Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 747 (RAJ)

Usha v. State of Rajasthan

2018-03-13

SANDEEP MEHTA

body2018
JUDGMENT AND ORDER : Sandeep Mehta, J. Heard learned counsel for the parties and perused the material available on record. 2. The instant bunch of writ petitions involves common questions of law and facts and is thus being decided together by this common order. 3. These writ petitions are directed against the orders dated 30.03.2007 and 17.05.2012 passed by the revisional authority whereby, the revisions preferred by the private respondents herein under Section 97 of the Rajasthan Panchayati Raj Act were accepted and the pattas of the lands issued to the petitioners herein/their predecessors in title by the Gram Panchayat, Borunda in the year 1970 were quashed. 4. Facts in brief are that Chandi Dan (petitioner in SBCWP No.260/2013) was Sarpanch of the Gram Panchayat Borunda at the relevant point of time i.e. in the year 1970. He perpetrated an exercise of issuance of pattas of huge chunks of abadi lands measuring in excess of 18000 sq. ft. to himself and his relatives as per the following description:- Sr.No. Writ No. Name of Petitioner (Subsequent transferee) Name of Patta Holder Size of Plot in Sq. Ft. Cost deposited 1. 10962/2012 Smt. Usha (daughter of Chandi Dan) Sawai Singh (Father of Smt. Usha & Brother of Chandi Dan) 19966 Rs.200 2. 11176/2012 Smt. Padamlata (daughter of Chandi Dan) Rajendra Singh (Nephew of Chandi Dan) 20075 Rs.100 3. 259/2013 Smt. Kiran (daughter of Chandi Dan) Inder Singh (Brother of Chandi Dan) 19966 Rs.200 4. 260/2013 Chandi Dan (The then Sarpanch) Chandi Dan (Himself) 18750 Rs.165 5. Learned counsel for the petitioners vehemently urged that the impugned orders are bad in the eye of law. The revisions were filed after gross and unexplained delay and thus, should not have been entertained. They further urged that the price of the plots at the relevant point of time was not even close to what was paid by the petitioners/their predecessors in title for the pattas in question. That the pattas were validly issued after adopting the lawful procedure as provided in Rule 266 of the Panchayati Raj (General) Rules, 1961. That the revisions were filed after delay of nearly 36 years from the date of issuance of pattas and that the impugned action could only have been challenged by filing an appeal before the Panchayat Samiti and thus the revisions were not maintainable. That the revisions were filed after delay of nearly 36 years from the date of issuance of pattas and that the impugned action could only have been challenged by filing an appeal before the Panchayat Samiti and thus the revisions were not maintainable. They thus implored the Court to accept the writ petitions and uphold the pattas issued to the petitioners/their predecessors in title while quashing the impugned orders. 6. Per contra, learned counsel for the respondents have placed reliance on the Full Bench Judgment in the case of Chiman Lal vs. State of Rajasthan & Ors., (2000) 2 RajLW 911 wherein, it was propounded that no period of limitation is provided for exercise of powers of revision by the competent authority under the Rajasthan Panchayati Raj Act and that the revisional powers must be exercised within reasonable time which will depend upon the facts and circumstances of each case. They urged that the disputed pattas were issued without recording even a semblance of proceeding as mandatorily required by Rule 266(1) of the Rules of the Panchayati Raj (General) Rules, 1961. The applicants were the Sarpanch Chandidan and his close relatives and thus, it is clearly a case of nepotism and favouritism being exercised by the elected public representative who indulged in land grabbing of the highest order. That though Chandidan was the Sarpanch of the village, the pattas of lands in question bear the signatures of one Bakhta Ram and thus, manifestly, the pattas are void in the eye of law because the same were issued under the signatures of a person not having any authority in law. On these grounds, they implored the Court to dismiss the writ petitions and uphold the impugned orders. 7. I have given my though consideration to the arguments advanced at bar and have gone through the material available on record. 8. Admittedly, the Sarpanch of the Gram Panchayat Borunda, at the relevant point of time, was Chandidan; however, the disputed pattas bear the signatures of one Bakhta Ram as the Sarpanch. 9. Admittedly, Bakhta Ram had no locus to issue the pattas. All the pattas were allegedly issued on 23.08.1970 in furtherance of the proceedings purportedly undertaken in the Gram Panchayat by way of private negotiation under Rule 266(1) of the Panchayati Raj (General) Rules, 1961 which reads as below : "266. 9. Admittedly, Bakhta Ram had no locus to issue the pattas. All the pattas were allegedly issued on 23.08.1970 in furtherance of the proceedings purportedly undertaken in the Gram Panchayat by way of private negotiation under Rule 266(1) of the Panchayati Raj (General) Rules, 1961 which reads as below : "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 an 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." 10. The provision clearly requires that before issuing patta of a piece of land through private negotiation, it is mandatory for the Panchayat to record a satisfaction regarding the concerned person having a plausible claim over such land and that auction is not a convenient mode of disposal of the land and would not fetch a reasonable price. As mentioned in the table, the pattas were given away at throw away prices ranging from Rs.165/- to Rs.200/-. The petitioners have not claimed that the pattas were issued after recording reasons/satisfaction as mandated by sub-clauses (a), (b) and (d) of Rule 266(1) of the Rules of 1961. 11. Be that as it may. The private respondents complainants filed separate revisions in the Court of District Magistrate, Jodhpur for challenging the pattas issued to the petitioners/ their predecessors in title herein which were transferred to the court of the Additional District Magistrate (Land Conversion), Jodhpur. These revisions were accepted vide orders dated 30.03.2007 and 17.05.2012 which are assailed in these writ petitions. The private respondents complainants filed separate revisions in the Court of District Magistrate, Jodhpur for challenging the pattas issued to the petitioners/ their predecessors in title herein which were transferred to the court of the Additional District Magistrate (Land Conversion), Jodhpur. These revisions were accepted vide orders dated 30.03.2007 and 17.05.2012 which are assailed in these writ petitions. On a perusal of the impugned orders passed by the learned Additional District Magistrate, it is manifest that the disputed pattas were procured fraudulently by the Sarpanch Chandi Dan for himself and his close relatives through a sheer conspiratorial design in furtherance whereof, huge chunks of abadi lands were alienated and usurped without inviting any objections; without making any site inspection; without recording satisfaction that the claimants had long possession/plausible claim over the plots and without recording that auction would not fetch a reasonable price. The revisional court, also recorded a finding in the impugned orders that sale deeds were executed/pattas were issued on 23.08.1970 whereas, the receipts of deposition of the consideration amount were generated in February, 1971. The revisional court further observed; and rightly so in the opinion of this Court that as the money was deposited in February, 1971, the pattas could not have been issued anteriorly i.e. on 23.08.1970. The revisional court also observed that the pattas were signed by one Bakhta Ram in the capacity of Sarpanch, however, indisputably, Sarpanch of the village, at the relevant point of time, was none other than Chandidan. Thus, the pattas were issued by a person having no authority in law. Manifestly, the entire exercise of issuance of pattas was fraudulent; suffers from nepotism and was undertaken in flagrant disregard to the relevant provisions of law. It is clearly a case of a democratically elected public representative misusing his office and indulging in grabbing valuable public land for himself and his close relatives in the garb of a totally fictitious exercise under Rule 266 of the Rules of 1961. 12. Similarly placed patta holder Lal Singh (brother of Chandi Dan) who was allotted two plots, challenged identical orders passed by the learned revisional authority by filing writ petitions (SBCWP No. 992/2008 and 980/2008). 12. Similarly placed patta holder Lal Singh (brother of Chandi Dan) who was allotted two plots, challenged identical orders passed by the learned revisional authority by filing writ petitions (SBCWP No. 992/2008 and 980/2008). Lal Singh's counsel, when faced with these difficult and insurmountable queries, candidly conceded, after receiving instructions from his client that he may be allowed to withdraw the writ petitions and the petitioner be given liberty to purchase the land in open auction. Thereupon, those writ petitions have been dismissed with certain observations. 13. In the case of Looni Devi, the patta holders had available with them, semblance of proceedings undertaken by the Panchayat in reference to Rule 266. However, in the present bunch of cases, the petitioners miserably failed to place on record even a semblance of evidence to prima facie show that the pattas of the disputed chunks of land were lawfully issued to them/their predecessors in title. Manifestly and as reflected from the impugned order and the pleadings of the parties, none of the petitioners/original patta holders had any right as per Rule 266 of the Rules of 1961 to stake any claim whatsoever on the huge chunks of abadi land in question. Manifestly, Chandi Dan, the Sarpanch blatantly misused the powers of the post entrusted upon him through a democratic process and procured fraudulent pattas of valuable public land for himself and his relatives at throw away prices dehors the rules and in this manner, grabbed invaluable public land by corrupt means. In all the cases, the consideration amount was deposited in the month of February, 1971 but surprisingly enough, the questioned pattas allegedly issued on 23.08.1970 bear the endorsement of the receipts. Thus, manifestly, the pattas are forged. During pendency of the proceedings, some of the plots were allegedly transferred by the respective patta holders as mentioned in the chart above. 14. However, on going through the orders passed by the revisional authority, manifestly, no plea regarding the so-called transfers was raised before the revisional authority. The pattas even do not bear the signatures of the Sarpanch of the village and Bakhta Ram, who issued the same, had no position or authority in the Panchayat so as to authorise him to issue the pattas in question. The pattas even do not bear the signatures of the Sarpanch of the village and Bakhta Ram, who issued the same, had no position or authority in the Panchayat so as to authorise him to issue the pattas in question. Thus, manifestly, the disputed pattas, which were issued under his signatures, are apart from being forged are also void as the same were issued by a person having no authority in the Panchayat whatsoever. Thus, such bogus pattas were rightly quashed by the revisional authority. 15. In my firm opinion, the controversy involved in the case at hand is squarely covered by the ratio of the Single Bench Judgment of this Court in the case of Looni Devi vs. State of Rajasthan & Ors., (2015) 2 RajLW 1431 (Raj.), wherein, this Court considered almost an identical controversy and held as below:- "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. 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 herein above, 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, 1/3 rd 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". 16. 16. In view of the discussion made herein above and keeping in view the law as laid down by the Full Bench in the case of Chiman Lal and the learned Single Bench in the case of Looni Devi, this Court is least convinced that the bogey of delay or jurisdiction could have come in the way of the revisional court while entertaining the challenge laid to the disputed pattas which were issued in a totally fraudulent, corrupt and illegal manner and in flagrant disregard to the rules. The revisional court, objectively and after just and thorough appreciation of facts available on record, reached to the only possible and logical conclusion that the pattas in question were procured by the petitioner Chandi Dan for himself and his family members dehors the statutory provisions and with the sole intention of grabbing invaluable public land at ridiculously throw away prices. The entire exercise smacks of fraud, forgery, nepotism and favouritism. The factual situation of the case at hand is squarely covered by the judgment in the case of Looni Devi. 17. Finding no shortcoming, illegality or arbitrariness in the impugned orders, I am not inclined to interfere therein while exercising extraordinary writ jurisdiction of this Court. Hence, the writ petitions are dismissed as being of merit. The District Collector, Jodhpur is directed to ensure that the possession of the lands in question is forthwith recovered and entrusted to the Panchayat concerned. The competent authority shall be at liberty to auction the plots in question as per currently prevalent statutory provisions. 18. The report regarding restoration of possession shall be submitted for this Court's perusal on 23.05.2018. A copy of this order be placed in each file.