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2015 DIGILAW 526 (RAJ)

Looni Devi v. State of Rajasthan

2015-02-26

SANGEET LODHA

body2015
Hon'ble LODHA, J.—These writ petitions are directed against order dated 11.3.08 passed by the District Collector, Barmer, whereby while allowing the revision petitions preferred by the Panchayat Extension Officer, Sheo, the pattas issued in favour of the petitioners herein by the Gram Panchayat, Sheo, stand cancelled. 2. By the order impugned, besides the eleven pattas, which are subject matter of present writ petitions, three more pattas issued inter alia in favour of the family members of the petitioners stand cancelled. The details of the eleven pattas cancelled, which are subject matter of the present petitions, may be summarised thus:- S. No. Revision No. Patta issued in favour of Patta No. & Date of issuance of patta Area of the plot (Sq. ft.) 1 48/06 Madan Lal Khatri s/o Bhanwar Lal Khatri 28.12.99 900 2 49/06 Madan Lal Khatri s/o Bhanwar Lal Khatri 14.7.98 283.5 3 50/06 Jethi D/o Bhanwar Lal Khatri 13.8.99 4 51/06 Sawariya Ram s/o Bhanwar Lal 30.9.96 1350 5 52/06 Sawariya Lal s/o Bhanwar Lal 28.12.99 290 6 53/06 Looni Devi w/o Bhanwar Lal 30.10.96 1350 7 54/06 Looni Devi w/o Bhanwar Lal 28.12.99 4329 8 55/06 Kaushalya D/o Madan Lal 29.11.99 7612.5 9 56/06 Kaushalya D/o Madan Lal 29.11.99 800 10 57/06 Pushpa Devi w/o Madan Lal 18.12.99 4000 11 58/06 Pushpa Devi w/o Madan Lal 14.7.99 891 3. It is to be noticed that out of fourteen pattas cancelled by the order impugned, the Sarpanch of Gram Panchayat-Smt. Pushpa Devi has issued two pattas in her own name, three in favour of her husband Madan Lal, two in favour of her daughter Smt. Kaushalya, two in favour of her mother in law Smt. Luni Devi, one each in favour of her sister-in-law Ms. Dhai and Ms. Jethi and two in favour of her brother in law (husband's brother) Sawaria. Thus, apparently, the pattas in question have been issued by the Sarpanch of the Gram Panchayat in favour of herself and her family members. 4. After due consideration of the rival submissions, the revisional authority arrived at the finding that in the applications preferred by the applicants, inter alia the petitioners herein, no details were set out as to since when they are in possession of the land and whether any construction is raised thereon or not. No details regarding the affixation of the notice inviting objection are available on record. No details regarding the affixation of the notice inviting objection are available on record. The proceedings were taken under the Rajasthan Panchayat (General) Rules, 1961 (“the Rules of 1961”), which already stood repealed. The revisional authority observed that even in the report submitted by the Committee, it is not mentioned as to since when the petitioners herein are in possession of the land. The revisional authority found that the meeting of the Panchayat was presided over by the Sarpanch Smt. Pushpa Devi, wherein it was resolved to issue pattas in her own favour and in favour of her family members. The revisional authority observed that in terms of Rule 156 of the Rajasthan Panchayati Raj Rules, 1996 (“the Rules of 1996”), the Abadi land could be sold by the Gram Panchayat only when the claim of the applicant regarding the title over the disputed land is plausible and an auction may not fetch reasonable price, however, no resolution in this regard was adopted. The revisional authority found that pattas have been issued under Rule 266 of the Rules, which already stood repealed and substituted by the Rules of 1996. 5. Learned counsel for the petitioners contended that the pattas have been issued in favour of the petitioners inasmuch as, they were in possession of the lands in question since long. It is submitted that on the applications preferred by the petitioners, Gram Panchayat constituted a committee of three Ward Panchas for site inspection, which after inspection, submitted the site inspection report. It is submitted that since no objections were received pursuant to the notice inviting objection, the Gram Panchayat in its meeting resolved to issue pattas in favour of the petitioners levying appropriate charges. Learned counsel submitted that from bare perusal of the documents placed on record, it is manifestly clear that before issuing the pattas, the pro-cedure laid down under the Rules was duly followed by the Gram Panchayat. Learned counsel submitted that it is true that pattas have been issued in the old format under the Rules of 1961, but on that account, the pattas issued cannot be held to be illegal. Learned counsel submitted that it is true that pattas have been issued in the old format under the Rules of 1961, but on that account, the pattas issued cannot be held to be illegal. Learned counsel submitted that the revision petitions preferred by the private respondents after a lapse of about 7 years from the date of grant of pattas in favour of the petitioners without there being any plausible explanation for the delay were liable to be rejected only on this count alone. Learned counsel submitted that merely because, the pattas have been issued by the Sarpanch in her own favour and in favour of her family members, the same cannot be held to be illegal. In support of the contention, learned counsel relied upon a decision of this court in the matter of 'Mukna Ram & Anr. vs. The Collector, Bikaner & Ors.', 2005(2) RDD 250 (Raj.). 6. On the other hand, the counsel appearing for the respondents submitted that admittedly, while issuing pattas in favour of the petitioners, the procedure laid down under the Rules of 1996 has not been followed. Learned counsel submitted that Sarpanch of the Gram Panchayat-Smt. Pushpa Devi besides issuing the pattas in her own favour, so as to extend undue benefits, has issued number of pattas in favour of her own family members. It is submitted that patta of more than one plot has been issued in favour of the petitioners by charging meagre price varying from Rs.200/- to Rs.750/-, which is not permissible under the Rules. Learned counsel submitted that without there being any finding regarding existence of the circumstances envisaged under Rule 156 of the Rules of 1996, the land could not have been disposed of by the Gram Panchayat by way of private negotiation. Learned counsel submitted that in absence of a categorical finding that the petitioners were in long possession of the plot and they had constructed the houses thereon, the provisions of Rule 157 of the Rules of 1996 also could not have been invoked. Learned counsel submitted that viewed from any angle, the order impugned passed by the revisional authority cancelling the pattas issued in favour of the petitioners de hors the Rules, cannot be faulted with. 7. I have considered the rival submissions and perused the material on record. 8. Learned counsel submitted that viewed from any angle, the order impugned passed by the revisional authority cancelling the pattas issued in favour of the petitioners de hors the Rules, cannot be faulted with. 7. I have considered the rival submissions and perused the material on record. 8. Indisputably, the disposal of the Abadi land in the panchayat area is governed by the procedure laid down under the Rules of 1996. As per the provision of Rule 145 a person desirous of purchasing an Abadi land from panchayat shall make an application in writing to the panchayat giving such description thereof as may be sufficient to identify the land proposed to be purchased. On the application being received the same is required to be registered by the Secretary, Gram Panchayat in the register maintained for the purpose in terms of Rule 146 of the Rules of 1996. Thereafter, the panchayat is required to inspect the site and submit the report taking into consideration various aspects enumerated by Rule 146 (3) of the Rules. Thereafter, a provisional decision whether the proposed sale should or should not be made is required to be taken in the meeting of the Gram Panchayat. Further, if the panchayat provisionally decides that the sale should be made, it shall publish a notice in the form prescribed inviting objection to the proposed sale within one month from the date of the publication in the manner laid down in sub-rule (2) of Rule 148 of the Rules and after disposal of the objections, if any, received, the panchayat may by resolution order the auction of the land proposed to be sold on the date not earlier than one month from the date of resolution at the time and place specified. The auction committee is required to be constituted as per Rule 151 of the Rules. Rule 152 of the Rules mandates that it shall be the duty of the auction committee to ensure that there is free and fair competition among the bidders. The transfer of Abadi land by private negotiation is permissible only in the circumstances enumerated under Rule 156 of the Rules. 9. Rule 152 of the Rules mandates that it shall be the duty of the auction committee to ensure that there is free and fair competition among the bidders. The transfer of Abadi land by private negotiation is permissible only in the circumstances enumerated under Rule 156 of the Rules. 9. Admittedly, in the instant case, the pattas have been issued in favour of the petitioners of the Abadi land on the strength of their alleged old possession after coming into force of the Rules of 1996 and therefore, the Gram Panchayat could not have considered the applications of the petitioners for transfer of the Abadi land invoking the provisions of the Rules of 1961. Be that as it may, the transfer of the land by private negotiation under the Rules of 1961, was governed by the provisions of Rule 266, whereas under the Rules of 1996, as noticed hereinabove, the same is dealt with under the provisions of Rule 156. Both the provisions relevant for the adjudication of the controversy involved in the present writ petitions may be beneficially quoted:- Rules of 1961 “Rule 266. Transfer of abadi land by private negotiation.-(1) The Panchayat may transfer any abadi land by way of sale by private negotiation in the following cases:- (a) Where any person has a plausible claim of title to the land and as auction may not fetch reasonable price; (b) where for reasons to be recorded in writing the Panchayat thinks that an auction would not be a convenient mode of disposal of the land; (c) where such course is regarded by the Panchayat necessary for the advancement of Scheduled castes and Scheduled tribes or other backward classes. (d) where the persons are in possession of the abadi land for 20 years or more but less than 42 years, one-third of the prevailing market price and in case of possession of over 40 years, one sixth of the prevailing market-price shall be charged. (2) The Panchayat may, by resolution, transfer by way of sale without charging any price therefor, any abadi land of which the probable value does not excess Rs.200/- in favour of any institution for a public purpose.” Rules of 1996 “Rule 156. (2) The Panchayat may, by resolution, transfer by way of sale without charging any price therefor, any abadi land of which the probable value does not excess Rs.200/- in favour of any institution for a public purpose.” Rules of 1996 “Rule 156. Transfer of Abadi land by private negotiation.-(1) The Panchayat may transfer any Abadi land by way of sale by private negotiation in the following cases:- (a) Where any person has a plausible claim of title to the land and an auction may not fetch reasonable price; (b) Where there is a trespass or for any other reason to be recorded in writing, Panchayat thinks that an auction would not be convenient mode of disposal of the land; (c) Where it is strip of land as per Sub-rules(1) and (2) of Rule 144 and there is only one applicant. (2) In no case such Abadi land, shall be transferred on a rate below index price fixed by Sub-Registrar and conveyed by Vikas Adhikari as prevailing market price for the village. (3) Such market price in a bazaar or commercial area shall not be less than double the price fixed for residential areas.” 10. A bare perusal of the provisions of Rule 266 of the Rules of 1961 and Rule 156 of the Rules of 1996, makes it abundantly clear that for invoking the power conferred on Panchayat for transfer of Abadi land by private negotiation, there are two conditions precedent; firstly, the person asking for the sale of land by private negotiation must have plausible claim of title to the land and secondly, the Panchayat must come to a definite conclusion that the land claimed to be sold by private negotiation may not fetch reasonable price if the same is put to auction. It goes without saying that a plausible claim of title to the land pre supposes the existence of some material on record to show that the person asking for the patta has acquired a reasonable claim of title under the law though he may not be in position to establish his clear title. Further, the proceedings must reflect that having considered the matter in its entirety and objectivity the Panchayat was satisfied that if the land sought to be sold by private negotiation is put to auction, the same may not fetch reasonable price. 11. Further, the proceedings must reflect that having considered the matter in its entirety and objectivity the Panchayat was satisfied that if the land sought to be sold by private negotiation is put to auction, the same may not fetch reasonable price. 11. A bare perusal of the proceedings alleged to have been taken by the Gram Panchayat placed on record reveals that no such exercise was at all undertaken by the Gram Panchayat while issuing the pattas of the Abadi land in question in favour of the petitioners. As noticed by the revisional authority, the applications submitted by the petitioners do not disclose as to since when they are in possession of the lands. Thus, in absence of any material on record about the long possession of the petitioners over the lands in question so as to give rise to plausible claim of title, the decision taken by the Panchayat to straight away issue pattas in favour of the petitioners presuming the plausible claim of title of the petitioners, is ex facie contrary to the provisions of the relevant Rules. It is also relevant to mention here that merely because, a notice was issued and no objections were received, it cannot lead to a conclusion that the petitioners' old possession over the lands in dispute stand established. It is the duty of the Panchayat to come to the definite conclusion on the basis of the material on record that the applicants claiming the sale of the Abadi land by private negotiation have plausible claim of title to the land. That apart, a perusal of the proceedings placed on record reveals that nowhere the Panchayat has recorded its satisfaction that the auction may not fetch reasonable price. 12. As per provisions of Rule 266(1)(d), where the person in possession of the Abadi land for 20 years or more but less than 42 years, 1/3rd of the prevailing market price and in case of possession of over 40 years, 1/6th of prevailing market price shall be charged. It is significant to note that as per Rule 156(2) of the Rules of 1996, now the Panchayat is not empowered to transfer Abadi land by private negotiation on a rate below index price fixed by Sub Registrar and conveyed by Vikas Adhikaris as prevailing market price of the village. It is significant to note that as per Rule 156(2) of the Rules of 1996, now the Panchayat is not empowered to transfer Abadi land by private negotiation on a rate below index price fixed by Sub Registrar and conveyed by Vikas Adhikaris as prevailing market price of the village. Suffice it to say that before transferring the land by private negotiation and issuing pattas, the Gram Panchayat was under an obligation to ascertain the prevailing market price so as to determine the amount to be charged from the applicants against the transfer of the Abadi land in terms of Rule 266 of the Rules of 1961 or the Rule 156 of the Rules of 1996, as the case may be. It is apparent on the face of record that no such exercise was ever taken by the Gram Panahayat and the huge land has been transferred in favour of the petitioners, members of one family, in just a throw away price varying from Rs.200/- to Rs.750/- only. 13. There is yet another aspect of the matter which requires serious consideration of this court. In the instant cases, the Sarpanch of the Gram Panchayat-Smt. Pushpa Devi, a public representative, has transferred the huge land in her own favour and in favour of her family members, dehors the Rules, on just throw away price. Thus, it is a glaring case of grabbing the public land by a public representative with encouragement and support of other office bearers of the local authority. As a matter of fact, lack of transparency and check & balances in transferring the public property by private negotiation is creating a breeding ground for corruption and therefore, it is high time that same are viewed seriously and stern actions are taken against the unscrupulous persons who are operating individually or in groups to grab the public land. 14. Coming to the contention of the learned counsel that the petitions filed for assailing the pattas issued after unexplained delay of 7 years should have been dismissed on this count alone, suffice it to say that the allotment of the land belonging to local authority or Government obtained without any lawful entitlement by playing fraud is void and no limitation should come in the way of the authority competent to cancel such allotments. 15. 15. Thus, viewed from any angle, this court is firmly of the opinion that the order impugned passed by the revisional authority is just and proper and does not warrant any interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India which is always exercise for the sake of justice. 16. In the result, the writ petitions fail, the same are hereby dismissed. No order as to costs.