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2009 DIGILAW 1314 (RAJ)

Bhanwar Lal v. State of Rajasthan

2009-05-13

SANGEET LODHA

body2009
JUDGMENT 1. - This writ petition is directed against order dated 24.12.96 passed by the District Collector, Rajsamand, whereby the revision petition preferred by the respondent no. 4 under section 27 A of the Rajasthan Panchayat Act, 1953( in short "the Act of 1953" hereinafter), assailing the validity of patta of the plot measuring 8,000 sq. ft. comprising Arazi No. 1462 issued in favour of the petitioner by the respondent no. 2 Gram Panchayat, Khakharmala has been allowed and accordingly, the patta dated 23.12.89 issued in favour of the petitioner has been cancelled. 2. The respondent no. 2 sold the plot in question to the petitioner for consideration a sum of Rs.500/- by way of auction and accordingly, the patta of the plot was issued in his favour. The validity of the patta was assailed by the respondent no. 4 before the Collector, Rajsamand, respondent no. 3 herein, by way of revision petition on the ground that the plot in question was part of the charnot land of the Gram Panchayat, which was got converted into Abadi land for allotment to the persons of lower echelons free of cost, however, the respondent no. 4 allotted 15 plots to such persons but the remaining land was sold by way of auction to the petitioner without following the procedure laid down under Rule 265 of Rajasthan Panchayat General Rules , 1961( in short "the Rule of 1961" hereinafter). That apart, it was submitted that the land which was got converted from Charnot to Abadi for allotment to the persons belonging to lower echelons could not have been sold by the respondent no. 4 by way of auction to any other person. 3. The defending the auction sale , it was submitted on behalf of the petitioner before the revisional authority that after allotment of plots to the persons belonging to lower echelons only remaining has been sold to the petitioner by way of auction, which cannot be faulted with. It was submitted that after the auction, the proceedings were sent for confirmation of the sale but since, no confirmation or refusal was received within a period of 30 days therefore, the Gram Panchayat was well within its jurisdiction to issue the patta on the basis of deemed approval. 4. The respondent no. It was submitted that after the auction, the proceedings were sent for confirmation of the sale but since, no confirmation or refusal was received within a period of 30 days therefore, the Gram Panchayat was well within its jurisdiction to issue the patta on the basis of deemed approval. 4. The respondent no. 4 herein, the Gram Panchayat, had taken stand before the revisional authority that the auction has not been carried out in accordance with law and the land got converted for allotment to the persons belonging to lower echelons has been sold by the Sarpanch/the Panch to his relatives. 5. After due consideration of the rival submissions, the revisional authority arrived at the finding that the auction notice issued was not in accordance with law inasmuch as, in the notice dated 5.12.89, the date of auction was fixed on 2.12.89. That apart, the revisional authority found that as per Rule 265 of the Rules of 1961, the auction proceedings were required to be sent to the competent authority for approval within a period of three days, however, as per the available record of Panchayat , the proceedings were never sent for approval to the competent authority. The revisional authority opined that under Rule 272 of the Rules of 1961, any person is entitled to file a revision petition under section 27 A of the Act of 1953 aggrieved by an order passed by the Gram Panchayat. Considering the objection with regard to the limitation raised on behalf of the petitioner, the revisional authority held that under section 27 A, no limitation is prescribed. In view of the findings arrived as aforesaid, the patta issued in favour of the petitioner has been cancelled by the revisional authority by the order impugned in this writ petition. 6. It is contended by the learned counsel for the petitioner that the revision preferred by the respondent no. 4 was not maintainable inasmuch as, he cannot be said to be a person aggrieved by the patta issued in favour of the petitioner. The learned counsel submitted that of course no limitation has been prescribed for filing the revision petition under section 27 A of the Act of 1953 but, that does not mean that the revision petition can be filed at any time, even after a lapse of about six years. The learned counsel submitted that of course no limitation has been prescribed for filing the revision petition under section 27 A of the Act of 1953 but, that does not mean that the revision petition can be filed at any time, even after a lapse of about six years. The learned counsel submitted that the Act of 1953 stands repealed by virtue of provisions of Section 124 of the Rajasthan Panchayat Act, 1994 therefore, the revision petition preferred under section 27 A of the repealed Act was liable to be rejected on this count alone. The learned counsel submitted that since the bid for the plot was for Rs.500/-, Rule 265(3) of the Rules of 1961 shall apply and therefore, the auction proceedings were not required to be sent for confirmation to any authority as alleged within a period of three days from the date of auction. The learned counsel submitted that Rule 133(2) of the Rules of 1961 has wrongly been invoked by the revisional authority, it has simply no relevance so far as the auction of the plots is concerned. 7. Per contra, the learned Additional Government Counsel submitted that entire auction proceedings taken by the Gram Panchayat was total farce. The learned counsel submitted that the Charnot land of the Gram Panchayat was ordered to be converted into Abadi land for allotment to the persons of lower echelons free of cost therefore, the Gram Panchayat had no authority to sell even part of the said land by way of auction. The learned counsel submitted that as per provisions of Rule 265 of the Rules of 1961 where the bid of the land auctioned exceeds Rs.200/- but does not exceed Rs. 1,000/-, the approval of the proposed sale at the price equal to the amount of the highest bid is required to be taken from the Panchayat Samiti concerned. Accordingly, it is submitted by the learned counsel that the patta of the plot issued in favour of the petitioner without confirmation of the auction held, is ex facie illegal. 8. I have considered the rival submissions and perused the material on record. 9. In the first instance, it will be appropriate to consider the objections raised on behalf of the petitioner regarding maintainability of the revision petition filed by the respondent no. 8. I have considered the rival submissions and perused the material on record. 9. In the first instance, it will be appropriate to consider the objections raised on behalf of the petitioner regarding maintainability of the revision petition filed by the respondent no. 4 under section 27 A of the Act of 1953 read with Rule 272 of the Rules of 1961. 10. A perusal of the revision petition filed by the respondent no. 4 before the District Collector, Rajsamand, a copy whereof has been placed on record as Ex.1 reveals that the same though mentioned to have been filed under Section 272 of the Rajasthan Panchayat Act was as a matter of fact filed under Rule 272 of the Rules of 1961 which deals with the power of revision of the State Government or any officer or authority to whom the powers of the State Government under section 27 A have been delegated by notification under Section 70 to examine the correctness, legality of any order passed by inter alia the Panchayat under Rules 265, 266 , 267 read with Rule 268 or on appeal under Rule 270. The Rules of 1961 stand repealed vide Rule 374 of Rajasthan Panchayati Raj Rules, 1996 w.e.f. 30.12.96. The revision petition was filed by the petitioner on 16.8.95 when the Rules of 1961 were still in force, therefore, it cannot be said that the revision petition was filed under the provisions of repealed Act/Rules. That apart, under the Act of 1953, Section 27 A deals with the power of the State Government whereas, under the Rajasthan Panchayati Raj Act, 1994, Section 97 deals with the power of revision and review by the State Government. Therefore, even if it is assumed that the revision petition was filed by the petitioner under Section 27 A of the Act of 1953, its maintainability cannot be questioned on the ground that the same was filed under the repealed Act inasmuch as, even under the Act of 1994, the power of the State Government to examine the correctness,legality or propriety of a decision or order passed by the Panchayati Raj Institution is there. It is settled law that if the power is traceable exercise of such power cannot be set aside merely because it was done under a different provision. It is settled law that if the power is traceable exercise of such power cannot be set aside merely because it was done under a different provision. Thus, the competence of the Collector to entertain the revision petition under Section 97 of the Act of 1994 being not in dispute, the wrong mentioning of the provision in the revision petition filed do not affect the validity of the order passed. The reliance in this regard may be placed on decisions of the Hon'ble Supreme Court in the matters of " Afzal Ullah v. State of Uttar Pradsh & Anr.", AIR 1964 SC, 264 and " Bangalore Medical Trust v. B.S.Muddappa & Ors.", (1991)4 SCC ,54 . Thus, the contention raised by the learned counsel that since the revision petition was filed under section 27 A of the repealed Act therefore, the same was liable to be rejected is devoid of any merit. 11. It is to be noticed that under section 27 A of the Act of 1953 so also under section 97 of the Act of 1994, the State Government is empowered to exercise the power of revision either of its own motion or on an application from any person interested. If the Panchayat has auctioned the land set apart for allotment to the persons belonging to lower echelons by way of open auction that too in violation of the relevant provisions of the Rules of 1961 governing such auction then, a person resident of the village cannot be said to be a person having no interest in the matter. Moreover, if any illegality is brought to the notice of the State Government then, it cannot refuse to exercise the power vested in it on the ground that the person making the application is not a person adversely affected by the action impugned particularly, when under the relevant provision, the power of revision can be exercised by the State Government suo moto as well. Thus, the contention of the learned counsel that the revision petition was not maintainable at the instance of respondent no. 4 , is also bereft of any merit. 12. Coming to the merits of the case, admittedly, the land in question was part of the Charnot land converted into Abadi for allotment to the persons belonging to the lower echelons free of cost. 4 , is also bereft of any merit. 12. Coming to the merits of the case, admittedly, the land in question was part of the Charnot land converted into Abadi for allotment to the persons belonging to the lower echelons free of cost. As per the provisions of Rule 267 of the Rules of 1961 , the Panchayat is empowered to allot the Abadi land free of cost to the persons belonging to the lower echelons including members of Scheduled Castes, Scheduled Tribes, Backward Class , village artisans and landless labourers , who do not own house sites/houses. Therefore, the land which was specifically converted from Charnot to Abadi land for allotment to the persons belonging to the lower echelons was not open to be sold by the Gram Panchayat by way of open auction. That apart, after perusal of the record, the revisional authority has arrived at a categorical finding that while putting the plot to auction, the procedure laid down under the Rules of 1961 has not been followed. It is not disputed before this court that in the auction notice issued on 5.12.89, the date of auction was fixed as 2.12.89, whereas as per Rule 262 of the Rules of 1961, if no objections are received under Rule 260 against the proposed sale within one month or if all the objections received have been dismissed under Rule 261, the Panchayat shall by resolution order the auction of the land proposed to be sold on a date, not earlier than one month from the date of the resolution and at the time and the place to be specified. Further, after perusal of the record, the revisional authority has found that an order to auction the plot was drawn on 30.11.89 and on 2.12.89, it was recorded that the auction shall commence with the reserve bid of Rs.61/-. Thus, it is manifestly clear that the notice for auction issued was not in conformity with the provisions of Rule 262 of the Rules of 1961. 13. It is not disputed before this court that the auction proceedings were not sent for approval to the competent authority, rather, it is contended that since the bid of the land auctioned was Rs.500/- , Rule 265(3) of the Rules of 1961 shall apply and therefore, the proceedings were not required to be sent for approval. 13. It is not disputed before this court that the auction proceedings were not sent for approval to the competent authority, rather, it is contended that since the bid of the land auctioned was Rs.500/- , Rule 265(3) of the Rules of 1961 shall apply and therefore, the proceedings were not required to be sent for approval. As a matter of fact, Rule 265(1) of the Rules of 1961 specifically provides that the acceptance of the bid shall be subject to confirmation by the Panchayat and authorities prescribed under sub-rule(3). As per sub-rule(3) of Rule 265 where the bid of the land exceeds Rs.200/- but does not exceed Rs.1000/-, the Panchayat shall address for approval of the proposed sale at the price equal to the amount of the highest bid to the Panchayat Samiti having jurisdiction. In this view of the matter, the contention of the learned counsel that the value of the plot being more than Rs.500/-, the approval was not necessary, has no substance. 14. It is true that if no limitation is provided , the power of the revision vested in the Revisional Authority has to be exercised within reasonable time. But, keeping in view the facts and the circumstances of the case and keeping in view the illegalities committed by the Panchayat in the auction proceedings noticed above, in considered opinion of this court, the revisional authority has committed no error in exercising the revisional jurisdiction even after lapse of the period of six years. 15. In view of the discussion above, the order impugned passed by the revisional authority does not warrant any interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 16. In the result, the writ petition fails, it is hereby dismissed. No order as to costs.Writ Petition Dismissed. *******