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2014 DIGILAW 1950 (RAJ)

Om Prakash v. State of Rajasthan

2014-12-02

SANGEET LODHA

body2014
JUDGMENT 1. - The matter comes up on an application on behalf of the respondent no. 4 and 5 under Article 226(3) of the Constitution of India for vacating the ex parte interim order granted in favour of the petitioner. However, with the consent of the learned counsel for the parties, the matter is finally heard at this stage. 2. This writ petition is directed against order dated 11.9.12 passed by the District Collector, Pali, whereby the revision petition preferred by the respondent No. 4 and 5 herein, questioning the legality of the patta issued in favour of the petitioner pursuant to resolution dated 10.1.08 adopted by the Gram Panchayat, Sanwalta, has been allowed and while cancelling the patta issued in favour of the petitioner, the matter stands remanded to Gram Panchayat, Sanwalta to pass an appropriate order after hearing both the parties, keeping in view the judgment and decree dated 23.1.08 passed by the Additional District Judge (FT), Bali in respect of the land in question. 3. The revisional authority arrived at the finding that while issuing the patta in favour of the petitioner, the procedure laid down in this regard under Rule 140 to 157 of the Rajasthan Panchayati Raj Rules, 1996 ('the Rule of 1996'), has not been followed. The revisional authority observed that vide judgment and decree dated 23.1.08, the disputed property is held to be ancestral property of the parties, however, this aspect of the matter, has not been considered and the patta has been issued in favour of the petitioner herein without giving an opportunity of hearing to the respondent No. 4 and 5 herein. 4. Learned counsel for the petitioner contended that the revisional authority has seriously erred in holding that the procedure laid down under Rule 140 to 157 of the Rules has not been followed by the Gram Panchayat while issuing patta in favour of the petitioner. Learned counsel submitted that the petitioner made an application for regularisation of their old possession and therefore, the patta issued by the Gram Panchayat in favour of the petitioner in terms of Rule 157 of the Rules of 1996 cannot be faulted with. Learned counsel submitted that the petitioner made an application for regularisation of their old possession and therefore, the patta issued by the Gram Panchayat in favour of the petitioner in terms of Rule 157 of the Rules of 1996 cannot be faulted with. Learned counsel submitted that on an FIR being lodged by the respondent-Ramchandra against the petitioner and the Sarpanch of the Gram Panchayat, Sanwalta, after due investigation the police has already filed final report, which shows that the patta was issued in favour of the petitioner in accordance with law. 5. On the other hand, the counsel appearing for the respondents submitted that a suit for partition was filed by the respondent no. 4-Rewat Singh before the civil court of competent jurisdiction for partition of the disputed property wherein, the petitioner herein was also party defendant. Learned counsel submitted that after trial the suit stands decreed by the court vide judgment dated 23.1.08 wherein the petitioner, the respondent no. 4 and 5 and other co-sharers Aidan Singh and Bal Singh were held entitled for ⅕ share each in the land in question and accordingly, the preliminary decree has been passed by the court. Learned counsel submitted that while issuing the patta, the procedure laid down was not followed by the Gram Panchayat and the respondent No. 4 and 5 who were affected by issuing the patta in favour of the petitioner herein, were not been extended an opportunity of hearing. Learned counsel submitted that order impugned passed by the revisional authority setting aside the patta issued in favour of the petitioner and remanding the matter for fresh consideration after giving an opportunity of hearing to the affected parties, does not suffer from any error so as to warrant interference by this court in exercise of its extra ordinary jurisdiction. 6. I have considered the rival submissions and perused the material on record. 7. Indisputably, in the instant case, the petitioner claimed patta of the Abadi land on the strength of his alleged old possession. It is also not in dispute that the patta has been issued in his favour under Rule 157 of the Rules of 1996, which deals with regularisation of old houses. 8. 7. Indisputably, in the instant case, the petitioner claimed patta of the Abadi land on the strength of his alleged old possession. It is also not in dispute that the patta has been issued in his favour under Rule 157 of the Rules of 1996, which deals with regularisation of old houses. 8. From bare perusal of Rule 157 of the Rules, it is manifestly clear that it permits regularisation where the persons are in possession of the old house in abadi land and desire to get a patta issued. It further provides that for old houses constructed more than 50 years ago, the patta may be issued by depositing Rs. 100/- and for old house constructed during last 50 years from commencement of the Rules i.e. 30.12.96, the patta may be issued on depositing charges Rs. 200/-. But then, indisputably, while issuing the patta in favour of the petitioner, the decree for partition passed by the court of competent jurisdiction in respect of the disputed land was not brought to the notice of Gram Panchayat. It is also not in dispute that while issuing the patta, the respondent no. 4 and 5, the parties directly affected were not extended an opportunity of hearing. Thus, taking into consideration, the violation of the procedure laid down under the Rules and the fact that the respondent No. 4 and 5 claiming share in the land in question on the strength of decree for partition passed by the civil court of competent jurisdiction were not extended an opportunity of hearing, this court is of the considered opinion that the order impugned passed by the revisional authority setting aside the patta issued in favour of the petitioner and remanding the matter to Gram Panchayat, Sanwalta for fresh consideration in accordance with the procedure laid down under the Rules of 1996 after extending an opportunity of hearing to the affected parties, does not warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 9. In the result, the petition fails, it is hereby dismissed. No order as to costs.Petition Dismissed. *******