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2008 DIGILAW 421 (RAJ)

Panna Lal v. Smt. Sushila Devi

2008-02-12

MUNISHWAR NATH BHANDARI, NARAYAN ROY

body2008
JUDGMENT 1. - Aggrieved by the judgment dated 3.12.2005 passed by the learned Single Judge, this appeal has been maintained. 2. A writ petition was filed by the petitioner to challenge the order passed by the Additional Collector on a revision petition preferred by him by invoking the provisions of section 97 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994'). The revision petition was dismissed by the Additional Collector on merit as well as on the issue of delay. In the writ petition also, all the issues were considered and thereafter the order of Additional Collector was maintained. 3. While hearing the present appeal on merit, learned Counsel for the appellant was asked to show further as to how a revision petition under section 97 was maintainable before the Collector when such a revision petition can be maintained only before the Government and further more, when there is a specific provision of appeal under section 61 of the Act of 1994 read with Rule 166 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996') then how the revision under section 97 of the Act of 1994 was maintainable. The learned Counsel for the appellant prayed for time to show judgment on the issue and matter was deferred for a day. The matter again came up today. Learned Counsel for the appellant could not show any judgment on the issue, other than a judgment in Chiman Lal v. State of Rajasthan and others, 2000 (2) WLC (Raj) Referring to the judgment, learned Counsel for the appellant canvassed that a revision petition under section 97 was maintainable even before the Collector/Additional Collector. Reference has further been made of a judgment in Sampat Lal Sethia v. State of Rajasthan and others, 2002(4)WLC 577. where also, according to the learned Counsel for the appellant, same issue was dealt with. 4. Learned Counsel for the appellant further preferred a Notification issued by the Government by invoking the provisions of section 38 of the Act of 1994. where also, according to the learned Counsel for the appellant, same issue was dealt with. 4. Learned Counsel for the appellant further preferred a Notification issued by the Government by invoking the provisions of section 38 of the Act of 1994. The said notification is dated 3.12.1996 which reads as under: "In supersession of earlier Notification No. F.4 (138) LSG/58/1, dated 1.1.1962 and in exercise of the powers conferred by section 38 of Rajasthan Panchayati Raj Act, 1994 (Act No. 13 of 1994), the State Government hereby delegates the powers exercisable by it under the provisions of the said Act, specified in column (2) to the Officer or authority specified in the corresponding entry in column (3) of the schedule below." SCHEDULE S. No Provision of the Act Officer or authority to whom the powers are delegated 1 Section 38 in so far it relates to the removal of Panches Collector of the district concerned 2 Section 97 Divisional Commissioner concerned in respect of order passed by the Collector under any provisions of the Rajasthan Panchayati Raj Act 1994 except orders passed under section 97 and in all other cases to the Collector of the District. 5. Referring to the aforesaid Notification, learned Counsel for the appellant submits that even if there is no judgment on the issue, then also pursuant to the Notification referred to above, the powers under section 97 was exercisable by the Collector and in that regard. Item No. 2 of the Schedule is specifically referred. In regards to merit of the case, learned Counsel questioned the finding. 6. Learned Counsel for the respondent on the other hand submits that when there is a specific provision of appeal under section 61 of the Act of 1994, then without filing an appeal, a revision petition cannot be maintained before the Collector/Additional Collector. In that regard, referring to section 61 of the Act of 1994, it was specifically stated that an appeal against the order of Gram Panchayat lies to the Panchayat Samiti and if such appeal is maintained then the matter is to be heard by the Standing Committee of the Panchayat Samiti. In that regard, referring to section 61 of the Act of 1994, it was specifically stated that an appeal against the order of Gram Panchayat lies to the Panchayat Samiti and if such appeal is maintained then the matter is to be heard by the Standing Committee of the Panchayat Samiti. In this regard, a reference of Rule 166 of the Rules of 1996 was also given wherein it has been provided that an appeal shall lie to the Panchayat confirming sale of Abadi land under Rule 154 or transfer of Abadi land under Rule 156 or allotment of lands under Rules 157, 158 or 159 read with Rule 160 to the Panchayat Samiti. 7. The matter in hand is nothing but of allotment of land by the Panchayat Samiti, therefore in such matters, an appeal is provided to the Panchay Samiti even under Rule 166 of the Rules of 1996. Thus, according to the learned Counsel for the respondent, the revision petition under section 97 of the Act of 1994 was not competent/ maintainable before the Collector, in view of the above, learned Counsel for the respondent submits that irrespective of the discussion on the merit of the issue, even jurisdiction to the Collector under section 97 of the Act of 1994 was not existing, thus the revision petition was not maintainable. On merit. it was urged that question of facts can not be raised again in appeal. 8. We have considered the rival submissions of both the learned Counsel for the parties and scanned the matter carefully and gone through the judgments referred to above. 9. The issue which has been considered by us Is regarding maintainability of the revision petition under section 97 of the Act of 1994 before the Collector. The argument has been raised by the learned Counsel for the appellant is mainly in reference to the Notification issued in the year 1996 as has been quoted above. Perusal of the Notification reveals that same be issued by the Government by invoking the provisions of section 38 of the Act of 1994 and perusal of section 38 reveals that it is regarding removal and suspension of the elected members and not in regard to the allotment of land. The Notification having been issued under the provisions of section 38 of the Act, cannot be applied for the purpose of allotment of land. The Notification having been issued under the provisions of section 38 of the Act, cannot be applied for the purpose of allotment of land. More specifically perusal of section 38 (5) reveals that the power of revision under section 97 was given to the State Government. For ready reference, section 38 (5) is quoted hereunder: "The decision of the State Government on any matter arising under this section shall, subject to any order made under section 97, be final and shall not be liable to be questioned in any Court of law." 10. Perusal of the aforesaid provision reveals that power under section 97 was conferred under section 38 (5) and the Notification dated 3.12.1996 was issued for that purpose only. Therefore so far as Notification referred by the learned Counsel for the appellant is concerned, it does not provide any assistance to show that under section 97 of the act of 1994. the powers could have been exercised by the Additional Collector and a revision could be entertained in regard to the allotment of land, it is necessary to further look at the Rule 166 of the Rules of 1996 read with section 61 of the Act of 1994. inasmuch as a specific provision of appeal is provided in reference to the allotment of land. However, the appellant has not preferred appeal to the Panchayat Samiti. if he was aggrieved by the order of allotment apart from the fact that even the revision petition was filed in the year 1996 to challenge the allotment i.e. almost after a lapse of 13-14 years. It is necessary to clarify that the Act of 1994 has repealed the earlier Act and same is the position in regard to the Rules of 1996 whereby the Rules of 1961 has been repealed but as per the provision of section 124 of the Act of 1994, there exist Repeal and Savings clause and by virtue of those clauses, an order of allotment made under the Rules of 1961 is saved under the new Act and Rules. 11. In view of the above, when the revision petition was tiled in the year 1999, the right to file revision petition under section 97 was not existing in favour of the appellant in view of specific provision of appeal against the order of allotment of land by Gram Panchayat. 12. 11. In view of the above, when the revision petition was tiled in the year 1999, the right to file revision petition under section 97 was not existing in favour of the appellant in view of specific provision of appeal against the order of allotment of land by Gram Panchayat. 12. The judgment referred by the learned Counsel for the appellant does not provide any assistance, inasmuch as the Full Bench judgment in 2002 (2) WLC 1 necessarily deals with the issue of limitation and the Hon'ble Court dealt with the said issue in reference to the old rules which were then applicable in the aforesaid case. However, it is not in dispute that the Rules of 1961 were not applicable when the revision petition was maintained in the year 1999 as being repealed. Therefore, the Full Bench judgment having not dealt with the issue of applicability of section 97 and competence of the Collector to maintain a revision petition against the allotment order, cannot provide any assistance and same is the position in regard to the judgment referred in 2002 (4) WLC 577 . Even perusal of the said judgment does not show that the learned Single Judge has dealt with the issue as to whether a revision petition would be maintainable under section 97 before the Collector when such powers can be exercised only by the State Government. Hence, in absence of ratio on the Issue raised in this appeal, judgments referred to above does not provide any assistance. 13. In view of the above discussion, without going into the merit of the issue as otherwise dealt with by the Additional Collector and upheld by the learned Single Judge, in our view, even the revision petition so preferred by the appellant by invoking theprovision of section 97 of the Act of 1994 before the Collector/Additional Collector was not then maintainable. This is apart from the fact that even on merit of the case, a proper finding of fact has been recorded which cannot be interfered more so when challenge to allotment of land was made after 13 to 14 years. 14. Hence, this appeal is dismissed for the reasons aforesaid with no order as to costs.Appeal Dismissed. *******