Heard Sri S.M.A. Abdy, learned counsel for the petitioners, Sri Pradeep Kumar for the Nagar Palika Parishad and the learned Standing Counsel Sri Rajesh Kumar for the respondents 1 and 3.
This matter had been heard by the Court on 18th July, 2011 on which date the following order was passed:-
"The matter was heard at length.
The petitioners seek declaration of right over the land in dispute on the basis of a lease/patta stated to have been granted by Gaon Sabha, Parade Chhawani, district Etawah on 19th July, 1980. The findings recorded by the authorities below are to effect that the Gaon Sabha had no authority to execute any such lease, inasmuch as, by virtue of the Notification dated 11th August, 1954, the management of the village in question had been vested in the District Municipality in exercise of the powers under Section 117 of the U.P. Z.A. & L.R. Act. The said Notification is annexure-5 to the writ petition.
Learned counsel for the petitioners countered the said objections by inviting the attention of the Court to the Notification dated 10th September, 1985 stated to have been issued under the U.P. Act No. 26 of 1947 (U.P. Panchayat Raj Act) and the subsequent Notification dated 4th February, 1991 stated to have been issued under the provisions of the Municipalities Act, 1916.
I have perused both these notifications which are clearly in relation to de-limitation of constituency and are not the Notifications de-notifying the village as provided for under Section 117 of the Act.
Learned counsel for the petitioners then contends that the note appended to the Notification dated 10th September, 1985 rescinds the Notification dated 11th August, 1954.
This argument also cannot prima facie be accepted as the notification is in relation to the elections of the Gaon Sabha and is not in relation to the management of the properties of the Gaon Sabha which stood vested in the Municipality. The petitioners will, therefore, have to establish anything to the contrary as against the notification under Section 117 of the Act dated 11.8.1954.
Learned counsel for the petitioners seeks time to further study the matter.
List in the next cause list."
Learned counsel for the petitioners Sri Abdy has filed a supplementary affidavit today bringing on record two notifications dated 27th July 1966 and 18th February, 1978. These notifications are in exercise of the powers under the U.P. Panchayat Raj Act, whereby the power was delegated to the Director to issue notifications and accordingly the Director had issued a notification under such delegation on 18th February, 1978. With the aid of these two notifications Sri Abdy submits that the notification dated 11th August, 1954 will be deemed to have been modified and be asserted. He therefore contends that in view of the provisions of Section 3 of U.P. Panchayat Raj Act, 1947, the powers so exercised by the Director will amount to rescinding the notification dated 11th August, 1954.
Having heard learned counsel for the parties, the issue rests on the interpretation of the aforesaid notifications as relied upon by the petitioners. A notification under Section 117 of the U.P. Z.A. & L.R. Act is issued by the State Government for the purposes of notifying an area. Section 117 is quoted hereinbelow:-
Section 117. Vesting of certain lands, etc. in Gaon Sabhas and other Local Authorities.- (1) At any time after the publication of the notification referred to in Section 4, the State Government may [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the following things, namely -
(vi) tanks, ponds, private ferries, water channels, pathways and abadi site, - which had vested in the State under this Act, shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority (including a Gaon Sabha) and partly in another :
Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be [specified in such order].
(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may, [by general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all or any of the things specified in Clauses (i) to (vi) of sub-section (1) which after their vesting in the State under this Act, had been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village in which the said things are situate.
(3) Where any declaration has been made under sub-section (1) or sub-section (2) vesting any of the things specified in Clauses (i) to (vi) of sub-section (1) in any Gaon Sabha and the village or the part of the village in which that thing is situate lies outside the circle of the Gaon Sabha, such Gaon Sabha or its Land Management Committee shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, 1947, on a Gaon Sabha or a Land Management Committee, as the case may be, as if that village or part of village also lay within that circle.
(4) Where a declaration has been made under sub-section (1) or sub-section (2) vesting any of the things specified in Clauses (i) to (vi) of sub-section (1) in a local authority other than a Gaon Sabha and the village or the part of village in which the thing is situate is outside the limits of such local authority or where after any declaration is made under sub-section (1) or sub-section (2), the thing vests or as the case may be, had vested in a Nagar Mahapalika under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, such local authority shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P. Panchayat Raj Act, on a Gaon Sabha or Land Management Committee :
Provided that the local authority shall in the performance, discharge and exercise of its functions, duties and powers under this sub-section follow such procedure as may be prescribed.
(5) Where any of the things specified in Clauses (i) to (vi) of sub-section (1) is vested in a local authority other than a Gaon Sabha the provisions of Sections 126 and 127 shall, subject to such exceptions and modifications, if any, as the State Government may specify in this behalf [by general or special order to be published in the manner prescribed] apply mutatis mutandis, to such local authority.
(6) The State Government may at any time, [by general or special order to be published in the manner prescribed], amend or cancel any [declaration, notification or order] made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority and resume such thing and whenever the State Government so resumes any such things, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that things :
Provided that the State Government may after such resumption make a fresh declaration under sub-section (1) or sub-section (2) vesting the thing resumed in the same or any other local authority including a Gaon Sabha, and the provisions of sub-sections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.
The reference to the Panchayat Raj Act in the said provision will not amount to conferring a power either on the Director or on any other authority under the Panchayat Raj Act to rescind a notification under Section 117 of the U.P. Z.A. & L.R. Act. It is settled principle of law that a power to do in a particular authority, empowers the same authority to undo the notifications. The State Government has the power under the provisions of Section 117 of the U.P. Z.A. & L.R. Act and not the Director of Panchayat Raj to rescind the notification of Section 117. The powers under the Panchayat Raj Act, 1947, operate in a different field and so is the case under the U.P. Municipalities Act, 1916. There the limits of boundaries are defined that does not deal with any such power of divesting the management of Gaon Sabha Land which is within the exclusive domain of the U.P. Z.A. & L.R. Act, 1950.
Accordingly, in the absence of any other notification under Section 117 of the U.P. Z.A. & L.R. Act, rescinding the notification dated 11th August, 1954, the contention so raised and advanced on behalf of the petitioners cannot be accepted. Accordingly, the findings recorded by the authority below cannot be said to be vitiated on any score.
The writ petition lacks merit and is hereby dismissed.
Order Date :- 25.7.2011 Sahu