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2009 DIGILAW 970 (RAJ)

Dhala Ram v. Pratap Ram

2009-04-06

DINESH MAHESHWARI

body2009
Hon'ble MAHESHWARI, J.—The petitioners were granted a patta dated 05.06.1990 (Annex.1) by the Gram Panchayat, Dayalpura while allotting free of charge 1554 sq. feet of land situated at village Dayalpura, Tehsil Pali as an allotment meant for the persons belonging to the category of Scheduled Casts, Scheduled Tribes, Landless Persons, Village Artisans and Marginal Farmers. 2. The allotment so made to the petitioners came to be questioned with the respondent No.1 filing a revision petition (No.75/2003) under Section 97 of the Rajasthan Panchayati Raj Act, 1994 ('the Act of 1994') before the Collector Pali who has allowed the revision petition by the impugned order dated 14.06.2005 (Annex.5) on the ground that the requisite proceedings were not available to establish the legality of such allotment and then, the allotment was made free of charge to the extent of 1554 sq. feet of land, beyond the permissible extent of 150 sq.yards. The order so passed by the Collector, Pali is sought to be challenged by way of this writ petition. 3. It has essentially been contended on behalf of the petitioners that the learned Collector has failed to consider that the disputed one was the ancestral property of the petitioners who had been in its possession since long; that the proceedings in revision were taken up under the Act of 1994 whereas the patta in question was issued way back in the year 1990; that the Secretary of the Gram Panchayat, with ulterior motive, did not produce the relevant record and there was no basis for the learned Collector to conclude that the Panchayat had not adopted the requisite proceedings before issuance of the patta in question. It is further submitted that basically the dispute between the parties had been about the wall between their houses and the revisionist filed a civil suit in that regard, which was ultimately decided in favour of the petitioners and even the appeal taken has also been dismissed. It is submitted that with the findings of the civil Court in favour of the petitioners, they deserve not to be deprived of the land duly allotted to them that had always been in their possession. It is also contended that the Panchayat itself had granted construction permission to the petitioners and that the revision petition was filed after an inordinate delay. 4. It is also contended that the Panchayat itself had granted construction permission to the petitioners and that the revision petition was filed after an inordinate delay. 4. In the first place, it may be pointed out that by way of this petition, challenge is sought to be given to an order passed by the subordinate authority in its revisional jurisdiction. The proceedings herein are not akin to nor in substitution of an appeal or a revision; and interference in writ jurisdiction in any order passed by the subordinate authority is essentially considered when the order could be said to be suffering from such fundamental flaws like erroneous assumption of jurisdiction, or refusal to exercise jurisdiction, or errors apparent on the face of the record, or violation of principles of natural justice, or arbitrary or capricious exercise of authority, or recording the findings that are perverse or without reasonable basis or are patently unreasonable; and when any such error leads to manifest injustice. 5. Having examined the present matter in its totality, having given a thoughtful consideration to the submissions made on behalf of the petitioners, and having perused the material placed on record including the judgment and decree as passed in the civil suit, this Court is clearly of opinion that the impugned order does not suffer from any such fundamental infirmity nor leads to injustice; and no interference is called for in this matter in writ jurisdiction. 6. During the course of submissions, when it was argued that the patta in question deserves to be maintained for the finding of the civil Court in favour of the petitioners, at the directions of the Court, certified copies of the judgment and decree as passed by the Trial Court and the First Appellate Court in the said civil suit have been placed on record by the counsel appear-ing for the respondent. A perusal of said decisions makes it clear that there was no occasion for the civil Court to pronounce on the legality and validity of the patta in question; and the Trial Court has specifically observed so. A perusal of said decisions makes it clear that there was no occasion for the civil Court to pronounce on the legality and validity of the patta in question; and the Trial Court has specifically observed so. It was pointed out before the Trial Court that the patta granted to the petitioners had been cancelled by the Collector, Pali by the order dated 14.6.2005 to which the Trial Court pointed out that in the civil suit for injunction, the ownership rights were not to be decided and only the question of possession was relevant. In fact, in the said suit, the only issue framed was as to whether the plaintiff was entitled to a perpetual injunction against the defendants (present petitioners) that they would not raise construction on the southern side of the plaintiff’s house with encroachment of 3 x 56 feet land. The learned Trial Court essentially found that the plaintiff had failed to establish if the defendants encroached over any land in his possession and thus, found no reason to issue any injunction in his favour. Such basic finding has, of course, been affirmed by the Appellate Court. However, validity of the patta in question was not a matter directly and substantially in issue in the said suit. This Court is unable to agree with the submission that for such decision by the civil Court, the patta in question has acquired immunity or that the impugned order of the Collector is required to be interfered with on this count alone. 7. So far the patta in question is concerned, the learned Collector has, apart from noticing want of relevant record in the Panchayat, has observed that under Rule 158 of the Rajasthan Panchayati Raj Rules, 1996, allotment of abadi land to the persons of the weaker section could be made only upto the extent of 150 sq. yards whereas admitted position it is that the patta in question was granted for 1554 sq. feet of land that definitely exceeds 150 sq. yards. 8. yards whereas admitted position it is that the patta in question was granted for 1554 sq. feet of land that definitely exceeds 150 sq. yards. 8. It may be pointed out that even before the Rules of 1996, such free of charge allotments were regulated by other notifications like the one issued by the State Government on 06.07.1982 making the Rajasthan Panchayat (General) (Special Allotment of Abadi Land to the members of Scheduled Castes/ Scheduled Tribes, Landless Persons, Village Artisans, and Small and Marginal Farmers) Rules, 1982; and its forerunner notification dated 24.09.1975 making similar titled Rules of 1975. Under the said Rules also, only a plot of 150 sq. yards could have been allotted free of charge to a person belonging to any of the specified categories provided that he was not owning any house site in any abadi or agricultural land in Rajasthan in his own name or in the name of any member of his family. 9. The patta in question specifically states the fact that the land has been allotted free of charge and the measurement of the land so allotted has been stated as 1554 sq. feet. If at all entitled, the petitioners could not have been allotted more than 150 sq. yards of land free of charge. The allotment in question remains fundamentally illegal and contrary to the Rules. In the given fact situation, even if the Panchayat proceeded to issue construction permission to the petitioners or even if the revision petition was filed with some delay, in the opinion of this Court, no case is made out for interference in the writ jurisdiction. 10. Noteworthy it is that in the scheme of such provisions whether contained in the Rules of 1975 or in the Rules of 1982 or the present Rule 158 of the Rules of 1996, the essential and basic idea is and has been to extend the concession to the weaker section of the society for the purpose of their residence. Looking to the very purpose of such provisions, if the rights of the weaker sections of the society are sought to be compromised, any such offending allotment cannot be countenanced. 11. The allotment to the petitioners had not been in accordance with law nor there is any equity in favour of the petitioners. 12. Looking to the very purpose of such provisions, if the rights of the weaker sections of the society are sought to be compromised, any such offending allotment cannot be countenanced. 11. The allotment to the petitioners had not been in accordance with law nor there is any equity in favour of the petitioners. 12. In the overall circumstances, the impugned order dated 14.6.2005 cannot be said to be suffering from any jurisdictional error leading to manifest injustice. 13. In the aforesaid view of the matter, this Court is not inclined to exercise writ jurisdiction in favour of the petitioners. 14. This writ petition fails and is, therefore, dismissed.