CHILODA GRAM PANCHAYAT Vs. ADMINISTRATOR GANDHINAGAR DISTRICT PANCHAYAT

JUDGEMENT

(1.) . The petitioner Gram Panchayat seeks to challenge the interim order passed by the District Development Officer on 6/03/1995 in Appeal No. 1 of 1995 by which the respondent Nos. 3 and 4 were required to deposit the amount in connection with illegal encroachment at the rate of Rs. 13.50 paise per square yard as against Rs. 90.00 per square yard, fixed under the resolution of the Panchayat dated 18/04/1994. The petitioner also seeks a direction on the Administrator of the Gandhinagar District Panchayat to hear Appeal No. 1 of 1995. A further direction is sought for setting aside Resolution No. 53 dated 3 1/08/1994 made by the respondent-Administrator, by which he purported to delegate powers to the District Development Officer.

(2.) . The resolution passed by the petitioner-Panchayat being Resolution No. 3 dated 18/04/1994 under which the Panchayat fixed the rent for unauthorised occupation under Sec. 319 of the Gujarat Panchayats Act, 1961, at Rs. 90.00 per square yard was challenged by the respondent Nos. 3 and 4 before the District Panchayat in Appeal No. 1 of 1995 filed on 23-1-1995. The matter was posted on 27/01/1995 for hearing on the question of interim relief. When the appeal was taken up for hearding by the District Development Officer, the petitioner raised an objection on the ground that he did not have the powers of the Appeal Committee of a District Panchayat. The Taluka Development Officer had, on 27/01/1995, suspended the resolution dated 18/04/1994 and that order came to be challenged by the petitioner in Special Civil Application No. 733 of 1995. In that matter, a direction was issued on 10-2-1995 requiring the appellate authority to hear the Appeal No. 1 of 1995 which was filed by the respondent Nos. 3 and 4 before the District Panchayat. In the same petition, on 21-2-1995, a direction was given to the effect that the appellate authority before whom Appeal No. 1 of 1995 is pending, shall decide the application for interim relief, which was said to have made by the respondent No. 3 under Sec. 243(6) of the said Act, on or before 6/03/1995. On 6/03/1995, the respondent-District Development Officer passed the impugned interim order.

(3.) . The learned Counsel appearing for the petitioner strongly contended that there was no valid delegation of powers in favour of the District Development Officer and therefore, he had no jurisdiction to make any orders in an appeal which was required to be heard by the Appeal Committee of the District Panchayat. It was further argued that the powers of the District Panchayat to pass orders in appeal were exercisable by the Appeal Committee under Sec. 243 of the Gujarat Panchayats Act, 1993 (corresponding to Sec. 290A of the Act of 1961). It was contended that when in the instant case, the District Panchayat was not in existence and consequently Appeal Committee was also not in existence, the Administrator who had stepped into the shoes of the District Panchayat alone could exercise the powers of the Appeal Committee and he had no authority to delegate such appellate power to the District Development Officer as was sought to be done by the Resolution No. 53 dated 31st August, 1994. He further submitted that the impugned Resolution No. 53 dated 3 1/08/1994 purported to create an appellate authority by authorising the District Development Officer to hear the appeal and by creating such new forum, the Administrator has exercised legislative powers which he does not possess. Moreover, Resolution No. 53 purported to modify the earlier Resolution No. 23 dated 2 9/03/1994 eventhough the subject-matter of the said Resolution No. 23 was entirely different, inasmuch as by that resolution the District Development Officer was designated as Secretary under Rule (3) of the Procedure Rules of 1968. It was also argued that Resolution No. 23 dated 29/03/1994 was passed by the Administrator of the District Panchayat under the Act of 1961 and it was purported to have been amended by Resolution No. 53 dated 31/08/1994 under the Act of 1961, which was already replaced by the Act of 1993. It was submitted that Resolution No. 53 could not have been passed under the repealed Act of 1961 and was therefore, a nullity. It was further contended that Resolution No. 53 sets at naught the scheme underlying the Act by empowering the District Development Officer to exercise functions of the Appeal Committee when the District Development Officer was required to be only a Secretary of the District Panchayat and was subordinate to the President. It was further contended that Sec. 271 of the said Act refers to the powers of the District Panchayat and not of the Appeal Committee of the District Panchayat. Only the powers exercisable by the District Panchayat could be entrusted to a District Development Officer under Sec. 271 of the Act and when the power of hearing appeal was exercisable only by the Appeal Committee and not by the District Panchayat which could not even withdraw that power from the Appeal Committee under Sec. 145(vi) of the Act in view of the non-obstante clause contained in Sec. 243(1), the District Panchayat could not have delegated the appellate power to the District Development Officer. Therefore, the Administrator also could not have delegated that power to the District Development Officer.