senior
Counsel assisted by Ms. Vandana Singh, learned counsel
for the petitioner, Mr. R.C. Arya, learned Standing
Counsel assisted by Mr. Gajendra Tripathi, learned Brief
Holder for respondent nos. 1 & 2 and Mr. N.S. Pundir,
learned counsel for respondent no. 3, and have carefully
perused the record.
Part IX of the Constitution of India was amended by
the 73rd (Amendment) Act, 1992. As per Article 243-G of
the Constitution of India, under Part IX, the Legislature
of a State may, by law, endow the Panchayats with such
powers and authority as 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.
After the enforcement of 73rd Amendment in the
Constitution of India, the Uttar Pradesh Kshettra
Panchayat and Zila Panchyat Adhiniyam, 1961 was
suitably amended.
As per Entry No. 3 and 13 of the Eleventh Schedule
read with Article 243-G of the Constitution of India, Zila
Panchayat, an institution of self-government, has
absolute jurisdiction in relation to the matters listed in
Eleventh Schedule. Not only this, the perusal of Section
239-F of Act, 1961 empowers the Zila Panchayat to frame
Bye-laws for the purpose of laying down procedure for
issuance of licence for motor boats and water sports
activities. This is not in dispute that while exercising the
power under Section 239-F of Act, 1961 read with Article
243-G and Entry Nos. 3 & 13 of Eleventh Schedule of the
Constitution of India, Zila Panchayat, Tehri Garhwal
made bye-laws, which were duly approved by the
Commissioner, Garhwal while exercising powers under
Section 242 (2) of the Act, 1961 and ultimately bye-laws
were published in the gazette notification. Bye-laws so
framed have not been repealed or annulled as yet and are
still in force. Therefore, question arises as to whether
State Government can stay the operation of the bye-laws
for any period saying that State Government is
contemplating to constitute Special Area Development
Authority?
In my considered opinion, once bye-laws are framed
and enforced, license has to be granted as per the
procedure provided under the bye-laws and operation of
the bye-laws can never be stayed by any Administrative
or Executive Officer and bye-laws, so framed and
published, shall be given effect to and followed till bye-
laws are annulled by the Constitutional Court or repealed
or substituted under the relevant law.
There is another important aspect of the present
matter. During the pendency of the writ petition, a
counter affidavit was filed by the Government saying
that, vide order dated 17.10.2013, power to issue
licenses to run motor boats/boats has been granted to
the Collector, Tehri Garhwal.
Mr. R.C. Arya, learned Standing Counsel does not
dispute that bye-laws, framed and approved by the
Government and published in the official gazette, have
force of law. Since, bye-laws have force of law, therefore,
same cannot be stayed or annulled by the administrative
order, I find that order impugned dated 23.4.2013,
Annexure No. 6 to the writ petition, as well as the
consequential order dated 17.10.2013, Annexure No. 1 to
the counter affidavit, are without jurisdiction, therefore,
do not sustain in the eyes of law.
Consequently, writ petition is allowed. Order dated
23.4.2013, Annexure No. 6 to the writ petition, as well as
the consequential order dated 17.10.2013, Annexure No.
1 to the counter affidavit, are hereby quashed.
It goes without saying that henceforth license can
only be granted by the Zila Panchayat as provided under
the bye-laws, Annexure No. 1 to the writ petition, till
such time bye-laws are repealed or annulled by the
Constitutional Court.
In the peculiar facts and circumstances of the case,
no order as to costs.
(Alok Singh, J.)
1.5.2014
Avneet
