Rajasthan High Court - Jaipur
Gulam Jilanee vs Director Of Local Self&Ors; on 2 February, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 7258 / 2016
Gulam Jilanee S/o Gulam Sarvar, by caste Musalman Pirjada, Aged
72 years, R/o Ramgopal Ji Ki Chattri Ke Peeche Fatehpur Ward No.
19, Fatehpur District Sikar (Raj.)
----Petitioner
Versus
1. Director Of Local Self Government Department through its
Director, C-Scheme, Jaipur.
2. District Collector, Sikar, Rajasthan
3. Nagar Palika, Fatehpur through its Director, Nagar Palika,
Fatehpur
4. Executive Officer, Nagar Palika Mandal, Fatehpur, District
Sikar, Rajasthan
5. Mohammad Hussain S/o Shri Abdul Karim, by caste Chejara
Musalman, present President Komm Memodran Chejara
Sanstha, R/o Fatehpur
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Kapil Bardhar, Mr. Iqtedar Nazmi, Mr. Umesh Dubey For Respondent(s) : Mr. M.M. Ranjan, Sr. Counsel with Mr. Daulat Sharma, Mr. Shailesh Prakash Sharma Mr. Manu Bharagava, Govt. Counsel _____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA Judgment (2 of 6) [CW-7258/2016] 02/02/2018 The facts of the case are that the petitioner was issued a patta by Nagar Palika, Fatehpur which was registered on 7.5.1997 before the jurisdictional Sub-Registrar. Pursuant to his title over the property under the registered patta, on 25.2.2016 petitioner was granted permission by Nagar Palika, Fatehpur- Shekhawati, District Sikar to raise construction as the map therefor was approved.
A challenge to the registered patta dated 7.5.1997 came to be laid by respondent no. 5 - Mohammad Hussain by way of an appeal before District Collector, Sikar. Vide the impugned order dated 10.5.2016, the District Collector, Sikar has quashed and set-aside the registered patta / lease deed dated 7.5.1997 and remanded the matter to the Nagar Palika, Fatehpur for consideration of the matter of grant of patta to the petitioner afresh after inspection of the plot in issue and determining as to whether it could at all be allotted to the petitioner. Aggrieved of the Collector's order dated 10.5.2016, the petitioner approached the Director, Local Bodies by way of a revision under Section 327 of the Rajasthan Municipalities Act, 2009 (hereafter 'the Act of 2009'). The said revision has however been dismissed by Director, Local Bodies on the ground that it was not maintainable. Hence this petition.
Mr. Kapil Bardhar appearing for the petitioner submitted that the challenge in the petition be confined to the order dated 10.5.2016 passed by the District Collector, Sikar as there is no (3 of 6) [CW-7258/2016] legal necessity to impugn the order dated 24.5.2016 passed by Director, Local Bodies for the reason that it merely states that revision under Section 327 of the Act of 2009 against the order dated 10.5.2016 passed under Section 73(2) of the Act of 2009 was not maintainable.
On the merits of the petition, Mr. Kapil Bardhar submitted that the allotment made to the petitioner by way of registered patta dated 7.5.1997 at the instance of the Nagar Palika, Fatehpur could not be cancelled by District Collector, Sikar for lack of jurisdiction. He submitted that Section 73(2) of the Act of 2009 provides that the State government or a person authorized by it may only cancel the proposal to lease, sell, regularize, allot or transfer any Municipal land or Government land made by or on behalf of a Municipality or chairperson, or officer of a Municipality. Mr. Kapil Bardhar submitted that the Collector does not have power on the plain language of Section 73(2) of the Act of 2009 to cancel a registered lease deed. In fact unless authorized by the State Government under a specified order he could not even cancel a proposal to lease. In support of his contention, reliance was placed by Mr. Kapil Bardhar on the judgment of this Court in the case of Ramchandra Versus The District Collector, Hanumangarh & Ors. {2016 (2) RLW 985 (4 of 6) [CW-7258/2016] (Raj.)}. He further submitted that the registered lease deed / patta could not be cancelled except by way of resort to a suit for declaration before a competent civil court. In support of his contention, he has relied upon the judgment of Apex Court in the case of Satya Pal Anand Versus State of Madhya Pradesh and Others {(2016) 10 Supreme Court Cases 767}.
Mr. M.M. Ranjan, Sr. Counsel appearing with Mr. Shailesh Prakash Sharma and Mr. Daulat Sharma submitted that in view of the judgment of this Court in the case of Ramchandra S/o Shri Gulabchand Nai (supra), a contrary argument cannot be made at-least before this Court. Albeit he submitted that Section 73(2) of the Act of 2009 can be construed, in the context of the legislative intent, to confer power on the State Government or an officer authorized by it to cancel even a registered lease deed executed by the Municipality when such a lease deed is a fraud on the power of the Municipality to allot land.
Heard. Considered.
The impugned order dated 10.5.2016 has been passed by the Collector, Sikar. Even in terms of a plain reading of Section 73(2) of the Act of 2009, the Collector, Sikar does not have the power thereunder as nothing has been brought on record to show (5 of 6) [CW-7258/2016] that the State Government had authorized him to exercise powers under Section 73(2) of the Act of 2009. Further even otherwise Section 73(2) of the Act of 2009 applies only at the stage of proposal to lease/ sell municipal land not subsequent to its lease/ sale and registration. Besides, Mr. M.M. Ranjan has not been able to satisfy this Court that the registered lease deed dated 7.5.1997 is a statutory lease deed. This Court in the case of Ramchandra S/o Shri Gulabchand Nai (supra) has held that the power under Section 73(2) of the Act of 2009 even when exercisable by the State Government or an officer authorized by it can be only at the stage of a proposal to lease or sell municipal or government land and such power cannot be exercised subsequent to the execution of the lease deed and registration thereof.
The Apex Court in the case of Satya Pal Anand Versus State of Madhya Pradesh and others (supra) has held that if a document is registered, it cannot be cancelled by the registering authority but such consequence can only flow from a suit for declaration being filed by the aggrieved party before a civil court of competent jurisdiction.
In this view of the matter, I find that the order dated 10.5.2016 passed by the District Collector, Sikar cancelling the (6 of 6) [CW-7258/2016] registered patta/ lease deed dated 7.5.1997 is wholly without jurisdiction and thus liable to be quashed. It is accordingly so. It is however made clear that the respondent no.5 shall be free to take his remedy of filing a civil suit, if now available in law, inter-alia with reference to the law of limitation, for seeking cancellation of registered patta/ lease deed dated 7.5.1997 executed by Nagar Palika, Fatehpur to the benefit of the petitioner. Besides, if aggrieved of the approval of building plans qua the plot under the registered patta/ lease deed in issue, the respondent no. 5 shall be free to also lay a challenge thereto in accordance with law.
The writ petition stands allowed accordingly.
(ALOK SHARMA)J. Dk