Vardi Bai vs State Of Rajasthan
2023 Latest Caselaw 5542 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17639/2019

1. Vardi Bai W/o Late Shri Chena Ram Gomati, Aged About 82 Years, Resident Of Near Akhand Ashram Sobhagpura, Aayad, Udaipur.

2. Gopal S/o Late Shri Chena Ram, Aged About 43 Years, Resident Of Near Akhand Ashram Sobhagpura, Aayad, Udaipur.

----Petitioners Versus

1. State Of Rajasthan, Through The District Collector, District Udaipur.

2. The Urban Improvement Trust, Through Its Secretary.

3. The Tehsildar, Uit, Udaipur.

4. The Tehsildar, (Land Record) Tehsil Office Girwa, District Udaipur.

5. The Commissioner, Devsthan Department, Udaipur.

6. Smt. Laxmi Devi W/o Pratap Lal Nenaji,, Resident Of Vijeta Namkin, Ii Road, Gopalpura, Udaipur

----Respondents

For Petitioner(s) : Mr. Sajjan Singh Rajpurohit Mr. Manish Bhunwal For Respondent(s) : Mr. BS Sandhu through VC with Mr. Dishant Kirodiwal Mr. SK Shrimali Mr. Anuraj Shukla Mr. LK Purohit

HON'BLE DR. JUSTICE NUPUR BHATI

Order

03/08/2023

1. This writ petition has been preferred by the petitioners under

Article 226 of the Constitution of India, claiming for the following

reliefs:-

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It is, therefore, most respectfully prayed that the writ petition filed by the petitioners may kindly be allowed with the cost, and by an appropriate order writ or direction, the impugned entries mutation No. 224 (Annexure-03), mutation no 225 (Annexure-04) and mutation no. 501 (Annexure-11) consequence thereof sale deed dated 05.07.1979 (registered on sale 16.07.1979) (Annexure-11), if any, sale deed dated 05.10.1961 is found despite report dated 24.10.2019 and resumption order dated 12.01.2004, (Annexure

13) 08.09.2008 (Annexure-14) and 08.03.2011 (Annexure- 16) consequent thereto others resultant orders and deeds and order cum notice dated 24.09.2019 (Annexure-17) are being void ab initio thus, same may kindly be quashed and set aside and further the respondents may kindly be restored position of revenue entries while deleting name/remarks of mortgagee and further directed to record khatedari entries in view of section 15 of Rajasthan Tenancy Act 1955, in favor of petitioners, or in the alternate the petitioners may kindly be awarded to take legal remedies for their lawful rights and;

Any other appropriate writ, order or direction, which is considered just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners.

2. The brief facts of the case are that the petitioners belong to

Gameti (Taveda) Schedule Tribe caste, residing at Aayad

Shobhagpura Udaipur. The dispute relates to agricultural land

which was recorded in the khatedari of Shri Thakurji Madan Mohan

Ji Gadi wale Sthan Udaipur Taluk Devsthan, Udaipur. The

cultivation of said land had remained with Modaji and thereafter

his family members namely the petitioner Smt. Vardi Bai and Dalla

and Chenaram. In Samvat 1987, during the Bandobast of State of

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the then Mewar, the land was recorded in the name of Thakur Ji

Shri Madan Mohan Ji and as a mortgagee was recorded in the

name of Shri Mathura lal for the land of Khasra No. 400, 401, 404,

404/2, 405, 406, 407, 408, 410, 411, 412 and 413 admeasuring

rakba 9 bigha 19 biswa. After coming into force of The Rajasthan

Tenancy Act 1955, (hereinafter referred to as "the Act of 1955")

the land was recorded in the khatedari of Shri Thakur Ji Madan

Mohan Ji and Shyam Sunder Ji and thus Mathura lal was recorded

as mortgagee, but Khudkast tenancy remained with one Moda,

predecessor of the petitioners, the khatedari was wrongly

recorded in the name of sons of Mathura Lal and mutation No. 223

and 224 were attested.

3. Thus in the event of redemption of rights of mortgagee, the

land was restored back in the khatedari of the then Jagir khatedar

i.e Thakur Ji Madan Mohan ji. The mortgage stood redeemed by

operation of law and the mutation No 224 dated 12.01.1968 was

entered. Thus on the same day i.e. 12.01.1968, mutation was

attested, bearing No. 225 in favour of Tara Shankar S/o Magniram

on the basis of alleged sale deed dated 05.10.1961, entries were

recorded in the name of Tara Shankar whereas possession of

physical cultivation remained with Modaji and after death of

Modaji the land in question continued in possession of the

petitioners.

4.Thus Tara Shankar executed a sale deed in favour of one

Mahendra Singh of khasra No. 404/2, 1 bigha and 10 biswas on

05.07.1979 (registered on 16.07.1979) after obtaining of certified

copy of sale deed dated 05.07.1979, it is evident that the seller

has admitted in sale deed that Dalla, Chenna S/o Moda are in

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physical possession over the disputed land and a suit was filed for

dispossession, which was dismissed, However, the mutation No.

501 was attested in favour of the Mahendra Singh S/o Kundan

Singh on the strength of aforementioned sale deed.

5. Further, the Girdawari was recorded in the name of khatedar

only and not in the name of cultivator, thus, none of the name of

cultivators were recorded in the said period. The State was again

directed after some span of time, after the amendment in

Rajasthan Tenancy Act 1955 to record the name of cultivators who

had cultivated as tenant, thus, again in samvat 2031 to 2034, the

cultivation was recorded in the name of Chena & other sons of

Modaji as being actual cultivators. Thereafter a notice dated

24.09.2019 was issued by the Urban Improvement Trust to

dispossess the petitioners.

6. Thereafter a part of the land was attempted for surrendering

by the purchaser for the purpose of conversion before the

concerned authority Urban Improvement trust ('UIT' for Short )

and in continuation of this, the part of land which was surrendered

by Virendra Kumar was accepted to resume vide order dated

12.01.2004 with connivance as mentioned therein. The piece of

land was also surrendered by subsequent alleged purchasers,

namely Gangal Ram, Mangilal, Rampal and same was accepted by

the UIT on 08.09.2008. The UIT issued order cum notice on

24.09.2019 whereby it was ordered that the petitioners are in

possession over the land. khasra NO. 1329 and 1330 and such

land is in the category of "right to way" thus the petitioners were

removed. Aggrieved by the mutation entries No 224 (Annexure-

03), mutation no 225 (Annexure- 04) and mutation no 501

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(Annexure-11), consequence thereof the sale deed dated

05.07.1979 (registered on 16.07.1979) (Annexure-11) order

dated 08.09.2008 (Annexure- 14) 08.03.2011 (Annexure-16)

notice dated 24.09.2019 (Annexure- 17), the petitioners filed the

present writ petition, Hence this writ petition.

7. The learned counsel for the petitioners submits that the land

in question is in cultivation of the petitioners since long but the

petitioners as well as predecessor in title belongs to Schedule

Tribes and are illiterate, thus, they had no knowledge about

manipulation made in the revenue record. The learned counsel for

the petitioners further submits that before mutation No, 224 dated

12.01.1968, there was no occasion to execute the sale deed dated

05.10.1961, as the seller did not acquire the khatedari rights.

Thus, the sale deed dated 05.10.1961 is void from very beginning,

moreover, the property was being property of Thakurji Madan

Mohan JI Sthan, thus it was not available to transfer by sale deed

dated 05.10.1961 as per the restriction provided under section 42

of Act 1955.

8. The learned counsel for the petitioners further submits that

at perusal of Samvat year 1987, Mathura Lal was recorded in

column 2 as a khatedar and Thakur Ji Madan Mohan Ji as well as

Thakur Ji Shyam Sunder, Moti Shankar recorded in column 3 as a

mortgagee, whereas Moda as khudkasht in view of girdawari in

samvat 2015, and Mathura lal was recorded as Mafidar/mortgagee

and Thakur Ji Madan Mohan Ji, Shyam Sunder Ji were recorded as

mortgagor and khudkast was recorded of Moda, Chena and Dalla.

Moda being the khudkast tenants, the physical possession and

cultivation remained with Modaji and subsequently with Chenna

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and others including his wife Vardi Bai and Gopal, which is also

recorded in revenue record in Girdawari and further the revenue

receipts on record also prove that Moda had paid revenue to the

Devasthan Department.

9. The learned counsel for the petitioners also submits that

respondents attempted to get undue benefits of incorrect entries

and mutation in their favour with fraudulent and manipulation acts

which are void. The land was converted under section 90-B of Act

of Rajasthan Land revenue Act 1956 and thus lease was also

issued. Therefore, at bare perusal of entire record coupled with

the provisions of law, it is evident that land was not available in

the khatedari of Mathura lal but his sons had transferred rights in

the land to one Tara Shankar on the basis of sale deed dated

05.10.1961 which is void. Learned counsel for the petitioners

further submits that the petitioners are entitled to get relief for

their khatedari rights, but the Sub Divisional Officer is not

competent to grant relief and to declare documents void and thus

examine the legality of orders under proceedings that took place

under section 90-B of Rajasthan land Revenue Act of 1956 thus,

the petitioners have the only remedy to approach this Hon'ble

Court therefore, the writ petition deserves to be allowed and

impugned acts, notice cum orders are liable to be quashed as

being void ab initio.

10. The learned counsel for the petitioners also submits that it is

suffice to submit here that the respondents have acted without

jurisdiction and had purported to usurp jurisdiction without any

legal foundation, moreover, the provisions of law and material

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available on record have been ignored in manipulative manner.

The respondents have completely failed to issue notice to show

cause to the petitioners and other interested persons before

adopting impugned process and passing impugned order thus, it is

ex facie clear that the respondents have violated the principle of

natural justice and did not provide opportunity of hearing to the

petitioners. Learned counsel for the petitioners further submits

that while issuance of order/notice dated 24.09.2019, the

substantial reasons have not been recorded thus, the impugned

order/notice dated 24.09.2019 is completely non-speaking in view

of the nature of subject matter.

The Learned Counsel for the petitioners placed reliance on the

judgments passed by the Hon'ble Apex Court in M/s Siemens Ltd

versus State of Maharashtra and Ors (Civil Appeal No 5295 of

2006). The relevant portion of the judgment is reproduced here as

under:

"9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India

(8 of 14) [CW-17639/2019]

and Others (1987) 4 SCC 431: AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.

10.The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant [2006 (6) SCALE 66], stating: "The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case. In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR 1988 SC 686], this Court held: "It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose."

Learned counsel for the petitioners further places reliance upon

the judgment passed by Hon'ble Supreme Court in Whirlphool

Corporation Vs. Registrar of Trade Marks, Mumbai, reported

in 1998(8) SCC 1. Relevant portion of the judgment reproduced

here as under:-

"12. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

13. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been

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consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlphool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

11. Learned counsel for the respondent-State and learned

Counsel for the private respondent raised a preliminary objection

that the present writ petition is not maintainable as the petitioners

had filed an application by which he withdrew the writ petition

partially in respect of annexures ie Annex.3, 4, 11, 13, 14, & 16

with liberty to avail appropriate remedy, if necessary, and in the

present writ petition he has chosen to assail order cum notice

dated 24.9.2019 (Annex.17) issued by the respondent-UIT,

therefore, the present writ petition does not survive, as a notice

cannot be given challenge by way of filing present writ petition as

the respondents have afforded the petitioners an opportunity of

hearing while mentioning in the aforesaid notice/ order that the

petitioners have encroached upon the 60 feet road and, thus, he is

required to remain present before the respondents and submit the

explanation. Learned counsel for the private respondent further

submits that no final order whatsoever has been passed against

the petitioners, therefore the petitioners cannot invoke writ

jurisdiction under Article 226 of the Constitution of India and thus,

the writ petition deserves to be dismissed on this ground alone.

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12. Learned counsel appearing for the respondent-State and the

private respondent jointly submit that under Section 92-A if any

final order is passed against the petitioners by the respondents,

then the petitioners have a remedy available under Section 92-

A(12) by filing an appeal against the District Judge of the district.

Section 92-A of the The Rajasthan Urban Improvement Act, 1959

is reproduced as under:

[92A. Encroachment or obstruction upon public land

(1) Whoever-

(a) makes or continues to make any encroachment in any land or space not being private property, whether such land or space belongs to or vests in the Trust or not, except steps over drain in any public street, or

(b) having made such encroachment before coming into force of the Rajasthan Urban Improvement (Second Amendment) Act, 1991, fails to remove such encroachment within fifteen days from the date of service of a notice in writing calling upon him to do so by the Trust, shall, on conviction, be punished with simple imprisonment which shall not be less than one month but which may extend to three years and with fine which may extend to twenty thousand rupees Provided that the court may for any adequate or special reason to be mentioned in the judgement impose a sentence of imprisonment for a term of less than one month.

(2) Whoever-

(a) makes or continues to make any obstruction in any land or space not being private property, whether such land or space belongs to or vests in the Trust or not, except steps over drain in any public street; or

(b) having made such obstruction before coming into force of the Rajasthan Urban Improvement (Second Amendment) Act, 1991, fails to remove such obstruction within fifteen days from the date of service of a notice in writing calling upon him to do so by the Trust, shall, on conviction, be punished with simple imprisonment which may extend to one month or with fine which may extend to two thousand rupees or with both.

(3) The Trust or any officer authorised by it in this behalf shall have power to remove any such obstruction or

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encroachment and the expenses of such removal shall be paid by the person who has caused the said obstruction or encroachment.

(4) Whoever not being duly authorised in that behalf removes earth, sand or other material from any land or space as aforesaid, shall be punished on conviction with imprisonment which may extend to six months or with fine which may extend to ten thousand rupees or with both.

(5) Notwithstanding anything contained in the foregoing provisions, the Trust or the officer authorised by it in this behalf shall, in addition to the action taken as provided in this section, also have power to seize or attach any property found on the land or space referred to in this section or, as the case may be, attached to such land or space or permanently fastened to anything attached to such land or space.

(6) Where any property is seized or attached by an officer authorised by the Trust, he shall immediately make a report of such seizure or attachment to the Trust.

(7) The Trust may make such orders as it thinks fit for the proper custody of the property seized or attached, pending the conclusion of confiscation proceedings, and, if the property is subject to speedy and natural decay, or it is otherwise expedient so to do, the Trust may order it to be sold or otherwise disposed of.

(8) Where any property is sold, as aforesaid, the sale proceed thereof after deduction of the expenses of any sale or other incidental expenses relating thereto, shall- (a) Where no order of Confiscation is ultimately passed by the Trust; or (b) where an order passed in appeal so requires, be paid to the owner thereof or the person from whom it is seized.

(9) Where any property is seized or attached under sub- section (5), the Trust may order confiscation of such property.

(10) No order for confiscating a property shall be made under sub-section (9) unless the owner of such property or the person from whom it is seized or attached is given- (a) a notice in writing, informing him of the grounds on which it is proposed to confiscate the property; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) a reasonable opportunity of being heard in the matter.

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(11) The order of any confiscation under this section shall not prevent the infliction of any punishment to which the person affected thereby is liable under the Act.

(12) Any person aggrieved by an order made under sub-section (7) or sub-section (9) may, within one month from the date of the communication to him of such order, appeal against it to the District Judge of the District in which such property is seized or attached.

(13) On such appeal the District Judge may, after giving an opportunity to the appellant and the respondent to be heard, direct the order to be stayed pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.

(14) Whenever any property is seized or attached pending confiscation under this section the Trust or the District Judge shall have, and notwithstanding anything to the contrary contained in any other law for the time being in force, any other court, tribunal or other authority shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, disposal, release or distribution of such property.

(15) Where any person is prosecuted of an offence under subsection (1) or sub-section (2), the burden of proving that he has not committed the offence shall be on him.

(16) Whoever, being an employee of the Trust, specifically entrusted by an order of the Trust in writing with the duty to stop or prevent the encroachment or obstruction punishable under this section, wilfully or knowingly neglects or deliberately omits to stop or prevent such encroachment or obstruction, shall, on conviction, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to one thousand rupees or with both:

Provided that no court shall take cognizance against such employee for the offence punishable under this sub-section except with the previous sanction of the Trust.

(17) No investigation of an offence under this section shall be made by an officer below the rank of a Deputy Superintendent of Police.]

13. Heard learned counsel for the parties, perused the material

available on record and the judgments cited at the bar.

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14. This Court without entering into merits of the case observes

that the notice/order dated 24.09.2019 served upon the

petitioners under Section 92-A of the Act of 1959 discloses about

the land which is in their possession and only a prima facie opinion

has been expressed while mentioning in it that the respondents

while invoking section 92-A of the Act of 1959 are informing the

petitioners that they have encroached upon the land by

constructing folding boundary wall in the 60 feet road which is the

right of way as shown in the approved plan of khasra No. 1329

and 1330 of Revenue Village Ayad and in front of the leased plot.

Further it has been mentioned in the notice/order dated

24.09.2019 that if the petitioners have any objection in following

the information written in the notice then the petitioners may

remain present before the concerned authority on 27.09.2019 at

11 AM along with all the documents and correct facts. The

submissions made by learned counsel for the petitioners are

wholly without substance that the Authority who has issued the

notice is having no jurisdiction as the petitioners are having lawful

title over the land in-question, therefore, the writ petition is

maintainable and may not be dismissed on the ground of alternate

remedy being available to the petitioner, thus, this Court observes

that under section 92-A of the Act of 1959, the petitioner is not

barred to avail the appropriate remedy even if he is in possession

of a lawful title over the land in dispute and section 92-A of the

Act of 1959 deals only with those cases where there is any

encroachment or obstruction over the public land and in the said

notice/order dated 24.09.2019 it has been expressed that the

petitioner has encroached upon the land in dispute. This court

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further observes that the petitioners have been granted liberty by

the authorities concerned to appear before them and submit all

the relevant documents in support of his claim of having a lawful

title over the said land in-question and to demonstrate that he has

not encroached upon the land in dispute, thus, the respondents

while adhering to the principles of natural justice in accordance

with law have issued notice/order dated 24.09.2019 to the

petitioners while affording them a proper opportunity of hearing.

15. Consequently the writ petition is without substance and is

hereby dismissed on the ground of an alternate, efficacious and a

statutory remedy available to the petitioners under section 92-A

(12) of the Act of 1959 particularly when the petitioners have

failed to show as to how the alternate statutory remedy available

to the petitioners under section 92-A of the Act of 1959 is not an

efficacious and an effective remedy for them.

(DR. NUPUR BHATI),J 118-Sanjay/-

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