Issack Khan @APPELLANT@Hash State of Rajasthan

This intra court appeal is directed against order dated 2.8.17 passed by the learned Single Judge of this court, whereby the writ petition preferred by

the appellant questioning the legality of order dated 28.6.17 passed by the Additional District Collector, Jaisalmer, the revisional authority, in exercise

of the power conferred under Section 97 of the Rajasthan Panchayati Raj Act, 1994 (for short “the Actâ€), cancelling the patta dated 17.9.07

issued in favour of the appellant by the Gram Panchayat, Habur, (now renamed as ‘Punamnagar’), has been dismissed.

The facts relevant in nutshell are that the appellant submitted an application before the Sarpanch, Gram Panchayat, Habur, for issuing patta of the

old house constructed over the Abadi land in his possession. After inviting objections and taking into consideration the inspection report submitted by

the Site Inspection Committee of Panchas constituted for site inspection under the provisions of Rule 146 of Rajasthan Panchayati Raj Rules, 1996

(for short “the Rulesâ€), Gram Panchayat, Habur adopted a resolution in its meeting held on 15.7.07 to issue patta of the disputed land in favour of

the appellant. Accordingly, patta of the land ad measuring 65x65 sq. ft. was issued by Gram Panchayat, Habur in favour of the appellant on 17.9.07.

As per the patta issued placed on record as Annexure 11, the same was issued after conducting auction on payment of Rs.200/- whereas, as a matter

of fact, the proceedings for issuing patta in favour of the appellant was taken under Rule 157 of the Rules, which provides for regularisation of old

houses.

The legality of the patta issued in favour of the appellant was questioned by the respondent no.2-Salak Khan by way of revision petition preferred

under Section 97 of the Act before the Additional District Collector, Jaisalmer.

After due consideration of the record and the rival submissions, the revisional authority arrived at the finding that the patta is alleged to have been

issued in favour of the appellant after conducting auction, however, the same has not been issued in the manner alleged, inasmuch as, before issuing

the patta for Rs.200/-, no auction was conducted by the Gram Panchayat. The revisional authority found that the house of the appellant’s father is

situated on the land adjoining to the plot in question and therefore, he could not have claimed patta of the land under Rule 157 (1) of the Rules. The

revisional authority observed that there was nothing on record suggesting that the appellant was in possession of old house constructed over the

disputed land prior to 1996 and accordingly, the patta issued was ordered to be cancelled.

Aggrieved by the order passed by the revisional authority, the appellant preferred a writ petition before this court, which stands dismissed by the

learned Single Judge by order under appeal.

It was contended on behalf of the appellant before the learned Single Judge that the revision petition preferred after ten years since issuance of the

patta in favour of the appellant, in absence of the application seeking condonation of delay, was not maintainable. That apart, it was contended that the

patta issued in favour of the appellant after following the procedure laid down under the Rules, has been duly registered and therefore, could not have

been cancelled in exercise of the revisional jurisdiction.

The learned Single Judge arrived at the finding that at the time of issuance of the patta, the appellant herein, was 14-15 years of age and therefore,

the question of his being in old possession of the disputed plot cannot be accepted. The learned Single Judge observed that the factum of non existence

of the old house on the plot in question stands admitted by the appellant and thus, the patta of the land issued in his favour in terms of Rule 157 of the

Rules is bad in law. The learned Single Judge observed that if the patta issued suffers from any defect, the factum of it being registered will not come

in the way of the competent authority in cancelling the said patta. Hence, this appeal.

Learned counsel for the appellant contended that the proceedings drawn by Gram Panchayat, manifestly shows that patta was issued in favour of

the appellant under Rule 157 (1) of the Rules, after following the procedure laid down. Learned counsel submitted that under the law, the Gram

Panchayat has no obligation to inquire about the age of the allottee prior to issuing the patta of the land. It is submitted that considering the factum of

house being constructed within 50 years, the patta issued by levying patta fee Rs.200/- in terms of Rule 157 (1) (i) (d) of the Rules, was absolutely

justified and thus, the revisional court has seriously erred in cancelling the patta. It is submitted that at the time of allotment, the appellant was 27 years

of age. According to the learned counsel, the revision petition preferred after inordinate delay of ten years was liable to be dismissed on this count

alone. Drawing the attention of the court to the provisions of Section 107A of the Act, introduced by the Rajasthan Panchayati Raj (Amendment) Act,

2015, learned counsel submitted that the appellant was even otherwise entitled for patta of the land in his lawful possession and thus, there was no

occasion for the revisional authority to cancel the patta issued in his favour, which stands duly registered.

On the other hand, learned counsel appearing for the respondents submitted that there was nothing on record suggesting that the appellant was in

old possession of the house constructed over the disputed land and thus, the power under Rule 157, which makes provision for regularisation of the old

houses, could not have been invoked by the Gram Panchayat. Learned counsel submitted that the patta of a huge open plot measuring 65x 65 sq. ft.

issued in favour of the appellant in fraudulent manner, has rightly been cancelled by the revisional authority invoking the power under Section 97 of the

Act. It is submitted that where the patta is issued without lawful entitlement, by playing fraud, no limitation should come in the way of competent

authority in cancelling the patta and thus, nothing turns on the question that the legality of the patta issued was questioned by the respondent no.2 after

a lapse of ten years. Learned counsel submitted that the registration of the document does not confer any title and thus, the patta issued in favour of

the appellant, which is illegal and void, has rightly been cancelled by the revisional authority.

We have considered the rival submissions and perused the material on record.

Indisputably, the development of the Abadi area and disposal of the Abadi land within the Gram Panchayat area are regulated by the provisions of

the Act. The Nazul land and the land set apart for development of Abadi placed at the disposal of the Gram Panchayat has to be disposed of by the

Gram Panchayat, subject to such conditions and restrictions as the State Government may from time to time lay down and in the manner as may be

from time to time prescribed. The normal procedure for disposal of the land within the panchayat area is by way of auction as envisaged under Rule

140 to 154 of the Rules. The disposal of the land by private negotiation and regularisation of the old possession are exception to the normal procedure

of disposal of the land by way of auction and thus, nobody can claim transfer of the land by private negotiation or by way of regularisation of old

constructed houses as a matter of right. The encroachment over the land belonging to the Government or the Local Authority should always be

discouraged and therefore, needs to be dealt with by the authorities concerned sternly and strictly.

In the instant case, admittedly, the appellant claimed regularisation of possession of the old house in Abadi land under Rule 157 of the Rules. The

said rule as it existed at the relevant time when the patta was issued in favour of the appellant, may be beneficially quoted:

“Rule 157. Regularisation of old houses.- Where the persons are in possession of the old house in Abadi land and desire to get a Patta issued, patta

may be issued by the Panchayat after depositing charges as under :-

(a) For old houses constructed more than fifty years ago Rs.100/-

(b) For old houses constructed during last fifty years from Rs.200/- the date of commencement of these rules;

Provided that no fees shall be charged under Clause (a) and only 10% fees shall be charged under Clause (b) from the families included in the list of

below poverty line.â€​

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, in any case, the said rule permits the regularisation of old houses constructed prior to the date of commencement of

the Rules i.e. 30th December, 1996 and not the construction raised over Abadi land of Gram Panchayat subsequent thereto. Obviously, it was not the

intention of the rule making authority to permit the unscrupulous persons to make the encroachment over the Abadi land of Gram Panchayat and then

claim regularisation of the possession in terms of the said rule which makes the provision for regularisation of old houses constructed in Abadi land

prior to commencement of the Rules, on fulfillment of the conditions specified. In other words, the encroachment over the Abadi land subsequent to

the commencement of the Rules and regularisation thereto, is not covered by Rule 157 of the Rules.

It is not disputed that the proceeding for regularisation of the old house alleged to have been constructed by the appellant over the Abadi land

measuring 65x65 sq. ft. belonging to Gram Panchayat was initiated on the basis of the application submitted on behalf of the appellant before the

Sarpanch, Gram Panchayat, Habur. A perusal of the application reveals that it does not disclose the period of the old possession and also does not give

the specification of the house constructed. Even the inspection report alleged to have been submitted by the Inspection Committee constituted by the

Gram Panchayat, does not disclose that a constructed house was existing at the site rather, it records that the applicant has ancestral possession over

the land whereas, the applicant had never claimed that he was in possession of the land in question since the time of his ancestor. It has come on

record that in the year 1996 the appellant herein was only 14-15 years of age and thus, his claim regarding possession of the old house constructed

over the disputed land, as on the date of commencement of the Rules, is not plausible and thus, cannot be accepted. In any case, in absence of any

material on record suggesting that the appellant was in possession of the old house constructed prior to the date of commencement of the Rules, the

Gram Panchayat could not have invoked the power conferred upon it under the provisions of Rule 157 of the Rules.

It has come on record that the appellant’s father was already having a constructed house over the land adjoining to the disputed land and thus,

even otherwise, the appellant who was still minor at the relevant time, could not have claimed regularisation of the old house alleged to have been

constructed by making encroachment upon the Abadi land belonging to Gram Panchayat.

There is yet another aspect of the matter. Rule 157 of the Rules permits the regularisation of possession over the land covered by old house

constructed prior to the commencement of the Rules and not the possession over the vacant plot and thus, nobody can claim regularisation over a huge

plot, as in the instant case, the land measuring 4225 sq. ft., in the garb of the construction raised over the small portion thereof. Suffice it to say that

the provision incorporated so as to protect the shelter of the person having no residential house in the area, cannot be permitted to be misused so as to

grab the public land at throw away price. For the sake of argument, even if it is assumed that the small construction as shown in the photographs

(Annexure 1) placed on record by the appellant in the present appeal existed at the relevant time, the same could not have been made basis for

regularisation of possession over the land measuring 4225 sq. ft. Thus, it is clearly a case of grabbing the public land with the encouragement and

support of office bearers of the local authority. As a matter of fact, lack of transparency and check & balances in transferring the public property by

private negotiation in clandestine manner is creating a breeding ground for corruption and therefore, it is high time that same are viewed seriously and

stern actions are taken against the unscrupulous persons who are operating individually or in groups to grab the public land.

Coming to the contention of the learned counsel that the petition filed for assailing the patta issued after unexplained delay of about ten years

should have been dismissed on this count alone, suffice it to say that the allotment of the land belonging to local authority or Government obtained

without any lawful entitlement by playing fraud is void and no limitation should come in the way of the authority competent to cancel such allotment.

Lastly, coming to the effect of registration of the patta issued by the Gram Panchayat, suffice it to say that the registration of the document by

itself does not confer any title over the property and thus, if the patta on the strength of which appellant was claiming right over the disputed land, is

found to be illegal and void, the State Government exercising revisional power under Section 97 of the Act, was well within its jurisdiction in annulling

the decision of the Gram Panchayat in pursuance whereof the appellant was claiming right over the disputed property.

In view of the discussion above, this court is firmly of the opinion that the learned Single Judge has rightly declined to interfere with the order

passed by the revisional authority, cancelling the patta issued in favour of the appellant.

In the result, the special appeal fails, it is hereby dismissed. No order as to costs.