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Rajasthan High Court · body

2008 DIGILAW 1321 (RAJ)

Hafiz Mohd. v. State of Rajasthan

2008-05-12

H.R.PANWAR

body2008
JUDGMENT 1. - By the instant writ petition under Arts. 226 and 227 of the Constitution of India, the petitioner seeks quashing of order Annex.P/4 dated 02.12.2006 issued by respondent No.2, Tehsildar, Hurda, District Bhilwara. 2. Facts giving rise to the instant writ petition are that the petitioner claims to be the owner of the plot on the strength of the patta issued in his favour by the Gram Panchayat Sareri, Panchayat Samiti, Hurda, District Bhilwara Annex-1. On the strength of earlier patta, one Gajmal filed a civil suit before the Civil Court (Sr.Div.), Gulabpura being Civil Original Case No. 61/2002. That suit came to be dismissed by judgment and decree dated 03.02.2006 holding therein that the Gram Panchayat has no jurisdiction to issue patta and therefore, the plaintiff therein Gajmal has no legal right to possession. On appeal before the Additional District Judge, Gulabpura, Bhilwara being Civil Appeal Decree No. 2/2006, the appeal came to be dismissed by judgment dated 22.07.2006 Annex.P/3 against which a second appeal is said to have been filed before this Court, which is pending. 3. Tehsildar respondent No. 2 issued a notice to the petitioner stating therein that he has encroached upon the Govt, land on Khasra bearing No.1196 measuring 55 square meter by constructing a shop thereon and, therefore, by order Annex. P/4 dated 02.12.2006, the petitioner was directed to remove the encroachment within ten days, else it shall be removed by the respondent State and expenses of which are to be borne by the petitioner. Hence, this writ petition. 4. Reply to the writ petition has been filed by the respondent State. Respondent State came with a case very specifically that the land in question is the land allotted to the school for school building and the Gram Panchayat, Sareri, Panchayat Samiti Hurda has no jurisdiction to issue the patta in respect of the land which belongs to the respondent State. According to the learned Additional Government Counsel appearing for the State, the land in question does not fall within the jurisdiction of the Gram Panchayat and, therefore, even if any patta has been issued by the Gram Panchayat, it is null and void and it does not confer any right or title in favour of the petitioner. According to the learned Additional Government Counsel appearing for the State, the land in question does not fall within the jurisdiction of the Gram Panchayat and, therefore, even if any patta has been issued by the Gram Panchayat, it is null and void and it does not confer any right or title in favour of the petitioner. Learned Additional Government Counsel submits that the land in question has been allotted to the school for the purpose of school building and the petitioner encroached thereupon. He further submits that there is no question of violation of principles of natural justice as has been held by the Hon'ble Supreme Court in Om Prakash Mann v. Director of Education, (2006) 7 SCC 558 . 5. Be that as it may, having heard learned counsel for the parties and looking to the facts and circumstances of the case and the fact that the petitioner claims to be in possession of the land in question on the strength of the patta, may be issued by an authority, having no jurisdiction, but these questions are yet to be decided by the authorities issuing a notice and, therefore, in my view, it would be more appropriate to direct respondent No.2 Tehsildar, Hurda to afford an opportunity of hearing to the petitioner and if the petitioner pul forward his case to consider and decide in accordance with law and, thereafter, it the Tehsildar comes to the conclusion that the petitioner encroached upon the land which is said to be a Government land allotted for school purpose, then he may pass an order of eviction in accordance with law. 6. With these directions, the writ petition stands disposed of. The petitioner to appear before respondent No. 2 Tehsildar, Hurda on 26.05.2008 and, thereafter as and when the dale fixed by the Tehsildar without any further fresh notice. Till 26.05.2008 the petitioner may not be dispossessed, if not already dispossessed. 7. There shall be no order as to costs.Writ Petition Disposed of. *******