Dismissed

Village Panchayat Gandhari through Its Sarpanch Ramesh Sukhdeo Niware v. the State of Maharashtra and Others

Bombay HC27 Feb 2018WP/632/2018

Case brief

AI extract

What is this about?

In this writ petition, the Village Panchayat sought to quash an E-tender notice and sand excavation allotment to a private company, alleging violation of Gram Sabha recommendations and environmental concerns. The Court examined the validity of the opposition resolution and the history of illegal sand extraction by the villagers.

What the court decided

AI extract

Village Panchayat Gandhari through Its… — Public Procurement and Tenders | Bombay HC (2018)

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632.18WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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WRIT PETITION NO. 632 OF 2018

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Village Panchayat, Gandhari,
Tq. Ambad, Dist. Jalna
Through its Sarpanch
Ramesh S/o Sukhdeo Niware
Age : 58 years, Occ : Agri.,
R/o Gandhari, Tq. Ambad,
Dist. Jalna.

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...PETITIONER

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VERSUS

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1. The State of Maharashtra, Through the Secretary of Revenue and Forest Department, Mantralaya, Mumbai-32.

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2. The Divisional Commissioner, Aurangabad Division, Aurangabad.

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3. The Additional Collector, Jalna, Collector Office, Jalna, Dist. Jalna.

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4. The Sub-Divisional Officer, Ambad, Dist. Jalna

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5. The Tahsildar, Tahsil Office, Ambad, Dist. Jalna.

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6. Gayatri Enterprises, through Ashish S/o Jagdishprasad Sharma Age : 43 years, Occ : Business,

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632.18WP

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22A, 2/A, Karan Complex,
Before Lokpatra Press,
Jalna Road, Aurangabad.

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...RESPONDENTS

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...

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 Mr.V.D. Sapkal Advocate for Petitioner.
 Mr.S.B. Yawalkar, Addl.G.P. for Respondent
 Nos.1 to 5

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 Mr.V.J. Dixit, Senior Counsel along with
 Mr.A.N. Nagargoje, Advocate for Respondent No.6

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...

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CORAM: S.S. SHINDE AND
 S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 14TH FEBRUARY, 2018.

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 DATE OF PRONOUNCING JUDGMENT: 27TH FEBRUARY, 2018.

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. Rule. Rule made returnable forthwith and

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heard finally with the consent of learned counsel
appearing for the parties.

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2.This Petition is filed with the following

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prayers :-

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“B)This Hon’ble Court be pleased to issue

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writ of mandamus or appropriate writ or
directions or orders in like nature and the

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E-Tender Notice dated 15.12.2017 and

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further process to that effect to the

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extent of the Petitioner Village, may

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kindly be quashed and set aside.

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C)This Hon’ble Court be pleased to issue

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writ of mandamus or appropriate writ or
directions or orders in like nature and the
letter dated 02.01.2018 issued by the
Respondent No.3 to Respondent No.6 for
depositing the remaining amount, may kindly
be quashed and set aside and may kindly

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restrain the Respondent No.3 from giving
possession of the sand spot at petitioner
village to the Respondent No.6.”

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3.Learned counsel appearing for the

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petitioner submits that, village Gandhari is
situate on the bank of Godavari river in Ambad

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Taluka. The E-tender notice was issued on 15th
December, 2017, by which the said village is

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listed for sand excavation. At the time of
inserting the name of the said village in an
auction/E-tender of sand, the will of majority is
not considered, and only to get the revenue, the
petitioner’s village is included in the auction/
E-tender. Gram Sabha has passed the resolution
opposing the sand excavation from the river bed
situate in the said village. It is specifically
mentioned that, if such excavation of sand is
taken place, it would create problems for drinking
water and irrigation purposes, and majority of the
persons, who are dependent upon the agricultural
land, would also ultimately suffer. Gram Sabha was
arranged on 25thOctober, 2017 and after
discussion, the resolution was passed. Learned
counsel appearing for the petitioner invites our
attention to the copy of the said Resolution

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(Exhibit-C/Page 35) and submits that, the
Government of Maharashtra, after passing the order

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dated 18th April, 1998 in Writ Petition No.637 of
1997 and after considering that, there was a

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consistent flow of Writ Petitions and Public
Interest Litigation filed by various Village
Panchayat, Sugar Factories, Irrigation Societies
and Co-operative Societies, had taken a policy
decision and framed the scheme to deal with
matters relating to auction of sand from the river
bed. The said scheme was brought into force from
5th September, 2003 to deal with all matters
concerning auction of sand and other ancillary and
incidental issues arising therefrom. Thereafter,
the said Government Resolution dated 5th September,
2003 is amended and Respondent No.2 – State has

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framed new policy for auction of the sand and
excavation of the sand. Accordingly, the State of
Maharashtra has issued new Government Resolution
dated 25.10.2010, thereby framing new policy for
auction of the sand. However, again the said
policy is changed by introducing the recent
Government Resolution dated 12th March, 2013. As

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per condition No.3, the recommendation of the Gram
Sabha is made mandatory before auction of the sand

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of any particular village. However, as per

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Condition No.3(e) of the said Government

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Resolution dated 12th March, 2013, if Gram Sabha
opposes for auction of sand spot, then the power
is given to the Sub-Divisional Officer to decide

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the objections and to take decision on it and to
put said sand spot in auction or not. It is also
stated that, officers of Ground Water Survey
Department and other Officer should take part in

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the said meeting and to decide about
recommendation for the auction of that sand spot.
Here, it is to be considered that, if the powers

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are given to the Sub-Divisional Officer for final
decision then there is no value of the Gram Sabha.

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4.It is submitted that, the Government

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Officers are not respecting the feelings of the

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villagers and in the present case, ignoring the
decision of the Gram Sabha, the sand spot is
allotted in favour of Respondent No.6. It is
submitted that, even the mandate of Government

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Resolution dated 12th March, 2013 has not been
adhered to, while allotting such sand spot in
favour of Respondent No.6. Learned counsel invites
our attention to the contents of the Government
Resolution, and submits that, before such sand
spot is auctioned joint survey has to be carried
out by (1) District Mining Officer, (2) Officer of
the Department of Environment and (3) Senior
Geologist, Ground Water Survey Department. He
further submits that, the said Committee has to
submit detail report to the Collector. The purpose
of the aforesaid Committee and enquiry is that,

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the excavation of sand should not affect the water
table, thereby resulting into reduction of
productivity of crops in the villages, which are
benefited because of the river water. Learned

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counsel also invites our attention to the
provisions of Rule 39-A, and submits that, the
auction was in violation to Rule 39-A of the
aforementioned Rules. Learned counsel also invites

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our attention to the provisions of Article 243 of

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the Constitution of India, and submits that, in

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order to maintain the autonomy of the Village
Panchayat wishes expressed by the villagers
through Gram Sabha, need to be honoured before
including the sand spots in the tender process.
Learned counsel also invites our attention to the
various documents placed on record, and by relying
upon the pleadings in the Petition, annexures
thereto and the averments in the rejoinder
affidavit, submits that, the Petition deserves to
be allowed.

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5.On the other hand, learned Additional
Government Pleader appearing for Respondent No.3,
relying upon the averments in the affidavit in
reply filed on behalf of the said Respondent, made
the following submissions :-

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The auction of sand spot at village

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Gandhari has been conducted as per the Government
Resolution dated 12thMarch, 2013. The Gram

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Panchayat is a group Gram Panchayat, consisting of
villages Gandhari and Gouri. The sand spot at
village Gouri has also been auctioned and the said
sand spot is allotted to the highest bidder. The
Resolution dated 5th January, 2018 shows that, the
objection with respect to both sand spot Gouri and
Gandhari, however, the Petition is filed only
against the sand spot at village Gandhari. Before
issuing E-tender dated 15th December, 2017, as per

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the Government Resolution dated 12th March, 2013,
the information with respect to sand spot has been
collected by the Collector. The concerned
Tahsildar submitted report to the Collector on 28th
June, 2017. The said report is submitted after
preparing the Panchanama and map of the spot.
After receipt of such proposal, the joint survey
is conducted by the District Mining Officer and
Junior Geologist of Ground Water Survey and
Development Agency. The said report or survey is
forwarded to the Collector. In the present matter,
the report is submitted by the Ground Water Survey

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and Development Agency and Mining Officer
collectively on 13thSeptember, 2017. It is

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submitted that, as per the Government Resolution
dated 12th March, 2013, the meeting of Gram Sabha
was called seeking permission to auction the sand

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spot, however, the Gram Sabha did not give its
permission, and raised objection for granting
permission as per the Resolution dated 25th
October, 2017. The Sub-Divisional Officer
considered the objection of the Gram Sabha and
discarded the same. The Sub-Divisional Officer has
considered that, there will be illegal excavation

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of sand and there will be loss of revenue to the
State Government as well as it will not be
benefited to the village. It is submitted that,
before issuing the auction of sand spot as per the
Notification dated 20thJanuary, 2016, the

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environmental clearance has to be taken from the
Committee consisting of District Collector of the

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District as a Chairman, Senior Most Divisional
Forest Officer in the District as a member and

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expert member nominated by the Divisional
Commissioner or Chief Conservator of the Forest as

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a member and the Sub-Divisional Officer of the
District, as a member Secretary. The said
committee has given environmental clearance for

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the village sand spot including sand spot in
question on various conditions. It is submitted
that, after obtaining the environmental clearance
certificate, as stated above, the E-tender notice

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came to be published, and after following due
procedure the sand spot came to be allotted to
Respondent No.6. Learned A.G.P. invites our
attention to the letter at Exhibit `E/Page 70 and
submits that, by mistake the date has been
mentioned on the said letter as 2nd January, 2018,
however, actually it is issued on 3rd January,
2018. Furthermore, the corrigendum came to be
issued on 25th January, 2018, correcting the date

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as 3rd January, 2018 instead of 2nd January, 2018.

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6.It is further submitted that, the

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petitioner has not shown that the present sand
spot will come within the scheduled area as
required under law. The Government Resolution
dated 12th March, 2013 issued by Revenue and Forest
Department, Government of Maharashtra provides for

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an alternate remedy before the Grievance
Committee. As per the clause 17 of the said
Government Resolution, the petitioner can approach
the said Committee. Respondent No.6 has deposited

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the amount of Rs.63,53,730/- with the Respondent
Authorities. Learned A.G.P. therefore submits
that, taking into consideration the fact that,
already the sand spots are allotted in favour of
Respondent No.6 in accordance with the Government
policy, the Petition may not be entertained.

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7.Learned Senior counsel Mr. Dixit
instructed by Mr. Nagargoje, relying upon
averments in the reply of Respondent No.6, submits
that, there is no valid resolution authorizing the

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present petitioner to file the Petition on behalf

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of Gram Panchayat. The petitioner is adopting the

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pick and choose policy. Though the tender of two
sand spots have been allotted, which come within
the jurisdiction of the petitioner, still the
Petition has been filed only in respect of the
tender allotted in favour of Respondent No.6. The
tender has been issued in favour of Respondent
No.6, after following due process of law and
keeping in view the provisions of Government
Resolution dated 12th March, 2013. Learned Senior
counsel invites our attention to the alleged
resolution passed by Gram Sabha and submits that,

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it is signed only by 22 members. Learned Senior
counsel also invites our attention to the fact
that, the villagers and the Sarpanch i.e. Ramesh
Sukhdeo Niware, who has filed the present Petition
on behalf of Gram Panchayat, are involved in
illegal transportation of sand. The number of
tractor belongs to Sarpanch involved in illegal

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transportation of sand is having No.MH-21 D-4934.

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His son also involved in illegal excavation of

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transportation of sand. The tractor owned by him
is of Mahindra Company having No.D-575, which is
being used for illegal transportation of the sand.
He invites our attention to the copies of number
of documents to show that, the villagers of the
said village are involved in illegal excavation of
sand, and therefore, in order to enjoy the illegal
excavation of sand, they are opposing to issue
valid tender for excavation of the said sand,
which is issued in favour of Respondent No.6.
There was no valid reason to oppose the auction of
the said sand spot in favour of Respondent No.6.
The alleged resolution is signed by only 22
members. The Sub-Divisional Officer, after
considering the said resolution, submitted the
report to the Collector for conducting auction. It
is submitted that, the petitioner – Village
Panchayat objected both the spots, still the
Petition has been filed questioning only one spot

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i.e. in village Gandhari, which itself shows the
malafide intention on the part of the petitioner.

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It is submitted that, all steps/formalities of

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issuing tenders were completed relying upon the
Government Resolution, and as a matter of fact,
the auction has been held on 3rd January, 2018. It
is submitted that, in the year 2013-2014, the
petitioner Village Panchayat objected the auction
of sand spot of Gouri/Gandhari. However, vide
letter dated 18th November, 2013, the concerned
Sub-Divisional Officer has turned down the said
objection and accordingly, the auction was held
and the Tender was given to one Shaikh Akbar
Shaikh Ahmed. The petitioner – Village Panchayat

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did not challenge the said auction. On the
contrary, subsequently, by passing the Resolution
dated 8th November, 2014, the petitioner – Village
Panchayat gave its no objection for extension of
the period, which was objected by them. Thus the

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said fact itself shows that, the petitioner –
Village Panchayat is not coming with clean hands

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and the auction is being opposed for some ulterior
motive.

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8.It is submitted that, the auction has

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been held on 3rd January, 2018 and tender has
already been issued. The upset price of sand spot
at Gouri was at Rs.20,53,440/- and the bid price
is at Rs.32,33,440/-. So far as the sand spot of
Gandhari is concerned, the upset price was at
Rs.27,53,530/-, whereas the bid offer given by
present Respondent No.6 is at Rs.63,53,730/-.
However, the petitioner – village Panchayat is
questioning the spot allotted to Respondent No.6
for some ulterior motive. It is submitted that, by

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order dated 18th January, 2018, the Tender of Gouri
spot has been allotted to Jay Industries. The said
sand spots at village Gouri and village Gandhari
are adjacent to each other and distance between
these two spots is very less. It is submitted

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that, both the spots come under the jurisdiction

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of petitioner - village panchayat and the
petitioner - village panchayat is the Group Gram
Panchayat of Gouri and Gandhari. Beside it, by

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Resolution dated 25th October, 2017, the petitioner
– Village Panchayat objected both the spots, still
there is no challenge to other spot and the
present Petition has been filed only questioning
the spot at Gandhari. It is submitted that, as a
result of illegal excavation of the sand by the
villagers of the said village Gandhari, 104 crimes
were registered against villagers for illegal
excavation of sand. The fine has been imposed,
which comes near about Rs. 1,04,00,000/-. It is
submitted that, if the auction is not held then
there will be illegal excavation of sand and the
State exchequers will be deprived of from getting
the revenue. Learned Senior counsel invites our
attention to such several instances of illegal
excavation of sand by the villagers. It is
submitted that, pursuant to the allotment of
tender, Respondent No.6 has already started
excavation of the sand. Therefore, it is submitted

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that, the Petition may be rejected.

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9.We have given careful consideration to
the submissions advanced by learned counsel

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appearing for the parties. With their able
assistance, we have perused the pleadings in the
Petition, grounds taken therein and annexures
thereto, reply filed by Respondent No.3, reply
filed by Respondent No.6 and the rejoinder
affidavit filed by the petitioner.

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10.Upon careful perusal of the alleged

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resolution passed by the Gram Sabha, it appears
that, the same is signed only by 22 villagers.

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Therefore, we find considerable force in the
submissions of learned Senior counsel appearing
for Respondent No.6 that, such alleged resolution

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cannot be treated as valid. Apart from it, upon
careful perusal of the Resolution passed by the
Gram Panchayat on 8th November, 2014, it appears
that, the Gram Panchayat resolved that, Shaikh

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Akbar Shaikh Ahmed should be allowed to excavate
the sand. In case, the Gram Panchayat was really

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concern about the ecological imbalance or that,

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the water flow is reduced because of such
excavation of sand, such resolution should not
have been passed by the Gram Panchayat. Apart from
it, upon careful perusal of the panchanama dated
17th December, 2014 at Page 155 of the compilation
of Writ Petition, it appears that, the names of
Ramesh Sukhdeo Niware and Bhausaheb Ramesh Niware
are mentioned. Their tractor numbers are also
mentioned. The said panchanama also shows that,
said four tractors were seized while transporting
the sand. Admittedly, the procedure adopted and
tender allotted in favour of Respondent No.6 is
governed by the Government Resolution dated 12th
March, 2013. It appears from the reply filed by
Respondent No.3 that, the procedure in the said
Government Resolution has been scrupulously
followed and thereafter the Sub-Divisional Officer
has recommended to the Collector for auction of
the said sand spots.

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11.We have carefully perused the provisions
of the Government Resolution dated 12th March,
2013 issued by the Revenue and Forest Department,
Government of Maharashtra. Clause No.3 of the said
Resolution, which is relevant in the facts of this
case, reads as under:

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“ 3- okGw@jsrh fyykokdfjrk xzkelHksph f'kQkjl %&

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¼v½ unhik=krhy okGw fyykokiwohZ xzkelHksph f'kQkjl

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Äs.;kr ;sbZy- v'kh f'kQkjl izkIr >kY;kuarj fyyko dj.;kr ;sbZy-

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¼c½ lacf/kr xzkeiapk;rhP;k {ks+=krwu izkIr >kysY;k

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eglwykP;k izek.kkr ns; [kfut fodkl fu/khe/kqu 2@3 jDdesiSdh 50% VDdsfu/kh jLrs vkjksX;] bR;knh lq/kkj.;klkBh ns.;kr ;s.kkj vlY;kps xzkeiapk;rhP;k fun'kZukl vk.k.;kr ;sbZy-

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¼d½ 'kklukus okGq@jsrh xVkP;k fyykoklkBh uk&gjdr izek.ki= ekxfoY;kuarj R;klkBh 15 fnolkP;k vkr xzkelHkk cksykowu R;koj fu.kZ; ?ks.ks xzkeiapk;rhoj

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ca/kudkjd jkfgy- ;k dkyko/khr fu.kZ; izkIRk u >kkY;kl

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xzkeLkHksph ekuho lgerh (Deemed

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concurrence) x`ghr /k#u fyykokph iq<hy dk;Zokgh dj.;kr ;sbZy-

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¼M½ xzkelHksus fyyko dj.;kl f'kQkjl ukdkjY;kl R;kph lcG dkj.ks xzkeiapk;rhus |kohr- lnj dkj.ks lcG vkgsr vFkok ukghr ;kckcr mifoHkkxh; vf/kdkjh ¼eglwy½ ;kauh rikl.kh djkoh-

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¼b½ mifoHkkxh; vf/kdkjh ¼eglwy½ ;kauh xzkelHkk rlsp yksdkaps fyyko u dj.;kckcr vlysys vk{ksi @ gjdrh @ dkj.ks fopkjkr ?ksÅu fyyko djkok fdaok d# u;s ;kckcr xq.koRRksuqlkj fu.kZ; ?;kok- ;k lHksr mi foHkkxh; vf/kdk&;kleosr Hkwty loZs{k.k o fodkl ;a=.ksP;k vf/kdk&;kapk ns[khy lekos'k vlkok- v'kk lHkkaps fofMvks fp=hdj.k ns[khy djkos- ”

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12.As per Clause 3(E) of the said
Resolution, referred above, if opposition is

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recorded by Gramsabha for excavation of sand, it
is mandatory to record reasons. In that case, the

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Sub-Divisional Officer of concerned revenue circle
is entitled to examine the validity of objections
recorded by the Gramsabha and thereafter he is
entitled to take the decision, whether to act upon
the objections recorded by the Gramsabha or to
proceed with the auction, if such objections are
not sustainable. Thus discretion is given to the
concerned Sub-Divisional Officer whether to accept
the objections raised by the Gramsabha and cancel
the auction of sand, or to proceed with auction of
the sand spot if, in his opinion, the objections
are not sustainable.

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13.In the present case, in the first place,

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the alleged Gramsabha resolution, which is signed
only by 22 persons, is surrounded with suspicious
circumstances. Secondly, prima facie it appears

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that, the villagers in past have indulged into
illegal excavation of the sand. In the present

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case, the Petition is filed after auction of the
sand spots. In that view of the matter, in
peculiar facts and circumstances of this case, we
are unable to persuade ourselves to grant any
relief to the petitioner. Hence the Petition
standsrejected.Rulestandsdischarged

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accordingly.

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However, we make it clear that, in case

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petitioner wishes to avail of an alternate remedy,
the rejection of this Petition shall not be
construed as an impediment to the petitioner –
village Panchayat, from availing of an alternate
remedy before the Grievance Committee, as provided
under Clause 17 of the Government Resolution dated
12th March, 2013 issued by Revenue and Forest
Department, Government of Maharashtra, Mantralaya,
Mumbai.

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[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

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sga/

Village Panchayat Gandhari through Its Sarpanch Ramesh Sukhdeo Niware v. the State of Maharashtra and Others

Case brief

What is this about?

What the court decided

Village Panchayat Gandhari through Its Sarpanch Ramesh Sukhdeo Niware v. the State of Maharashtra and Others

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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