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Mala Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 2103 of 1983
Judge
Reported inAIR1984Raj128; 1983()WLN511
ActsConstitution of India - Article 226; Rajasthan Gram Panchayat and Nyaya Panchayat (General) Rule, 1961 - Rules 34, 255 to 265 and 272; Rajasthan Panchayat Act, 1953 - Sections 70
AppellantMala
RespondentState of Rajasthan and ors.
Appellant Advocate M.M. Singhvi, Adv.
Respondent Advocate H.M. Parekh and; K.C. Samdaria, Advs.
DispositionPetition dismissed
Cases ReferredG. Venkateswara Raw v. Govt. of Andhra Pradesh
Excerpt:
.....is not a natural or inherent right and cannot be assumed by implication--no revision to revenue appellate authority against an administrative order passed by collector--held, order of revenue appellate authority setting aside administrative order of collector in exercise of revisional jurisdiction is without jurisdiction.;a right of revision is not a natural or inherent right for the reason that a revision is a creation of statute. a right of revision does not exist & cannot be assumed unless expressly granted by statute or rules having the force of law. thus, a right of revision can not be implied.;no provision of revision has been made against the orders of administrative nature passed by the collector & the revenue appellate authority has not been vested with the..........disciplinary actions etc. against the members of the staff of panchayat and nyava panchavat. the orders annex 1 and annex. 2 of the collector do not relate to the service matters covered by chanter iv of the rules. rule 34 though couched in general terms, relates only to, the service matters and none-else. its scope cannot be extended to cover the other matters like those in, the present dispute. rule 34, cannot be stretched to cover all types of matters. the revisional powers granted to the collector under rule 34, cannot be construed to cover all tynes of matters by im-dtications. thus, orders annex. 1 and annex. 2 passed by the collector ace without jurisdiction and hence, stand illesal.9. it was argued that order annex. 2 dated sectember 4, 1979 was not set aside by the revenue.....
Judgment:
ORDER

S.S. Byas, J.

1. By this petition under Article 226 of the Constitution, the petitioner challenges the legality and correctness of an order dt. June 16, 1983 (Annex. 10) of the Revenue Appellate Authority, Jodhpur.

2. The dispute between the petitioner and the contesting respondents (Nos. 5 to 91 is over a plot of Abadi Land situate in village, Bada lying within the Panchayat Circle. Aakhrad District Jalore. There is no controversy between them about the facts involved. The facts are that Raggaram -- real brother of the pe'itioner, was the Sarpanrh of Gram Panchavat, Aakhrad. Complaints were made to the Collector, Jalore that Raggaram and Gram panchayat were adopting bias and partial attitude in the sale of land in dispute. The Collector by his order dt. August 30, 1979 (Annex. 1) withdrew the matter from Gram Panchavat. Aakhrad and directed Gram Panchavat. Malwara to take steps to dispose of the land in dispute by an open auction in accordance with the provisions of Rules 255 to 265 of the Rajas-than panchayat and Nvava panchayat (General) Rules, 1961 (hereinafter called as 'the Rules'). By his subsequent order dt. September 4, 1979. the Collector modified his earlier order dated August 30, 1979 (Annex. 1) and directed Gram Panchavat. Pansari to dispose of the land in dispute. The Gram Panchayat. Pansari, thereupon made an auction of the land in dispute. The petitioner being the highest bidder, the auction was knocked down in his favour and the land was sold to him for a sum of Rupees 95, Patta (Annex. 8) was also issued in his favour on July 11, 1983. However, the Revenue Appellate Authority. Jodhpur by his order dt. June 16, 1983 (Annex. 10) set aside the orders of the Collector and issued direction to the concerned Gram Panchavat, Aakhrad to dispose of the land in dispute in accordance with the provisions of the Rules. The grievance of the petitioner is that the order of the Revenue Appellate Authority. Jodhpur is illegal because no revision lies against the orders of the Collector passed under the Rules.

3. The contesting respondents, while admitting all these facts submitted that the order of the Collecor dt. August 30, 1979 (Annex. 1) and September 4, 1970 (Annex. 2) are in themselves illegal for the reason that he had no powers under the Rules to withdraw the proceedings of sale from the concerned Panchayat and direct some other panchayat to sell it. If the impugned order of the Revenue Appellate Authority is set aside as being unauthorised and without jurisdiction, the result would be the restoration of illegal orders of the Collector. It was also alleged that subsequent to the order of the Revenue Appellate Authority. Gram Panchavat, Aakhrad has sold the land in dispute to them and a Patta has also been issued in their favour.

4. I have heard the learned counsel for the parties at length. It was contended by Mr. Singhvi, learned counsel appearing for the petitioner that the impugned order dt. June 16, 1983 (Annex. 10) of the Revenue Appellate Authority is wholly illegal because the orders of the Collector were not open to revision. The order (Annex. 10) of the Revenue Appellate Authority, thus, being without jurisdiction should be set aside. The contention is not without force.

5. It is well-settled that a right of revision is not a natural or inherent right for the reason that a revision is a creation of statute. A right of revision does not exist and cannot be assumed unless expressly granted by statute or rules having the force of law. Thus, a right of revision cannot be implied.

6. Learned counsel appearing for the contesting respondents could not point out that orders: Annex. 1 dated August 30, 1979 and Annex. 2 dated September 4, 1979 passed by the Collector were open to revision under the provisions of the Rajasthan panchayat Act, 1953 or Rules. The Revenue Appellate Authority as his order Annex. 10 shows exercised, the revisional jurisdiction under Rule 272 of the Rules. Obviously, the authority was in error in doing so. The powers of revision under Rule 272 vests in 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 of the Rajasthan panchayat Act. 1953. Moreover, the powers of revision under Rule 272 can be exercised only in respect of the orders passed under Rules 265 or 266 or 267 or 270 of the Rules. The orders of the Collector Annex. 1 and Annex. 2 were not passed under any of these rules. The Revenue Appellate Authority was suite conscious of this fact and held in its impugned order Annex. 10 that the orders passed by the Collector were not under the Rajasthan panchayat Act or Rules. Ac-cording to the Revenue Appellate Authority, the orders of the Collector were of administrative nature. No provision of revision has been made against the orders of administrative nature Passed by the Collector and the Revenue Appellate Authority has not been vested with the revisional Jurisdiction to hear revision against such orders. Since the orders of the Collector were not open to revision, the impugned order Annex. 10 of the Revenue Appellate Authority passed in the exercise of revisional jurisdiction cannot be sustained. The Revenue Appellate Authority assumed and exercised revisional Jurisdiction, whereas no such jurisdiction vested in it. It is, thus, a clear case of illegal exercise of jurisdiction. The impugned order Annex. 10 thus, being without jurisdiction, must be set aside.

7. But the matter does not end here and the petitioner is not entitled to success, merely because order Annex. 10 of the Revenue Appellate Authority is without jurisdiction. The difficulty in granting relief to the petitioner by a writ of certiorari is that two orders. Annex. 1 and Annex. 2 passed by the Collector are also without jurisdiction, by those two orders, the Collector directed firstly; Panchayat Malwara and subseauently: Panchayat Pansari to sell the land in dispute, though it is not situate in the panchayat Circle of either of them. The land in dispute is situate within the panchayat Circle of Gram Panchavat. Aakhrad. Chapter XIII (2) of the Rules relates to the provisions of the sale of Abadi Land situate within panchayat Circle. The sale of Abadi land as per rules contained in this Chanter, is to be made by the panchayat in whose Circle it is situate. The rules do not empower or authorise the Collector to withdraw the matter of sale of Abadi land from the panchayat in whose Circle it is situate and to direct any other panchayat to conduct the sale.

8. Mr. Singhvi, learned counsel for the petitioner tried to justify the orders of the Collector by having a resort to Rule 34 of the Rules. This rule speeks about the revisional powers of the Collector and occurs in Chapter IV relating to Appointments. Condition of Services and Disciplinary Actions etc. against the members of the staff of panchayat and Nyava Panchavat. The orders Annex 1 and Annex. 2 of the Collector do not relate to the service matters covered by Chanter IV of the Rules. Rule 34 though couched in general terms, relates only to, the service matters and none-else. Its scope cannot be extended to cover the other matters like those in, the present dispute. Rule 34, cannot be stretched to cover all types of matters. The revisional powers granted to the Collector under Rule 34, cannot be construed to cover all tynes of matters by im-Dtications. Thus, orders Annex. 1 and Annex. 2 passed by the Collector ace without jurisdiction and hence, stand illesal.

9. It was argued that order Annex. 2 dated Sectember 4, 1979 was not set aside by the Revenue Appellate Authority and as such it should be allowed to stand. The contention has no substance. It is manifest from a bare read me of order Annex. 10 of the Revenue Appellate Authority that both, the orders of the Collector Annex, I dated August 30, 1979 and Annex 2 dated September 4, 1979 were assailed before him and he held them illegal It is not the order dt. July 30, 1979 of the Collector, which, was assailed before the Revenue Appellate Authority. The contesting respondents had no reason to challenge the order dt. July 30, 1979 because it was passed in their favour. The contention that order Annex 2 was not set aside by the Revenue Appellate Authority, thus, holds no ground.

10. Now, if the impugned order Annex. 10 of the Revenue Aappellate Authority is struck down or set aside the result would be that orders Annex. 1 and Annex. 2 of the Collector would stand, though they are illegal and with-out jurisdiction where the position that by setting aside an illegals order on the ground of lack of jurisdiction the other illegal orders are restored, then such a course should not be adopted because it does not result in a failure of justice to the party for the simple reason that the orders passed in his favour are illegal. A very similar situation arose in Jagan Singh v. State Transport Appellate Tribunal (AIR 1980 Rai 1) before a Full Bench of this Court. In that case, the order of the State Transport Appellate Authority was illagal, as also the order passed by the Regional Transport Authority was illegal. Order of the State Transport Appellate Tribunal was challenged. But the court refused to inter-fere and set it aside because by doing so, the result would be that the illegal order of the Regional Transport Authority was to be restored. In para 12 as the judement, it was observed--

'In Gani Mohammed v. State Transport Appellate Tribunal, 1976, Raj L.W 201 : (AIR 1977 NOC 183). it was ab-served that while granting a writ of cestiorari, this court would not exercise its discretion in such, a manner which would have the effect of restoring as illegal order passed by the Regional Transport Authority. As we have al-ready pointed out above, the effect of setting aside the impugned order pass-ed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G. Venkateswara Raw v. Govt. of Andhra Pradesh, AIR 1966 SC 828. wherein, the Supreme Court came to the conclusion that the State Government had no power under Section 7% of the Andhara Pradesh panchayat Sa-mitis and Zila Parishads Act to review its previous order, yet their Lordships re-fused to interfere with the order passed by the State Government upon such a review on the around that quashing of that order would, lead to restoration of an illegal order passed earlier by the State Govenment. In this connection their Lordships further observed that the Hick Court rightly refused to exercise its extraordinary discretionary Bower under Article 226 of the Constitution of India. In this view of the matter, this writ petition deserves to be dismissed'

11. Exactly same is the situation here in the instant case. By setting aside order Annex. 10 of the Revenue Appellate Authority orders Annex. 1 and Annex. 2, which are illegal and without jurisdiction would be restored and that is not permissible. An illegal order on the ground of lack of jurisdiction should not be quashed, if by doing so the other illegal orders which are also without jurisdiction are restored. As such, time impugned order dated June 16, 1993 (Annex. 10) of the Revenue Appellate Authority should not be interfered with.

12. For the reasons stateds above, no relief in terms prayed for can be granted to the petitioner. The writ petition, therefore, fails and is hereby dismissed but with no orders as to costs.


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