SAROJ v. GRAM PANCHAYAT — 1998 DIGILAW 541 (RAJ)

Judgment P. C. JAIN, J. ( 1 ) I propose to dispose of these revision petitions together which have been filed against the appellate order dated 5-4-1997 passed by the learned Additional District Judge, Nohar whereby the learned appellate Court dismissed the appeal filed by each petitioner and the order of the trial Court dated 23-8-1996 was affirmed. ( 2 ) ALL these petitioners are the residents of village Malwani, Tehsil Nohar, District Hanumangarh. Each petitioner applied to the Gram Panchayat, Ratanpura for the grant of patta in respect of a piece of land situated in the jurisdiction of village Malwani over which the petitioners were already in possession. The Gram Panchayat, after receipt of several applications for allotment of patta, granted 50 pattas to persons who were landless in the year 1991. The petitioners, after obtaining the pattas, erected boundary wall and each petitioner also constructed a room for his residence. The petitioners also put shades for keeping cattles and other household articles in the same plot. After elections, a new Panchayat was constituted for village Malwani. It is alleged that the candidate supported by the petitioners lost the election to the post of Sarpanch and one Hari Singh was elected as Sarpanch. On account of this election of Hari Singh as Sarpanch, political rivalry started. In retaliation, Hari Singh issued notices on 30-10-1995 to 25 persons who were granted pattas by the previous Sarpanch to show cause why their pattas be not cancelled. Eventually, the Sarpanch cancelled the pattas of the petitioners on the ground that the land comprised in the pattas of the petitioners had already been allotted and ear-marked for Gandhi Park in which Children Park, wells etc. were to be constructed. When the pattas of the petitioners were cancelled and their possession was threatened by the Gram Panchayat, each petitioner filed a suit in the Court for permanent injunction restraining the Gram Panchayat from interfering with their old and settled possession. Along with the suit, each petitioner also filed an application for temporary injunction under Order 39, Rules 1 and 2, C. P. C. supported by affidavits. ( 3 ) THE non-petitioners contested the suit and also resisted the application of the each petitioner. It was alleged by the non-petitioners-defendants that the Sarpanch, Ratanpura, who had the jurisdiction at the relevant time, issued the above pattas in total violation of the Rules and Law. ( 3 ) THE non-petitioners contested the suit and also resisted the application of the each petitioner. It was alleged by the non-petitioners-defendants that the Sarpanch, Ratanpura, who had the jurisdiction at the relevant time, issued the above pattas in total violation of the Rules and Law. The land in respect of which the pattas were issued had already been allotted to Gandhi Park and has been ear-marked for constructing a Children Park and other welfare schemes. The concerned Sarpanch allotted the pattas without complying with the relevant Rules containing in Chapter XIII of the Rajasthan Panchayat (General) Rules, 1961 (hereinafter referred to as the Rules ). The persons, to whom the pattas were allotted by the Sarpanch, were not even eligible for the grant of patta inasmuch as they were having land in their ownership and possession. Even the applications filed by the petitioners were incomplete and the pattas were also issued in a hurry flouting of the Rules in this regard. ( 4 ) THE learned trial Court, after hearing both the parties, did not find a prima facie case in favour of the petitioners-plaintiffs. The earstwhile Sarpanch Jailal and Upsarpanch Manaram as also the Secretary had no authority to issue pattas to the petitioners in respect of the land which has already been allotted and ear-marked for Gandhi Park in which Children Park was to be constructed. The residents of the village have also dugged wells there. The learned trial Court also scrutinised the procedure adopted by the aforesaid Sarpanch in issuing the pattas and came to the conclusion that the relevant Rules which govern the allotment of the pattas were flagrantly violated. The above pattas, in the name of Gandhi Park, was issued in the year 1988. The aforesaid Sarpanch had no right to cancel the above patta already granted in the name of Gandhi Park. Without cancelling the above patta, new pattas could not have been issued in respect of the same land. The learned trial Court also made reference to the Audit Report of the year 1991-92. The learned trial Court though examined the procedure adopted by the Sarpanch in issuing pattas to the petitioners, refrained from expressing final opinion. Without cancelling the above patta, new pattas could not have been issued in respect of the same land. The learned trial Court also made reference to the Audit Report of the year 1991-92. The learned trial Court though examined the procedure adopted by the Sarpanch in issuing pattas to the petitioners, refrained from expressing final opinion. He also made a reference to S. 22-A of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as the Act) under which no resolution or order of a Panchayat shall be modified amended, varied, annulled or cancelled by the Panchayat within a period of three months from the date of passing thereof except by resolution supported by votes of not less than two-third of the total number Panchs such Panchayat provided that in such resolution or order in relation to the sale of or refusal to sell, any abadi land within the Panchayat circle shall be so modified, amended, varied, annulled or cancelled otherwise than on appeal in the prescribed manner. Since the above resolution of the year 1988 under which the patta was allotted to Gandhi Park was not cancelled, the new pattas could not have been allotted. Learned trial Court also observed that the Sarpanch, with an ulterior motive, issued pattas to the petitioners in a single date without observing the formalities required before allotting the pattas. The trial Court therefore, did not find any prima facie case in favour of the plaintiffs-petitioners and the application was dismissed. Each petitioner filed a separate appeal before the learned appellate Court and the appellate Court dismissed the appeal filed by each petitioner and upheld the order of the trial Court. In the appeal, the learned appellate Court also took pains in scrutinising the applications moved by the petitioners and found that the applications were defective or the pattas were incomplete. He also found that the pattas were issued in contravention of the relevant Rules of the said Rules. ( 5 ) I have heard learned counsel for the petitioner who has assailed the impugned orders on the ground that both the Courts committed a grave error in the exercise of the jurisdiction in ignoring the settled and old possession of the petitioners over the land in question and covered by their respective pattas. ( 5 ) I have heard learned counsel for the petitioner who has assailed the impugned orders on the ground that both the Courts committed a grave error in the exercise of the jurisdiction in ignoring the settled and old possession of the petitioners over the land in question and covered by their respective pattas. The learned trial Court as well as the appellate Court exceeded jurisdiction in critically examining the procedure of allotment and finally concluding the point which was not warranted while adjudicating an interim application like an application under Order 39, Rules 1 and 2, C. P. C. As per discussion of both the Courts, it appears that there was a serious question of law involved whether the pattas issued by the Sarpanch in favour of the petitioners could be cancelled. He also referred to Section 22-A of the Act and submitted that the new Sarpanch Hari Singh had no right to cancel the pattas issued to the petitioners and the resolutions relating to such pattas. He also submitted that only a revision under Rule 272 of the Rules could have been filed. No such exercise was made by the State Government or any Officer or Authority to whom the powers of the State Government under Section 27-A of the Act have been delegated for cancellation of the pattas issued in favour of the petitioners. ( 6 ) LEARNED counsel has submitted that both the Courts should not have decided the controversy finally regarding the granting of pattas or cancellation thereof because it was a serious question to be tried and when such a situation exists, the law presumes a prima facie case in favour of the plaintiffs-petitioners. He has placed reliance on the following cases :- ( 7 ) PEER Gulam Naseer v. Peer Gulam Gelanee, 1988 (2) RLR 871, Krishnan v. Kaliya, 1997 WLC (Raj) (UC) 374 and U. I. T. , Jodhpur v. Smt. Santosh Devi, 1996 (1) WLC (Raj) 168. ( 8 ) LEARNED counsel has also submitted that the plaintiffs had a strong prima facie case on the basis of their settled and old possession. Each petitioner-plaintiff had constructed a boundary wall all around the plot. A room has also been constructed together with a shade for cattles. The above incidence of possession was very relevant for considering the prima facie case in favour of the plaintiffs. Each petitioner-plaintiff had constructed a boundary wall all around the plot. A room has also been constructed together with a shade for cattles. The above incidence of possession was very relevant for considering the prima facie case in favour of the plaintiffs. Both the Courts below failed to appreciate this important fact. ( 9 ) LEARNED counsel for the non-petitioners has supported both the orders and contended that since there is a concurrent finding of fact recorded by both the Courts regarding the fact that the petitioners have got no prima facie case, it should not be disturbed in the revision petition. The trial Court as well as the appellate Court made a rational consideration of the fact that in the year 1988, the earstwhile Sarpanch granted a patta in the name of Gandhi Park reserving the land in question for the welfare schemes of the village. The newly elected Sarpanch had no right to allot the same land by issuing new pattas to the petitioners. The resolution allotting the patta in the name of Gandhi Park for preparing welfare scheme of the village was subsisting and without its cancellation no new patta could have been issued. He also invoked Section 22-A of the Act. Learned counsel for the non-petitioners also invited my attention to the fact that the residents of the village preferred appeals against the allotment of pattas to the petitioners before the Panchayat Samiti and the standing committee of the Panchayat Samiti competent to hear the appeal heard the appeal and by order dated 19-12-1996 accepted all the appeals and the pattas granted by the Sarpanch to the petitioners were cancelled. Learned counsel has also made available the certified copies of the orders of the Panchayat Samiti. He, therefore, contended that the pattas on the basis of which the plaintiffs-petitioners filed suit and claimed title and possession should have been duly cancelled by the competent authority, Panchayat Samiti, who had a right to hear appeals under Rule 270 of the Rules. After the orders of the Panchayat Samiti, the plaintiffs-petitioners cannot claim any prima facie case in their favour. Learned counsel has also pointed out that the pattas were issued by the Sarpanch with an ulterior motive without judging the eligibility of the petitioners. The whole exercise was done in a single date. After the orders of the Panchayat Samiti, the plaintiffs-petitioners cannot claim any prima facie case in their favour. Learned counsel has also pointed out that the pattas were issued by the Sarpanch with an ulterior motive without judging the eligibility of the petitioners. The whole exercise was done in a single date. Such a undue and dishonest hurry resulted in various lacunae being left in the process. Many applications, submitted by the petitioners, were incomplete. Even some pattas were not having the signature of the Sarpanch and the Secretary. The learned appellate Court took pains in scanning each case. In the appellate order, the learned appellate Court has made reference to each case. Learned counsel has also submitted that the relevant Rules under which a Panchayat can allot land are contained in Chapter XIII of the Rules. Before issuing a patta to a person, the Panchayat is bound to follow the relevant Rules. In the instant cases, the Sarpanch did not comply with the Rules and allotted the pattas by private negotiations. The relevant Rule is 266 of the Rules. He submitted that the cases of the present petitioners do not fall within the purview of Rule 266 of the Rules. Hence the Sarpanch committed illegality in issuing the pattas in total violation of Rule 266 of the Rules. He also referred to Section 26-A of the Act under which the petitioners could have filed appeal against the cancellation of their pattas but no appeal was filed. Learned counsel has also submitted that the suits filed by the plaintiffs were not competent inasmuch as the plaintiffs only claimed the relief of permanent injunction without incorporating the relief of declaration. He referred to Bhoori v. U. I. T. , Alwar, 1996 (2) RLW 559. He also referred to Harishanker v. Prabhulal, 1995 DNJ (Raj) 59. ( 10 ) I have considered the rival contentions. Before I refer to the arguments of the parties, it may be stated that there is no dispute about the fact that a patta in the name of Gandhi Park was issued by the Panchayat in the year 1988. That patta has not been cancelled or atleast no proof is forthcoming that the above patta was cancelled or set aside by any competent authority. That patta has not been cancelled or atleast no proof is forthcoming that the above patta was cancelled or set aside by any competent authority. Now, I may make a brief reference to the observations made by the learned appellate Court with regard to lacunae that he noticed in the applications filed by the petitioners for allotment of pattas and the pattas that were issued to them by the Sarpanch. The learned appellate Court made critical comments about the state of affairs found by him with regard to each appeal. His observations are contained in pages 10 to 16. A perusal of the above comments would show that in many cases even the petitioners who put in applications did not put their signature on the applications. In some cases even the measurement of the land applied for is not given. In some cases even the dates of applications or the allotment of pattas are not given. In some cases, though the seal of the Sarpanch was affixed, it was not signed by him. From the above it is clear that the applications that were submitted to the Sarpanch by the petitioners for allotment of patta were incomplete. The pattas that were issued were also incomplete inasmuch as on some pattas even the Sarpanch forgot to put his signature. No dates were mentioned on the applications. The petitioners also omitted to mention the size of the plot regarding which patta was sought. In this regard I would make a reference to Rules 255 to 272 of the Rules. In the instant case, since the Sarpanch has allotted the pattas by private negotiations, Rules 266 becomes relevant. No dates were mentioned on the applications. The petitioners also omitted to mention the size of the plot regarding which patta was sought. In this regard I would make a reference to Rules 255 to 272 of the Rules. In the instant case, since the Sarpanch has allotted the pattas by private negotiations, Rules 266 becomes relevant. Rule 266 reads as follows :-"transfer of Abadi Land by Private Negotiations:- (1) The Panchayat may transfer any abadi land by way of sale by private negotiations in the following cases :- (a) where any person has a plausible claim of title to the land and an auction may not fetch reasonable price; (b) where for reasons to be recorded in writing the Panchayat thinks that an auction would not be a convenient mode of disposal of the land; (c) where such course is regarded by the Panchayat necessary for the advancement of Scheduled castes and Scheduled tribes or other backward classes; (d) where the persons are in possession of the abadi land for 20 years or more but less than 42 years, one-third of the prevailing market-price and in case of possession of over 40 years, one sixth of the prevailing market-price shall be charged. (2) The panchayat may, by resolution, transfer by way of sale without charging any price therefor, any abadi land of which the probable value does not exceed Rs. 200/- in favour of any institution for a public purpose. " ( 11 ) A perusal of the above provisions would show that the Sarpanch in the instant cases did not comply with the provisions contained in Rule 266 of the Rules. The resolution does not incorporate the conditions mentioned in clauses (a) to (d ). Only on fulfilling the above clauses, a Sarpanch can transfer abadi land by private negotiations. In the instant cases, the same has not been done. I find substance in the allegations of the learned counsel for the non-petitioners that the Sarpanch, in order to oblige the petitioners with the grant of pattas in a clandestine way, did not follow the ordinary rules for allotment of pattas. Ordinarily under Rule 256, a person desirous of purchasing any abadi land from the Panchayat, shall make an application in writing to the Panchayat giving such description thereof as may be sufficient to identify the land proposed to be purchased. Ordinarily under Rule 256, a person desirous of purchasing any abadi land from the Panchayat, shall make an application in writing to the Panchayat giving such description thereof as may be sufficient to identify the land proposed to be purchased. Upon receipt of an application under Rule 256, the Panchayat shall get it entered into a register in Form XLIX and shall have a file of the case opened under Rule 257. Thereafter the plan of the land in question shall be got prepared by a competent person. After the plan is ready, the Panchayat shall, by resolution nominate any three of its Panches for holding legal inspection of the site under Rule 258. Then under Rule 259, a provisional decision is taken at a meeting whether the proposed sale should or should not be made. Thereafter the Panchayat shall publish a notice in form l inviting objections to the proposed sale within one month from the date of such publication in the manner laid down in sub-rule (2 ). This is the requirement of Rule 260 of the Rules. The objections, if any, received, shall be disposed of under Rule 261 and then the land in question will be put to auction under Rule 262. Rule 264 prescribes the procedure for auction. The confirmation of auction is held under Rule 265. The obvious reason for not following this procedure for allotment of pattas according to the learned counsel for the non-petitioner was that the Sarpanch wanted to conceal the fact of allotment from the gaze of the public. Thus, I find substance in the allegation of the learned counsel for the non-petitioner that the allotment, as I have already stated, was not in accordance with the Rule 266 of the Rules. If the allotment was not made by private negotiations then the allotment could have been made only in accordance with the provisions referred to above. ( 12 ) ANOTHER important fact to be noticed is that the residents of the village made appeals to the Panchayat Samiti feeling aggrieved by the allotment of pattas to the petitioners and the Panchayat Samiti in four appeals cancelled all the pattas granted by the Sarpanch to the petitioners. The appeals were filed under Rule 270. The appeals were maintainable to the Panchayat Samiti under Rule 270. The appeals were filed under Rule 270. The appeals were maintainable to the Panchayat Samiti under Rule 270. Thus the pattas which were granted to the petitioners have been duly and legally cancelled by the competent authority under Rule 270 of the Rules. ( 13 ) I do not find any substance in the contention of the learned counsel for the petitioners that in the instant cases, the learned trial Court as well as the appellate Court were not competent to deal with the question of allotment in detail and almost conclude the point. There is no dispute with the observations made by this Court in Peer Gulam Naseer v. Peer Gulam Gellani (supra) that Courts should not decide finally at the stage of deciding an application for temporary injunction. Serious question raised in the case should be decided finally only after parties may have led evidence. This view was followed in Krishnan v. Kaliya (supra ). It may be stated that in the instant cases, the question of initial allotment of a patta earmarking the land in question for Gandhi Park and the subsequent allotment of pattas by the Sarpanch in favour of the plaintiffs-petitioners and then the decision in appeals by the Panchayat Samiti have all been brought on record. In such a situation, the Court cannot avoid to make a reference to the above facts in order to scan whether the plaintiffs have got a prima facie case or not. In my opinion, in view of the peculiar facts available on the record of this case, the question of ascertaining the prima facie case cannot be done without referring to the above facts and quoting the relevant Rules. ( 14 ) I agree with the contention of the learned counsel for the petitioners that after the cancellation of the pattas of the petitioners they could not have filed appeal under Section 26-A because the appeal referred to in Section 26-A is with regard to cancellation contained in Chapter III of the Rules. Hence the petitioners could not have filed an appeal against the order of cancellation of pattas by new Sarpanch. ( 15 ) FOR the above reasons, I hold that the concurrent finding of fact recorded by both the Courts that the plaintiffs have got no prima facie case is based on appreciation of facts and law and requires no interference in these revision petitions. ( 15 ) FOR the above reasons, I hold that the concurrent finding of fact recorded by both the Courts that the plaintiffs have got no prima facie case is based on appreciation of facts and law and requires no interference in these revision petitions. The plaintiffs have got no prima facie case. Regarding the contention of the learned counsel for the petitioners with the regard to their old and settled possession, it may be stated that such acts of possession can be achieved within a very short span of time and no much significance can be attached to the above nature of possession. ( 16 ) I need not refer to the other two ingredients necessary for issue of temporary injunction because the petitioners have forfeited their claim for the issue of the temporary injunction on account of not having a prima facie case in their favour. ( 17 ) I cannot help to remark that the local body should not recklessly deal with the abadi land in such a way. One Sarpanch earmarked the land for the execution of Public Health Utility Schemes. The other Sarpanch, succeeding him, allotting pattas in respect of the above land and the third Sarpanch cancelling the same. ( 18 ) FOR the above reasons, I do not find any substance in the revision petitions and the same are hereby dismissed. Revision petitions dismissed.