1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.5702/2007. (Abhay Singh Vs. State of Rajasthan & Others) DATE OF ORDER : January 15, 2009 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Mr. Anil Vyas for the petitioner. Mr. Alkesh Aggarwal, Dy. Govt. Counsel. Reportable BY THE COURT : Admittedly, the case of the petitioner is that he was given land in question on rent on 01.08.1987, upon which, shop was constructed by him being tenant upon the 15' land and he is doing business upon the said land. The case of the petitioner is that an application was filed by him for purchase of that land and the Gram Panchayat proceeded to make the sale in his favour of the said land in accordance with the Rules of 1996; but, vide Annex.-6, restriction was imposed by the State Government when approval was sought for finalization of the sale of the land. According to Annex.-6 and Annex.-R/1, the Government gave clear direction that 2 the Gram Panchayat cannot sell the land which is given on rent under Rule 156 for the area which is situated near Ramdeora temple which is important religious place of the State. The State Government has further imposed restriction not to sell any land without any plan by the Gram Panchayat. Learned counsel for the petitioner submits that prior to restriction imposed by the Government, many persons who were admittedly tenants of the Gram Panchayat they were given land on rent; but, sale was executed in their favour, therefore, the respondents cannot discriminate the case of the petitioner and the petitioner is also entitled to get the land under the sale though he is tenant of the Gram Panchayat upon the said land which is situated nearby the area of Ramdeora Temple. The whole basis of the claim of the petitioner is that prior to restriction imposed by the Government, the sale was made by the Gram Panchayat in accordance with Rule 156 of the Rules of 1996 and sale was finalized with the approval of the State Government to other tenants, therefore, direction may be given to respondents while quashing Annex.-6 to confirm the sale made in favour of the petitioner by the Gram panchayat which has been approved in the cases of 3 similarly situated persons vide Annex.-8 and Annex.-9. On the other hand, learned counsel for the Government vehemently argued that the Ramdeora Temple is wholly spiritual place of the State and the Gram panchayat cannot sell the land for shops which is given on rent to the tenants; but, repeatedly, the Gram Panchayat was selling the land, therefore, at the time of approval sought in the case of the petitioner, restriction was imposed vide Annex.-6 and Annex.-R/1, in which, there is no illegality. Further, it is submitted by the counsel for the State Government that no regularization can be claimed as a matter of right. It is also argued by the learned counsel for the State that the order of the State Government is in consonance with the Panchayati Raj Act and the rules framed thereunder because, as per Rule 156 of the Rules of 1996, the Gram Panchayat can transfer any abadi land by way of sale by private negotiation in certain conditions where any person has a plausible claim of title to the land and an auction may not fetch reasonable price. Secondly, where there is a trespass or for any other reason, to be recorded in writing, the Gram Panchayat thinks that an auction would not be convenient mode of disposal of the land, 4 the Panchayat may enter into private negotiation for sale of the land. Thirdly, where it is strip of land as per sub-rule (1) and (2) of Rule 144 and, there is only one applicant, the Gram Panchayat can sell such strip of land by sale in favour of the sole applicant. However, in no case such abadi land can be transferred on a rate below the index-ratefixed by Sub-Registrar and conveyed by the Vikas Adhikari of the Panchayat Samiti as the prevailing market price for the village and such market price shall not be less than double the price fixed for the bazaarn or commercial area; meaning thereby, there is no provision under Rule 156 to sell the land to the tenant of the Panchayati Raj institution. Further, it is provided that for letting out of the Panchayat buildings and shops, there is Rule 164, in which, there is provision for eviction also in the event of non-payment of rent or the building or shop is sublet to other persons in violation of the terms of agreement, therefore, obviously there is no provision in the rules for sale of the land to the tenant. Therefore, order impugned and order Annex.-R/1 passed by the State Government are just and proper and do not require any interference in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. 5 I have carefully considered the submissions made by the rival parties. It is admitted case of the petitioner that he is tenant of the Ramdeora Panchayat Samiti and he is having land upon which he has constructed the shop, therefore, as a tenant he can claim is right as tenant only as per Rule 164 of the Rules of 1996. The petitioner cannot be allowed to claim the sale of land in accordance with Rule 156 of the Rules of 1996 because being tenant his case does not fall under Rule 156. Rule 156 of the Rules of 1996 runs as under : “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 Rules 144 and there is only one applicant. (2) In no case such abadi land, shall be transferred on a rate below the index price fixed by Sub-Registrar and conveyed by Vikas Adhikari as prevailing market price for the village. 6 (3) Such market price in a bazaar or commercial area shall not be less than double the price fixed for residential areas.” Thus, meaning thereby, the contention of the petitioner that so many other tenants were sold the land for shops and, therefore, land in his occupation as tenant may be sold to him does not create any right in favour of the petitioner; or, to say that his case has been discriminated by the respondents. In my opinion, as per provisions of the Act of 1994 and the rules framed thereunder, if any sale has been made contrary to the provisions of law, it does not give any right to the petitioner to claim the benefit of the irregularity committed in the past. The petitioner cannot ask this Court to give direction contrary to law. If any sale is made in violation of Rule 156 in the past, then, it cannot be a ground for claiming the right by the petitioner on the basis of so called illegality and irregularity. In this view of the matter, I am of the opinion that the petitioner's case does not fall under Rule 156 of the Rules of 1996 to get the land by sale through private negotiation. At the same time, however, if the respondents prepare any plan in accordance with Annex.-R/1, then, of course, the 7 respondents are required to consider the case of the petitioner also. But, until formation of plan in accordance with Annex.-R/1, no direction for finalization of sale of land can be issued by this Court. The petitioner who is admittedly tenant upon the land of the Gram Panchayat Ramdeora can enjoy the status of tenant by paying rent in accordance with the agreement entered into by the Gram Panchayat and petitioner but no further right for sale of land to him can be claimed by the petitioner. In view of the aforesaid discussion, this writ petition is disposed of with direction to the respondents that in future, in the event of formation of any plan as per Annex.-R/1 and a decision being taken by the respondents to sell the land, the petitioner's case may also be considered in accordance with law. At present, however, no right as per Rule 156 of the Rules of 1996 is available to the petitioner who is admittedly tenant of the Gram Panchayat upon the land in question. No order as to costs. (Gopal Krishan Vyas) J. Ojha, a.