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Rajasthan High Court · body

2007 DIGILAW 525 (RAJ)

Subhash Chandra v. State of Raj.

2007-03-09

R.N.ARVIND

body2007
Honble Arvind, M.—The above two appeals have been filed by the appellants under Section 76 of the Rajasthan Land Revenue Act, 1956 against the order of the learned Revenue Appellate Authority, Hanumangarh dated 22.7.2002 passed in appeal No. 36/2002 and 37/2002, respectively. The facts and the legal points involved in both the appeals are same and, therefore, they are being decided by one order. The copy of the judgment be placed on each file. 2. The facts of the case in brief are that the Additional Collector, Hanumangarh passed two orders in respect of the land in question measuring 27 bighas and 28 bighas, total land 55 bighas whereby he ordered to resume the land in favour of the State vide his order dated 10.4.2002. The order of the Additional Collector dated 10.4.2002 was challenged before the learned Revenue Appellate Authority, Hanumangarh by the appellants in appeal Nos. 36/2002 and 37/2002. Both the appeals were allowed by the learned Revenue Appellate Authority vide his order dated 28.5.2002 and the order of the Additional Collector dated 10.4.2002 was set aside and it was ordered that the land in question is ordered to be recorded as the khatedari land of the appellants and the status of the land as it existed before is restored. This order was challenged by the State before the Board of Revenue. The second appeal filed by the State was party allowed and the matter was remanded to the learned Revenue Appellate Authority with the directions that the two appeals bearing No. 36/2002 and 37/2002 be decided along with two other appeals bearing No. 1/2002 and 2/2002 bearing heading Devendra Bohra and others vs. State of Rajasthan. 3. That thereafter the learned Revenue Appellate Authority partly allowed all the four appeals vide his impugned order dated 22.7.2002 and the matter was remanded to the Additional Collector (Jagir), Hanumangarh for deciding the matter after provided proper opportunity of hearing to the rival parties. 4. The appellants have challenged the order of the learned Revenue Appellate Authority dated 22.7.2002 on the ground that the land in question is the Khudkasht land of Late Shri Ramchandra and Jai Narain and the present appellants are the legal representatives of the original khatedar. 4. The appellants have challenged the order of the learned Revenue Appellate Authority dated 22.7.2002 on the ground that the land in question is the Khudkasht land of Late Shri Ramchandra and Jai Narain and the present appellants are the legal representatives of the original khatedar. After coming into force of the Rajasthan Zamindari and Biswedari Abolition Act, 1959 with effect from 1.11.1959, the land in question was declared as the personal property of late Shri Ramchandra and Jai Narain under Section 6 of Rajasthan Zamindari and Biswedari Abolition Act, 1959. The Assistant Collector (Zamindari and Biswedari), Sriganganagar made the order dated 20.11.1961 and the same was communicated to the Tehsildar, Hanumangarh on dated 21.11.1961. It has also been argued by the learned counsel of the appellants that thereafter again the proceedings of the resumption of tenancy was initiated by the State before the Collector, Sriganganagar. The Collector, Sriganganagar vide his order dated 12.11.1971 dropped the proceedings on the ground that the land has been already declared as the khatedari land of the petitioners vide order of Assistant Collector (Zamindari and Biswedari), Sriganganagar dated 20.11.1961. Consequently the order of the Assistant Collector (Zamindari and Biswedari) dated 20.11.1961 has attained finality. 5. The learned counsel for the appellants has further submitted that in compliance of the order of the Assistant Collector dated 20.11.61, the Assistant Settlement Officer, Suratgarh vide his order 29.9.1977 recorded the land in question as the khatedari land of Shri Ramchandra and Jai Narain. Thereafter the Additional Collector vide his order dated 10.4.2002 ordered to record the land in question in favour of the State vide his two separate orders dated 10.4.2002. In file No.5/94, the Additional Collector ordered the resumption of 26.16 bighas land and in another case file, he recorded to resume 27 bighas land and consequently the two appeals No.36/2002 and 37/2002 were filed before the learned Revenue Appellate Authority. The learned counsel of the appellants has submitted that the order passed by the Assistant Settlement Officer dated 29.9.1977 has wrongly been set aside by the Additional Collector on the ground that the Settlement authorities have no jurisdiction to declare the land in question as the khatedari land of the appellants. The learned counsel of the appellants has submitted that the order passed by the Assistant Settlement Officer dated 29.9.1977 has wrongly been set aside by the Additional Collector on the ground that the Settlement authorities have no jurisdiction to declare the land in question as the khatedari land of the appellants. It has also been submitted by the learned counsel of the appellants that the Revenue Appellate Authority has erred in remanding the case to the Additional Collector inspite of the fact that there was no error in the judgment of the learned Revenue Appellate Authority dated 28.5.2002 whereby the appeal was allowed in toto. The Board of Revenue simply ordered to decide four appeals together and therefore, the Revenue Appellate Authority had no jurisdiction to remand the case and he should have allowed the appeal in toto. It was further submitted that he had no jurisdiction to review or amend the decision passed by his predecessor dated 28.5.2002. It was further submitted that the Court should not remand the case when there is sufficient material available for the final decision of the appeal. He has placed reliance on the decision of Honble Supreme Court decided in case of Ashwini Kumar K. Patel vs. Upendra J. Patel reported in 1993(3) S.C.C. 161 wherein the Honble Supreme Court has held that the appellate Court should not ordinarily remand the case because it considered the reasoning of the lower Court to be wrong as the remand of case causes delay and if the material is available before it, the Court should exercise its discretion and decide the appeal on merits. He further placed reliance on the Division Bench decision of this Honble High Court given in case of Jagdish vs. Sheo Karan reported in 2001 R.B.J. 75 wherein the Honble Division Bench has held that when sufficient material is available on record, the appellate Court should have decided the appeal on merits instead of remanding it to the trial Court. 6. The learned Advocate Shri Satish Pareek has supported the decision passed by the learned Revenue Appellate Authority dated 22.7.2002. He has stated that the Settlement authorities have no right to grant khatedari rights and therefore, the Additional Collector has rightly ordered for the resumption of land in favour of the State and the Revenue Appellate Authority has rightly remanded the case for hearing all the concerned parties. 7. He has stated that the Settlement authorities have no right to grant khatedari rights and therefore, the Additional Collector has rightly ordered for the resumption of land in favour of the State and the Revenue Appellate Authority has rightly remanded the case for hearing all the concerned parties. 7. Learned Government Advocate has supported the decision of the Asstt. Collector and has argued that the land has rightly been assumed in favour of the State Government. 8. I have heard the learned counsels of the rival parties and perused the record of the case carefully. The copy of the order passed by the Assistant Collector (Zamindari and Biswedari) is available on the file wherein theAssistant Collector (Zamindari and Biswedari), Sriganganagar has declared the land in question measuring 53.10 bighas as the private property of Shri Ramchandra and Jai Narain Ss/o Shri Govind Ram and a letter to this effect was dispatched to the Tehsildar, Hanumangarh for compliance. This decision of the Assistant Collector (Zamindari and Biswedari) has not been challenged before any Court of law till today and has attained the finality. Not only this, the Collector, Sriganganagar has again held vide his order dated 12.1.71 that the petitioner has already been given khatedari rights vide order of Assistant Collector (Zamindari and Biswedari), Sriganganagar dated 20.11.1961 and, therefore, the proceedings are dropped. So there are two such orders available on the file which have attained finality. These orders have not been challenged till today before any Court of law by way of appeal, revision, reference or review. The order passed by the Assistant Settlement Officer, Suratgarh dated 29.9.1977 has been passed in compliance of the order of the competent Court dated 20.11.1961 and it is not an independent order of the Settlement authorities whereby the land has been declared as the ghair dakhilkari or ghair khatedari land of the petitioners. I have also perused the order of the learned Revenue Appellate Authority dated 28.5.202 and the learned Revenue Appellate Authority has discussed in detail all the legal grounds while allowing earlier the appeal in toto. 9. In this respect, it is relevant to reproduce the order of the learned Asstt. Settlement Officer in which the whole position of this case becomes very clear. 9. In this respect, it is relevant to reproduce the order of the learned Asstt. Settlement Officer in which the whole position of this case becomes very clear. This order is as under:– ^^Hkw izcU/k vf/kdkjh] jktLFkku vkKk i= U;k;ky; %& fpf=r izfr fe-u- 47@77 jkepUnz o t;ukjk;.k Jh xksfoUnjke tkfr czkã.k lkfdu fxyokyk fu.kZ; lgk;d Hkw izcU/k vf/kdkjh fnukad 29-7-77 i=koyh vkt isk gqbZA Jh gsrjke mifLFkrA i=koyh dk voyksd fd;k x;kA izkFkhZ dk dguk gS fd ekStk fxyokyk ds [kljk uEcj 12] 13 o 28 dh dqy 53 ch?kk 10 fcLok lgk;d dyDVj tehnkjh o foosnkjh Jhxaxkuxj }kjk fnukad 20-11-61 Øekad 2818 ds futh lEifÙk ?kksf"kr gks pqdh FkhA ijUrq ipkZ yxku rdlhe gksus ij irk pyk fd ;g vHkh rd xSj nkf[kydkjh ntZ gS bl ij ,srjkt isk dj fn;k x;kA QSlyk [kljk uEcjku ij gksus ls Hkk[kjk ipkZ [krkSuh ryc dh xbZ tks kkfey i=koyh gSa fjdkWMZ fjiksVZ ckcr~ ipkZ yxku kkfey fely gSA ;g jdck pd uEcj 4 ,e-ds-,l-5½ ch?kk jkepUnz ds uke 27½ ch?kk t;ukjk;.k ds uke gSA fQfVax gksdj fjdkWMZ esa xSj nkf[kydkj ntZ gSA vknsk lgk;d uke o 2 ,e-ds-,l- dh 1½ ch?kk t;ukjk;.k ds o 22 ch?kk jkepUnz ds dyDVj fnukad 20-11-61 dk vey njken jktLo foHkkx }kjk ugha gqvk tcfd izfrfyfi rglhynkj guqekux< dks nh tk pqdh FkhA QSlyk iqjkus gksus ls dCts ckcr~ tkudkjh vko;d Fkh bl ij rglhynkj th Vhch dks ikVhZ cuk;k x;k mudh vksj ls vkj-vkbZ- gjhflag us 2-9-77 dks tokc isk fd;k tks kkfey i=koyh gSA mudk dguk gS fd izkFkhZx.k xSj nkf[kydkj dh gSfl;r laor~ 2011 ls dkfct gS o yxku vkfn ysrs gSA vey njken [kkrsnkj ds fy, izkFkhZ us dksbZ dk;Zokgh ugh dh blfy, xSj nkf[kydkj ntZ gS ;g lgh gSA pwWfd foosnkjh xaxkuxj ls fnukad 20-11-61 dks mä jdcs dks ¼[kkrsnkjh½ futh lEifÙk o [kqn dkr ?kksf"kr dj fn;k Fkk mldk vey njken mlh le; gks tkrk tsk Lor% gh [kkrsnkj gks tkrsA izkFkhZx.k dks bldk bYe ipkZ rdlhe ds lkFk gqvkA vr% budk mtj U;k; laxr gS ,oa QSlys dk vey njken fd;k tkuk okftc gSA vr% vknsk fn;k tkrk gS fd pd uEcj 2 ,e-ds-,l- ¼ch½ [kkrk uEcj 49 jkepUnz iq= xksfoUnjke czkã.k 5-566 gSDVj ;k [kkrk uEcj 48 t;ukjk;.k iq= xksfoUnjke czkã.k gSDVj 0-253 blh rjg pd 4 ,e-ds-,l- [kkrk uEcj 58 t;ukjk;.k iq= xksfoUnjke czkã.k gSDVj 6-830 o [kkrk uEcj 58 jkepUnz iq= xksfoUnjke czkã.k gSDVj 1-265 ij ls fLFkr ¼xSjn[kydkj½ xSj [kkrsnkjh [kkfjt fd;k tkdj crkSj [kkrsnkj ntZ fd;k tkosA nksuksa pdksa esa [kkrsnkjh dh veynjken fd;k tkdj i=koyh ds ckn vey njken fjdkMZ rdehy tkCrk ds nkf[ky nIrj gksA fu.kZ; lquk;k x;kA g- lgk;d Hkw izcU/k vf/kdkjh lqjrx< ¼jkt-½ 10. The bare perusal of the order above it is very clear that the order passed by the Additional Collector (Jagir), Hanumangarh dated 10.4.2002 is completely bad and without jurisdiction. He cannot sit over the judgment of the Asstt. Collector dated 20.11.61 where it has been ordered by the Assistant Collector (Zamindari and Biswedari), Sriganganagar dated 20.11.1961 to give khatedari rights to the appellants. This order was executed by the Asstt. Settlement Officer; hence Asstt. Settlement Officer has only made compliance of the order of the Asstt. Collector. 11. Under these circumstances, the Revenue Appellate Authority should not have remanded the case to the lower Court again because it would not serve any useful purpose but on the contrary such a situation leads to unnecessary delay in providing justice to the parties. The parties are being dragged in the litigation for the last four decades and under these circumstances it will be a travesty of justice to remand the case back to the lower authorities. Furthermore the order of the Additional Collector (Jagir), Hanumangarh dated 10.4.2002 is clearly without jurisdiction and, therefore, I do not consider it fit to remand the case back to the trial Court or the first appellate Court. The position is clear and the order of learned Asstt. Collector dated 20.11.61 has gained finality. Also the order of learned Collector dated 12.1.71 has approved the order of the learned Asstt. Collector. In this respect the authority of Honble Supreme Court as reported in 1993(3) SCC 161 is relevant and applicable to the facts and circumstances of this case. Also there is no option but to respectfully apply the authority of Honble High Court as reported in 2001 RBJ page 75.