NITYANAND Vs. STATE

JUDGEMENT

(1.) THIS revision, which has been wrongly described an appeal, arises out of a judgment of the Additional Commissioner, Jodhpur, dated 4.8.1953 in a case relating to Patta.

(2.) WE have heard the parties and have examined the record as well. The facts of the case have been set out at length in the judgment of the learned Additional Commissioner, Jodhpur, and need not be repeated here. The only question involved for determination in the case at this stage is as to whether objections filed by Nityanand on 12.4.1946 deserve to be considered or not. The lower appellate court has taken the view that as these objections were filed after a no -objection certificate had been granted to Labhmal by the Minister -in -Waiting of the former Jodhpur State and that as no objections were filed at the earliest stage Nityanand is now debarred from raising any objections to the grant of the patta which must follow the grant of a no -objection certificate. We are not prepared to subscribe to this view. The original application for grant of the patta was presented by Labhmal on 9 -8 1937. On 25.9.1943 City Kotwal sanctioned the grant of the patta for 727.9 -1/4 Sq.Yds. and for the portions indicated by Nos. 5 to 11 on the site plan, the application was rejected on the ground that unless the applicant produced a no objection certificate from the Municipal Board no patta could be granted for that It is significant to observe that rules governing grant of pattas in Municipal areas and within the court -walls of the Jodhpur City were published vide His Highness order No. 878 dated 13th June, 1928. Under notification No. 5152/MPTY/2/26, published in Jodhpur Government Gazette dated 7th August, 1943, these rules were so amended as to exclude the area within the walls of Jodhpur City from their scope. Hence we have no hesitation in observing that the City Kotwal had no jurisdiction to refer to these rules on 25.9.1943 and to require Labhmal to obtain a no -objection certificate from the Municipal Board. Nevertheless Labhmal, in compliance with this decision, applied for a no objection certificate to the Municipal Board, which refused to grant it. The Minister -in -Waiting, however, reversed the order of the Municipal Board and granted a no -objection certificate. It does not appear from the decision of the Minister -in -Waiting that the fact that the rules had no application to the land in dispute after the issue of notification referred to above was ever brought to his notice. Nevertheless the order was issued granting a no objection certificate in favour of Labhmal and on the basis of the same he applied for a grant of a patta for the land which was refused to him on 25.9.1943. The lower courts have also ignored the notification referred to above and obviously, on the assumption that the 1928 Rules are still applicable to the case, have held that the grant of a no -objection certificate concludes the rights of the parties and no objections can be entertained after that. As pointed out above these rules have ceased to be applicable to the area within the walls of the Jodhpur City since 1943 and the case cannot, therefore, be governed or determined with any reference to them. The application presented by Labhmal for the grant of a patta should, therefore, be treated as being one under sec. 10 of the Marwar Patta Act and the Patta Officer was, therefore, justified in issuing a proclamation. Objections that may have been received under sec. 14 ought to be disposed of in accordance with the provisions laid down in sec. 15 of the Act. As there has been a material illegality in the exercise of jurisdiction by the lower courts, we would, therefore, allow this revision, set aside the order of the lower courts and direct that the objections filed by Nityanand on 12.4.1946 be heard and disposed of in accordance with law.