Rajasthan High Court - Jodhpur

Jodhpur Development Authority vs Mangilal (2023/Rjjd/017425) on 25 May, 2023

Bench: Nupur Bhati

[2023/RJJD/017425]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13053/2020

Jodhpur Development Authority, Through Its Secretary, J.d.a, Jodhpur. Shri Rajendra Singh Chandawat D.c. (South) J.d.a.

----Petitioner Versus

1. Mangilal S/o Shri Bal Kishan Prajapati, R/o Sardarpura C Road, Jodhpur Through Power Of Attorney Hold Ramesh Kumar Prajapat.

2. Ramesh Kumar Prajapat S/o Shri Babulal Prajapat, R/o Sardarpura C Road, Jodhpur

3. Dev Kishan S/o Amarlal Prajapat, R/o Sardarpura C Road, Jodhpur Through Power Of Attorney Hold Shri Mukesh Kumar S/o Shri Motilal By Caste Agarwal, R/o Samanway Nagar, Pal Road, Jodhpur.

4. Smt. Sadhana W/o Jagdish Prajapat, R/o Sardarpura C Road, Jodhpur Through Power Of Attorney Hold Shri Mukesh Kumar S/o Shri Motilal By Caste Agarwal, R/o Samanway Nagar, Pal Road, Jodhpur.

5. Mahesh Kumar S/o Shri Jai Narayan Prajapat, R/o Sardarpura C Road, Jodhpur Through Power Of Attorney Hold Shri Mukesh Kumar S/o Shri Motilal By Caste Agarwal, R/o Samanway Nagar, Pal Road, Jodhpur.

6. State Of Rajasthan, Through Tehsildar, Jodhpur.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Manoj Bhandari, Sr. Adv., assisted
                                 by Mr. Rajat Dave
For Respondent(s)          :     Mr. Falgun Buch



               HON'BLE DR. JUSTICE NUPUR BHATI

                                      Order

25/05/2023

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

Article 226 and 227 of the Constitution of India, claiming for the

following reliefs:-

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      "(i)    By an appropriate writ, order or directions, the judgment and

order dated 04.02.2020 (Annex.2) passed by the learned Board of Revenue, Rajasthan, Ajmer in Revision No.5486/2017 be quashed and set aside.

(ii) By an appropriate writ, order or directions, the judgment and order dated 30.06.2017 (Annex.1) passed by the learned RAA, Jodhpur in appeal under Section 225 of the Rajasthan Tenancy Act, 1955 be quashed and set aside adn the writ petition may kindly be allowed."

2. Learned counsel for the respondent submits that the issue

involved in the present writ petition is squarely covered by order

passed by Co-ordinate Bench of this Court in Jodhpur

Development Authority Vs. Jugal Kishore & Anr. (S.B. Civil

Writ Petition No.7489/2012, decided on 08.12.2017). The said

order reads as follows :-

"Respondent No.1 filed revenue suit before the Assistant Collector and Sub Divisional Officer, Jodhpur under Sections 88 and 188 of the Rajasthan Tenancy Act seeking declaration as Khatedar for the land situated in Khasra No.1028/740 (old Khasra No.740/59) measuring 11 & 1/2 bighas situated at Vyas Ki Bawdi, Jodhpur. The petitioner-defendant filed their reply in the revenue suit stating therein that the respondent-plaintiff was not having the possession over the said land and that the said land is set apart for residential purpose, it has been handed over to the Erstwhile UIT. It was further stated in the reply that the District Collector, Jodhpur way back on 03.09.1953 had proposed to transfer the said land in favour of the UIT. The said order was never challenged. Meanwhile, the District Collector, Jodhpur passed another order dated 28.05.1970 declaring the said land as government land. Hence, the Revenue Court vide its order dated 30.08.2005 dismissed the suit preferred by the respondentplaintiff and accordingly a notice under Section 91 of the Land Revenue Act was also issued by the Tehsildar against the respondent-plaintiff.

However, the appeal filed by the respondent No.1 was allowed by the Revenue Appellate Authority vide order dated 21.06.2006 duly recording a finding that the father of the respondent-plaintiff - Goverdhan Lal was declared as Khatedar way back in the year 1956 in view of operation of Section 15 of the Land Revenue Act and the Collector, Jodhpur had wrongly terminated the khatedari rights of the respondent-plaintiff vide order dated 09.06.1970. The said order of the

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District Collector was an administrative order. The order of the District Collector, Jodhpur being an administrative order was also quashed by Civil Court in several suits filed by various effected people. Hence, the suit of the respondent-plaintiff was decreed by the Revenue Appellate Authority, Jodhpur and the order of the District Collector dated 09.06.1970 was quashed. The appeal filed against the order of the Revenue Appellate Authority, Jodhpur before the Board of Revenue, Rajasthan, Ajmer was dismissed vide judgment and order dated 15.11.2011.

Thus, the present writ petitions have been preferred against the order dated 15.11.2011 passed by the Board of Revenue, Rajasthan, Ajmer whereby the appeal preferred by the petitioner against the order dated 21.06.2006 passed by the Revenue Appellate Authority, Jodhpur was dismissed.

While challenging the order dated 15.11.2011 passed by the Board of Revenue, Rajasthan, Ajmer as well as the order dated 21.06.2006 passed by the Revenue Appellate Authority, Jodhpur, it was contended that the order of the Collector, Jodhpur was no doubt an administrative order but it was passed in pursuance to the order passed by the District Collector which was passed on judicial side. The respondent-plaintiff failed to show any possession and in fact a notice under Section 91 of the Land Revenue Act had also been issued to remove the encroachment from the government land and an encroacher has no right. The said land was set apart for residential purpose and the Collector has a right to set apart the land as per Section 92 of the Act of 1956. Further, the Urban Improvement Trust has already taken the possession in the revenue record. The mutation has also been entered in favour of the Erstwhile UIT and the Jodhpur Development Authority has already prepared a plan as the land already stands disposed of and various people are residing on the said land.

Reply has been filed by the respondents.

It was contended by the learned counsel for the respondents that the writ petition deserves to be dismissed on the ground of concealing material facts. It was argued that the order dated 09.06.1970 passed by the District Collector, Jodhpur already stands set aside right uptill the High Court and any entries on the basis of this order are null and void. Heard.

The impugned orders have been challenged on the ground that the Collector, Jodhpur vide his order dated 09.06.1970 terminated the khatedari rights of the father of the respondent No.1 and the land in question was declared as government land and accordingly the said land was handed over to the UIT now JDA. However, as per preliminary objection raised by the respondent No.1 in his reply, the order dated 09.06.1970 was challenged by Champa Devi & Ors. before the Revenue Appellate Authority, Jodhpur by filing an appeal No.83/04 which was allowed by the Revenue Appellate Authority and the orders dated 28.05.1970/09.06.1970 were set aside on 04.01.2005. Against the order dated 04.01.2005, a Revision No.3889/05 was filed by the petitioner which was dismissed

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on 17.08.2011. The order dated 28.05.1970/09.06.1970 were also challenged by Shaukat Khan & Ors. by filing an Appeal No.9/2004 before Revenue Appellate Authority, Jodhpur. The said appeal was allowed by the Revenue Appellate Authority, Jodhpur vide order dated 12.02.2004 and the order dated 09.06.1970 was set aside and any entries on the basis of this order were also declared as null and void. Revision against this order was filed by the State Government through Tehsildar, Jodhpur before the Board of Revenue which was dismissed on 25.03.2006. The petitioner thereafter filed a Writ Petition No.5156/2006 challenging the order dated 25.03.2006 which was dismissed by this Court on 13.09.2006. The Special Appeal No.907/2006 filed against the order dated 13.09.2006 was also dismissed by the Division Bench on 08.01.2007. Thereafter, the Special Leave Petition No.CC14156/2006 titled as Urban Improvement Trust, Jodhpur Vs. Shaukat Khan & Ors. too was dismissed by the Apex Court on the ground of delay as well as on merits vide order dated 24.10.2008.

Secondly, the order dated 28.05.1970/09.06.1970 was also challenged in Civil Suit No.334/71 and the Civil Court had set aside these orders vide judgment dated 29.05.1974. The Civil First Appeal No.64/74 filed against the judgment dated 29.05.1974 was dismissed by the Additional District Judge No.1, Jodhpur on 24.02.1975. The Second Appeal filed before the High Court was also dismissed on 28.09.1976. The various orders passed by the Revenue Courts and Civil Courts were brought to the notice of the State Government and the State Government too has since set aside the orders of the Collector vide letter of Revenue (Group-3) Dept. Jaipur No.5(4)Raj/Group-3/2000 dated 17.10.2000.

No rejoinder has been filed to the preliminary objection and the reply filed by the respondent No.1. Thus, this Court cannot but hold that the issue is no more res integra. Similar Writ Petition bearing S.B. Civil Writ Petition No.3618/2011 (Rajasthan Industrial Investment Corporation Ltd. Vs. Legal Representatives of Tikam Das) the petitioners wherein were allotted the land after the same was cancelled by the Collector by the same order as in the present case i.e. 09.06.1970 too was dismissed vide order dated 04.05.2015 as under :

"10. Indisputably, the land in question was in cultivatory possession of the respondents before coming into force of the Act and therefore, they were entitled to be declared as khatedar tenant as per provisions of Section 15 of the Act. It is also not disputed that vide order dated 28.11.1956 issued by the SDO, Jodhpur, the respondents were granted khatedari rights under Section 15 of the Act. It is a matter of record (D.B. SAW/1037/2018 has been filed in this matter. Please refer the same for further orders) that order dated 9.6.1970 and consequent orders of Tehsildar, Jodhpur dated 24.12.1970, cancelling the patta of the land in question issued in favour of the respondents were passed without following the due

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process of law and for this reason, the orders dated 26.4.1974 and 18.3.1989, transferring the land in favour of RIICO and UIT were reviewed and cancelled by the Collector vide order dated 21.9.2004. It is pertinent to note that order dated 28.5.1970 cancelling the pattas of the respondents was based on order of Additional Commissioner, Jodhpur dated 13.8.1957, which pertains to cancellation of the patta issued in respect of pasture land whereas, the land in question was never reserved as pasture land. A perusal of the order impugned reveals that the Board of Revenue after consideration of the material on record in its entirety and objectivity, has arrived at a categorical finding that the khatedari rights conferred upon the respondents as per the provisions of Section 15 of the Act, was just and proper. In this view of the matter, the land belonging to the khatedar tenant could not have been declared sivay chak by way of administrative order, which was apparently passed on the basis of the erroneous facts. Merely because, the RIICO was put into possession of the land in question on the strength of an allotment order issued acting without jurisdiction, which now stands set aside in accordance with law, no right is created in favour of the RIICO, over the land in question. 11. For the aforementioned reasons, this court is of the considered opinion that the concurrent findings arrived at by the trial court, RAA and the Board of Revenue as aforesaid, do not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India."

3. Counsel for the petitioner is not in a position to dispute the

same.

4. In view of the above, this Court finds that since the order of

the Collector, Jodhpur dated 09.06.1970 has already been set

aside by the Civil Courts and affirmed by the High Court and the

Supreme Court and therefore, the entries made on the basis of

this order cannot be sustained. Accordingly, no ground is made

out to interfere in the order dated 04.02.2020 (Annex.2) passed

by the learned Board of Revenue, Rajasthan, Ajmer in Revision

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No.5486/2017 is made out. The present writ petition is,

accordingly, dismissed.