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2017 DIGILAW 385 (RAJ)

State Of Rajasthan v. Arvind Kumar

2017-02-02

M.N.BHANDARI

body2017
JUDGMENT M.N. Bhandari, J. - This writ petition has been filed under Article 227 of the Constitution of India to challenge the order dated 5th August, 2015 passed by the Board of Revenue so as the order dated 17th June, 2013 passed by the Revenue Appellate Authority. Brief facts of one set of litigation : 2. The non-petitioner-plaintiff preferred a suit under Sections 88, 89 and 91 of the Rajasthan Tenancy Act, 1955 (for short "the Act of 1955"). The suit was for declaration and correction of entries apart from permanent injunction. The correction and declaration were sought against the entry where land was recorded as "Sivai Chak". The suit was dismissed by the SDO Court. The non-petitioner preferred an appeal before the Revenue Appellate Authority and therein order of the SDO court was reversed and at the same time, suit was decreed. While decreeing the suit, the Revenue Appellate Authority even set aside the order dated 28th February, 2005, passed in another litigation. It was not even subject matter of the suit. The State Government thus preferred appeal before the Board of Revenue but it was dismissed thus present writ petition has been filed. 3. The facts of another set of litigation initiated earlier: The land in question remained subject matter of the proceedings under Sections 175 & 177 of the Act of 1955. The application submitted by the Tehsildar was allowed vide order dated 28th February, 2005 and thereby land in dispute was recorded as "Sivai Chak". The order dated 28th February, 2005 was not challenged by any of the party. So far as non-petitioner is concerned, he was not party to the litigation under Sections 175 and 177 of the Act of 1955 as he was not recorded as khatedar. The non-petitioner could know about the said order but did not challenge either by maintaining appeal or review. The aforesaid is other set of litigation initiated prior to filing of the suit detailed out in the first set of litigation. 4. Learned counsel for petitioner-State submits that after the land was recorded as "Sivai Chak" in pursuance of the order dated 28th February, 2005 on the proceedings under Sections 175 & 177 of the Act of 1955, the SDO court rightly dismissed the suit because no order of allotment or lease deed exists in favour of the non-petitioner. 4. Learned counsel for petitioner-State submits that after the land was recorded as "Sivai Chak" in pursuance of the order dated 28th February, 2005 on the proceedings under Sections 175 & 177 of the Act of 1955, the SDO court rightly dismissed the suit because no order of allotment or lease deed exists in favour of the non-petitioner. The operative portion makes a mention that in absence of allotment letter or a lease in favour of the non-petitioner, suit cannot be decreed. 5. The Revenue Appellate Authority, however, recorded finding ignoring the aforesaid and seems to have been persuaded by other documents then what is required. A suit for declaration and correction of the entries in the revenue record can be made only when right is established. The non-petitioner did not submit allotment or lease deed to show his title. What was referred is the letter granting permission to raise construction or the demand of lease amount and payment treating it to be a land in possession of the nonpetitioner under a lease or allotment though it does not exist. There are similar such documents. 6. The Revenue Appellate Authority even gone to the extent of nullifying and quashing the order dated 28th February, 2005 which was not challenged in the suit. No prayer or relief was made in the suit to set aside the order dated 28th February, 2005, by which land was recorded as "Sivai Chak". The Board of Revenue upheld the order ignoring the aforesaid and relying upon the documents, which cannot create or prove title in the land in question. It has even recorded perverse finding by referring to the Order No. 741 of the State Government to be allotment, whereas, it is not an allotment letter. The permission to raise construction was given but it does not establish allotment or lease in favour of the non-petitioner thus ignoring the judgment of the SDO court, dismissing the suit in absence of lease or allotment order, decree was passed in favour of the nonpetitioner based on the irrelevant documents and by recording perverse finding. 7. Learned counsel for non-petitioner-plaintiff has opposed the petition. He submits that suit has rightly been decreed by the Revenue Appellate Authority. 7. Learned counsel for non-petitioner-plaintiff has opposed the petition. He submits that suit has rightly been decreed by the Revenue Appellate Authority. A reference of documents has been given to show not only allotment of land in favour of the nonpetitioner but subsequent payment of lease amount in pursuance of the order passed by the competent authority. The name of Cinema Hall has been mentioned in the record. Taking into consideration those documents and the order, suit was decreed in favour of the non-petitioner. 8. It is also stated that proceedings under Sections 175 & 177 of the Act of 1955 were not competent. It was not a case where sale was affected in violation of Section 42 of the Act of 1955 so as to initiate proceedings. It was thus rightly nullified by the Revenue Appellate Authority even if not challenged. The Board of Revenue has upheld the order passed by the Revenue Appellate Authority after considering all the relevant facts. In view of above, the prayer is made to uphold the orders passed by the Revenue Appellate Authority so as the Board of Revenue. 9. It is also stated that subsequent to the litigation in hand, area in which land in dispute exists, was transferred to the Municipal Council, Sawaimadhopur. It has allowed change of land use. The order passed in that regard has been challenged by the State Government in separate proceedings and is pending consideration before the competent authority. Taking into consideration the subsequent events also, writ petition deserves to be dismissed. 10. I have considered rival submissions made by learned counsel for the parties and perused the record. 11. The non-petitioner filed a suit for declaration, correction of entries and for permanent injunction when land in dispute was recorded as "Sivai Chak". The suit was dismissed by the SDO court finding no allotment letter or lease deed in favour of the non-petitioner. The appeal preferred by the non-petitioner was allowed by the Revenue Appellate Authority. 12. The Revenue Appellate Authority has given reference of various orders as well as merger of khasras, etc. It has even made a reference of the survey made by the Town Improvement Trust showing land in question to be of Cinema. The reference of documents of Town Planning Department has also been given apart from map. The amount of "Nazrana" was collected in the year 1954. 13. It has even made a reference of the survey made by the Town Improvement Trust showing land in question to be of Cinema. The reference of documents of Town Planning Department has also been given apart from map. The amount of "Nazrana" was collected in the year 1954. 13. The Government order dated 29.04.1948 (Annexure-R-1) has been referred by the non-petitioner to show allotment of land in their favour. The document aforesaid has been filed along with reply but perusal of Annexure-R-1 does not reveal it to be an order of allotment, rather, it is an internal correspondence between the two officers. The nonpetitioner has not filed order of allotment. The letter dated 29.04.1948 makes a reference of permission for a Talkies. In the same manner, reference of Annexure-R/2 has been given. In the said letter, reference of allotment letter bearing No. 740 dated 29th April, 1948 has been given but no such letter has been produced to demonstrate allotment or lease in favour of the non-petitioner. 14. It is true that at some point of time, non-petitioner was asked to pay amount towards lease, etc. but merely on that ground, lease deed cannot be presumed in favour of nonpetitioner, rather, if it exists than should have been produced by the non-petitioner before the court below or atleast before this court. In view of above, the SDO court had rightly dismissed the suit but surprisingly it has been allowed by the Revenue Appellate Authority in reference to letters presuming it to be allotment of land without taking care that no allotment letter or lease deed has been produced by the non-petitioner. In view of above, finding recorded by the Revenue Appellate Authority, so as Board of Revenue, cannot be accepted. 15. The Revenue Appellate Authority has further nullified the order dated 28th February, 2005 passed by the Deputy Collector on the proceedings under Sections 175 and 177 of the Act of 1955 though no prayer in the suit for it was made, rather, order aforesaid was not even challenged. The order passed in this regard by the Revenue Appellate Authority is quoted hereunder for ready reference: 16. The order dated 28th February, 2005 was passed on the application under Sections 175 and 177 of the Act of 1955 and in pursuance of it, land in dispute was declared as "Sivai Chak" and accordingly, entries were made as a consequence thereof. The order dated 28th February, 2005 was passed on the application under Sections 175 and 177 of the Act of 1955 and in pursuance of it, land in dispute was declared as "Sivai Chak" and accordingly, entries were made as a consequence thereof. In absence of challenge the order dated 28th February, 2005, the Revenue Appellate Authority had no jurisdiction or power to nullify or quash it even qua the non-petitioner. The Revenue Appellate Authority thus exceeded to its jurisdiction while passing order. The Board of Revenue ignored the aforesaid while maintaining it. 17. The Board of Revenue even considered the document with finding regarding allotment though no such order was produced by the non-petitioner. The relevant para of the order passed by the Board of Revenue is quoted thus: 18. In the para quoted above, the order bearing No. 741 has been shown to be allotment letter and learned counsel for non( petitioner has referred the aforesaid as Annexure-R/1. The said letter is also quoted hereunder to show that it is not the order of allotment yet Board of Revenue considered it to be an order of allotment: "No.-------------- Dated the------April, 1948. Assistant Engineer Hindaun M/s Gulab Talkies Ltd. Gangapur applied for the allotment of a plot in which priviously kalayan talkies existed for the construction of a Talkies. They wish to have this plot at the rate fixed by government leaving a small portion of the plot. They may be allowed to install their talkies in this plot and you may send your report if the small strip of land which they wish to leave will be utilize for other purpose will not dislocate the other plots any way. Kumar Deputy Commissioner Sawai Madhopur 29/4 No 741 RA Dated the---------1948. Copy forwarded to the M/S Gulab Talkies Ltd. Gangapur for information. For Deputy Commissioner, Sawai Madhopur" 19. It is an internal correspondence and not an order of allotment. In the same manner, the Board of Revenue has made reference of a lease granted in the year 2013 though could not have been taken into consideration as it was not subject matter of suit and part of evidence. For Deputy Commissioner, Sawai Madhopur" 19. It is an internal correspondence and not an order of allotment. In the same manner, the Board of Revenue has made reference of a lease granted in the year 2013 though could not have been taken into consideration as it was not subject matter of suit and part of evidence. The relevant part of the order of the Board of Revenue is quoted hereunder for ready reference: On an application being made under this section, the court shall issue a notice to the opposite party to appear within such time as may be specified therein and show cause why he should not be ejected from the area so transferred or sublet or 20. The lease deed dated 21st August, 2013 followed by permission to raise construction vide order dated 16th June, 2014 has been referred. Both the orders were passed or issued subsequent to the order by the SDO Court dated 28th May, 2013. The subsequent order to allow construction is under challenge in separate litigation thus should not have taken into consideration in a suit, not filed on that basis. The orders referred above are not final, rather, litigation exist at the instance of State Government and is pending till date yet referred by the Board of Revenue. It further considered the issue in reference to Sections 175 and 177 of the Act of 1955. The non-petitioner has not challenged the order passed on application under Sections 175 and 177 of the Act of 1955 yet it was set aside without appreciation of the provision. It is not necessary that Section 175 or 177 would be available only if transfer of land has been made in violation of Section 42 of the Act of 1955. The provisions of Sections 175 and 177 are applicable even on other grounds, as given therein yet the courts below have made reference of Section 42 of the Act of 1955. Sections 175 and 177 of the Act of 1955 are quoted hereunder for ready reference: "175. The provisions of Sections 175 and 177 are applicable even on other grounds, as given therein yet the courts below have made reference of Section 42 of the Act of 1955. Sections 175 and 177 of the Act of 1955 are quoted hereunder for ready reference: "175. Ejectment for illegal transfer or sub-letting.-(1) If a tenant transfers or sublets, or executes an instrument purporting to transfer or sublet, the whole or any part of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub-lessee or the purported such part in pursuance of such transfer or sub lease, both the tenant and any person who may have thus obtained or may thus be in possession of the holding or any part of the holding, shall on the application of the land holder, be liable to ejectment from the area so transferred or sublet or purported to be transferred or sub-let. (2) To every application, under this Section the transferee or the sub-tenant or the purported transferee or the sub-tenant, as the case may be, shall be joined as a party. purported to be transferred or sub-let. (4) If appearance is made within the time specified in the notice and the liability to ejectment is contested, the court shall, on payment of the proper court fees, treat the application to be a suit and proceed with the case as a suit: Provided that in the event of the application having been made by a tehsildar in respect of land held directly from the State Government no court-fee shall be payable. 4(a) Notwithstanding anything to the contrary contained in subsection (4), if the application is in respect of contravention of the provision contained in section 42 or the proviso to sub-section (2) of section 43 or section 49A, the court shall, after giving a reasonable opportunity to the parties of being heard, conclude the enquiry in a summary manner and pass order, as far as may be practicable within a period of three months from the date of the appearance of the non-applicants before it, directing ejectment of the tenant and his transferee or sub-lessee from the area transferred or sub-let in contravention of the said provisions. (5) If no such appearance is made or if appearance is made but the liability to ejectment is not contested the court shall pass order on the application as it may deem proper. 177. Ejectment for detrimental act or breach of condition -(1) A tenant shall on the application of the landholder, be liable to ejectment from his holding- (a) on the ground of any act or omission detrimental to the land in that holding or inconsistent with the purpose for which it was let, or (b) on the ground that he or any person holding from him has broken a condition on the breach of which he is, by special contract which is not contrary to the provisions of this Act, liable to be ejected: Provided that the planting of trees or the making of an improvement in accordance with the provisions of this Act shall not constitute a ground for ejectment under this section. (2) To every application under this section, any person claiming through the tenant may be joined as party and where the cause of action is based wholly or partly on any act or omission or breach of condition by a transferee or sub-lessee of the tenant, such transferee or sub-lessee shall be joined as a party. (3) On an application being made under this section, the court shall issue a notice to the opposite party to appear within such time as may be specified therein and show cause why he should not be ejected from the holding. (4) If appearance is made within the time specified in the notice and the liability to ejectment is contested, the court shall, on payment of the proper court fees, treat the application to be plaint and proceed with the case as a suit: Provided that in the event of the application having been made by a Tehsildar in respect of land held directly from the State Government no court-fees shall be payable. If no such appearance is made or if appearance is made but the liability to ejectment is not contested the court shall pass such order on the application as it may deem proper." 21. In the background aforesaid, Revenue Appellate Authority as well as Board of Revenue have not only travelled beyond the pleading and evidence in the revenue suit but even made observation contrary to the provisions of law. In the background aforesaid, Revenue Appellate Authority as well as Board of Revenue have not only travelled beyond the pleading and evidence in the revenue suit but even made observation contrary to the provisions of law. The suit for declaration and correction of entries can be decreed only if non-petitioner can prove allotment of land in his favour or as per law. The Board of Revenue was expected not to make reference of the subsequent orders passed in the year 2013-14 when those are under challenge in separate litigation. 22. The Revenue Appellate Authority and the Board of Revenue are expected to pass orders within the frame work of the suit and prayer made therein. They have even nullified the order dated 28th February, 2005, passed in the separate proceedings while allowing the appeal preferred by the non-petitioner though said order was not even under challenge. The way the Revenue Appellate Authority and the Board of Revenue have passed the orders show not only perversity but orders have been passed beyond their competence and jurisdiction. Accordingly, both the orders impugned herein are set aside while maintaining the order passed by the SDO Court. 23. The writ petition is accordingly allowed.