Punjab-Haryana High Court
Smt.Vidya Devi And Others vs The State Of Haryana And Others on 10 January, 2013
Bench: Rajive Bhalla, Rekha Mittal
CWP No.20341 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.20341 of 2011
Date of decision: 10.01.2013
Smt.Vidya Devi and others ..... Petitioners
VERSUS
The State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.Mukesh Kumar Verma, Advocate, for the petitioners.
Mr.D.Khanna, Addl.A.G., Haryana,
for respondents No.1 to 3.
Mr.Rajneesh Chadwal, Advocate, for respondent No.4.
*******
RAJIVE BHALLA, J.(ORAL)
The petitioners pray for issuance of a writ of certiorari, quashing orders dated 11.01.2001, 16.01.2002 and 13.05.2005, passed by the District Revenue Officer-cum-Assistant Collector Ist Grade, Rewari, the Collector, District Rewari and the Commissioner, Gurgaon Division, Gurgaon, directing the petitioners' eviction, dismissing their appeal and revision, respectively.
Counsel for the petitioners submits that as the land, in dispute, abuts the petitioners' house and was transferred to the petitioners by the Gram Panchayat on 21.02.1963, the Gram Panchayat is estopped from filing a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 or alleging that the petitioners are in unauthorised possession. It is further submitted the findings CWP No.20341 of 2011 -2- recorded, by the Assistant Collector Ist Grade, Rewari, etc., that resolution dated 21.02.1963 is forged, is factually incorrect as no clear and cogent reason has been assigned for recording this finding. It is further submitted that failure of the Gram Panchayat to obtain permission from the Collector, as required by Punjab Village Common Lands (Regulation) Rules, 1955 (hereinafter referred to as the "1955 Rules") or the State Government, as required by the Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as the "1964 Rules") estops the Gram Panchayat from alleging that the transfer is illegal. It is further submitted that though approval of the Collector was not obtained but as more than five decades have passed and obligation to obtain approval lies upon the Gram Panchayat, the Gram Panchayat is estopped from alleging that the petitioners are in unauthorised occupation of the land, in dispute.
Counsel for the Gram Panchayat submits that there is no resolution or order whether by the Gram Panchayat or by any other authority transferring the land to the petitioners. The document, Annexure P-1, titled as "Panchayati Faisla", is a private arrangement between members of the Gram Panchayat and the petitioners. It is further submitted that the issue whether the 1955 Rules or the 1964 Rules apply, is entirely irrelevant, as, admittedly, approval was not obtained from the Collector or from the State Government. The doctrine of estoppel cannot be invoked against the Gram Panchayat as the procedure prescribed by law under the 1955 Rules or the 1964 CWP No.20341 of 2011 -3- Rules was not adhered to.
We have heard counsel for the parties and perused the impugned orders.
Admittedly, the land, in dispute, vests in the Gram Panchayat. A "Panchayati Faisla" was recorded on 21.02.1963 that the Panchayat has no objection if the land, in dispute, is 'auctioned' in favour of the petitioners for Rs.5,000/-. The alleged "Panchayati Faisla" does not bear any number and though available in the proceedings book of the Gram Panchayat, does not indicate that any auction was held. It appears that the land, in dispute, was transferred to the petitioners by using the word 'auction'. The petitioners' contention that failure of the Gram Panchayat to obtain approval either from the Collector as provided under the 1955 Rules or from the State Government as provided under the 1964 Rules, estops it from alleging that the petitioners are in unauthorised possession, in our considered opinion, cannot be accepted. The 1955 Rules prescribe that transfer of land by a Gram Panchayat, shall be subject to approval by the Collector. The 1964 Rules require the Gram Panchayat, to obtain prior approval of the State Government, before it transfers its land. Admittedly, approval was not obtained whether before or after the alleged "Panchayati Faisla" transferring the land, in dispute, to the petitioners, whether under the 1955 Rules or the 1964 Rules. The procedure prescribed under the 1955 Rules and/or 1964 Rules, for transfer of land is mandatory. The admitted violation of the rules does CWP No.20341 of 2011 -4- not entitle the petitioners to invoke the doctrine of estoppel against the Gram Panchayat. A reference in this regard may be made to a Full Bench judgment of this Court titled as "Kesar Singh and another Versus State of Punjab through its Director, Rural Development and Panchayats, Punjab and another", 2012(3) RCR (Civil). While considering a similar controversy in the context of the doctrine of estoppel, it was held that if statutory provisions prescribed for transfer of land are violated, the Gram Panchayat cannot be estopped from alleging that the person in possession is an unauthorised occupant. A relevant extract from the judgment, reads as follows: -
"14. The doctrine of estoppel has evolved from the principles of equity and good conscience. The doctrine postulates that where an offer is made and the party receiving the offer, believes the bonafides of the offer and so alters its position, as to render it inequitable and contrary to good conscious to allow the first party to retract from its offer, the first party would be estopped from retracting its offer. Section 115 of the Indian Evidence Act incorporates the doctrine of estoppel and enables a party to invoke the doctrine against the party retracting its offer. The doctrine of estoppel has received judicial affirmation in Union of India v. Indo-Afghan Agencies and others, AIR 1986 SC 718 Century Spinning Co. v.Ulhasnagar Municipal Council, AIR 1971 SC 1021, Radhakrishna v. State of Bihar, AIR 1977 SC 1496 and Moti Lal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, AIR 1979 SC 621, duly followed thereafter in a host of binding precedents, namely, Union of India v. Godfray Philips India Ltd., (1995) 4 SCC 369; 1985 Supp. (3) SCR 123; AIR 1986 SC 806; Delhi Cloth and General Mills Ltd. v. Union of India and others, (1995) 1 SCC 274; Darshan Oil (P) Ltd., v. City and Industrial Development Corporation and another, (1995) 4 SCC 301; Shrijee Sales Corporation v. Union of India, (1997) 3 SCC 398; Pawan Alloys and Casting (P) Ltd. v. Uttar Pradesh State Electricity Board, (1997) 7 SCC 251.
15. The doctrine of estoppel, however, admits to a significant exception, namely, that estoppel shall not be invoked to defeat a statutory provision or to enable a party to allege that though the offer is contrary to statute, the party making the offer should be held to its offer. The doctrine of estoppel cannot be invoked to legitimise an illegality and enforce an obligation that is contrary to law. A statutory CWP No.20341 of 2011 -5- provision cannot yield to the doctrine of estoppel as no one, much less a person who has altered his position, may plead that a statutory provision should be violated so as to protect the offer made to him. The principle that a plea of estoppel cannot be raised to defeat a statute is too well settled for us to discuss any further except to the extent of noticing a few judgments. 1. G.H.C. Ariff v. Jadunath Majumdar Bahadur, AIR 1931 PC 79; 2. M/s Mathra Parshad and Sons v. State of Punjab and others, AIR 1962 SC 745; 3. Rishabh Kumar v. State of Uttar Pradesh, AIR 1987 SC 1576; 1987 (Supp.) SCC 306. 4. Union of India v. R.C. D'Souza, AIR 1987 SC 1172; (1987) 2 SCC 211. 5. Kasinka Trading and another v. Union of India and others, (1995) 1 SCC 274; 6. Shabi Construction Co. Ltd. V City and Industrial Development Corporation and another, (1995) 4 SCC 301; 7. State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others (2006) 2 Supreme Court Cases, 545".
16. A perusal of the aforementioned judgments leaves no manner of doubt that where a promise made and acted upon, is contrary to law, the doctrine of promissory estoppel cannot be invoked to defeat such a provision much less legitimise such an act.
17. An authority dealing with public property, cannot deviate from the statute, rules or instructions that govern transfer of its property. A Gram Panchayat that proposes to transfer its land is required to act in accordance with Rule 12 of the 1964 Rules and any deviation therefrom would render such a transfer as null and void. Even where a Gram Panchayat has by resolution, transferred property, delivered possession and mutation of ownership has been sanctioned, such a transfer, if made in violation of Rule 12 of the Rules, would be null and void. To estopp a Gram Panchayat from alleging that its vendees are unauthorised occupants, would, in essence, require a court to ignore Rule 12 and apply the doctrine of estoppel, against statute, in this case against Rule 12 of the 1964 Rules.
18. We, therefore, reiterate that the doctrine of estoppel, cannot be invoked against statute and if a statutory provision requires a public authority to transact its business in a particular manner, any deviation from the manner so prescribed would render such a transaction null and void and would not attract the doctrine of estoppel. The judgment in Smt. Malkhani's case (supra), has overlooked these principles while holding that the Gram Panchayat is estopped from alleging that the petitioners are unauthorised occupants." It is, therefore, apparent that failure of the Gram Panchayat to obtain approval invalidates the transaction and does not estop the CWP No.20341 of 2011 -6- Gram Panchayat from alleging that the petitioners are in unauthorised possession. The petitioners have admitted that no approval was obtained for this transfer. The transfer is, therefore, null and void. The doctrine of estoppel cannot be invoked to prohibit the Gram Panchayat from seeking possession of the land, in dispute.
In this view of the matter, the impugned orders are affirmed and the writ petition is dismissed. However, as the petitioners have been in possession of the land, in dispute, for the last more than five decades, liberty is granted to the petitioners to approach the Gram Panchayat, by way of an appropriate application under Rule 12 of the 1964 Rules. In case, such an application is filed, it shall be considered and decided in accordance with law within six months. During this period of six months, the dispossession of the petitioners shall remain stayed.
[ RAJIVE BHALLA ]
JUDGE
10.01.2013 [ REKHA MITTAL ]
shamsher JUDGE