Held that revisional court was correct in cancelling pattas issued without following mandatory rules. Delay not a bar due to violation of rules. Direct revision maintainable without prior appeal. Writ petitions dismissed.
Writ petitions dismissed; petitioners allowed to apply afresh for pattas in future following proper procedure.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 612 / 2017
Versus
----Respondents
CONNECTED WITH
S.B. Civil Writ Petition No. 597 / 2017
(2 of 16)
[CW-612/2017]
----Petitioners
S.B. Civil Writ Petition No. 598 / 2017
(3 of 16)
CW-612/2017]
Ram, Aged About 12 Years, R/o Aalpura, Tehsilgudamalani, District-barmer.
----Petitioners
Versus
(4 of 16)
[CW-612/2017]
_____________________________________________________ For Petitioners : Mr. R.S. Choudhary For Respondents : Mr. Manish Patel, AGC Mr. Sunil Beniwal
HON'BLE MR. JUSTICE VIJAY BISHNOI
Order
19/12/2017 These writ petitions have been filed on behalf of the petitioners being aggrieved with the orders dated 22.11.2016 passed by the District Collector, Barmer (hereinafter to be referred as ‘the revisional court’) in Revision Petition Nos.12/2014, 13/2014, 14/2014 and 15/2014 filed on behalf of the private respondents under Section 27-A of Rajasthan Panchayat Act, 1953 read with Section 97 of Rajasthan Panchyati Raj Act, 1994 (hereinafter to be referred as ‘the Act of 1994’), whereby the revisional court has cancelled the residential Patta Nos.14, 15, 16 and 17 (hereinafter to be referred as ‘the pattas in question’) dated 05.03.1979 issued by Gram Panchyat Banta, Panchayat Samiti Dhorimanna, District Barmer (hereinafter to be referred as ‘the Gram Panchayat Banta’).
The private respondents had filed those revision petitions with the allegations that the pattas in question were issued without following the procedure laid down under the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 (hereinafter to be referred as ‘the Rules of 1961’), which were in force at that relevant time, for the purpose of disposal of abadi
(5 of 16)
[CW-612/2017]
land. It was alleged that the pattas in question were issued without making entries in the record.
After registration of those revision petitions, the revisional court issued notices to the petitioners and also called for record of Gram Panchyat Banta. The Gram Panchayat Banta vide its letter dated 27.06.2015 informed the revisional court that no such pattas were issued by the Gram Panchayat Banta and the concerned files of the said pattas in question were also not available in the record of the Gram Panchayat Banta.
The petitioners had contested the revision petitions before the revisoinal court while claiming that the pattas in question were issued by the Gram Panchayat Banta after following the due process of law. It was also contended by the petitioners before the revisional court that the Gram Panchayat Banta had issued the pattas in question through private negotiations as the land in question was in possession of those persons, in favour of whom pattas in question were issued, from very long time. It was also contended that as a matter of fact the record in respect of the pattas in question was destroyed in flood and, therefore, the same could not be produced by the Gram Panchayat Banta and only on the ground that the record is not available, the pattas in question cannot be cancelled.
It was also claimed on behalf of the petitioners before the revisional court that the land, for which the pattas in question were issued, is still in the possession of the petitioners and looking to this fact also the pattas in question cannot be cancelled.
(6 of 16)
[CW-612/2017]
Specific objection regarding delay of around 36 years in filing those revision petitions had also been raised by the petitioners.
The revisional court, after hearing counsel for the parties, has held that there is no limitation provided under the law for challenging the validity of patta issued by the Gram Panchayat, thus, the revision petitions cannot be dismissed on the ground of delay.
The revisional court on the basis of material available on record has given a specific finding that the Gram Panchayat Banta while issuing pattas in question in favour of the petitioners did not follow the mandatory procedure prescribed in Rules 256 to 266 of the Rules of 1961.
The revisional court has discussed the procedure laid down under the Rules of 1961 in detail and gave a specific finding that there was no evidence available before the Gram Panchayat Banta that the persons, in whose favour pattas in question were issued through private negotiations, are in possession of land from a long time.
After detail analysis regarding irregularities committed by the Gram Panchayat Banta, the revisional court has cancelled the pattas in question vide impugned orders.
Learned counsel for the petitioners has argued that the revision petitions filed by the private respondents are barred by limitation as the same have been filed after the delay of around 36 years and the said revision petitions are liable to be dismissed on this sole ground.
(7 of 16)
[CW-612/2017]
Learned counsel for the petitioners has also argued that under Section 61 of the Act of 1994 there is a provision of filing appeal before the Panchayat Samiti against the resolution or patta issued by the Gram Panchayat and looking to the said provision of appeal, the direct revision petitions filed by the private respondents before the revisional court are not liable to be entrained.
Learned counsel for the petitioners has also argued that before issuance of the pattas in question the Gram Panchayat Banta has followed the procedure laid down under the rules, however, unfortunately the record of the Gram Panchayat Banta in relation to the pattas in question was destroyed in flood and, therefore, the same could not be produced and this circumstance cannot be used against the petitioners.
Learned counsel for the petitioners has also argued that the petitioners are in peaceful possession of the land, for which the pattas in question were issued and, therefore, the pattas in question cannot be cancelled.
Learned counsel for the petitioners has, therefore, prayed that the impugned orders passed by the revisional court are liable to be set aside and the pattas in question be restored.
Per contra, learned counsel appearing for the respondentState and the respondent-Gram Panchayat Aalpura, Panchayat Samiti Gudamalani, District Barmer (hereinafter to be referred as ‘the Gram Panchayat Aalpura’) have vehemently opposed the writ petitions and argued that there is no illegality in the impugned
(8 of 16)
[CW-612/2017]
orders passed by the revisional court as the pattas in question were issued by the Gram Panchayat Banta without following the procedure laid down under the Rules of 1961.
Mr. Sunil Beniwal learned counsel appearing for the respondent-Gram Panchyat Aalpura has also argued that as a matter of fact till date no person or their heirs, in favour of whom the pattas in question had been issued, are having possession over the land for which the pattas in question were issued and the same is lying vacant, however, under the garb of the pattas in question now the petitioners are trying to encroach over the Panchayat land.
It is also contended by the learned counsel for the respondent-Gram Panchayat Aalpura that the land, for which the pattas in question were issued, was never in the possession of the persons, in whose favour the pattas in question had been issued, but the then Sarpanch of Gram Panchayat Banta without making any enquiry regarding old possession had illegally issued those pattas.
Learned counsel for the respondent-Gram Panchayat Aalpura has, therefore, prayed that the impugned orders are not liable to be interfered with.
Mr. Manish Patel, Additional Government Counsel appearing for the respondent-State has reiterated the stand taken by the State in its reply that the pattas in question were issued without completing legal formalities by the then Sarpanch of Gram Panchayat Banta and the valuable property was transferred in the
(9 of 16)
[CW-612/2017]
name of certain persons at a very nominal price and, therefore, the pattas in question are not sustainable in the eyes of law.
Heard learned counsel for the parties and perused the material available on record.
The contention of learned counsel for the petitioners to the effect that the record of Gram Panchayat Banta was destroyed in flood and, therefore, the same could not be produced before the revisional court is straightway rejected because on several dates the counsel for the petitioners was granted opportunity to submit the proof regarding the fact that the concerned record of the Gram Panchayat Banta was destroyed in flood in the year 1979 but no such proof was produced. Then on 05.12.2017, last opportunity was granted to the counsel for the petitioners for submitting the proof but the same is not submitted till the final hearing of these writ petitions. It is also noticed that before the revisional court too it was asserted by the petitioners that the record of the Gram Panchayat Banta pertaining to year 1979 was destroyed but no proof in this respect was produced even before the revisional court.
The further contention of the learned counsel for the petitioners to the effect that before issuance of pattas in question the Gram Panchayat Banta had followed the procedure laid down under the Rules of 1961 is bereft of any merit as the petitioners had failed to produce any proof in support of their said claim.
The revisional court in the impugned orders has given specific finding in this respect and the same is reproduced
(10 of 16)
[CW-612/2017]
hereunder :-
--- --- --- i=koyh ds voyksdu ls ;g ik;k tkrk gS fd xzke iapk;r ckaVk us iVVk tkjh djus ls iwoZ jktLFkku iapk;r lkekU; fu;e 1961 ds rgr cuk;s x;s vkcknh Hkwfe ds fcØh ,oa vkaoVu ds fu;eksa dh dksbZ ikyuk ugha dh xbZ gSA ftlds vuqlkj fu;e 256 ds rgr dksbZ Hkh O;fDr iapk;r ls dksbZ vkcknh Hkwfe [kjhnuk pkgrk gS rks iapk;r dks fyf[kr :i esa ,d vkosnu i= izLrqr djsxk ftlesa ml Hkwfe dk ,slk o.kZu gksuk pkfg;s tks [kjhnh tkus ds fy;s izLrkfor Hkwfe dks igpkus ds fy;s i;kZIr gksA fu;e 256¼2½ ds rgr vkosnu i= ds lkFk [kjhnh tkus okyh Hkwfe dk uD”kk rS;kj djus ds fy;s 2@& jkf”k iapk;r esa tek djk;sxk vkSj bl ekeys esa ,d Qkby dk;e dh tkosxhA rRi”pkr fu;e 257¼2½ ds vuqlkj ,d uD”kk fdlh ;ksX; O;fDr }kjk rS;kj djok;k tkosxkA fu;e 257¼5½ ds vuqlkj rS;kj fd;s x;s uD”ks esa csph tkus okyh Hkwfe dks yky L;kgh }kjk crk;h tkosxh rFkk ml ij vkosnd ds rFkk ml O;fDr ds ftlus mls rS;kj fd;k gS] gLrk{kj gksaxsA fu;e 258 ds rgr 3 iapksa ls LFky fujh{k.k djus dk izko/kku gS tks mi fu;e ¼1½ ds v/khu d ls [k es viuh fjiksVZ nsxhA ekSdk fjiksVZ ds ckn iapk;r dks fu;e 259 ds rgr vufUre fofuf”p; ikfjr djuk pkfg;sA blds ckn fu;e 260 ds vuqlkj iapk;r }kjk uksfVl tkjh fd;k tkosxk o mtjnkjh lquk;h tkosxh bl uksfVl dh ,d izfr izLrkfor Hkwfe ij fdlh ln”; LFkku ij nks izfrf"Br O;fDr;ksa ds :c: pLik djuh pkfg;s FkhA fu;e 261 ds uhps vkifÙk;ksa dk fuiVkjk fd;k tkdj fu;e 262 ds rgr uhykeh dh tkosxh rFkk uhykeh dh dk;Zokgh gksus ds ckn es mls fu;e 265 ds rgr Lohdfr izkIr dh tkosxhA iVVk la[;k 17 dh Nk;k izfr ds voyksdu ls vizkFkhZ dks ;g iVVk fu;e 266¼?k½ ds rgr djuk vafdr fd;k gSA fu;e 266¼?k½ ds rgr tgka fdUgh O;fDr;ksa dk vkcknh Hkwfe ij dCtk 20 o’kZ vFkok vf/kd ijUrq 40 o’kksZa ls de dk gS] ogka fo|eku cktkj dher dk ,d frgkbZ Hkkx vksj tgka dCtk 40 o’kZ ls vf/kd dk gS] ogka fo|eku cktkj nj dk NBk Hkkx izHkkfjr¼olwy½ fd;k tkosxkA exj vizkFkhZ dk oknxzLr Hkwfe ij dCtk 20 o’kZ vFkok vf/kd ijUrq 40 o’kksZa ls de gksus dk dksbZ lk{; i=koyh ij ugha gSA blls ;g izdV gksrk gS fd xzke iapk;r us mDr fu;eksa esa fu/kkZfjr izfØ;k dks
Þ6-
(11 of 16)
[CW-612/2017]
viuk,a fcuk ,oa fely dk;e fd;s fcuk iVVk tkjh fd;k gSA jktLFkku iapk;r lkekU; fu;eksa esa iapk;r }kjk dh xbZ dk;Zokgh dh oS/krk] “kq)rk ,oa vkSfpR;rk dk ewy jsdMZ ls iqujh{k.k djus dk izko/kku gSA exj bl ekeys esa xzke iapk;r ckaVk us dk;e dh xbZ fely] dk;Zokgh jftLVj ,oa ewy iVVk o iVVk jftLVj miyC/k ugha djk;k gSA xzke iapk;r ckaVk ls fjdkWMZ ryc djus ij xzke lsod ,oa insu lfpo xzke iapk;r ckaVk us vius i= fnukad 27-062015 }kjk o’kZ 1978&79 esa vkcknh Hkwfe ls xzke iapk;r ckaVk }kjk dksbZ iVVk tkjh ugha djuk ,oa iV~Vk la[;k 17 ls lEcfU/kr dk;e dh xbZ fely] fjdkWMZ esa miyC/k ugha gksuk crk;kA --- --- ---**
This finding of revisional court is common in all the impugned orders in respect of each patta in question.
A Coordinate Bench of this Court in Hari Singh Vs. State & Ors. reported in 1987 (I) RLR 387 has held that there must have been positive material before the Panchayat either in form of document or oral evidence to ascertain the old possession of a person, who is requesting to issue residential patta in his/her favour interpretating the Rule 261(1) of the Rules of 1961. The Coordinate Bench of this Court in Hari Singh’s case (supra) has held as under :-
“7. … … … That rule reads as under:-
“266(1) The Panchayat may transfer any abadi land by way of sale by private negotiation in the following cases:-
(a) Where any a person has a plausible claim of title to the land and an auction may not fetch reasonable price;
(b) … … … (c) … … …
We are only concerned with clause (a). The other two clauses are not applicable to the present case, inasmuch as
(12 of 16)
[CW-612/2017]
the Panchayat purports to have sold the land by private negotiation on the basis of plausible claim.
… … … There must have been some positive material before the Panchayat either in the form of any document or at least by oral evidence to support the said ancestral or old possession of the petitioner over the land in dispute. … … … 9. … … … The Panchayat could have transferred the land by private-negotiation under rule 266 (1) (a) of the Rules, only if both the conditions as stated above are fulfilled and when neither of the two were thus fulfilled the sale by the Panchayat was certainly in contravantion of rule 266 (1) (a) and, therefore the learned Addl. Collector was within his jurisdiction to exercise his powers under section 27 (A) and to set aside such a sale. … … …”
Earlier the Division Bench of this Court at Jaipur Bench in Giriraj & Ors. Vs. State of Rajasthan & Ors. reported in 1986 RLR 184 after taking into consideration the provisions of Rules of 1961 has held as under : -
“14. Apart from that it is necessary to determine whether the land which is sold is necessary for the public use or the village use by way of chowk, road or other allied matters such as, some times, it is used for the ceremonial functions of the village where the people assemble and perform the ceremonial functions. For this reason, under the Rajastha Panchayat Rules, 1961, special provision has been made under Rule 257 for the preparation of the plan. Under Rule 258 after the preparation of the plan, three of the Panchas who are nominated by the Panchayat go for local inspection of the site and submit the report to the Panchayat. Under Rule 259, provisional decision is taken
(13 of 16)
CW-612/2017]
whether the sale should or should not be made. Under Rule 260 the Panchayat invites to the general public about the proposed sale of land and invites objections against the proposed decision. Thereafter, the disposal of the objections if any, receive in response to the notice shall be disposed of by the Panchayat after giving the parties concerned reasonable opportunity of being heard under Rule 261. The land is sold by way of auction under Rule 262. Rule 266 is an exception to the General Rule 262. In Rule 266 also Clause (a), (b) and (c) provide that the land may be sold by way of negotiations where any person has a plausible claim of title to the land and an auction may not fetch reasonable price. Thus, before applying the provisions of Rule 266, it is necessary to determine whether there is any plausible claim of title of any third party or not and, if the land is sold by way of auction it will fetch higher price or not. It is also necessary to determine whether, for the reasons to be recorded in writing the Panchayat thinks that an auction would not be convenient mode of disposal of the land. No such grounds are available on record.”
In view of law laid down in the above referred judgments the decisions of the revisional court of cancellation of pattas in question are not liable to be interfered with because the plausible claim of persons, in whose favour pattas in question were issued, was not established.
The other contention of learned counsel for the petitioners that the revision petitions filed by the private respondents before the revisional court are liable to be dismissed on the ground of delay is considered but for rejection only because it is settled that where any order is passed in clear violation of the Rules or the provisions of the Act by the authorities, the same is opened to the judicial review.
(14 of 16)
[CW-612/2017]
Full Bench of this Court in Chiman Lal Vs. State of
Rajasthan & Ors. reported in 2000 (2) WLC (Raj.) 1 while taking into consideration the question regarding period of limitation in filing revision petition for challenging the patta issued by a Gram Panchayat has held as under :-
“24. In view of the above discussion, we are of the opinion that it is not the function of the Court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. As held by the Supreme Court in Ajaib Singh's case (supra) the Courts only interpret law and do not make laws. Personal views of the Judges presiding the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. Hence, we are of the opinion that when no period of limitation under Rule 272 of the Rules 1961 is prescribed by the legislature then we cannot prescribe any period of limitation that in what time the revisional powers can be exercised by the authority under Rule 272 of the 1961 Rules. When no period of limitation is provided then in our opinion the same has to be exercised within a reasonable time and that will depend upon facts and circumstances of each case like; (i) when there is fraud played by the parties; (ii) the orders are obtained by mis-representation of collusion with public officers by the private parties; (iii) Orders are against the public interest; (iv) the orders are passed by the authorities who have no jurisdiction; (v) the orders are passed in clear violation of rules or the provisions of the Act by the authorities; and (vi) Void orders or the orders are void ab initio being against the public policy or otherwise. The common law doctrine of public policy can be enforced wherever an action affects/offends the public interest or where harmful result of permitting the injury to the public at large is evident. In such type of cases, revisional powers can be exercised by the authority at any time either suo moto or as and when such orders are brought to their notice.”
In the present cases the revisional court has given a specific finding that before issuance of the pattas in question the procedure provided under Rules 256 to 266 of Rules of 1961, as
(15 of 16)
[CW-612/2017]
applicable at that relevant time, was not followed by the Gram Panchayat Banta and, therefore, in view of the law laid down in Chiman Lal’s case (supra) the revision petitions filed by the private respondents were very much maintainable and the objections of the petitioners regarding the delay in filing the revision petition has rightly been rejected by the revisional court.
So far as contention of learned counsel for the petitioners to the effect that since the private respondents have not filed any appeals under Section 61 of the Act of 1994 before the Panchayat Samiti, the revision petitions filed by them under Section 97 of the Act of 1994 before the revisional court were not maintainable and liable to be rejected, this Court is of the opinion that the same has no merit. Power of revision under Section 97 of the Act of 1994 is an independent power, which empowers the State Government or the Officers Authorised by it to examine the correctness, legality or propriety of any order or decision passed by the Gram Panchayat either on its own motion or on an application from any person interested. Any person interested or aggrieved with the decision of a Panchayat Raj Institution can file a revision under Section 97 of the Act of 1994 directly without availing the remedy of appeal. Of course he or she can also avail remedy of appeal but it cannot be said that first remedy of appeal has to availed and then only revision can be filed.
In view of the above discussions, I don’t find any merit in these writ petitions and the same are hereby dismissed.
However, the petitioners will be at liberty to apply afresh
(16 of 16)
[CW-612/2017]
before the Gram Panchayat for issuance of pattas in their favour for the land in question under the prevailing rules and if such applications are preferred by the petitioners, the Gram Panchayat shall consider and decide the same strictly in accordance with law without influencing with the findings and observations made in
this order.
Stay petitions also stands dismissed.
(VIJAY BISHNOI)J.
Abhishek Kumar
S.No.157 to 160
3 issues framed by the court
Whether the cancellation of residential pattas by the revisional court was justified due to non-compliance of mandatory procedures under Rules 256-266 of 1961.
Whether the limitation of 36 years barred the filing of revision petitions under Section 97 of the Act of 1994.
Whether filing a direct revision under Section 97 was maintainable without exhausting the remedy of appeal under Section 61 of the Act of 1994.
Colour shows how this judgement treated each authority
Hari Singh Vs. State & Ors.Referred¶113
Hari Singh Vs. State & Ors., reported in 1987 (I) RLR 387
Giriraj & Ors. Vs. State of Rajasthan & Ors.Referred¶124
Giriraj & Ors. Vs. State of Rajasthan & Ors., reported in 1986 RLR 184
Chiman Lal Vs. State of Rajasthan & Ors.Applied¶133
Chiman Lal Vs. State of Rajasthan & Ors., reported in 2000 (2) WLC (Raj.) 1
4 provisions across 3 enactments
Poonma Ram S/o Shri Khangara Ram
Lrs of Chena Ram S/o Shri Khangara Ram
District Collector, Barmer
State of Rajasthan
Sarpanch Gram Panchayat Banta
Sarpanch Gram Panchayat Aalpura
Vijay Bishnoi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
