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2019 DIGILAW 1441 (RAJ)

Ajay Singh v. State of Rajasthan

2019-05-10

P.K. LOHRA

body2019
JUDGMENT P.K. Lohra, J. - Petitioners have preferred this writ petition under Article 226 & 227 of the Constitution for claiming under-mentioned reliefs: "(i) Respondent Authorities may kindly be restrained to undertake any action including undertaking construction activities, allotting the said land in question to third party till the final disposal of the revision petition pending adjudication before the Respondent No.1; (ii) Respondent No.1 may kindly be directed to decide the revision petition in a time bound manner preferably within 1 month; (iii) Respondent Authorities may kindly be directed to maintain the status quo as it exist till the disposal of the revision petition; (iv) any other relief, which the Hon'ble Court may deems it fit may kindly be granted in favour of the humble petitioners." 2. For claiming the desired reliefs, in the writ petition, it is inter-alia averred by the petitioners that grandfather of first petitioner was in cultivatory possession of Khasra No.751 and after promulgation of Rajasthan Tenancy Act, 1955 (for short, 'Act of 1955'), Khasras were renumbered and fresh mutations were entered by the revenue department. Khasra No.751 being a huge chunk of land in possession of various Khatedars, the same was divided and requisite entries were made in the revenue record. As per version of the petitioners, the land parcel of Khasra No.751, more particularly Khasra Nos.751/33, 751/23 and 723/2, as were in vogue prior to settlement, were not entered in the name of Late Shri Shivji Nathuji, grandfather of first petitioner, despite his continuous cultivatory possession. This sort of omission of the revenue authorities prompted Late Shivji Nathuji to lay an application before the then Sub Divisional Officer, Jodhpur under the Act of 1955. Upon considering the application, same was allowed vide order dated 28th of November, 1956 with a direction to the Settlement Department to make necessary mutation entries in his name. In compliance of said decision, vide order dated 10th of January 1957, Khasra No.751/33 was mutated in the name of grandfather of first petitioner. Petitioners have further pleaded that Khasras were again renumbered and presently Khasra No.751/33 is shown as Khasra No.860/33 in the name of Late Shri Shivji Nathuji. In order to show possession of land in question, petitioners have placed on record, in cumulative, order dated 28th of November, 1956 as well as Parcha Lagan. Petitioners have further pleaded that Khasras were again renumbered and presently Khasra No.751/33 is shown as Khasra No.860/33 in the name of Late Shri Shivji Nathuji. In order to show possession of land in question, petitioners have placed on record, in cumulative, order dated 28th of November, 1956 as well as Parcha Lagan. Besides mutation entries, showing Khatdari rights of the family of petitioners, mutation entries in respect of various other Khatedars of neighbouring Khasras were also recorded in revenue record. 3. Be that as it may, as per version of the petitioners, District Collector, Jodhpur issued order dated 28th of May, 1970, whereby Pattas issued on various Khatedaris, including Khatedari of Khasra No.751, were cancelled. The said order also proved detrimental to the interest of petitioners' family, inasmuch as the land allotted to them too was cancelled. It so happened that being aggrieved by order dated 28th of May, 1970, some Khatedars approached Revenue Appellate Authority, Jodhpur to challenge the same and other fractions of Khatedars took shelter of competent civil Court by filing civil suit. With the advent of time, the Revenue Appellate Authority, Jodhpur annulled order dated 28th of May, 1970 vis-a-vis the Khatedars availing remedy of appeal. Requisite order to this effect was passed by Revenue Appellate Authority, Jodhpur on 12th of February 2004. 4. State being aggrieved by the aforesaid order of Revenue Appellate Authority, approached Board of Revenue, Ajmer, by laying revision petition but that effort of the State proved abortive and the learned Board of Revenue, while rejecting the revision petition of State, affirmed the order passed by Revenue Appellate Authority. Later on, yet again, State authorities approached the Board of Revenue by filing review petition but that too was dismissed on 1st of May, 2007. When all those proceedings were going on before the revenue Courts, in the interregnum period, land parcel of Khasra No.751 was mutated in the name of the then Urban Improvement Trust and being beneficiary of the said land, the then UIT, feeling aggrieved of the order of Board of Revenue, approached this Court, by filing writ petition No.5157/06. However, the said writ petition was dismissed by learned Single Judge on 13th of September, 2006. However, the said writ petition was dismissed by learned Single Judge on 13th of September, 2006. Subsequently, the order passed by learned Single Judge was also challenged before Division Bench of this Court by way of SAW No.907/2006 but the same was also dismissed in limine on 8th of January, 2007. According to the petitioners, even after rejection of special appeal, UIT did not rest contended and approached the Apex Court, by filing Special Leave Petition bearing No.(CC)14156/2008, but with the same fate. In support thereof, petitioners have placed on record order dated 24th of October, 2008 (Annex.7) passed by Supreme Court. 5. Apart from narrating all these facts, the petitioner have also averred in the petition that a group of Khatedars, who approached civil Court for redressal of their grievances also succeeded in their mission. In substance, the positive assertion of the petitioners is that the remedy before civil Court, availed by some of the Khatedars, also fructified to their advantage, inasmuch as, the civil Court too annulled the order of District Collector dated 28th May, 1970, by its judgment and decree dated 29th of May, 1974 (Annex.8). Further, elaborating on these aspects, petitioners have pleaded in the writ petition that the judgment and decree passed by civil Court was affirmed by first appellate Court and to the best of their knowledge its challenge was not sustained by this Court in second appeal. 6. The whole endeavour of the petitioners by narrating entire checkered history is to impress upon the Court that order dated 29th of May, 1974, passed by District Collector is bad in law. Indisputably, order dated 28th of May, 1970 and its consequential order dated 16th of June 1970 was not challenged by grandfather of first petitioner before any forum, i.e, either revenue Court or civil Court, however, in order to wriggle out from delayed action on their part to assail the aforesaid decision, it is specifically pleaded by the petitioners that these orders were never made known to them and even after passing of these orders the family continued to enjoy possession of the land in question uptil April 2019, when they were forcibly dispossessed. The order showing cancellation of mutation entry is also placed on record as Annex. 9. 7. The order showing cancellation of mutation entry is also placed on record as Annex. 9. 7. The petitioners have also averred in the petition that despite protracted litigation concerning land in question, their family enjoyed continuous possession of the said land without any interference. A fact, highlighting mutation entries in the name of Daulat Ram Ji (father of the first petitioner) after death of Shri Shivji Nathuji, also finds mention in the writ petition. The petitioners have also averred that in the interregnum period behind their back, Khasra No.860/751, where their land is located, is mutated in the name of Municipal Corporation, Jodhpur. For showing cause of action, it is pleaded by the petitioners that sometimes in the month of October, 2018, officers of Municipal Corporation, Jodhpur visited the land in question and asked them to vacate and handover possession of the land. The petitioners have also articulated their cause of action by urging that this sort of directions from the officials of fourth respondent gave them profound shock. It is further pleaded by petitioners that from the officials of fourth respondent only they came to know about deletion of mutation entries vis-a-vis land in question in the name of Late grandfather of first petitioner as well as the order passed by District Collector, Jodhpur. 8. With all these averments, the petitioners have asserted that immediately after coming to know of all these developments, they approached second respondent by preferring revision petition under Section 83 of the Rajasthan Land Revenue Act, 1956 (for short, 'Act of 1956'). It is also averred that the second respondent after taking cognizance in the matter, requisitioned the record and solicited report from fifth respondent Tehsildar, Jodhpur vide letter dated 27th September, 2018. According to the petitioners, after receipt of notice of revision petition, fourth respondent sent a letter to Jodhpur Development Authority on 5th of October, 2018 to handle the matter at its own level. The endeavour of the petitioners in placing on record letter dated 5th of October, 2018 is to impress upon the Court that fourth respondent has virtually not asserted its ownership over the land in question. 9. In juxtaposition to the aforesaid stand of the petitioners, in later part of pleadings, petitioners have also very candidly submitted that eventually fourth respondent joined the issue with them in revision petition by filing their reply. 9. In juxtaposition to the aforesaid stand of the petitioners, in later part of pleadings, petitioners have also very candidly submitted that eventually fourth respondent joined the issue with them in revision petition by filing their reply. It is further submitted by petitioners that they were forcibly dispossessed from the land in question after issuance of notification by the Election Commission, inasmuch as, due to modal code of conduct the proceedings of revision petition remained in abeyance. It is also submitted by petitioners that process of parliamentary elections being in vogue, there is every likelihood that the revision petition may not be taken up by the second respondent. It is in that background, the petitioners have approached this Court with a specific allegation that after taking possession of the land in question, fourth respondent has started construction activities at the site, which is likely to frustrate the purpose of filing revision petition by them. With all these allegations, petitioners have craved for grant of above quoted reliefs. 10. No formal reply to the writ petition is filed by respondent No.4 Municipal Corporation, but the learned counsel appearing for the Municipal Corporation has raised certain preliminary objections about maintainability of the writ petition. 11. Mr. O.P. Mehta, during the course of arguments, has buttressed all the grounds, pleaded in the writ petition, by relying on the documents available on record. 12. Per contra, Mr. Suniel Purohit, learned counsel for the fourth respondent, while persisting with the preliminary objections, has placed reliance on following legal precedent: Commissioner of Income-tax vs. Chhabildas Agarwal, [ (2014) 1 SCC 603 ] . 13. I have heard learned counsel for the parties at length and perused the materials available on record. 14. Writ jurisdiction under Article 226 of the Constitution is though wide in amplitude but being equitable jurisdiction, it is always discretionary. Likewise, jurisdiction of the Court under Article 227 of the Constitution confers power of superintendence over all the Courts and Tribunals subordinate to it within its territorial jurisdiction. However, supervisory jurisdiction under Article 227 of the Constitution cannot be exercised as a cloak of an appeal in disguise. The dominant object of supervisory jurisdiction is to keep subordinate Courts within the bounds of their jurisdiction. While exercising writ jurisdiction, Court is guided by certain principles including self-imposed restrictions. However, supervisory jurisdiction under Article 227 of the Constitution cannot be exercised as a cloak of an appeal in disguise. The dominant object of supervisory jurisdiction is to keep subordinate Courts within the bounds of their jurisdiction. While exercising writ jurisdiction, Court is guided by certain principles including self-imposed restrictions. The concept of declining relief to an aggrieved individual in the event of availability of alternative efficacious remedy is not mandated by law but a self-imposed restriction evolved by the Courts while passing verdicts from time to time. Consistent adherence of this self-imposed rule by the Courts is with laudable objects. Its solemn object is to maintain sacrosancy of adjudicatory process/judicial process and for dissuading an aggrieved party to bye-pass alternate remedy with impunity. By any stretch of imagination, an aggrieved party, which remained indolent for years together, cannot be allowed to camouflage delay and laches as an excuse to bye-pass alternate remedy. 15. In the instant matter, the order to the detriment of petitioners, or ascendents of the first petitioner, was passed on 28th of May, 1970, followed by consequential order dated 16th of June 1970. Neither at the behest of ascendents of the first petitioner, nor by the first petitioner himself, the orders were challenged before appropriate forum. All that which is narrated in the petition is that some other incumbents, who were adversely affected on account of passing of these orders, approached either the revenue Court or civil Court for redressal of their grievances. If the petitioners or their ascendents remained sitting on the fence and not made any endeavour to challenge such orders, in my view, they cannot be allowed to take advantage of favourable verdict rendered in relation to other individuals. The petitioners have placed on record, orders passed by Revenue Appellate Authority, Barmer Camp, Jodhpur, on an appeal under Section 225 of the Act of 1955 in favour of some of the aggrieved persons. Likewise, judgment dated 29th of May, 1974 in the civil suit is also placed on record. 16. True it is that petitioners have made a specific averment in the writ petition that ascendants of first petitioner were unaware about these orders and the orders were passed behind their back, but, then too, they cannot be allowed to invoke writ jurisdiction of this Court for redressal of their grievances. 16. True it is that petitioners have made a specific averment in the writ petition that ascendants of first petitioner were unaware about these orders and the orders were passed behind their back, but, then too, they cannot be allowed to invoke writ jurisdiction of this Court for redressal of their grievances. Under Section 75 of the Act of 1956, any order passed by an Assistant Collector or a Sub Divisional Officer, or a Collector, in matters not connected with settlement, is appealable to Revenue Appellate Authority under its clause (b) of sub-section (1). The order passed by the appellate authority is also revisable under Section 83 and 84 of the Act of 1956. A conjoint reading of these sections reveals that power of revision under Section 83 is exercisable by State Govt. visa-vis non-judicial proceedings not connected with settlement held by any officer subordinate to the State Govt. Contrary to it, Section 84 confers revisional jurisdiction on the Board of Revenue to call for record of any case of a judicial nature or connected with settlement, in which no appeal lies to the Board, if the Court or the officer, by whom the case was decided, appears to have exercised a jurisdiction not vested in it or him by law, or acted in exercise of its or his jurisdiction illegally or with material irregularity. Therefore, the very language of both these sections is suggestive that the revisional powers of Board of Revenue are very wide and exclusive. In the present matter, petitioners have preferred revision petition by invoking Section 83 of the Act of 1956 before the Revenue Minister and in the petition they have craved for granting them some indulgence during pendency of the revision petition, or for issuance of necessary direction for early disposal of the revision petition. 17. As observed supra, the forum of revision under Section 83 of the Act of 1956 is chosen by the petitioners without availing remedy of appeal, may be for the reasons best known to them, but while refraining to make any comment on merit, I feel dissuaded to issue any positive direction in the matter. Although, learned counsel appearing for respondent Municipal Corporation has seriously objected about maintainability of revisions petition under Section 83 of the Act of 1956, but, in my considered opinion, it would not be wise and prudent to decide this issue in the instant petition. Although, learned counsel appearing for respondent Municipal Corporation has seriously objected about maintainability of revisions petition under Section 83 of the Act of 1956, but, in my considered opinion, it would not be wise and prudent to decide this issue in the instant petition. 18. Be that as it may, the fact remains that as per admission of the petitioners, their revision petition under Section 83 of the Act of 1956 is pending before the Revenue Minister, therefore, it would not be appropriate for this Court to exercise writ jurisdiction in this matter. 19. Law is trite that a litigant, if has chosen a particular forum for redressal of his grievances, cannot be allowed to pursue two remedies simultaneously. The remedy availed by the petitioners is appropriate or not, within the four corners of law governing the subject matter, needs no elaborate discussion. 20. In view of above, I feel disinclined to interfere in the matter. 21. Consequently, the petition fails and same is hereby rejected.