Rajasthan High Court

Anil Agarwal S/O Kailash Chand vs Suresh Chand S/O Late Shri Ramesh Chand ... on 11 December, 2023

Author: Anoop Kumar Dhand

Bench: Anoop Kumar Dhand

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 6941/2023

Anil Agarwal S/o Kailash Chand, aged about 57 Years, R/o
Station Bajriya, Opposite Murli Chitralok, Bharatpur.
                                                                 ----Petitioner/Non
                                    Versus
1.     Suresh Chand S/o Late Shri Ramesh Chand Tiwari, R/o
       Arya Samaj Road, Bharatpur.
2.     Mahesh Chand S/o Late Shri Ramesh Chand Tiwari, R/o
       Arya Samaj Road, Bharatpur.
3.     Umesh Chand S/o Late Shri Ramesh Chand Tiwari, R/o
       Arya Samaj Road, Bharatpur.
4.     Dinesh Chand S/o Late Shri Ramesh Chand Tiwari, R/o
       Arya Samaj Road, Bharatpur.
5.     Naresh Chand S/o Late Shri Ramesh Chand Tiwari, R/o
       Arya Samaj Road, Bharatpur.
6.     Shanti    Devi    W/o       Late     Shri     Ramesh         Chand   (Since
       Deceased), R/o Arya Samaj Road, Bharatpur.
7.     Mithlesh W/o K.C. Sharma, R/o Arya Samaj Road,
       Bharatpur.
8.     Beena     W/o     B.K.     Sharma,          R/o     Arya     Samaj    Road,
       Bharatpur.
9.     Department of Custodian, Through Assistant Settlement
       Commissioner, Bharatpur at Present through District
       Magistrate,      Department            of     Revenue,         Collectorate,
       Bharatpur.
10.    State of Rajasthan, through Tehsildar, Bharatpur.
11.    Vijay Kumar S/o Ramanlal, R/o Kodiyan Mohalla Bhartpur.
12.    Nirmla Devi W/o Shri Tara Chand Singhal, R/o Opposite
       Natwar Singh Ki Kothi, Krishna Nagar, Bharatpur.
13.    Trilok Chand Agarwal S/o Kailash Chand, R/o Station
       Bajriya, Opposite Murli Chitralok, Bharatpur.
14.    Smt. Mithlesh Agarwal W/o Ravi Kumar, R/o Station
       Bajriya, Opposite Murli Chitralok, Bharatpur at Present
       C/o Rama Flour Mils, Sadar Bajar, Meruth (U.P.).
15.    Smt. Kamlesh Agarwal W/o Anil, R/o Station Bajriya,
       Opposite Murli Chitralok, Bharatpur at Present C/o F-7-A,

                     (Downloaded on 11/12/2023 at 08:48:41 PM)
 [2023:RJ-JP:35151]                      (2 of 13)                          [CW-6941/2023]


         Kamla Nager, Agra (U.P.).
16.      Smt. Vandana Agarwal W/o Rajesh Kumar, R/o Station
         Bajriya, Opposite Murli Chitralok, Bharatpur at Present
         R/o Tara Chand Kailash Chand, Chouth Mata Bajar, Kota,
         Rajasthan.
                                                                      ----Respondents

Connected with S.B. Civil Writ Petition No. 6942/2023

Trilok Chand Agarwal S/o Kailashchand, Aged About 64 Years, R/o Station Bajriya, Opposite Murli Chitralok, Bharatpur.

----Petitioner Versus

1. Shanti Devi W/o Late Shri Rameshchand Tiwari (Since Deceased)

2. Suresh Chandra S/o Late Shri Rameshchand Tiwari, R/o Arya Samaj Road, Bharatpur.

3. Mahesh Chandra S/o Late Shri Rameshchand Tiwari, R/o Arya Samaj Road, Bharatpur.

4. Umesh Chandra S/o Late Shri Rameshchand Tiwari, R/o Arya Samaj Road, Bharatpur.

5. Dinesh Chandra S/o Late Shri Rameshchand Tiwari, R/o Arya Samaj Road, Bharatpur.

6. Naresh Chandra S/o Late Shri Rameshchand Tiwari, R/o Arya Samaj Road, Bharatpur.

7. Mithlesh W/o K.C. Sharma, R/o Arya Samaj Road, Bharatpur.

8. Beena W/o B.K. Sharma, R/o Arya Samaj Road, Bharatpur.

9. Department of Custodian, through Assistant Settlement Commissioner, Bharatpur at Present Through District Magistrate, Department of Revenue, Collectorate, Bharatpur .

10. Vijay Kumar S/o Ramanlal, R/o Kodiyan Mohalla Bhartpur.

11. Nirmla Devi W/o Shri Ratachand Singhal (Tarachand Singhal), R/o Opposite Natwar Singh Ki Kothi, Krishna Nagar, Bharatpur.

[2023:RJ-JP:35151] (3 of 13) [CW-6941/2023]

12. State of Rajasthan, Through Tehsildar, Bharatpur.

13. Anil Agarwal S/o Kailash Chand, R/o Station Bajriya, Opposite Murli Chitralok, Bharatpur.

14. Smt. Mithlesh Agarwal W/o Ravi Kumar, R/o Station Bajriya, Opposite Murli Chitralok, Bharatpur at present C/o Rama Flour Mils, Sadar Bajar, Meruth (U.P.).

15. Smt. Kamlesh Agarwal W/o Anil, R/o Station Bajriya, Opposite Murli Chitralok, Bharatpur At Present C/o F-7- A, Kamla Nager, Agra (U.P.).

16. Smt. Vandana Agarwal W/o Rajesh Kumar, R/o Station Bajriya, Opposite Murli Chitralok, Bharatpur at Present Tarachand Kailash Chand, Chouth Mata Bajar, Kota, Rajasthan.

                                                                    ----Respondents


For Petitioner(s)            :     Mr. Gajendra Singh Rathore
For Respondent(s)            :     Mr. Gulab Chand Goyal
                                   Mr. Suresh Chand Goyal


           HON'BLE MR. JUSTICE ANOOP KUMAR DHAND


Reserved on                                                         20/11/2023
Pronounced on                                                       11/12/2023
                                       ORDER


REPORTABLE

1. The issue involved in these writ petitions is "when no remedy

of filing appeal is prescribed in any statute, whether the aggrieved

person can be left remediless?"

Factual Matrix:-

2. In the present matter, allotment of same land in question

was made in favour of both the parties by the authorities in

different years. Both the parties made their respective claims over

the land in question and finally, after holding an enquiry, the

allotment made in favour of the respondents was treated as valid.

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Now, the question which remains for consideration before this

Court is "whether the order passed by the Collector is final or the

petitioner would have any remedy of filing appeal or not". It is in

this background, the issue involved in these petitions is required

to be considered.

3. Since common question of law and facts are involved in both

the petitions, hence with the consent of the counsel for the

parties, both the matters are taken up for final disposal and the

same are being decided by this common order.

4. For the sake of convenience, the facts mentioned in S.B. Civil

Writ Petition No. 6941/2023 are taken into consideration.

5. The instant petition has been filed by the petitioner against

the impugned order dated 31.01.2023 passed by the Divisional

Commissioner, Bharatpur by which the appeal filed by the

petitioner against the judgment dated 16.10.2017, passed by the

District Collector, Bharatpur, has been dismissed on the ground of

jurisdiction.

Rival Submissions:-

6. Counsel for the petitioner submits that with regard to the

property in question, two different 'pattas' were issued in favour of

the respondents as well as the petitioner in the years 1979 and

1981 respectively. Counsel submits that while contesting their

right to claim over the property in question, the matter travelled

from Revenue Court to this Court and finally SBCWP No.

2928/1991 was submitted by the father of the respondent Nos. 1

to 5, which was decided by the co-ordinate Single Bench of this

Court vide order dated 24.10.1996 and the Collector was directed

to examine the allotment order issued in favour of the parties by

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holding an enquiry. Counsel submits that the said order was

challenged by both the parties before the Division Bench of this

Court by way of filing two different special appeals bearing Nos.

1383/1996 and 113/1997. Counsel submits that both appeals

were decided by a common order by the Division Bench vide order

dated 11.02.2009 and the District Collector concerned was

directed to complete the enquiry within a period of three months

from the date of receipt of certified copy of the order dated

11.02.2009 and further liberty was granted to the parties to seek

appropriate remedy before the appropriate forum, in accordance

with law. Counsel submits that thereafter, enquiry was conducted

by the District Collector, Bharatpur and finally the judgment was

passed on 16.10.2017 and patta issued on 15.05.1979 in favour

of the respondents was restored and the patta issued in their

favour was treated to be a valid Patta.

6.1. Counsel submits that feeling aggrieved and dissatisfied by the

order dated 16.10.2017 passed by the District Collector,

Bharatpur, the petitioner submitted an appeal under Section 75 of

the Rajasthan Land Revenue Act, 1955 before the Revenue

Appellate Authority (for short, 'the RAA'). Counsel submits that

during pendency of the said appeal before the RAA, the State

Government issued a notification dated 17.10.2019 by which the

said appeal was transferred to the Divisional Commissioner,

Bharatpur. Counsel submits that instead of deciding the appeal on

its merits, the Divisional Commissioner, Bharatpur vide impugned

order dated 31.01.2023 rejected the appeal on the ground of

maintainability. Counsel submits that since the orders are passed

by the authorities, while exercising the powers contained under

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the Rajasthan Land Revenue (Permanent Allotment of Evacuee

Agriculture Lands) Rules, 1963 (for short, 'the Rules of 1963'),

hence, the only remedy available with the petitioner was to file an

appeal before the RAA. Counsel submits that the controversy

involved in this petition has already been set at rest by this Court

in the case of Chhida Vs. Board of Revenue, reported in 1986

RRD 523. Counsel further submits that as per the judgment

passed in the case of Chhida (supra), the appeal lies before the

RAA. Counsel submits that under these circumstances,

interference of this Court is warranted.

7. Per contra, counsel for the respondents opposed the

arguments, raised by counsel for the petitioner and submitted that

the judgment dated 16.10.2017 passed by the District Collector,

Bharatpur is final and the same is not appealable before any

appropriate forum of law. Counsel submits that the matter was

decided by the District Collector, Bharatpur, pursuant to the

direction issued by the Division Bench of this Court in favour of

the respective parties, therefore, the only remedy which was

available to the petitioner is to approach the Division Bench of this

Court. He submits that the petitioner has not done so, hence the

impugned order has attained finality. Counsel submits that the

Divisional Commissioner has committed no error in rejecting the

appeal on the ground of maintainability, hence, interference of this

Court is not warranted. Counsel further submitted that it is settled

proposition of law that if a statute is silent with regard to the

remedy of filing the appeal, then the party concerned has no right

to question the validity of the order passed against him. In

support of their contentions, counsel for the respondents have

[2023:RJ-JP:35151] (7 of 13) [CW-6941/2023]

placed reliance upon the judgments passed by the Hon'ble Apex

Court in the case of Smt. Ganga Bai Vs. Vijay Kumar and Ors.

reported in AIR 1974 SC 1126 and in the case of Ishar Das and

Anr. Vs. State of Haryana and Ors. reported in AIR 1975 P&H

29.

8. Heard and considered the rival submissions made at Bar and

perused the material available on record.

Analysis and Reasonings:-

9. Counsel for both the parties are in agreement that the

impugned judgment dated 16.10.2017 has been passed by the

District Collector, Bharatpur in pursuance of the order dated

11.02.2009 passed by the Division Bench of this Court in special

appeals submitted by them. The direction issued by the Division

Bench is reproduced as under:-

" Since the controversy is pending for last 30 years, the District Collector concerned is now directed to complete the enquiry within three months from the date of receipt of the certified copy of this order as per directions issued by the learned Single Judge and pass necessary orders accordingly. It goes without saying that if still aggrieved by any orders passed by the Assistant collector the affected party is always fee to seek proper remedy before appropriate forum in accordance with law."

10. Both the counsel for the parties are in agreement that after

passing of the above judgment dated 11.02.2009, the District

Collector, Bharatpur held an enquiry, as per the provisions

contained under the Rules of 1963 and the 'patta' dated

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15.05.1979 issued in favour of the respondents was restored in

their favour vide judgment dated 16.10.2017.

11. It is worthy to note here that while deciding the special

appeals, even the Division Bench of this Court granted liberty to

the aggrieved party to seek the remedy before the appropriate

forum, in accordance with law.

12. Feeling aggrieved by the Collector's judgment dated

16.10.2017, the petitioner submitted an appeal under Section 75

of the Rajasthan Tenancy Act, 1955 before the Court of RAA.

During pendency of the said appeal, the Department of Revenue

(Group VI), Government of Rajasthan issued a notification on

17.10.2019 and the said appeal was transferred to the Court of

Divisional Commissioner, Jaipur, who rejected the same vide

impugned order dated 31.01.2023 by treating the appeal as not

maintainable.

13. By passing the impugned order dated 31.01.2023, the

Divisional Commissioner has left the petitioner remediless. It is

well settled proposition of law that if there is no specific procedure

prescribed under the Act or Rules or Rules of Business, in that

case merely because the procedure does not find place in the

statute on Rules of business, a party cannot be rendered

remediless. What is paramount is to ensure that, ends of justice

is served, if an opportunity is provided to the aggrieved party to

approach the higher authority for examining the correctness of the

order passed against him.

14. The Roman jurisprudential maxim "ubi jus ibi remedium"

means that where law provides a right, there has to be a remedy.

In other words, "where there is a right, there is a remedy" .

[2023:RJ-JP:35151] (9 of 13) [CW-6941/2023]

Referring to the rule of "ubi jus ibi remedium", the Hon'ble Apex

Court has observed in the case of M/s. Shiv Shanker Dal Mills

and Others Vs. State of Harayana reported in 1980(2) SCC

437 that if legal injury is caused to any person, then aggrieved

person has at least one remedy of appeal to challenge the

correctness of the order impugned passed against him.

15. Ubi Jus Ibi Remedium, i.e., there is no wrong without a

remedy. This maxim should be applied to evolve a principle to

protect the fundamental rights of a citizen who may likely to suffer

because of any of litigation. According to the maxim, whenever

the common law gives a right or prohibits an injury, it also gives a

remedy. In other words, whenever citizen possess certain

constitutional guarantee or statutory right, that must be protected

by the Courts.

16. The other maxim "Lex Semper Dabit Remedium", means,

it is a vain thing to imagine a right without a remedy, for want of

right and for want of remedy are reciprocal. In other words, if a

person has a right, he must have means to vindicate and maintain

it, and a remedy if he is injured in the exercise and enjoyment of

it.

17. In the case of Union of India Vs. S.B. Vohra reported in

(2004) 2 SCC 150, the Supreme Court had the occasion to

examine the broad principles of judicial review wherein it has been

observed that judicial review is a highly complex and developing

subject and it is considered to be the basic feature of the

Constitution. The Court in exercise of its power of judicial review

would zealously guard the human rights, fundamental rights and

the citizen's right of life and liberty.

[2023:RJ-JP:35151] (10 of 13) [CW-6941/2023]

18. The Division Bench of Himachal Pradesh High Court in the

case of Ravinder Chatra Vs. State of Himachal Pradesh and

Ors., reported in 2018 SCC Online HP 1450 has dealt with the

issue involved in that petition that right to appeal is a creation of

statute but in absence of such provision, the aggrieved person

cannot be left remediless and it has been held in para 5 as under:-

"5. There is another reason which prompts us to enable the petitioner to file the appeal. The Himachal Pradesh Public Moneys (Recovery of Dues) Act, 2000 does not provide any remedy of appeal etc. Though, the right to appeal is a creation of Statute, but, it appears to us that the petitioner cannot be left remediless on the question of determination of the actual loan amount payable by the borrower or the petitioner. We thus, direct Registrar Cooperative Societies to entertain the arbitration application/petition, as may be preferred by the petitioner under Sections 72 (d) & (e) and 73 of the 1968 Act, and adjudicated the same in accordance with law and principles of natural justice within a period of four months from the date of filing of such petition. The petitioner shall be at liberty to seek interim relief before the authority referred to above.

19. Merely because the Rules of 1963 did not provide any

remedy to the aggrieved person, he cannot be left remediless. If

any person is feeling himself aggrieved by any adverse order

passed against him, then certainly he has every right to challenge

the same before the appropriate forum of law. When a legal

injury is sustained by any person, certainly he/she has remedy to

[2023:RJ-JP:35151] (11 of 13) [CW-6941/2023]

cure that injury. Even in the case of Sunil Vasudeva and Ors.

Vs. Sundar Gupta and ors., reported in 2019 (17) SCC 385,

the Hon'ble Apex Court has held that no party could be left

remediless and whatever the grievance, the party has raised

before the Court of law, has to be examined on its own merits.

20. Now the question which remains for consideration before this

Court is that "Whether the appeal, filed by the petitioner against

the order of District Collector, before the Revenue Appellate

Authority, is maintainable or not?"

21. The similar issue came up before this Court in the case of

Chhida (Supra) and the same was decided with the following

observations in para 3 as under:-

"3. It will therefore, be clear that such of the lands which were evacuee property under the Evacucee Property Act, 1950 (Central Act 1950) and which had been allotted as evacuee property to non-claimants as a measure of rehabilitation for cultivation and which lands were acquired by the Central Government by notification No. 5113/5(14) 5511 dated 6th April, 1955 stood transferred to the State Government on payment of Rs. 1 crore. To confer rights on the non-claimants to whom the land have been allotted, the rules were framed under the powers conferred in the State Government by Section 251 of the Act read with Section 101 and 102 of the Act and the proviso to Section 34 of the Rajasthan Tenancy Act, 1955. Therefore, if the lands in dispute were such which were covered under the rules, then the forum of appeal/appeals will be as provided in the Act. As already stated earlier none of the two courts below, either the learned Revenue Appellate Authority or the learned Board of Revenue

[2023:RJ-JP:35151] (12 of 13) [CW-6941/2023]

have addressed themselves to this aspect of the matter. Without addressing themselves to this aspect of the matter, the question as to whether an appeal under Section 76 of the Act lay before the Revenue Appellate Authority could not be decided. In my opinion, there is no doubt that if the land in dispute is of the nature as dealt with in the rules and has to be allotted under the aforesaid rules, the forum of appeals shall be as provided under the provisions of the Act. The appeal against the order of the Collector shall lie to the Revenue Appellate Authority and against the order of the learned Revenue Appellate Authority passed in Second Appeal a revision will lie to the Board of Revenue under the provisions of the land Revenue Act, 1956. There is an error apparent on the face of the order of the Board of Revenue, in as much as, without going to the root of the case, as to whether the land in dispute was such which was covered under the rules, it held that an appeal did not lie under section 76 of the Act before the Revenue Appellate Authority."

22. Hence it is clear from the law laid down by this Court in the

case of Chhida (supra) that the order passed by the District

Collector under the Rules of 1963 is appealable before the RAA.

Since, the controversy involved in this petition has already been

set at rest, in the case of Chhida (supra), the same is no more

res integra, this Court finds no other valid reason to take a

different view.

23. Since the RAA has already transferred the matter to the

Divisional Commissioner, in the light of the Notification dated

17.10.2019, issued by the Government of Rajasthan, hence, the

Divisional Commissioner is competent to hear and decide the

appeal.

[2023:RJ-JP:35151] (13 of 13) [CW-6941/2023]

Conclusion:-

24. Consequently, both the petitions stand allowed and the

impugned order dated 31.01.2023 is quashed and set aside and

the matters are sent back to the Divisional Commissioner with

direction to re-register and restore the appeals to their original

numbers and thereafter, decide the same afresh, after affording

due opportunity of hearing to both the sides.

25. Both the parties are directed to appear before the Divisional

Commissioner on 04.01.2024.

26. Since the lis regarding allotment of land is pending between

the parties for last more than four and half decades, thus, looking

to the long life span of the present litigation i.e. 45 years, the

Divisional Commissioner is directed to decide the appeals

expeditiously, preferably within a period of three months from the

date of appearance of the parties.