Jawan Singh and Others vs State of Rajasthan and Others

On 13.05.2015, we had passed the following orders:-

On 17.12.2014, we passed an order as follows:-

"By this writ petition filed in public interest the petitioners have drawn attention of the Court towards gross irregularities committed in Gramdan villages, which are constituted and regulated under the Rajasthan Gramdan Act, 1971 (for short ''the Act''). The Gramdan villages have been constituted with not less than fifty one percent donated lands, for management and self governance of the Gram Sabhas under Sections 13-19 of the Act, donated under Bhudan Yagya, a movement launched by Acharya Vinoba Bhave. The Gramdan villages are constituted as separate units, each with an Executive Committee, to be elected by members of Gram Sabha and a President elected by Executive Committee, to work under guidance of Gramdan Board under Section 5 of the Act.

It is submitted that in Gramdan village Anadara situated in District Sirohi, the President and members of the Executive Committee have committed gross violation of the Act inasmuch as the lands, which were donated and were included in constituting the village and which were initially allotted to eligible persons, belonging to SC/ST community/landless persons, were subsequently sold away, for which agreements were entered earlier and thereafter surrenders were made by allottees of the some lands, and which have been allotted to purchasers. Sub Divisional Officer, Revdar, District Sirohi looking after the village has confirmed these violations and has given details of the instances of land allotted to persons, who purchased them by agreement after the surrender, for which no reasonable explanation was given.

We are also informed that Gramdan villages have been brought within the ambit of Panchayati Raj movement, under the provisions of Rajasthan Panchayati Raj Act and for them no regular elections are held whereas by passage of time such villages have grown in population, which not only include allottees but also other persons, who are neither concerned with donated lands nor were allotted lands in such villages.

Let the Principal Secretary, Panchayati Raj Department, Government of Rajasthan be impleaded as one of party-respondents. The notice may be served on him in the office of Additional Advocate General in the High Court at Jodhpur, which will be treated as sufficient service upon him.

The respondents will explain as to why Gramdan villages are not being included under the Panchayati Raj Act despite the 73rd Amendment, 1992 in the Constitution of India, inserting Part-IX, conferring constitutional status to the local self government of the District Panchayats, Taluka Panchayats and Village Panchayats in Articles 243-A to 243-O. The Rajasthan Panchayati Raj Act has been amended accordingly. They will also reply as to what action has been taken on the reports of SDO, Revdar, District Sirohi and other reports which may have been received from other Gramdan villages, of violation of provisions of allotment and sale of the lands in the village. We are also informed that elections to constitute the Executive Committee and Presidents have not been held in Gramdan villages despite expiry of the term of the Board and that only ad-hoc arrangements have been made and allowed to continue.

As an interim measure, we direct that no allotment or sale of land made hereinafter in Gramdan villages shall be permitted except with the approval of the Collector of the District, on a report submitted by Sub Divisional Officer and after considering such applications in accordance with the object and purpose of constituting and regulating the Gramdan villages under the Rajasthan Gramdan Act, 1971."

In response to the order passed by us, a reply has been filed by Dr. Virdhi Chand, Chief Executive Officer, Zila Parishad, Sirohi on behalf of the Principal Secretary, Panchayati Raj Department, in which the relevant paragraphs are paragraphs Nos. 3, 4, 5 and 6, in which it has been stated as follows:-

"3. That the Hon''ble Court also directed the respondents to explain as to why Gram Dan villages are not being included under the Panchayati Raj Act despite the 73rd Amendment, 1992 in the Constitution of India inserting Part-IX, conferring constitutional status to the Local Self Government of the District Panchayats, Taluka Panchayats and Village Panchayats in Article 243-A to 243-O. It was also directed to reply upon the Reports of SDO, Revdar, District Sirohi regarding the action taken by the concerned authorities.

That after 73rd Amendment, 1992 came into force in the Constitution of India, the State Legislature amended the Panchayati Raj Act vide Act No. 13 of 1994 in the title ''the Rajasthan Panchayati Raj Act, 1994'' (hereinafter referred to as ''the Act of 1994''). In the Act of 1994, it was provided under Sub-section (2) of Section 124, selection of Section 43 of Rajasthan Gram Dan Act, 1971 (hereinafter referred to as ''the Act of 1971''). Before deletion of Section 43, the Gram Sabha under the Act of 1971 was empowered to function as Panchayat. After deletion of Section 43 of the Act of 1971 now the Gram Sabha of the Act of 1971 has limited powers and functions, which are provided under Sections 20 to 33 of Chapter-V. The functions and powers provided under Sections 20 to 33 of Chapter-V of the Act of 1971 are different than of the powers given to the Gram Sabha of Act of 1994. Section 8-E of the Act of 1994 provides functions of Gram Sabha. The functions provided under Section 8-E are altogether different than of the functions of Gram Sabha provided under Sections 20 to 33 of the Act of 1971.

That the Gram Sabha constituted under the Act of 1994 is not having resembling powers granted to the Gram Sabha constituted under the act of 1971, so it is humbly submitted that the functioning of both the Gram Sabhas are different and they are independently governed by the Act of 1994 and 1971 and as such both the institutions have separate identity and working area.

That if any irregularities or violation of the provisions of Act of 1994 will be noticed in the functioning of Gram Sabha constituted under the Act of 1994 then the appropriate action shall always be taken by the Panchayati Raj Department."

The reply does not show that the elections as provided under the Rajasthan Panchayati Raj Act, 1994 (for short, ''the Act of 1994'') where held in Gram Sabha, Anadara constituting Gram Sabha as defined and in accordance with Article 243 of the Constitution of India as inserted by 73rd Amendment, 1992. The name of Sarpanch of Gram Sabha, Anadar has not been given.

Though it is stated that with the amendment in Section 124(2) of the Act of 1994, on the deletion of Section 43 of the Rajasthan Gramdan Act, 1971 (for short ''the Act of 1971''), consequences enumerated in clauses (a) to (l) of sub-section (1) shall ensure as if the Gram Sabha of Gramdan village referred to in the aforesaid deleted section was an existing panchayati raj institution, the consequential amendments have not been made in the Act of 1971 for elections to constitute Gram Sabha, with Sarpanch and Panches, from amongst the constituency of villagers.

Our quarry with regard to the making of a Gram Sabha as a constitutional institution with elected Sarpanch and Panches, has not been replied.

The learned Additional Advocate General states that in respect of the Gramdan village, the reply may be filed by Revenue Department and thus Principal Secretary, Revenue Department will be in a position to file reply.

Along with the writ petition, the petitioner has annexed report of the District Collector, Sirohi forwarded to the Dy. Secretary, Revenue (Group-III) Department, Rajasthan, Jaipur on 24.02.2012 in reply to his letter dated 28.06.2011 in which gross and wholesale irregularities, are reported. The Collector, after seeking report from the Sub Divisional Officer, found that Shri Govind Ram Choudhary, Chairman of Gramdan Village, Anadara, has, during his tenure, got the allotments of 46 land holders surrendered, out of which 3 belonged to ST Category and 28 to SC Category. All these allottees surrendered the land, after which these same lands have been transferred by agreements or sale (''Bechan'') to the persons of general category.

The Act of 1971 does not permit the sale of the lands. The land can only be allotted if it is not used to any other member of the Gramdan village, in accordance with the provisions of the Act of 1971.

In our view, the provisions of the Act of 1971 are not serving the constitutional mandate of having any elected body in the village. A Gram Sabha, constituted under Section 13 of the Act of 1971, is only for the purposes of managing its land as an executive committee of which a President is provided under Section 15 and of which the term of office has not been provided.

After having noticed the irregularities committed by the Gram Sabha of Gramdan Village Anadara, in the report of the District Collector, Sirohi, the State Government should have immediately taken proceedings to dissolve the Executive Committee under Section 47 of the Act of 1971 after seeking an explanation from the President of the Gram Sabha. It appears that the State Government is sitting over its statutory obligations and allowing the Gramdan Village Anadara to allot and sell the land donated and allotted to marginalized people including members of Scheduled Caste and Scheduled Tribe. Each of the surrender must be investigated and in any case, the transfer of the land surrendered by them is void in view of the provisions of the Act of 1971.

Let the Principal Secretary, Revenue Department, Government of Rajasthan be impleaded as party respondent. The learned Additional Advocate General has taken notice in the matter on his behalf. He is required to represent him also and to file reply on his behalf.

We expect a detailed inquiry and a report within a period of six weeks with immediate action taken on receipt of this order. The State Government will also give details of the total numbers of Gramdan village in Rajasthan and the details of the elections, which have been held under the Act of 1994 for electing the Sarpanch, panches etc. in all such villages.

List again on 14.07.2015."

Learned Additional Advocate General has filed the submissions on behalf of the authorities of the State-respondents, along with an affidavit of Shri Ram Chandra, Sub Divisional Officer, Reodar, stating therein that there are 229 Gramdan villages in the State of Rajasthan. The number of Gramdan villages in the 12 districts including District Sirohi, with which we are concerned, in which there are 20 Gramdan villages, have been detailed in paragraph 2 of the affidavit.

As regards Gram Panchayat Anadara is concerned, it is stated in paragraph 3 of the affidavit, that under the provisions of the Act of 1994, Shri Kesaram, is an elected Sarpanch, Shri Somaram Garasiya is the Up-Sarpanch, and there are total 17 elected Panchas. Paragraphs 3 to 6 of the affidavit of Shri Ram Chandra, SDO, Reodar, are quoted as below:-

"3. That so far as Gram Panchayat Anadara is concerned, it is submitted that the elections have been held there under the provisions of the Act of 1994 and Shri Kesaram is elected Sarpanch, Shri Somaram Garasiya is Up Sarpanch and there are total 17 elected panchas. A list showing the above fact of elected Sarpanch and Panchas of Gramdan Village Anadra is submitted herewith and marked as Annexure-R/2.

That it is further humbly submitted that there are total 9894 Gram Panchayats in the State of Rajasthan. In the elections held last year, the elections remained pending in 13 Gram Panchayats. Apart from this, according to the present vacant seats of Panchayati Raj Institutions as on 30.04.2015, the bye elections have completed on 12.07.2015 and under the process. The Schedule of bye election is submitted herewith and marked as Annexure-R/3.

That the Joint Secretary to the Government, Revenue (Gr.6) Department has directed the Director of Rajasthan Gramdan Board, Jaipur by communication dated 13.07.2015 to seek the explanation of the President and Executive committee of Gramdan Village Anadra within a period of seven days in respect of the irregularities found in the enquiry conducted by the Sub Divisional Officer, Reodar. It is further revealed that the direction has also been issued to take the decision in the proposed meeting of the Gramdan Board scheduled to be held on 30.07.2015 on the issue that the Executive Committee which cannot continue more than six years. A copy of the letter dated 13.07.2015 originated by the Joint Secretary, Revenue (Gr.6) Department, Jaipur is submitted herewith and marked as Annexure-R/4.

That the Joint Secretary to the Government, Revenue (Gr.6) Department by communication dated 13.07.2015 has directed the District Collector, Sirohi to proceed as per provisions of law in the matter of irregularities in Gramdan Village Anadra. A copy of the communication dated 13.07.2015 is submitted herewith and marked as Annexure-R/5."

Learned Additional Advocate General has pointed out to the Court that the Joint Secretary, Revenue(Group-6) Department, Government of Rajasthan, has, vide letter dated 13.07.2015, in pursuance to the order passed by this Court on 13.05.2015, informed the Director of the Rajasthan Gramdan Board, Jaipur, that the term of the Executive Committee of Gram Anadara, Tehsil Reodar, District Sirohi, has come to an end in 2011. According to Rule 15 of the Rajasthan Gramdan Act, 1971 (in short, ''the Act of 1971''), the term of the Executive Committee is three years, with a condition that no one is permitted to hold the Office for more than two terms. In the next paragraph of the letter dated 13.07.2015, it has been pointed out that despite completion of the term of three years, the elections of second term have not been held, nor anyone has been given the charge, and that despite expiry of six years after the term was over, the Chairman and the Executive Committee are still functional, and thus, the Director has been asked to get explanation from the Chairman and the Executive Committee, within seven days, and to keep the matter in the next meeting of the Gramdan Board, scheduled to be held on 30.07.2015.

By another letter of the same date, the Joint Director, Revenue (Group-6) Department, Government of Rajasthan, has directed the District Collector, Sirohi, that in pursuance to the report of the SDO, Reodar, in which various illegal activities have been reported, he may take immediate steps and inform the Government.

We are unable to comprehend as to how, despite completion of the term in the year 2011, the Joint Secretary, Revenue Department, Government of Rajasthan, has asked the Director to get the explanation, by way of show cause notice, from the Chairman and the Executive Committee of Gramdan village Anadara, once the term has come to an end. The Chairman and the Executive Committee have no right to continue, and that instead of directing them to step down and thereafter seeking their explanation for the irregularities committed by them, a new lease of life appears to have been given by the State Government by giving show cause notice, and to keep the matter in the next meeting of Gramdan Board on 30.07.2015.

So far as action on the report of the SDO is concerned, the then District Collector, Sirohi, had, by his letter dated 24.02.2012, already reported that Shri Govind Ram Choudhary, President of the Gramdan village Anadara, during his tenure from 04.07.2008, got the land of 46 khatedars, including 3 belonging to Scheduled Tribes and 28 belonging to Scheduled Castes surrendered, on the ground that they are unable to cultivate the land, and sold the land on a stamp paper of Rs. 100/-, by executing 92 sale deeds. The action of allowing the land to be surrendered from the persons belonging to SC and ST, is not only violative of the provisions of the Act of 1971, and the Rules framed thereunder, it is also violative of the provisions of the Rajasthan Tenancy Act, prohibiting transfer of lands given to or khatedari of persons belonging to SC/ST.

Further, on the report of the Collector, in which execution of 92 sale deeds is reported, we find that neither the Executive Committee, nor the Gram Sabha was entitled to sale the land to the private persons. The Act of 1971 prohibits any sale of land which has been surrendered, and under Section 4, the provisions of the Act of 1971 shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force, provided that nothing in the Act will affect the operation of Chapter III-B of the Rajasthan Tenancy Act, 1955.

We are of the view that once it was clear from the report of the District Collector, who had also made enquiries from the Gram Sabha, that the surrenders of the land and execution of the sale deeds, were illegal, there was no question for sitting over the report for three years.

In view of the above, we hold that Shri Govind Ram Choudhary, President of Gramdan village Anadara, had no authority to get the land surrendered from 46 khatedars, belonging to SC and ST, and to sale the land by executing 92 lease deeds. He has not only acted beyond the powers, but also played a public fraud, which requires investigation, both for its criminality and also the considerations from such sales. The continuance of Shri Govind Ram Choudhary beyond the period, or any other President or person, after 2011, is held to be entirely illegal. He is directed to be immediately relieved and Executive Committee be dissolved.

We further hold that the surrender of the land by 46 khatedars belonging to SC and ST, is illegal, and declare that the 92 lease deeds executed on the stamp paper of Rs. 100/-, @ Rs. 1500/- per Bigha, are contrary to both, the Rajasthan Gramdan Act, 1971, as well as the Rajasthan Tenancy Act, 1955.

In view of above, considering the delay caused by the State Government, we direct the District Magistrate, Sirohi, to take immediate steps for declaring the 46 surrenders of the khatedars, and any other surrenders, which may have been made, by the persons belonging to SC and ST, and the consequential sale of the lands surrendered by them to the 92 persons by sale deeds, to be illegal, and to cancel the sale deeds, after publishing a public notice, inviting objections, if any, within a period of fifteen days. The interim order passed by us, that no allotment or sale of land shall be permitted, except after permission of the Collector, will continue to operate.

The District Collector, Sirohi, has already made enquiries, in which he has reported along with the report of the Sub Divisional Officer, Reodar of gross illegalities and fraud, and thus, he will lodge a First Information Report against the guilty persons, without any further delay, in which the Police will investigate the matter, and if necessary, will arrest the persons, who have violated the law for unauthorized gains by their by illegal actions. The Collector will submit a report along with an affidavit in the Court before the next date.

The matter will be taken up again on 17.08.2015.