MODASA NAGAR PANCHAYAT Vs. HASMUKHLAL MOTILAL KADIA

JUDGEMENT

(1.) The petitioner-Municipality which was formerly a Nagar Panchayat seeks a direction for setting aside the order dated 30th August 1983 passed by the Development Commissioner confirming the decision dated 1st March 1983 of the Appellate Committee of the District Panchayat, Sabarkantha, by which the Resolution No. 63 dated 13th August 1992 passed by the petitioner was set aside.

(2.) On 28-4-1978 the petitioner, when at the time it was a Panchayat, passed Resolution No. 23 for constructing new latrines at the same place at which the old latrines were situate on the land in question. An appeal was carried against the Resolution under Sec. 290 of the Gujarat Panchayats Act, 1961 and the Appellate Authority by its order dated 22nd September 1980 set aside the said Resolution keeping in view the relevant aspects including the opinion of the District Health Officer that these latrines were injurious to public health and should be removed. It was noted that though the Government had as far back as on 6th April 1954 consented to removing of these latrines from the public road, and for constructing the latrines elsewhere so that proper hygiene could be maintained, the petitioner had not taken any action of removing these latrines. The Appellate Authority, therefore, directed the petitioner to remove the old latrines and not to construct the new latrines at the same place. The order of the Appellate Authority was challenged in Revision Application No. 211 of 1980 by the Panchayat and the Revisional Authority by its order dated 27th August 1981 after a detailed consideration of the matter rejected it with a direction that the latrines in question should be immediately removed. That revisional order confirming the appellate order became final. However, once again the petitioner passed a Resolution on 30th August 1982 for putting up new latrines adjoining the same place where the earlier latrines stood. An appeal was preferred against that Resolution by the respondent No. 1 under Sec. 290 of the Gujarat Panchayats Act, 1961 and the Appellate Authority after hearing the parties and taking note of the fact that despite repeated instructions earlier issued by the higher authorities the petitioner had not removed the old latrines and had resolved to construct new latrines adjoining the same place which action was imporper and illegal on the part of the petitioner, set aside the said Resolution No. 63 dated 13th August 1982 and directed that the new latrines should not be constructed on the disputed place and that they may be constructed at a different place after fixing the site and taking steps for acquisition for such purpose. The petitioner preferred Revision Application No. 68 of 1983 against the said appellate order and the Revisional Authority after hearing the parties took note of the fact that instructions were earlier given by the Appellate and Revisional Authorities to the petitioner for removing the latrines from the place in question but the petitioner had not taken any action in that regard. It was noted that the petitioner had by Resolution dated 19th April 1982 resolved to remove the latrines and decided to put up vegetable market in the open space. However, thereafter by Resolution No. 63 dated 13th August 1982 it had resolved to put up modern latrines at the same place. The Revisional Authority wondered as to why the Panchayat failed to take action as directed by the order dated 27th August 1991 earlier passed by the Revisional Authority in Revision Application No. 211 of 1980. It found that the petitioner did not give any satisfactory explanation for this default. It concluded that the order of the Appellate Authority directing the petitioner to remove the latrines from the present place was justified. The Revision Application was, therefore, rejected.

(3.) It was contended on behalf of the petitioner that the Panchayat was empowered to pass a Resolution of the nature passed on 13th August 1982 which had the effect of modifying or cancelling its earlier Resolution; which it could legitimately do by a simple majority after a lapse of 3 months of the Resolution in view of the provisions of Sec. 87 of the said Act. It was further contended that every last such Resolution has to be decided on its own merit and not on the ground that the earlier Resolution of the Panchayat was set aside by the Appellate Authority. In short, it was submitted that the Panchayat could override the directions of the Appellate Authority by a fresh Resolution. It was also contended that the land was granted for construction of latrines and therefore, the petitioner was justified in again resolving to construct new latrines at the same place at the site of the old latrines.