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2012 DIGILAW 1655 (RAJ)

Nagar Mal v. Addl. District Collector, Sikar

2012-07-30

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—All the three petitions separately challenging the order dated 20.03.2012, passed by the Additional Collector, Sikar in three revision petitions whereby the Addl. Collector has set aside patta Nos.23, 24, 25 issued to each of the petitioners vide order dated 07.12.2009 by the Gram Panchayat Sargoth, are being disposed of by this common order. 2. The case of the petitioners is that they applied for grant of patta of land situate north of Indira Colony in Gram Panchayat Sargoth. It is submitted that their applications were submitted on or about 01.05.2009. According to the petitioners, the applications were processed by the Gram Panchayat Sargoth and three Panches were allegedly appointed under Rule 146 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter 'the Rules of 1996') to inspect the site whereupon they did inspect the site and submit their inspection report. It is stated that the report of Patwari Halka was also asked for and submitted along with evidence of two witnesses. According to the petitioners, on the inspection made under Rule 146 of the Rules of 1996, their possession of houses allegedly existing on the land sought to be regularized was found to exist. Consequent to the recommendation made, land measuring 500, 699 & 504 sq. mtr. were allotted to each of the petitioners respectively under patta Nos.23, 24 and 25 as purportedly no objection to the regularization of the land in the names of the petitioners were received in spite of notice. The case of the petitioners is that they were issued patta aforesaid on 07.12.2009 in terms of Rule 157 of the Rules of 1996. The petitioners are stated to have deposited the requisite charges as demanded by the Panchayat. It is submitted that the land in respect of which pattas were issued to the petitioners were registered with the Sub-Registrar. 3. According to the petitioners, aggrieved of the order dated 7.12.2009 passed by the Gram Panchayat Sargoth issuing three pattas i.e. patta Nos.23, 24, & 25 to the petitioners, the respondent Nos.2 & 3, Leechman and Puran Mal laid revision petitions purportedly u/Sec. 97 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994') challenging the regularization of land and allotment of pattas in favour of the petitioners. It is submitted that the Additional Collector, Sikar vide his order dated 20.03.2012 without application of mind and appreciation of facts on record has wrongly cancelled the said allotment of pattas to the petitioners. Hence the writ petitions. 4. Mr. M.M. Ranjan, Sr. Counsel with Mr. Rajat Ranjan appearing for the petitioners has submitted that in fact the revision petitions filed by the respondent Nos.2 & 3 was not maintainable before the Additional Collector, Sikar and in fact an appeal under Section 61 of the Act of 1994 read with Rule 166 of the Rules of 1996 ought to have been filed. Counsel further submits that in any event the Pattas issued to the petitioners by the Gram Panchayat Sargoth having been registered, it was not for the Additional Collector as the revisional authority to cancel the same and only a civil suit for the cancellation of the Pattas in issue duly registered could have been filed. It is submitted that the Additional Collector has misconstrued Rule 157 of the Rule of 1996 and proceeded on the basis that pattas were alloted to the petitioners under Rule 157(2) of the Rules of 1996 when in fact Pattas were alloted under Rule 157(1) of the Rule of 1996. 5. Having heard the counsel for the petitioners and having perused the writ petition as also the impugned order dated 20.03.2012, passed by the Additional Collector, Sikar, I am of the view that there is no force in the contention of the petitioner's counsel that revision petitions filed before the Addl. Collector-I, Jaipur were not maintainable. 5. Having heard the counsel for the petitioners and having perused the writ petition as also the impugned order dated 20.03.2012, passed by the Additional Collector, Sikar, I am of the view that there is no force in the contention of the petitioner's counsel that revision petitions filed before the Addl. Collector-I, Jaipur were not maintainable. Section 97 of the Act of 1994 provides that “the State Government may, either of its own motion or on an application from any person interested, call for and examine the record of a Panchayati Raj Institution or of a Standing Committee or sub-committee thereof in respect of any proceedings to satisfy itself as to the correctness, legality or propriety of any decision or order passed therein or as to the regularity of such proceedings and, if in any case, it appears to the State Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly.” The only limitation on the powers of the State Government under Section 97 provided is that no such order can be passed by the State Government without hearing the opposite party or without giving it a reasonable opportunity of being heard in the matter. Even though Section 61 of the Act of 1994 provides for an appeal to the Panchayat Samiti at the instance of an aggrieved person, in fact the power under Section 97 of the Act of 1994 is an overarching power vested in the State Government. Under the Act of 1994, the State Government supervises the functioning of the Panchayati Raj Institutions and in my considered view where it is brought to the notice of the State Government or an officer authorised by it for exercising the power under Section 97 of the Act of 1994 that gross illegalities have been committed the statutory provisions of the Act of 1994 and Rules of 1996 violated by the Gram Panchayat by acted beyond its jurisdiction, the applicant cannot be non-suited only on the ground of availability of an alternate remedy. The Additional Collector, Sikar is quite obviously a person authorized by the State Government for the exercise of power under Section 97 of the Act of 1994 and there are numerous revision petitions filed before the Additional Collector against the order of Gram Panchayat which on being determined by him come before this Court from time to time. Consequently, I find no force in the arguments of the counsel for the petitioners that the revision filed by the respondent Nos.2 & 3 was not maintainable in view of there being a provision of appeal. In fact such an argument was not taken by the petitioners before the revising authority and the petitioners acquiesced to its jurisdiction taking a chance on the merits of the case. A new plea not taken before the revising authority cannot be allowed in this petition. In my considered view, even otherwise the impugned order dated 20.03.2012 passed by the Additional Collector being a well considered and a justifiable order in the facts and circumstances of the case, this writ court in the exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India would loath to set it aside and perpetuate gross illegalities as appear from the allotment of Pattas made by the Gram Panchayat Sargoth to the petitioners. The illegalities will be adverted to when the merits of the case would be discussed hereinafter. 6. As far as the argument of the counsel for the petitioners with regard to the issue of the pattas being registered and therefore being beyond the scope of correction by resort to revising power is concerned, I am of the view that the revising power under Sec. 97 of the Act of 1994 cannot be made redundant by the mere registration of pattas unlawfully issued in the first instance to the petitioners as they appear to have been in the present case. Registration of the pattas is only a consequential event and when the pattas are found to have been unlawfully issued contrary to the obtaining rules and even by resort to fraud, the mere registration thereof cannot be treated as a safe harbour. It is trite that fraud vitiates and unravels everything built on it. The cancellation of pattas by the Additional Collector will also thus entail its inexorable conseque-nces in law rendering the registration thereof ineffective and inconsequential. 7. It is trite that fraud vitiates and unravels everything built on it. The cancellation of pattas by the Additional Collector will also thus entail its inexorable conseque-nces in law rendering the registration thereof ineffective and inconsequential. 7. On the merits of the matter, I am of the considered view that the facts of the case are shocking in nature as three pattas have been issued to the three members of one family. Rule 157 of the Rules of 1996 is in the nature of an exception to the general mode of disposal of the property of Gram Panchayat as detailed in Rule 143 of the Rules of 1996 which provides for auction of plots in the Abadi area. Rule 143 of the Rules of 1996 provides that the Panchayat shall prepare a list of plots including scattered plots within the Abadi Area, keeping in mind the space needed for public streets/ roads, drainage and other public purposes. Under Rule 150 of the Rules of 1996, after the Panchayat undertakes the requisite process detailed under the Rules, the Panchayat is required by resolution to order the auction of the land proposed to be sold on a date, not earlier then one month from the date of the resolution. The said provision has been inserted in the Rules of 1996 with the intent of making information public to facilitate the best possible price at the auction of the land by the Gram Panchayat. Rule 152 of the Rules of 1996 makes it mandatory for the Auction Committee constituted under Rule 151 to ensure that there is free and fair competition amongst the bidders and the Auction Committee is to keep in mind the prevailing market price of the land auctioned and the final bid is not to be accepted unless it is upto the index rate fixed by the Sub-Registrar of the area on the basis of previous sales of lands for the purpose of stamp duty. Under Rule 154 of the Rules of 1996, the auction sale is to be confirmed on the acceptance of highest bid on a consideration of the matter by the Panchayat and the authorities prescribed in Sub-rule (3) of Rule 154. Rule 156 of the Rules of 1996 pertains to transfer of property by private negotiation, Rule 157 pertains to regularisation of old houses and Rule 158 pertains to allotment of lands to weaker sections. Rule 156 of the Rules of 1996 pertains to transfer of property by private negotiation, Rule 157 pertains to regularisation of old houses and Rule 158 pertains to allotment of lands to weaker sections. These rules are in the nature of exception. The rule of interpretation of exceptions is that exceptions to the general rule ought to be narrowly construed. As such Rules 156, 157, 158 and other rules of the Rules of 1996 providing for allotment of land of the Gram Panchayat other than by way of auction have to be strictly construed. 8. In the context of the above legal enunciation, a reference to Rule 157 would indicate that where a person is in possession of old houses in Abadi land in the jurisdiction of the Panchayat and desires to get a patta of the land thereof in his name, he can apply for a patta on making on an appropriate application with the requisite charges. Clause (a) of the Rule 157(1) indicates that land with old houses of over fifty years thereon would need an application for regularisation to be accompanied by a fee of Rs.100/- and Clause (b) thereof indicates that land with old houses constructed thereon less then fifty years from the date of commencement of Rules 1996 would require an application accompanied by a fee of Rs.200/-. As such Rule 157(1) relates to regularisation of land with old houses constructed thereon and not regularisation of open land. As allotment under Rule 157 is by way of regularisation, it is inconceivable that three members of a family can be allowed to claim regularisation and appropriate a large chunk of land. Rule 157 of the Rules of 1996 can be invoked as an exception to the general rule of auction only when the statutorily prescribed pre-condition exist and would entail regularisation of only one plot for the entire family. Rule 157 of the Rules of 1996 cannot be interpreted or resorted to allow aggrandisement of Government land to an extent of about 1700 sq. yds. 9. A bare look at the application filed would indicate that non of the application even indicates the number of years during which the house on the land in issue of which regularisation was sought has existed. yds. 9. A bare look at the application filed would indicate that non of the application even indicates the number of years during which the house on the land in issue of which regularisation was sought has existed. The application also does not even show that it was accompanied by the requisite fee as required under Rule 157(1) of the Rules of 1996. No proper inquiry as required under the Rules of 1996 was undertaken by the Panchayat. There was contradiction between the statements and the report of the Panchas. No enquiry appears to have been made with regard to the length of possession prior to the regularisation and the Additional Collector also found that the lady Sarpanch of the Gram Panchayat had stated that taking advantage of her illiteracy, the Secretary of the Gram Panchayat had conspired to giveaway valuable land of the Gram Panchayat. In the facts obtaining, the Additional Collector held that it appeared that there was a criminal conspiracy underway to obtain valuable land of the Gram Panchayat in contravention of requirement of Rule 157 of the Rules of 1996. 10. In my considered view, there is no manner in which by resort to Rule 157 of the Rules of 1996 three pattas could have been granted to three members of the same family. Rule 157 is obviously a rule to be invoked in exceptional cases after due compliance with procedure prescribed. The Rule is to recognize settled possession and not to encourage encroachments. The process of recognition of settled possession is to be an airtight enquiry which has to be extensive with adequate proof to the satisfaction of the Panchayat. This satisfaction of the Panchayat has to be on objective material before it. Only then regularisation / allotment under Rule 157 of the Rules of 1996 can be permitted. On the aforesaid test, the findings of the learned Addl. Collector are neither perverse or vitiated by misdirection in law. There is no material before this Court to upset the said findings. On the contrary the case before this Court is palpably one of land grabbing by the petitioners facilitated no doubt by colluding Panchayat officials. 11. Consequently, I find no force in the writ petitions and the same are dismissed. Stay applications also dismissed in view of the petitions being dismissed. 12. At this stage Mr. Ranjan, Sr. On the contrary the case before this Court is palpably one of land grabbing by the petitioners facilitated no doubt by colluding Panchayat officials. 11. Consequently, I find no force in the writ petitions and the same are dismissed. Stay applications also dismissed in view of the petitions being dismissed. 12. At this stage Mr. Ranjan, Sr. Counsel appearing for the petitioners would submit that this Court while upholding the order of the Additional Collector, Sikar cancelling the patta Nos. 23, 24, 25 granted to the petitioners, should work equities between the parties and amount deposited by the petitioners for the issue of pattas with the Gram Panchayat be refunded by the Gram Panchayat to the petitioners. Further it is submitted that as the resident of Gram Panchayat, the petitioners are entitled to reconsideration of their applications at least in respect of one plot with reference to Rule 157 of the Rules of 1996. 13. The request made by Mr. Ranjan is fair. It is therefore directed that consequent to cancellation of Pattas, the amount deposited by the petitioners against the issue of pattas be refunded to the petitioners. It is further directed that in the event, an application is made afresh for regularisation of any old construction over a plot of land in the ownership of the Gram Panchayat in view of Rule 157 of the Rules of 1996 by one of the petitioners, the Gram Panchayat shall proceed to consider such an application strictly in accordance with law.