1991 Supreme(Raj) 773
RAJASTHAN HIGH COURT
Raj Chopra, Yad Ram Meena, JJ.
Nizamuddin - Appellant
Versus
The Board of Revenue & ors. - Respondent
D.B. Civil Writ Petition No. 3016 of 1989.
Decided On : 16-07-1991
Land forming part of public way cannot be allotted and regularised in favour of a private person.
Headnote:
LAND REVENUE - Regularisation of encroachment on public way - Whether land forming part of public way can be allotted and regularised in favour of a private person - Held, no.
Fact of the Case:
Petitioner's shop was situated on a Govt. land classified as 'gair Mumkin gova'. He applied for regularisation of the land under the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas) Rules, 1981 (Rules of 1981). The Authorised Officer accepted the application and regularised the land. Respondent No. 3, whose land abutted the land in question, filed a revision petition before the Board of Revenue challenging the regularisation. The Board of Revenue set aside the order of regularisation, holding that the land in question formed part of Chair Mumkin Rasta and could not be regularised under the Rules of 1981. The petitioner filed a writ petition challenging the order of the Board of Revenue.
Finding of the Court:
The Court held that the land in question formed part of the public way and could not be allotted and regularised in favour of a private person. The Court observed that the land had been recorded as Gair Mumkin Gova in the revenue records and that the Inspector, Land Records, had certified that it formed part of Siway Chak. The Court further observed that the land which forms part of the way can only be utilised as a way and not otherwise because the General Public has a right to use that land as public path and no encroachment can be permitted on that public path.
Issues: Whether the land forming part of the public way can be allotted and regularised in favour of a private person.
Ratio Decidendi: The Court held that the land forming part of the public way cannot be allotted and regularised in favour of a private person. The Court observed that the land in question had been recorded as Gair Mumkin Gova in the revenue records and that the Inspector, Land Records, had certified that it formed part of Siway Chak. The Court further observed that the land which forms part of the way can only be utilised as a way and not otherwise because the General Public has a right to use that land as public path and no encroachment can be permitted on that public path.
Final Decision: The Court dismissed the writ petition.
Judgement Key Points
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JUDGMENT
1. - By this writ petition filed under Articles 226 and 227 of the Constitution, petitioner Nizamudeen has challenged the order of the learned Member, Board of Revenue for Rajasthan at Ajmer (for short the Board of Revenue' herein) dated 7.9.1988 passed in Revision Petitions No. 473/87 and 476/87 whereby the revision petitions filed by petitioners Anupsingh and Sardul Singh were accepted and the allotment and regularisation of the land made in favour of petitioner Nizamuddin and the patta issued in pursuance thereof by the Authorised Officer were cancelled and set aside. Two applications were filed to grant permission to file special appeals against this common order passed in these two revision petitions. They were separately registered as leave to special appeal applications No. 91/88 and 92/88 and were decided by a common order dated 15.5.1989. The applications seeking permission to file special appeals were rejected.
2. The facts necessary to be noticed for the disposal of this writ petition briefly stated are that the petitioner's shop is situated in village Bilara on Bilara- Banganga Road in Khasra No. 1979. Earlier, this shop was in possession of Rawatram son of Poonaram and Bhanwarlal son of Rawatram Patel, residents of Bilara, who were carrying on the business of sale of Sweets and Namkin etc. Rawatram and Bhanwarlal were in possession of this shop from the year 1965. However, they agreed to sell this shop to petitioner Nizamuddin on 22.1.1980 for a sum of Rs. 2100/- and put the petitioner in possession of this shop. The agreement to sell was duly executed. Thereafter, it is alleged that on 15.4.1982, petitioner Nizamuddin filed an application under r. 6(1) of the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas) Rules, 1981 (hereinafter referred to as as Rules of 1981'), before the Authorised Officer, Jodhpur claiming that he is in possession of 38.75 sq. yds. of Govt. land of Chak No. 1, Khasra No. 1979, situated in village Bilara since Juanuary 1980 and has been using it for commercial purposes. He deposited the land conversion fee and penalty amounting to Rs. 574.30P. He also submitted copy of Khasra Parivartan Sheel of Smt. 2037 and 2038. In column No. 4 of that Khasra Parivartan Sheel, his name has been shown as occupant of the land and this land has been classified as 'gair Mumkin gova'.
3. It is alleged that the Inspector, Land Records, however, made a report that the petitioner is in possession of 40.44 sq. yds. of land, which has been classified as 'Gair Mumkin Gova'. The Tehsildar, Land Conversion, Jodhpur in his report has stated that it is a govt. land of Siway Chak and the petitioner has already constructed a shop on it before 20.8.1981. The Chairman, Municipal Board, Bilara also issued a No Objection Certificate for the conversion of the land in question into Abadi land on depositing the prescribed development charges. In this view of the matter, the Authorised Officer, by his order dated 30.11.1984 accepted the application of the petitioner under r. 10(3) of the Rules of 1978, regularised his unauthorised occupation for the conversion of the said Govt. land for commercial purposes and the petitioner was directed to deposit a sum of Rs. 1104.98 P. which he deposited on the same day. .The patta of the said land was issued in favour of the petitioner by the Authorised Officer on the same day i.e. 30.11.1984.
4. It is alleged that after regularisation and conversion of this Govt. land in favour of the petitioner, the petitioner has spent about Rs. 14,000/- for the improvement of this shop. It is further alleged that some constructions have been raised by Shri Jagdish Acharya and Habib Ahmed on this very Khasra No. 1979 and their applications for regularisation have also been accepted.
5. It was submitted that adjacant to khasra No. 1979, there was a `JAAV' of one Jogaram Sirvi bearing Khasra No. 1978, which was
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