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2013 DIGILAW 277 (RAJ)

Ram Kumar Dhaka v. State of Rajasthan

2013-02-01

VIJAY BISHNOI

body2013
JUDGMENT Hon'ble BISHNOI, J.—The petitioner has preferred this writ petition by praying the following reliefs:- (a) by an appropriate writ order or direction, the auction of the land in question to the non-petitioner Nos. 4 and 5 by the Gram Panchayat-Pakka Saranan vide resolution No. 3 of the proceedings of Gram Panchayat dt. 6.9.86 (Annex. 5) may kindly be quashed and set aside and if any Patta (Sale-Deed) has been issued by the Gram Panchayat in pursuance to (Annex.5) that may also be set-aside. (b) by an appropriate writ order or direction, the judgment dt. 21.3.2001 (Annex. 8) passed by the Addl. Collector, Hanumangarh may kindly be quashed and set-aside. (c) by an appropriate writ, order or direction, the non-petitioner Nos. 4 and 5 may kindly be restrained from raising the construction on the plot in question adjoining to the west side of the plot No. 8-90/1, which is a public way, the circular road of village-Pakka Saranan. (d) any other appropriate writ, order or direction, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (e) writ petition filed by the petitioner may kindly be allowed with costs." 2. The brief facts of the case are that one Krishna Kumar S/o Devi Lal has filed a revision petition under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the "Act of 1994") before the Additional District Collector, Hanumangarh while challenging the resolution No. 3 dated 6.9.1986 (Annex. 5) passed by the Gram Panchayat, Pakka Sarana, wherein a decision was taken to sell sq. ft. of strip land (khancha bhumi) (hereinafter to be referred as plot in question) to the respondents No. 4 and 5. 3. The claim of Krishan Kanwar was that plot sold to respondents No. 4 and 5 forms part of a circular road of village Pakka Sarana, which is also known as "Phirni" in the local language and as per the provisions of law, the land which forms part of public way, cannot be sold by the Gram Panchayat and the action of the Gram Panchayat is without jurisdiction and, therefore, the resolution No. 3 dated 6.9.1986 of the Gram Panchayat Pakka Sarana is liable to be cancelled. 4. 4. During the pendency of the revision petition preferred by Krishna Kumar S/o Devi Lal, the present petitioner has also preferred another revision petition challenging the same resolution No. 3 dated 6.9.1986 of the Gram Panchayat Pakka Sarana. On an application moved by the counsel for the revision petitioner, the learned Additional Collector has consolidated both the revision petitions and the same is evident from para 3 of the impugned judgment dated 21st March, 2001. 5. After hearing the revision petitions, the learned Additional Collector dismissed the revision petitions while holding that the challenge made through the revision petition, to the patta issued in favour of the respondents No. 4 and 5 is suffering from a delay of 13 years and no explanation for the said delay has been offered. The learned Collector has also taken into consideration the alleged record of the Gram Panchayat and has observed that the Gram Panchayat has invited objection by issuing a notice and when no objection received, a public auction conducted on 4.8.1986 and allotment of plot in question made in favour of respondents No. 4 and 5 as they were the highest bidders. 6. Being aggrieved with the order impugned dated 21st March, 2001, the petitioner has preferred this writ petition. 7. Reply to the writ petition has been filed on behalf of respondents No. 1 to 3 and it is claimed that there is no illegality in the order dated 21st March, 2001 passed by the Additional Collector, Hanumangarh. No reply on behalf of the Gram Panchayat and respondents No. 4 and 5 has been filed. 8. The learned counsel for the petitioner Mr. Raman Deep Singh argued that the findings given by the learned Additional Collector in the order impugned to the effect that, the respondents No. 4 and 5 have filed application on 21.4.1986 for allotment of plot in question and thereafter the Gram Panchayat issued notice for inviting objections and when no objections received, the Gram Panchayat Pakka Sarana has publically auctioned the plot in question on 3.8.1986 and as thereafter issued the patta in favour of the petitioner on 6.11.1986 are absolutely contrary to the record. The learned counsel for the petitioner has invited my attention towards the proceedings of the Gram Panchayat held on 21.4.1986 and has argued that from the proceedings of the Gram Panchayat dated 21.4.1986 (Annex. The learned counsel for the petitioner has invited my attention towards the proceedings of the Gram Panchayat held on 21.4.1986 and has argued that from the proceedings of the Gram Panchayat dated 21.4.1986 (Annex. 2) it has not been revealed that the respondents No. 4 and 5 have ever moved any application for allotment of the plot in question, as mentioned by the learned Additional Collector in his order dated 21st March, 2001 (Annex. 8). He has further invited my attention towards the minutes of the meeting of the Gram Panchayat Pakka Sarana held on 6.11.1986 (Annex. 3) and has claimed that from the proceedings of the Gram Panchayat Pakka Sarana dated 6.11.1986, it is clear that the Gram Panchayat has never issued any patta in favour of the respondents No. 4 and 5 as held by the Additional Collector in the impugned judgment. He has further invited my attention towards proceedings dated 6.9.1986 (Annex. 5) of the Gram Panchayat Pakka Sarana and has submitted that in the resolution No. 3, it is simply observed that strip of land near Shri Ganganagar road is sold to the respondents No. 4 & 5 at the rate of Rs. 1050/-. The counsel for the petitioner further stated that no meeting of Gram Panchayat, Pakka Sarana held on 4.8.1986 and, therefore, there is no question of auction took place on the said date for the plot in question and the learned Collector has wrongly observed in his order that the auction proceedings for allotment of plot in question were held on 4.8.1986. 9. Learned counsel for the petitioner has further argued that the learned Additional Collector has not taken into consideration the fact that the land in question, allotted to the respondent No. 5 by the Gram Panchayat Pakka Sarana, vide resolution No. 3 dated 6.9.1986 forms part of the public way and the Gram Panchayat has no jurisdiction to sell the land which forms part of the public way, under the provisions of Rajasthan Panchayati Raj Act, 1953 or the Rajasthan Panchayati Raj (General Rules), 1961. Learned counsel for petitioner has referred to the judgment of this Court reported in RLR 1984 page 938 (Devi vs. State of Rajasthan & Ors. wherein coordinate Bench of this Court has specifically held that land which forms part of the public way cannot be sold because such land vests in Panchayat only as trustee. 10. Learned counsel for petitioner has referred to the judgment of this Court reported in RLR 1984 page 938 (Devi vs. State of Rajasthan & Ors. wherein coordinate Bench of this Court has specifically held that land which forms part of the public way cannot be sold because such land vests in Panchayat only as trustee. 10. It is further argued by the counsel for the petitioner that in the revision petition, the petitioner has specifically stated that he came to know about the issuance of patta in favour of the respondents No.4 and 5 only a week prior from the date of filing revision and, therefore, there is no delay on the part of the petitioner in challenging the resolution No.3 dated 6.9.1986 passed by the Gram Panchayat Pakka Sarana, however, the learned Additional Collector without considering this fact has dismissed the revision petition preferred by the petitioner while holding the same is preferred after delay of 13 years. The learned counsel for petitioner has further argued that even if it is presumed that there is a delay in challenging the resolution No.3 dated 6.9.86 of the Gram Panchayat Pakka Sarana, then also the Collector has illegally dismissed the revision petition preferred by the petitioner, as the action of the Gram Panchayat for issuance of patta in favour of respondent No. 5 for the land, which forms part of the public way, is void ab initio and a void and nonest action of the Gram Panchayat can be challenged at any point of time. He has placed reliance on the judgment passed by the larger Bench by this Court in Chiman Lal vs. State of Rajasthan reported in 2000(2) WLC (Raj.) 1. 11. The counsel for respondents No. 1 to 3 has supported the order impugned. 12. I have heard learned counsel for the parties present and also examined the material placed on record on behalf of the petitioner. 13. It is clear from the material on record that no such meeting of the Gram Panchayat took place on 4.8.1986, as held by the Addl. Collector in the order impugned. From the minutes of the meeting of Gram Panchayat dated 6.11.1986 (Annex. 3), it is clear that the Gram Panchayat has not resolved to issue any patta in favour of the respondent No. 4 and 5. Collector in the order impugned. From the minutes of the meeting of Gram Panchayat dated 6.11.1986 (Annex. 3), it is clear that the Gram Panchayat has not resolved to issue any patta in favour of the respondent No. 4 and 5. However, the Gram Panchayat in its meeting dated 6.9.1986 has only resolved to sell the land in question to the respondents No. 4 and 5 for a consideration of Rs. 1050/-. There is no mention regarding any auction proceedings dated 4.8.1986 in the resolution dated 6.9.1986. From the above, it is clear that the facts mentioned in the order dated 21st March, 2001 passed by the Additional Collector are not correct. Apart from that it is very strange that the petitioner has approached learned Additional Collector by way of revision petition with specific contention that the land in question allotted to the petitioner forms part of a public way, but the learned Additional Collector has not at all taken into consideration the said contention of the petitioner and has dismissed the revision petition of the petitioner solely on the ground that the revision petition is preferred after a period of 13 years. 14. In my opinion, the approach to the learned Additional Collector is not correct. The Gram Panchayat had no jurisdiction to sell land which forms part of public way, as held by this Court in Devi's case (supra). The learned Collector should have conducted enquiry about the fact that whether the land allotted to the respondent No. 4 and 5 forms part of the public way or not. Without conducting any enquiry, dismissal of the revision petition filed by the petitioner is not justified. The learned Additional Collector has committed illegality in rejecting the revision petition without examining that whether the Gram Panchayat has any jurisdiction to sold the plot in question or not. It is settled proposition of law that if the resolution of a Gram Panchayat is against the public interest or the order passed by the authorities, is in clear violation of the Rules or the provisions of the Act then the question of limitation will not come in the way as held by the larger Bench of this Court in Chiman Lal's case (supra). 15. In view of above facts and circumstances, the writ petition filed by the petitioner is allowed and the impugned judgment dated 21st March, 2001 (Annex. 15. In view of above facts and circumstances, the writ petition filed by the petitioner is allowed and the impugned judgment dated 21st March, 2001 (Annex. 8) passed by the Additional District Collector, Hanumangarh is set aside and the matter is remitted to the Additional District Collector, Hanumangarh with a direction to decide the revision preferred by the petitioner afresh after conducting detail enquiry to the effect that whether the land sold to the respondents No. 4 and 5, vide resolution No. 3 dated 6.9.1986 (Annex. 5) forms part of the public way or not and while making such allotment the Gram Panchayat, Pakka Sarana has followed the procedure as envisaged under Rules of 1961. The learned Additional District Collector, Hanumangarh is further directed to decide the revision petition preferred by the petitioner expeditiously preferably within a period of 6 months from the receipt of certified copy of this order after providing sufficient opportunity of hearing to the parties concerned. No order as to costs.