Smt. Renuka vs State Of Rajasthan
2021 Latest Caselaw 15639 Raj

(1 of 5) [SAW-564/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Special Appeal Writ No. 564/2021

Smt. Renuka W/o Narendra Puri, Aged About 64 Years, By Caste Brahmapuri Bharti, R/o Village Dhand, Tehsil And District Jodhpur.

----Appellant Versus

1. State Of Rajasthan, Through Tehsildar Jodhpur, Tehsil And District Jodhpur.

2. Patwari Digaadi, Village Dhand, Tehsil And District Jodhpur.

3. Jodhpur Development Authority, Jodhpur Through Its Secretary.

4. Jodhpur Vidyut Vitaran Nigam Limited, Jodhpur Through Its Managing Director, New Power House Road, Industrial Area, Jodhpur.

5. Municipal Corporation, Jodhpur Through Its Commissioner.

                                                                 ----Respondents


 For Appellant(s)           :    Mr. Vikas Balia
 For Respondent(s)          :    Mr. Manoj Bhandari

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SANDEEP MEHTA

Judgment

18/10/2021

This appeal is filed by the appellant-original petitioner to

challenge the order dated 21.09.2021 passed by the learned

Single Judge in Civil Writ Petition No.9449/2021.

This case has a chequered history.

In brief, the facts are that the appellant-original petitioner

claims to be in possession of and tenant of the government land

bearing Khasra No.3 of Village Dhandh, near Jhalamand Circle,

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Jodhpur. The appellant-petitioner has filed a civil suit before the

competent Civil Court seeking protection against eviction with

respect to two portions of the land in Khasra No.3 as well as

Khasra No.11. The Civil Court refused to grant injunction in

respect of land bearing Khasra No.3 primarily on the ground that

the appellant-petitioner failed to prove the possession thereof.

The order passed by the Civil Court became final when the appeal

filed by the petitioner was dismissed.

Independently, the appellant-petitioner instituted a revenue

suit before the Revenue Court under Section 88 of the Rajasthan

Tenancy Act, 1955 ('Tenancy Act' for short) claiming possession as

well as tenancy rights. In such proceedings, the appellant-

petitioner also prayed for interim injunction. Since the application

for interim injunction was not being decided promptly and in the

meantime, the Jodhpur Development Authority (JDA), to which

the land in question was allotted by the government, was

proceeding with its proposal for auctioning the land, the appellant-

petitioner approached the Revenue Court by filing a revision

petition for necessary protection. In such revision petition, the

Revenue Board passed an order dated 07.04.2021 and provided

that the Collector, Jodhpur would decide the proceedings instituted

by the appellant-petitioner against the government within three

months and till then the auction of the land shall not be carried

out. The JDA was not heard before this order was passed by the

Revenue Board and therefore, the JDA applied to the Revenue

Board for recalling the order. The Revenue Board thereupon

passed an order dated 06.07.2021 and recalled the previous order

for hearing the suit of the appellant-petitioner within time frame

and granting protection thereunder. This order, the petitioner has

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challenged in the writ petition. The learned Single Judge on

26.07.2021 stayed the e-auction proceedings initiated by the JDA

in relation to land bearing Khasra No.3. By further order dated

16.08.2021, the learned Single Judge also prevented the JDA from

carrying out the ceremony for laying the foundation for

construction of the park on the land in question.

The JDA thereupon moved an application under Article

226(3) of the Constitution of India for vacating the interim orders,

on which the learned Single Judge passed the impugned order.

After taking note of the proceedings before the Civil Court, the

learned Single Judge formed the opinion that the application for

vacation of interim relief filed by the JDA deserves to be allowed

on the ground that the Civil Court had recorded a finding that the

appellant-petitioner was not having lawful possession or title over

the land in question and secondly, the land vests in JDA. It is this

order that the original petitioner has challenged in this appeal.

We have heard learned counsel for the parties for final

disposal of the appeal.

Learned counsel for the appellant-original petitioner

submitted that the finding of the Civil Court must be confined to

the question of possession of the petitioner and not her title.

Such question has to be gone into by the Collector in the Revenue

Suit filed by the appellant-petitioner under the Tenancy Act. He

further submitted that if the JDA is allowed to carry out the

auction and allot land to the successful bidders, third party rights

would be created.

On the other hand, learned counsel for the JDA vehemently

opposed the appeal and contended that the Civil Court has already

declared that the appellant-petitioner was not in possession of the

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land in question nor has title thereto. The learned Single Judge

has correctly vacated the interim order. He pointed out that

according to the Revenue Board, the revision petition filed by the

appellant-petitioner, was not maintainable. If this be so, according

to the learned counsel for the JDA, the Revenue Board could not

have issued any directions in favour of the appellant-petitioner in

such revision petition.

In our view, the question of title/tenancy rights needs to be

gone into in the revenue suit filed by the appellant-petitioner

before the Collector under the Tenancy Act. The Civil Court's

finding with respect to the possession of the appellant-petitioner,

of course, had achieved finality and would have some bearing on

the interim formula that we propose to provide in the present

proceedings. However, we cannot lose sight of the fact that the

JDA proposes to dispose of the land through auction proceedings

and for which, at one stage public notice was also issued. If this

auction is allowed to be completed, the pending suit of the

appellant-petitioner would be substantially rendered infructuous

and third party rights would be created.

Under the circumstances, this appeal is disposed of with the

following directions:-

(i) The Revenue Court shall dispose of the suit filed by the

appellant-petitioner latest by 31st January, 2022. This shall

be done after hearing the JDA also. If JDA is not joined as a

party in the proceedings before the Revenue Court, the

petitioner shall join it as additional respondent.

(ii) Till this is done, the JDA shall not allot land in favour of any

other third party.

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(iii) It would be open for the JDA to continue with the auction

proceedings. However, till the suit of the appellant-petitioner

is decided by the Revenue Court, as mentioned above, the

JDA shall not finally allot the land in favour of the successful

bidders.

(iv) The Revenue Court shall decide the pending suit unmindful

of the observations made in this order or by the learned

Single Judge in the writ petition.

In view of this formula, this appeal as well as the writ

petition stand disposed of.

                                    (SANDEEP MEHTA),J                                         (AKIL KURESHI),CJ


                                     22-MohitTak/-









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