CHANDRAKANT BHAILAL PATEL Vs. T V KRISHNAMURTHY

JUDGEMENT

(1.) The petitioner challenges the orders passed by the respondents Nos. 1 and 2 at Annexures C and D respectively on the ground that they are without jurisdiction and these authorities could not have refused the further leasing of the Well to the petitioner since the Well in question was not vested in the Panchayat by the Government. According to the petitioner, the Resident Deputy Collector had acted within his jurisdiction in granting further lease for a period of 7 years to the petitioner by his order dated 5-5-79. It is also contended that the responsible officers of the Government led the petitioner into a belief that the Well in question had not vested in the Panchayat and had belonged to the Government and that since he had spent huge amount for improvement of the Well, the respondents Nos. 1 and 2 were estopped from passing the impugned orders. It is contended that the impugned orders are arbitrary and violative of the fundamental right of the petitioner guaranteed by Art. 14 of the Constitution.

(2.) Mr. J. D. Ajmera, the learned Counsel appearing for the petitioner contended that the respondents Nos. 1 and 2 did not apply their mind to the facts of the case and though there was nothing on record to show that the Well vested in the Panchayat they have erroneously upset the order of the Deputy Collector. Mr. J. M. Patel, appearing for the Panchayat contended that the Well vested in the Panchayat which fact was clear from the earlier orders and the agreement. Mr. Antani, appearing for the respondents Nos. 1 and 2 contended that the concurrent findings arrived at by the respondents Nos. 1 and 2 were in accordance with law. He also relied upon the Government resolution dated 5/07/1950 by which all Wells and tanks were ordered to be vested in the Panchayat constituted for the village.

(3.) There is no dispute about the fact that the Well in question which is situated in village Parikha was leased to the petitioner for a period of 10 years by an order dated 4-12-1969 at Annexure 'E' to the petition. It has been recorded in that order that since there was a demand for the said Well of more than one person, an auction was held for giving it on lease and on the basis of the recommendation made to the District Development Officer and as a result of the auction, which was held on 27-5-1969, the petitioner was recommended for the lease for a period of 10 years, and the Parikha Group Gram Panchayat was accordingly permitted by the Collector to give the Well on lease on the conditions mentioned in the said order passed by the Collector, Vadodara. Condition No.1 stipulated that the petitioner was to pay Rs. 101.00 per year by way of rent for the Well to the Gram Panchayat. Condition No.4 stipulated that, should any damage be caused to the Well by the lessee, the lessee was liable to pay such amount by way of damages as may be fixed by the Panchayat. Condition No.5 empowered the Panchayat or the Government to terminate the lease by giving one month's notice. It will, thus, be noticed from the said order dated 4-12-1969 and the terms and conditions of the lease contained therein that the Gram Panchayat was given permission by the Collector to give lease of the Well to the petitioner for a period of 10 years and that the rent was payable to the Panchayat. Under Sec. 98(1) of the Gujarat Panchayats Act, 1961, no lease, sale or other transfer of any immovable property vesting in or acquired by Panchayat shall be valid unless such lease, sale or transfer has been made with the previous sanction of the competent authority. Section 96(1) of the said Act, inter alia, provides that the State Government may, subject to such conditions and restrictions, as it may think fit to impose, vest in a Panchayat, various properties including Wells. Therefore, under these provisions, a lease of Well, which is vested in a Panchayat, would require the previous sanction of the competent authority. This is why the permission was granted to the Panchayat, by the Collector, Vadodara, under his order dated 4-12-1969 at Annexure 'E' for leasing out the Well to the petitioner. The petitioner accepted the said lease and had never in the past questioned the rights of the Panchayat in respect of the Well. The petitioner had entered into a contract with the said Parikha Gram Panchayat, which is at Annexure F, on 12-12-69 pursuant to the said order dated 4-12-1969. It is, therefore, not open to the petitioner now to contend that the Panchayat had no authority to deal with the Well and that its recommendation was not necessary for considering the question of any lease for a further period beyond the expiry of the period for which it was granted to the petitioner. In the affidavit of the Sarpanch which is on record it has clearly been mentioned that the management of the Well was done by the Panchayat right from the beginning. It is stated that the said Well is the property of the Village Panchayat and the Well vests in the Village Panchayat. It has also been stated that since the Well was to be leased for 10 years, sanction of the Collector who is the competent authority was required to be taken when it was leased out to the petitioner. In view of these facts, the Collector, Vadodara was justified in passing the order dated 7-8-1979 holding that since the well vested in the Panchayat it could have been leased only on the basis of the recommendation made by the Gram Panchayat in accordance with the provisions of Section 98 (1) of the said Act. It is obvious that the Resident Deputy Collector had no authority to straightway grant lease for a further period to the petitioner without any proposal to that effect from the Panchayat. The Special Secretary (Revenue), before whom the petitioner preferred a revision application, held that only Panchayat could have granted such lease after prior sanction of the Collector in accordance with Section 98 and that the Resident Deputy Collector, who was not delegated the powers of the Collector could not have granted any such lease. The reasoning adopted by the Respondents Nos. 1 and 2 in their orders at Annexures C and D respectively appears to be cogent and proper and the petitioner has not made out any case for interfering with these orders. It may, incidentally, be mentioned that by resolution of the Government of Bombay dated 5/07/1950, it was ordered that all the wells and tanks situate within the area of a village should vest in the Panchayat constituted for that village subject to the conditions mentioned in that order. It appears that, by Government Order, Health and Legal Government Department No.S-92 dated 28/12/1948 as amended by Government Corrigendum Health and Legal Government Department No.S-92 dated 30/05/1949 and 4/07/1949, the Government had directed that for the purpose of Chapter III of the Bombay Village Panchayats Act, 1933, all wells and tanks (including irrigation tanks) situate within the area of a village and vesting in the Gram should vest in the Panchayat constituted for that village. Even apart from this copy of the resolution which has been handed over at the time of the hearing the facts emerging from the record as it stands, clearly indicate that the (well vested in the Panchayat and therefore it could not have been leased out for any further period without any recommendation of the Panchayat or without obtaining the previous sanction of the Collector in accordance with; Section 98(1) of the said Act. The petition is, therefore, without any substance and deserves to be dismissed. Rule discharged with costs. Petition dismissed.