GRAM PANCHAYAT Vs. SAHMAT KHAN
LAWS(CHH)-2005-6-3
HIGH COURT OF CHHATTISGARH
Decided on June 30,2005

GRAM PANCHAYAT Appellant
VERSUS
Sahmat Khan Respondents

JUDGEMENT

L.C.BHADOO,J. - (1.) The petitioners who are defendant Nos. 1 and 2 in the suit pending in the Court of the 3rd Additional Civil Judge Class II, Bilaspur have preferred this writ petition questioning the legality of order dated 28-3-2005 passed by learned Additional District Judge, Bilaspur in Miscellaneous Civil Appeal No. 11/05 whereby learned Additional District Judge allowed the miscellaneous civil appeal filed by respondent No. 1 herein and set aside the order dated 9-3-2005 passed by learned 3rd Additional Civil Judge whereby the application filed by respondent No. 1 herein under Order 39 Rules 1 and 2 of the CPC was rejected. The Appellate Court directed the petitioners herein not to stop respondent No. 1 from collecting the tax from the weekly cattle fair of Gram Panchayat Jhalmala.
(2.) Brief facts, as set out in the writ petition, are that respondent No. 1 herein filed a civil suit in the Court of learned 3rd Additional Civil Judge, Class-II, Bilaspur for issuance of permanent injunction restraining the petitioners herein from creating any obstruction in collecting the tax in the weekly cattle fair of Village Panchayat Jhalmala and not to prevent the plaintiff from collecting the tax from the said fair on the ground that in the month of August, 2004 Gram Panchayat Jhalmala gave right of collecting tax from the weekly cattle fair on contract basis for a period of one year, in that process auction was conducted and the plaintiff being the highest bidder of Rs. 1,03,000.00 the auction was accepted in his favour. The plaintiff deposited the entire auction amount in three installments, i.e., Rs. 25,750.00 on 23-8-2004; Rs. 30,000.00 on 1-10-2004 and Rs. 47,250.00 on 11-10-2004. The Sarpanch after receiving the said amount issued receipts in favour of the plaintiff. Thereafter, the plaintiff was allowed to collect the tax from the said weekly cattle fair market and since the Gram Panchayat Jhalmala gave the contract to the plaintiff, it is binding on the defendants also, as the plaintiff has already deposited the entire auction amount. However, on 12-2-2005 defendant No. 2 served a notice on the plaintiff asking him not to collect tax from the weekly cattle fair market, respondent No. I/plaintiff submitted reply of same, however, on 2-3-2005 when the plaintiff and his persons were collecting the tax in the weekly cattle fair market defendant No. 2 came in the market, started creating obstructions and asked the plaintiff not to collect the tax and said that he has no right to collect the tax. Respondent No. 1 herein filed suit alongwith an application under Order 39 Rules 1 and 2 of the CPC for grant of temporary injunction supported by an affidavit. The petitioners herein filed reply of the said application and stated that it is incorrect to say that the contract was given to the plaintiff for collection of tax from the weekly cattle fair market and it is also incorrect to say that auction amount Rs. 1,03,000.00 has been deposited in the account of Gram Panchayat Jhalmala by the plaintiff or by the then Sarpanch namely Gendram Gandharv (defendant No. 3). The plaintiff produced a receipt of Rs. 10,000.00 regarding the deposits made at the time of auction, but the same amount has also not been deposited in the account of Gram Panchayat. It was further mentioned in the reply that the plaintiff in collusion with the former Sarpanch has entered into illegal activities, as there is no privity of contract between the plaintiff and defendant-Gram Panchayat. Thereafter, when defendant Nos. 1 and 2 came to know about the said illegal activities they asked the plaintiff to produce the documents regarding his right of collection of tax, but in response to the said notice when plaintiff failed to appear, then on 28-2-2005 the Gram Panchayat took a decision to cancel the contract of the plaintiff under Section 85 of the Gram Panchayat Adhiniyam, 1993, same was approved by the Prescribed Officer, Janpad Panchayat Masturi. In compliance of the resolution the Panchayat has been given right to collect the tax from the weekly cattle fair market to w.e.f. 1-3-2005. They have started collecting tax w.e.f. 2-3-2005. It was further mentioned in the said reply that since no contract agreement has been executed between the Gram Panchayat and plaintiff therefore, no prima facie case is made out in favour of the plaintiff nor the balance of convenience is in favour of the plaintiff and if the injunction is not granted in his favour he is not going to suffer any loss.
(3.) Learned 3rd Additional Civil Judge Class-II after hearing the parties rejected the application of plaintiff/respondent No. 1 on the ground that the plaintiff has failed to prove his case that he has deposited auction amount in the account of Gram Panchayat Jhalmala. There is no entry regarding deposit of auction amount in the register of Gram Panchayat and defendant No. 3 has not made any entry regarding the deposit of amount. Against the said order respondent No. 1 filed a miscellaneous civil appeal. The Appellate Court after hearing the parties reached to the conclusion that resolution passed by the Gram Panchayat can be cancelled under Section 85 of the Adhiniyam by the Government or the Prescribed Authority, i.e., Sub Divisional Officer, therefore, the Panchayat was not entitled to cancel the auction dated 21-8-2004. Even the Chief Executive Officer was not entitled to pass any order that Gram Panchayat is entitled to collect the tax from the weekly cattle fair market. The auction was accepted in favour of the plaintiff on 23-8-2004 being the highest bidder, therefore, there is prima facie case in favour of the plaintiff and balance of convenience lies in favour of the appellant/respondent No. 1 herein, if the plaintiff is not allowed to collect the tax then irrepaf able loss will be caused to him.;


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