1. This reference has been made by the Commissioner Jodhpur under rule 28 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act No. 1 of 1951 in a patta case. 2. One Gopaldas Maheshwari of Pali was granted a Bapi patta for a piece of land in Pali town in the year 1922-23 for construction of a wool press on an yearly rent of Rs. 20/-. Later on while settlement proceedings were going on it was ordered by the Assistant Settlement Officer that the land was used for imarti purposes and it was wrong to issue a Bapi patta and hence he cancelled it and directed the party concerned to obtain an imarti patta. Gopaldas did not take any proceedings to obtain an imarti patta and his son Ganpatlal applied for a patta on 14th February, 1939. Proceedings for patta were not concluded and in the meanwhile Ganpatlal transferred this land with buildings to Shri Krishna Agency for Rs. 25,000/-on 14th April, 1945. The Tehsildar Pali who concluded the proceedings for grant of patta submitted a report to the Collector on 26th August, 1950 for grant of the patta to Sri Krishna Agency at the rate of Rs. 2/-per sq. Gaj. An objection was filed on behalf of Sri Krishna Agency against the rate proposed by the Tehsildar and the Collector reduced the rate from Rs. 2/- to Re. 1/- per sq. Gaj and ordered the issue of the patta. 3. The Commissioner has examined the case and is of the opinion that the land is worth much more than Re. 1/- per sq. Gaj and thinks that if it be auctioned it would bring at least Rs. 8/- to 10/- per sq. Gaj and thus he thinks that the Government of Rajasthan has lost very nearly a lac and half rupees in this transaction. He thinks that the correct way to find the value of this land was to auction it. He, further, observes that according to the Jodhpur Rules a person applying for patta had no right to construct buildings without first having obtained permission to do so and even if a building is constructed the value of land is worked only by auctioning the land and the applicant may be given a preference to purchase the land on the highest bid. The Commissioner, is, therefore, of the opinion that a patta granted by the Collector Pali may be cancelled and the land may be put to auction. 4. I am afraid the recommendation made by the learned Commissioner is not in accordance with the law regarding the grant of pattas for imarti lands in Marwar. The grant of such pattas is regulated by the Marwar Patta Ordinance, 1921 and the amendments made later on. According to sec. 16 of the Original Ordinance only unoccupied land, for a patta of which application is made under sec. 9, is, unless there is any local custom or authoritative grant to the contrary, to be put to public auction and the applicant is to be given the option of purchasing it at the price last bid. This section does not apply to land which is in possession of an applicant and sec. 17 applies in such case. According to sec. 17 any person, who is in possession of land, and applies for a patta thereof would be granted a patta therefor on payment of the present site value if the possession dates from after the Smt. year 1946 and at ten p.c. of the present site value if the possession dates from before Smt. year 1947. 5. Present site value is also defined in this section as the value of the land, exclusive of the buildings or other works of improvements including trees standing thereon, at the rate obtaining at the time when the proceedings are being taken for the grant of the patta for land of similar advantages or disadvantages in the neighbourhood and is a matter for determination in each case, with reference to plots which have been sold or auctioned in the open market or at private sale by willing sellers or willing buyers, or as ascertained with the help of assessors whose aid may be called in for the purpose. 6. The learned Commissioner is of the opinion that if the land is auctioned it would bring at least Rs. 8/- to Rs. 10/- per sq. Gaj but as has been stated above occupied land can not be auctioned. According to amended sec. 6. The learned Commissioner is of the opinion that if the land is auctioned it would bring at least Rs. 8/- to Rs. 10/- per sq. Gaj but as has been stated above occupied land can not be auctioned. According to amended sec. 6 (a) of the Patta Ordinance, persons who were in occupation of any land on January 1, 1922, are entitled to get a patta for the land in their occupation on payment of the prescribed fees; persons who occupied vacant land on or after that date will only get pattas if there is no objection to their getting them from the point of view of the public interest. 7. Thus persons who occupied land even after the year 1928 can be refused pattas only if there is an objection to their getting the patta from the point of view of the public interest but not otherwise. In the present case it has not been shown that there was any objection to the grant of the patta to the applicant from the point of view of the public interest. The applicant occupied land with the permission of the Government for a wool press and the Government granted a bapi patta. As the land was imarti land no bapi should have been granted but it was mistake of the Government and not of the applicant. The applicant can not, therefore, be said to have occupied land without permission or authority of the Govt. When the land was given not for agricultural purposes but for wool press and the land was not agricultural the applicant must be considered to have the permission of the Government to construct buildings upon it so as to utilise the land for the purpose for which it was taken. The Government could not turn round and hold occupation of the land by the applicant as unauthorised because the bapi patta had been later on cancelled by the Settlement Officer not on the ground of any fault of the applicant but because in his opinion an imarti patta should be given. There appears, therefore, no reason why an imarti patta should be refused to the applicant. 8. The question now remains of the fees. As the Government is converting the bapi lease into an out right sale of the land the utmost it could charge is the site value. There appears, therefore, no reason why an imarti patta should be refused to the applicant. 8. The question now remains of the fees. As the Government is converting the bapi lease into an out right sale of the land the utmost it could charge is the site value. The Commissioner is of the opinion that the site value should be value prevailing at present when the patta has been issued. According to the definition of present site value as given in sec. 17 quoted above the value to be taken should be the one obtaining at the time when proceedings are taken and not at the time when patta is issued. Proceedings should be considered to have started when the applicant applied for an imarti patta in I939» if not from the time when the bapi patta was granted in the year 1922. If the proceedings for the grant of the patta remained pending for 12 years it is not the fault of the applicant and he can not be penalised for the delay in grant of the patta and the rise in price of land. The land was taken possession of by the applicant in 1922 and if the Government had not granted him a bapi patta but an imartipatta the Government would have charged the site value then prevailing. It would, therefore, be highly unjust to charge at the rate now prevailing. On these grounds the recommendation of the learned Commissioner to charge the present rate of land can not be accepted. 9. The way to determine the site value is not by auction of occupied land but the way as mentioned in sec. 17 quoted above. 10. It is not stated by the Commissioner that the price of Re. 1/-per Sq. Gaj charged by the Collector is lower than the value prevailing in the year 1922 or even 1939, In the circumstances I would with the concurrence of my learned colleague reject the reference. However, as the man who was in occupation of the land and had applied for a patta had transferred it before the patta was issued the purchaser is liable to pay the fee which (the seller was liable to pay and also ten per cent of the site value due to sate of the land according to proviso to sec. 16 (1) of the Marwar Patta Ordinance. 16 (1) of the Marwar Patta Ordinance. Therefore, ten per cent of the site value charged will be further recovered from the purchaser of the land, Shri Krishna Agency.. Shri Keshri Singh Ranawat—I concur.