- (1.) THIS petition has been filed challenging the order dated 14-5-2009 passed by the Additional Collector Sawai Madhopur in revision petition No.78/2008, filed under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (herein after the Rs.1994 Act'), whereby the learned Additional Collector has set aside the order (dated 20-12-2007) of allotment of a commercial plot admeasuring 231 sq. ft. (25.67 sq. yards) to the petitioner by the Gram Panchayat Choth ka Barwada.
(2.) THE learned Additional Collector held that the allotment made to the petitioner of the commercial plot in question was in violation of the procedure prescribed under Rules 145, 146, 147 as also 148 of the Rajasthan Panchayati Raj Rules, 1996 (herein after the Rs.1996 Rules'). It has been found from the record that the fees as required under Rule 145 (2) of the 1996 Rules was not deposited and on this count the application ought to have been dismissed at the threshold. The Additional Collector also found that as per Rule 146(2) three Panchas ought to have inspected the site, while only two Panchas have submitted inspection report dated 17-10-2007, which was an irregularity violating the allotment Rules. It was further found that there was no resolution or proposal passed by the Gram Panchayat as per Rule 147 of the 1996 Rules for sale of commercial plot in question and without complying with Rules 145, 146, 147 of the 1996 Rules, objections were invited under Rule 148 thereof. The notice inviting objections were not properly published by pasting on conspicuous places. It was further found that inspite of objections to allotment filed by other interested persons, the objections were not disposed of as required by Rule 149 of the 1996 Rules prior to allotment of plot in question to the petitioner. The Additional Collector with reference to Rule 143 of the 1996 Rules held that the allotment of commercial plot admeasuring 231 sq. ft. was palpably illegal, as under Rule 143 (3) of the 1996 Rules a commercial plot over 200 sq. ft. had to be mandatorily disposed of only by way of open auction and that in any event there was no material on record of the Panchayat showing that any proper decision had been taken or requisite procedure had been adopted for sale of commercial plot even with reference to Rule 156 of the 1996 Rules. It was also found that Jaswant Singh, respondent No.3 herein had also moved an application before the Gram Panchayat with regard to the same plot in question, which application was side-tracked and allotment was made in favour of the petitioner. Further the rates of commercial plots in the area from the Sub Registrar with reference to Rule 152 (4) of the 1996 Rules had not been obtained before the allotment unauthorisedly made to the petitioner. In view of aforesaid findings of facts establishing gross breach of governing rules, the Additional Collector proceeded to set aside the allotment dated 20/22-12-2007 of the commercial plot in favour of the petitioner. Mr. Mahesh Gupta, learned counsel appearing on behalf of the petitioner has submitted that the petitioner is a bonafide purchaser and the Gram Panchayat had authority under Rule 156 of the 1996 Rules to make allotment of the commercial plot in question. Counsel submitted that Rule 156 over-rides Rule 143(3) of the 1996 Rules. Counsel stated that after the allotment of plot in question the petitioner had made substantial construction over the plot and expanded a considerable amount thereon. It was submitted that in the event allotment were to be cancelled the petitioner would suffer great irreparable loss not of his making. It was also submitted that on 4-1-2010 even while this court vacated the interim order and directed the Gram Panchayat to hold auction proceedings, the cost of construction made by the petitioner was to be evaluated. It was also submitted that in the event allotment to petitioner of plot in question was not to upheld the petitioner should be entitled for the refund of amount expanded on the construction by the petitioner as determined by the Panchayat in terms of the interim order dated 4-1-2010. Counsel further submitted that the petitioner should also be free to take proceedings against the Panchayat if not satisfied with the reimbursement by the Panchayat in accordance with the spirit of the interim order dated 4-1-2010 for recovery of damages suffered owing to wrongful allotment of plot in question if so found by this court. Dr. R.K. Sharma, learned counsel appearing on behalf of Panchayat submits that the order passed by the Additional Collector is based on findings of facts and palpable breach of law while making the allotment to the petitioner. He submits that in view of Rule 143 (3) of the 1996 Rules allotment of a commercial plot in excess of 200 sq. fit was prohibited and such plots could not be sold except by way of open auction. Consequently the allotment of the plot in question made in favour of the petitioner purportedly under Rule 156 of the 1996 Rules was wholly illegal-and no such allotment could have been made. It is submitted that as far as the cost of construction over the plot in question is concerned, as per the evaluation report of the Assistant Engineer, PWD Chouth Ka Barwara the cost of construction was computed at Rs.1,36,294/-. Counsel further submits that as per direction of this court the plot in question was put on auction and the highest bid of the plot is Rs.11,75,000/-. He submits that as the auction not only included the plot in issue but also the construction thereon made by the petitioner, in keeping with the underlying spirit of the interim order dated 4-1-2010 a sum of Rs.1,36,294/- would be reimbursed to the petitioner. Heard learned counsel for the parties and perused the material available on record of writ petition. In my considered view, the order dated 14-5-2009 passed by the Additional Collector is founded on a clear and able analysis of the 1996 Rules with reference to evidence as obtained on the record of the Gram Panchayat Chauth ka Barwara in respect of the allotment of a commercial plot in question to the petitioner. Aside of the detailed analysis of the 1996 Rules by the Additional Collector in the impugned order I am of the view that Rule 143(3) of the 1996 Rules is determinative of the issue in the writ petition as it prohibits the allotment of a commercial plot in excess of 200 sq. ft. except by way of auction. Admittedly the commercial plot in question admeasuring 231 sq. ft. could have been disposed of only by way of auction. Instead it was illegally allotted to the petitioner on a grossly erroneous understanding of Rule 156 of the 1996 Rules. I find no force in the contention of the learned counsel for the petitioner that Rule 156 of the 1996 Rules over-rides Rule 143(3) of the said Rules. Contrarily in my considered view Rule 143 (3) of the 1996 Rules is a special provision providing for sale of commercial plots over 200 sq. ft. only by way auction. The said rule could not be subordinated to a general provision as Rule 156 of the 1996 Rules is. I find that even otherwise the case of petitioner could not even be conceivably covered under Rule 156 of the 1996 Rules, inasmuch as neither of the pre-conditions for exercising of the power under the said rule obtained in the facts of the case. The Additional Collector himself on perusal of the record of the Panchayat has found that there was no material on the record of the Panchayat for resorting to Rule 156 of the 1996 Rules while making the purported allotment to petitioner vide order dated 20/22-12-2007.
(3.) IN this view of the matter, I find no force in the writ petition. There is no error, perversity or misdirection of law in the impugned order dated 14-5-2009 passed by the Additional Collector Sawai Madhopur. The writ petition is dismissed. Even while dismissing the writ petition, I am of the view that in terms of the spirit and purport of the interim order of this court passed on 4-1-2010, the Panchayat having put the plot in question and construction made thereon by the petitioner to auction for a sum of Rs.11,75,000/- out of the said amount a sum of Rs.1,36,294/-, as arrived at on an evaluation by the Engineers of the PWD as the cost of construction raised by the petitioner, should be reimbursed to the petitioner. If dissatisfied with the reimbursement, the petitioner may take proceedings if available in law for recovery of additional amounts aside of Rs.1,36,294/- from the Panchayat. With the above directions, the writ petition is dismissed. ;