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Rajasthan High Court · body

2013 DIGILAW 2038 (RAJ)

Badri Prasad v. State

2013-11-19

MOHAMMAD RAFIQ

body2013
JUDGMENT 1. - These two writ petitions seek to challenge the order of the District Collector, Sikar dated 4.8.1997, who has thereby set aside the patta pursuant to the decision of the Gram Panchayat, Jalpani in revision petition filed by the private respondents. 2. For deciding the controversy, the facts of CW No. 6862/97 are taken note of. 3. Contention of the learned counsel for the petitioners is that the pattas were issued to them on the basis of application of petitioners dated 2.6.1963 and 14.6.1963 that they want to construct pucca houses on the land which was already in their possession. Since they have division among three brothers, three different pattas were issued by the resolution of the Gram Panchayat. Petitioners have raised construction and for last 35 years, they are residing peacefully on such land. 4. According to the petitioners, the land on which the patta was issued was an abadi land, being part of khasra nos. 640 and 641 and recorded as abadi land in the records. It is argued that on account of some wrongful entry made by the Land Settlement Department, the land area of the abadi in khasra no.640 and 641, which was originally recorded as 1 bigha and 2 biswas, was reduced and recorded as only 0.04 biswas. Taking advantage of this fact, the respondents filed revision petition with delay of 33 years, which has been allowed by the District Collector, Sikar by his impugned order. It is argued that if at all, the respondents are aggrieved by the fact that the land which was in possession of the petitioners fell in khasra no.644 or the entry thereabout was not correctly made, their remedy was to approach the appropriate revenue Court. 5. Shri Rinesh Gupta, learned counsel for the respondents opposed the writ petition and submitted that, in fact, disputed houses were constructed on the land of khasra no.644 which was in the khatedari of the respondents. Learned counsel cited the pattas issued to the petitioners by Gram Panchayat and submitted that in the pattas neither correct description of the land has been given, nor there was any measurement. The petitioners are in possession of the land much in excess of the land for which pattas have been issued and thereupon they encroached upon the land of the private respondents which was, in fact, agriculture land. The petitioners are in possession of the land much in excess of the land for which pattas have been issued and thereupon they encroached upon the land of the private respondents which was, in fact, agriculture land. The Patwari Halka inspected the site on 5.6.1995 under the order of Tehsildar and it was he who gave the finding that the petitioners have encroached upto 3 meters in the land of khasra no.644 belonging to the respondents. Learned counsel further argued that the suit filed by the petitioners for injunction has been dismissed. It was also argued that for issuance of patta compliance of provisions of Section 256 to 269 of the Rajasthan Panchayati (General) Rules, 1961 was not made. Neither any Committee of the panchas inspected the site, nor notice inviting objections was issued, nor was the notice was affixed at a conspicuous place close to the disputed site. The Collector was therefore fully justified in setting aside the pattas. 6. Having heard the learned counsel for the parties and perusing the impugned order of Collector, I find that the Collector has not at all dealt with the aspect of delay as to in what manner and how he can entertain the revision petition filed way back on 10.10.1996 i.e. after 33 years. Not only that the pattas were issued about 33 years ago, but the petitioners were having their constructed houses from a period much later than that. Even if there was some dispute with regard to entry in the revenue records or that some encroachment was found on the land of the respondents by the petitioners, the remedy of the respondents was before the revenue court for recovery of possession of that part of their land falling in khasra no.644, which court would be competent to ascertain whether or not there was, in fact, any encroachment of the petitioners into the agriculture land or whether that land belongs to the petitioners being part of the abadi land. The order passed by the Collector requiring the petitioner to show compliance of Rule 265 to 269 after 33 years cannot be justified because petitioners would not be expected at this distance of time to show compliance of any of those provisions. The order passed by the Collector requiring the petitioner to show compliance of Rule 265 to 269 after 33 years cannot be justified because petitioners would not be expected at this distance of time to show compliance of any of those provisions. The order of Collector that there is no proof of the fact that the land was encroached, also cannot be sustained in law because admittedly what the petitioners pleaded was that this land was in their possession for their residence and they had approached the Gram Panchayat for issuance of pattas in their favour on the strength of their possession. 7. In the circumstances, the order passed by the Collector dated 4.8.1997 cannot be sustained and is accordingly set aside. However, it would be open to the respondents to file appropriate revenue suit before the competent court that any land or part thereof in their khatedari, may have been encroached upon by the petitioners. The pendency of this writ petition, however, would not be taken as delay on their part in approaching the revenue court even now, if any such suit is filed three months from today. 8. With that direction, the petitions are allowed.Petition Allowed. *******