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2022 DIGILAW 2783 (RAJ)

Ganpat Singh v. State Of Rajasthan

2022-11-18

KULDEEP MATHUR, SANDEEP MEHTA

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JUDGMENT Sandeep Mehta, J. The petitioners herein have approached this Court through this writ petition in the nature of Public Interest Litigation for assailing the allotment order dated 23.05.2003 issued by the District Collector-cum-District Magistrate allotting 4 Bighas land to 'Rajkiya Shiksha Karmi Vidyalaya' for establishing a school in the Village Beroo. The grievance, which has been raised by the petitioners, is based on the foundation that allotment has been made from land categorized as 'Gair Mumkin Aagor' (catchment area) of the pond of Village Beroo and as such, the allotment of the land in question is dehors to the rules and contrary to the judgment of this Court in the case of Abdul Rehman Vs. State of Rajasthan & Ors., reported in 2004 (4) WLC (Raj.) 435. Though the allotment was made in the year 2003, but suddenly, after 17 years, the Tehsildar has passed an order dated 16.07.2020 for demarcating the land in question whereupon, the instant writ petition came to be filed. 2. While arguing the matter on 10.02.2021, learned counsel representing the petitioners submitted that though the order of allotment had been cancelled long back but despite that, the revenue authorities were proceeding for making the demarcation of the land in question. Thereupon, this Court directed the learned AAG to file affidavit of the SDM concerned to explain as to how proceedings of demarcation have been initaited. In compliance of order dated 10.02.2021, an additional affidavit of the SDO, Jodhpur was filed wherein, it is asserted that villagers named Pep Singh and others, filed a revenue appeal against the order dated 23.05.2003 and the consequent Mutation Entry No.908 and the matter was remanded to the original authority to hear all the parties, makes physical verification of the land in question and to pass a fresh order thereafter. It is also mentioned in the affidavit that the order dated 20.05.2005 passed by the Revenue Appellate Authority, Jodhpur has been challenged by the Gram Panchayat Beroo by filing a Revision before the Board of Revenue, Ajmer wherein, an interim order was passed on 31.05.2005 staying the effect and operation of the order dated 20.05.2005 passed by the Revenue Appellate Authority. The affidavit also recites that Pep Singh and others also filed an application under Section 81 of the Land Revenue Act read with Section 151 CPC before the Board of Revenue which was dismissed by order dated 26.02.2007. The affidavit also recites that Pep Singh and others also filed an application under Section 81 of the Land Revenue Act read with Section 151 CPC before the Board of Revenue which was dismissed by order dated 26.02.2007. It is also stated that a Civil Suit for permanent injunction and declaration was also preferred by Pep Singh and others in relation to the same land and it has also been dismissed by the competent Civil Court by judgment dated 03.10.2019. An appeal was also filed by Pep Singh and Takhat Singh against the order whereby the Tehsildar directed demarcation of the land in question and the said appeal has been disposed of by the Revenue Appellate Authority by order dated 21.12.2020 directing the respondents to restrain from raising any kind of construction on the land in question and to maitnain status quo thereupon. The said order has also been challenged by the Principal of the School by filing a Revision No.271/2021 before the Board of Revenue, Ajmer wherein, the direction to maintain status quo has been reiterated and the trial court has been ordered to decide the application under Section 212 of the Land Revenue Act within two months. Most of these very facts are reiterated in the reply of the respondents. In the formal reply filed on behalf of the revenue authorities, it has been mentioned that physical verifcation of the land falling in Khasra No.854/1 and 854/2 was made by the revenue officials and it has been found that there is/are no adjoining disputed chunk of land and thus, the so called 'Aagor' land is not useful for collection/ flow of water. On these grounds, the prayers made in the writ petition have been controverted. 3. Shri Anil Vyas, Advocate representing the petitioners, vehemently and fervently urged that land recorded as 'Gair Mumkin Aagor' is not available for allotment under the statutes. In this regard, he placed reliance on the following judgments: (i) Hari Ram & Ors. vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.1852/2002), decided on 29.04.2003; (ii) Sumer Lal vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition NO.544/2020), decided on 07.09.2020; and (iii) Abdul Rehman Vs. State of Rajasthan & Ors., reported in 2004 (4) WLC (Raj.) 435 4. Per contra, Shri Sunil Beniwal, learned AAG representing the Revenue Authorities and Shri Manish Shishodia, learned Sr. (D.B. Civil Writ Petition No.1852/2002), decided on 29.04.2003; (ii) Sumer Lal vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition NO.544/2020), decided on 07.09.2020; and (iii) Abdul Rehman Vs. State of Rajasthan & Ors., reported in 2004 (4) WLC (Raj.) 435 4. Per contra, Shri Sunil Beniwal, learned AAG representing the Revenue Authorities and Shri Manish Shishodia, learned Sr. Advocate assisted by Shri Jaideep Singh, Advocate representing the respondent No.4 Gram Panchayat Beroo, vehemently and fervently opposed the submissions of Shri Vyas. They contended that firstly, neither the Department of Education nor the Principal of the School to whom the land was allotted, have been impleaded as party respondents in this writ petition and thus, the same is liable to be dismissed on this ground alone. It was further submitted that the order of allotment was reversed by the Revenue Appellate Authority by order dated 20.05.2005 which is under challenge before the Board of Revenue where, a stay has been passed on the order of the Revenue Appellate Authority and if this Court exercises its jurisdiction in this Public Interest Litigation, which has been filed after a gross delay of nearly 17 years from the date of issuance of the allotment order, it would virtually impede the jurisdiction of the Board of Revenue and thus, this writ petition is not fit to be entertained. In support of their contentions, learned AAG Shri Beniwal and learned Sr. Advocate Shri Shishodia placed reliance on the Judgments of Division Bench of this Court in the cases of Parma Nand Kumawat & Ors. vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition (PIL) No.5353/2019) decided on 14.07.2021 and Ultra Tech Cement Ltd. Vs. State of Rajasthan & Anr. (D.B. Special Appeal (Writ) No.73/2013) decided on 26.02.2016, and urged that as the Board of Revenue already seized of the controversy, this Court should refrain from interfering in the matter and the parties should be relegated to raise all their objections in the revision pending before the Board of Revenue. 5. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record. 6. 5. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record. 6. The issues as to whether the land in question was originally recorded as 'Gair Mumkin Aagor'; whether or not it acts as a catchment area for the village pond; and whether the allotment made for establishment of a school i.e. in the interest of public at large, are all under consideration of the Board of Revenue in the pending revision which was filed against the order dated 20.05.2005 passed by the Revenue Appellate Authority. It is relevant to mention here that the allotment of the land in question was made to the Education Department but the petitioners have not impleaded the Department as party respondent in this writ petition. The revision, referred to supra, pending before the Board of Revenue involves various disputed questions of facts and thus, this Court's extraordinary writ jurisdiction, cannot be invoked so as to enter into such disputed questions of facts. It may be reiterated that in a subsequent revenue proceeding filed by Shri Pep Singh and Shri Takhat Singh, the Revenue Appellate Authority, passed a restraint order on construction activities sought to be taken on the land in question while accepting the appeal under Section 225 of the Rajasthan Tenancy Act by order dated 21.12.2020. In a revision filed against the said order, the Board of Revenue has modified the said order and while directing the parties to maintain status quo, the trial court has been directed to decide the original application under Section 212 of the Land Revenue Act within two months. Apparently thus, the competent revenue courts are seized of the issues adverted to in this writ petition. Considering the pleadings of the parties, it cannot be doubted that the instant writ petition involves seriously disputed questions of facts. While exercising the high prerogative writ jurisdiction, this Court cannot enter into and decide such disputed questions of facts and the appropriate forum to adjudicate such issues would be the revenue court/s concerned. 7. Considering the pleadings of the parties, it cannot be doubted that the instant writ petition involves seriously disputed questions of facts. While exercising the high prerogative writ jurisdiction, this Court cannot enter into and decide such disputed questions of facts and the appropriate forum to adjudicate such issues would be the revenue court/s concerned. 7. Otherwise also, the grievances raised by the petitioners in this writ petition are unfounded at this moment because even the Board of Revenue, in the order dated 25.03.2021, has directed the parties to maintain status quo over the land in question till disposal of the application filed by Shri Pep Singh & others under Section 212 of the Land Revenue Act. If at all, the petitioners want to be heard in those proceedings, they can move an application for impleadment which would be considered as per law. In any event, keeping in view the ratio of this Court's Judgment in the cases of Ultra Tech Cement Ltd. (supra) and Parma Nand Kumawat (supra), this Court is not inclined to exercise its public interest jurisdiction so as interfere in the matter. At the same time, the Board of Revenue, Ajmer is requested to expedite the decision of the Revision No.271/2021. However, for the sake of maintaining equities and in order to prevent further complications, it is directed that till the revision pending before the Board of Revenue is decided, no construction shall be raised on the land in question. 8. The writ petition is disposed of with the above observations. 9. No order as to costs.