Gram Panchayat, Sungarpur vs State of Haryana and Others

The Gram Panchayat, Sungarpur, tehsil Charkhi Dadri, district Bhiwani, is the petitioner approaching this Court under Art, 226 of the Constitution for its power to introduce ''prohibition'' in the area within its jurisdiction, stands hindered by the action taken by the Excise and Taxation Commissioner. Haryana, respondent No. 1.

Briefly stated, the circumstances in which the Gram Panchayat has come to this Court are these. On July 13, 1986, the Gram Panchayat passed a unanimous resolution to the effect that the Government be asked not to open any liquor shop within the jurisdiction of village Sungarpur for the year 1987-88. The Gram Panchayat claims that a copy of the resolution was sent to respondents 1 and 2. The request was reiterated by another unanimous resolution on Sept. l6, 1986, and the same was sent to the respondents. In Feb., 1987 allegedly the Excise and Taxation Commissioner summoned the members of the Panchayat to hear them. and he was told about the rigid stand of the petitioner-Panchayat. The Deputy Excise and Taxation Commissioner-respondent 2, however, auctioned liquor vend in village Sungarpur on Mar. 1987, which was obtained by respondent 3. Challenging the action as also the auction, the petitioner-Panchayat asserts its powers under S. 26 of the Punjab Gram Panchayat Act. 19~2(as applicable to the State of Haryana). The said provision reads as follows :--

"26. Power to Introduce Prohibition.--(1) A Gram Panchayat may, at any time, during the period commencing on the 1st day of April and ending with the 30th Sept. of any year, by resolution passed by majority of Panchas holding office for the time being direct that intoxicating liquor may not be sold at any licensed shop within the local area of the Gram Panchayat.

(2) When a resolution has been passed under sub-section (1) and is received in the office of the Excise and Taxation Commissioner, Haryana on or before the 31st Oct., it shall take effect from the 1st April of the year next after such resolution.

(3) Notwithstanding anything contained in the Punjab Excise Act, 1914(or any other Act for the time being in force) and the rules made thereunder with regard to the power and function of the Collector under the said Act, such a resolution will be binding upon the Excise and Taxation Commissioner.

Provided that if the Excise and Taxation Commissioner is of opinion for reasons to be recorded in writing that within such local area illicit distillation or smuggling of alcohol has been carried on or connived at, within two years preceding date of the passing of such resolution, in such local area, such resolution shall not be binding upon him, unless the Government orders that it shall be so binding."

Except to the fact that a resolution was passed by the Panchayat in the first instance on July 18, 1986, the respondents have not denied the other allegations of the petitioner. The fact remains that respondents 1 and 2 were apprised of the resolution of the Panchayat within this stipulated time and the Excise and Taxation Commissioner, Haryana, became, seisin of the dispute. That a hearing was granted to the Panchayat is also not a dispute. The point which the Panchayat seeks to raise is that the resolution passed by it under the provisions of S. 26 is binding on the Government and no auction could have been held by the Excise and Taxation Commissioner so as to enforce his opinion so as to trample down the resolution of the Panchayat.

Mr. I.S. Balhara, learned counsel for the petitioner, on the strength of Gram Panchayat Oon v. Excise and Taxation Commr., Haryana 1974 PLR 360, has urged that the opinion of the Excise and Taxation Commissioner on the question of activity of illicit distillation being carried out in the area two years preceding the date of passing of the resolution, was utterly weak because these were stray cases and not of much importance. He also placed reliance on the judgment in Gram Panchayat, village Chirya v. State of Haryana 1985 PLR 578 on the same point as also on Gram Panchayat, Gholian Khurd v. Excise and Taxation Commr. Punjab Patiala . The Excise and Taxation Commissioner has justified her action on the ground that two First Information Reports, No. l/1984 and 102/1985 relating to recovery of 25 KGs of lahan each from two different persons of village Sungarpur, have been recorded at the local Police Station and according to her, this was activity of illicit distillation in the area concerned. As is plain, the first instance cannot be reckoned, for it is beyond the period of two years preceding the date of resolution. The second one, of course, is worthy of consideration but it is a solitary instance, and as is well said A single swallow does not make summer. But be that as it may, the relief I am about to mould in the instant petition would not require a positive finding at my end to say that the instance is totally to be ignored so as to have the Gram Panchayat enforce its resolution.

A close scrutiny of S. 26 discloses that the Gram Panchayat has been given the power to introduce prohibition. The key words to the section disclose the intendment of the Legislature. These are part of legislation and not any other exercise. It is the Gram Panchayat who has been conferred such power and if it is unhindered it can have it enforced with effect from first day of April of the year next after such resolution. The only power to hinder such enforcement is the event of the Excise and Taxation Commissioner being of the opinion, for reasons to be recorded in writing, that within such Gram Panchayat area, illicit distillation or smuggling of alcohol has been carried on or connived at within two years preceding the passing of such resolution. It is only on his recording of such reasons that he can get away from having the resolution of the Panchayat binding: Conversely, if he has no such opinion to record, sub-sec.(3) of S. 26 requires him to obey the resolution of the Panchayat notwithstanding anything contained in the Punjab Excise Act, 1914 or any other Act for the time being in force and the rules made thereunder with regard to the powers and functions of the Collector under the said Act. The opinion so recorded only takes away the binding effect of the resolution of the Panchayat.

The ancillary question is--when will he record such opinion? Will it be after giving the Panchayat an opportunity of being heard or before it?

In Gram Panchayat, Gholian Khurd''s case this Court took the view that the Excise and Taxation Commissioner concerned should have before him views. of both the sides which would necessitate as corollary the affording of opportunity of hearing to the Gram Panchayat. Also in Gram Panchayat, Oon''s case (supra) the view taken was. that before the order ignoring the resolution of the Panchayat is passed, it is the duty of the Excise and Taxation Commissioner to hear the Panchayat so that it could put before him ad relevant facts in favour of the enforcement of prohibition and explain and contradict the facts placed before him by the department for ignoring its resolution enforcing prohibition. I have no quarrel with the safeguard provided for the view of the Gram Panchayat being available to the Excise and Taxation Commissioner. Rather, I am in agreement with it but with a little addition. It seems to me that by affording of opportunity of hearing to the Gram. Panchayat, the Excise and Taxation Commissioner, who before such. step obviously has taken a tentative opinion, can refurnish his view and write finally an opinion supported by recorded reasons. All the same it remains an opinion and not a decision of the Excise and Taxation Commissioner. The provision has envisaged. another agency to be the deciding one and that is the Government. As said before, recording such opinion would only mean that the resolution of the Panchayat is not binding on him. But then he has to refer the matter to the Government to resolve the dispute between the Panchayat''s binding resolution and his differing opinion supported by reasons recorded in writing. The Government in that event is the sole judge and obviously, time bound as the measure is, it is statutorily bound to make a decision before the commencement of the first day of April of the year next after such resolution.

In the instant case, admittedly no such step was taken. The Excise and Taxation Commissioner having recorded his opinion saw to it that it was enforced by action, inasmuch as the liquor vend was auctioned and that step was taken as fait accompli. Now, here the Excise and Taxation Commissioner faltered in law. It was required of her to send the matter to the Government. The power of the Government in the proviso, as would be seen, is not that of an appellate officer. This Court saw through it in Gram Panchayat, Gholian Khurd''s case (supra) by observing as follows :--

I am afraid the above expression cannot be read to spell out a right of appeal to the Government against the order in question of the Excise and Taxation Commissioner. What it would appropriately mean, in my view, is that the order of the Excise and Taxation Commissioner ignoring the resolution of the Gram Panchayat would have acquired finality only if the same had received the approval of the Government. In other words, the proviso in fact, laid a responsibility on the Excise and Taxation Commissioner to place his order along with the material gathered by him, after affording an opportunity of hearing to the Gram Panchayat, before the Government for its final approval of the same. In view of the above, the question of the petitioner-Panchayat having not exhausted its alternative remedy of an appeal to the State Government did not arise."

Agreeing with the above view, I have to add that since the Government is the deciding authority, it has to afford an opportunity of being heard to the Gram Panchayat for it is its decision with regard to the resolution of. the Panchayat being binding or not, which is to be final. In other words, any irregularity in. the affording of opportunity to the Panchayat. by the Excise and Taxation Commissioner may or may not be ignorable but the Government passing an order without affording an opportunity of hearing to the petitioner would be an error of jurisdiction.

Applying the aforesaid principles to. the facts of the present case, I would allow this writ petition and issue a direction to the Excise and Taxation Commissioner, Haryana, to refer forthwith her opinion as also the resolution of the Panchayat to the Government for its decision under the proviso to sub-section (3) of S. 26 of the Punjab Gram Panchayat Act, 1952(as applicable to the State of Haryana). Since such power would be exercised by the Secretary to Government, Haryana, Excise and Taxation Department, the parties are directed to put in appearance before him on May 28, 1987, before which. date the file at the behest of the Excise and Taxation Commissioner shall be before the Secretary. A further direction is given that till the decision of the Government, the liquor vend shall not operate. The parties are left to bear their own costs.

Petition allowed.