GHEWAR CHAND S/O SOMRAJ v. STATE OF RAJASTHAN THROUGH SECRETARY TO GOVERNMENT
2017-08-11
VIJAY BISHNOI
body2017
DigiLaw.ai
JUDGMENT : VIJAY BISHNOI, J. 1. This writ petition is filed by the petitioners under Article 227 of the Constitution of India being aggrieved with the order dated 14.06.2017 (Annexure-1) passed by the District Collector, Barmer in a revision petition filed on behalf of respondent No.4 under section 97 of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994' hereinafter), whereby the District Collector has rejected the application filed on behalf of the petitioners with a prayer for dismissing the revision claiming that the District Collector has no jurisdiction to entertain the said revision. 2. Brief facts of the case are that respondent No.4 filed a revision petition under section 97 of the Act of 1994 challenging the validity of joint patta dated 25.11.2015 issued in favour of the petitioners by the Gram Panchayat, Sinali, Panchayat Samiti, Balotra, District Barmer. The petitioners moved an application before the District Collector in the said revision petition while contending that the joint patta issued in their favour by the Gram Panchayat on 25.11.2015 is duly registered under the provisions of Registration Act, 1908 before the Sub-Registrar, Jasol on 19.03.2016 and, therefore, as per the settled position of law, the District Collector has no jurisdiction to entertain the revision petition seeking cancellation of the patta in question. The District Collector, after hearing counsel for the parties has rejected the said application while relying on a decision of this Court dated 25.11.2016 rendered in Smt. Shanti Devi vs. The State of Rajasthan through District Collector, Barmer & Ors., S.B.Civil Writ No.8148/2012 and 7 other connected writ petitions. 3. Learned counsel for the petitioners has argued that the District Collector has grossly erred in rejecting the application filed by the petitioners while holding that though the patta has been registered under the Registration Act, yet a revision petition under section 97 of the Act of 1994 is maintainable questioning the patta in question. Learned counsel for the petitioners has placed reliance on the order dated 28.01.2013 passed by a Division Bench of this Court in D.B.Civil Special Appeal (W) No.1958/2011, Manohar Lal Vs. District Collector, Barmer & Ors. and argued that the Division Bench of this Court has clearly held that a sale-deed executed could have not been set aside by the Collector while exercising revisional powers. 4.
District Collector, Barmer & Ors. and argued that the Division Bench of this Court has clearly held that a sale-deed executed could have not been set aside by the Collector while exercising revisional powers. 4. It is argued that the District Collector has no jurisdiction to adjudicate a registered document and only the competent civil court can have the sole prerogative to decide it either way. 5. Learned counsel for the petitioners has also placed reliance on decisions of this Court rendered in Municipal Council, Pali Vs. State of Rajasthan & Ors., 2013 4 WLC(Raj) 551, Anukampa Avas Vikas Pvt. Ltd. (M/s.) & Anr. vs. State of Rajasthan & Anr., 2009 3 RajLW 2295 (Raj.), Ramchandra Vs. The District Collector, Hanumangarh & Ors.,2016 3 RJT 2059. He has also placed reliance on a decision of Hon'ble Supreme Court rendered in Satya Pal Anand Vs. State of Madhya Pradesh & Ors., 2016 10 SCC 767 . Heard learned counsel for the petitioners. 6. The question arose in this petition is whether validity of a patta, issued by a Gram Panchayat under the provisions of Panchayat Acts of State of Rajasthan or the Rules made thereunder can be questioned by way of revision petition under section 97 of the Act of 1994 even after its registration under the provisions of the Registration Act, 1908. 7. This Court in Smt. Shanti Devi's case has dealt with the issue and while relying on a decision of this Court rendered in Nagar Mal Vs. Addl. District Collector, Sikar & Ors., 2013 3 RajLW 2753 (Raj.) has held that when a patta is unlawfully issued, then there is no bar in questioning the same under section 97 of the Act of 1994, even though, the same has been registered. 8. In Nagar Mal Vs. Addl. District Collector, Sikar & Ors., a Coordinate Bench of this Court has held as under: "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 Section 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 consequences in law rendering the registration thereof ineffective and inconsequential." 9. In Mishrimal Lal vs. Additional Collector, Jalore, Civil Writ (CW) No.5206/2014 decided on 21.09.2016 along with one another writ petition, this Court while taking into consideration the decision passed by this Court in Ramchandra Vs. The District Collector, Hanumangarh & Ors. has held as under: "3. I have considered the submissions of the learned counsel and perused the material on record. 4. Section 97 of the Act of 1994, which deals with the power of revision and review by the State Government, reads as under: "Power of revision and review by Government.- (1) 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 be modified, annulled, reversed or remitted for reconsideration, it may pass order accordingly. Provided that the State Government shall not pass any order prejudicial to any party unless such party has a reasonable opportunity of being heard in the matter. (2) The State Government may stay the execution of any such decision or order prejudicial to any party, pending the exercise of its powers under sub-section (1) in respect thereof. (3) The State Government may, of its own motion or on an application received from any person interested, at any time within ninety days of the passing of an order under Sub-sec. (1), review any such order if it was passed by it under any mistake, whether of fact or of law or in ignorance of any material fact.
(3) The State Government may, of its own motion or on an application received from any person interested, at any time within ninety days of the passing of an order under Sub-sec. (1), review any such order if it was passed by it under any mistake, whether of fact or of law or in ignorance of any material fact. The provisions contained in the proviso to sub-sec.(1) and in Sec.(2) shall apply to a proceeding under this sub-section." 5. A bare perusal of Section 97 of 1994, makes it abundantly clear that the power of the State CIVIL WRIT (CW) No.5206 of 2014 & one connected matter Mishrimal Lal vs. Additional Collector, Jalore & Ors. 5 Government to examine the correctness, legality or propriety of any decision or order passed therein or as to regularity of such proceedings in exercise of the revisional jurisdiction is not circumscribed by any condition. The power of revision to be exercised by the State Government under Section 97 of the Act of 1994, is not restricted to a particular stage of the proceedings before the Panchayati Raj Institution either. To put in other words, it is not only a proposed action but even the concluded action of a Panchayati Raj Institution is subject to the revisional jurisdiction of the State Government. 6. In Ram Chandra's case , relied upon by the counsel for the petitioners, the action of the District Collector in cancelling the registered lease deed executed in favour of the petitioner therein in exercise of the power conferred under Section 300 of Rajasthan Municipalities Act, 1959 (for short "the Act of 1959") was under challenge. The learned Single CIVIL WRIT (CW) No.5206 of 2014 & one connected matter Mishrimal Lal vs. Additional Collector, Jalore & Ors. 6 Judge while relying upon a decision of this court in the matter of "Municipal Council, Pali vs. State of Rajasthan, 2013 4 RajLW 3341", proceeded to hold that the action of the District Collector in assuming the jurisdiction and cancelling the registered lease deed executed in favour of the petitioner therein is without jurisdiction.
6 Judge while relying upon a decision of this court in the matter of "Municipal Council, Pali vs. State of Rajasthan, 2013 4 RajLW 3341", proceeded to hold that the action of the District Collector in assuming the jurisdiction and cancelling the registered lease deed executed in favour of the petitioner therein is without jurisdiction. It is pertinent to note that in Municipal Council Pali's case , the action of the District Collector in cancelling the registered conveyance in exercise of the power under subsection (2) of Section 80 of the Act of 1959 was under challenge and the court held that under subsection (2) of Section 80, does not permit cancellation of registered conveyance deed. To appreciate the ratio of the decision in Municipal Council, Pali's case , it would be beneficial to refer to the provisions of sub-section (2) of Section 80 of the Act of 1959, which reads as under: "(2) (a) The State government or any office authorised by it in this behalf may, for the purpose of satisfying as to correctness, CIVIL WRIT (CW) No.5206 of 2014 & one connected matter Mishrimal Lal vs. Additional Collector, Jalore & Ors. 7 legality or propriety of any proposal to lease, sell or transfer any Government land made by or on behalf of a board or by any member, chairman, vice-chairman or officer of a board call for the relevant record, and may while doing so direct that pending the examination of the matter, the proposal to lease, sell or transfer of the Government land shall remain in abeyance and no action in furtherance thereof shall be taken till the decision of the State Government or of the authorised officer under subsection (2)(b). (b) If after examination of the record and after giving to the persons interested in such proposal, a reasonable opportunity of being heard, the State Government or the officer authorised as aforesaid, is satisfied that the proposal to lease, sell or transfer the Government land is not in accordance with or is in contravention of the provisions of this Act, it may by other published in the Official Gazette, modify, cancel or rescind wholly or in part the proposal made for lease, sale or transfer of the Government land or any action or proceeding taken in pursuance thereof or may give any other direction as may be deemed proper." 7.
A bare look at the provisions of sub-section (2) of Section 80 of the Act of 1959, makes it abundantly clear that under the said provision, the State Government is empowered to examine the correctness, legality or propriety of any proposal to CIVIL WRIT (CW) No.5206 of 2014 & one connected matter Mishrimal Lal vs. Additional Collector, Jalore & Ors. 8 lease, sale or transfer any government land made by Chairman, Vice Chairman or Officer of the Board or by any Member, Chairman, Vice Chairman or Officer of the Board and not the completed act. Once the proposal to lease, sell or transfer any government land is carried out and nothing more is required to be done pursuant thereto, the State Government is not empowered to revise the proposal exercising the power under sub-section (2) of Section 80 of the Act of 1959. As a matter of fact, a similar view is taken by this court while interpreting the provisions of Section 285 of the Act of 1959 as well in the matters of "Laxmi Chand vs. State of Rajasthan & Ors., 1978 WLN(UC) 271" and "Padma Devi vs. State of Rajasthan & Ors., 1992 1 WLN(Raj) 9". 8. But then, as noticed hereinabove, the provisions of Section 97 of the Act of 1994 are not pari materia to the provisions of sub-section (2) of Section 80 or Section 285 of the Act of 1959 and therefore, the CIVIL WRIT (CW) No.5206 of 2014 & one connected matter Mishrimal Lal vs. Additional Collector, Jalore & Ors. 9 contention of the learned counsel appearing for the petitioners that under Section 97 of the Act of 1994, the State Government is not empowered to examine the legality of the proceedings, decision or order of the Panchayati Raj Institution, after execution thereof, as in the instant case, by execution of the lease deed pursuant to the resolution adopted by the Gram Panchayat, cannot be countenanced by this court. 9. No other has been pressed by the learned counsel appearing for the petitioners. 10. In the result, the petitions fail, the same are hereby dismissed. No order as to costs." 10. So far as decision of this Court rendered in Municipal Council, Pali Vs. State of Rajasthan & Ors.
9. No other has been pressed by the learned counsel appearing for the petitioners. 10. In the result, the petitions fail, the same are hereby dismissed. No order as to costs." 10. So far as decision of this Court rendered in Municipal Council, Pali Vs. State of Rajasthan & Ors. is concerned, in paras 23 to 27, it has been held that the Collector may have powers to cancel the allotments, lease or sale, even beyond the proposal of the State, but he had no powers to quash the registered sale deed. However, a Division Bench of this Court in D.B.Civil Special Appeal No.485/2013 and 33 other connected matters has set aside the observations made by the learned Single Judge in paras No.23 to 27 in Municipal Council, Pali Vs. State of Rajasthan & Ors. while observing as under: "11. The Special Appeals are allowed only to the extent that the 7 observations made by the learned Single Judge in para 23 to 26 that the Collector may have powers to cancel the allotments, lease or sale, even beyond the proposal of the State, he had no powers to quash the registered sale deed, are set aside. The remaining part of the operative portion of the order of learned Single Judge in quashing the order of the District Collector and that of the Divisional Commissioner, Pali and directing the District Collector, Pali to decide the matter afresh, is maintained." 11. The case of Anukampa Avas Vikas Pvt. Ltd. (M/s.) & Anr. vs. State of Rajasthan & Anr. has no application in the present case as in that case, this Court has held that a party to the registry of sale has no right to cancel the same and the normal course open is to file a civil suit for cancellation of registered sale-deed. 12. Here in the present case, the issue involved is regarding the jurisdiction of the District Collector in questioning the allotment of land or issuance of patta while exercising powers under section 97 of the Act of 1994 after registration of the sale-deed in relation to the patta for the allotment of land. 13. The decision of the Hon'ble Supreme Court rendered in Satya Pal Anand Vs. State of Madhya Pradesh & Ors. is of no help to the petitioners as the said case deals with the power of registration authority of cancelling the registered document.
13. The decision of the Hon'ble Supreme Court rendered in Satya Pal Anand Vs. State of Madhya Pradesh & Ors. is of no help to the petitioners as the said case deals with the power of registration authority of cancelling the registered document. In that case, the Hon'ble Supreme Court has held that the registration authority cannot cancel a registered document at the instance of one party to the registered document until and unless it is specifically provided under the relevant law. 14. As stated earlier, in the case in hand, the controversy is regarding the power of the District Collector in questioning a patta or allotment of land by a Gram Panchayat after its registration. 15. The law laid down by this Court in the judgments rendered in Smt. Shanti Devi's case, Nagar Mal's case and Mishrimal Lal's case is perfectly in consonance with the law laid down by a Constitutional Bench of Hon'ble Supreme Court in Mithoo Sahani & Ors. vs. The Union of India & Ors., 1964 AIR(SC) 1536. 16. If we trace the history of Mithoo Sahani's case , it appears that a Division Bench of this Court in Govind Ram vs. Regional Settlement Commissioner Rajasthan, Jaipur & Ors., 1960 AIR(Raj) 177 has held as under: "We are also of the opinion that even if the allotment was liable to be cancelled, it could not be cancelled after the property had been transferred by a formal deed of conveyance, except under the condition mentioned in the deed.... We are definitely of the opinion that respondent No. 2 had no jurisdiction to cancel the transfer made in favour of the petitioner and his order is wholly without jurisdiction. It has thus to be treated as a nullity and has to be ignored." Later on, the decision rendered in Govind Ram's case was referred to the Full Bench for reconsideration and the Full Bench of this Court in Partumal & Anr. vs. Managing Officer, Jaipur & Ors., 1962 AIR(Raj) 112 has affirmed the view expressed by the Division Bench of this Court in Govind Ram's case .
vs. Managing Officer, Jaipur & Ors., 1962 AIR(Raj) 112 has affirmed the view expressed by the Division Bench of this Court in Govind Ram's case . The relevant portion of decision rendered in Partumal's case reads as under: "The allotment of property, no doubt can be cancelled in revision under Section 24 of the Act; but after a sale takes place, it cannot be disturbed by setting aside the order of allotment The sale cannot be held to be only a formal expression of the order of allotment. Title to property is created by the sale and the vendee thereby acquires interest in the property. It would be too much to read in Section 24 of the Act to hold that it extends to cancellation of sales by expressly providing for cancellation of allotments. We are unable to regard execution of a sale deed as only a formal expression of an order of allotment dependent on its subsistence." However, the Constitutional Bench of the Hon'ble Supreme Court in Mithoo Sahani's case has considered the judgment rendered in Partumal's case and disapproved the same while observing as under: "(9) The next point that was urged was that the appellant had been granted sanads on January 12, 1956 and that their sanads could not be cancelled and the title acquired thereunder displaced except in accordance with the terms of the sanads. The term of the sanad which is relevant and which was referred to as the sole ground on which it could be set aside and the title of the appellants displaced reads: "It shall be lawful for the President to resume the whole or any part of the said property if the Central Government is, at any time, satisfied and records a decision in writing to that effect (the decision of the Central Government in this behalf 110 being final) that the transferee or his predecessor in-interest had obtained or obtains any other compensation in any form whatsoever under the said Act by fraud or misrepresentation." It is not disputed that this condition has not been fulfilled but the question, however, is whether when the order of allotment on the basis of which the property was granted to the appellant and the sanad issued, is itself reversed or set aside can the sanad and the title obtained thereunder survive?
On this point there are two decisions to which our attention was invited-the first is a decision of the High Court of Rajasthan in Partumal v. Managing Officer, Jaipur, 1962 AIR(Raj) 112 (FB) being a decision of a Full Bench of that Court. That case was concerned with the construction of S. 24 of the Act which deals with the power of the Chief Settlement Commissioner to revise orders passed by a Settlement Officer, Assistant Settlement Officer, Assistant Settlement Commissioner, Additional Settlement Commissioner etc. The relevant part of the head-note brings out the point of the decision. It reads: "Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, no doubt confers very wide powers of revision on the Chief Settlement Commissioner, but it does not authorise cancellation of sales after they are completed. No doubt, allotments can be set aside under S. 24 of the Act, but after such allotments ripen into sales, they cannot be cancelled. The Chief Settlement Commissioner or the Settlement Commissioner exercising his power has no authority to cancel sale of property and an order of cancellation of sale of property is without jurisdiction and invalid. It would be too much to read in S. 24 of the Act to hold that it extends to cancellation of sales by expressly providing for cancellation of allotments. The execution of a sale deed cannot be regarded as only a formal expression of an order of allotment dependent on its subsistence." Subsequent to this decision a case arose before the High Court of Punjab: Balwant Kaur v. Chief Settlement Commissioner (Lands)., 1964 AIR(P&H) 33 and a Full Bench of that Court by a majority dissented from this view and held that where an order making an allotment was set aside the title which was obtained on the basis of the continuance of that order also fell with it. We are clearly of the opinion that the judgment of the Punjab High Court is correct. The relevant provisions of the Act and the Rules have all been set out in the decision of the Punjab High Court and we do not consider it necessary to refer to them in any detail. It is sufficient to say that they do not contain any provision which militates against the position which is consistent with principle and logic.
The relevant provisions of the Act and the Rules have all been set out in the decision of the Punjab High Court and we do not consider it necessary to refer to them in any detail. It is sufficient to say that they do not contain any provision which militates against the position which is consistent with principle and logic. It is manifest that a sanad can be lawfully issued only on the basis of a valid order of allotment. If an order of allotment which is the basis upon which a grant is made is set aside it would follow, and the conclusion is inescapable that the grant cannot survive, because in order that that grant should be valid it should have been effected by a competent officer under a valid order." 17. So as per the law laid down by the Constitutional Bench of the Hon'ble Supreme Court, it is settled that if an order of allotment or a patta, which is the basis of the registered document found to be illegal, the registration of the said document will not come in the way. It is settled that if the validity of a patta or order of allotment issued by any local authority is questioned by way of revision, the registration of the said patta or document of allotment will not be treated as a bar in adjudicating upon the validity of the same. 18. It appears that the law laid down by the Hon'ble Supreme Court in Mithoo Sahani's case has not been brought into the notice of the Division Bench of this Court while deciding the D.B.Civil Special Appeal (W) No.1958/2011, Manohar Lal Vs. District Collector, Barmer & Ors. This Court in Nagar Mal Vs. Addl. District Collector, Sikar & Ors. has rightly held that registration of a patta is only a consequential event and when the pattas are found to have been issued contrary to the obtaining rules, the mere registration thereof cannot be treated as a safe harbour. The cancellation of said patta by the competent authority will also thus entail would follow consequences in law rendering the registration thereof ineffective and inconsequential 19. In view of the above discussions, I do not find any illegality in the impugned order passed by the District Collector, Barmer. Hence, there is no force in this writ petition and the same is hereby dismissed in limine. 20.
In view of the above discussions, I do not find any illegality in the impugned order passed by the District Collector, Barmer. Hence, there is no force in this writ petition and the same is hereby dismissed in limine. 20. Stay petition also stands dismissed.