Lrs Of Late Narendra Kumar vs State And Ors. (2025:Rj-Jd:22047)
2025 Latest Caselaw 517 Raj

Rajasthan High Court - Jodhpur

Lrs Of Late Narendra Kumar vs State And Ors. (2025:Rj-Jd:22047) on 7 May, 2025

Author: Dinesh Mehta

Bench: Dinesh Mehta

[2025:RJ-JD:22047]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2892/2000

Lrs Of Late Narendra Kumar S/o Manilal Mahajan:-

1. Smt. Shashi Kanta W/o Late Narendra Kumar.

2. Amit S/o Late Narendra Kumar.

3. Ritesh S/o Late Narendra Kumar.

4. Smt. Swati W/o Hitesh Jain (D/o Late Narendra Kumar).

(All are R/o Aspur Teh. Aspur, District Dungarpur (Raj.).

----Petitioners Versus

1. State of Rajasthan through Secretary Panchayati Raj, Department, Govt. of Rajasthan, Secretariat, Jaipur.

2. Bhagwanlal S/o Lalji Mehta (Dabarawat) R/o Gol, Teh. Aspur District Dungarpur.

3. Gram Panchayat, Aspur through Sarpanch, Gram Panchayat Aspur, District Dungarpur.

4. Panchayat Samiti Aspur through Vikas Adhikari P.S. Aspur, District Dungarpur.

5. Additional Collector, Dungarpur.

6. Add. Chief Executive Officer, Zila Parishad, Dungarpur.

                                                                    ----Respondents


For Petitioner(s)            :     Mr. Deelip Kawadia
                                   Ms. Nidhi Singhvi
For Respondent(s)            :     Mr. Bhavit Sharma
                                   Mr. Hukum Singh
                                   Mr. K.S. Solanki for
                                   Mr. I.R. Choudhary, AAG



                        JUSTICE DINESH MEHTA

                                        Order

07/05/2025

1. By way of present writ petition, the petitioners (legal

representatives of Late Shri Narendra Kumar) have challenged the

order dated 20.04.2000 passed by the State Government,

whereby the duly adjudicated order dated 04.09.1997 passed by

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the Additional District Collector, Dungarpur (hereinafter referred to

as 'Appellate Authority') has been set aside.

2. The facts relevant are that a resolution dated 16.10.1996

was adopted by the Gram Panchayat, Aspur, whereby it had

decided to sell the land ad-measuring 15 ft x 11 ft in Khasra

No.1323/846 by private negotiation to the respondent No.2 for the

sum of Rs.9,900/- in terms of Rajasthan Panchayat (General)

Rules, 1961 (hereinafter referred to as 'Rules of 1961').

3. The resolution so adopted by the Gram Panchayat, Aspur

was placed before the Panchayat Samiti, Aspur for confirmation in

terms of Rule 265 read with Rule 266 of the Rules of 1961.

Panchayat Samiti in turn confirmed the sale vide its resolution

dated 10.01.1997.

4. The petitioners' predecessor (Shri Narendra Kumar) feeling

aggrieved of such resolutions of selling land to the respondent

No.2 preferred an appeal under section 92 of the Rajasthan

Panchayati Raj Act, 1994 (hereinafter referred to as 'Act of 1994')

read with Rule 270(b) of the Rules of 1961.

5. Said appeal came to be allowed by the Appellate Authority,

namely, Additional District Collector, Dungarpur vide its order

dated 04.09.1997 and the resolutions dated 16.10.1996 and

10.01.1997 were set aside. The Appellate Authority remanded the

matter back to the Gram Panchayat, Aspur to examine as to

whether the land in question was commercial and if yes, then,

proceed for auction of the land in accordance with law.

6. Surprisingly enough, an order dated 20.04.2000 came to be

passed in the name of State Government but under the signature

[2025:RJ-JD:22047] (3 of 14) [CW-2892/2000]

and seal of Deputy Legal Remembrancer, whereby the order of the

Appellate Authority came to be set aside.

7. Learned counsel for the petitioners in order to complete

narration of facts informed that the respondent No.2 had

challenged the above referred order dated 04.09.1997 of the

Appellate Authority before the Revenue Appellate Authority who

vide its order dated 01.07.1998 rejected the same holding it to be

not maintainable.

8. Learned counsel submitted that the respondent No.2 did not

lay any challenge to the above referred order dated 04.09.1997

passed by the respondent No.5 in accordance with law.

9. He submitted that the State Government however by order

dated 20.04.2000 proceeded to set aside the order of the

respondent No.5 dated 04.09.1997 and directed the Gram

Panchayat, Aspur to recover the amount as per the market rate,

while restoring the patta granted to the respondent No.2.

10. Mr. Kawadia, learned counsel for the petitioners argued that

a duly adjudicated judicial order 04.09.1997 passed by the

Appellate Authority in exercise of power under section 92 of the

Act of 1994 read with Rule 270(b) of the Rules of 1961 could not

have been set aside by the State Government by an

administrative order and more particularly, in the manner done.

11. He argued that the order of the respondent No.5 passed

under section 92 of the Act of 1994 read with Rule 270(b) of the

Rules of 1961 had attained finality as no challenge in accordance

with law was laid thereagainst. And therefore, the State

Government had no power to set aside the order of the Appellate

[2025:RJ-JD:22047] (4 of 14) [CW-2892/2000]

Authority. He added that power of Revision available with the

State Government under Rule 272(1) of the Rules of 1961 was not

applicable in view of proviso to Rule 272(1) and the order

impugned is clearly without jurisdiction.

12. It was also argued that the order dated 04.09.1997 came to

be passed by the respondent No.5 pursuant to an appeal which

the predecessor of petitioners (Shri Narendra Kumar) had

preferred invoking section 92 of the Act of 1994 read with Rule

270(b) of the Rules of 1961 and therefore, the State Government

could not have passed any order and set aside such order without

hearing the petitioners.

13. In support of his contention, learned counsel relied upon a

judgment in the case of Jagdish & Ors. Vs. Additional District

Magistrate - II & Ors., reported in (2003) 1 WLC 296.

14. Mr. Bhavit Sharma, learned counsel for the respondent No.2

submitted that the petitioners have no locus to challenge the order

of the State Government impugned in the present writ petition,

while maintaining that the State Government had passed a valid

and just order.

15. Learned counsel further relied upon section 92 of the Act of

1994 and submitted that the Additional District Collector,

Dungarpur or the Appellate Authority has no power to set aside

the resolutions adopted by the Gram Panchayat, Aspur and

Panchayat Samiti, Aspur because said provision deals with the

cancellation or suspending of resolution of Panchayati Raj

Institution. He added that in view of sub-section (3) of section 92

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- the Collector could only cancel or suspend a resolution but final

order could be passed only by the State Government.

16. Mr. Sharma argued that the petitioners have simply

challenged the communication dated 20.04.2000 sent by the

Deputy Legal Remembrancer, which cannot be construed to be an

order of the State Government. He argued that the petitioners

have neither placed the order of the State Government nor have

they challenged the same.

17. Mr. Kawadia, learned counsel for the petitioners in rejoinder

argued that maybe the petitioners or the respondent No.5 has

mentioned wrong section of the Act of 1994, but such power does

vest with him (respondent No.5) under sections 97 and 98 of the

Act of 1994 read with Rule 270 of the Rules of 1961. He

emphasized that just because a wrong provision has been

mentioned, the order of the respondent No.5 cannot be said to be

illegal, more particularly, when the order impugned dated

20.04.2000 of the State Government is not based on such

contention.

18. Heard learned counsel for the parties and perused the

record.

19. It will not be out of place to reproduce the relevant

provisions of Act of 1994 before adverting to merit of the case:-

"Section 92. Power of cancelling or suspending resolution of a Panchayati Raj Institution-

(1) The State Government shall be the Chief Superintending and Controlling Authority in respect of all matters relating to the administration of Panchayati Raj Institution and

[2025:RJ-JD:22047] (6 of 14) [CW-2892/2000]

may; by an order in writing cancel any resolution or order passed by a Panchayati Raj Institution or any Standing Committee thereof if in its opinion such resolution is not legally passed or is in excess or abuse of the powers conferred by or under this Act or under any law for the time being in force, or if its execution is likely to cause danger to human life, health or safety of person or property or is likely to cause a breach of the peace.

(2) The State Government shall, before taking action under Sub-sec. (1), give to the Panchayati Raj Institution concerned a reasonable opportunity for explanation.

(3) If, in the opinion of the Collector immediate action is necessary to suspend a resolution of any Panchayati Raj Institution on the ground that its execution is likely to cause danger to human life, health or safety of person or property or is likely to lead to a breach of the peace, he may, while making a report to the State Government for a final decision with respect to the resolution, by order writing, suspend the resolution if it is that of a Panchayat or a Panchayat Samiti."

"Section 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

[2025:RJ-JD:22047] (7 of 14) [CW-2892/2000]

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."

"Section 98. Delegation of Powers.- The State Government may, by notification in the Official Gazette, delegate-

(a) all or any of its power under this Act to any officer or authority subordinate to it, and

(b) all or any of the power of the officer-in-charge of Panchayats under this Act to any other officer or authority."

20. It will also be relevant to reproduce relevant provisions of

Rules of 1961:-

"Rule 265. Confirmation of auction held-(1) The acceptance of the highest bid shall be subject to confirmation by the Panchayat and the authorities prescribed under sub-rule(3).

(2) Where the bid of the land auction does not exceed rupees (one hundred), a copy of the proceedings of the bid shall be sent by the Panchayat to the Sub-Divisional Officer of the area within 3 days of the acceptance thereof. If no objection to the acceptance of the bid is received within a period of one month of its receipt, the Panchayat shall proceed with the finalisation of the auction.

(3) Where the bid of the land auctioned exceeds two hundred rupees in amount, the Panchayat

[2025:RJ-JD:22047] (8 of 14) [CW-2892/2000]

shall address, for the approval of the proposed sale at the price equal to the amount of the highest bid.

(i) the Panchayat Samiti having jurisdiction if such amount does not exceed Rs.1,000/-.

(ii) the Collector, if such amount exceeds Rs.2,000/- but does not exceed Rs.5,000/- and

(iii) the State Government, if such amount exceeds Rs.5,000/-."

"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 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.

(2) The Panchayat may, by resolution, transfer by way of sale without charging any price therefore, any abadi land of which the probable value does

[2025:RJ-JD:22047] (9 of 14) [CW-2892/2000]

not exceed Rs. 200/- in favour of any institution for a public purpose."

"Rule 270. -Appeals - An appeal shall lie -

(a) from an original order of the Panchayat confirming the sale of abadi land under rule 265 (or transfer of abadi land under rule 266 or allotment of lands under rule 267, read with rule

268) to the Panchayat Samiti.

(b) from such order of the Panchayat Samiti, to the Collector, and

(c) from such order of the Collector (to the Revenue Appellate Authority having jurisdiction) and may be brought within thirty days from the date of the order appealed from, exclusive of the time requisite for obtaining a copy thereof."

"Rule 272. - Revision - (1) The State Government or any officer or authority to whom the powers of the State Government under section 27-A may have been delegated by notification under section 70, on its or his own motion or on an application made in behalf, may for the purpose of satisfying itself or himself as to the correctness legality or propriety of any order passed by the Panchayat or the Panchayat Samiti or the Collector (or the Revenue Appellate Authority), under rule 265 (or rule 266 or rule 267 or rule 268) or on appeal under rule 270, called for the connected records and may, in doing so, direct that, pending the examination of the records, such order shall be held in abeyance:

Provided that the power conferred by this sub-rule shall not be exercise while an order under rule 265 (of rule 266 or rule 267 or rule 268), has been

[2025:RJ-JD:22047] (10 of 14) [CW-2892/2000]

appealed from under rule 270 and such appeal is pending."

21. Indisputably, the resolution dated 16.10.1996 of the Gram

Panchayat, Aspur conveying land ad-measuring 15 ft x 11 ft in

Khasra No.1323/846 by private negotiation for a meagre amount

of Rs.9,900/- had been set aside by the respondent No.5 vide its

order dated 04.09.1997 and the same had attained finality as no

challenge thereto in accordance with law or by way of filing a writ

petition under Article 226/227 of the Constitution of India was laid

to it.

22. One fails to comprehend as to how the matter came up

before the State Government and what was the power available

with it to pass the order dated 20.04.2000 and set aside a duly

adjudicated order passed by the Appellate Authority on

04.09.1997.

23. The order of the Additional District Collector, Dungarpur

passed under section 92 of the Act of 1994 read with rule 270(b)

of the Rules of 1961 could not be interfered with by the State

Government, more particularly when it was a quasi-judicial order

pursuant to an appeal which the petitioners' predecessor had

preferred.

24. The order of respondent No.5 can be treated to be an order

passed under the provisions of sections 97 and 98 of the Act of

1994 which provide that the Collector shall be empowered to

decide the revision petition, because powers under section 97

have been delegated to the Collector by way of notification dated

[2025:RJ-JD:22047] (11 of 14) [CW-2892/2000]

03.12.1996 as submitted by Mr. K.S. Solanki, learned counsel for

the respondent - State.

25. This Court is of the considered view that the provisions

contained in Rule 266 of the Rule of 1961 is an exception to the

provisions given under Rule 255 to Rule 262 of the Rules of 1961

which clearly provide that the land situated in Abadi area shall be

sold by way of an auction.

26. Apart from the fact that the order impugned dated

20.04.2000 is clearly without jurisdiction, this Court is of the view

that the manner in which the order had been passed, shocks the

conscience of the Court. The power to grant patta under Rule 266

of the Rules of 1961 vests with the Gram Panchayat, however,

subject to four conditions.

27. This Court does not agree with the contention of Mr. Bhavit

Sharma, learned counsel for the respondent No.2 that the case

falls within the clause (d) of the Sub-Rule (1) of Rule 266 of the

Rules of 1961, inasmuch as there is no finding of old possession of

the respondent No.2.

28. As a matter of fact, the petitioners have placed on record a

copy of the representation dated 25.08.1996 moved by the

respondent No.2 before the Sarpanch. A perusal of said

representation reveals that respondent No.2 had simply asked the

Gram Panchayat, Aspur to give a plot for establishing a shop and

godown, while clearly mentioning that he was an unemployed

person. The said representation does not make a whisper about

old possession. Hence, the plea of respondent No.2 that the piece

[2025:RJ-JD:22047] (12 of 14) [CW-2892/2000]

of land was sold to him by private negotiation in terms of clause

(d) of Rule 266(1) of the Rules of 1961 is not tenable.

29. That apart, the minutes of meeting dated 10.01.1997

(Annexure-3) does not record a finding of old possession of the

respondent No. 2. Furthermore, the Gram Panchayat, Aspur could

not have sold the land ad-measuring 15 ft x 11 ft to the

respondent No.2 on the basis of the private negotiation at the rate

of Rs.9,900/-, as it required at least 20 years old possession. The

Gram Panchayat, Aspur has neither mentioned about the market

price nor had it referred to relevant clause of Rule 266 of Rules of

1961.

30. While doing so, the Gram Panchayat, Aspur had clearly

observed that the encroachment which respondent No.2 had made

on the land be removed. Such stipulation in the resolution clearly

establishes that the land ad-measuring 15 ft x 11 ft was not in his

possession and had been sold to him (respondent No.2) through

private negotiation and remaining part had been held to be

encroachment.

31. On perusal of the record (Annexure-1), this Court further

finds that on 16.12.1997, the adjacent plots had been sold to the

persons named therein for a considerable amount of

Rs.1,33,000/-, Rs.1,03,000/- and Rs.1,42,000/-.

32. As per the stand which the respondent No.2 has taken in his

reply, the transfer of disputed land/plot was regularization of his

old possession and not by way of auction. This plea is indisputably

an after thought - neither the representation of respondent No.2

(Annexure-7) filed with the rejoinder supports the plea, which he

[2025:RJ-JD:22047] (13 of 14) [CW-2892/2000]

has taken later nor does the resolution impugned support the

story canvassed by him. When the respondent - Gram Panchayat,

Aspur had auctioned the adjacent plots of equal size at such

higher price, its action of selling the subject plot at meager price

by way of private negotiation to the respondent No.2 cannot be

countenanced.

33. The argument of Mr. Bhavit Sharma that the petitioners have

no locus to challenge the order passed by the State Government is

hardly of any substance. Since it was pursuant to petitioners'

appeal, the respondent No. 5 had passed the order dated

04.09.1997 and set aside the resolutions adopted by the

concerned Gram Panchayat and Panchayat Samiti, the petitioners

have a locus and right to challenge the order passed by the State

Government, that too when it has been passed behind their back.

34. As an upshot of discussion foregoing, the writ petition is

allowed. The order dated 20.04.2000 passed by the State

Government is quashed and set aside being without jurisdiction.

35. Consequently, the order of the Appellate Authority dated

04.09.1997 is restored.

36. The concerned Gram Panchayat shall proceed in furtherance

of the order of the Appellate Authority dated 04.09.1997 in

accordance with law.

37. Since respondent No.2 is having long possession over the

plot in question, the respondent - Gram Panchayat shall not

dispossess him until auction takes place whereafter his possession

shall be treated to be illegal if he does not come out to be

successful bidder in such auction.

[2025:RJ-JD:22047] (14 of 14) [CW-2892/2000]

38. The stay application also stands disposed of, accordingly.

(DINESH MEHTA),J 8-Mak/-akansha/-

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