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2001 DIGILAW 1847 (RAJ)

State of Rajasthan v. Shyo Chand

2001-11-24

S.K.KESHOTE

body2001
Honble KESHOTE, J.–These are identical matters arising out of and from the same judgment of the Board of Revenue, Rajasthan, Ajmer (hereinafter, referred as the `Board), the same are taken up for hearing together and are being decided by this common order. (2). Heard learned counsel for the parties. (3). With the consent of learned counsel for the parties, the three documents produced by the learned counsel for the petitioners are taken on record. (4). Otherwise also these are the orders or judgments passed in these matters by the District Collector, Jhunjhunu and the Board and the application filed by the petitioners before the Collector, Jhunjhunu u/Sec.82 of the Rajasthan Land Revenue Act, 1956 and Rajasthan Forest Act, 1953 and there cannot be any objection by the respondents against taking of the same on record. These documents are marked as Court document No.1, Court document No.2 and Court document No.3 respectively for the reference sake in the judgment. (5). The facts of the case are that before the District Collector, Jhunjhunu 30 applications were filed by the Deputy Conservator of Forest, Jhunjhunu objecting to the decisions given by the Assistant Forest Settlement Officer, Jaipur whereby big chunks of forest land were excluded from the forest boundary under Rule 12(4) of the Rajasthan Forest Settlement Rules, 1958, considering that the non-applicants therein and the respondents herein are in continuous old possession over the same. (6). These applications were filed u/Sec.82 of the Rajasthan Land Revenue Act, 1956. It is averred that the lands in dispute were transferred from the Revenue Department to the Forest Department vide Government order No.D.24178/F/15(130) Rev/A/56 dated 2.5.1959 and the Government had issued notifications u/Sec.29 of the Rajasthan Forest Act, 1953 on 9.1.1969 and other dates (all before the year 1970) declaring these lands as reserve forest lands. For more than 15 years none of the non-applicants filed any objections u/Sec.6 of the Forest Act against this declarations of the Government. These respondents at a much later stage established their illegal possession and the Assistant Forest Settlement Officer favoured them by his orders which were made in the year 1980. For more than 15 years none of the non-applicants filed any objections u/Sec.6 of the Forest Act against this declarations of the Government. These respondents at a much later stage established their illegal possession and the Assistant Forest Settlement Officer favoured them by his orders which were made in the year 1980. It is laid down in the applications that most of the respondents had never paid any land revenue and that they had not produced any revenue record in support of their claims still the Assistant Forest Settlement Officer based his judgments merely on the oral evidence produced by the respondents and in blantant disregard of the existing revenue record wherein the names of the non-applicants had not found any mention. (7). Another grievance has been made in the applications that the Assistant Forest Settlement Officer gave no notice of the objections filed by the respondents to the Forest Officer or to the Tehsildar and that they were also not given intimation of the orders made. (8). The applications filed by the Deputy Conservator of Forest were objected by the respondents. A preliminary objection has also been raised that if the applications are treated as appeals u/Sec.17 of the Forest act, these are time barred. If these are treated as revisions with reference to Section 82 of the Rajasthan Land Revenue Act, 1956, the Collector, Jhunjhunu had no jurisdiction to hear the same inasmuch as the Assistant Forest Settlement Officer was not subordinate revenue officer to the Collector. The common thrust of their arguments was on the point relating to limitation. These applications were decided by the Collector, Jhunjhunu under its order dated 31.3.87 and the reference of the matter has been made to the board for taking action u/Sec.82 read with Section 9 of the Rajasthan Land Revenue Act, 1956. This order of the Collector, Jhunjhunu is on the record of this petition as Court document No.2. (9). In para No.8 of the order the Collector, Jhunjhunu has given out the reasons for entertaining those applications though filed after a considerable delay. This part of the order reads as under:- ``I have given my thoughtful consideration to the arguments advanced on behalf of all the non-applicants and the applicants. This fact cannot be denied that proclamation declaring the disputed lands as comprising a reserve forest was made as far back as 1969. This part of the order reads as under:- ``I have given my thoughtful consideration to the arguments advanced on behalf of all the non-applicants and the applicants. This fact cannot be denied that proclamation declaring the disputed lands as comprising a reserve forest was made as far back as 1969. Fore more than fifteen long years no objections were filed. Then all the sudden there was a separate of objections and the learned Asstt. Forest Settlement Officer obliged them in utter disregard of Sec.16 of the Rajasthan Tenancy Act which forbids regularisation of forest land in the name of any trespasser how-so-over old. Since the impugned orders are patently illegal, I cannot but invoke the powers of superintendence of the Board of Revenue with the hope that when a blatant illegality in an order of a subordinate court is brought to its notice there is ample justification for the Board to proceed under its revisionary powers to correct the error. (10). The references were came to be decided by the Board under its order dated 4.8.1989. The Board held that the Assistant Forest Settlement Officer does not fall under the category of revenue officer or revenue Court and the Collector has no jurisdiction to make the reference against his order to the Board of Revenue u/Sec.82 of the Rajasthan Land Revenue Act, 1956. All the references were rejected but matter was sent to the Collector, Jhunjhunu with the direction that the same may be treated to be appeals and to decide the same on merits. The relevant portion of the order of the Board of Revenue contained in para No.6 thereof reads as under:- ^^vr% ;s nksuksa jsQjsUl fujLr fd;s tkrs gSA i=koyh iqu% ftyk/khk >qa>quw dks izfrizsf"kr dh tkdj funsZfkr fd;k tkrk gS fd muds lEeq[k vihyksa dks lqudj os xq.kkoxq.k ij fu.kZ; djsaA** (11). This documents is on record as Court document No.3. (12). Court document No.1 is the application filed by the Deputy Conservator of Forest, Jhunjhunu before the Collector u/Sec.82 of the Rajasthan Land Revenue Act, 1956. In this application in para No.7 thereof a statement has been made that the Assistant Forest Settlement Officer, Jhunjhunu had not given the information of decision taken by him on 9.1.80 to the department in time. (13). In this application in para No.7 thereof a statement has been made that the Assistant Forest Settlement Officer, Jhunjhunu had not given the information of decision taken by him on 9.1.80 to the department in time. (13). The Collector, Jhunjhunu decided the mater under its judgment dated 22.9.90 and the same were dismissed only on the ground of limitation meaning thereby the merits of the matters have not been referred what to say to give any decision thereon. (14). Against this judgment of the Collector, Jhunjhunu the petitioners preferred an appeal before the Revenue Appellate Authority, Sikar and the same were came to be rejected on the ground of jurisdiction. The Revenue Appellate Authority, Sikar rejected those appeals under its order dated 20.6.92. The petitioners filed revision applications before the board and those revision applications were came to be decided by the Board under its order dated 7.8.95. The Board also has not cared to touch the merits of the matter and confirmed the order of the Collector, Jhunjhunu rejecting the applications filed by the petitioners on the ground of limitation. (15). The State of Rajasthan is an impersonal machinery and its officers have no personal interest in the matter nor these are their personal matters had naturally that much of care, caution, pre-caution and pains can be taken by them in the Government matters. In fact and substance after having the experience of more than seven years at Bench I am of the opinion that in such matters the State Government has to be taken at par with minor, orphan or disabled or a widow. Therefore, certain amount of latitude is not impermissible. If appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffer is public interest. The factors which are peculiar to and characteristic of functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice oriented process. (16). Their Lordships of the Supreme Court in catena of decisions held that in case the matters filed by the State Government are dismissed only on the ground of limitation by the courts then it may result in sufferance of the public cause. (16). Their Lordships of the Supreme Court in catena of decisions held that in case the matters filed by the State Government are dismissed only on the ground of limitation by the courts then it may result in sufferance of the public cause. The Government is there for the public causes and in such matters where the appeals, revisions or references are not filed within prescribed period of limitation the court or authorities or tribunal while considering the question of condonation of delay may not go by this abstract theory that the delay is not satisfactorily explained. In the matter where the courts, tribunals or authorities considers the question of condonation of delay in filing of appeal, revision or reference etc. by the State Government, their approach should have been pragmatic and not pendantic. (17). While considering the question of condonation of delay which is there is filing of the revision, appeal or reference by the State Government the Court, tribunal or authority has to first consider the merits of the matter and where they are satisfied that there is a good case on merits the rule is to condone the delay. The courts are to decide the matters on merits unless the case is hopelessly without merit. The delay if is not condoned in such matter it would result in public mischief on skillful management of delay in the process of filing the appeal. By this delay in filing of the matter and rejection thereof on the ground of limitation individually none of the officers of the State Government has to suffer but sufferer are the public at large and that is how ultimately it may lead to grave miscarriage of public justice and that makes a distinction and category of the litigant State Government here in these matters to the ordinary litigants. Fruitfully reference may have to two decisions of the Supreme Court in the cases of Special Tehsildar, Land Acquisition, Kerala vs. K.V. Ayisumma (1) and State of Haryana vs. Chandra Mani & Ors. (2). (18). In these matters it is unfortunate that none of the authorities the Collector, Jhunjhunu or the Board has touched the merits of the matter and only on the question of limitation the delay was not condoned and the matters were decided against the State. (2). (18). In these matters it is unfortunate that none of the authorities the Collector, Jhunjhunu or the Board has touched the merits of the matter and only on the question of limitation the delay was not condoned and the matters were decided against the State. If we go by the nature of the dispute and point involved in these matters, it is certainly a public cause. This forest land is alleged to have been grabbed by these respondents. The area where these lands are situated is declared reserve forest. It is in the public interest to balance ecology or to control the pollution reserved forest are to be there. But in case this approach taken in these matters by the revenue Courts affirmed by the Court it is certainly adversely affect the public at the cost of few persons, the respondents herein. (19). The Collector, Jhunjhunu and the Board have totally overlooked the important aspect of the matter. Relevance of the filing of the application u/Sec.5 of the Limitation Act, 1964 for condonation of delay was not there in these matters. It was not occasion or necessary for the State to file such an application in these matters. It is not the case where the State Government filed appeals before the Collector, Jhunjhunu. Where the appeals are not filed within the prescribed period of the limitation an application u/Sec.5 of the Limitation Act is to be filed, but the petitioners filed the applications u/Sec.82 of the Rajasthan Land Revenue Act, 1956 and enclosed to it they were not required to file any application u/Sec.5 of the Limitation Act, 1964. Otherwise also in the application filed by the respondents u/Sec.82 of the Rajasthan Land Revenue Act, 1956 explanation is given for the delay. So it is not the case nor it can be said that they delay has not been explained and only in case where on considering the matter on merits he revenue court finds that the petitioners have no case on merits then only the matter could have been dismissed on the ground of limitation. At the cost of repetition it is to be stated that none of the revenue courts has cared and considered the merits of the matter. So it is strictly speaking not the case where the petitioners have not furnished any explanation for this delay. At the cost of repetition it is to be stated that none of the revenue courts has cared and considered the merits of the matter. So it is strictly speaking not the case where the petitioners have not furnished any explanation for this delay. Substance and not form is important in such matters where the question of the public interest and justice involved. (20). Where we go by the substance of the matter otherwise also it is difficult to accept that the petitioners have not furnished explanation for this delay in filing of the applications now the appeals before the Collector, Jhunjhunu. (21). The Collector, Jhunjhunu as well as the Board have overlooked an important fact and I am constrained to state that the petitioner and the respondents were not treated similarly or on same footing or the same approach. In the case of the respondents though they could have filed their objections and could have been given the relief after 17 years of the notification of the reserve forest but in the case of the petitioners because it is unfortunately State its own officers had made this approach. The approach and the decisions given by the revenue courts in these matters are difficult to appreciate. (22). The matter can be examined yet from another aspect. here the Board itself decided earlier that the reference applications filed by the petitioner before the Collector, Jhunjhunu were not maintainable but the chapter was not close and reason is very obvious as it relates to the public interest or public cause and justice. The board has sent the matters back to the Collector, Jhunjhunu with the direction to consider these matters as appeals and decide the same on merits (emphasis provided). This order of the board clinches the issue meaning thereby it was not permissible nor the board has left any scope whatsoever for the respondents to raise the objection of limitation in filing of the appeals. This judgment was inter parties and it is binding on them. Once the Board of Revenue has not left the matter nor the respondents have been granted any liberty by the board it was not open to them to raise this plea and moreso it is not permissible for the Collector, Jhunjhunu to reject these appeals on the ground of the limitation. Once the Board of Revenue has not left the matter nor the respondents have been granted any liberty by the board it was not open to them to raise this plea and moreso it is not permissible for the Collector, Jhunjhunu to reject these appeals on the ground of the limitation. The Board has committed same error and it totally ignored its own earlier order and affirmed the order passed by the Collector Jhunjhunu. (23). As a result of the aforesaid discussions, these petitions succeeds and the same are allowed. The order of the Collector, Jhunjhunu dated 22.9.90 (Annex.2), order dated 7.8.1995 (Annex.3) are quashed and set aside and the matters are remanded back to the Collector, Jhunjhunu with the direction to decide the same on merits. These are the old matters and the Collector, Jhunjhunu is directed the decide the same within a period of six months from the date of receipt of writ of this order. The respondents are directed to present themselves before the Collector, Jhunjhunu on 21.12.2001.