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2013 DIGILAW 884 (RAJ)

Kailash Narain v. State of Rajasthan

2013-05-03

ALOK SHARMA

body2013
JUDGMENT 1. - This matter has come up on an application under Article 226 (3) of the Constitution of India for vacation of the interim order dated 4-8-2011 passed by this court. 2. The case of the petitioner is that in Svt.1978 (1921) land of old khasra No.491, village Goth Tehsil Rajgarh was recorded in the khatedari of one Shankar. The petitioner claims himself to be successor in interest of said Shankar allegedly being the adopted son of Moolya in the line of successors of Shankar. In Svt.2020 (1963) the said khasra No.491 was wrongly recorded as Sawai chak. It has been submitted that neither the petitioner nor his alleged predecessors in interest were aware of the change in the revenue record in Svt.2020 (1963) for about 48 years. It is submitted that though possession of old khasra No.491 (Smavat 1978) presently khasra No.660 was with the petitioner as the adopted son of Moolya, with the passage of time the area in said khasra got truncated inter alia by construction of a road to which no objection was raised. Consequently, the land of khasra No.660 presently admeasures 10 Aer (8 Biswas) now. This land, recorded as Sawai Chak (though wrongly) has come to be allotted to Jaipur Vidhyut Vitaran Nigam Limited (JVVNL) on or about 29-6-2011 in spite of the the petitioner's possession over the said land. It is submitted that the petitioner on coming into knowledge of the allotment of 29-6-2011 to JVVNL made enquries and only then came to know that the said land has been recorded in revenue record as Sawai Chak since Svt.2020 (1963). There upon the petitioner filed a suit for declaration, correction of entries, and permanent injunction before the Sub Divisional Officer, Rajgarh on 1-7-2011 qua the aforesaid land. By an interim order dated 5-7-2011 the SDO Rajgarh passed an order of status quo with regard to possession and revenue record qua the said land. It is the case of the petitioner that in spite of the status quo order dated 5-7-2011 passed by the SDO Rajgarh, the land of new Khasra No.660 admeasuring 10 Aer (8 Biswas), village Goth Tehsil Rajgarh being Sivai Chak was illegally mutated in revenue records in the name of JVVNL vide order dated 14-7-2011 on the basis of the allotment dated 29-6-2011. Consequently, it has been prayed that aside of the order dated 29-6-2011 allotting land admeasuring 10 Aer (8 Biswas) in Khasra No.660 village Goth Tehsil Rajgarh to JVVNL being liable to be set aside, the order dated 14-7-2011 whereby the land has been mutated in the name of JVVNL also be quashed and set aside. 3. Both the State of Rajasthan as well as JVVNL have filed reply to the writ petition along with an application under Article 226 (3) of the Constitution of India for vacation of the interim order dated 4-8-2011 passed by this court directing that the status quo be maintained as per the order dated 5-7-2011 passed by the SDO Rajgarh. 4. It has been submitted by the respondents that the present writ petition is completely misdirected and a misuse of the process of this court. For one, it has been submitted that the petition has been filed before this court with the petitioner claiming himself to be the adopted son of Moolya since 1968, allegedly a descendant of Shankar Lal the purported erstwhile khatedar in the revenue record in Svt.1978 (1921) over old Khasra No.491, village Goth Tehsil Rajgarh. It has been submitted that the petitioner took employment with the erstwhile Rajasthan State Electricity Board in the year 1980, wherein the petitioner stated himself to be a son of one Ganga Lahari Sharma in spite of now claiming that he was given in adoption to Moolya in 1968. It has been submitted that both in the current ration-card and current voter-list the father's name of the petitioner has been indicated as Ganga Lahari Sharma not Moolya. Further the brother of the petitioner one Deen Dayal Sharma being in unauthorised possession of the land in issue in Khasra No.660 admeasuring 10 Aer (8 Biswas), village Goth Tehsil Rajgarh was issued notice under Section 91 of the Rajasthan Land Revenue Act and vide order dated 27-9-2010 passed by the Tehsildar he was removed being an encroacher and a penalty was imposed upon him. The said brother of the petitioner Deen Dayal Sharma having been put out of possession on 27-9-2010, this writ petition has been filed by the petitioner to circumvent the order dated 27-9-2010. The said brother of the petitioner Deen Dayal Sharma having been put out of possession on 27-9-2010, this writ petition has been filed by the petitioner to circumvent the order dated 27-9-2010. It has also been submitted that the petitioner has abused the process of this court by impugning the order dated 14-7-2011 in this writ petition, while also preferring an appeal there against under Section 75 of the Land Revenue Act, where upon the impugned order dated 14-7-2011 has already been quashed and the matter remanded to Tehsildar Rajgarh to decide the issue of mutation in favour of JVVNL on the basis of allotment dated 29-6-2011 after giving an opportunity of hearing to the petitioner. The said fact of a challenge to the order dated 14-7-2011 in an appeal under Section 75 of the Land Revenue Act 1956 has been suppressed in the writ petition. Counsel for the respondents submitted that the petitioner cannot be allowed to avail parallel remedy in respect of the same order dated 14-7-2011. On the submissions made it has been prayed that the interim order dated 4-8-2011 passed by this court be vacated. 5. Having heard learned counsel for the parties and perusing the material available on record, I am of the considered view that the interim order dated 4-8-2011 passed by this court deserves to be vacated. More so as aside of other issues agitated by the respondents, it only reiterates the status quo order dated 5-7-2011 granted by the SDO Rajgarh in the petitioner's own suit for declaration, correction of entries and permanent injunction. Oversight by this court by reiteration of the revenue court's order dated 5-7-2011 will stultify proceedings before the said court and entail denial of jurisdiction to the competent court in considering any potential application for vacation of the order dated 5-7-2011 by the defendant in the suit. This the court cannot do in parallel proceedings under Article 226/ 227 of the Constitution of India and stall the jurisdiction of statutory courts. 6. Therefore the interim order dated 4-8-2011 is vacated. 7. The application under Article 226 (3) of the Constitution of India stands allowed. The stay application is dismissed. 8. The respondent State shall be at liberty to approach the Sub Divisional Officer Rajgarh for vacation of the order dated 5-7-2011. 6. Therefore the interim order dated 4-8-2011 is vacated. 7. The application under Article 226 (3) of the Constitution of India stands allowed. The stay application is dismissed. 8. The respondent State shall be at liberty to approach the Sub Divisional Officer Rajgarh for vacation of the order dated 5-7-2011. On an application so filed, the SDO Rajgarh shall proceed strictly in accordance with law and decide it on merits.Stay Petition Dismissed. *******