Friday, February 23, 2024

Chhattisgarh High Court dismisses plea challenging allotment-cum-auction notice for shops in Cherwapra Gram Panchayat

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The Chhattisgarh High Court dismissed a Public Interest Litigation (PIL) seeking quashing of the proceedings of allotment cum auction notice  of shops over Government lands situated within Gram Panchayat Cherwapra.

Sushobhit Singh, the counsel for the petitioners submits that petition has been filed for the conservation and protection of rights of the members of Gram Sabha under Section 4 of the Panchayat Extension To Schedule Areas Act 1996.

It is stated that village Chhinddaand lies in an extremely interior remote schedule area and is a part of Gram Panchayat Cherwapara. The respondent/State authorities initiated the exercise of construction and allotment of shops over Government lands situated within Gram Panchayat Cherwapra.

Therefore, the members of the Gram Sabha immediately passed a unanimous resolution raising objection against the construction and allotment of shops without seeking prior consent and approval of Gram Sabha, Cherwapara and Sarpanch of Gram Panchayat Cherwapara has also issued a certificate that no consent or approval was ever obtained from the Gram Sabha before raising the construction or development works in the Gram Panchayat.

Petitioner No.1 has also filed his written objection/ representation on behalf of the Gram Sabha against the construction and development work undertaken without consent and approval of the Gram Sabha.

The counsel for the petitioners further submitted that the area falls within the fifth schedule area and Article 224 of the Constitution of India provides for special protection of the customary rights of the tribals.

The Act 1996 is also applicable in the area which provides protection of the tribals to protect their traditional way of living and customary rights. He further submitted that the Supreme Court in the matter of Orissa Mining Corporation vs Ministry of Environment and Forest reported in 2013 volume 6 SCC 476 has declared and recognized the rights of the Gram Sabha under Section 4 of the Panchayat Extension To Schedule Areas Act 1996.

Sushobhit further submit that there is clear violations of the provisions of the PESA Act which provides for the protection of tribal way of life in a fifth schedule area and the respondents are acting in an arbitrary manner by proceeding in the matter without holding any inquiry and without deciding the objections of the members of the Gram Sabha.

Therefore, impugned proceedings of allotment cum auction notice may be quashed. 

The counsel for the State would submit that the dispute involved in the present petition is between the petitioners and private respondent No.4/Chief Executive Officer, Zila Panchayat Koriya, as the impugned proceedings have been initiated by issuing the auction notice by the said respondent No.4 (Chief Executive Officer Zila Panchayat Koriya District Koriya Chhattisgarh).

He further submitted that since no substantial and effective relief has been sought by the petitioners against respondents 1 to 3/State authorities and further no adverse allegation has been made against the State authorities, therefore, the present petition as against respondents 1 to 3/State authorities is liable to be dismissed at the threshold.

The counsel for respondent No. 4/Chief Executive Officer, Zila Panchayat Koriya while drawing his attention to the reply filed by him would submit that so far as the allegation of the petitioners that no prior consent or approval was ever obtained from the Gram Sabha is concerned, it is submitted that after filing of the petition, the matter of construction of 18 shops was taken up before the meeting of Gram Panchayat Cherwapara, wherein the issue of construction of 18 shop by respondent No.4 was taken up and discussed among the members of the panchayat and appropriate consent has been given for auction of already constructed 18 shops.

He would further submit that as per the contents of the resolution passed by the Gram Panchayat itself, it is clear that out of the 18 shops the rent derived from 9 shops shall be given to the Gram Panchayat for carrying out its developmental and welfare work and the revenue generated from remaining shops shall be remitted respondent No.4. 

Therefore, the issue of prior approval or consent does not survive any more pursuant to the resolution passed by the Gram Sabha/Panchayat itself allowing the process of auction/allotment of the shops.

The counsel while relying on the provision of Section 4(i) of the PESA Act would submit that since the Gram Panchayat vide its resolution dated 07.02.2023 has already given its no objection for the auction of 18 shops, thus, Section 04 of the Act 1996 has rightly been complied.

It is lastly submitted that in the light of the above facts and scenario of the present case, no relief as prayed for, is made out in the present case calling for issuance of any direction from this Court, hence the same may be dismissed.

The Division Bench of Chief Justice Ramesh Sinha and Justice N.K. Chandravanshi while considering the PIL noted that grievance of the petitioner in the instant case is that without obtaining consent from the Gram Sabha of Cherwapara, respondent No.4 has constructed 18 shops and they are also going to auction the same.

But respondent No.4 has categorically stated in their reply that consent has already been obtained from the concerned Gram Panchayat, therefore, there is no violation of any of the provisions of Section 4 of the PESA Act.

The PESA Act has been enacted to provide for extension of provisions of Part IX of the Constitution relating to Panchayats of the Scheduled Areas. Section 4(d) of the Act states that every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution. Therefore, Gram Sabha or the Gram Panchayat functioning under the Forest Rights Act read with Section 4(d) of PESA Act has an obligation to safeguard and preserve the traditions and customs of the STS and other forest dwellers, their cultural identity, community resources etc., which they have to discharge following the guidelines issued by the Ministry of Tribal Affairs.
Section 4(i) of the PESA Act, provides thus:- 
“(i) The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of the land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level.”   
Thus, as per the aforesaid provisions, the Gram Panchayat is also the appropriate authority to give consent for doing any such work in scheduled area and in the instant case, as has been stated by respondent No.4, consent of the  Gram Panchayat has been obtained with regard to the issue involved in the instant case. Therefore, the Court do not find any merit in the  PIL.
The Court said that it is the duty of the Court to ensure that there is no personal gain, private motive and oblique notice behind filing of PIL. In order to preserve the purity and sanctity of the PIL, the Courts must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous considerations.   
“The Court should, prima facie, verify the credentials of the petitioner before entertaining a PIL. It is also well settled that the Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Courts should ensure the jurisdiction in public interest is invoked for genuine purposes by persons who have bona fide credentials and who do not seek to espouse or pursue any extraneous object. Otherwise, the jurisdiction in public interest can become a source of misuse of private persons seeking to pursue their own vested interests. “
Considering the aforesaid legal preposition and also the facts in the instant case that consent of the Gram Panchayat has been sought and obtained, which is found to  be in accordance with Section 4 of the PESA Act, hence, the Bench  does not find for any sort of interference in the matter.

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