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2000 DIGILAW 9 (RAJ)

Rudhmal v. State of Rajasthan

2000-01-04

ARUN MADAN

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Honble MADAN, J.–By way of this writ petition, Rudhmal son of Chunnilal (petitioner) has sought a writ of prohibition for directing the Jaipur Development Authority (respondent No.2) not to:- (i) dispossess the petitioner from 10 bighas of land situated in Bir-Sarkari of Jhotwara Patwar area Tehsil Jaipur. (ii) interfere with his possession and cultivation of the said land in dispute without acquiring it in accordance with law, and (iii) demolish his thatched sheds, cow sheds and kacha houses existing on the land in dispute. (2). The facts relevant for deciding this writ petition, briefly stated, are that the land of Khasra Nos. 187 to 191 and 198 of village Birsarkari of Jhotwara Patwar area of Jaipur tehsil was purchased in the year 1968 by Nanuram (younger brother of Chunnilal who is father of the petitioner) from Chogan son of Kisna Modi. The petitioners case is that Nanuram having no issues/children was living with his elder brother Chunnilal and therefore, after death of Nanuram his property including the aforementioned land which was in his khatedari tenancy, succeeded/inherited in the petitioner and his brothers. According to him, though in revenue record, total area of aforesaid six Khasras was recorded measuring 27 Bighas 1 Biswa but its actual total area at the site of the land was 37 Bighas 1 Biswa and in the other words, 10 Bighas of land (which was also in actual & physical possession of the petitioner & his brothers, since the time of their predecessor in title namely Nanuram & Chunnilal) was less recorded in revenue record. (3). The petitioner in his writ petition admitted that the lands of area situated in village Bir Sarkari including lands of aforesaid six khasras were acquired under notification dt. 6.2.81 issued u/s 52 (2) of the Rajasthan Urban Improvement Act, 1959 (for short, the Act, 1959) for plan development of Vidhyadhar Nagar residential colony of Jaipur, to which his predecessor in title namely Nanulal @ Nanuram who was then alive, had also raised objections. Upon which State Government issued a declaration acquiring the aforesaid lands u/s 52 (3) of the Act, 1959 and directing Land Acquisition Officer to make further inquiry, issue and publish an Award. The Land Acquisition Officer issued and published Award dated 30.11.88 (Ann. 1) for aforesaid six Khasras measuring 27 bighas 01 biswa awarding Rs. Upon which State Government issued a declaration acquiring the aforesaid lands u/s 52 (3) of the Act, 1959 and directing Land Acquisition Officer to make further inquiry, issue and publish an Award. The Land Acquisition Officer issued and published Award dated 30.11.88 (Ann. 1) for aforesaid six Khasras measuring 27 bighas 01 biswa awarding Rs. 6,49,200/-as compensation of acquisition to the land holders namely predecessor in title of the petitioner. (4). As admitted by the petitioner in para 7 of his writ petition, while determination of sum of acquisition compensation, his brother sohanlal filed a suit before the Sub Divisional Officer, Jaipur for declaration that total actual area of aforesaid six khasras was 37 bighas 1 biswa as against 27 bighas 1 biswa wrongly recorded in revenue record by the Settlement Department. The suit was dismissed vide judgment dated 20.5.85 and decree dated 2.7.85 but decreed in appeal No. 21/85 of his brother Sohanlal by Revenue Appellate Authority, Jaipur by judgment dated 9.12.85 (Ann. 3) directing the Tehsildar Jaipur to correct the land area of aforesaid khasra of the plaintiff Sohanlal (petitioners brother) showing it 37 bighas 1 biswa in his favour in the revenue record; and in pursuance of the judgment dated 9.12.85 (Ann. 3), mutation making correction of the total area as 37 bighas 1 biswa was accordingly made in favour of Sohanlal vide mutation dated 15.5.87 (Ann. 4). (5). The case of the petitioner is that 27 bighas and 1 biswa of the land having been acquired by notification (Ann. 2) and Award (Ann.1) have already been in possession of the respondents authorities whereas 10 bighas of land have been continuing in actual and physical possession of the petitioner holding his thatched, cow sheds and kacha houses duly constructed thereon as is shown in site plan (Ann.5) and photos (Ann. 6 & 7) inasmuch as he is having khatedari rights over these 10 bighas of land, of which he has also not been awarded any compensation in acquisition proceedings nor paid the compensation, so there cannot be any question of divesting rights and possession of the petitioner or creation of any right or power in favour of the respondents. But according to the petitioner the respondents authorities were trying to dispossess him by threatening on 1.3.93 whereupon he therefore filed Reference Petition No. 72/93 before Tribunal, Jaipur Development Authority (for short ``JDA). (6). But according to the petitioner the respondents authorities were trying to dispossess him by threatening on 1.3.93 whereupon he therefore filed Reference Petition No. 72/93 before Tribunal, Jaipur Development Authority (for short ``JDA). (6). The petitioner further admitted in writ petition that reference No. 160/93 was also filed by his brother Sohanlal and Smt. Chunni Devi w/o Dulla Ram. Both reference No. 72/93 of the petitioner and reference No. 160/93 of Sohanlal were decided by a common order dated 9.7.93 of the Tribunal. The Tribunal by order dated 9.7.93 (Ann. 8) rejected Reference No. 160/93 of Sohanlal but partly allowed Reference No. 72/93 of the present petitioner, whereby the Tribunal directed the respondent No. 2 (JDA) not to dispossess the petitioner from the residential appurtenants over the land situated in village Birsarkari which consisted of thatched/cow sheds etc, unless they are given notice and due process of law for demolishing the construction and dispossessing the petitioner is followed. Hence this writ petition has been filed seeking a writ of prohibition in the manner referred to in first para of this order. (7). In reply to the show cause notice, the respondent No. 2 (JDA) raised preliminary objections inter alia that since the JDA has not acted without jurisdiction as the land in dispute stood acquired and vested in the JDA from all encumberances upon acquisition proceedings having attained its finality, the JDA is within its legal power to proceed in accordance with law against the petitioner to evict him from the acquired land over which encroachments have been made by him having no legal right or title in his favour whatsoever, therefore, no writ of prohibition can be issued against the JDA. Second objection is that reference petition No. 72/93 having been filed by the petitioner for seeking same relief as in this writ petition had already been partly allowed by the JDA Tribunal by its judgment (Ann. 8) in his favour and since that judgment of the JDA Tribunal, having not been challenged by either of the parties, has attained its finality, therefore, the petitioner cannot be permitted to seek same relief after five years. 8) in his favour and since that judgment of the JDA Tribunal, having not been challenged by either of the parties, has attained its finality, therefore, the petitioner cannot be permitted to seek same relief after five years. Third objection is that the petitioner has no right and title in the land in dispute and his title being also disputed among brothers has yet to be finally adjudicated and moreover finding to that effect recorded by the Land Acquisition Officer so also by the JDA Tribunal since having attained its finality cannot be challenged by the petitioner in writ petition, especially when suits as to the title over the land in dispute were filed in between the parties and among the brothers. Last objection is that the fact that khatedar Nanuram in fact had purchased only 27 bighas 1 biswa from the original khatedar Chogan in the year 1968, has not been disputed either by the petitioner or his brother Sohanlal or even by Nanuram in his objections having been filed before the Land Acquisition Officer to the acquisition Notification dated 6.2.81 and dated 31.10.81 (Ann. 2) or in any of subsequent proceedings and adding 10 bighas land by way of correction that too in the proceedings subsequent to the acquisition having attained its finality and in those proceedings of suits to which the JDA or even the petitioner was not party, is nothing but giving credence to illegal encroachment upon Siwai Chak land and the petitioner is not entitled to invoke extraordinary jurisdiction. (8). The petitioner since did not implead his brother as necessary party to this writ petition, so Sohanlal (his brother) by his application filed on 11.11.98 sought to be impleaded as respondent No.4 and Sohanlal was allowed to be impleaded as respondent No.4 by this courts order dated 15.7.99. Accordingly Sohanlal respondent was also heard. (9). (8). The petitioner since did not implead his brother as necessary party to this writ petition, so Sohanlal (his brother) by his application filed on 11.11.98 sought to be impleaded as respondent No.4 and Sohanlal was allowed to be impleaded as respondent No.4 by this courts order dated 15.7.99. Accordingly Sohanlal respondent was also heard. (9). The respondent No.4 in his written arguments so also during the course of hearing referred to his rejoinder filed to the reply of the petitioner to his application for impleading as party and contended that his uncle Nanulal being khatedar of the land has filed application for correction of the total area of six khasras before the revenue authorities but Nanulal since died on 12.3.82 so in his place respondent No. 4 through his application applied for substitution being his legal heir on the basis of a will executed in his favour by Sohanlal and however, the Assistant Collector impleaded Sohanlal as party in substitution of deceased Sohanlal whereas Rudhmal present petitioner never claimed himself as owner of the land in dispute on the death of Nanulal in any of the revenue proceedings. The case of the respondent No.4 is that as a result of the judgment dated 9.12.85 of the Revenue Appellate Authority, mutation was recorded correcting total area of land measuring 37 bighas 1 biswa of aforesaid six khasras vide Ann. 4 dated 15.5.87, which clearly shows the respondent No.4 as khatedar tenant of 10 bighas of land in dispute and over which he has possession. The respondent No.4 also produced certain documents (Annex. R-4/9 to R.4/14) to show that the petitioner went in adoption to Bhonrilal alias Bhanwarlal and so he has no right or interest to his parental property and similarly no right to challenge a will executed by Sohanlal in favour of respondent No.4. The respondent No.4 also contended that the present petitioner had also filed writ petition No. 3931/94 which was already dismissed by this court by order dated 4.8.94 (Annex. R. 4/15) against the judgment dated 9.7.93 (Annex. 8). (10). The respondent No.4 also contended that the present petitioner had also filed writ petition No. 3931/94 which was already dismissed by this court by order dated 4.8.94 (Annex. R. 4/15) against the judgment dated 9.7.93 (Annex. 8). (10). Having heard the learned counsel for the parties and considered their rival contentions and also perused the documents placed on record by the respective parties, I am of the considered view that this writ petition deserves to be dismissed on manifold reasons firstly because his earlier writ petition No. 3931/94 having been filed for the same relief as in the present writ petition and against the judgment of JDA Tribunal dated 9.7.93 (Ann. 8) had already been dismissed by this court by its order dated 4.8.94 (Ann. R-4/15). In earlier writ petition, the petitioner had challenged the action of respondent in not complying with the directions given in appellate order dated 9.7.93 whereby the JDA Tribunal directed that without following the procedure and giving notice the petitioner be not evicted and rest of his contentions were rejected by the Tribunal. He had also urged in earlier petition that he is entitled to conversion of his 10 bighas of non-acquired land for residential/commercial purpose and that the Tribunal had ignored the decision of the Revenue Appellate Authority dated 9.12.85. In my considered view, the decision of the Revenue Appellate Authority dated 9.12.85 (Ann. 3) was rendered in favour of the respondent No.4 (Sohanlal) in a suit which was neither filed by the petitioner nor he was a party to that suit, which in fact was filed by his brother Sohanlal (respondent No.4) who has disputed the claim of the petitioner in respect of the 10 bighas of land in dispute contending that the petitioner has no right, interest or title whatsoever for the disputed land inasmuch as disputes were raised by both of them in civil so also revenue suits. The petitioner has not disputed as to the suits having been filed against the respondent No.4 claiming compensation for the land in dispute which was dismissed by the trial court and the dismissal of his suit has attained its finality because the petitioner has not challenged the dismissal, the petitioner has also not disputed the fact of having gone in adoption to one Bhonrilal @ Bhanwarlal and challenged the will having been executed in favour of Sohanlal (respondent No.4) in off suits between brothers pending adjudication before civil/revenue courts in respect of 10 bighas of land in dispute over and in which he had been claiming his right, title and interest as would be evident from the documents (Ann. R-4/1 to R4/2, R.4/7 to R. 4/11). Obviously this court by its order dated 4.8.94 (Ann. R.4/15) dismissed petitioners writ petition No. 3931/94 observing that various facts being raised by the parties are disputed questions of facts and the decision of the JDA Tribunal was passed after taking into various written and oral evidence. The Tribunal vide its judgment dated 9.7.93 (Ann. 8) undoubtedly directed that the petitioner be not evicted without giving notice to him or without following the procedure. In the light of these directions, nothing remains to be further directed by this court. (11). Above all, the petitioner failed to make out a case so as to invoke extraordinary jurisdiction of this court to issue a writ of prohibition. It is not the case of the petitioner that the JDA against whom writ of prohibition is sought has been acting completely without jurisdiction. The petitioner has not cited any act of the JDA either against the directions of the Tribunal issued in its judgment dated 9.7.93 (Ann. 8) or without jurisdiction. No notice or order has been challenged or produced in this writ petition which smacks of any action on the part of the JDA without jurisdiction or authority of law being violative of any statute or the Constitution. Rather, as is evident from the material on record, its stand established that the facts brought in this writ petition are complicated, which being disputed questions of fact and, therefore, this court cannot go into and probe these disputed facts in its extraordinary jurisdiction. (12). Rather, as is evident from the material on record, its stand established that the facts brought in this writ petition are complicated, which being disputed questions of fact and, therefore, this court cannot go into and probe these disputed facts in its extraordinary jurisdiction. (12). In view of the fact that once the title, right and interest over the 10 bighas of land in dispute since pending final adjudication and decision in various revenue and civil off suits between the brothers (petitioner and respondent No.4), itself, is not established on record before this court, the petitioner is not entitled to any relief in this writ petition. Even the respondent No.4 himself has produced Tehsildars report dated 3.10.99 (Ann. R.4/12), which was sent to the SDO, Jaipur on the application of Nanu Lal (predecessor in title of aforesaid six khasras). The report (Ann. R.4/12) states that according to Nanulal, he has been in possession of 30 bighas 1 biswa of land but he was having parcha of 20 bighas 1 biswa of land, so he had been paying rent only of this 20 bighas of land and the rent for 10 bighas of land being Siwai Chak was not being paid by Sohanlal, which has caused loss to public exchequer since Samvat 2015. In view of this position wrung out from Tehsildars report itself (Ann. R.4/12) Nanulal was in possession of only 20 bighas 1 biswa of land so was paying rent for this 20 bighas 1 biswa of land and not for 10 bighas of Siwai Chak land since Samvat year 2015 where contrarily by judgment dated 9.12.85 (Ann. 3) of the Revenue Appellate Authority mutation of aforesaid six khasras was corrected showing land in total 37 bighas 1 biswa vide entry dt. 15.5.1987 (Ann. 4)-validity thereof is not challenged before this court but these facts cannot be eschewed as irrelevant for deciding this writ petition. Therefore, in my considered view, in the light of peculiar facts and circumstances referred to above, writ of prohibition cannot be issued in favour of the petitioner who has failed to make out a prima facie case establishing his right, title or interest over the 10 bighas of land in dispute in this writ petition or to invoke writ jurisdiction. Therefore, in my considered view, in the light of peculiar facts and circumstances referred to above, writ of prohibition cannot be issued in favour of the petitioner who has failed to make out a prima facie case establishing his right, title or interest over the 10 bighas of land in dispute in this writ petition or to invoke writ jurisdiction. However, I must observe that the JDA (respondent No.2) has failed to produce any document so as to show the steps taken in compliance of the decision of its Tribunal dated 9.7.93 (Ann. 8) for last six years for these 10 bighas of land in dispute either against the judgment dated 9.12.1985 (Ann. 3) of the Revenue Appellate Authority or in the light of Tehsildars report dated 3.10.79 (Ann. R.4/12) which certainly proves these 10 bighas of land in dispute as Siwai Chak land on account of the fact that Nanulal (predecessor in title and original Khatedar tenant of aforesaid six khasras) had not been paying rent to the government since Samvat year 2015. The JDA has also failed to explain as to why they are keeping silent for the action to be taken in compliance of judgment dated 9.7.93 (Ann. 3) by which the JDA was directed to evict the petitioner from the houses like thatched or cow sheds etc. constructed on the disputed land as referred to in the judgment, itself, after following the procedure and giving notice under the law. It shows that the JDA has also not been interested to conclude or resolve the controversy for ever. The JDA, itself, is responsible for having much complicated the matter while the JDA was already having aforesaid Tehsildars report and judgment of the JDA Tribunal in its favour. Be that as it may, the petitioner has no case in his favour. Be that as it may, the petitioner has no case in his favour in this petition for the relief claimed. (13). However, it is made clear that under the decision dated 9.7.93 the JDA Tribunal (Ann.3) which stood upheld by virtue of dismissal of petitioners earlier writ petition No. 3931/94 by this Court under its order dt. 4.8.94 (Ann. R.4/15), only residential house had been protected but not agricultural land. (13). However, it is made clear that under the decision dated 9.7.93 the JDA Tribunal (Ann.3) which stood upheld by virtue of dismissal of petitioners earlier writ petition No. 3931/94 by this Court under its order dt. 4.8.94 (Ann. R.4/15), only residential house had been protected but not agricultural land. It is also made clear that the dispute as to the title or interest over the land in dispute pending inter se between the brothers (petitioner and respondent No.4 or any others) in any of suits would, itself, not confer any right either to the petitioner or the respondent No. 4 in any manner rather would not debar the JDA (respondent No.2) to proceed further either under the JDA Act or the Land Acquisition Act so as to set at right the controversy for ever. (14). As a result of the above discussion, this writ petition must fail and is hereby dismissed with no order as to costs. Copy be sent to Commissioner JDA and also to the Chief Secretary of the State for necessary action.