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Judgment
Abhay M. Naik, J.
Short facts involved herein are that the petitioner is a Co-operative Society duly registered under the provisions of M.P. Co-operative Societies Act. Most of the members of the petitioner belong to Scheduled Caste and Scheduled Tribe community. Applications for grant of pond known as Bodal Bahra situated in the area of Gram Panchayat Sonpuri were submitted by the petitioner as well as respondent No. 4 for obtaining it on lease for a period of 10 years for cultivation of fish. Gram Sabha of village Sonpuri held a meeting which was attended by 470 members who passed the resolution in favour of the petitioner for allotment of pond for a period of 10 years. Resolution was passed on 3-7-2007. Its copy is on record as Annexure/P-2. Respondent No. 4 raised objection in the nature of appeal before the S.D.O., Baihar District Balaghat which was registered as Panchayat Case No. 31A-89 year 2006-07. Learned S.D.O. allowed the objections vide his order dated 15-10-2007 (Annexure/P-4) setting aside thereby the resolution of the Gram Sabha. Learned S.D.O., further directed for grant of lease of pond in favour of respondent No. 4.
Aggrieved by the aforesaid, the petitioner has submitted the present writ petition with two fold contentions. Firstly, it is constituted by Scheduled Caste and Scheduled Tribe members and is entitled to preference in view of the Govt. Circular dated 15-11-1999 as revealed in Annexure/P-5. Secondly, the appeal before S.D.O. was not maintainable according to the M.P. Gram Sabha (Appeal) Rules, 2001.
Learned counsel for the respondent contended that the S.D.O. even under the M.P. Gram Sabha (Appeal) Rules, 2001 is well competent to deal with the appeal.
Considered the submissions.
It may be seen that a decision was taken vide Annexure/P-2 by the Gram Sabha to allot the pond to the petitioner. This decision was appealable under Rule 3 of the M.P. Gram Sabha (Appeal) Rules, 2001 (hereinafter referred to as ''Gram Sabha Rules'' for brevity).
Rule 3 reads as under:
Appeal and Appellate Authority. -- Same as otherwise provided in the Act or rules or byelaws made thereunder a appeal against the decision of a Gram Sabha shall lie to a committee constituting of the President of Janpad Panchayat, a member of Janpad Panchayat of that area and Sub Divisional Officer (Revenue). The president of Janpad Panchayat shall be the President of the Appeal Committee.
Clause (b) of Rule 2 defines Appellate Authority as Appeal Committee constituted under Rule 3 of Gram Sabha Rules. By virtue of Rule 3 a decision of Gram Sabha may be assailed in appeal before a Committee liable to be constituted by President of Janpad Panchayat, a member of Janpad Panchayat of that area and S.D.O. (Revenue). Gram Sabha Rules were made applicable from the date of publication of the Rules in M.P. Gazette. Rules were published in the M.P. Gazette (Extraordinary) dated 5-3-2001. Thus, the Rules were already in force and Sub-Divisional Officer Baihar had no power to deal with the objections/appeal preferred before him. Since, an appeal has been expressly provided by Gram Sabha Rules, learned S.D.O. could not have exercised the powers either u/s 91 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 or M.P. Panchayat (Appeal and Revision) Rules, 1995. Moreover, section 7-H of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 is a substantive provision which provides for appeal against the decision of the Gram Sabha. It reads as under:
7-H. Appeal in a Committee against the decision of Gram Sabha. -- An appeal against the decision of a Gram Sabha shall lie to a committee consisting of the President of Janpad Panchayat, a member of Janpad Panchayat of that area and the Sub-Divisional Officer (Revenue) in such manner as may be prescribed.
Since, section 7-H with Rule 3 of Gram Sabha Rules provides specific forum of appeal, learned S.D.O., Baihar had no jurisdiction to decide the objections/appeal preferred by respondent No. 4. Contention of the learned counsel for respondent that the S.D.O. even under the Rules is competent to decide the appeal is highly misconceived. Rule 3 empowers an Appeal Committee to decide the appeal which is to be constituted by the President of Janpad Panchayat, a member of Janpad Panchayat of that area and S.D.O. (Revenue). President of Janpad Panchayat has been made President of the Appeal Committee under Rule 3 and the S.D.O. (Revenue) is merely one of the constituents of the Appeal Committee. This being the position, the S.D.O. alone could not have usurped the powers of the entire Committee. The objections/appeal was preferred not before the Appeal Committee, but before the S.D.O. alone and the same was not addressed to the Appeal Committee. It was neither heard nor considered by the Appeal Committee, On the contrary, the S.D.O. alone heard and decided the appeal, who singularly had no jurisdiction to deal with it. Consequently, the impugned order Annexure/P-4 dated 15-10-2007 is found to be without jurisdiction and the same is hereby quashed.
At this stage Shri Sanjay Patel, learned counsel prays for grant of liberty to prefer appeal before the Appeal Committee prescribed under the Gram Sabha Rules.
Prayer is accepted.
Shri Sanjay Patel, learned counsel for respondent No. 4 expressed his apprehension about limitation. This being so, it is directed that in case, if, the appeal is preferred in due manner within a period of three weeks from today, the Appeal Committee shall consider and decide the same on merits in accordance with law without insisting on the question of limitation.
In the result, the writ petition stands allowed. Impugned order marked as Annexure/P-4 is hereby set aside for want of jurisdiction. However, with liberty to respondent No. 4 to prefer appeal under the Gram Sabha Rules.
No order as to costs.