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2005 DIGILAW 2979 (RAJ)

Nathu Lal v. State of Rajasthan

2005-11-14

R.P.VYAS

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the appellant as well as Additional Advocate General. None has appeared for the private respondent in spite of service. 2. The appeal is directed against the Judgment dated 03.03.1998 passed by learned Single Judge dismissing the writ petition filed by the petitioner-appellant. 3. The learned Single Judge has dismissed the writ petition inter alia on the ground that on the complaint being made, the patta of the petitioner was set aside by the Collector. The appeal and revision were dismissed by the Courts below. Both the Courts below took view that as the land was under the use of general public, it should not have been given by private negotiations but, should have been given by auctioning the land, so that, Gram Panchayat could have fetched proper price. 4. We have perused the impugned order under challenge in the writ petition and the material placed before us. It is clear from the reading of the impugned orders that no finding has been recorded by the Collector as a revisional authority that land in question was a public land and was not open to sale. In fact, the petitioner-appellant had been allotted the land in question ad measuring 252 sq. ft. on 21.06.1981 by private negotiations at the rate of Rs. 1.25 paisa per sq. ft. The complaint was lodged after about four years by one Shanti Lal. He alleged that the land in question was a part of Manak Chowk and being used for public purpose and by alloting said land has closed the different public ways passing through this chowk. 5. No finding on this aspect was recorded by the Collector, Udaipur. What the Collector found was that though the panchayat samiti has allotted the land in question on the basis of prior possession of the allottee but it has not been considered by the Gram Panchayat that why the land in question could not be sold by public auction and, therefore, the allotment was held to be invalid. What the Collector found was that though the panchayat samiti has allotted the land in question on the basis of prior possession of the allottee but it has not been considered by the Gram Panchayat that why the land in question could not be sold by public auction and, therefore, the allotment was held to be invalid. Thereafter, the Collector, Udaipur had indulged in issuing directions founded on ifs and buts, that if the land is not considered fit to be reserved for public purpose then it should be sold by auction and if the panchayat considers that it is not possible to put the land in question in auction then the matter should be referred to the Collector and after obtaining his permission, it may be sold by private negotiations. Tacitly, it implies that he did not find as a fact that land was part of public chowk or way. Nor did he find whether it blocked any public way. The order of the Collector is based on the findings which has been assumed by the learned Single Judge to be the finding of the two Courts below. As a matter of fact, the revision preferred by the appellant before the Revenue Appellate Authority was dismissed as incompetent. 6. The decision of the learned Single Judge is based on assumption that revenue authorities had reached at the categorical conclusion that the land was for the use of general public. We have noticed about this assumption is wholly unfounded. Collector has not reached any finding. He has left it to the desire of panchayat whether the land in question is desired to be used for public chowk otherwise it has left it to panchayat to allot the land by private negotiations, as has been done while alloting it in favour of the petitioner. It has only given order that panchayat should seek proper approval of Collector before resorting to it. The order of the Collector, in our opinion, being vague and not founded on any reason cannot be sustained. If the land is found to be used for public purpose then all encroachments must have been ordered to be removed. It has only given order that panchayat should seek proper approval of Collector before resorting to it. The order of the Collector, in our opinion, being vague and not founded on any reason cannot be sustained. If the land is found to be used for public purpose then all encroachments must have been ordered to be removed. Such encroachment cannot be allowed to be sustained on the ground that the same has been alloted on negotiated price, and if it is found a public land, then there is no reason to cancel the allotment made even in favour of the petitioner on the basis of old possession. 7. As a result, this appeal is allowed. The Judgment under appeal is set aside. The writ petition filed by the appellant is also allowed and the order passed by the Collector dated 17.03.1986 is quashed. However, the matter is remitted back to the Collector to hold an enquiry whether the land in question is a part of public chowk and its allotment affect the ingress and egress through the alleged Manak Chowk wide existing public roads leading to it from different sides. In case finding is otherwise, the allotment by panchayat was not liable to be cancelled at the complaint of busy body like respondents. This proceeding should be concluded within a period of 3 months from the date of receipt of this order or submission of certified copy by any of the parties. No order as to costs.