Rajasthan High Court - Jodhpur
Smt.Aman Yadav vs State Of Raj. & Anr on 13 January, 2014
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
D.B. CIVIL WRIT REVIEW PETITION NO. 71/2011.
Smt. Aman Yadav Vs. State of Rajasthan & Anr.
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S/59
D.B. CIVIL WRIT REVIEW PETITION NO. 71/2011.
Smt. Aman Yadav Vs. State of Rajasthan & Anr.
..
Date of Order :: 13th January 2014.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE V.K. MATHUR
Mr. P.P. Choudhary, Senior Advocate with
Mr. Rajendra Kataria, for the petitioner.
Mr. Yashwant Mehta, for the respondents.
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BY THE COURT:
By way of this petition, the appellant of SAW No. 811/2001: Smt. Aman Yadav Vs. State of Rajasthan & Anr., has prayed for review of the judgment and order dated 18.08.2011 whereby, the appeal filed by the appellant- petitioner against the order dated 21.09.2001 as passed by the learned Single Judge in CWP No.3678/2001 was dismissed by a co-ordinate Bench of this Court, while following another order passed on the even date, i.e., 18.08.2011 in another similar nature intra-court appeal, being SAW No. 287/2000 :
Chandra Shekhar Singh Vs. The Collector, Sirohi & Ors.
It is submitted on behalf of the petitioner that the appeal (SAW No.811/2011) filed on her behalf was dismissed on the basis of the order dated 18.08.2011 as passed in the other matter, i.e., SAW No. 287/2000 but then, the observations as occurring in the order passed in SAW No. 287/2000, D.B. CIVIL WRIT REVIEW PETITION NO. 71/2011. Smt. Aman Yadav Vs. State of Rajasthan & Anr.
// 2 // suggesting as if there had been no right, whatsoever, in the petitioner towards possession of the land in question, are not warranted in the facts of the present case and secondly, they are likely to operate prejudicial to the petitioner in her taking recourse to the other proceedings in accordance with law. It is submitted that the petitioner had submitted the application before the then existing Gram Panchayat for issuance of patta in her favour on the basis of long possession of over 42 years and even if the patta, as such, was not being approved, the observations against possession were not required to be made by this Court; and such observations are not in accord with the other material on record. The learned counsel for the non-petitioners has duly supported the order impugned and also submitted that the Municipal Board was not a party to the main appeal and has been unnecessarily impleaded in this review petition.
It appears that the intra-court appeal (SAW No.811/2011) arose out of an order dated 21.09.2001, as passed in the writ petition filed in the year 2001. The appeal was decided on 18.08.2011. No objection, as such, about impleadment of parties was raised with the suggestion that the land in question was falling within the jurisdiction of Municipal Board, Abu Road. However, later on, when such facts were noticed, an application was moved in this review petition for substitution of the Municipal Board, Abu Road as non-
D.B. CIVIL WRIT REVIEW PETITION NO. 71/2011. Smt. Aman Yadav Vs. State of Rajasthan & Anr.
// 3 // petitioner No. 2 in place of the Gram Panchayat, Akra Bhata; and the same was allowed on 22.02.2013. In the totality of the circumstances, when the Municipal Board has been impleaded as successor-in-interest in place of the Gram Panchayat, the objection in regard to its impleadment is of no avail.
Coming to the point as raised in this review petition, the questioned observations, as made in the order passed in SAW No. 287/2000, are in the following terms:-
"11. Learned counsel for the appellant however contended that allotment was made as per Rules and secondly since appellants are in possession of the land for last many decades even prior to such allotment and have also made construction over the land, they are entitled to retain the land. We do not agree to this line of argument. If the allotment is held bad being dehores the Rules, then such person cannot remain in possession of the land. Indeed the very fact that as many as 8 illegalities were noticed in the allotment and all were of a serious nature, the allotment cannot be upheld on the ground of appellant being in possession. His possession becomes illegal and unauthorised on such land."
When viewed with reference to the main issue and the context, in our opinion, the observations against right of remaining in possession are to the effect that if a person has come in possession because of the questioned allotment, which is found de hors the Rules, then, he cannot claim retention of the possession. This aspect stands moreover clarified in the last line of the passage above-quoted, where it has clearly been observed that his possession "becomes" illegal and unauthorised.
D.B. CIVIL WRIT REVIEW PETITION NO. 71/2011. Smt. Aman Yadav Vs. State of Rajasthan & Anr.
// 4 // However, and in order to avoid any prejudice, we deem it proper to make it clear that if at all any claim is otherwise made on the basis of old possession, anterior to the questioned allotment, the parties would, obviously, be free to take recourse to the appropriate proceedings in that regard, of course, strictly in accordance with law.
This review petition stands disposed of subject to the observations foregoing.
(V.K. MATHUR), J. (DINESH MAHESHWARI), J. Mohan/