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1998 DIGILAW 846 (RAJ)

Harnam Singh v. State

1998-08-07

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard the arguments. (2). The short question that is arising in this petition is whether the allotment of plot no.5 situated in abadi area of village Bagicha to the petitioner vide Annex.1, the patta executed by the Panchayat on 26.10.1963, continues to be valid and the subsequent sale of the same plot to non-petitioner no.5 Smt. Rampyari and the con- firmation of the sale vide the resolution of the Panchayat dated 10.11.1977 as well as the decision dated 20.3.1986 (Annex.6) and the decision dated 8.10.1986 (Annex.7) are illegal and, therefore, liable to be quashed. (3). It is not disputed that the petitioner was allotted plot no.5 situated in abadi area of village Bagicha, the patta executed by the Gram Panchayat on 26.10.1963. The petitioners case is that in pursuance of the allotment of plot no.5 vide Annex.1 he obtained the possession of the plot and continues to be in possession of the same plot and that the allotment was never cancelled and yet the Panchayat proceeded to sell by auction and sold plot no.5 to non-petitioner No. 5 and confirmed the auction by resolution dated 10.11.1977. It is also petitioners case that when he came to know about the allotment of plot no.5 to non-petitioner no.5, he moved an application before the S.D.M., Raisinghnagar on 26.6.1979. His application was forwarded to Gram Panchayat, Bagicha vide Annex.3, the decision taken in the meeting of dated 21.2.1983. When the application was considered by the Gram Panchayat, Bagicha, the decision was taken on 22.4.1983 by the Panchayat and it was held that the Panchayat had no right to cancell the allotment already made by it. Consequently, the Panchayat upheld the earlier allotment made in favour of the petitioner and directed that the possession of plot no.5 be given to the petitioner. (4). An appeal against the aforesaid decision dated 22.4.1983 was filed and in appeal the decision was delivered by the Pradhan Panchayat Samiti, Raisinghnagar on 20.3.1986. In the decision Annex.6 dated 20.3.1986, it was observed that Smt. Rampyari (non- petitioner no.5) had no plot in the village whereas Harnam Singh (petitioner) was in possession of 3-4 plots. Consequently the appeal was allowed and the decision given by the Panchayat on 22.4.1983 was set aside and allotment of plot no.5 to non- petitioner no.5 was maintained. In the decision Annex.6 dated 20.3.1986, it was observed that Smt. Rampyari (non- petitioner no.5) had no plot in the village whereas Harnam Singh (petitioner) was in possession of 3-4 plots. Consequently the appeal was allowed and the decision given by the Panchayat on 22.4.1983 was set aside and allotment of plot no.5 to non- petitioner no.5 was maintained. The petitioner preferred a revision petition before the Collector, Sri Ganganagar against the order given in ap- peal. The revision petition was disposed of by the Collector, Sri Ganganagar by order dated 8.12.1986 (Annex.7). The revision petition was rejected on the ground that the petitioner was already possessing 4 residential plots and one commercial plot intended for a shop and that it was necessary for the petitioner to have filed an appeal or other appropriate proceedings in 1977 when the plot no.5 was allotted to non- petitioner no.5. A perusal of the order passed by the Collector shows that it was urged before him that plot no.5 was auctioned on 10.11.1977 without any notice to the petitioner. In other words, it was urged before the Collector by the petitioner that the earlier allotment made in favour of the petitioner had not been cancelled after due notice to the petitioner. The learned Collector did not consider this contention nor made any inquiry whether the allotment made in favour of the petitioner had or had not been cancelled in accordance with the rules. (5). The learned counsel for the petitioner has submitted that the allotment made in favour of the petitioner in the year 1964 was not cancelled at all and even if it was cancelled, it was cancelled without observing the principles of natural jus- tice and behind his back and, therefore, the Panchayat had no jurisdiction to resell the plot no.5 to non-petitioner no.5 by auction conducted in the year 1977 and the orders passed in appeal as well as in the revision vide Annex.6 and 7 respectively are liable to be quashed and set aside on the ground that the aforesaid illegality has not been considered in them. (6). (6). The learned counsel for the non-petitioner no.5 has submitted that allotment made in favour of the petitioner had been duly cancelled by the Panchayat as has been observed in the decision dated 20.3.1986 (Annex.6) and, therefore, if the petitioner had any grievance against the cancellation of allotment, he should have approached the proper forum against the order of cancellation. It is further submitted by the counsel for the non-petitioner no.5 it was necessary for the petitioner to have approached proper forum for the purpose of cancelling the allotment made in favour of non-petitioner no.5 and since this was not done, the petitioners complaint to the S.D.M. and the decision given by the Panchayat on that complaint, was not in accordance with law and, therefore, orders Annex.6 and Annex.7 passed in appeal and revision respectively are valid and this petition has no force. (7). I have carefully gone through the rival contentions. It is not disputed that plot no.5 had been allotted to the petitioner in the year 1964 vide Annex.1. There is no evidence to show that the allotment made by the Panchayat in favour of the pe- titioner had been cancelled at all in accordance with law. In Annex.4 it has been observed by the Panchayat that once the plot had been allotted to the petitioner by the Panchayat, the Panchayat had no jurisdiction to cancel it. This observation does not conclusively prove that the allotment made in favour of the petitioner had been cancelled at any time. I, therefore, find no force in the submission that the allotment of plot no.5 to the petitioner vide Annex.1 had been cancelled by the Panchayat on the ground that the petitioner was not entitled to allotment. In view of this fact, it must be concluded that so long the allotment of plot no.5 to the petitioner is not cancelled in accordance with law, the allotment continues to be in force and in consequence the petitioner continues to be the owner of plot no.5. In view of this fact, the subsequent sale of the plot no.5 by the Panchayat to non-petitioner no.5 by means of public auction in the year 1977 must be held to be without jurisdiction and in consequence the non-petitioner no.5 does not acquire any rights in the plot no.5. (8). In view of this fact, the subsequent sale of the plot no.5 by the Panchayat to non-petitioner no.5 by means of public auction in the year 1977 must be held to be without jurisdiction and in consequence the non-petitioner no.5 does not acquire any rights in the plot no.5. (8). The reasons assigned for allowing the appeal vide judgment Annex.6 and the reasons assigned by the Collector for dismissing the revision petition vide Annex.7 are totally based on irrelevant grounds. Since the allotment of the plot to the petitioner had not been cancelled in accordance with law, the Panchayat could not have sold the same plot by auction to the non-petitioner no.5. It did not matter whether the non-petitioner no.5 had no plot in the village and the petitioner had 3-4 plots and one commercial plot in the village. Both the Appellate Forum and the Collector, Sri Ganganagar before whom the revision petition had been filed appeared to have proceeded on the assumption as if they were for the first time allotting the plot no.5 to the non- petitioner no.5. In other words, the Appellate Fo- rum and the Collector, Sri Ganganagar should have considered the legality of the allotment made in favour of the petitioner vide Annex.6 and they should have further considered whether the rights which accrued to the petitioner by execution of patta continue to survive notwithstanding the auction sale of the plot no.5 to non- petitioner no.5 in the year 1977. (9). For the reasons mentioned above this writ petition must succeed. The orders Annex.6 and Annex.7 deserve to be set aside and are hereby quashed and set aside. In case the Panchayat feels inclined to cancel the allotment of plot no.5 to the petitioner on any legitimate ground permitted by law, the Panchayat would be at liberty to initiate the proceedings for cancellation of allotment of plot no.5 to the petitioner, in accordance with rules. Suffice it to say that so long the allotment of plot no.5 made in favour of the petitioner is not cancelled, the petitioner continues to be the owner of plot no.5. The petition is disposed of accordingly.