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1998 Supreme(All) 289
IN THE HIGH COURT OF ALLAHABAD
O. P. Garg, J.
LAXMI NARAIN UPADHYA AND OTHERS - Appellant
Versus
GRAM SABHA - Respondents
Second Appeal 234 Of 1991
Decided On : 03/11/1998
A.K.VERMA, B.K.Srivastava, G.N.Verma, I.M.Kushwaha, K.B.VERMA, K.M.Dayal, SUSHIL HARKAULI, V.K.SINGH
A resolution passed by a Gaon Sabha under Section 15 (h) of the U. P. Panchayat Raj Act, 1947, prohibiting the holding of a hat (cattle market) on certain days and within a certain distance of Gaon Sabha plots, is invalid and ineffective in the absence of rules framed by the State Government under Section 110 (xvi-a) of the Act.
Headnote:
UP PANCHAYAT RAJ ACT - REGULATION OF MARKETS, MELAS AND HATS - SECTION 15 (H) - RESOLUTION BY GAON SABHA PROHIBITING HOLDING OF HAT ON CERTAIN DAYS AND WITHIN CERTAIN DISTANCE OF GAON SABHA PLOTS - VALIDITY - INTERPRETATION OF SECTION 15 (H) - SCOPE OF REGULATION - REASONABLENESS OF RESTRICTION - DISTINCTION BETWEEN REGULATION AND PROHIBITION - APPLICABILITY OF SECTION 117 OF U. P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950.
Fact of the Case:
Gaon Sabha Pachokra held a cattle hat on its plots. Laxmi Narain, a clerk/scribe engaged in the hat, purchased a plot and started holding a hat on it. Gaon Sabha adopted a resolution under Section 15 (h) of the U. P. Panchayat Raj Act (Act) to prohibit holding of hat on Friday and within four Kms. of Gaon Sabha plots on other days. Laxmi Narain and other defendants challenged the resolution and continued to hold the hat. Gaon Sabha filed a suit for permanent injunction to restrain the defendants from holding the hat.
Finding of the Court:
1. 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. 2. 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. 3. The restriction put by the Gram Sabha on the right of the defendant-appellants by resolution dated 14. 8. 1977 is wholly illegal and of no consequence.
Issues: 1. Whether the right of the tenure-holder holding a mela in his land can be regulated or curtailed at all not holding mela and such a curtailment by the Gaon Sabha could be justified in the eye of law? 2. Whether resolution passed by Gaon Sabha dated 14. 8. 1977 has statutory force and will have overriding effect on the right of the defendant to hold mela on his own land? 3. Whether the resolution dated 17. 8. 1977 is within the framework of Section 15h of the Panchayat Raj Act? 4. Whether the view of the lower appellate court allowing the appeal ignoring the Judgment of this Court can be sustained in the eye of law? 5. Whether the Judgment of the appellate court is in accordance with the Order XLI, Rule 31, C. P. C.?
Ratio Decidendi: 1. Section 15 (h) of the Act empowers Gaon Panchayats to make reasonable provisions for regulation of melas, markets and hats within its area, subject to the availability of funds. 2. The power of regulation of melas, markets and hats is subject to the rules made by the State Government under Section 110 (xvi-a) of the Act. 3. In the absence of any rules or bye-laws, the Gaon Panchayat cannot exercise power of regulating melas, markets and hats within its area. 4. A regulation imposed by the Gaon Sabha on the private persons holding the hat on their own land must be (a) reasonable and (b) must also be regulative of the market character and conducive to the marketing activity. 5. A resolution which totally prohibits the holding of hat by the defendant-appellants on their own plots is restrictive in character and not regulatory. 6. The resolution dated 14. 8. 1977 adopted by the Gaon Sabha is invalid, ineffective and inoperative as it is beyond the scope and in excess of the power conferred by Section 15 (h) of the Act.
Final Decision: The appeal is allowed. 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.
( 1 ) THIS is defendants Second Appeal against the judgment and decree dated 25. 1. 1991 passed by sri Rakesh Dull, the then Special Judge (E. C. Act)/additional District Judge. Agra in Civil appeal No. 24 of 1986 arising out of Suit No. 239 of 1977 which was dismissed on 24. 12. 1985 by the trial court, i. I. e. . VIth Additional Civil Judge. Agra.
( 2 ) THE facts of the present case lie in a very narrow compass. The Gaon Sabha, Pachokra. Tahsil etmadpur, district Agra has been holding a cattle hat over its Plot Nos. 832, 835, 836 and 837 from much before the year 1956. Earlier the hat was organised by the Gaon Sabha Itself but subsequently, the right to hold the hat was auctioned on year to year basis. Laxmi Narain defendant-appellant No. 1 was a Clerk/scribe engaged in the hat on behalf of the Gaon Sabha. He along with two other defendant-appellants purchased the Plot No. 834 in the year 1963 and with the help of other defendant-appellants, started holding hat on the aforesaid plot on every friday. There arose a dispute about the rival claims to hold the hat on different plots and consequently. preventive measures by invoking Section 144 of the Code of Criminal Procedure were taken and it was ordered that the defendant-appellants may hold the hat on their plot on every Monday. The said order dated 18. 1. 1970 was quashed by this Court on 27. 4. 1972 in a writ petition filed by defendant-respondent No. 1 Laxml Naraln. Thereafter, the Gaon Sabha, pachokra adopted a. resolution under Section 15 (h) of the U. P. Panchayat Raj Act (hereinafter referred to as the Act) to the effect that no person shall hold a hat on Friday and on the remaining days of the week, no hat shall be held within four Kins, of the plots of Gaon Sabha. The defendant-appellants were not deterred by the said resolution and Instead they purchased plot Nos. 830a, 830b, 842 and 843 and expanded the area of holding the hat over all these plots, including Plot No. 834 which was purchased in the year 1963. When the defendant-appellants did not see to reason and continued to flagrantly violate the resolution adopted by the Gaon sabha, necessity to Institute Suit No. 239 of 1977 arose in which the relief for permanent injunction was claimed to restrain the defendant-appellants from holding hat over their plots on friday and within four Kms. of the plots of the Gaon Sabha on the remaining days of the week.
( 3 ) THE defendant-appellants resisted the allegations of the plaintiff-respondent primarily on the ground that Gaon Sabha has no Jurisdiction or authority to adopt the resolution under Section 15 (h) of the Act and that as a matter of fact, no resolution dated 14. 8. 1977 was adopted by the gaon Sabha. It was also alleged that the Plot Nos. 832, 835. 836 and 837 belonging to the Gaon sabha are not suitable for holding the hat as they are occupied by Abadt and are in possession of the residents of the village : that there exists water tap and Pathshala over the said plots and on account of deep and wide pits, it was not possible to hold hat by the Gaon Sabha and, therefore, there is no justification for the Gaon Sabha to injunct the defendants from holding their hat over plot No. 834. The plea that the suit for the relief of injunction is not maintainable (besides other ornamental pleas) was also taken.
( 4 ) THE trial court framed necessary Issues in the case and after appraising the evidence of the parties and taking Into consideration their submissions, dismissed the suit. The plaintiff-respondent filed an appeal No. 24 of 1986 which was allowed on 25. 1. 1991. The defendant-appellants have been permanently restrained from holding their hat on their Plot Nos. 830a, 830b, 834, 842 and 843 within a distance of 4 Kms. from Gaon Sabha Plot Nos. 832. 835, 836 and 837 on each Friday. It is against this order that the present Second Appeal has been preferred.
( 5 ) WHILE admitting the appeal, this Court framed the following substantial questions of law
