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2020 DIGILAW 122 (RAJ)

Khusal Singh v. State of Rajasthan

2020-01-14

ARUN BHANSALI

body2020
ORDER : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner aggrieved against the order dated 8/7/2019 (Annex. 13), whereby, the preliminary objection pertaining to jurisdiction filed by the petitioner has been rejected and order dated 26/11/2019 (Annex. 16), whereby, the revision petition filed by the respondent No. 3 has been allowed and the Patta dated 20/9/2007 issued in favour of petitioner has been quashed. 2. The petitioner was issued a Patta dated 20/9/2007 by Gram Panchayat, Bawarli under Rule 157 of the Rajasthan Panchayati Raj Rules, 1996 ('the Rules, 1996'). The Patta pertained to land ad measuring 537.41 sq.yds. and was issued for Rs. 200/-. The Patta in question was challenged by respondent no. 3 by filing revision petition under Section 97 of the Panchayati Raj Act, 1994 ('the Act, 1994') before the Additional Collector, Jodhpur inter alia claiming that the land did not belong to Gram Panchayat and in fact two GLRs of Public Health & Engineering Department (PHED) are constructed on the land by which the villagers are being supplied drinking water. The issuance of Patta was also challenged on account of violation of provisions of Rule 157 of the Rules on account of there being no residential house and that the land much more than what was provided under the Rules was given away by way of Patta for a sum of Rs. 200/- only. 3. The revision petition was opposed by the petitioner. An objection was raised that the Addl. Collector does not have the jurisdiction to decide the revision petition. The objection was rejected by the Addl. Collector by order dated 8/7/2019 inter alia relying on the notification dated 13/12/2004 issued by the State Government delegating the powers in this regard. 4. Feeling aggrieved, the petitioner filed S.B.C. Writ Petition No. 11260/2019, which was withdrawn with liberty to challenge the issue of jurisdiction in case final order is passed against the petitioner. 5. The Addl. Collector by his impugned order came to the conclusion that only a room made of stone slabs ad measuring 10'x8' was existing at the site and on rest of the land there was no construction. The vacant land could not be allotted under Rule 157 of the Rules. 5. The Addl. Collector by his impugned order came to the conclusion that only a room made of stone slabs ad measuring 10'x8' was existing at the site and on rest of the land there was no construction. The vacant land could not be allotted under Rule 157 of the Rules. Further the authority also came to the conclusion that in the entire record i.e. application, notice, inspection note and statements there was no reference to the measurement of the land except for a map on which the measurement of boundaries was indicated but total area measurement was also missing. The objection raised by the petitioner regarding non-maintainability of revision petition before the Addl. Collector was also rejected and consequently the revision petition was allowed and the Patta was set aside. 6. Learned counsel for the petitioner vehemently submitted that the Additional Collector had no jurisdiction inasmuch as once the power was delegated to Collector, the same could only be exercised by the Collector and the Addl. Collector could not exercise the said powers, therefore, the order impugned deserves to be quashed and set aside. 7. Submissions have also been made that Patta granted to the petitioner was registered and the same could not be set aside while exercising powers under Section 97 of the Act and as such the exercise of jurisdiction was not justified and, therefore, the order impugned deserves to be set aside. 8. Plea was also raised that revision petition was not maintainable. 9. Reliance was placed on Manohar Lal vs. District Collector, Barmer : 2015 (2) RRT 967 and Panna Lal & Anr. vs. Smt. Sushila Devi & Ors : 2018-19 (Supp.) RRT 125. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 11. A bare perusal of the record indicates that the Patta of land ad measuring 537.41 Sq. Yds. has been issued on which only a room ad measuring 10'x8' and two GLRs constructed by PHED are existing. The Addl. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 11. A bare perusal of the record indicates that the Patta of land ad measuring 537.41 Sq. Yds. has been issued on which only a room ad measuring 10'x8' and two GLRs constructed by PHED are existing. The Addl. Collector has recorded a finding of fact that in the file pertaining to allotment, except for the map nowhere the measurements of the total area of land in question has been indicated and the same was missing from the record, which clearly indicates that the allotment in question, which was apparently made beyond the limit prescribed under the Rules deliberately total area was not disclosed. 12. The challenge laid pertaining to the jurisdiction of the Addl. Collector apparently has no substance as it is not disputed that the power of revision under Section 97 of the Act has been delegated to Collector by Notification dated 13/12/2004 and in terms of Section 2(vi) of the Act Collector of a District includes Addl. Collector and, therefore, the plea raised by learned counsel for the petitioner that the power once delegated to the Collector could not be further delegated has no substance inasmuch as there is no sub delegation on account of fiction created by the definition of Collector, whereby, term Collector includes Addl. Collector as well. 13. In view thereof, rejection of petitioner's objection pertaining to jurisdiction of Addl. Collector cannot be faulted. 14. Insofar as the submissions made pertaining to setting aside of registered Patta is concerned, the judgment in the case of Manohar Lal (supra) has been considered by a subsequent Division Bench in Jhumar Ram vs. Addl. District Collector (Second), Jodhpur : D.B. Special Appeal Writ No. 656/2017 decided on 15/12/2017. The Division Bench relying on the judgment in Kamla Devi vs. State of Rajasthan & Ors. : D.B. Spl. Appeal Writ No. 136/2017 decided on 27/3/2017 came to the conclusion that the Patta issued by the Gram Panchayat in contravention of Rules can be quashed while exercising powers under Section 97 of the Act. As such, the plea raised in this regard also has no substance. 15. : D.B. Spl. Appeal Writ No. 136/2017 decided on 27/3/2017 came to the conclusion that the Patta issued by the Gram Panchayat in contravention of Rules can be quashed while exercising powers under Section 97 of the Act. As such, the plea raised in this regard also has no substance. 15. So far as the plea raised for the first time that in view of provisions of Section 61 of the Act and 166 of the Rules, the revision petition was not maintainable based on the judgment in the case of Panna Lal (supra) is concerned, the said judgment has no application to the facts of the present case inasmuch as the remedy of appeal under Section 61 of the Act is available to a 'person aggrieved' by issuance of Patta, while revision petition under Section 97 of the Act can be filed by a 'person interested' and as 2 GLRs of the respondent No. 3 is installed on the land in question, which is being used for supplying drinking water, the said respondent No. 3 is clearly 'interested' in the land and cannot be said to be 'aggrieved' of the allotment. Therefore, it cannot be said that appeal could have been filed against the allotment. 16. Besides the above, the issue was not raised before the revisional authority. This Court in Nagar Mal vs. Addl. District Collector, Sikar & Ors., 2013 (1) WLC (Raj.) 768 in a similar nature case, in para 5 of the judgment inter alia came to the following conclusion: "Consequently, I find no force in the arguments of the counsel for the petitioners that the revision filed by the respondent Nos. 2 & 3 was not maintainable in view of there being a provision of appeal. In fact such an argument was not taken by the petitioners before the revising authority and the petitioners acquiesced to its jurisdiction taking a chance on the merits of the case. A new plea not taken before the revising authority cannot be allowed in this petition. In fact such an argument was not taken by the petitioners before the revising authority and the petitioners acquiesced to its jurisdiction taking a chance on the merits of the case. A new plea not taken before the revising authority cannot be allowed in this petition. In my considered view, even otherwise the impugned order dated 20.03.2012 passed by the Additional Collector being a well considered and a justifiable order in the facts and circumstances of the case, this writ court in the exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India would loath to set it aside and perpetuate gross illegalities as appear from the allotment of Pattas made by the Gram Panchayat Sargoth to the petitioners." 17. As such, the issue sought to be raised also has no substance. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.