1. This is a writ petition under Article 226 of the Constitution by one Udaram and by it he questions the validity of an order of the Additional Collector, Ganganagar, Ex. 3 on record, whereby the Additional Collector had set-aside an order of the Panchayat Samiti, Mirzewala (now Ganganagar), holding that an appeal decided by the Panchayat Samiti was not maintainable. The circumstances leading to the order under challenge may be outlined as follows:
On 8-1-61 respondents Pemaram and Jaimal Singh made an application before that Gram Panchayat of Madera that a plot of abadi land No. 138/2 measuring 300 sq. yards situated in Village Madera be sold to them. The Panchayat held an auction for this plot and eventually it was sold to the applicants Pemaram and Jaimal Singh. The grievance of the petitioner Udaram was that this sale was made by the Panchayat in contravention of the Panchayat and Nyaya Panchayat (General) Rules, 1961, hereinafter to be referred as the 'Rules'. It was submitted that no public auction was held and nor were notices inviting objections to the proposed sale published in accordance with the Rules. Generally it was stated that the provisions of Rules 255 to 265 prescribing the procedure for sale were not followed On 23-9-63 the petitioner made an application before the Panchayat Samiti, Mirzewala within 30 days of the sale for setting aside the sale in favour of respondents Nos. 4 and 5 Pemaram and Jaimal singh. The Panchayat Samiti, by its order dated 7.8.64, set aside the order of the Gram Panchayat for the sale of the land in question holding that the land formed part of a common villege chowk and further the relevant rules had not been followed. The Panchayat Samiti also observed in its order that the Gram Panchayat had not obeyed the injunction issued by the Panchayat Samiti in this behalf. Aggrieved of this order of the Panchayat Samiti respondents Nos. 4 and 5 approached the Additional Collector, Ganganagar in appeal, but the Additional Collector treated this appeal as revision and on 26-7-65 he reversed the order of the Panchayat Samiti and restored that of the Gram Panchayat. The learned Additional Collector came to the conclusion that the Panchayat Samiti had no jurisdiction to entertain the appeal. The Additional Collector, however, did not deal with the other points arising in the case. The essentials of the reasonings of the Additional Collector will be evident from the following passage in his order under challenge:
The counsel for the revision petitioners contends that Udaram had only filed an ordinary application before the Panchayat Samiti on 23-9-63 which was treated by the Panchayat Samiti as an appeal and was accordingly disposed off. The application was not accompanied with the copy of the order of the Gram Panchayat.
The advocate for the non-petitioner urges that Udaram had filed an application before the Panchayat Samiti and the same had been treated as appeal, because the language of that application would conform to the characteristic of an appeal and it was not necessary to file the copy of the order.
I have perused the relevant provisions and have also perused the papers. There are rules for appeal under the Civil Procedure Code and Rule 77 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules contains the same provision. In my opinion, the application filed by Udaram before the Panchayat Samiti could under no circumstances be treated as an appeal. The order passed.by the Panchayat Simiti, Mirzewala on 7-8-64 is against law, because the application could not be treated as an appeal.
(Translation of the passage is mine)
2. It will be evident from this passage that the reason that has prevailed with the Additional Collector in holding that the appeal was not competent was that the; same was not in accordance with Rule 77 of the Rules.
3. The petitioner challanges the order of the Additional Collector on the ground that the learned Additional Collector was in error in applying Rule 77 of the Rules to the appeal. The petitioner points out that the relevant rule governing an appeal against an order of the Gram Panchayat regarding sale of abadi land is Rule 270 of the Rules and that rule does not require the filing of the copy of the Panchayat's order with the appeal. It was next contended that the Additional Collector was himself not competent to entertain the revision application.
4. The writ-petition has been opposed by respondents Nos. 4 and 5. The stand of these respondents is that the Additional Collector could entertain the revision against the order of the Panchayat. Samiti Lastly, it was urged that according to tenor of the application the same could not have been considered to be an appeal within the meaning of even Rule 270 of the Rules.
5. I have heard learned Counsel for the parties. At the time of hearing, learned Counsel for the petitioner did not contest the petition that the Additional Collector could have exercised the revisional jurisdiction in the matter, when the provisions of Rule 272 of the Rules were brought to his notice.
6. For appreciating the first contention I may read the relevant provisions of the Rajasthan Panchayat Act, 1953, here in after to be referred as the 'ACT':
Section 26-A - Appeal from orders of Panchayats under:
Chapter III: Any person aggrieved by any order or direction of a Panchayat under this Chapter or under any rule or bye-laws made there under may appeal from such order or direction to the Panchayat Samiti having jurisdiction within 30 days from the date of such order or direction exclusive of the time requisite for obtaining a copy thereof.
(2) An appeal under Sub-section (1) shall be heard by a standing committee of the Panchayat Samiti constituted under Section 20 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959:
Provided that the Sarpanch or Up-Sarpanch of the Panchayat whose order or direction has been appealed against, if he is member of such standing committee shall not sit for the hearing of such appeal.
(3) The standing committee referred to in Sub-section (2) may after hearing the person aggrieved, the Panchayat and any other person affected by the order or direction appealed against, vary, set-aside or confirm such order or direction and may also award costs to or against the person filing the appeal.
(4) The decision of the standing committee shall for all purposes be deemed to be the decision of the Panchayat Samiti.
Section 27. Power to fine in administrative cases:
(1) Any person who disobeys a general regulation or special order under the foregoing provisions of the chapter may be punished by the Panchayat with fine which may extend to fifteen rupees and if the disobedience is a coutinuing one with a further fine which may extend to one rupee for every day after the first during which the disobedience continues.
(2) If any work required to be done under the said provisions is not executed within the period specified in the notice for such execution, the Panchayat may itself cause such work to be executed and recover a sum not exceeding the cost thereof from the owner served with notice.
(3) All fines imposed under Sub-section (1) and the cost of all work executed under Sub-section (2) shall be recovered in the same manner as is for the time being prescribed for the recovery of tax imposed by the Panchayat.
(4) Any person aggrieved by an order of the Panchayat passed under this Section may, within thirty days from the date of such order exclusive of the time requisite for obtaining copy thereof, appeal there from to the Panchayat Samiti having jurisdiction and the provisions of Sub-sections (2), (3) and (4) of Section 56-A shall apply
Rule 77 runs as follows:
Rule 77 Form and accompaniments of appeals:
(1)Every appeal under Section 26-A or Section 27
(a) shall be in writing,
(b) shall be in the form of a memorandum setting forth concisely the grounds of objections to the order appealed against,
(c) shall bear a court-fee label for one rupee with the words Panchayat Samitis uper-imposed thereon with red ink, and
(d) shall be accompanied by a certified copy of the order appealed against or, in case such copy has not been granted by the Panchayat an affidavit of that effect.
(2) If any the necessary court-fee label cannot be obtained for some reason or other, the court-fee will be realised in cash and the amount so realised shall be entered in the court-fee register as well as in the cash register and receipt therefor shall be given to the appellant.
7. The fasicule of Rules 255 to 272 relate to sale of abadi land in Panchayat areas. I need not refer to the procedure for the sale of abadi lands by the Panchayats for the reasons that will be clear from what I am going to say. Rule 265 refers to the confirmation of auction held in relation to the sale of abadi land by the Panchayat. In this context Rule 270 will have to be examined and it runs as follows:
Rule 270 Appeals - An appeal shall lie-
(a)from an original order of the Panchayat confirming the sale of abadi land under Rule 265, to the Panchayat Samiti,
(b) from an original order of the Panchayat confirming the sale of abadi land under Rule 265, to the Panchayat Samiti,
(c) from such order of the Panchayat Samiti to the Collector, and
(d) from such order of the Collector to the Revenue Appellant Authority having jurisdiction the date of the order appealed from, exclusive of the time requisite for obtaining a copy thereof.
Learned Counsel for the respondent contends that Rule 77 will be applicable to an appeal under Rule 270, because according to him, Rule 77 refers to Section 26-A which relates to the entire administrative field of the Panchayat and the sale of abadi land is nothing but an administrative matter. He, therefore, argues that when Rule 77 lays down that the appeal shall be accompanied by a certified copy of the order appealed against this provision will have to be followed even in an appeal under Rule 270 against an order of the Panchayat confirming the sale of abadi land under Rule 265 of the Rules. I may here notice that Section 89 of the Act which contains the rule making power of the State Government inter alia provides that all rules made under the Act after the first April, 1960, shall be laid, as soon as may be after they are made, before the House of the State Legislature while it is in session for a period of not less than 14 days which may be comprised in one session or in two successive sessions and it will be open to the House of the State Legislature to make any modification in any of such rules or resolve that any such rule should not be made and therefore such rule shall have effect only in such modified form or be of no effect, as the case may be. When Rules have been made by this procedure the Rules are to be treated for all purposes of construction exactly as if they were in the Act and if there is a conflict between one of such Rules and a Section of the Act, it must be dealt with in the same spirit as a conflict between two Sections of the Act would be dealt with. The position might be different, if it were impossible to reconcile the rules with any Section of the Act and in that event the rules might give way and then the rule could necessarily be treated as subordinate to the section. In this connection 1 may refer to Maxwell. On Interpretation of Statutes 11th Edition at pages 49-50. It is in the light of this principle that the ambit of Sections 26-A and 27 has to be seen vis-a-vis the provisions of Rules 270 of the Rules. Broadly speaking, disposal of abadi land may lie within the administrative sphere of the Gram Panchayat, but it cannot be overlooked that the Rules 255 to 272 lay down the procedure for sales of such abadi lands.
8. The question arises whether these rules really come in conflict with the provisions of Sections 26-A and 27 of the Act. In my view, they do not so come in conflict. Sections 26-A and 27 deal with the administrative functions of the Panchayat generally whereas these rules lay down the procedure to be followed for the sale of abadi land in a Panchayat area. These rules therefore, can be regarded as special provisions laying down the manner of selling abadi land. Therefore, when one is concerned with a case where the Panchayat has confirmed a sale according to Rule 265 then the matter will fall to be governed by the provisions of Rule 270. Rule 77 specifically relates to an appeal under Section 26-A or Section 27 of the Act. Rule 77, therefore, to my mind, will be inapplicable to an appeal under Rule 270 of the Rules and the requirement laid down in Rule 77 cannot rightly be read into the provisions of Rule 270 of the Rules. Then what is the position? Rule 270, unlike Rule 77, does not in specific terms lays d own that the copy of the order appealed against will have to be filed along with the appeal. Learned Counsel for the respondents emphasised what was mentioned in Clause (c) of Rule 270 of the rules when it was said that the appeal may be brought within 30 days from the date of the order appealed from exclusive of the time requisite for obtaining a copy thereof. Learned Counsel contended that when provisions has been made for exclusion of time requisite for obtaining a copy of the order it is implied that the copy of the order has got to be obtained and filed with the appeal. I am therefore, however, unable to accept this line of argument is a sound one. The rule making authority has clearly said about the filing of a copy when it wanted to say so in Rule 77, but it has not said to so in Rule 270 of the rules and I am unable to accept to a proposition that even though there is a clear omission about the filing of a certified copy along with the appeal this omission should be furnished by the Court by importing something. According Accepting at best the argument of learned Counsel as one of cause omissus I am not prepared to take the requirement of the filing of a copy as one which is implied in Rule 270, as contended. As observed in Maxwell On Interpretation of Statutes, 11th Edition at page 12, omissions are not to be lightly inferred and words plainly should not be added by implication into a statute unless it is necessary to do so to give the language sense and meaning in its context. This is, however, not to say that the question of tie filing of the copy may not have been at all in the mind of the draftsman. It may have been and that is why it was mentioned in the rule that the time requesite for obtaining a copy of the order shall be excluded in the computation of the period of 30 days limitation for the appeal. That is, for the rule making authority to see and rectify it if it really wanted to make a provision for the filing of a copy, but I have to construe the rule as it stands and am not inclined to make good the omission. In these circumstances, according to the express terms of the rule, I am unable to so construe it that without the filing of the copy of the order appealed against the appeal will be wholly defective and liable to be thrown away on that score. Accordingly, in my view, the Additional Collector was in error in coming to the conclusion that the appeal before the Panchayat Samiti filed by the petitioner was defective and was consequently liable to dismissal on that score.
9. I may now deal with the submission of learned Counsel for the respondents that the so-called appeal was only an ordinary application and could not have been treated as an appeal at all. The disputed document is Ex. 1 on record. It is addressed to the Chairman of the Panchayat Samiti, Mirzewala. It is capationed as an application for maintaining the Village Chowk in Maderan and for not auctioning or alloting the same. It starts as an application. In the body of the application it is mentioned that the land in question formed part of the Chowk and was being used by the applicant Udaram as also others for passing and repassing. It was urged there in that the Chowk be allowed to remain as it was and be not allotted or auctioned. Then finally it was added that if any wrong proceedings had been taken or taken secretly by the Sarpanch then that should be set-aside. One Mukhtiar Singh perhaps the Pramukh, had ordered the Chairman of the Administrative Committee to examine this matter, After this direction of Mukhtiar singh, there is the following order recorded by one Jasram:
Appeal may be accepted after depositing the fee. Stay order is hereby issued and Sarpanch should be informed to appear with the paper in the meeting.
Learned Counsel for the respondents is undoubtedly right in saying that Ex 1, which was adderessed to the Chairman of the Panchayat Samiti has been framed as an application, but in dealing with this document one has to keep in view how it was treated and dealt with by the Panchayat Samiti itself. The endrosement extracted by me above does not leave any room for doubt that this application was treated as an Tappeal and Udaram was asked to deposit the fee. It is nobody's case that this was not done by Udaram. In these circumstances, looking to the substance of the matter, the Panchayat Samiti or the Additional Collector for that matter cannot be said to have committed any error of jurisdiction or any other error of law, if this Ex. 1 was treated as an appeal and not an ordinary application particularly when Udaram was required to deposit the necessary fee. In these circumstances there is no force in the contention that Ex. 1 could not have been treated as an appeal. The Additional Collector was, in my view, not justified in thinking so. Thus the Additional Collector was not right in reversing the order of the Panchayat Samiti on the sole ground that the appeal before the Panchayat Simiti was incompetent. The Additional Collector had not gone into any other point.
10. Learned Counsel for both the parties wanted to agitate the other points but in as much as the Additional Collector had not expressed any opinion on those points, I was not inclined to deal with such points. In the circumstances of the case it appears just and proper that the Additional Collector should be asked to deal with the other points that arsise from the revision application moved before him by respondents No. 4 and 5. It will be open to the petitioner as well to defend the action of the Panchayat Samiti on such grounds as may be open to him.
11. In the result I allow this writ petition, set-aside the order of the Additional Collector dated 26-7-65 (Ex. 3) and send the case back to him with the direction to hear and dispose of the revision application on other points according to law. The parties are left to bear their own costs of this writ-petition.