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2006 DIGILAW 1756 (RAJ)

Rehman v. State of Rajasthan

2006-05-19

PREM SHANKAR ASOPA

body2006
Judgment Prem Shanker Asopa J.- That by this writ petition, the petitioners have challenged the order dated 112.1991 (Annexure-6) passed by Divisional Commissioner, Bikaner, whereby the revision petition filed by the private respondents under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (for short the Act of 1954) has been decided by setting-aside the order of the Chief Settlement Commissioner dated 211.1986 (Annexure-5) and further modifying the order of the Managing Officer dated 27.08.1981 (Annexure-1). 2. The facts in brief of the case are that the land in dispute of Khasra No. 142 measuring 8 bigha-4 biswa and Khasra No. 143 measuring 1 bigha 3 biswa situate in village Jotari Pipal, tehsil Pahari, district Bharatpur, was initially entered in the name of the husband of Smt. Panni who was grand mother of Petitioner No. 1 and the other petitioners are the legal-representatives of late Shri Motu, who was also grand son of Smt. Panni. The case of the petitioners is that in Samvat 2011 corresponding to the year 1955 Smt. Panni was recorded as Khatedar of he land and the petitioners were cultivating the said land. In Samvat 2012 the private non-petitioenrs got the land entered in their names as Pattedar and further subsequently Collector-cum-Managing Officer, Bharatpur, passed an order on 27.08.1981 declaring the private respondents to be Pattedar. Against the said order, the petitioners filed an appeal before the Revenue Appellate Authority-cum-Chief Settlement Commissioner, Jaipur, which was allowed on 211.1986 and the order of the Collector was set-aside with a further direction that the respondents be continued as Shikmi Kashtkar as earlier in respect of Khasra Nos. 142 and 143. Against the said order dated 211.1986, the private respondents filed a petition under Section 33 of the Act of 1954, wherein the Petitioner No. 1 and Motu were impleaded as private respondents. The said petition was allowed as indicated above and it appears that the order of the Chief Settlement Commissioner dated 211.1986 has been referred as 211.1986 due to inadvertence. 3. The said petition was allowed as indicated above and it appears that the order of the Chief Settlement Commissioner dated 211.1986 has been referred as 211.1986 due to inadvertence. 3. Against the said Judgment dated 112.1991 the Petitioner No. 1 and legal representatives of Motu, filed the present writ petition wherein one of the ground taken was that Motu died on 112.1988 during the pendency of the petition but his legal representatives were not brought on the record and on merit the Collector has not given the opportunity of hearing to the petitioners who were cultivating the land since long while passing the order dated 211.1981 and in the revenue record, names of grand-parents have been entered as Gair-Maursidar. The further case of the petitionrs is that Khatedari rights have been conferred upon their grand-mother Smt. Panni in Samvat 2011. Therefore, the orders passed by the Collector and Divisional Commissioner, are illegal. 4. The respondents have filed reply to the writ petition and submitted that the fact as well as the date when Motu died has not been disclosed by the respondents (present petitioners) before the Divisional Commissioner. As regards merit, they have submitted that the petitioners have not challenged the complete order dated 27.08.1981 and they only challenged the part order so far as it relates to the removal of the entries as Shikmi Kashtkar and conferring the Khatedari right on Harsukh and Ram Sahai, but the ground of Patta has not been challenged. The respondents have also stated that the Shikmi Kastkar means sub-tenants and there is no concept of sub-tenancy under the Act of 1954. The Divisional Commissioner has rightly modified the order of the Collector. 5. The submission of the Counsel for the petitioners is that it was obligatory on the part of the private respondents to implead the legal-heirs of Motu as a party in the petition under Section 33 of the Act of 1954 and in absence of which the whole petition abates. The further submission of the Counsel for the petitioners is that the grand mother/great grand mother of Petitioner No. 1/the legal heirs of Motu became Khatedars in the year 1955 and the initial order passed by the Collector whereby they have been deprived of their Khatdari has been passed behind their back. 6. The further submission of the Counsel for the petitioners is that the grand mother/great grand mother of Petitioner No. 1/the legal heirs of Motu became Khatedars in the year 1955 and the initial order passed by the Collector whereby they have been deprived of their Khatdari has been passed behind their back. 6. The submission of the Counsel for the respondents is that it was incumbent upon the petitioners to disclose the date of death before the Divisional Commissioner. But no such date was disclosed. Even in the petition also the date of death has not been specified. As regards merit, the submission of the Counsel for the respondents is that a part order has been challenged but the main order of grant of patta has not been challenged. Otherwise also the respondents have not produced any revenue record wherein the Khatedari Rights have been conferred upon Smt. Panni or any order of the competent authority for declaring the said right. The respondents have also submitted that the sub-tenancy is not covered by the Act of 1954 and otherwise also the sub-tenancy is continued with the consent of tenant. 7. I have gone through the file of writ petition and considered the rival submissions made by Counsel for both the parties. 8. It is well-settled position of law that in case of the death of a co-non-petitioner, the proceedings can not be continued unless the legal representatives are brought on record and if the same are not brought on record then the proceedings and final order is null and void being against dead person. 9. Here in the instant case Motu died on 112.1988, therefore, it was incumbent upon the private respondents, who are petitioners before the Divisional Commissioner to bring the legal representatives on record. It is stated at bar that at present the Divisional Commissioner, Bharatpur, is vested with the powers of hearing petition under Section 33 of the Act. 10. In view of the above settled position of law, I need not to enter into the merit of the case. 11. The writ petition is partly allowed. The order of the Divisional Commissioner, Bikaner, dated 112.1991 (Annexure-6) is set-aside. The matter is remanded back to the Divisional Commissioner, Bharatpur, to decide the matter afresh after providing proper opportunity of hearing to both the parties. 11. The writ petition is partly allowed. The order of the Divisional Commissioner, Bikaner, dated 112.1991 (Annexure-6) is set-aside. The matter is remanded back to the Divisional Commissioner, Bharatpur, to decide the matter afresh after providing proper opportunity of hearing to both the parties. Either party is free to move an application for taking L.Rs of Motu on record or implead them as parties. The matter be finally decided within a period of three months from the date of production of certified copy of this order.