Heera Lal vs State Of Raj. And Ors
2022 Latest Caselaw 11807 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1608/2013

Heera Lal S/o Uma Ram, B/c Mali (Solanki) aged about 59 years, R/o Near Railway Fatak, Bypass Road, Makrana, District Nagaur.

----Petitioner Versus

1. State Of Rajasthan through Chief Engineer, Public Works Department, Jaipur.

2. Tehsildar, Makrana.

3. Municipal Board, Makrana.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Rameshwar Dave
For Respondent(s)        :     Mr.   Vinay Jain
                               Mr.   Darshan Jain
                               Mr.   Anil Bachhawat with
                               Mr.   S.R. Paliwal



       HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                     Order

22/09/2022

     Heard learned counsel for the parties.

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.

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.

(2 of 7) [CW-1608/2013]

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.

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.

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.

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.

(3 of 7) [CW-1608/2013]

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.

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.

Per contra, learned counsel for the respondents vehemently

argued before this court and supported the order passed by the

(4 of 7) [CW-1608/2013]

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.

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.

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.

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.

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

(5 of 7) [CW-1608/2013]

by the respondents in the year 1986 before the Civil Court. The

Civil Court framed the following issues:-

"05 - वादपत्र व जवाब दावा के आधार पर न्यायालय द्वारा निम्न तनकीयात कायम की गई :-

01-आया वादी की दु काने व मकान उसके पट्टाशुदा जमीन में स्थित है १ जिम्मे वादी 02-आया प्रतिवादीगण के विरूद्ध वादी स्थायी निषेधाज्ञा इस आशय की पाने का अधिकारी हैं कि प्रतिवादी उसके मकान व दु कान को नहीं तोड़ें १ जिम्मे वादी 03-आया वादी ने खसरा नम्बर 634/1 राजस्व रे कर्ड में गैर मुमकिन सड़क दर्ज पर अतिक्रमण किया है ? जिम्मे प्रतिवादी 04-अनुतोष १"

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.

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.

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

(6 of 7) [CW-1608/2013]

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.

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. 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.

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/-.

(7 of 7) [CW-1608/2013]

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.

(VINIT KUMAR MATHUR),J

6-Nitin/-

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