JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution against an order of the Additional Collector, Pali. The petition was contested by respondent No. 3.
(2.) THE facts which have given rise to this petition are these. On 20-10-1953 one Mahadat moved an application for grant of Patta of land 30 gaz x 15 gaz to the Gram Panchayat, Luaawa. THE sale of abadi land was at that time gorverned by r. 37a of the Rajasthan Panchayat (General) Rules, 1954. THE procedure prescribed under this rule was followed. No objection was filed by any of the petitioners before the Panchayat claiming that any part of the land advertised for sale belonged to him. On 27-12-1959 the Panchayat ordered that the land be put to auction. THE auction was held on 4th, 5th and 6th February, 1960 and on the last date the sale was declared in favour of Roopchand respondent No. 3 for Rs. 4501/- of land measuring 33-1/2 gaz x 10 gaz. One-tenth of the sale price was deposited by Roopchand on 14-2-60. This deposit was accepted by the Panchayat and a recommendation was made to Government for approval of the sale in his favour. On 6-2-1960 an appeal was preferred to the Panchayat Samiti, Bali against the order of the Gram Panchayat ordering the sale of the land. This appeal was preferred by some residents of the village including Sardarmal petitioner on the ground that the land was being used by the general public and should not be sold to any individual. Sardarmal did not claim in this appeal that any part of the land had been in his possession for a long time. On 6-4-1960 Sardarmal and Jhuarmal filed an objection before the Panchayat Samiti in which it was alleged that 4 cubits strip of land out of the land auctioned by the Panchayat belonged to them and they held a patta for it. It is not disputed that they did not hold any Patta from the State for any part of the land. The land formerly lay in the State of Marwar. Sec. 26 was introduced in the Marwar Limitation Act for the first time in 1926. No one could have become the owner of any land belonging to the State by adverse possession by the year 1960. The Panchayat Samiti accepted the appeal, set aside the order of auction and remanded the case for deciding the objection of Chandanmal who has been joined as respondent No. 4 to this petition. When the case came back to the Panchayat on remand it considered the objection of Sardarmal, which he had filed before the Panchayat Samiti on 6-4-1960. It held that the half of land advertised for sale which was adjacent to the house of Jhuarmal belonged to Sardarmal. On 27-11-1960 it passed an order for the grant of a Patta to him of this land at 6-1/4 % of the normal value of the land. The value of the land was taken to be Rs. 847-8-0 by the Panchayat although the whole of the land had been auctioned for Rs. 4501/- by the very same Panchayat on 6-2-1960 in favour of Roopchand. The value of half of this land was thus Rs. 2250/8/ -. On 28-5-1962 Roopchand filed an appeal before the Panchayat Samiti, Bali against the order granting Patta of half of the land to Sardarmal. This appeal was dismissed by the Panchayat Samiti on 13-5-1963 both on merits and on the ground that it was barred by limitation. The case of Roopchand was that he was not impleaded as a party in the appeal filed before the Panchayat Samiti on 6-2-1960, and had no knowledge of the subsequent proceedings which took place on remand till shortly before he filed an appeal before the Panchayat Samiti on 28-5-1962. On 15-6-1963 Roopchand filed a revision application purporting to be under sec. 27-A of the Panchayat Act before the Collector, Pali. This revision application was allowed by the Collector, the order granting Patta in favour of Sardarmal and others was set-aside and the sale in favour of Roopchand was upheld and it was directed that the State Government be moved to approve the same. Against the above order the present writ petition has been filed. I have heard the learned counsel for the parties. An appeal lay to the Tehsil Panchayat against administrative orders of the Gram Panchayat under sec. 58 (6) upto 10-9-59 when that sub-section was repealed. From 10-9-59 to 19-3-61 no appeal lay against orders of the Gram Panchayat relating to sale of abadi land. Sub-rule (20) of r. 37-A was however amended with effect from 22-4-60 as follows: - " (20) No transfer of ownership in abadi land by the Panchayat whether by sale, auction or private contract or by grant thereof shall be legally valid if the land exceeds Rs. 200/- in value, unless the approval of the following authorities is obtained: - if the land exceeds Rs. 200/- in value but does not exceed Rs. 1,000/- in value, the approval of the Panchayat Samiti having juris diction; if the value exceeds Rs, 1,000/-but does not exceed Rs. 2,000/-, the approval of the Collector of the District, and if the land exceeds Rs, 2000/- in value, the approval of the State Government. " It will thus be seen that when the appeal to the Panchayat Samiti was filed on 6-2-60 against the order of the Gram Panchayat directing the auction of the land no appeal lay against such an order. The order of the Panchayat Samiti can however be treated as one passed in exercise of its supervisory jurisdiction under sec. 70-A of the Panchayat Act, which came into force on 19-9-59. The order of the Panchayat Samiti however directed the Panchayat only to consider the objection of Chandanmal which had not been considered by the Panchayat. The Panchayat had no jurisdiction to consider the objection of Sardarmal which was filed for the first time before the Panchayat Samiti on 6-4-60. The order of the Panchayat granting Patta of half of the land, which had been auctioned in favour of Roopchand for Rs. 4,501/-, for a sum of Rs. 30-8-0 only was thus without jurisdiction and was rightly set aside. On behalf of the petitioner it is contended that the Collector erred in upholding the sale in favour of Roop Chand because that sale was not in accordance with R. 37-A of the Rajasthan Panchayat (General) Rules 1954. The relevant sub-rules arc these: - " (9) When the auction is held, the land shall, subject to the other provisions of this rule, be knocked down to the highest bidder, who shall deposit 10 per cent of the amount of the bid immediately, failing which the land shall be resold forthwith. The balance shall be deposited by the bidder within two months from the date of the auction, failing which the land shall be resold after fixing a fresh date, time and place for auction. " " (10) When the full amount of the bid has been deposited under sub-rule (9), a sale-deed of the land shall be executed on behalf of the Panchayat in Form No. 42-F, and a record of the said deed shall be kept by the Panchayat in a Register ( Patta Bahi ) to be maintained in the Form No. 42g" " (11) Whenever land is re-sold under sub-rule (9), the deficiency in price, if any, shall be recovered as Panchayat dues from the highest bidder at the first auction owing to whose default the re-sale had to be held. " " (12) No transfer of ownership in abadi land belonging to the Panchayat shall be valid unless it is in accordance with this rule. " The auction was held on 6-12-60 in favour of Roop Chand. He did not deposit one-tenth of the bid in accordance with sub-rule (9) of the date of the sale. He deposited it after sometime. It was however accepted by the Panchayat. The balance of the sale price was not deposited within two months. It has not been deposited so far. The reason given by Roop Chand for this is that the Panchayat did not accept the payment of the balance as sanction had not been received. The case was adjourned to enable parties to make an enquiry as to what was the practice followed by this Panchayat with regard to other similar sales of land. It appears from the material produced by the parties that the practice is that the balance of the money is deposited after the sale is sanctioned by the appropriate authority. The contention on behalf of the petitioner is that the above sub-rules are similar to the provisions contained in O. 21, Rr. 84, 85 and 86 C. P. C. which run as follows: - "r. 84. (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold. (2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule. " "r. 85. The full amount of purchase-money payable shall be paid by the purchaser into Court before the court closes on the fifteenth day from the sale of the property: Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72. " "r. 86. In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. " In Manilal Mohanlal vs. Sayed Ahmad (1) their Lordships of the Supreme Court held that the provisions of rules 84 and 85 were mandatory because of the following reasoning: - "the scheme of the rules quoted above may be shortly stated. A decree-holder cannot purchase property at the court-auction in execution of his own decree without the express permission of the court and that when he does so with such permission, he is entitled to a setoff, but if he does so without such permission, then the court has a discretion to set aside the sale upon the application by the judgment-debtor or any other person whose interests are affected by the sale (Rule 72 ). As a matter of pure construction this provision is obviously directory and not mandatory.- See "radha Krishna Vs. Bisheshar Sahay (A. I. R. 1922 Privy Council 336 ). The moment a person is declared to be the purchaser he is bound to deposit 25 per cent. of the purchase money unless he happens to be the decree-holder, in which case the court may not require him to do so (Rule 84 ). The provision regarding the deposit of 25 per cent, by the purchaser other than the decree-holder is mandatory as the language of the rule suggests. The full amount of the purchase money must be paid within fifteen days from the date of the sale but the decree-holder is entitled to the advantage of a set-off. The provision for payment is, however, mandatory (R. 85 ). If the payment is not made within the period of fiteen days, the court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the court to re-sell the property is imperative. A further consequence of nonpayment is that the defaulting purchaser forfeits all claim to the property (Rule 85 ). "
(3.) IT is argued that the above reasoning is equally applicable to sub-rule (9) of rule 37-A. On behalf of Roop Chand it is contended that the Panchayat sells land which vests in it and the sale by it is therefore more like a private contract than an execution sale. Reliance is placed on the observations of a learned single Judge in Gurdayal Singh vs. Gram Panchayat, Arayan (2) to the effect that - "speaking for myself, it appears to me that the various provisions in Rule 37-A are meant for the guidance of the Panchayat and do not purport to create any right in any individual that a particular rule should be followed, or if it has not been followed, this Court should inter-fere and set aside the sale. Under sub-rule (17), the Panchayat is permitted to sell land even by private sale. If any sale is invalid, it is the lookout of the purchaser whether he should take the risk or not. If there is any defect in the procedure laid down in the rules, it does not create any right in any other villager who has not acquired any interest in the land otherwise to claim that the land be resold or auctioned. The corrective can come from higher authorities who are controlling authorities in respect of the Panchayat but otherwise no individual whose present rights are not affected can challenge the sale or auction as being defective in any manner. The purchaser takes the land with whatever risk is involved due to any defect in procedure laid down for sale of auction. " 15. It was also argued that there is no rule corresponding to rule 86 in the Panchayat (Central) Rules and their Lordships of the Supreme Court relied partly on this rule in coming to the conclusion that the provisions of rules 84 and 85 of order 21 are mandatory. I have carefully considered the respective contentions and am of the opinion that the provisions of sub-rule (9) should be held to be mandatory. Although the Panchayat is selling land which vests in it, it nevertheless sells public property. It is made clear by sub-rule (21) that no transfer of ownership in Abadi land belonging to the Panchayat shall be valid unless it is in accordance with R. 37-A. Sub-rule (9) lays down that the highest bidder shall deposit 10 per cent of amount of the bid immediately failing which the land shall be resold forthwith. The balance is to be deposited within two months from the date of the auction failing which it is again provided that the land shall be resold after fixing a fresh date. If the rule is held to be directory the Panchayat can apply it discriminately. I am unable to subscribe to the view expressed by a learned single Judge in Gurdayal Singh vs. Gram Panchayat, Arayan (2 ). This view was not accepted either by the other learned Judge sitting on the bench in that case or in any subsequent decision. On the contrary sales held in contravention of mandatory provisions of R. 37-A have been set aside in numerous cases. I therefore hold that consequently the sale in favour of Roop Chand was invalid as he did not deposit one-tenth of the amount of his bid on the date of the auction and did not pay the balance of the price within two months and should not have been upheld by the Collector. I accordingly allow the writ petition in part, set aside the sale in favour of Roop Chand and direct that the land shall be reauctioned in accordance with the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. . ;