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2022 DIGILAW 2505 (RAJ)

Heera Lal v. State Of Rajasthan

2022-09-22

VINIT KUMAR MATHUR

body2022
JUDGMENT Vinit Kumar Mathur, J. - Heard learned counsel for the parties. 2. The present writ petition has been filed against the order dated 21.01.2013 passed by the District Collector, Nagaur, whereby the cost of construction of the building over the acquired land in question was denied. 3. The brief facts giving rise to the present writ petition are that the petitioner was having a piece of land in Makrana for which a Patta was issued in his favour in the year 1957. The petitioner applied for permission to the Municipal Board, Makrana to raise certain constructions in the year 1987. The permission sought for was granted vide order dated 15.04.1987. 4. In pursuance of the permission granted by the Municipal Board, Makrana, the petitioner raised certain constructions over his Pattashud land. The respondent - authorities, on account of the proposed construction of a road, gave notice to the petitioner for taking possession of the subject piece of land along with the construction raised over it. 5. Being aggrieved of such notice, the petitioner preferred a suit before learned Civil Court praying therein that he was issued a Patta of the subject piece of land in the year 1957 and after granting due permission by the Competent Authorities of the Municipal Board, Makrana, the construction was raised and, therefore, the respondent-State Government cannot dispossess the petitioner. Learned trial Court decreed the suit in favour of the petitioner vide judgment dated 26.10.2005. 6. Thereafter, the need being arisen for construction of Railway Over Bridge, therefore, once again the petitioner's land was sought to be used for the purpose. A notice under Section 91 of the Land Revenue Act, 1956 to this effect was issued to the petitioner on 03.12.2007. The petitioner challenged this notice once again by way of filling a writ petition before this court which was decided on 14.12.2012 and the matter was sent back to the Collector, for deciding the claims of the parties. The Collector, in pursuance of the directions issued by this Court after giving opportunity of hearing to all the parties decided the issues vide order dated 21.01.2013, which is the impugned order in the present writ petition. 7. The controversy in the present writ petition is only with respect to the denial of the cost of construction incurred by the petitioner for raising the construction over his Pattashud land. 8. 7. The controversy in the present writ petition is only with respect to the denial of the cost of construction incurred by the petitioner for raising the construction over his Pattashud land. 8. Learned counsel for the petitioner submits that the petitioner is in possession of the land on the strength of a Jaggir Patta issued by the Competent Authorities way back in the year 1957. He further submits that the possession of the petitioner is not disputed, more so the findings of the fact recorded by the learned Civil court in its order dated 26.10.2005 have become final as the order of the Civil Court was not challenged before the higher forums. Learned counsel further submits that once the authorities of the respondent-Department decided the issue with respect to the possession of the petitioner vide order dated 21.01.2013 and awarded the compensation of the land to the petitioner, then the petitioner cannot be denied the cost of construction raised over the subject piece of land. 9. Learned counsel for the petitioner submits that once the Collector vide his order dated 21.01.2013 had come to the conclusion that the petitioner is entitled for the possession of the land in question, then the amount incurred for raising the construction over that land cannot be denied to the petitioner. Learned counsel further submits that the respondent-Collector had not given any finding with respect to the ineligibility of the petitioner to get the compensation of the construction raised over the land which is sought to be used for construction of the Railway Over Bridge. He therefore, prays that the writ petition may be allowed and the order dated 21.01.2013 may be quashed to the extent of denying the benefit of the construction cost incurred by the petitioner over the Pattashud land and the same being demolished for the use of construction of ROB. 10. Per contra, learned counsel for the respondents vehemently argued before this court and supported the order passed by the Collector, Nagaur on 21.01.2013. Learned counsel for the respondents submits that the petitioner was not entitled to raise the construction over the subject piece of land as the same violated the guidelines issued by the Ministry of Road Transport and Highways for construction over the land coming within 40 meters from the central line of the highway. 11. Learned counsel for the respondents submits that the petitioner was not entitled to raise the construction over the subject piece of land as the same violated the guidelines issued by the Ministry of Road Transport and Highways for construction over the land coming within 40 meters from the central line of the highway. 11. Learned counsel submits that since the construction raised over the land was not in accordance with the Rules and, therefore, the demolition of the same will have no effect and the petitioner will not be entitled to get the cost of construction raised over such land. He submits that the Collector had rightly passed the order of denying the cost incurred by the petitioner over the land which is sought to be used for the construction of Railway Over Bridge. 12. I have considered the submissions made at the Bar and gone through the entire records of the case including the impugned order dated 21.01.2013 passed by the District Collector, Nagaur. 13. The fact that the petitioner was holding a valid Patta in his favour over the subject piece of land is not disputed by the parties before this Court and the construction which was undertaken by the petitioner was also raised after taking due permission from the Municipal Board, Makrana on 15.04.1987. The construction permission is also placed on record as (Annex. 2). Thus, in view of the documents granting permission, it can safely be presumed that the construction raised by the petitioner on the Pattashud land was justified and legal. 14. It is noted that on the earlier occasion, when the State Authorities tried to take possession of the land of the petitioner for construction of the road, a Civil Suit was filed which was decided by the respondents in the year 1986 before the Civil Court. The Civil Court framed the following issues:- ^^05 & okni= o tokc nkok ds vkèkkj ij U;k;ky; }kjk fuEu rdh;kr dk;e dh xÃ%& 01&vkk oknh dh nqdksoedk mlds iV~Vk'kqnk teh esa fLFkr gS ftEes oknh 02&vkk çfroknhx.k ds fo:) oknh LFkk;h fu"ksèkkKk bl vk'k; dh iksdk vfèkdkjh gSa fd çfroknh mlds edk o nqdk dks gh ^^rksMks** ftEes oknh 03&vkk oknh ds [kljk uEcj 634@1 jktLo jsdhMZ esa xSjeqefd lM+d ntZ ij vfrØe.k fd;k gS\ ftEes çfroknh 04&v'kqrks"kA** 15. The issues framed in the Civil Suit were decided in favour of the petitioner and it was held by the learned Civil Court that the petitioner is the rightful owner of the subject piece of land and the respondents were not entitled to demolish the construction raised over it as the petitioner is not a trespasser on this land. The findings recorded by the learned trial court had become final as the same was not challenged before the Appellate Court. 16. In view of the findings recorded, the petitioner is held legally the owner of the land and the construction raised over such land was adjudicated to be legal and right. 17. In view of the findings of the Civil Court also, it cannot be said that the petitioner raised the construction in violation of the Rules and Law. Therefore, the argument of the learned counsel for the respondents that the petitioner raised the construction de hors the law is not sustainable and the same is therefore, rejected. The entire piece of land of the petitioner including the construction is required by the respondents for construction of Railway Over Bridge and once the right, title and ownership of the land and building of the petitioner is established beyond doubt, there is no question that the petitioner shall be deprived of the cost of the construction raised over such land. 18. The order impugned discussed in detail reveals that the petitioner is entitled for the compensation for the cost of land being the owner of the land and since the land is required for the construction of ROB, the respondents are required to pay compensation to the petitioner. The only fact that the construction of the building over such land was illegal, the finding of the learned Collector does not say a word on it that the construction raised by the petitioner over the subject piece of land was dehors the law. Not only this, no court or authority has ever issued a notice to the petitioner for the illegal construction having been raised on the subject piece of land. Not only this, no court or authority has ever issued a notice to the petitioner for the illegal construction having been raised on the subject piece of land. Since the construction raised over the subject piece of land was never found to be illegal, then it cannot be presumed that construction was coming within 40 meters from the centre of the road in violation of the guidelines of the Ministry of Road Transport and Highways and the same was illegal. The fact that the construction raised has been demolished by the respondents for construction of the ROB, the petitioner is certainly entitled for the cost incurred in construction of the building over the land which is sought to being acquired. Therefore, learned Collector was not correct in refusing to pay (Rs. 9,45,261/-) the cost incurred for raising the construction which is being demolished for the purpose of the construction of ROB. 19. It is also noted that the cost incurred for construction of the building has been assessed by the PWD, Rajasthan as Rs. 9,45,261/-. 20. In view of the discussions made above, the writ petition merits acceptance, the same is allowed and the respondents are directed to pay compensation of amount of Rs. 9,45,261/- which was denied by the impugned order dated 21.01.2013 along with 5% interest from the date of the order passed by the Collector on 21.01.2013 within a period of eight weeks from today.