D.P. Gupta, J.
1. This special appeal has been filed against the order passed by a learned Single Judge dated August 17, 1973 dismissing the writ petition filed by the appelant and upholding the orisr of the Additional Collector, Pali dated June 26, 1971 (Ex. 7).
2. The appellant-petitioner applied to the Gram Panchayat, Surnerpur for allotment of Nazul land measuring 16 x 96 Gaj situated at Sumerpur on the ground that he was in possession of disputed place of land since the Time of his ancestors. It is not disputed that Mohanraj, brother of the petitioner Kailashraj, was the Sarpanch of Gram Panchayat., Sumerpur at the ieievant time. The Gram Panchant, Sumespur by its order dated January 6, 1964, in the meeting presided over by Mohanraj Sarpanch, decided to sell the disputed pece of laud to the appellant on a concessional rate of Rs. 0.37 p par Sq Gaj by private negotiation, on the alleged ground that the said laid was in possession of the appellant since a long time The matter was referred to the Panchayat Samiti., Sumerpur One Tarasingh also filed an appeal to the Panchayat Samiti, Sumerpur against the order of the Gram Patutnyat, dated January 6, 1964. The Panchayat Samiti dismissed the appeal of Tarasingh and confirmed the sale of the disputed land in favour of the appellant. It appears that thereafter fresh election took place and new Sarpanch was elected of Gram Panchayat Sumerpur, in place of Mohanraj, brother of the appellant. The newly elected Sarpanch of the Gram Panchayat, Sumerpur preferred a revision petition before the Additional Collector, Pali, vho inspected the site and by his order dated Juae 26, 1971 (Ex. 7), the sale made by the Gram Panchayat in favour of the appellant was set aside. The Addition is Collector, Pali held (hat Gram Panchayat was not justified in holding that the land in dispute was in possession of the appellant for a long time. Aceoiding to him, there was no material on record to show that Kailash Raj was in possession of the disputed land. The Additional Collector found that the alleged land is an opsn piece of land and it adjoins the Parkota of the 'Bada' belonging to his brother Mohanraj.
3. Dis-satisfied with the order passed by the Additional Collector, Pali dated June 26, 1971, the appellant filed a writ petition in this Court. Learned Single Judge observed that the Gram Panchayat failed to give a finding that the land in question was 'Abadi' land. However, it was held by the learned Single Judge that the finding of the Gram Panchayat Sumerpur that the plot of land in question was in possession of the appellant from the time of his ancestors appears to bi wholly erroneous. It was observed that the Parchayat could transfer any 'Abadi' land by private negotiation by way of sale to a person who has a plausible claim of title to the land in question and auction of the said land in question would not have fetched a reasonable price. Learned Singh Judge agreed with the finding recorded by the Additional Collector Pali & held that the appellant was unable to show that he had a plausible claim of title to the land in question.
4. In this appeal, learned Counsel for the appellant submitted that the learned Single Judge was not justified in raising a doubt that the land in dispute, was 'Abadi' land or not. The Additional Collector himself directed the Gram Panchayat Sumerpur 10 dispose of the plot of land in dispute by sale by means of public auction and as such it was never in dispute that the land in question was Abadi, land. The Gram Panchayat sold the land in dispute by private negotiaton, obviously on the basis that was land was 'Abadi' land and on this question there was no contest before the Additional Collector Pali. As such, there is no reason for the learned Single Judge to hold hold that the land in question was not 'Abadi' land.
5. However, there is a very serious infirmity attached to the sale of the plot of land to the appellant. It has been stressed by the Additional Collector, Pali in his order dated June 26 1971 that Mohanraj, the real bother of the appellant, was the Sarpanch of the Gram panchayat and that not only Mohanraj took part in the proceeding for allotment of the land ins dispute but he also presided over the meeting of the Gram Panchayat held on January 6, 1964, at which the decision to dispose of the plot of land by sale at a concessional rate, in favour of the appellant, was taken. The proceedings of the Gram Panchayat disclose that Mohanraj, who was the brother of the appellant kailashraj, had taken an active part in the sale of by the Gram Panchayat, pertaining to the sale of the land in question to the appellant, are vitiated on account of the fact that Mohanraj, who was an interested party being the brother of the appellant, had taken on active part being the brother of the appellant, had taken on active part in those proceedings and presided over the meeting of the Gram panchayat dated January 6, 1964 at which the decision in respect of the said sale was taken. Learned counsel for the appellant has not been able to support the sale made in favour of the appellant, when he was cinfornted with the situation that the meeting of the Gram panchayat at which the appellant was taken who preside over by his bother Mohanraj, the then Sarpanch, we are of the view that the very fact the the appellant's brother Mohanraj took part in the view the presided over the meeting of the Gram panchayat held on Panchayat held on January 6, 1964 at which the decision was taken to sell the plot of land in question to the appellant, vitiated the proceedings of he Gram Panchayat relating to the sale of the said plot of the land and the said sale of the plot of land deserves to be set aside on this graund alone.
6. It was contended by the learned consel for the appellant that even the inspection report of the Additional Collector, Pali (Ex. GA) showed that the appellant was already in possession of the disputed land and that 'Pucca' boundary wall stood on one side of such plot of land while thorny 'Badi' was present on the other side. As we are of the view that the sale by the Gram Panchayat in favour of the appellant was void on the very ground that his brother Mohanran, who was the then Sarpanch of the Gram Panchayat, had taken and active part in effecting the sale of the said plot of land in his favour, and so it is not necessary for us to go into question as to whether the appellat was in possession of the disputed land since the time of his ancestors of his possession was an old one. We may however, observe that the finding recorded by the Additional Collector, pali & the learned Single Judge, on the question of the alleged possession of the appellant title or the absence thereof would not be binding upon and shall not debar the concerned authority from deciding the question afresh in accordance with law.
7. Learned counsel for the respondent brought to our notice that now a Municipal Board has been constituted in the town of Sumerpur in place of Gram panchayat Sumerpur.
8. In view of the aforesaid discussion, we partly allow the special appeal, set aside the order passed by the Learned Single Judge dated August 17, 1983 as well as the order passed by the Additional Collector, Pali dated June 26, 1971 and the order of the Grain Pancbayat, Sumerpur dated 6, 1984 and remand the matter to the Municipal Board, Sumerpur for a fresh decision on the application of the appellant Kailashraj for allotment of the plot of land in question in accordance with law.