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2007 DIGILAW 1602 (RAJ)

Ram Swaroop v. State of Raj.

2007-08-22

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.—The petitioner has preferred this writ petition with the prayer that the order dated 10th November, 1999 by which the plot of land in the size of 100x100 sq.ft. was allotted to the respondent No. 4 by the Government in village Mandawari, of Panchayat Samiti Lalsot, Dausa be quashed and set aside and the State Government as well as Gram Panchayat Mandawari be directed not to act contrary to the judgment passed by this Court in favour of the petitioner while rejecting the writ petition of respondent No. 4 on 30.11.1994 and be further directed not to dispossess the petitioner from the lands of plot No. 1, 2, 3 and 4 and not to restrain the petitioner from raising construction on these plots. 2. The petitioner is claiming all these reliefs on the premise that the land in question which is part of khasra No. 588/1 was acquired for extension of abadi by Gram Panchayat through the Government, possession of which was handed over to Gram Panchayat Mandawari and its mutation was entered in the name of Gram Panchayat on 7.12.1970. Gram Panchayat issued public notice for auction of this land on 28.9.1977. Auction for the aforesaid plot and other plots took place from 17.10.1977 to 22.10.1977. The respondent No. 4 Rang Lal Meena, respondent No.4 herein encroached upon the said plot after issuance of the public notice on 1.10.1977. This encroachment was removed on 4.10.1977. Challenging the auction and allotment of the plot, respondent No. 4 then filed revision petition before the Additional District Collector which was dismissed on 24.3.1984. He then filed S.B. Civil Writ Petition No. 540/1984 before this Court which was also dismissed on 13.12.1994. Further D.B. Civil Special Appeal No. 914/1994 filed by him was also dismissed by division bench vide judgment dated 28.3.1995. The Government has now vide order dated 10.11.1997 made allotment of the aforesaid land to the respondent No.4 on the premise that he was in possession of the same for last 20 years. This allotment was made to the respondent No. 4 at the DLC rates namely at the rate of 275 per sq. yard which is meant for residential plots. 3. This allotment was made to the respondent No. 4 at the DLC rates namely at the rate of 275 per sq. yard which is meant for residential plots. 3. I have heard Shri O.P. Sharma, the learned counsel for the petitioner, Shri B.N. Sandu, the learned Additional Government Advocate, Shri S.C. Sharma, the learned counsel for the respondent No. 3 and S.R. Surana and Shri M.C. Jain, the learned counsel for the respondent No. 4. 4. Shri O.P. Sharma, the learned counsel for petitioner argued that the Government had no legal authority to directly make allotment of the land in favour of the respondent No.4 under any of the provisions of either Rajasthan Panchayati Raj Act of 1994 or the Rajasthan Panchayati Raj Rules of 1996. The order has thus been passed without the authority of law and the same is liable to be quashed and set aside. It was argued that order has been passed in colurable exercise of power to unduly favour the respondent No.4. Govt. could not in law make such order because the auction of said land in favour of the petitioner had already been made and the respondent No.4 had encroached upon the said land on 1.10.1977 later than issuance of the public notice for auction on 28.9.1977. Challenge made by him to the auction and allotted of the land in favour of the petitioner was repelled successively by Additional District Magistrate, Single bench and lastly the division bench of this Court where a categorically finding was given by the division bench that factum of possession of the respondent No.4 over the disputed land was not established. It was argued that while the petitioner was in possession of the plot No.3 & 4 of the shops and plot No.1 and 2 which are meant for residence were already auctioned and he deposited the entire bid amount. Gram Panchayat had also given permission to the petitioner to raise the construction. possession of the land was also given to the petitioner. These facts were admitted by the State Government as well as Gram Panchayat in their reply to the earlier writ petition. A reference in this connection has been made to para 5 of the reply filed by the Gram Panchayat. It was argued that auction of the certain other plots was also made which were purchased by some other persons. These facts were admitted by the State Government as well as Gram Panchayat in their reply to the earlier writ petition. A reference in this connection has been made to para 5 of the reply filed by the Gram Panchayat. It was argued that auction of the certain other plots was also made which were purchased by some other persons. While they are enjoying the allotment so made and have in fact raised the construction on their houses and shops, the petitioner has been made to suffer on account of frivolous litigation which not only he but the State Government and Gram Panchayat contested all along. Though the respondent No. 4 lost from all the Courts, the Government suddenly made the allotment of the very same land to him. it was argued that in fact when the Gram Panchayat issued auction notice on 28.9.1977 the respondent No. 4 made encroachment on 1.10.1977. Auction was held as originally scheduled on 4.10.1977 and his encroachment was also removed on that very day. The allotment of the very same land could not be therefore made to the petitioner. The petitioner deposited 1/4th amount of the bid at the time of auction. After the writ petition of the respondent No. 4 was dismissed by the learned Single Judge, the Administrator of the Gram Panchayat Mandawari issued notice on 17.12.1994 for making payment of the balance 3/4th bid amount, which he deposited on 17.12.1994 itself. After the aforesaid amount was deposited, the respondent No.4 even challenged that action by filing a revision petition before the Additional Collector, Dausa who by his order dated 2.8.1999 dismissed the same. It was argued that the case of the petitioner is identical and similar to those other four persons who were allotted the plots pursuant to the same auction proceedings and have now raised construction and the petitioner has been made to suffer for no fault of his. The petitioner had always been ready and willing to immediately make the payment of the remaining bid amount but it was not accepted by the Gram Panchayat on account of the pending litigation. 5. The petitioner had always been ready and willing to immediately make the payment of the remaining bid amount but it was not accepted by the Gram Panchayat on account of the pending litigation. 5. Shri S.R. Surana, the learned counsel for the respondent No.4 opposed the writ petition and argued that the petitioner has no right to claim allotment on the basis of auction which was cancelled with the allotment of land having been made in favour of the respondent No. 4 by order of the Government dated 10.11.1997. The petitioner is having no locus standi to challenge the said order. It was submitted that during the pendency of the earlier litigation, a Commissioner was appointed to find out as to who was in possession of the land in dispute and who submitted his report to this Court, according to which it was proved that the respondent No.4 was in possession of the same. The learned Single Judge rejected the petition of respondent No.4 under a mistaken belief that the petitioner was claiming the land which had already been allotted to Sarpanch Munshi Lal and another person Shri Ramvilas whereas the fact is that petitioner was claiming allotment of the land which was in his possession. Even if, this Court did not find that petitioner entitled for allotment, this did not mean that the Government could not exercise its jurisdiction for allotment of that land again. Earlier decision did not preclude the Government to make allotment of hat land, in favour of the respondent No. 4, particularly when he was having possession of the land for last 30 years. On the question of possession, Shri S.R. Surana referred to page 8 of the reply filed by respondent No. 4 and submitted that even as per the proceedings of the Gram Panchayat dated 6.9.1977 it was clear that the respondent No.4 was in possession of the land. The respondent No.4 came in possession of the land from one Ramswaroop Jain on the strength of a sale deed executed in his favour by Ramswaroop Jain on 11.6.1968 and ever since he is in possession of the same. It was argued that even if the auction had taken place in the year 1977, the petitioner made the payment of the final bid amount 17 years thereafter in 1994. It was argued that even if the auction had taken place in the year 1977, the petitioner made the payment of the final bid amount 17 years thereafter in 1994. It was argued that Government has got supervisory and controlling power and in view of the provisions contained in Rule 158 of the Rajasthan Panchayati Raj Rules, 1996, can direct the Gram Panchayat to make allotment. Shri S.R. Surana, learned counsel for respondent No.4 also invited my attention towards the order dated 1.11.1995 passed by the District Collector, according to which the land in dispute stood vested in Gram Panchayat Mandawari and that the petitioner has wrongly mentioned that he deposited the bid amount. 6. Shri B.N. Sandu, the learned Additional Government Advocate also opposed the writ petition and argued that even if the petition filed by respondent No. 4 was earlier dismissed, the Government is not divested of its power of making allotment of the land to the respondent No. 4. It was argued that though the petitioner had purchased the land in question in open auction but according to terms and conditions thereof, he was required to deposit ¼th of the auction amount within one month and remaining ¾the thereafter. Upon this failure to do so, the Government was justified in making allotment of land. It was argued that the allotment of the land in favour of respondent No.4 has been made taking into consideration his possession over the land spread over a period of more than 2 decades. he therefore prayed that the writ petition be dismissed. 7. Shri S.C. Sharma, the learned counsel for respondent No.3, the Sarpanch of the Gram Panchayat Mandawari however supported the case of the petitioner and argued that Gram Panchayat is an autonomous body and the Government cannot interfere with its day to day working. He argued that the plot in question was auctioned in favour of the petitioner and at the time of auction he was required to immediately deposit 1/4th of the bid amount which he did and thereafter he made payment of the remaining 3/4th amount after the rejection of the writ petition filed by respondent No.4. The Government was therefore not justified in making said allotment to the respondent No.4 who wants to grab the land and whose claim was rejected by this Court twice over. He therefore prayed that the writ petition be allowed. 8. The Government was therefore not justified in making said allotment to the respondent No.4 who wants to grab the land and whose claim was rejected by this Court twice over. He therefore prayed that the writ petition be allowed. 8. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record. 9. The facts which are not disputed need to be noticed first. They are that the land in dispute forms part of khasra No. 588/1 which the Gram Panchayat acquired for extension of abadi and the same was mutated in its favour in revenue records on 7.12.1970. The Gram Panchayat issued public notice for this auction on 28.2.1977. While plot No.1 and 2 were auctioned in favour of petitioners but plot No.3 was auctioned in favour of Prahlad Narain Jangid. Plots of shops numbers 1, 2 and 5 were auctioned in favour of other persons whereas plot of shop Nos. 3 & 4 were also auctioned in favour of the petitioner. Respondent No.4 claims to have purchased this land by execution of sale deed from one Ram Swaroop Jain on 11.6.1968. Nothing has been brought on record as to what title Ram Swaroop Jain had in that land. All others who were allotted the plots in the above referred auction proceedings were put in possession and are presently enjoying the property. The petitioner deposited 1/4th of the bid amount at the time of auction and remaining 3/4th upon being required by Administrator of the Gram Panchayat after dismissal of the writ petition filed by respondent No.4. The State Government as well as Gram Panchayat contested the claim of the respondent No.4 over the land in dispute on the basis of old possession not only before the Additional District Magistrate in revision petition but also in writ petition before the learned Single Judge and special appeal before the division bench. The learned Single Judge while dismissing the writ petition filed by respondent No.4 clearly noted that respondent No.4 also participated in the auction and gave the highest bid but he did not deposit 1/4th of the bid amount and therefore auction made in his favour was cancelled. The learned Single Judge while dismissing the writ petition filed by respondent No.4 clearly noted that respondent No.4 also participated in the auction and gave the highest bid but he did not deposit 1/4th of the bid amount and therefore auction made in his favour was cancelled. It was also noted that after the petitioner was evicted from the land on 4.10.1977, he filed an application for allotment of the same for setting up an industry before Collector, Jaipur on 13.6.1978 which was rejected by him on 6.7.1978 on the premise that he failed to prove his possession. The petitioner did not challenge that order thus the same became final. The learned Single Judge on perusal of the records of the Gram Panchayat recorded a finding that register maintained by the Gram Panchayat showed that respondent No.4 had unlawfully encroached upon the land in question and therefore members of the Gram Panchayat decided to remove the encroachment. The Court appointed Commissioner by order dated 6.9.1994 and on perusal of the record of the Commissioner, came to hold that the factum of possession was not established. In those facts the Court did not find the respondent No.4 entitled to allotment of the land in dispute. In fact, the District Collector rejected the application of respondent No.7 for allotment vide its order dated 6.7.1971 and the appeal filed thereagainst was also rejected by the Revenue Appellate Authority by order dated 13.11.1986. The division bench in this judgment while rejecting the special appeal by order dated 28.6.1995 categorically recorded its agreement with the reasons given by the learned Single Judge. It is in this backdrop of the undisputed facts noticed above that I am called upon to examine the rival contentions. 10. What was under challenge in the earlier writ petition and the special appeal filed at the instance of respondent No.4 was the auction of the disputed property in which the highest bid was that of the petitioner who immediately at the time of auction deposited 1/4th of the bid amount. The matter then went in litigation referred to above. Though the auction was held between 17.10.1977 to 22.10.1977, the revision petition was rejected by the Additional District Collector on 24.3.1984 followed by dismissal of the writ petition on 13.12.1994 and thereafter the special appeal on 28.3.1995. The matter then went in litigation referred to above. Though the auction was held between 17.10.1977 to 22.10.1977, the revision petition was rejected by the Additional District Collector on 24.3.1984 followed by dismissal of the writ petition on 13.12.1994 and thereafter the special appeal on 28.3.1995. Earlier to that, efforts were made by the petitioner to secure the allotment of land in dispute from Collector, Jaipur for the purpose of setting up an industry which application was also rejected on 6.7.78 and the appeal filed against that order was also rejected by Revenue Appellate Authority on 11.11.86. Though the claim of the respondent No.4 is that he purchased the said land from one Ram Swaroop Jain vide sale deed but he has not been able to show who authorised him to sell the plot to the respondent o.4 and if he had no title or had defective title, position of respondent No.4 would be no better. In fact, the learned Single Judge of this Court in earlier writ petition had clearly noted that the encroachment of the respondent No.4 had been removed on 4.10.1970 and on perusal of the report of the Court Commissioner also gave a finding that possession of the respondent No.4 was not proved. The Gram Panchayat and the State Government in the earlier series of litigation supported the claim of the petitioner justifying the auction proceedings. Soon after rejection of the writ petition of the respondent No.4, the petitioner was required by the Administrator of the Gram Panchayat to make payment of the remaining bid amount vide letter dated 17.12.1994 and the petitioner immediately made payment of the same. It was thereafter that by the impugned order dated 10.11.1997 the Government has directed allotment of the disputed land in favour of the very same respondent No.4 on the basis of his alleged possession on the land for last 20 years. Though this order was based on the assumption that the respondent No.4 was in possession of the disputed property all along for last twenty years but that is not well founded given the fact that the learned Single Judge in the earlier writ petition did not accept that contention that and that view was confirmed by the division bench also. Though this order was based on the assumption that the respondent No.4 was in possession of the disputed property all along for last twenty years but that is not well founded given the fact that the learned Single Judge in the earlier writ petition did not accept that contention that and that view was confirmed by the division bench also. Even if we assume for the sake of arguments that respondent No.4 had come to possess the land in question for one or the other reason, the question for consideration of this Court would be whether the claim of the respondent No.4 can be founded merely on possession which classifies him for no more than a trespasser. Can he claim a better right than the petitioner whose bid was accepted by the Gram Panchayat and challenge that was rejected by single bench as division bench of this Court? In my considered view, the claim of the petitioner would certainly be better than that of the respondent No.4 who on his own saying and as was reflected from the impugned order also, was a rank trespasser. The manner in which the claim of respondent No.4 was all along contested by the State Government and the Gram Panchayat and thereafter when the litigation was over and the petitioner was required to deposit remaining 3/4th of the bid amount, direction of the Government on the basis of his encroachment over the same land in nothing but an arbitrary and colourable exercise of power to truncate the legitimate claim of the petitioner which was upheld by the single bench and division bench of this Court. 11. On being asked under what provision of law, the State Government could straightaway direct the Gram Panchayat to allot the land in question to respondent No.4, Shri S.R. Surana, the learned counsel, referred to provisions contained in Chapter IX of the Rajasthan Panchayati Raj Rules, 1996 and Rules 156 to 158 in particular. Rule 156 of the Rules of 1996 refers to transfer of abadi land by private negotiation, but there was no sort of negotiation involved in this case as the direction had straight away come from above. Rule 157 is regarding regularisation of old houses and perusal of this Rule also indicates that possession over land under this rule can be regularised only if it has old constructed house for a fairly long span of time. Rule 157 is regarding regularisation of old houses and perusal of this Rule also indicates that possession over land under this rule can be regularised only if it has old constructed house for a fairly long span of time. Rule 158 also does not at all apply because it refers to allotment of lands to weaker sections. Shri S.R. Surana then sought to justify the impugned order by arguing that respondent No.4 being a member of Scheduled Tribe would be deemed to be one belonging to weaker section as has been specifically referred in that rule. This argument has to be viewed in the context of the fact situation obtaining in the present case and in view of what has been noted above, I am not inclined to uphold the same. Even otherwise, there is no material on record, nor is it the stand of either the State Government or the respondent No.4 in their respective counter affidavit that the allotment was made in exercise of such power. Argument of the respondent No.4 is that as per condition No. (iii) of the auction notice, the petitioner was required to deposit 3/4th of the bid amount within one month of the auction failing which his security shall be fortified and thereafter mere deposit of 1/4th amount of the bid would not entitle him to renew his claim. In consideration of that argument, it need to be noticed that soon after the auction, he respondent No.4 challenged the auction and consequential allotment before the revision petition. The Additional Collector dismissed the same. The respondent No.4 then filed writ petition before this Court and an interim order was passed by this Court on 12.6.1986 which was confirmed when the writ petition was admitted on 26.7.1989. The writ petition was then dismissed on 13.12.1994. It was thereafter that the Administrator of the Gram Panchayat Mandawari by issue of notice required the petitioner to deposit the balance bid amount which he did deposit on 17.12.1994. Obviously therefore for the interregnum period when the interim order was operating against the parties, the Gram Panchayat could neither ask nor accept the deposit of the remaining bid amount. It was thereafter that the Administrator of the Gram Panchayat Mandawari by issue of notice required the petitioner to deposit the balance bid amount which he did deposit on 17.12.1994. Obviously therefore for the interregnum period when the interim order was operating against the parties, the Gram Panchayat could neither ask nor accept the deposit of the remaining bid amount. The respondents have not been able to show in the peculiar facts and circumstances of the present case that any notice was given to the petitioner for deposit of 3/4th amount during the intervening period or whether any order forfeiting the security 1/4th amount was passed. When soon after the dismissal of the writ petition when the stay order seized to operate, the petitioner deposited the remaining bid amount within three days thereof, an otherwise well founded legitimate claim cannot be allowed to be defeated on the basis of such hyper technical plea. 12. In view of what has been discussed above, the present writ petition deserves to be allowed and is hereby allowed. The order dated 10.11.1997 is set aside and the petitioner is held entitled to allotment of the land. Compliance of the judgment is directed to be made within one month from the date of receipt of copy of this order.