Madan Giri & Ors vs Dhan Raj & Ors on 10 August, 2016

[Cites 7, Cited by 2]

Rajasthan High Court - Jodhpur

Madan Giri & Ors vs Dhan Raj & Ors on 10 August, 2016

This writ petition has been filed by the petitioners being aggrieved with the order dated 09.05.2016 passed by the District Collector, Bhilwara (hereinafter referred to as the 'revisional court') while exercising powers under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the 'Act of 1994'), whereby the revisional court has ordered that the revenue authorities may inspect the site and should ascertain, after making the measurement, that whether the plot possessed by the petitioners, for which the Gram Panchayat has issued patta in his favour, is situated on the abadi land or on the land of a public way. It has further directed that if it is found that the petitioners have encroached over the land of public way in the garb of patta issued in his favour by the Gram Panchayat the same patta would be treated as cancelled and the proceedings under Section 91 of the 2 Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the 'Act of 1956') be initiated against him.

Brief facts of the case are that the respondent Nos.1 to 20 resident of Bhavlas, Gram Panahayat Joravarpura, Tehsil Mandal, District Bhilwara has filed a revision petition before the revisional court while claiming that the Gram Panchayat Joravarpura issued a patta in favour of one Bheru Giri on 29.07.1982 for a land which is recorded as a public way in the revenue record and under the garb of that patta predecessor of Bheru Giri has encroached over the said land and started construction and closed the public way, therefore, the patta issued on 29.07.1982 be set aside. The revisison petition was contested by the petitioners, who are the predecessor of Bheru Giri, while claiming that Bheru Giri has purchased the said plot from an auction conducted by the Gram Panchayat and there is no illegality in the issuance of patta dated 29.07.1982. It is further contended that the land allotted vide patta in question was partitioned between the heirs of Bheru Giri and they have constructed their houses on the said allotted land. The petitioners have also denied that they have encroached over the land of public way. It is also contended that the revision petition for cancellation of patta is filed after a delay of 35 years and, therefore, the same is barred by limitation and liable to be dismissed on this ground alone.

The revisional court after hearing learned counsel for the parties has observed that from the record of Gram Panchayat, it is clear that Bheru Giri applied for allotment of piece of abadi land and thereafter the 3 Panchas of the Gram Panchayat has inspected the site and after inviting objections from public at large the said plot was put to auction and as the Bheru Giri was the highest bidder the plot was auctioned in his favour. It is also observed that the SDO, Bhilwara has thereafter confirmed the said sale in favour of Bheru Giri and, therefore, the contention of the revision petitioners the Gram Panchayat has issued patta in favour of Bheru Giri in violation of the procedure is not tenable.

However, the learned revisional court has taken into consideration the fact that Naib Tehsildar, Bagore in Case No.443/2015 decided on 20.10.2015 has found that the petitioner No.1 Madan Giri S/o Bheru Giri has encroached over 1 Biswas of the land of public way of Araji No.822 by raising a bada there, hence revisional court has observed that it would be appropriate to direct the revenue authorities to inspect the site and to ascertain that whether the plot in question is situated in abadi land of the Gram Panahayat or on the land recorded as public way in the revenue record. The revisional court has further observed that if it is found that the petitioner are having possession over the land falling in abadi area of the Gram Panchayat, the patta in question will remain as it is but if it is found that the petitioners have encroached over the land of public way in the garb of patta in question, the same would be treated as cancelled.

Learned counsel appearing for the petitioners has argued that the patta in question is challenged by the respondent Nos.1 to 20 after a delay of 35 years and, therefore, the revision petition is liable to be dismissed 4 this ground alone. In support of above contention, learned counsel for the petitioners has placed reliance on a decision of the Hon'ble Supreme Court rendered in Joint Collector Ranga Reddy District & Anr. Vs. D. Narsing Rao & Ors. reported in (2015) 3 SCC 695 and a decision of this Court rendered in Renu Devi Vs. State of Rajasthan & Ors. reported in 2015 (4) DNJ (Raj.) 1853.

It is also submitted that once the sale of the land in favour of Bheru Giri was confirmed, on the basis of which the patta has been issued in his favour, the same cannot be cancelled simply by saying that the patta has been issued over the land belonging to public way. In support of the above contention learned counsel for the petitioners has placed reliance on a decision of this Court rendered in Mastana Ram & 12 Ors. Vs. State of Rajasthan & Ors. reported in 1981 WLN (UC)

223. Heard learned counsel for the petitioners and perused the impugned order.

It is not in dispute that Bheru Giri has purchased the plot in an auction conducted by the Gram Panchayat, for which the patta has been issued in his favour on 29.07.1982, however, the respondent Nos.1 to 20 have raised a dispute before the revisional court that the Gam Panchayat has issued patta in favour of Bheru Giri in violation of the procedure provided for issuance of patta and the Gram Panchayat has issued patta for a land which is recorded as public way in the revenue record. It was also claimed that the petitioner No.1 Madan Giri has encroached over the land of public way under the garb of the said patta. Though, the 5 revisional court has found that Bheru Giri has purchased a plot from Gram Panchayat in an auction and, there is no illegality in the said auction proceedings and, therefore, the contention of the revisional petitioners that the patta has been issued by the Gram Panchayat without following the procedure is not tenable. However, the revisional court has taken note of the fact that the Naib Tehsildar Bagore has initiated the proceedings against the petitioner No.1 under Section 91 of the Rajasthan Land Revenue Act, 1956 while holding that he has encroached over 1 Biswas of the land recorded as public way in the revenue record.

Looking to the above facts and circumstances, the revisional court has directed the revenue authority to inspect the site and to conduct measurement to ascertain whether the Gram Panchayat has issued patta to Bheru Giri in abadi land or on the land recorded as public way in the revenue record. He has also directed that if the possession of the petitioners is found on the land belonging to the public way then the patta issued in favour of Bheru Giri be treated as cancelled.

It is not in dispute that the patta in favour of Bheru Giri was issued on 29.07.1982, at that time Rajasthan Panchayat General Rules, 1961 (hereinafter referred to as the 'Rules of 1961') were in force and as per those Rules a Gram Panchayat can allot a piece of land to any person through auction from the land recorded as abadi land. The Gram Panchayat has no right to allot any land or issue patta for any land which is not recorded as abadi land. If the Gram Panchayat has issued patta in favour of Bheru Giri for a land which 6 was not recorded as abadi then the said patta will be treated as void ab initio and for that purpose the power of revision can be invoked at any point of time as has been held by the Full Bench of this Court in Chiman Lal Vs. State of Rajasthan & Ors. reported in 2000 (2) WLC (Raj.) 1.

"24. In view of the above discussion, we are of the opinion that it is not the function of the court to prescribe the limitation where the legislature in its wisdom had thought it fit not to prescribe any period. As held by the Supreme Court in Ajaib Singh's case (supra) the Courts only interpret law and do not make laws. Personal views of the Judges presiding the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally left over by the legislature. Hence, we are of the opinion that when no period of limitation under Rule 272 of the Rules 1961 is prescribed by the legislature then we cannot prescribe any period of limitation that in what time the revisional powers can be exercised by the authority under Rule 272 of the 1961 Rules. When no period of limitation is provided then in our opinion the same has to be exercised within a reasonable time and that will depend upon facts and circumstances of each case like; (i) when there is fraud played by the parties; (ii) the orders are obtained by mis- representation of collusion with public officers by the private parties; (iii) Orders are against the public interest; (iv) the orders are passed by the authorities who have no jurisdiction; (v) the orders are passed in clear violation of rules or 7 the provisions of the Act by the authorities, and

(vi) Void orders or the orders are void ab initio being against the public policy or otherwise. The common law doctrine of public policy can be enforced wherever an action affects/offends the public interest or where harmful result of permitting the injury to the public at large is evident. In such type of cases, revisional powers can be exercised by the authority at any time either suo moto or as and when such orders are brought to their notice."

(emphasis supplied) There is no quarrel about the proposition of law laid down by the Hon'ble Supreme Court in the case of Joint Collector Ranga Reddy District (supra), however, the facts of the said case are quite distinguishable because in that case the land was recorded in the name of the persons 50 years back and later on, the State Government has removed their names from the revenue record on the ground that the names have been fraudulently entered in the revenue record. In this case, the situation is different where a doubt has been created that the Gram Panchayat has issued a patta in favour of Bheru Giri for a land which is not recorded as abadi land and, therefore, the revisional court has given a direction to ascertain whether the patta in question is issued for abadi land or of a land belonging to public way.

In Renu Devi's case (supra) this Court has refused to interfere with the order passed by the revisional court whereby the revision petition has been dismissed on the ground of inordinate delay.

In Mastana Ram's case (supra) the Court has 8 held that once the lay out plan proposed by the Gram Panchayat has been approved by the State Government the Gram Panchayat has allotted the land as per the lay out plant then it is not open for the Collector to cancel the sales.

Herein this case, though the auction in favour of Bheru Giri was approved by the SDO, Bhilwara but if the auction was for the land other then abadi land or for a land belonging to public way then such approval is of no consequence. Hence, the judgment of Mastana Ram's case (supra) is of no help to the petitioners.

In view of the above discussions, no case for interference in the impugned orders is made out and the same is, therefore, dismissed.

No order as to costs.

Stay petition also stands dismissed.

(VIJAY BISHNOI), J.

Abhishek 14

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Rajasthan High Court - Jodhpur