Shokat Khan vs Ladhu Lal and Others

Sangeet Lodha, J.—This writ petition is directed against order dated 10.9.12 passed by the District Collector, Pali whereby the revision petition preferred by the respondents No. 1 to 8 herein, under Section 97 of the Panchayati Raj Act, 1994 (�the Act�), assailing the validity of the patta of the land ad measuring 77x71 sq. ft. issued in favour of the petitioner by Gram Panchayat, Baneda, has been allowed and the Gram Panchayat has been directed to take appropriate proceedings in conformity with the provisions of Rajasthan Panchayati Raj Rules, 1996 (for short �the Rules�) for grant of patta of the land, measuring 71x48 sq. ft., covered by the ancestral residential house of the petitioner.

Learned counsel appearing for the petitioner contended that the petitioner has been in possession of the plot in question for last more than 40 years and after construction of the boundary wall, patta was issued in his favour. It is submitted that there is no encroachment made by the petitioner on the public way/pond or the land put to public use and therefore, the order impugned passed by the revisional authority cancelling the patta is ex facie illegal and arbitrary. Learned counsel submitted that the petitioner being in possession of land for more than 40 years, the Gram Panchayat has committed no error in issuing the patta of the land in his favour in terms of Rule 157 of the Rules.

I have considered the submissions of the learned counsel and perused the material on record.

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 though in the patta issued in favour of the petitioner, it is mentioned that the same has been issued by way of auction after following the procedure laid down under Rule 150 to 152 of the Rules, but, as a matter of fact, the patta of the land in question was issued in favour of the petitioner in terms of Rule 157 of the Rules.

Rule 157 of the Rules, which deals with regularisation of the old houses as it existed at the relevant time when the patta was issued in favour of the petitioner herein 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, 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 the date of commencement of these rules; -- Rs. 200/-

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. (2) Families who do not have any house or house site anywhere and are in possession of abadi land by way of construction of a hutment/Kucha house up to year 2003 shall be entitled for regularisation of possession maximum up to 300 yards free of cost. The patta of such land shall be issued in the name of women head of such family.�

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/-.

It has come on record that the constructed house of the petitioner alleged to be old house is on the land measuring 71x48 sq. ft., however, he encroached upon the land forming part of the public way/the land put to public use and got the patta issued of the land measuring 71x77 sq. ft. in his favour. Merely, because the petitioner has constructed the boundary wall by covering the land forming part of the public way or the land put to public use, no right is created in his favour to claim regularisation thereof in his favour in terms of Rule 157 of the Rules. As per the site inspection report submitted by the Vikas Adhikari apparently, the petitioner proceeded to raise construction on the land measuring 57x24 sq. ft., beyond the land covered by the ancestral house, alleged to be in his possession. Even from perusal of the photographs placed on the record by the petitioner, it appears that the petitioner has crossed the building line and covered the land forming part of the way, by constructing boundary wall. Obviously, even the local authority has no jurisdiction to allot the land forming part of the public way or the land kept reserved for common use of the public and any such allotment made is void ab initio.

It is to be noticed that while cancelling the patta issued in favour of the petitioner, the revisional authority has issued appropriate directions to the Gram Panchayat to consider the case of the petitioner for regularisation of his possession over the land covered by his old residential house in accordance with the Rule 157 of the Rules and thus, the petitioner''s right to claim regularisation of the possession over the land covered by his ancestral residential house, stands protected.

In view of the discussion above, in the considered opinion of this court, the order impugned passed by the revisional authority, does not suffer from any infirmity or illegality so as to warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.

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