Rajasthan High Court - Jodhpur
Jhumar Ram vs Addl. Distt. Collector & Ors on 9 May, 2017
Author: Sangeet Lodha
Bench: Sangeet Lodha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12692 / 2013
Jhumar Ram s/o Bhoora Ram, aged 60 years, By caste Jat, R/o
Godari Ki Dhani Bhopalgarh, Distt. Jodhpur.
----Petitioner
Versus
1. Additional Distt. Collector (Second), Jodhpur.
2. Gram Panchayat Bhopalgarh Distt. Jodhpur.
3. Amra Ram S/o Bastra Ram by caste Mali, R/o Bhopalgarh
Distt. Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.C.R.Jakhar
For Respondent(s) : Mr.S.M.Parihar
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
Order 09/05/2017
1. This writ petition is directed against order dated 31.7.13 passed by the Additional Collector (Second), Jodhpur, whereby the revision petition preferred by the third respondent questioning the legality of patta of a plot measuring 10200 sq. ft. issued in favour of the petitioner by Gram Panchayat, Bhopalgarh has been allowed and the patta issued stands cancelled.
2. The relevant facts are that the petitioner made an application to the Gram Panchayat, Bhopalgarh under Rule 157 of Rajasthan Panchayati Raj Rules, 1996 (for short "the Rules"), for grant of patta of a 'bara' alleged to be in his long possession. The legality of the patta issued was questioned by the third respondent by way of revision petition before the Additional Collector (Second), (2 of 5) [CW-12692/2013] Jodhpur on various grounds. After due consideration, the revisional authority arrived at the finding that there was nothing on record suggesting that an old residential house constructed by the petitioner herein was existing on the site and thus, no proceedings for issuing the patta under Rule 157 of the Rules could have been initiated by the Gram Panchayat. The revisional authority found that as a matter of fact the application filed for grant of patta is not signed by the petitioner. The revisional authority found that even in the comments prepared by the Gram Panchayat on the application made by the petitioner the description of the patta of the plot applied for has been mentioned as 'kabajasud bara ka patta" . The revisional authority found that the patta has been issued in favour of the petitioner in gross violation of the Rules. Accordingly, while allowing the revision petition, the patta issued stands cancelled. Hence, this petition.
3. Learned counsel appearing for the petitioner contended that the patta of the land in question was issued in favour of the petitioner on the basis of the old possession and thus, proceedings taken by the Gram Panchayat for issuing the patta under Rule 157 of the Rules cannot be faulted with. Learned counsel submitted that the patta issued as aforesaid already stands registered on 18.12.09 and therefore, the same could not have been set aside by the revisional authority. Learned counsel submitted that the revision petition filed questioning the legality of the patta after a lapse of about 12 years was not open to be entertained by the revisional authority and was liable to be rejected on the ground of inordinate delay.
(3 of 5) [CW-12692/2013]
4. On the other hand, the counsel appearing for the third respondent while supporting the order passed by the revisional authority submitted that the patta of the land in question was issued by the Sarpanch, Gram Panchayat in favour of the petitioner in clandestine manner. Learned counsel submitted that without there being existence of old residential house, no proceedings under Rule 157 of the Rules could have been taken by the Gram Panchayat for issuing patta in favour of the petitioner. Learned counsel submitted that Rule 157 only permits regularisation of the old houses constructed over the plot and not the open land and thus, the patta issued in favour of the petitioner by the Gram Panchayat acting without jurisdiction is void ab initio.
5. I have considered the submissions of the learned counsel for the petitioner and perused the material on record.
6. A bare perusal of Rule 157 of the Rules, makes it abundantly clear that it permits regularisation where the person are in possession of old house in abadi land and desire to get a Patta issued. It further provides that for old houses constructed more than 50 years ago, the Patta may be issued by depositing Rs.100/- and for old house constructed during last 50 years from the date of commencement of the Rules i.e. 30.12.96, the Patta may be issued on depositing the charges Rs.200/-. It has come on record that as a matter of fact, no constructed house was existing at the site at the time of issuance of the patta or even thereafter. The 'bara', if any existing for the stay of the cattles, by no stretch of imagination, can be considered to be a 'house constructed' within the meaning of Rule 157 of the Rules.
(4 of 5) [CW-12692/2013] Obviously, the regularisation of old houses in terms of Rule 157 refers to residential houses constructed by the inhabitants of the panchayat area and no other construction and therefore, the regularisation of the possession of the petitioners over the abadi land without there being existence of any constructed house over the same, was ex facie beyond the authority of the Gram Panchayat in terms of provisions of Rule 157 of the Rules.
7. There is yet another aspect of the matter. In the instant case, on the basis of the small 'bara' alleged to be existing at the site, the petitioner has obtained the patta of the land ad measuring 10200 sq. ft. i.e. 1133 sq. yard. Obviously, the provision incorporated with a view to regularise the possession of the old house in abadi land could not have been used by the Gram Panchayat to issue patta of the huge land in favour of the petitioner in clandestine manner, on the payment of meagre amount Rs.100/-. Obviously, the public property cannot be distributed by the local authority as bounty and therefore, the allotment made in favour of the petitioners of the huge land causing wrongful loss to the public exchequer is not sustainable in the eyes of law.
8. Coming to the contention of the learned counsel that the petition filed for assailing the patta issued after unexplained delay should have been dismissed on this count alone, suffice it to say that the allotment of the land belonging to local authority or Government obtained without any lawful entitlement by playing fraud is void and no limitation should come in the way of the authority competent in cancelling such allotment.
(5 of 5) [CW-12692/2013]
9. Thus, in the considered opinion of this court, the revisional authority has committed no error in setting aside the patta issued in favour of the petitioner dehors the Rules.
10. No case for interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India is made out.
11. The writ petition is therefore, dismissed. No order as to costs.
(SANGEET LODHA),J.
Aditya/