Rajasthan High Court - Jodhpur

Jagdeo Singh And Anr vs State And Ors (2023:Rj-Jd:24678) on 3 August, 2023

Bench: Nupur Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4663/2003

1. Jagdeo Singh S/o Sh. Swaran Singh

2. Nishan Singh S/o Sh. Natha Singh Both B/c Jat Sikh, R/o Chak 14 TK, Tehsil Raisinghnagar, Distt. Sri Ganganagar.

----Petitioner Versus

1. State of Rajasthan through Secretary, Revenue Department, Govt. of Rajasthan, Jaipur.

2. Additional Collector, Sri Ganganagar.

3. Tehsildar, Raisinghnagar, Distt. Sri Ganganagar.

4. Megha Singh S/o Sh. Chanan Singh R/o P.O. Lal Pura Chhota, Village 4 LPM Dhani, Tehsil Raisinghnagar, Distt. Sri Ganganagar.

5. Sukhvinder Singh S/o Sh. Chanan Singh (Expired).

5/1. Smt. Surjeet Kaur Wd/o Late Sh. Sukhvinder Singh R/o P.O. Lal Pura Chhota, Village 4 LPM Dhani, Tehsil Raisinghnagar, Distt. Sri Ganganagar.

                                                                      ----Respondents


For Petitioner(s)               :    Mr. Sudhir Sharma
For Respondent(s)               :    Mr. R.D. Bhadu, GC
                                     Mr. Pradeep Singh


                  HON'BLE DR. JUSTICE NUPUR BHATI
                                          Order
03/08/2023

1. Learned counsel for the petitioner submits that in identical

controversy, a co-ordinate Bench of this Court has disposed of the

writ petitions No.4342/2002 (Singara Singh Vs. State of Rajasthan

& Ors.), 4266/2002 (Gurjeet Singh Vs. State of Rajathan & Ors.)

and 4343/2002 (Jodh Singh Vs. State of Rajasthan & Ors.) vide

order dated 03.01.2013 which is reproduced as under:-

"1. Heard learned counsels for the parties.

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2. These writ petitions involving identical controversy are being decided by this common order, however, facts of SBCWP No.4342/2002- Singara Singh Vs. State & Ors., are taken as leading case.

3. By way of these writ petitions, the petitioners have called in question the impugned order dated 18.09.2002 passed by NayabTehsildar, Sri Vijaynagar in Case No.116/02- State of Rajasthan Vs. Singara Singh S/o Dayal Singh under Section 22 of the Rajasthan Colonization Act, 1954 (for brevity, hereinafter referred to as 'Act').

4. The Nayab-Tehsildar, Sri Vijaynagar in the aforesaid case held that the land in question was stated to have been purchased by the petitioner, Singara Singh, from one Amrik Singh (private respondent No.3 herein) by way of sale-deed in the year 1974 could not be recognized as a valid sale and, therefore, treating the same as unencumbered land in excess over the ceiling limit, the same is liable to be vested in the State Government under the Ceiling law; and consequently, treating the petitioner as trespasser, he was asked to pay penalty of Rs.988/- and also concerned 'Patwari' was asked to dispossess the petitioner and re-possess the land in favour of State Government.

5. Mr. Sudheer Sharma, learned counsel for the petitioners submitted that the original land owner, namely, Amrik Singh was required to surrender his unencumbered land in priority over the encumbered land including the the present land in question sold to the present petitioner Singara Singh; and therefore, the learned Nayab-Tehsil, Sri Vijaynagar was not justified in passing the impugned order under Section 22 of the Act against the petitioner, who was a bonafide purchaser. In support of his contentions, he placed reliance on judgment delivered by Division Bench of this Court in the case of Gulab Singh & anr. Vs. State & Ors. (Along with two other SAW/s) reported in RRT 2005 (Part-I) Vol. 9 P.1 and in the case of Badri Lal & Ors. Vs. State of Raj. & Ors. reported in 1992 RRD Vol.39 P. 317.

6. On the other hand, Mr. Sundeep Bhandawat, Addl. Govt. Counsel appearing for the respondent- State submitted that there were four purchasers from the said land owner, namely, Amrik Singh and the present three writ petitions are pending before this Court, while the fourth one has already been dismissed by the learned Single Judge of this Court viz. SBCWP No.4344/02- Sukhvindra Kaur Vs. State of Raj. & Ors. on 03.08.2004 holding that the order passed by the Nayab-Tehsildar was an appealable order under the provisions of Section 75 of the said Act in the following terms: -

"Impugned order has been passed by the Nayab Tehsildar under Sec. 22 of the Rajasthan Colonisation Act, treating the petitioner to be trespasser. The petitioner claims that he cannot be said to be trespasser for variety of reasons, intended to be submitted before this Court.

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In my view, whatever be the case of the petitioner on merit about being not trespasser, he may have remedies under the Rajasthan Colonization Act, or any other law, to establish that he is not trespasser, but then since on the face of it, order of Tehsildar is appealable. I am not inclined to entertain the writ petition. Same is, therefore, dismissed summarily."

7. Learned counsel for the respondents also pointed out that the Division Bench appeal against the said order of learned Single Judge, namely, in DBSAW No.628/04- Sukhvindra Kaur Vs. State of Raj. & Ors., has also been recently dismissed by the Division Bench on 03.12.2012. The order dated 03.12.2012 dismissing the special appeal preferred against the order of learned Single Judge, is reproduced herein below for ready reference:

"The petitioner has questioned the order dated 18.9.2002 passed by the Nayab Tehsildar,Vijaynagar and notice dated 9.9.2002 and prayed to direct the respondents not to dispossess him from the disputed land. The petitioner claims that he has purchased the land from the respondent No.3 for which he has paid full consideration, therefore, being bonafide purchaser, he cannot be treated to be trespasser.

Learned Single Bench has dismissed the writ petition on the ground that Nayab Tehsildar has rightly passed the impugned order under Section 22 of the Rajasthan Colonisation Act treating the petitioner to be trespasser. The Single Bench has opined that on merits, if he is not trespasser, he may have remedies under the Rajasthan Colonisation Act to establish that he is not trespasser. The order is appealable and hence, the writ petition has been dismissed.

After perusal of the various orders on record, the writ application and the order passed by the Single Bench, we find that the question of bonafide purchaser could not be determined in the writ petition and, therefore, the Single Bench has not committed any illegality in dismissing the writ petition. We find no ground to interfere in the impugned order.

The appeal is accordingly dismissed. The stay petition also stands dismissed."

8. Learned counsels for the respondents, therefore, submitted that the present writ petition also deserves to be dismissed on the ground on availability of alternative remedy by way of appeal under Section 75 of the Act. They also pointed out that the transfers of the land/s made by the said private respondent, Amrik Singh after 31.12.1969, were not recognized and it was held by this Court in his case itself in the

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writ petition filed by the State, namely, SBCWP No.563/01 - State of Rajasthan Vs. Amrik Singh, which writ petition of State came to be allowed by the learned Single Judge of this Court on 06.08.2002, in which the learned Single Judge of this Court held as under: -

"After 31.12.1969, transfer of the land by the assessee through any means has not been recognized and therefore, the and sold by the respondent assessee after 31.12.1969 has rightly been added by the Additional Collector in the judgment Annx-2, which has 18 bighas 14 biswas. The Board of Revenue has wrongly excluded this land. Similarly, the Board of Revenue has also mentioned a wrong fact that assessee purchased 6 bighas 5 biswas land in the year 1970 whereas no such averment if made either in the memo of appeal or before the Additional Collector, Sriganganagar who delivered Annex.. Learned Member of the Board of Revenue has also come to a wrong conclusion that 6 bighas 5 biswas, have been added for the second time in the name of the assessee and has wrongly mentioned that 3.5 bighas land of murabba No.40 has been sold in the year 1970 to Gurdyal Singh etc. but has wrongly been assessed in the name of respondent assessee. Nowhere it has been proved that 3.5 bighas of murabba No.40 sold to Gurdyal Singh in the year 1970 was the same land which has been shown by the Tehsildar, Vijaynagar in his report dated 04.3.1992. When the above land was sold by registered sale deed in the year 1970 and Gurdyal Singh etc. were in possession and mutation has also been entered in the name of purchasers, how could assessee can remain in possession of that 3.5 bighas land of murabba No.40 on 04.3.1992 and how could the land has been recorded in the name of assessee in the revenue records. The Board of Revenue came to wrong conclusion simply because a portion of 3.5 bighas land of murabba No.40 had been sold by the assessee to Gurdyal Singh whereas another portion of 3.5 bighas land of murabba No.40 was retained by the assessee himself.

Consequently, there is merit in this petition and the same stands accepted. The judgment Annx.3 dated 13.2.1998 delivered by Board of Revenue stands quashed and that of Addl. Collector, Sriganganagar (Annx.2 dated 15.11.1994 is affirmed. Consequently, 28 bighas 16 biswas land of respondent assessee has rightly been held surplus by the Addl. Collector, Sriganganagar, who is directed to proceed expeditiously for vesting the unincumbered land to above extent in the State. If during the ceiling proceedings, some land has

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already been surrendered and taken possession of by the State, rebate for the same shall be given to the assessee."

9. Learned counsel for the respondents, therefore, submitted that the learned Nayab Tehsildar was justified in passing the impugned order under Section 22 of the Act, which has been assailed in the present writ petition.

10. In rejoinder, Mr. Sudheer Sharma, learned counsel for the petitioners fairly submits that even if the petitioners are relegated back to alternative remedy by way of appeal under Section 75 of the Act before the learned Collector, who may be directed to decide the appeal of the petitioners on merits in accordance with law after considering entire factual matrix before him; and the interim protection given to the present petitioners at the time of entertaining the present writ petitions vide the order dated 01.11.2011 directing the parties to maintain status quo with respect to suit land, may be maintained till the Collector decides the appeals to be preferred by the present petitioners.

11. Having heard learned counsel for the parties, this Court is of the opinion that it would be in the interest of justice that the petitioners are relegated back to the appellate forum before the Collector to decide the appeal/s of the petitioners against the impugned order of Nayab Tehsildar passed under Section 22 of the Act in accordance with law on merits. Since, the case obviously involves disputed questions of fact, as to total land holding of Amrik Singh, validity of transfers made by him to the present petitioners, and whether the land in question could be said to be encumbered or unencumbered so as to decide upon the preference on its surrender in Option filed by said Amrik Singh, all these questions of facts deserve to be decided in the light of judgments of this Court, cited at the bar. Both the parties obviously will be at liberty to raise their rival contentions on the basis of judgments cited above and the factual matrix of the case. This Court in the writ jurisdiction, cannot be called upon to decide these disputed questions of facts straightway in this writ jurisdiction; and therefore, respectfully concurring with the view of learned Single Judge in the SBCWP No.4344/02, decided on 03.08.2004, which order of learned Single Judge has recently been upheld by the Divison Bench with the dismissal of DBSAW No.628/04 on 03.12.2012, this Court disposed of these writ petitions also with a direction to the petitioners to file their appeals before the Collector, Sriganganagar against the impugned order under Section 22 passed by the Nayab Tehsildar, Sri Vijaynagar immediately within a period of one month from today and the Collector, Sriganganagar is directed to decide said appeals on merits within a period of one year from today. If such appeals are not filed by the petitioners within a period of one month from today, the present writ petitions which are being disposed of with the aforesaid directions, shall be treated as dismissed. If such appeals are filed within the stipulated period of one month from today, the Collector, Sriganganagar is expected to decide the appeals

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on merits and return his findings of facts considering the entire factual matrix and legal position cited above. Till such appeals are decided by the Collector, Sriganganagar, within one year from today, the interim protection granted by this Court directing the parties to maintain status quo shall be maintained.

12. In the result, the writ petitions are disposed of accordingly. No costs."

2. Learned counsel for the respondents are not in a position to

refute the submissions made by learned counsel for the

petitioners.

3. Thus, in view of the aforesaid submissions made, the writ

petition is disposed of in light of the same terms and conditions as

mentioned in S.B. Civil Writ Petition Nos.4342/2002 (Singara

Singh Vs. State of Rajasthan & Ors.), 4266/2002 (Gurjeet

Singh Vs. State of Rajathan & Ors.) and 4343/2002 (Jodh

Singh Vs. State of Rajasthan & Ors.).

4. Stay petition and all pending applications, if any, stand

disposed of.