{"id":46817,"date":"2009-02-19T00:00:00","date_gmt":"2009-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sarpanchgram-panchayat-vs-a-d-c-nagaur-ors-on-19-february-2009"},"modified":"2015-08-15T09:30:00","modified_gmt":"2015-08-15T04:00:00","slug":"sarpanchgram-panchayat-vs-a-d-c-nagaur-ors-on-19-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sarpanchgram-panchayat-vs-a-d-c-nagaur-ors-on-19-february-2009","title":{"rendered":"Sarpanch,Gram Panchayat vs A.D.C. Nagaur & Ors on 19 February, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Sarpanch,Gram Panchayat vs A.D.C. Nagaur & Ors on 19 February, 2009<\/div>\n
                                   1\n\n           S.B. CIVIL WRIT PETITION NO.4159\/1997.\n      The President, Gram Sewa Sahkari Samiti Limited, Kathoti\n\n                                   Vs.\n            The Additional District Collector, Nagaur & Ors.\n\n\n\nDate of Order ::        19th February 2009.\n\n\n      HON'BLE MR. JUSTICE DINESH MAHESHWARI\n\nMr. R.K. Soni, for the petitioners.\nMr. R.S. Choudhary and\nMr. J.R. Chawel for\nMr. G.R. Punia, for the respondents.\n                                ...\n\nBY THE COURT:<\/pre>\n
      By way of this writ petition challenge is given to the<\/p>\n
order dated 09.09.1997 (Annex.6) as passed by the Additional<\/p>\n
Collector, Nagaur in Panchayat Revision No. 32\/1989 whereby<\/p>\n
the learned Additional Collector, while allowing the revision<\/p>\n
petition preferred by Ganpat Ram (respondent No.3 herein),<\/p>\n
proceeded to set aside a patta granted by Gram Panchayat,<\/p>\n
Kathoti    in favour of Gram Sewa Sahakari Samiti Limited,<\/p>\n
Kathoti.\n<\/p>\n
      Though this writ petition has presently been pressed by<\/p>\n
the President of the said Gram Sewa Sahakari Samiti but,<\/p>\n
initially, this writ petition was preferred by the Sarpanch of the<\/p>\n
said Gram Panchayat as petitioner No.1 and the present<\/p>\n
petitioner, the President of the said Gram Sewa Sahakari
\n                                   2<\/span><\/p>\n
Samiti, as petitioner No.2. This writ petition was entertained<\/p>\n
by this Court on 24.11.1997 while issuing notices and the<\/p>\n
operation of the impugned order was stayed but later, on an<\/p>\n
application moved by the present petitioner on 12.02.2001, the<\/p>\n
petitioner No.1 was ordered to be transposed as proforma<\/p>\n
respondent; and the present petitioner filed the amended<\/p>\n
cause title showing the original petitioner No.1 as the<\/p>\n
respondent No.4 but without any amendment of the averments<\/p>\n
as taken in the original writ petition.\n<\/p>\n
      The substance of the averments taken in the petition<\/p>\n
could be taken into comprehension thus: While maintaining<\/p>\n
that the petitioners Nos. 1 and 2 are keen to safeguard public<\/p>\n
as well as their own interest, it is stated that the petitioner No.1<\/p>\n
was authorised by the petitioner No.2 to sign and verify the<\/p>\n
pleadings and to swear affidavit for the purpose of this writ<\/p>\n
petition. It is averred that on 12.10.1982, a patta for abadi land<\/p>\n
situated near Old Bus Stand, Ward No.5, village Kathoti<\/p>\n
admeasuring 70 ft. x 100 ft. was issued by the petitioner No.1<\/p>\n
in favour of the petitioner No.2 after following the procedure<\/p>\n
established by the Rules; that the proceedings were duly<\/p>\n
adopted and public notice inviting objections was also issued;<\/p>\n
that no any objection was received and hence, patta was<\/p>\n
issued in accordance with law; and that the respondent No.3
\n                                3<\/span><\/p>\n
was very much a party to such proceedings for himself being a<\/p>\n
Ward Panch and did sign the resolution dated 17.07.1982 as<\/p>\n
adopted by the Panchayat for issuance of the patta in<\/p>\n
question.\n<\/p>\n
       However, according to the petitioners, the land in<\/p>\n
question being a valuable one and being at prime location, the<\/p>\n
respondent No.3 illegally encroached over the same while the<\/p>\n
said patta proceedings were in progress; and he was issued<\/p>\n
notice by the Gram Panchayat to remove his encroachment.<\/p>\n
In any case, the petitioners assert, the respondent No.3 was<\/p>\n
very much aware of the patta proceedings and did not file any<\/p>\n
objection in that regard but after issuance of the patta,<\/p>\n
preferred an appeal that was dismissed by the Standing<\/p>\n
Committee of Panchayat Samiti, Jayal by its order dated<\/p>\n
29.09.1989 (Annex.5). Thereafter, the petitioners point out, the<\/p>\n
respondent No.3 preferred a revision petition that came to be<\/p>\n
allowed by the impugned order dated 09.09.1997 (Annex.6)<\/p>\n
whereby the patta has been ordered to be cancelled by the<\/p>\n
Revisional Authority not on the ground that it was issued<\/p>\n
without following the prescribed procedure but on the<\/p>\n
consideration that the Panchayat had started two parallel<\/p>\n
proceedings regarding the same land: one for issuance of<\/p>\n
patta to the petitioner No.2 and another for removing of
\n                                 4<\/span><\/p>\n
encroachment wherefor a notice was issued to the respondent<\/p>\n
No.3 on 01.09.1982.\n<\/p>\n<\/p>\n
      While questioning the legality and correctness of the<\/p>\n
order dated 09.09.1997, it has been submitted in the writ<\/p>\n
petition that the proceedings for issuance of patta commenced<\/p>\n
way back on 14.05.1982 and no encroachment was found on<\/p>\n
the land during the site inspection carried out by three<\/p>\n
Panchas of the Gram Panchayat on 17.07.1982; and,<\/p>\n
according to the petitioners, only after 17.07.1982, the<\/p>\n
respondent No.3 illegally and with an ill-intention to grab the<\/p>\n
valuable piece of land, encroached thereupon and hence, a<\/p>\n
notice was issued to him on 01.09.1982. It is maintained that<\/p>\n
the patta in question was issued after following the procedure<\/p>\n
established by the Rules and the petitioner No.1 had the<\/p>\n
jurisdiction and authority to issue the same. It has also been<\/p>\n
averred in the writ petition that the petitioner No.1 is<\/p>\n
discharging the functions in public interest and the disputed<\/p>\n
piece of land is located at a public utility place; and when<\/p>\n
public interest is pitted against private interest, the former<\/p>\n
should be sustained. Even otherwise, according to the<\/p>\n
petitioners, the respondent No.3 had no right or title to the land<\/p>\n
in question and was not entitled to get the patta cancelled. It is
\n                                5<\/span><\/p>\n
submitted that the learned Revisional Authority has proceeded<\/p>\n
to cancel the patta without any finding on violation of any of<\/p>\n
the requirements of law; and the impugned order remains<\/p>\n
fundamentally illegal. However, it is submitted in the<\/p>\n
alternative and without prejudice that even if the impugned<\/p>\n
order is to stand, the respondent No.3 is not entitled to retain<\/p>\n
the possession of the land in question for himself being<\/p>\n
nothing but a trespasser and the petitioner No.1 is entitled to<\/p>\n
dispossess him.\n<\/p>\n
      The reliefs have been claimed in this writ petition in the<\/p>\n
manner that the impugned order dated 09.09.1997 may be<\/p>\n
quashed; the respondent No.3 may be directed to remove his<\/p>\n
stones etc. lying on the land in question failing which, the<\/p>\n
petitioners may be permitted to remove the same in<\/p>\n
accordance with law; and, alternatively, the petitioner No.1<\/p>\n
may be permitted to dispossess the respondent No.3 from the<\/p>\n
land in question. The petition was filed supported by the<\/p>\n
affidavits sworn by the then Sarpanch of Gram Panchayat,<\/p>\n
Kathoti as petitioner No.1, allegedly having also been<\/p>\n
authorised on behalf of the petitioner No.2.<\/p>\n
      As noticed above, this writ petition was entertained on<\/p>\n
24.11.1997 and by way of interim order, the operation and<\/p>\n
effect of the impugned order dated 09.09.1997 was ordered to
\n                                6<\/span><\/p>\n
remain stayed. During the pendency of this writ petition, an<\/p>\n
application came to be moved on 03.03.1999, essentially by<\/p>\n
the Sarpanch of Gram Panchayat, for modification of the stay<\/p>\n
order with the submissions that the respondent No.3 was<\/p>\n
attempting to change the situation at site and, therefore, he<\/p>\n
was required to be restrained from putting any building<\/p>\n
material or raising any construction. However, the said<\/p>\n
application came to be rejected by this Court on 09.03.1999.<\/p>\n
      Thereafter, the application came to be moved on<\/p>\n
12.02.2001, this time by the petitioner No.2 seeking<\/p>\n
transposition of the petitioner No. 1 as proforma respondent<\/p>\n
with the submissions that the Sarpanch of Gram Panchayat<\/p>\n
was defeated in the last panchayat elections and the<\/p>\n
respondent No.3 Ganpat Ram was allegedly a supporter of the<\/p>\n
present Sarpanch and, therefore, the petitioner No.2 had a<\/p>\n
reasonable apprehension that the petitioner No.1 may not<\/p>\n
prosecute the writ petition properly. The said application was<\/p>\n
allowed on 27.03.2001 and the petitioner proceeded to submit<\/p>\n
an amended cause title transposing the petitioner No.1 as<\/p>\n
respondent No.4; and the notices were issued to the said<\/p>\n
respondent No.4. However, as noticed, the present petitioner<\/p>\n
(the original petitioner No.2) has chosen to proceed with this<\/p>\n
writ petition with the averments as originally taken and without
\n                                 7<\/span><\/p>\n
seeking any amendment or alteration of the pleadings.<\/p>\n
      The respondent No.3 has submitted a reply to the writ<\/p>\n
petition with the averments, inter alia, that the petitioners Nos.<\/p>\n
1 and 2 have logically no connection so as to join as the writ<\/p>\n
petitioners. It is alleged that only the Sarpanch concerned who<\/p>\n
had the grudge against the answering respondent because of<\/p>\n
political groupings has preferred this writ petition. The<\/p>\n
answering respondent denies having made any encroachment<\/p>\n
and asserts that he is in old possession of the land in<\/p>\n
question. The answering respondent has averred that he did<\/p>\n
not receive the alleged earlier notices dated 01.09.1982 and<\/p>\n
15.09.1982 but, of course, received the notice dated<\/p>\n
01.10.1982 that was replied on 05.10.1982 while seeking to<\/p>\n
adduce evidence on the point. It is alleged that the Sarpanch,<\/p>\n
for having a grudge against the answering respondent,<\/p>\n
proceeded to make the allotment in favour of the petitioner<\/p>\n
No.2 without following the procedure as laid down by the<\/p>\n
Rules and it is maintained that his possession over the land<\/p>\n
being a fact admitted, the Panchayat had no right to issue any<\/p>\n
patta without getting the land vacated. It is submitted that the<\/p>\n
Revisional Authority has rightly set aside the patta in question<\/p>\n
and the impugned order calls for no interference.<\/p>\n
      While    questioning     the   impugned       order   dated
\n                               8<\/span><\/p>\n
09.09.1997, learned counsel for the petitioner has strenuously<\/p>\n
contended that there being no illegality in the allotment<\/p>\n
proceedings as adopted by the Panchayat for issuance of the<\/p>\n
patta in favour of the petitioner, there was no reason for the<\/p>\n
authority concerned to set the same aside. Learned counsel<\/p>\n
also referred to the order dated 29.09.1989 as passed by the<\/p>\n
Appellate Authority and submitted that the findings on facts<\/p>\n
make it clear that the respondent No.3 was not in possession<\/p>\n
of the land in question earlier and encroached over the same<\/p>\n
only when the Panchayat had adopted the proceedings for<\/p>\n
allotment in favour of the petitioner. While relying on the<\/p>\n
decisions of this Court in the cases of Smt. Nanu Vs. The<\/p>\n
State of Rajasthan & Ors.: 1997 (2) WLC 371 and Village<\/p>\n
Panchayat Manoharpur & Ors. Vs. State of Rajasthan & Ors.:<\/p>\n
1998 (3) WLC 377 learned counsel emphasized that being an<\/p>\n
encroacher, the respondent No.3 was neither entitled to<\/p>\n
maintain the revision petition nor could be encouraged in his<\/p>\n
land grabbing propositions; and that substantial justice cannot<\/p>\n
be allowed to escape on technicalities and the trespassers like<\/p>\n
the respondent No.3 deserve to be deprecated.<\/p>\n
      Having examined the record and having given a<\/p>\n
thoughtful consideration to the entire matter, this Court is<\/p>\n
unable to find any apparent error in the order as passed by the
\n                                   9<\/span><\/p>\n
learned Additional Collector, Nagaur so as to consider any<\/p>\n
interference in the writ jurisdiction. Moreover, looking to the<\/p>\n
very frame of the petition and the manner in which the same<\/p>\n
was filed and has been maintained, this Court does not feel<\/p>\n
inclined to issue any writ, order, or direction at the instance of<\/p>\n
the petitioner.\n<\/p>\n
      A comprehensive reading of the averments as taken in<\/p>\n
the writ petition that are supported by the affidavits of the then<\/p>\n
Sarpanch of the Panchayat concerned makes it evident that<\/p>\n
the present one was essentially a petition filed by the said<\/p>\n
Sarpanch and the real intent was to seek some order from this<\/p>\n
Court against the respondent No.3. When the Panchayat had<\/p>\n
otherwise granted a patta to the Samiti under its statutory<\/p>\n
powers and the patta came to be cancelled by the Revisional<\/p>\n
Authority upon being questioned by the respondent No.3, in<\/p>\n
the ordinary circumstances, the Panchayat, the allotting<\/p>\n
authority, could least be considered to be a person directly<\/p>\n
affected so as to file a writ petition in the matter.<\/p>\n
      The petitioner No.1 and the petitioner No.2 even when<\/p>\n
chose to join this writ petition as joint petitioners, cannot be<\/p>\n
considered        having common cause of action; and, in the<\/p>\n
ordinary course, any grievance against the order dated<\/p>\n
09.09.1997 would have essentially and primarily been of the
\n                                 10<\/span><\/p>\n
allottee rather than the allotting authority. The real intent and<\/p>\n
purpose of the writ petition is seen in the submissions as made<\/p>\n
in the alternative that the possession of the respondent No.3<\/p>\n
was required to be removed and the prayer as made in the<\/p>\n
alternative to the same effect. It is rather inexplicable that if at<\/p>\n
all the Panchayat wanted to take some proceedings for<\/p>\n
encroachment removal in accordance with law, as to what was<\/p>\n
the hitch or impediment; and as to what was the reason and<\/p>\n
cause to seek any writ or direction in that regard from this<\/p>\n
Court? The Revisional Authority has not prohibited the<\/p>\n
Panchayat from taking up any proceedings in accordance with<\/p>\n
law. The manner of filing and maintaining this writ petition<\/p>\n
does not inspire confidence.\n<\/p>\n
      Moreover, it remains indisputable that the Panchayat<\/p>\n
concerned proceeded to issue a notice to the respondent No.3<\/p>\n
on 01.09.1982 (Annex.R-3\/1) calling upon him to explain by<\/p>\n
15.09.1982 as to how did he make the encroachment and<\/p>\n
warning him of appropriate proceedings. By the next notice<\/p>\n
dated 15.09.1982 (Annex.R-3\/2) the Panchayat reminded the<\/p>\n
respondent No. 3 of his having not given the reply to the notice<\/p>\n
dated 01.09.1982 and stated that by the resolution dated<\/p>\n
14.05.1982, the land in question was resolved to be allotted to<\/p>\n
the Gram Seva Sahakari Samiti Limited and thereafter, on
\n                                11<\/span><\/p>\n
15.07.1982, did he make the encroachment on the said land<\/p>\n
though the allotment proceedings had been completed in<\/p>\n
favour of the said Samiti. The date of making encroachment by<\/p>\n
the respondent No.3 as stated in the said notice dated<\/p>\n
15.09.1982 (i.e., 15.07.1982) rather contradicts the assertion<\/p>\n
on the part of the Panchayat that the site in question was<\/p>\n
inspected on 17.07.1982. If at all any such inspection was<\/p>\n
carried out, the possession of the respondent No.3 would have<\/p>\n
been reported. The proceedings as suggested by the<\/p>\n
Panchayat do not appear free from doubt.\n<\/p>\n<\/p>\n
      Even while leaving the doubts about bona fides behind<\/p>\n
this writ petition and so also the incongruity in the stand of the<\/p>\n
Panchayat aside and examining the impugned order, this<\/p>\n
Court is unable to find any error or illegality calling for<\/p>\n
interference. This much is certain that in any event, the final<\/p>\n
decision to grant the patta to the present petitioner was taken<\/p>\n
only on 01.10.1982 and prior to that, the respondent No.3 had<\/p>\n
been served the notices by the Panchayat on 01.09.1982 and<\/p>\n
15.09.1982 stating about his encroachment and seeking reply<\/p>\n
within 15 days. As on 01.10.1982, admittedly, the Panchayat<\/p>\n
had not received any reply from the respondent No.3 nor his<\/p>\n
encroachment had been removed. The fact that he had not
\n                                12<\/span><\/p>\n
given a reply nor vacated the land was specifically stated in<\/p>\n
the next notice issued by the Panchayat on 01.10.1982<\/p>\n
whereby the respondent No.3 was called upon to remove the<\/p>\n
encroachment within 15 days.\n<\/p>\n
      In the indisputable fact situation, it is clear that as on<\/p>\n
01.10.1982, the Panchayat concerned was very much aware<\/p>\n
of the fact that the land in question was not an unoccupied<\/p>\n
land and, even when of encroachment, the possession had<\/p>\n
been of the respondent No.3 who was being served with the<\/p>\n
notices. It beats the logic as to how the Panchayat chose to<\/p>\n
issue a patta in favour of the present petitioner on 01.10.1982<\/p>\n
and that very day issued third notice to the respondent No.3<\/p>\n
asking him to remove the encroachment.\n<\/p>\n
      At the time of making the allotment in question, the<\/p>\n
Panchayat concerned was aware of the position that the<\/p>\n
possession of the land in question was not available to be<\/p>\n
delivered to the allottee, i.e., the present petitioner. Despite<\/p>\n
the land being not available to be delivered in possession, the<\/p>\n
Panchayat was, obviously, not justified in making an allotment<\/p>\n
on 01.10.1982 and the learned Revisional Authority cannot be<\/p>\n
said to have committed an illegality in setting aside the<\/p>\n
disputed allotment.\n<\/p>\n
      The reference as made by the learned counsel for the
\n                               13<\/span><\/p>\n
petitioner to the cases of Smt. Nanu and Village Panchayat<\/p>\n
Manoharpur (supra) appears to be entirely misplaced. The<\/p>\n
order as passed by the learned Additional Collector cannot at<\/p>\n
all be said to be putting any premium on dishonesty nor the<\/p>\n
allotment has been set aside on mere technicalities. When the<\/p>\n
respondent No.3 was admittedly in possession of the land in<\/p>\n
question and he was being served with the notices in that<\/p>\n
regard, the Panchayat concerned could not have made the<\/p>\n
allotment in favour of the petitioner without completion of the<\/p>\n
proceedings under such notices. If acting bona fide, nothing<\/p>\n
prevented the Panchayat concerned from completing the<\/p>\n
proceedings under such notices and removing the possession<\/p>\n
of the respondent No.3, if at all being that of an encroachment<\/p>\n
before making the allotment in accordance with law. Merely<\/p>\n
because the Panchayat could suggest itself having addressed<\/p>\n
to the basic requirements of the rules of procedure, it cannot<\/p>\n
be accepted that it had a right to make allotment of an<\/p>\n
occupied piece of land to a person and thereafter seek<\/p>\n
removal of other person therefrom.\n<\/p>\n
      In the given fact situation, the learned Additional<\/p>\n
Collector has not committed any illegality in disapproving the<\/p>\n
allotment as made in favour of the present petitioner and there<\/p>\n
appears no reason to issue any writ, order, or direction in this
\n                                          14<\/span><\/p>\n
         matter at the instance of the petitioner.\n<\/p>\n
               The writ petition fails and is, therefore, dismissed.<\/p>\n
         However, in the circumstances of the case, the parties are left<\/p>\n
         to bear their own costs.\n<\/p>\n
                                              (DINESH MAHESHWARI), J.\n<\/p>\n
Mohan\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Sarpanch,Gram Panchayat vs A.D.C. Nagaur & Ors on 19 February, 2009 1 S.B. CIVIL WRIT PETITION NO.4159\/1997. The President, Gram Sewa Sahkari Samiti Limited, Kathoti Vs. The Additional District Collector, Nagaur & Ors. Date of Order :: 19th February 2009. HON’BLE MR. JUSTICE DINESH MAHESHWARI Mr. R.K. Soni, for the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-46817","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nSarpanch,Gram Panchayat vs A.D.C. 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