1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ### S.B.Civil Writ Petition No.3785/2001 ### Uma Soni Vs. The State of Rajasthan & Ors. ### Date of Order :- 10.08.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN REPORTABLE Mr.Satish Khendelwal, for the petitioner. Mr.Zakawat Ali, Dy.G.A., for the State. ### Aggrieved by the order dated 28.06.2001 whereby the Additional Collector and the Additional District Magistrate, Kota has cancelled the Patta dated 11.01.2000 granted to the petitioner, the petitioner has come knocking at the doors of this Court. In a nutshell the facts of the case are that on 11.10.1999, the petitioner submitted an application to the respondent No.3, Gram Panchayat, for allotment of land. The Sarpanch considered the application on 11.10.1999, and directed the petitioner to deposit the application and map charges amounting to Rs.50/-. The Sarpanch further directed the concerned employees of the Gram Panchayat to notify the application for inviting objections, and to place the matter for further consideration on 15.11.1999. In terms of the 2 proceedings drawn on 11.10.1999, the Gram Panchayat published a notification inviting objections in the prescribed manner. Thereafter, the matter was placed before the Gram Panchayat. Since, no objections were received from persons interested, the Gram Panchayat decided to allot the land earmarked as Plot No.13, in village Kanwas at the rate of Rs.5/- per sq. feet and also to charge Rs.50/- as Patta charges. The members of the Gram Panchayat inspected the site; on the basis of the inspection, the boundaries of Plot No.13 were drawn. In pursuance of the allotment of the land to the petitioner by the respondent No.3, vide resolution dated 15.11.1999, the petitioner deposited the entire charges as demanded by the respondents. Thereafter, the sale-deed was executed on 11.01.2000 in favour of the petitioner. The respondent No.3 handed over the possession of the land to the petitioner. Accordingly, the land was conveyed to her. Since the petitioner wanted to construct a house upon the land, she moved an application before the Gram Panchayat seeking permission for raising the construction. Vide letter dated 29.04.2000, the Gram Panchayat accorded its permission. Consequently, the petitioner started the construction. Meanwhile, the Nayab Tehsildar, Shri Ram Swaroop Arvind stopped the construction and took away the raw material. The Tehsildar, the respondent No.1 also started harassing the petitioner. Therefore, the petitioner filed a suit before the Civil Judge “J.D.” and Judicial Magistrate, Kanwas for permanent 3 injunction against the Tehsildar. Eventually, the Civil Court granted a temporary injunction in favour of the petitioner. In the mean time, the Tehsildar submitted an application before the Additional Collector under Section 97 of the Rajasthan Panchayati Raj Act, 1994 ('The Act', for short). The Additional Collector issued notice to the petitioner. The petitioner pleaded before the Additional Collector that the proceedings initiated by him are without jurisdiction. However, notwithstanding the said plea, vide order dated 28.06.2001, the Additional Collector has set aside the allotment letter 15.11.1999 and the Patta dated 11.01.2000. Hence, this petition before this Court. Mr. Satish Khandelwal, the learned counsel for the petitioner, has vehemently raised the following contentions before this Court : firstly, since an appeal lies under Section 61 of the Act, a revision under Section 97 of the Act does not lie in facts of the present case. Secondly, the application filed by the Tehsildar under Section 97 of the Act was hit by limitation as the Tehsildar was trying to set aside the Patta issued on 11.01.2000 and the said application was not moved immediately thereafter. Thirdly, the Revenue Court does not have the power to cancel and set aside the Patta. Fourthly, as there was a disputed question of fact whether the land in dispute belonged to the Revenue Guest House or not, the same could be looked into only by a Civil Court. Therefore, the revision under Section 97 was not even maintainable. Fifthly, 4 the land in question, in fact, is a Abadi land and the Gram Panchayat has ample power to allot the said land under the Rajasthan Panchayati Raj Rules, 1996 ('The Rules', for short). Sixthly, the procedure established by law under Rules 140 to 168 of the Rules have been followed in the present case. Therefore, the learned Collector erred in observing that the plot has been alloted in violation of the Rules 140 to 168 of the Rules. Lastly, along with the case of the petitioner, fifteen other applications were entertained by the Gram Panchayat and the land was allotted to others. Thus, while others are still enjoying the peaceful possession of the land so allotted to them, the petitioner's possession and ownership has been disturbed. On the other hand, Mr. Zakawat Ali, the learned Dy.G.A., has contended that under Section 97 of the Act of 1994, the State Government may, either of its own motion or upon an application from any person, call for the record and see the correctness, illegality or propriety of any decision or order passed by the Gram Panchayat. Since the allotment was made to the petitioner, who happens to be the wife of a Panch, in violation of Rule 140 to 168 of the Rules of 1996, the Tehsildar was justified in submitting an application under Section 97 of the Act of 1994. According to the learned counsel, the object of Section 97 is to ensure that a decision or an order passed by the Gram Panchayat does not adversely affect the interest of the State or the interest of the people at large. Therefore, 5 according to the learned counsel, merely because the right to appeal exists, it would not pre-empt the Tehsildar from filing an application under Section 97 of the Act. Secondly, the procedure given under Rules 140 to 168 has not been followed. Thirdly, on 11.01.2000, the Code of Conduct had come into operation. Therefore, the Gram Panchayat was not justified in allotting the land to the petitioner. Fourthly, even if the land is taken to be an Abadi land, even then the procedure established by law has to be followed. Fifthly, merely because other allotments were allowed, merely because those allotments have not been challenged, violation of Article 14 of the Constitution of India cannot be pleaded on the basis of negative equality. Heard the learned counsel for the parties and perused the impugned order. Section 61 of the Act of 1994 is as under :- 61. Appeals from orders of Panchayats :- (1) Any person aggrieved by any order or direction of a Panchayat made or issued under this Act or under any rule or bye-law made thereunder may appeal from such order or direction to the Panchayat Samiti having jurisdiction within thirty days from the date of such order or direction exclusive of the time requisite for obtaining a copy thereof. (2) An appeal under Sub-sec. (1) shall be heard by the standing committee of the Panchayat Samiti 6 constituted under Clause (a) of Sub-sec. (1) of Sec.56. (3) The standing committee referred to in Sub-sec. (2) may after hearing the person aggrieved, the Panchayat and any other person affected by the order or direction appealed against, vary, set aside or confirm such order or direction and may also award costs to or against the person filing the appeal. (4) The decision of the Standing Committee shall for the purposes be deemed to be the decision of the Panchayat Samiti. Section 97 of the Act of 1994 is as under :- 97. 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. 7 (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. The provisions contained in the proviso to Sub-sec. (1) and in Sec. (2) shall apply to a proceeding under this sub-section. A bare perusal of these provisions clearly reveal that an appeal can be filed by any person “aggrieved by any order”, whereas as application under Section 97 of the Act can be filed by any person “who is interested”. Therefore, the person who moves an application under Section 97 of the Act need not necessarily be “aggrieved” by an order passed by the Gram Panchayat. Moreover, the object of the revision jurisdiction is different from the object of the appellate jurisdiction. Under Section 61, the object of the jurisdiction is to allow the appellate court to resolve the legal disputes that may exist between the parties. The power given to the Government under Section 97 is basically a supervisory power. For, the Government can either suo moto examine the record of a Panchayati Raj Institution, or it can exercise the said power of revision upon an application made by a person. In the present 8 case, the Tehsildar was satisfied that the allotment had been made in violation of Rules 140 to 168; it was made for extraneous consideration. Thus, it adversely affected the interest of the State. Considering the violation of the law, the Tehsildar was certainly justified in filing an application under Section 97 of the Act as he was interested that the law should be followed. Therefore, the contention that he should have filed an appeal under Section 61 is untenable. A bare perusal of Section 97 further reveals that no period of limitation has been prescribed under the said provision. Therefore, the contention that the application moved by the Tehsildar is hit by limitation is without any legal foundation. Therefore, the said plea is, hereby, rejected. Rules 140, 141, 143, 144, 148, 150, 156, which are the relevant rules for the present case are as under :- Rule 140. Abadi Land :- “Abadi Land” means nazul and land lying within the inhabited areas of a Panchayat Circle which vests or has been vested in or has been placed at the disposal of a Panchayat by or under an order of the State Government. Rule 141. Sale of Land :- All sales of land by a Panchayat shall ordinarily be made through auction unless there are special 9 reasons for not doing so. Panchayat may decide to sell such land through auction programme fixed in advance. Rule 143. Auction of plots in Abadi Area :- (1) Panchayat shall prepare a list of plots including scattered plots within the Abadi Area, keeping in mind the space needed for public streets/roads, drainage and other public purposes. (2) Panchayat shall try to maintain building line, as far as possible, while deciding to auction any scattered plot. (3) Any area of 100 sq. yards or more for residential purposes and 200 sq. feet for commercial purposes shall be auctioned as scattered plot. Rule 144. Allotment of Strip of Land :- (1) Panchayat may allot a strip of land upto 100 sq. yards for residential purposes and 200 sq. ft. for commercial purposes at prevailing market price. (2) Strip of land shall be allotted only to such persons whose existing house/shop is adjoining such strip and there is no other applicant for the same. (3) In case more than one person has houses/shops adjoining the strip, it shall be put in auction. Rule 148. Issue and publication of notice :- (1) If the Panchayat provisionally decides that the sale should be made, it shall publish a notice in Form XXII inviting objections to the proposed sale within one month from the date of publication in the 10 manner laid down in Sub-rule (2). (2) The notice referred to in Sub-rule (1) shall be prepared in duplicate and one copy thereof shall be affixed to a conspicuous place on the land proposed to be sold, the other copy being returned to the Panchayat Office after obtaining the signatures of at least two respectable persons of the locality thereon, in token of such affixation. Rule 150. Auction of the land :- (1) If no objection is received under Rule 148 within one month, or if all objections received have been disposed of under Rule 149, the Panchayat shall, by resolution, order the auction of the land proposed to be sold on a date, not earlier than one month from the date of the resolution and at the time and place to be specified. (2) Thereupon a notice of such auction, and of the date, time and place specified in Sub-rule (1) shall be proclaimed by a beat of drum/by any other sound amplifying device, and copy of auction notice shall be displayed near the site as well as conspicuous places in the village market and on the notice board of the Panchayat. 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; 11 (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. These rules lay down the procedure for transfer of land by the Gram Panchayat to private persons. According to Rule 141, the general rule is that the land should be sold through auction. However, Rule 156 carves out an exception and permits the Gram Panchayat to transfer an Abadi land by way of private negotiation provided one of the three conditions enumerated in Rule 156 is satisfied. One of the condition is that “strip of land as per Sub-rules (1) & (2) of Rule 144 can be transferred by private negotiation.” Emphasising on a combined reading of Rule 144 read with Rule 156, the learned counsel for the petitioner has contended that only a strip of land was transferred to the petitioner. Therefore, the said allotment was valid under these two rules. However, the petitioner has failed to prove that the 12 petitioner had an existing house/shop adjoining the strip of land. Therefore, the benefit of Rule 144 cannot be given to her. Moreover, the petitioner has neither pleaded, nor proved that she falls under one of the circumstances enumerated in Rule 156. Since Rule 156 is an exception to Rule 141, in case the petitioner wants to take advantage of Rule 156, she is legally required to prove that she falls under one of the three circumstances mentioned in Rule 156. Since she has failed to do so, she cannot claim the benefit of Rule 156. Since the said land has not been auctioned but has been allotted through private negotiation, clearly the procedure established by law has been violated. Considering the fact that the procedure established by law was not followed, the Tehsildar was well within his power to bring the illegal allotment of the land to the notice of the State Government by filing an application under Section 97 of the Act of 1994. Hence, the contention raised by the learned counsel that the procedure established by law has been followed is without any merit. It is, indeed, a settled principle of law that the concept of equality cannot be invoked in the negative sense. It can be invoked only in the positive sense. Merely because, the Panchayat had approved fifteen other applications filed by others, merely because the Panchayat had violated the law, the petitioner cannot claim that the Panchayat should be directed to violate the law qua the petitioner as well. Therefore, the 13 contention based on Article 14 of the Constitution of India is unsustainable. The learned counsel has further contended that the land in question was not part of the land belonging to the Revenue Guest House. But it was part of Abadi land. Therefore, the Gram Panchayat was empowered to allot the said land to the petitioner. However, as stated above the said land has been alloted in violation of Rules 141, 156 read with Rule 144. Therefore, the allotment is illegal. Hence, the Additional Collector was justified in setting aside the said allotment. For the reasons stated above, this writ petition is devoid of any merit. It is, hereby, dismissed. There shall be no order as to costs. (R.S.CHAUHAN)J. Manoj Solanki