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2017 DIGILAW 298 (RAJ)

Mansur v. State of Rajasthan

2017-01-27

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. 1. By way of this writ petition, the petitioners Mansur and 4 others have approached this Court seeking to challenge the proposed auction of certain pieces of land sought to be undertaken by the respondent Municipal Council Dungarpur vide auction notices Ex. 5 and 6. 2. Specific challenge is made by the petitioners to auction of items No. 4 and 7 mentioned in the notices which are commercial plots ad-measuring 15 x 50 ft. each. 3. Succinctly stated the facts relevant and essential for the disposal of the writ petition are noted hereinbelow. 4. The petitioners claim to be Adiwasis belonging to Scheduled Tribe category. They stake claim on the disputed land under auction by means of long and settled possession. A huge chunk of land admeasuring about 165 Bighas situated in vicinity of Dungarpur City was allocated to the Municipal Council, Dungarpur by the State Government by way of order dated 29.5.1989 passed by the District Collector. The total allocated land measured 164 Bighas and 7 Biswas of which 33 Bighas and 9 Biswas was taken from Khasra No. 722, which is the bone of contention between the parties to the litigation. The possession of the entire allocated land was handed over to the Municipal Council on 29.9.1989 upon deposition of capitalised cost of the land. The petitioners herein filed a suit in the court of the SDO, Dungarpur on 24.10.2002 alleging that even before coming into force of the Rajasthan Tenancy Act on 15.10.1955 they were in settled possession of 10 Bighas of the land of Khasra No. 722 since the last 60 years. They sought declaration as khatedars of the said 10 Bighas of land from Khasra No. 722. An application for interim relief under Section 212 of the Rajasthan Tenancy Act was also filed by the petitioners impleading the State Government, the Collector, the Public Works Department and the Municipal Council, Dungarpur as party respondents. Reply was filed on behalf of the Municipal Council Dungarpur wherein, it was specifically averred that the disputed land had long back been allocated by the State Government to the Municipal Council which was in possession thereof from 20.9.1989 and that 6 Bighas from the disputed land had been set apart for the Police Department. It was also asserted that the so-called agricultural land had long back been converted to Abadi land. It was also asserted that the so-called agricultural land had long back been converted to Abadi land. The SDO Dungarpur proceeded to dismiss the application for interim relief filed by the petitioners herein by a detailed order dated 11.11.2002. An appeal was preferred against the order of the SDO Dungarpur before the Revenue Appellate Authority, Udaipur which was dismissed on 28.2.2004 for non-prosecution. The Municipal Council initiated an auction for leasing out 8 plots from the allocated land and a publication was made for that purpose on 23.2.2006. Thereupon, another round of litigation ensued at the behest of the petitioners, who filed a civil suit for permanent injunction in the court of the learned Civil Judge (Sr.Div.) Dungarpur on 7.3.2006. The auction was fixed on 7.3.2006. The Civil Judge refused to grant any interim order in favour of the petitioners and the application preferred by them under Order 39 Rule1 and 2 CPC was dismissed on 18.12.2010. The said order was challenged by way of an appeal before the District Judge, Dungarpur which too came to be rejected on 19.5.2012. The District Judge, whilst rejecting the appeal observed that injunction could not be granted to encroachers against lawful owner of the land. In the meantime, the petitioners moved an application to the Minister for Tribal Development seeking to stall the auction proceedings dated 7.7.2009. The Minister forwarded the matter to the Local Self Body Department, Government of Rajasthan, which by order (Annex.3) dated 3.7.2009 stayed the auction. The Municipal Council upon receiving this intimation postponed the auction proceedings by issuing another advertisement in the newspaper. Thereafter, the Municipal Council kept on representing the Local Self Bodies Department to vacate the injunction and permit to auction the plots because it was financially depleted. The Director, Local Self Body Department, by order dated 24.7.2015 (which has been placed on record with the reply as Annex.R3/8) vacated the stay and permitted the Municipal Council to proceed with the auction and in turn, the impugned auction notices were published. The petitioners have approached this Court by way of the instant writ petition to challenge the proposed auction of the plots in question. 5. Shri S.D. Vyas learned counsel representing the petitioners vehemently urged that the petitioners are poor tribal area residents belonging to the Scheduled Tribe category and have long and settled possession over the disputed land since generations. The petitioners have approached this Court by way of the instant writ petition to challenge the proposed auction of the plots in question. 5. Shri S.D. Vyas learned counsel representing the petitioners vehemently urged that the petitioners are poor tribal area residents belonging to the Scheduled Tribe category and have long and settled possession over the disputed land since generations. Thus, any attempt to dispossess them from the land amounts to grave violation of their human rights and also tantamounts to an offence under the SC/ST Act. He thus vehemently urged that the impugned action of the respondent Municipal Council in attempting to auction the plots in question being arbitrary, perverse and violative of the fundamental rights guaranteed to the petitioners by the Constitution of India, deserves to be struck down. 6. Per contra, Shri Bheem Arora learned counsel representing the respondent Municipal Council Dungarpur vehemently opposed the submissions advanced by the learned counsel for the petitioners. He urged that the petitioners have failed in all their endeavours to usurp the land belonging to the Municipal Council. They lost before the revenue as well as civil courts. Thereafter, they managed to stall the auction proceedings by approaching the government while making blatant misrepresentations. Finally, the Local Self Body Department, Government of Rajasthan, realising their mistake earlier, withdrew the injunction on auction of the Municipal land by order (Annex.R3/8) dated 24.7.2015. He urged that the said order, though admittedly in knowledge of the petitioners has not been challenged till date and has thus, attained finality. He relied upon the Full Bench Judgment of this Court in the case of Tara & Ors. v. State of Rajasthan & Ors., 2015(3) CDR 1289 and urged that a Larger Bench of this Court in unequivocal terms held that there is no provision in the Rajasthan Tenancy Act 1955 for conferment of khatedari rights on the basis of adverse possession. Once the land is resumed, it vests in the State Government. No person can claim rights by adverse possession against the State. He thus urged that as the land in question was owned by the State Government and was allotted to the Municipal Council upon depositing capitalised cost, no person can lay a claim thereupon on the strength of so-called adverse possession. He urged that the writ petition is absolutely frivolous and should be dismissed with heavy cost. 7. He thus urged that as the land in question was owned by the State Government and was allotted to the Municipal Council upon depositing capitalised cost, no person can lay a claim thereupon on the strength of so-called adverse possession. He urged that the writ petition is absolutely frivolous and should be dismissed with heavy cost. 7. I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record. 8. The sole ground of challenge made by the petitioners' counsel to the proposed auction of the land in question owned by the Municipal Council is based on adverse possession. However, fact remains that neither the petitioners have been able to show by any significant evidence or record that they were in settled possession of the disputed land for any significant duration. Furthermore, the specific challenge which is given in this writ petition is to the auction of plots No. 4 and 7 described in the auction notice. The Municipal Council was allocated the entire land admeasuring about 165 Bighas by the State Government way-back in the year 1989 after paying capitalised cost thereof. The petitioners have failed completely to create even a semblance of doubt as to how they claim to be in possession over two plots ad-measuring 15' x 50' from the entire chunk of land which was long back declared to be Abadi land. The petitioners have miserably lost in their futile endeavours to challenge the ownership of the Municipal Council on the land in question before revenue as well as civil courts and the orders passed in these litigations have admittedly attained finality. The only thread on which the petitioners' claim hung was the injunction somehow procured from the Local Self Bodies Department of State Government on the proposed auction in the year 2009. However, the basis for grant of such injunction is not fortified from the record. Be that as it may. The Local Self Body Department, Government of Rajasthan has now realised its mistake and vacated the arbitrary ex-parte injunction order by communication (Annex.R3/8) dated 24.7.2015, which has not been challenged till date and has attained finality. 9. In this background, I am of the firm opinion that the petitioners have no locus standi or right whatsoever to challenge the Right, Title and Possession of the Municipal Council on the land in question. 9. In this background, I am of the firm opinion that the petitioners have no locus standi or right whatsoever to challenge the Right, Title and Possession of the Municipal Council on the land in question. The Municipal Council is unquestionably entitled to auction the property for ensuring its financial well being. The Hon'ble Full Bench of this Court in the judgment of Tara (supra), has emphatically laid down that no person can acquire right on government lands by adverse possession. There is no provision in the Rajasthan Tenancy Act for conferment of khatedari rights by adverse possession and therefore, no person can claim right by way of adverse possession against the State Government. 10. In view of the discussion made hereinabove, this Court is of the firm opinion that there is no merit in the writ petition which is hereby dismissed. 11. Stay application is also dismissed. 12. No order as to costs.