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2023 DIGILAW 1785 (RAJ)

Yasin Khan v. State of Rajasthan

2023-09-18

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT 1. The matter pertains to the year 1997, and thus, listed under the category “Oldest Cases for Early Disposal”. 1.1. This petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: “It is, therefore, most respectfully prayed that :- (i) by an appropriate writ, order or direction, the orders dated 5.11.1996 and 5.2.1997 (Annexs.9 and 12 respectively) be declared illegal and be quashed and set aside. (ii) by an appropriate writ, order or direction, the proceedings initiated by the respondent No.3 under the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 illegal and be quashed; (iii) by an appropriate writ, order or direction, the consequential proceedings taken by the respondent No.3 be also declared illegal and be quashed and the respondent No.3 may be directed to restore the possession of the properties of the petitioners taken over on 10.2.1997 and exemplary compensation be awarded to the petitioners for the unauthorised act of respondent No.3 and personal liability be fixed of the officer who has passed the order for paying such compensation. (iv) any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners. (v) costs of the writ petition may kindly be awarded to the petitioners.” 2. Brief facts of the case, as placed before this Court by the learned counsel of the petitioners, are that in the year 1988, the respondents no.7 & 8 purchased a land from the respondent no.4 vide a registered sale deed dated 14.10.1988; whereafter, the respondents no.7 & 8 started construction of the shops over some part of the land. The petitioners purchased certain properties, as mentioned in the respective Schedule A, from the respondents no.7 & 8 by sale deed/agreement to sell. 2.1. The petitioners received a notice dated 24.10.1996 issued under Section 4 of the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as ‘Act of 1964’) by the Estate Officer (SDO), Rajgarh, seeking eviction of the petitioners from the premises in question, because originally, the land was allotted for public purposes, but the land in question in an unauthorized manner, was let out on rent to certain persons. 2.2. 2.2. The petitioners raised preliminary objections before the respondent no.3-Estate Officer (SDO), Rajgarh on 04.11.1996, whereafter, the Estate Officer vide the impugned order 05.11.1996 rejected the preliminary objections of the petitioners, while holding that the petitioners were unauthorized occupants over the property in questions and directed their eviction within a period of 30 days thereafter. 2.3. Aggrieved by the aforementioned order dated 05.11.1996, the petitioners preferred an appeal before the learned District Judge, Churu; the said appeal was dismissed by the learned Additional District & Sessions Judge, Rajgarh vide the impugned order dated 05.02.1997. 2.4. Thereafter, the respondent authorities without giving any reasonable time to the petitioners to vacate the respective premises, took possession of the property on 10.02.1997. 3. Learned counsel for the petitioners submitted that the determination of the question regarding title over the property cannot be made by the executive fiat in the proceeding under the Act of 1964, rather the same can only be determined by a competent Civil Court. 3.1. Learned counsel further submitted that the learned Court below has committed gave error of law, in holding that the Act of 1964 was applicable in the present case, because there was no material placed on record to show that the land in question was vested in the State Government. 3.2. Learned counsel also submitted that after the notice issued by the Estate Officer on 24.10.1996 to the petitioners, first date of hearing was on 04.11.1996, which clearly shows that no proper opportunity of hearing was granted to the petitioners. It was further submitted that the Estate Officer instead of deciding the preliminary objections, at the first instance, chose to decide the matter as a whole, that too while giving findings contrary to law. 3.3. Learned counsel further submitted that the petitioners are not the unauthorized occupants over the property in question, as they came into possession thereof, by lawfully and bonafidely purchasing the same. Therefore, as per learned counsel, the impugned orders are highly illegal and not sustainable in the eye of law. 3.4. In support of such submissions, learned counsel relied upon the following judgments:- (a) State of Rajasthan Vs Padmavati Devi (Smt) (Dead) by LRs. & Ors. 1995 Supp2 SCC 290; (b) Government of A.P. Vs Thummala Krishna Rao & Anr. (1982) 2 SCC 134 ; (c) Sita Ram & Anr. Vs State of Rajasthan & Ors. 3.4. In support of such submissions, learned counsel relied upon the following judgments:- (a) State of Rajasthan Vs Padmavati Devi (Smt) (Dead) by LRs. & Ors. 1995 Supp2 SCC 290; (b) Government of A.P. Vs Thummala Krishna Rao & Anr. (1982) 2 SCC 134 ; (c) Sita Ram & Anr. Vs State of Rajasthan & Ors. (DB Civil Writ Petition No.294/1978, decided on 27.07.1988) by a Division Bench of this Hon’ble Court at Jaipur Bench; (d) Gokul Vs Rajasthan Muslim Wakf Board (S.B. Civil Writ Petition No.713/1987, decided on 09.08.1998) by a Coordinate Bench of this Hon’ble Court; (e) Dr. Shekhar Shah Vs Government of Maharashtra (LPA 311/2016, decided on 17.08.2016) by a Division Bench of the Hon’ble High Court of Delhi; (f) State of Rajasthan Vs Smt. Mad Kanwar & Ors (D.B. Civil Special Appeal (Writ) No.361/2007, decided on 17.11.2016) by a Division Bench of this Hon’ble Court; and (g) Nirmal Jeet Singh Hoon Vs Irtiza Hussain & Ors (2010) 14 SCC 564 . 4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioners, submitted that the land in question was allotted free of cost, and the nature of the land was “Refay-Aam” which means that the land was solely to be used for public utility and to the benefit of each and every citizen of Rajgarh. It was further submitted that the ownership of the land in question was vested in the State Government for the said purposes. 4.1. It was also submitted that the condition as prescribed for the land in question was that “NOBODY WILL HAVE ANY RIGHT TO SELL OR MORTGAGE THIS LAND” and therefore, the land in question was forever to be used for public utility, and thus, no property rights or ownership rights could have been created over the land in question. 4.2. 4.1. It was also submitted that the condition as prescribed for the land in question was that “NOBODY WILL HAVE ANY RIGHT TO SELL OR MORTGAGE THIS LAND” and therefore, the land in question was forever to be used for public utility, and thus, no property rights or ownership rights could have been created over the land in question. 4.2. It was further submitted that one Seth Tansukh Rai S/o Ganpat Rai filed applications dated 22.02.1921 & 19.05.1921 seeking allotment of 5,000 yards of land to construct a water tank (Kund) for water storage of his Dharmshala, whereafter, the Bikaner State Revenue Secretary/ Member of Council, on the approval of the Cabinet and Revenue Minister, allotted 5,000 yards of land for construction of the water tank (Kund) on 02.11.1921, subject to the condition that the public utility purpose of the land shall not be changed in any manner whatsoever. 4.3. It was also submitted that as per the report of the Commissioner, who was appointed by the concerned Court on 31.01.1989 and as per the sanction letter of Municipal Body, Rajgarh, out of 5,000 yards, over 1650 yards of land a school was constructed and over the rest of 3350 yards, 3 water tanks were constructed. Therefore, as per learned counsel, therefore, the petitioners’ claims as raised in the present case, are completely false and baseless. 4.4. It was further submitted that the aforementioned sale deed so executed in favour of the petitioners is void, because as per the conditions of allotment of the land, the same could not have been sold or mortgaged. It was also submitted that the Municipal Body, Rajgarh vide letter no. 5498 dated 14.10.1996 informed that the enquiry was initiated against the employees, who were involved in the matter of grant of permission in regard to Refay-Aam land in question. 4.5. It was further submitted that the Estate Officer issued notices to the petitioners and all concerned persons, after adopting the due procedure as laid down under the Act of 1964, and also after giving the proper opportunity of hearing to all concerned, including the present petitioners. Therefore, as per learned counsel, the impugned orders are justified in law. 5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 6. Therefore, as per learned counsel, the impugned orders are justified in law. 5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 6. This Court observes that the petitioners had purchased the respective properties as shown in the relevant document Schedule A from the respondents no.7 & 8 by sale deed/agreement to sell. Thereafter, the petitioners had received a notice under Section 4 of the Act, 1964 seeking their eviction from the premises in question, because originally, the land was allotted for the public purposes, but the same was unauthorizedly let out on rent to certain persons. The Estate Officer vide the impugned order 05.11.1996 rejected the preliminary objections so raised by the petitioners against the aforementioned notice and directed the petitioners to vacate the premises in question. The petitioners against the said order dated 05.11.1996 preferred an appeal, but the same was dismissed by the learned Appellate Court below vide the impugned order dated 05.02.1997. 7. This Court further observes that Seth Tansukh Rai S/o Ganpat Rai filed applications dated 22.02.1921 & 19.05.1921 seeking allotment of 5,000 yards of land for the purpose of construction of a water tank (Kund), whereupon, the land in question was allotted for the said purpose on 02.11.1921, subject to the condition that the public utility purpose of the land shall not be changed in any manner whatsoever. 8. This Court also observes that as per the clear condition/note mentioned in the patta dated 02.11.1921 of the land in question, the same cannot be put to sale to any person and the land in question was to be used for public purposes forever. The said Condition is reproduced as hereunder:- ^^;s iVVs jh tehu esa dq.M djklh rSl gos iVVs jh tehu jsu o cS; djus dk dksbZ us v[R;kj ugha gSA^^ 9. This Court further observes that the Estate Officer (SDO), while finding that the land in question is a public property, issued the notice under the Section 4 (2) of the Act, 1964 and initiated the proceedings in pursuance thereof, and passed the impugned order dated 05.11.1996. This Court also observes that it is clear that the land in question was allotted for public purposes, on the condition that it would not be subject to any sale/mortgage. 10. This Court also observes that it is clear that the land in question was allotted for public purposes, on the condition that it would not be subject to any sale/mortgage. 10. This Court also observes that the impugned orders were passed by the Estate Officer (SDO) as well as the learned Court below, after taking into due consideration the material and evidence placed on record before them, and thus, the said orders are perfectly justified in law. 11. The judgments cited on behalf of the petitioners also do not render any assistance to their case. 12. Thus, in light of the aforesaid observations and looking into the peculiar factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition. 13. Consequently, the present petition is dismissed. All pending applications stand disposed of.