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2010 DIGILAW 1371 (RAJ)

Pragchand v. State of Rajasthan

2010-08-03

VINEET KOTHARI

body2010
JUDGMENT Hon'ble KOTHARI, J.-Heard the learned and the respondent No. 2 present in person. No one else has appeared for the State Government or the Gram Panchayat despite service. 2. This writ petition is filed against the order passed by the Additional Collector, Sirohi on 3.11.2008 allowing the revision petition filed by the applicant Kapoor Rai, respondent No.2 herein, namely, Revision Petition No. 7/2008 by which the applicant before the learned Additional Collector had sought cancellation of Patta No. 31 dtd. 26.8.1985 issued in favour of Prag Chand, present petitioner and also Patta No. 56 dtd. 3.11.1981 in favour of Dhok Singh S/o Shorn Singh, which had was also purchased by registered sale-deed by the present petitioner Prag Chand soon thereafter on 8.3.1982. 3. The Assistant Collector, while exercising the powers under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) allowed the said revision petition and cancelled the impugned Patta No. 31 dtd. 26.8.1985 and Patta No. 56 dtd. 3.11.1981 and held that the said Patta could not be issued by the Gram Panchayat, Kalindri, Tehsil and Distt. Sirohi, as the land in question stood already sold to the applicant Kapoor Raj way back on 18.12.1919 measuring 50x60 ft. = 3000 sq. ft. and therefore, the land inquestion was not available to be sold by the said Gram Panchayat to the present petitioner Prag Chand or one Dhok Singh S/o Shorn Singh which land was also purchased by the present petitioner Prag Chand by registered sale-deed on 8-12-1949 soon after the allotment/sale in favour of Dhok Singh by the Gram Panchnvat by Patta No. 56 dtd. 3.11.1981. 4. The learned counsel for the petitioner Mr. Rajesh Shah emphatically submitted that the revision petition filed by the applicant in the year 2008 was highly belated filed after about 50 years of alleged sale in his favour made by the Gram Panchayat on 18.12.1949 and therefore, the said revision petition was not maintainable and the same deserves to be dismissed on the ground of delay and laches only. He relied upon the two decisions of Single Bench of this Court in the case of Sita Ram and Am. vs. Collector, Dausa reported in 2006(1) WLC (Raj.) 122 and Chiranji Lal vs. Addl. Collector III, Jaipur reported in RLW 2002(4) 2284 in support of his submissions. He relied upon the two decisions of Single Bench of this Court in the case of Sita Ram and Am. vs. Collector, Dausa reported in 2006(1) WLC (Raj.) 122 and Chiranji Lal vs. Addl. Collector III, Jaipur reported in RLW 2002(4) 2284 in support of his submissions. He further urged that the neighbourhood description given in the Pattas issued in favour of the petitioner and Sh. Dhok Singh from whom the land in question was purchased by the petitioner, were different than the description of neighbourhood given by the applicant Kapurrai, before the learned Additional Collector and therefore, the Pattas in question could not be cancelled by the Addl. Collector by the impugned order. He further submitted that the petitioner has since constructed a shop on the disputed plot and is in possession of the same for last 25 years and therefore, his possession cannot be disturbed at this stage. He therefore, prayed for quashing of impugned order Annex. 7 dtd. 3.11.2008 passed by the learned Addl. Collector, Sirohi. 5. On the other hand, the respondent No.2 Mr. Kapoor Rai who was the applicant before the learned Addl. Collector has appeared in person and has argued his case with full vehemence. He appears to be a man in advanced age of 80 years and from the averments made in the reply to the writ petition filed by him and certain documents, annexed therewith, he appears to be social worker following Gandhian philosophy and he claims to be resident of village Valdhara, Dist. Sirohi 6 kms. away from Kalindri, where he purchased the said plot No. 67 in question way back on 18.12.1949 by paying a sum of Rs. 411/- to the then Gram Panchayat, Kalindri. He also has stated in his reply that he donated a sum of Rs. 13,00,000/- for development of certain social projects in the said village and keeps on constantly visiting the said village though he normally lives in Ahmedabad for his business and was constantly following the proceedings before the learned Addl. Collector and this Court. He also has stated in his reply that he donated a sum of Rs. 13,00,000/- for development of certain social projects in the said village and keeps on constantly visiting the said village though he normally lives in Ahmedabad for his business and was constantly following the proceedings before the learned Addl. Collector and this Court. He submitted that when he visited the said village in the year 2007, then he came to know of the fact of present petitioner having constructed a shop on the disputed plot which belonged to him and had given the same on rent to one Ramesh Kumar proprietor of M/s. Manish Enterprises and then he applied to the Gram Panchayat about this construction and position of allotment if any made, but no such documents were made available to him by the said Gram Panchayat. Thus, the said applicant immediately filed the said revision petition under Section 97 of the Act, which has been allowed by the Add!. Collector. 6. The learned Additional Collector, Sirohi in the impugned order dtd. 3.11.2008 in para 2 has noted that one Amrit Lal Sen, Advocate appeared for the Gram Panchayat, Kalindri in the present revision petition filed by the respondent No.2 Kapoor Rai, but he did not file any written statement or the reply to the said revision petition. One Mr. Suresh Chand Surana, Advocate appeared for the respondent No.2 Prag Chand the present petitioner. 7. After hearing the parties, the learned Additional Collector has found that the land in question of which disputed Pattas No. 31 dtd. 26.8.1985 was issued to the petitioner Prag Chand and Patta No. 56 dtd. 3.11.1981 was issued to one Dhok Singh, which was later on purchased by the registered sale-deed by the present petitioner on 8.3.1982 were in respect of plot No. 67 belonging to the revision petitioner Kapoor Rai for which Patta No. 55 was issued in his favour by the then State of Sirohi, Thikana Kalindri, way back on 18.12.1949 A copy of the said Patta No. 55 and the concerned map has been produced before this Court along with the reply filed on behalf of the respondent No.2 and during the course of arguments, the respondent No.2 also produced the original Patta for perusal of this Court which was tallied with the photo-copies produced along with the reply and was found to be same. 8. 8. Surprisingly the Gram Panchayat, Kalindri, Tehsil and Dist. Sirohi which was only the public body which would have maintained the relevant record of 1949 of the then State of Sirohi, Thikana Kalindri also and later record of its own to establish before the Addl. Collector that the Patta issued to the present petitioner were related to the land different from the land of plot No. 67 claimed to have been sold to the respondent No.2 Kapoor Rai on 18.12.1949, chose to remain absent and exparte before the learned Add!. Collector, Sirohi, though an advocate Sh. Amrit Lal Sen appeared on their behalf, but he did not file any reply before the learned Addl. Collector. The notice of present writ petition has also been served on the respondent No.3 said Gram Panchayat, Kalindri and this Court has perused the process server's report on the notice dtd. 27.6.2009. The said Gram Panchayat has chosen again to remain absent and silent in the matter and neither any lawyer on behalf of respondent Gram Panchayat appeared nor any reply to the writ petition has been filed by the respondents other than the respondent No. 2 party in person. 9. In view of this, this Court has no option but to draw adverse inference against the Respondent No. 3- Gram Panchayat, Kalindri about its collusion with the present petitioner Prag Chand while issuing the Patta No. 31 dtd. 26.8.1985 and Palla No. 56 on 3.11.1981 in favour of said Sh. Dhok Singh who immediately thereafter petitioner vide a registered sale-deed dtd. 8.3.1982 just after about 4 months. The learned Additional Collector on the basis of evidence produced before him including the Palla No. 55 for plot No. 67 in question purchased by the applicant, Kapoor Rai and the documents relating to Patta No. 55 dtd. 18.12.1949 showing sale of plot No. 51 to one Sh. Babu Mal of village Valdhara, came to the conclusion that the disputed Patta No. 31 dtd. 26.8.1985 and Palla No. 56 dtd. 18.12.1949 showing sale of plot No. 51 to one Sh. Babu Mal of village Valdhara, came to the conclusion that the disputed Patta No. 31 dtd. 26.8.1985 and Palla No. 56 dtd. 3.11.1981 were issued by the said Gram Panchayat in collusive and illegal manner in favour of the present petitioner and Dhok Singh though the land inquestion never belonged to the Gram Panchayat, Kalindri after the same was sold to the respondent No.2 Kapoor Rai way back on 18.12.1949 and therefore, these disputed Palla were liable to be cancelled and accordingly the same were cancelled by the said Addl. Collector. 10. After hearing the learned counsel for the petitioner and the respondent No.2 in person, this Court is satisfied that there is no error in the impugned order Annex. 7 dtd. 3.11.2008 passed by the learned Addl. Collector. The learned Additional Collector has based his findings on the relevant evidence and the Patta and map produced before him of the year 1949 and on the basis of neighbourhood given therein has found that the land in question belonged to the said Respondent No.2, Kapoorrai, and was not available with the Gram Panchayat to be sold/allotted to the present petitioner vide Patta No. 31 dtd. 26.8.1985 and Patta No. 56 dtd. 3.11.1981 and these Patta were liable to be cancelled. It cannot be said that the learned Addl. Collector did not have this power under Section 97 of the Act. 11. The only question which could creep up for consideration by this Court is whether such revision petition tiled belatedly could be entertained or not. In the considered opinion of this Court, it could be so done and the delay in the present case cannot be said to be of 50 years as alleged by the learned counsel for the petitioner, but since disputed Pattas are of years 1985 and 1981 respectively and the present Revision Petition tiled in the year 2008, the same cannot be said to have been tiled after a delay of 50 years as alleged. On the contrary, the applicant has established before the said Addl. On the contrary, the applicant has established before the said Addl. Collector that the fact of said allotment came to his notice in the year 2007 when he again visited the village Kalindri and saw that construction of shop in question and let out in the name of Manish Enterprises, then upon enquiry from the Gram Panchayat only, he came to know of the disputed Pattas having been issued to the present petitioner and one Dhok Singh. Therefore, the Revision Petition tiled in beginning of the year 2008 vide Revision Petition No. 7/2008 cannot be said to be belated and time barred at all. The respondent No. 2 appears to be pursuing and ventilating his right about plot No. 67 measuring 50 x 60 ft. = 3000 sq. ft. right from the beginning. He cannot be said to be not interested in pursuing his right to its logical conclusion or sleeping over the matter. Since the findings of facts arrived at by the learned Addl. Collector are not found to be perverse in any manner, but on the contrary based on relevant material and cogent evidence, even if it is assumed for the sake of argument, that there is some delay in filing the revision petition under Section 97 of the Act, the same. deserved to be condoned and was rightly condoned by the learned Addl. Collector while allowing the revision petition on merits. The case laws relied upon by the learned Counsel for the petitioner were decided in different facts and circumstances of the case and on established delay, the revision petition under Section 97 was held to be time barred. There was no such delay on the part of present respondent No.2 - the revision petitioner, in the present case as was the case in those judgments and therefore, the said case laws are of no avail to the present petitioner. 12. Consequently, this Court finds no force in the present writ petition and the same is liable to be dismissed. Accordingly, the same is dismissed with costs of Rs. 5000/- since the respondent No. 2 had to come again and 40 again to attend the hearings. The respondents shall hand over the physical possession of the land in question to the respondent No. 2- Kapoorrai forthwith.