- (1.) BY way of this intra-court appeal, the petitioner-appellant seeks to question the order dated 03.09.2012 as passed in CWP No.9037/2012 whereby the learned Single Judge of this Court declined to entertain the writ petition against the order dated 25.07.2012 as passed in Panchayat Revision Petition No.10/2011 whereby the District Collector, Barmer proceeded to cancel one patta bearing number 21 dated 11.10.2006 as issued by the Sarpanch, Gram Panchayat, Gunga for about 18,750 sq.ft. of land in the name of regularisation of old possession for a sum of Rs.200/- under Rule 157 (b) of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules of 1996').
(2.) IN the impugned order dated 25.07.2012, the learned Collector found the patta in question offending all the requirements of law and having been issued in contravention of Section 48 (3) of the Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') and Rule 47 (1) of the Rules of 1996 for the wife of the allottee-appellant, the Sarpanch of the Panchayat concerned, having participated in the meeting where the decision was taken for issuance of the patta in question. The learned Collector also found that the proceedings stood vitiated for non-compliance of the other requirements of the Rules. The Collector, inter alia, observed and held as under:- "................... 1996 47(1) 48(3), (4) " % % ) " + + % % 0 % (Pecuniary interest) 5 7 (Principles of Natural Justice) 0) ; + % " + (No one can be judge in his own case) % " %+ " " 17.05.2006 0 10.11.2006 ) + 0 " 0 %+ " , + 0 0 " + ) + H 01 + % " 0 H 01 47(1) 48(3) (4) % " 0 % + 47(1) 48(3) (4) 145 157 % + ) L 0 H 01 " + + 7. ; % 5 ) S T + ) 0 0 47(1) 48(3) (4) 145 157 % + ) + % H T0 H 01 " + 21 11.10.2006 " Seeking to question the order aforesaid, it was contended before the learned Single Judge that the petitioner was in possession of the land in question since long and, therefore, the provisions of the Rules governing sale and purchase of land had no application because the case was of regularisation of old house in terms of Rule 157 of the Rules of 1996. It was also submitted that there was a civil suit pending in respect of the plot in question and a temporary injunction had been granted in favour of the petitioner; and, therefore, the Revisional Authority should have refrained from deciding the revision petition concerning the patta in question. It was also submitted that wife of the petitioner had not been shown extending undue benefit to the petitioner and, therefore, the patta could not have been cancelled on the basis of the allegations of violation of Section 48 (3) of the Act of 1994. The learned Single Judge found no case for interference while observing, inter alia, that the patta for a huge chunk of land admeasuring 18,750 sq.ft. could not have been issued in favour of the petitioner on the basis of the alleged existence of one kuchcha house; and Rule 157 had no application as it was not a case of existence of an old house at the land in question. The learned Single Judge further referred to Section 48 (3) of the Act of 1994 and found that the petitioner's wife had presided over the meeting of Panchayat and participated in the decision making process regarding grant of patta in favour of her husband and, therefore, it would be against the public policy to sustain such resolution. The learned Single Judge also found that validity of patta was not sub- judice before the Civil Court nor any injunction had been granted by the Court; and, therefore, the pendency of the civil suit was not of any impediment in the learned Collector dealing with the validity of the patta in question. The learned Single Judge yet further observed that in fact, the land in question was forming part of National Highway and was even otherwise not available for allotment. The learned Single Judge proceeded to dismiss the writ petition, inter alia, with the following observations:- "5. Indisputably, in the instant case, the petitioner applied for patta of the Abadi land claiming himself to be in possession of old house over the land in question. It is to be noticed that as per the site inspection report submitted by committee of Panchas, there existed only a 'kachha house' at the relevant time. Rule 157 of the Rules makes provision for regularisation of old houses and therefore, the regularisation can be made on depositing the charges only in respect of the land which can be legitimately be considered to be covered by the house constructed. It is pertinent to note that in the instant case, in the garb of alleged possession over a 'kachha house', patta of a huge land 18,750 sq. ft. has been issued in favour of the petitioner. Moreover, the land in question forms part of the National Highway and therefore, the same was not even otherwise available for allotment. 6. Indisputably, Section 48(3) of the Act mandates that no member of Panchayat Raj Institution shall vote on or take part in discussion on any questions coming for consideration at the meeting of Panchayati Raj Institution if the question is one in which apart from its general application to public, he has any pecuniary interest and he shall not preside over the meeting when such question comes up for consideration. Obviously, the said provision has been incorporated inasmuch as, a person holding the public office cannot be permitted to participate in the proceedings and take a decision in respect of his own pecuniary interest. In the instant case, the petitioner's wife had presided over the meeting of Gram Panchayat and also participated in the decision making process regarding the grant of patta in favour of his husband, the petitioner herein and therefore, it will be against the public policy to sustain the resolution of Gram Panchayat adopted in the said meeting regularising the possession of the petitioner over the land in question. 7. It has come on record that all that has been mentioned by the petitioner in the application preferred before the Gram Panchayat is that he is in possession of ancestral plot/house in the panchayat area and therefore, patta may be issued in his favour. Thus, in absence of any material on record about the petitioner being in possession of old house over the land in question so as to give rise to plausible claim of title, the decision taken by the Panchayat straight away to issue patta of a huge plot in favour of the petitioner, is ex facie contrary to the provisions of the Rules." Seeking to question the order aforesaid, the learned counsel for the petitioner-appellant has strenuously contended that the appellant cannot be penalised merely for his wife having been the Sarpanch of the Panchayat concerned nor could he be deprived of the right of seeking regularisation in accordance with law. The learned counsel has referred to Sub-section (4) of Section 48 of the Act of 1994 and submitted that for no person having raised objection about the presence of the wife of the appellant in the meeting, the decision validly taken cannot be considered a nullity. The learned counsel further submitted that the learned Single Judge has not been right in assuming that the land in question is a part of National Highway; and the learned Single Judge has failed to consider that it was a case of regularisation per Rule 157 of the Rules where the other provisions relating to the sale of abadi land do not apply. Having given a thoughtful consideration to the submissions made and having examined the record, we are clearly of the view that the learned Single Judge has rightly dismissed the baseless writ petition; and no case for interference in this intra-court appeal is made out.
(3.) SUB -section (3) of Section 48 of the Act of 1994 specifically prohibits any member of Panchayati Raj Institution from voting on or taking part in the discussion at a meeting of the Institution or presiding over the meeting when any such question comes up for consideration in which he/she has any pecuniary interest. Admitted position it is that the petitioner-appellant's wife had been the Sarpanch of the Panchayat concerned and did preside over the meeting in which the decision was taken to issue patta in favour of the petitioner-appellant in regard to 18,750 sq. ft. of land for Rs. 200/- in the name of regularisation. The pecuniary interest of the appellant's wife in such a decision is hardly a matter of doubt or debate. Whether any person raised objection per Sub-section (4) of Section 48 or not, the decision stood vitiated for having been taken squarely in defiance of the mandate of law. It would be rather a travesty of justice if a huge chunk of land admeasuring 18,750 sq. ft. is permitted to be given to the husband of the Sarpanch in the name of regularisation for a sum of Rs. 200/-; and that too, by way of a decision taken with the active participation of the Sarpanch herself. The act on the part of the appellant and his wife could only be viewed with disfavour and a writ Court could have never countenanced such a blatant misuse of powers. The other submissions also do not make out any case for interference. Whether the land in question abuts the National Highway or not, is not of much relevance but in that regard too, it appears from the patta granted (Annex.1) itself that the land in question is right on the National Highway because NH-14 is shown to be on its western boundary. Even for regularisation, it beats imagination as to how it could have been considered to be a case of old possession of 50 years on the basis of kuchcha structure on the land in question. In the ultimate analysis, we are satisfied that the learned Single Judge has rightly dismissed the baseless writ petition. This appeal fails and is dismissed summarily.;