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2005 DIGILAW 1614 (RAJ)

Union of India v. The Board of Revenue

2005-06-01

K.S.RATHORE

body2005
Judgment K.S. Rathore, J.-Since, common controversy involved in all these five writ petitions, these are being decided by this common Judgment . The facts of S.B. Civil Writ Petition No. 4401 are taken as a leading case. 2. The aforesaid writ petition is directed against the orders dated 20.06.2001; 10.01.2003 and 19.08.2003 passed by the S.D.O. Ist; Revenue Appellate Authority and Board of Revenue respectively. 3. The case of the petitioner is that vide letter dated 9th October, 1950 the Army Headquarter QMG Branch convened Board of Officers for the purpose of making preliminary survey of all State Forces assets available in Rajasthan and making a detailed inventory of these assets such as accommodation installations, stores, furniture and fittings etc. and further to recommend if there is any accommodation fit for use by a Company, Battalion or Brigade and if facilities for the same exist or not. 4. The Board of Officers in its meeting dated 110.1950 decided that they would first take up the list given by the Force Head Quarter to the Chief Secretary, Rajasthan, Jaipur and total land measuring 3604.14 bighas of land was handed over to Defence at Jaipur which included lands of Gothic Lines, Haldighat Lines, Military Hospital and Rifle range and in this regard handing/taking over certificate dated 012.1950 was prepared by the Board of Officer and the aforesaid land recorded in the Military Land Register. 5. The petitioner initiated action under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short, the PPE Act, 1971) against the respondents in the year 1961 and show cause notice was also issued on 111.1962 under Sub-section 4(1) of the PPE Act, 1971 asking their explanation. In response to the show cause notice dated 111.1962, the respondents submitted their reply alongwith certain documents to show that they are original khatedar owner of the disputed land. After perusing the reply submitted on behalf of the alleged encroacher they were asked vide letter dated 23.02.1967 to produce documentary or other evidence in respect of the claim of the respondents. 6. The settlement officer Jaipur was also issued notice on 211.1967 and 01.05.1968 whereby he was directed to produce the record pertaining to the khatedari Parcha No. 2015 and 2034, Khata No. 5/2 in respect of respondents and others encroachers. 7. 6. The settlement officer Jaipur was also issued notice on 211.1967 and 01.05.1968 whereby he was directed to produce the record pertaining to the khatedari Parcha No. 2015 and 2034, Khata No. 5/2 in respect of respondents and others encroachers. 7. During the pendency of the eviction proceedings, the respondents served a notice under Section 80 of , CPC, on 28.02.1973 and after serving notice filed a suit for permanent injunction before the Assistant Collector and Executive Magistrate (i.e. Sub Divisional Officer) alongwith an application for seeking temporary injunction under Section 212 of Rajasthan Tenancy Act, 1955 read with order 39 Rules 1 and 2 and Section 151 of , CPC, was also filed. 8. The Sub Divisional Officer on 21.07.1975 framed the following issues:- ¼1½ vk;k vkjkth ewrukft;k fefyVªh ;k fMQsUl xouZesUV vkWQ bZafM;k dh Hkwfe gS vkSj jktLFkku Ñf "k vf/kfu;e ds vuqlkj ,slh Hkwfe ij eqn;ku dks dksbZZ gd [kkrsnkjh ugha gks ldrk ¼ izfroknh½ ¼2½ vk;k ifCyd fizehlst ,DV 1971 dh ekStwnxh esa nkok djus dk vf /kdkjh ugha gS ¼izfroknh½ ¼3½ vk;k eqn~;ku Hkwfe fookn xzLr ij nqLokrh dkfcy o [kkrsnkjh dkrdkj gS o eqdnesa ij D;k vlj iMs+xk ¼oknh½ ¼4½ vk;k eqn~;ku gqDe bLr~ukbZ nok;h gkfly djus dk fdlh nknjyh ds eqLrgd gSA ¼oknh½ 9. The Assistant Collector (SDO) decided the suit vide Judgment dated 07.08.1975. Being aggrieved and dissatisfied with this decision passed by the SDO, the respondents and other similarly situated persons filed an appeal under Section 9 of the PPE Act, 1971 before the Revenue Appellate Authority Jaipur under Section 223 of the Rajasthan Tenancy Act, 1955 and the appeal was allowed on 18.03.1983 by which the Revenue appellate Authority remanded the matter to decide the revenue suit afresh. 10. In compliance to the Judgment dated 18.03.1983 the case was remanded to Sub Divisional Officer. The respondents filed application under Section 212 of Rajasthan Tenancy Act, 1955 for seeking temporary injunction but the same was rejected on 05.03.1986 and this order was also challenged by the respondents by way of filing appeal before the Revenue Appellate Authority which was partly allowed vide order dated 31.01.1987. 11. The Revenue Appellate Authority has remanded the case again to the SDO directing the SDO to discuss the entire evidence and to pass speaking order afresh. 12. 11. The Revenue Appellate Authority has remanded the case again to the SDO directing the SDO to discuss the entire evidence and to pass speaking order afresh. 12. The SDO after considering arguments of the parties the application for temporary injunction was dismissed on 011.1993 and the order of rejection of temporary injunction dated 011.1993 passed by the SDO was assailed before the Revenue Appellate Authority by way of filing appeal and the Revenue Appellate Authority passed an interim order dated 211.1993 in favour of the respondents. 13. The S.D.O. Jaipur decided the suit vide Judgment and decree dated 20.06.2001. Being aggrieved and dissatisfied with the Judgment and decree passed by the S.D.O. Dated 20.06.2001, the petitioner Union of India preferred appeal before the Revenue Appellate Authority. 14. The Revenue Appellate Authority dismissed the appeal vide its Judgment dated 10.01.2003 which was challenged by the petitioner by way of second appeal under Section 224 before the Board of Revenue and the Board of Revenue vide its Judgment dated 19.08.2003 dismissed the second appeal. 15. The Judgment s passed by the SDO dated 20.06.2001, Revenue Appellate Authority dated 10.01.2003 and Board of Revenue dated 19.08.2003 are assailed by the petitioner in these writ petitions on the ground that all the Courts below have exceeded jurisdiction and passed the orders against the mandatory provisions of Section 15 of the Act of 1971. 16. Learned Counsel for the petitioner referred Section 2(e)and 15 of the Act of 1971 which reads as under:-"2(e) Public premises means-"any premises belonging to, or taken on lease or requisitioned by, or on behalf of , the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorized Occupants) Amendment Act, 1980 under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; "Section 15 Bar of jurisdiction "No Court shall have jurisdiction to entertain any suit or proceeding in respect of- .a. the eviction of any person who is in unauthorized occupation of any public premises, or .b. the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under Section 5A, or .c. thedemolition of any building or other structure made, or ordered to be made, under Section 5B, or .cc. The sealing of any erection or work or of any public premise under Section 5C, or .d. the arrears ofrent payable under Sub-section (1) of Section 7 or damages payable under Sub-section (2), or interest payable under Sub-section (2A); of that section, or .e. the recovery of- .(i) costs of removal of any building structure or fixture or goods, cattle or other animal under Section 5A, or .(ii) expenses of demolition under Section 5B, or (iii) costs awarded to the Central Government or statutory authority under Sub-section (5) of Section 9, or (iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority" 17. The Judgment are also challenged by the petitioner on several ground including the fact that prior to commencement of Rajasthan Tenancy Act, 1955 the provisions of Jaipur Tenancy Act, 1945 were applicable to land in dispute. Section 9 of the Jaipur Tenancy Act, 1945 states that Khatedari rights shall not accrue in land at present or which may hereafter be set apart for military purposes. 18. Per contra, learned Counsel appearing for the respondents submitted that the facts narrated by the petitioner are not correct and raised preliminary objection regarding maintainability of the present writ petition as it is a settled law that order of the Revenue Board which is a Tribunal can be challenged by way of writ petition only when the impugned order is either perverse or is not based on any evidence or is grossly illegal or is based on complete misconception of law. The averments made by the petitioners do not allege that the Judgment of the Revenue Board was liable to be interfered with on any one of the above grounds. 19. It is also contended that the petitioners are guilty of suppression of the material fact in the writ petition and has set up totally different case from the one which was agitated before the trial Court. 20. Since the petitioner did not come with the clean hands no relief can be granted as claimed by the petitioner and the writ petitions are based solely on the ground of application of bar under Section 5 of the PPE Act, 1971 21. 20. Since the petitioner did not come with the clean hands no relief can be granted as claimed by the petitioner and the writ petitions are based solely on the ground of application of bar under Section 5 of the PPE Act, 1971 21. It is also contended that all the subordinate Courts i.e. Sub Divisional Officer, Revenue Appellate Authority and Board of Revenue have given concurrent finding and in case a concurrent finding is given no challenge to the decision can be made by way of a writ till there is total illegality about the exercise of jurisdiction. 22. The survey which is alleged to be prepared by the petitioner on 012.1950 does not disclose that the land of disputed khasra numbers were handed over to the petitioners Rather on the contrary the papers attached with the certificate show that when the so-called handing over/taking over took place and no agriculture land was handed over to them and the land which was handed over to them did not stand the demarcated and as such without demarcation of the land there could not have been any handing over/taking over. 23. It is also submitted that the respondents are not encroachers but they are in legal possession of the disputed land since the time of their ancestors. 24. Learned Counsel for the respondents emphatically submitted that Section 15 of the PPE Act, 1971 in any manner has no application to the instant case and to this effect placed reliance on the Judgment rendered by this Court reported in 1986 RLR page 966 wherein this Court has held that the "Estate Officer is not competent to decide complicated and substantial questions of disputed ownership of the premises in the summary manner under the PPE Act, 1971. Such question can only be decided by the civil Court i.e. by revenue Court. As per admission of the petitioners and as per their admitted documents there was a dispute about the ownership of the disputed property and the dispute was complicated one and questions which arose therein were substantial questions and as such Revenue Court was only the competent Court". 25. In addition to the submissions made herein above respondent further submitted that the issue No. 2 regarding the application of the PPE Act, 1971 was framed on the basis of pleadings of the petitioners and burden of proving it was on the petitioners. 25. In addition to the submissions made herein above respondent further submitted that the issue No. 2 regarding the application of the PPE Act, 1971 was framed on the basis of pleadings of the petitioners and burden of proving it was on the petitioners. But the petitioners have failed miserably to prove it as their sole state witness DW Mehandi Datta does not say a word in support of it, on the contrary he says that action about taking of possession was done by the State Government through A.D.M. 26. The petitioners have also not produced any notices or proceedings under the PPE Act, 1971 which were the best evidence. In absence of proof of this issue and in view of the statement of Mehandi Datta that action about taking possession was taken by the Rajasthan Government through its ADM and utterly failed to establish that they have taken the possession. Contrary rather they have admitted that respondents are continuously in possession of the land in question. 27. Heard rival submissions of the respective parties. I have carefully perused the provisions of PPE Act, 1971. The definition of public premises which means any premises belonging to, or taken on lease or requisitioned by, or on behalf of , the Central Government and includes any such premises which have been placed by that Government whether before or after the commencement of the Public Premises (Eviction of Unauthorized Occupants) Amendment Act, 1980 under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat. 28. Applying the definition given under Section 2(e), the land herein cannot be said to be public premises as neither it has been taken on lease or requisitioned by, or on behalf of , the Central Government. It is under the impression that the land which has been given to the petitioner for the purpose of setting up the Army Headquarter which include the land in question also and, therefore, presuming that this land belongs to the petitioner, the petitioner initiated action under the PPE Act, 1971. 29. Since much emphasis has been given to Section 15 which is for Bar of Jurisdiction which stipulates that no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises. 30. 29. Since much emphasis has been given to Section 15 which is for Bar of Jurisdiction which stipulates that no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises. 30. Now the question arises whether the provisions of PPE Act, 1971 are applicable to the instant case or not. 6.31. Upon careful perusal of the orders passed by the Courts below as the SDO, Revenue Appellate Authority and Board of Revenue have categorically stated that the provisions of PPE Act, 1971 are not attracted in the instant case as the petitioner utterly failed to prove this fact that the land in question is a part of the land which was given for setting up the Army headquarter. And since the writ petitions mainly based on the application of bar under Section 15 of the PPE Act, 1971, the issue decided against the petitioner and the petitioner did not challenge the decision of the RAA regarding issue No. 2 and they themselves submitted to the jurisdiction of revenue Court and as such they are bound by the decision of RAA and are stopped by challenging the jurisdiction of revenue Court regarding issue involving in the case. 7.32. Upon perusal of the contents of the writ petition and the original suit it appears that certain grounds are taken in the writ petition at the first time which were not raised before the Courts below and it is also not disputed that the respondents are in possession of the land as evident by the action initiated by the petitioner under the PPE Act, 1971 against the respondents to vacate them from the land in question which itself indicated that the respondent are in possession. 8.33. Upon careful perusal of the orders passed by the SDO, RAA and Board of Revenue I find no illegality or error apparent on the face of the record and it is not a such case where concurrent finding given by the Courts below requires any interference while exercising power under Article 226 of the Constitution. 34. Consequently, the writ petitions fails and are hereby dismissed with no orders as to cost.