Buddhu Khan And Ors vs Board Of Revenue And Ors

Sangeet Lodha,J.

These intra court appeals are directed against order dated 16.7.18 passed by the learned Single Judge of this Court, whereby the writ petitions

preferred by the appellants assailing the order dated 3.4.18 passed by the Board of Revenue, Rajasthan, impleading the applicants/private respondents

as party to the proceedings in Revision Petitions No.10669/07, 8459/07, 8458/07 and 8460/07, have been dismissed.

The facts relevant are that the appellants herein filed a suit for declaration, correction of record and permanent injunction before the Assistant

Commissioner Colonisation-I, Bikaner in respect of the land comprising khasra no.9 ad measuring 100 bighas of Village Deharia, Tehsil Kolayat,

District Bikaner on the basis of the old cultivatory possession. After chakbandi, the khasras of the aforesaid land ad measuring 100 bighas, were re-

numbered as murabba No.67/12 kila nos.1 to 25, 67/13 kila nos.1 to 25, 67/4 kila nos.1 to 25 and 67/5 kila no.1 to 25. During the pendency of the suit,

the land in question was allotted to the oustees of Mahajan Field Firing Range under Rule 24 of Rajasthan Colonization (Allotment & Sale of the

Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 (for short ""the Rules of 1975""). The legality of the allotment made by the

Commissioner Colonisation Bikaner of the land comprising murabba no.67/3 kila nos.1, 2, 5, 6, 8 to 13, 15 to 19, 20 to 25 & murabba no.67/4 kila nos.1

to 11, total 34.16 bighas command/uncommand land in favour of Smt. Suraj Kanwar; land comprising murabba no.67/11 kila no.1 to 25 and murabba

no.67/12 kila no.1 to 7, total 32 bighas in favour of Shri Bhagwana Ram; land comprising murabba no.67/5 kila no.1 to 25 and murabba no.67/4 kila

no.22 to 25, total land measuring 27-13 bighas in favour of Panna Ram and the land comprising murabba no.67/20 kila no.1 to 25 and 67/12 kila no.11

to 20, total 34-10 bighas in favour of Chaina Ram, was assailed by the appellants by way of separate revision petitions preferred under Section 83 of

Rajasthan Land Revenue Act, 1956 before the Board of Revenue. The revision petitions were admitted by the Board of Revenue and by way of

interim order Commissioner Colonisation was directed to maintain the status quo regarding the disputed land at the site as also in the revenue record.

The legality of the allotment made in favour of the aforesaid allottees was assailed by the appellants on the ground that the Colonization

Commissioner is neither the State nor the representative or the delegatee of the powers of the State Government and therefore, the allotment made is

illegal and without jurisdiction. That apart, with reference to the pending suit, in para no.3 of the revision petition, the appellants raised the ground as

under:

That a suit for declaration, permanent injunction and correction of entries in the revenue record is pending before the Assistant Colonisation

Commissioner (I), Bikaner since 2005 and an order of temporary injunction has been passed in favour of the petitioners by the Additional Colonization

Commissioner, Bikaner on 30.11.2006 which is still in force. The copy of the stay order is being filed with the memo of revision petition. Furthermore,

the allotment is a transfer and during the pendency of suit or proceeding, the property in question cannot be transferred to any other person as per the

provisions of Section 52 of the Rajasthan Tenancy Act.

The applicants/private respondents Sheochand who was allotted the land measuring 8 bighas comprising murabba no.67/4 kila no.12 to 19, 0.17

biswas in kila no.20 & 0.14 biswas in kila no.21, total 9 bighas & 11 biswas and Sohanlal & others who were allotted the land measuring 25 bighas

comprising murabba no.67/13 preferred applications seeking impleadment as party respondents in the revision petitions pending before the Board of

Revenue, which were allowed vide order dated 3.4.18. Aggrieved thereby, the writ petitions preferred by the appellants stand dismissed by the learned

Single Judge. Hence, these appeals.

The Board of Revenue allowed the applications observing that after filing of the original suit by the appellants, the lands comprising murabba

no.67/13 and murabba no.67/4 have been allotted in favour of the applicants as oustees of Mahajan Field Firing Range and thus, keeping in view their

interest in the land in question, it would be appropriate to extend an opportunity of hearing to them.

The learned Single Judge has dismissed the writ petitions observing that the discretion exercised by the Board of Revenue in permitting the

impleadment of applicants as party respondents in the proceedings does not suffer from any illegality, irregularity, perversity or error apparent on the

face of record warranting interference in exercise of extra ordinary/supervisory writ jurisdiction of this Court. The Court further observed that no

prejudice would be caused to the appellants if the private respondents are heard in the matter.

Learned counsel appearing for the appellants contended that it is well settled that in any proceedings, the person against whom relief is claimed and

whose presence is indispensable for adjudication of the dispute is necessary party and thus, the private respondents herein against whom no relief is

claimed by the appellants in the revision petition filed before the Board of Revenue could not have been impleaded as party respondents. Learned

counsel submitted that the appellants have not challenged the legality of allotments made in favour of the private respondents and thus, their rights over

the land allotted in their favour are not likely to be adversely affected by the decision of the Board of Revenue in the revision petitions. Drawing the

attention of the court to the allotment orders impugned in the revision petitions filed, learned counsel submitted that the private respondents herein have

no right whatsoever over the land subject matter of the revision petitions and thus, they are neither necessary nor proper party in the matter. Learned

counsel submitted that the suit has been filed by the appellants under the provisions of Rajashan Tenancy Act, 1955 whereas, the allotment impugned

before the Board of Revenue by way of revision petitions are made under the Rajasthan Colonization Act, 1954 and the rules made thereunder. In this

view of the matter, the Board of Revenue has seriously erred in impleading the applicants/ private respondents as party to the revision petitions on

account of pendency of the suit seeking declaration before the Assistant Commissioner Colonisation-I, Bikaner. Learned counsel submitted that the

appellants cannot be compelled to contest the matter against the persons against whom no relief is claimed by them.

On the other hand, learned counsel appearing for the private respondents submitted that admittedly, the appellants have sought declaration of

khatedari rights over the land measuring 100 bighas comprising khasra no.9 which include the lands allotted in favour of the private respondents

herein. Drawing the attention of the Court to the ground raised in the revision petition noticed as above, learned counsel for the respondents contended

that in the revision petition filed, the relief is sought by the appellants on the ground that a suit for declaration preferred by them in respect of the land

in question is pending consideration before the Assistant Commissioner Colonisation-I and therefore, by virtue of provisions of Section 52 of Rajasthan

Tenancy Act, 1955 ('Act of 1955'), the property in question could not have been transferred to any person and thus, the decision of the Board of

Revenue on the issue raised is bound to affect the rights of the private respondents who have been allotted the land in similar manner which is

admittedly subject matter of the suit pending before the court of competent jurisdiction. Drawing the attention of the Court to the application

(Annexure R/4/11) preferred by the appellants before the Tehsildar, Colonisation, Kolayat No.2, learned counsel submitted that the appellants have

objected the entry of the land allotted in favour of the private respondents on the strength of the interim order passed by the Board of Revenue in the

revision petitions pending stating that the same relates to the land measuring 100 bighas comprising murabba no.67/4, 67/5, 67/12 & 67/13 and as a

matter of fact, relying upon the said interim order, Tehsildar, Colonisation directed the Patwari Halka to make the entry regarding the order passed in

the revenue record. Learned counsel submitted that the mutation of the land in favour of the private respondents made by the Tehsildar vide order

dated 14.11.17 has also been questioned by the appellants by way of an appeal (Annexure R/4/13) under Section 75 of the Land Revenue Act, 1956

wherein also it is the specific ground taken that the stay order dated 13.8.13 passed by the Board of Revenue is operative in respect of the land

measuring 100 bighas comprising murabba no.67/4, 67/5, 67/12 & 67/13. The legality of the mutation effected has also been assailed by the appellants

on the ground of pendency of the suit. Learned counsel submitted that to the prejudice of the private respondents, the interim stay was granted by the

Sub Divisional Officer, Kolayat in favour of the appellants on the grounds raised as aforesaid. Learned counsel submitted that though the appellants

have not questioned the legality of the allotment made in favour of the private respondents but then, it is apparent on the face of record that their rights

are bound to be adversely affected by the decision of the Board of Revenue on the issues raised in the revision petitions and therefore, the order

impugned passed by the Board of Revenue impleading the private respondents as party to the revision proceedings cannot be faulted with. Learned

counsel submitted that the judicial discretion exercised by the Board of Revenue taking into consideration the facts and circumstances of the case, has

rightly been declined to be interfered with by the learned Single Judge of this Court in exercise of the supervisory jurisdiction.

Learned AAG appearing for the State submitted that the subject matter of the suit pending before the Assistant Commissioner Colonisation-I,

Bikaner, which is made basis for the relief claimed in the revision petition includes the lands allotted to the private respondents herein and therefore, it

cannot be said that their rights are not going to be adversely affected by decision of the Board of Revenue in the revision petitions. Learned AAG

submitted that taking into consideration the conduct of the appellants in using the interim order passed by the Board of Revenue so as to seek the relief

against the private respondents in the appeal filed before the Sub Divisional Officer questioning the legality of the mutation entry, it can be fairly

concluded that the rights of the private respondents are likely to be adversely affected and thus, so as to protect their rights if the Board of Revenue

consider it appropriate to implead them as party to the proceedings, the discretion exercised does not warrant any interference by this Court.

Replying the arguments advanced by the counsel for the private respondents and the learned AAG, learned counsel appearing for the appellants

submitted that the orders passed by the Board of Revenue obviously relate to the lands subject matter of challenge in the revision petitions and

therefore, if the appellants have used the said order for obtaining the interim relief in the appeals filed before the Sub Divisional Officer, it is always

open for the private respondents to bring the correct petition before the Sub Divisional Officer but on that account, they cannot become entitle for

impleadment as party respondents in the revision petitions pending before the Board of Revenue. Learned counsel submitted that the private

respondents are not party defendants in the suit filed by the appellants before the Assistant Commissioner Colonisation-I and if their rights are

adversely affected on account of the land being allotted in their favour, nothing prevented them from filing an appropriate application in the pending

suit for impleading them as party defendants.

We have considered the rival submissions and perused the material on record.

Indubitably, the lands allotted in favour of the private respondents is subject matter of the suit pending before the Court of Assistant Commissioner

Colonisation-I wherein the appellants have sought the relief of correction of entries, declaration, and permanent injunction. It is true that the appellants

have not challenged the allotment made in favour of the private respondents in the revision petitions preferred before the Board of Revenue but the

fact remains that in the revision petitions filed, it is the specific ground taken that during the pendency of the suit by virtue of provisions of Section 52

of the Act of 1955, the land in question could not have been transferred in favour of the respondents therein. Obviously, the verdict of the Board of

Revenue on the issue raised may adversely affect right of the private respondents herein who have been allotted the land in respect whereof the suit

preferred by the appellants is pending before the Board of Revenue. In this view of the matter, though the appellants have not sought relief against the

private respondents herein qua the allotments made in their favour but it cannot be said that their rights are not likely to be adversely affected by the

decision of the Board of Revenue. As noticed above, even the interim order passed by the Board of Revenue in the revision proceedings is being used

by the appellants for obtaining the interim relief against the private respondents herein in respect of the mutation effected in their favour on the

strength of the allotment order made in their favour in the similar manner.

There cannot be a quarrel with regard to the proposition that being dominus litis the appellants herein cannot be compelled to contest against the

persons against whom they do not wish to contest. But then, the Court has ample power for impleadment of a party to the proceedings where the said

party is necessary or proper party and presence of such party before the Court is necessary for complete and effective adjudication of the subject

matter. As noticed above, it is not in dispute that the appellants have claimed the relief in the revision petition filed on the ground of pendency of the

suit seeking declaration, the subject matter whereof, includes the land allotted in favour of the private respondents herein as well. If it is held by the

Board of Revenue that on account of the pendency of the suit, subject matter where of includes the allotment made in favour of the private

respondents as well, the allotment could not have been made by the competent authority, obviously, the Revenue Board being higher court in

hierarchy, its verdict on the ground raised by the appellants in the revision petition may adversely affect the right and interest of the private

respondents in whose favour the allotment is made in similar manner and on the strength of the allotment made, the land already stands entered in the

revenue record in their name. Moreover, it has come on record that claiming the parity on the strength of the interim order passed by the Board of

Revenue in pending proceedings, the appellants have objected the mutation effected in favour of the private respondents by the competent authority

and thus, in the considered opinion of this Court, the private respondents may not be necessary party to the proceedings, but then, they are proper

party and therefore, the order impugned passed by the Board of Revenue exercising judicial discretion in impleading them as party respondents for

complete and effectual adjudication of the dispute, has rightly been declined to be interfered with by the learned Single Judge in exercise of extra-

ordinary/supervisory jurisdiction under Article 226/227 of the Constitution of India.

No case for interference by us in intra-court appeal jurisdiction is made out.

The special appeals are therefore, dismissed. No order as to costs.