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2005 DIGILAW 3194 (RAJ)

Hukam Singh v. State of Raj.

2005-12-02

GOVIND MATHUR

body2005
Honble MATHUR, J.—By this petition for writ a challenge is given to the notice dated 23.8.1993 issued by the Tehsildar, Desuri exercising powers under Section 91 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as "the Act of 1956"). (2). By the notice impugned the Tehsildar, Desuri by treating the petitioners trespassers instructed to remove encroachment from the land in dispute or to explain as to why they be not subjected to three years civil imprisonment and penalty of Rs.20,000/- for making trespass on Government land. (3). The contention of the petitioners is that the powers under Section 91 of the Act of 1956 cannot be invoked in the present case as the land in dispute is nazul land situated in village Pilowani and the same was allotted to the petitioners by Gram Panchayat vide the pattas Annexure-1 and Annexure-2. It is also contended by the petitioners that earlier too a notice dated 16.9.1989 was given by the Tehsildar, Desuri under Section 91 of the Act of 1956 which was replied by them and no action thereafter was taken. According to the petitioners they satisfied the Tehsildar, Desuri in pursuant to the notice dated 16,9.1989 that they were not trespassers to the land in question, in spite of it a fresh notice dated 23.8.1993 was issued by the Tehsildar which is wholly without jurisdiction. (4). A reply to the writ petition is filed on behalf of the respondent State stating therein that the land in question is gair mumkin rasta and, therefore, vests in the State Government. The Gram Panchayat was having no authority to allot aforesaid land to the petitioners. (5). Heard counsel for the parties. (6). There is no dispute between the parties that the Gram Panchayat in accordance with the Rajasthan Panchayat Act, 1953 sold the land in dispute to the petitioners. The petitioners are having possession over the land in dispute by the force of pattas issued in their favour by Gram Panchayat in pursuant to the sale aforesaid. The Gram Panchayat may had sold the land to the petitioners erroneously but it cannot be said that the petitioners are having possession over the land unauthorisedly. The powers under Section 91 of the Act of 1956 can be exercised only against the trespassers. The Gram Panchayat may had sold the land to the petitioners erroneously but it cannot be said that the petitioners are having possession over the land unauthorisedly. The powers under Section 91 of the Act of 1956 can be exercised only against the trespassers. The petitioners being in possession of the land in dispute in view of the pattas issued by the Gram Panchayat cannot be held trespassers. As such the proceedings initiated under Section 91 of the Act of 1956 are absolutely without jurisdiction. The respondents could have taken proceedings for setting aside the sale made in favour of the petitioners but no action under Section 91 of the Act of 1956 could be maintained against the petitioners. In view of it the notice impugned dated 23.8.1993 issued by the Tehsildar, Desuri is illegal and, therefore, the same deserves to be quashed. (7). The writ petition is accordingly allowed. The notice dated 23.8.1993 issued by the Tehsildar, Desuri under Section 91 of the Act of1956 is quashed. (8). No order as to costs.