Iqbal Singh vs State of Rajasthan and Others

Rajendra Saxena, J.—The petitioner through this writ petition prayed that the order dated 7.9.90 (Annex. 8) passed by the SDO (Revenue), Hanumangrah under Clause 8(2) of the Rajasthan Colonization (General Colony) Conditions, 1955 (hereinafter referred to as ''the Colony Conditions, 1955'') be declared a nullity; that the action taken by the Tehsildar (Revenue), Hanumangrah (Respondent No. 3) vide proceedings dated 10/9/90 (Annex. 12) as well as the action taken by the respondents No. 2 and 3 on 14.9.90 be quashed and they be restrained from interfering in his cultivatory possession on his agricultural land comprising Kila Nos. 3, 4, and 5 of Square No. 59/283 of Chak No. 1 LGW of Hanumangarh Tehsil.

Briefly the relevant facts are that the petitioner and his brother Narayan Singh (respondents No. 17) are the recorded khatedars of agricultural land of Square No. 59/283(65) situated in Chak 1 LGW of Panchayat Dabli Maulvi Vas alongwith other agricultural holdings. The agricultural lands in Chak 1 LGW are irrigated by the Canal. The respondent No. 2 by his order dated 5.4.1983 (Annex. 1), which was subsequently amended by his order dated 18.2.1984 (Annex. 2) had held that in fact no ''Rasta'' (Passage) was in use through Killa Nos. 1 to 5 of Square No. 58/283, 59/283 and 60/283 and that the Settlement Department had no authority to grant the said passage. He had accordingly ordered for cancelling the entries pertaining to the said passage in the revenue record. However some of the residents of the Chak 1 LGW filed an application dated 19/11/86 before the respondent No. 2 for recalling his orders Annexs. 1 and 2. The said application was numbered as case No. 137/87, wherein notices were issued to Narayan Singh and the next date fixed in the said case was 10.10.90. It appears that on an application filed by Ramlal son of Net Ram, the SDO inspected the site on 18.8.90. He partly heard the arguments, which were not concluded and the case was fixed on 20.9.90. As per order sheet Annex. 3, it appears that on 17.7.90, some villagers of Chak 1 LGW also filed an application Annex. 4 alleging that Sri Ram Naik had closed their way passing through Khasra Nos. 1 and 10 of Pillar No. 56/284, which was in use for last more than 30 years and prayed that the said passage be opened. Thereupon, the Sarpanch alongwith Panchas inspected the site and found that the said passage was recently closed. The Gram Panchayat, therefore, requested the SHO, Hanumangarh for taking necessary action. Thereupon, the SHO, Hanumangarh after necessary enquiry filed a complaint u/s 133 CrPC in the Court of SDM Hanumangarh, who passed a conditional order against Sri Ram directing him to open the said passage immediately and to show cause. The Gram Panchayat, Dabli Rathan also filed an application dated 10.5.90 (Annex. 6) under Clause 8(2) of the Colony Conditions, 1955 before the respondent No. 2, alleging that the villagers of Chak 1. LGW used to pass through Kila No. 1 of Pillar No. 57/284 for last 25-30 years, which has been recently closed by the non-applications belonging to Nayak Community described in the said application. The Gram Panchayat requested /recommended that a new way passing through Kila Nos. 5, 6 and 15 of Pillar No. 57/284 recorded in the khatedari of the said non-applicants be granted so that the villagers may reach the Madi of Dabli Rathan and Panchghar Hqr. etc. A resolution passed by the Gram Panchayat on 16/7/90 (Annex. 7) was also enclosed with the said application. On an application filed by the respondents No. 4 to 16, the respondent No. 2 inspected the site on 18.8.90 and by his impugned order dated 7.9.90 (Annex. 8) purporting to hare panel in exercise his power under Clause 8(2) of the Colony Conditions, 1955 sanctioned a passage through Square Nos. 58/283 and 59/283 adjacent to the boundary line of Square Nos. 58/283 and 59/283 without giving any notice to the petitioner or Narayan Singh (respondent No. 17). He also sanctioned another passage through Kila Nos. 1 and 10 of Square No. 57/284 and directed the Tehsildar (respondent No. 3) to get the aforesaid sanctioned passages opened on the spot and to make necessary entries in the revenue records. It may also be mentioned here that prior to the application dated 7.9.90 filed by the respondents No. 4 to 16, some of the respondents had also earlier filed an application before the Tehsildar u/s 251 of the Rajasthan Tenancy Act, 1955 (in short ''the Act, 1955'') for opening the passage, who by his order dated 28.7.90 (Annex. 10) had dismissed the same observing that petitioner''s crops were standing on Killa Nos. 3, 4 and 5 of Pillar No. 59/283 and that in the revenue record, the disputed passage passing through Pillar No. 59/283 had already been cancelled by the SDO in the year 1983.

Narayan Singh (respondent No. 17) filed an appeal against the impugned order dated 7.9.90 (Annex. 8) before the Revenue Appellate Authority, Sriganganagar. He also filed a stay application, which was accepted and the R.A.A. by his order dated 10.9.90 (Annex.ll), stayed the operation of the impugned order dated 7.9.90 (Annex. 8) and directed that status quo, which existed on 7.9.90, be maintained.

It may be mentioned here that 8th & 9th Sept.,90 were holidays being second Saturday and sunday. It is the case of the petitioner that the respondents No. 2 and 3 were served with the stay order dated 10.9.90 (Annex.ll) passed by the R.A.A. on the same day. As per order sheet Annex. 12, it appears that the Tehsildar (respondent No. 3) went to the spot on 10.9.90 and found that in Killa Nos. 3, 4 and 5 of Pillar No. 58/283 of Chak 1 L.GW, petitioner''s crops of ''Narma'' (cotton), ''San'' (Jute) and ''Gawar'' were standing. He assessed the value thereof for Rs. 1880/-. The Tehsildar directed that the said assessed amount of Rs. 1880/- be got deposited by the villagers in the Govt. Treasury. He also directed the Patwari Halka to get the sanctioned passage opened. On the same day after receipt of the stay order Annex.ll, the Tehsildar respondent No. 3 again drew another order sheet Annex. 13, wherein he directed that the copy of the said stay order be sent to the Patwari Hakla and intimation be sent to the SDO for further directions informing that the sanctioned way has been got opened on 9.9.90.

On an application filed by the Govt. Advocate, the R.A.A., after hearing the parties by his order dated 12.9.90 (Annex. 14) modified his earlier stay order and directed that the status quo in respect of the impugned way prevailing as on 12.9.90 be maintained.

It is the case of the petitioner that upto 14.9.90 his crops were standing on the newly sanctioned disputed passage; that on that day, the SDO alongwith Tehsildar and the Police force reached the disputed lands and began to destroy his standing crops in order to open the disputed passage; that he had brought a Camera man to prepare a video film of the illegal actions taken by the SDO and the Tehsildar; that the Video film was prepared, but the SDO seized the said video cassette and handed it over to the SHO Shri Kataria. According to the petitioner, the SDO had no jurisdiction to pass any order under Clause 8(2) of the Colony Conditions, 1955, because Chak 1 LGW has not been declared as a colony area. He has, therefore, prayed that the impugned order dated 7.9.90 (Annex. 8) be declared a nullity and that the aforementioned arbitrary and illegal actions taken by the Tehsildar and the SDO be quashed.

This writ petition was admitted for hearing on 10.10.90 and an ad interim order to the effect that the status quo as it existed on 10.10.90 shall be maintained and that if the crops were standing, those shall not be destroyed, was granted.

Despite sufficient opportunity, the respondents have not filed any reply.

I have heard N.S. Acharya learned Counsel for the petitioner, S.K. Vyas, learned Addl. Govt. Advocate for respondents No. 1 to 3 and K.R. Vyas appearing for the respondents No. 6 and 12 at length and perused the relevant record.

Mr. N.S. Acharya has vehemently contended that Chak 1. LGW has not been declared as a colony area and as such the provisions of the Colony Conditions, 1955 do not apply in this case and, therefore, the SDO Hanumangarh had no authority to pass the impugned order sanctioning the disputed passage under Clause 8(2) of the Colony Conditions, 1955. He has further contended that since the petitioner is the recorded co-tenant of the disputed land, respondents No. 2. and 3 had no authority to destroy his standing crops. Therefore, their illegal actions have contravened the provisions of Article 300A of the Constitution and those should be quashed.

S.K. Vyas, learned Addl. Govt. Advocate, has clearly conceded that as per Govt. Notification dated 30.11.1971 published in Rajasthan Gazette dated 30.12.1971, Chak 1 LGW has not been declared as a colony area and that despite frantic search made by him, he could not lay his hands on any notification by which, Chak 1 LGW has been declared as a colony area. He has, therefore, submitted that in view of this, the provisions of the Colony conditions, 1955 do not apply in this case and hence the impugned order Annex. 8 passed by the SDO cannot be supported.

K.R. Vyas, learned Counsel appearing for the respondents No. 6 and 12 has also stated that he has no objection if the impugned order Annex. 8 is quashed.

I have given my thoughtful consideration to the rival submissions made before me.

A bare perusal of impugned order dated 7.9.90 (Annex. 8), unmistakably reveals that it was passed by the SDO (Revenue), Hanumangarh on the applications filed under Clause 8(2) of the Colony Conditions, 1955. The Rajasthan Colonisation General Colony Conditions, 1955 have been prescribed by the Govt. of Rajasthan in exercise of powers conferred by Section 28 read with Sub. Section (1) of Section 7 of the Rajasthan Colonisation Act, 1954 (briefly, ''the Act, 1954''). Clause 8(2) of the Colony Conditions lays down that when the grant is made for agricultural purpose in colony area, the Government reserves and excepts to itself the right to create or reserve a right of way in favour of the Government or any person or persons or any class of persons or of the public generally, and the right to construct inter or intra village roads, through or across the said land or any part thereof, and not over a strip exceeding at any point 4 gathas in width, as the Collector, may, from time to time, in public interest or for the benefit of any or all land holders of the Chak or village or for the protection and maintenance of any property or exercise of any right reserved to the Government, considers desirable and may by an order in writing, direct. It further provides that no compensation of any kind shall be chaimable by the grantee or any other person in respect of any area acquired or reserved in exercise thereof but in respect of such area no water rate, soil advantage rate, betterment fee, land revenue taxes or cesses shall be payable by the tenant. The State Govt. by its notification No. 3 (Kha)(12) Raj./Colo./13 dated Nov. 8, 1973 has delegated the powers of Collector under Clause 8(2) of the Colony Conditions, 1955 to the respective Sub Divisional Officers in whose territorial jurisdiction, such colony area falls. Therefore, the provisions of the Colony Conditions, 1955 can only be pressed into service in respect of a colony area.

Section 2(ii) of the Act defines ''colony'' which means any area to which the Rajasthan Colonisation Act, 1954 shall be applied by the order of the State Govt. published in the official gazette.

Chak 1 LGW falls within the Hanumangarh Tehsil of district Sri Ganga Nagar. The Govt. by its notification No.l6(129)Rev./E/58/Irg. dated 21.1.59, in exercise of the powers conferred by Clause (ii) of Section 2 of the Act, 1954 directed that the provisions of the said Act shall apply to the villages mentioned in the Schedule annexed thereof. In that schedule, Chak 1 LGW does not find an place. Subsequently, the Revenue (Colonisation) Department, Govt. of Rajasthan by its Standing Order No. 138 dt. 30.11.71, which was published in the Rajasthan Gazette dt. 30.12.71, declared certain Colonisation Tehsils and their villages alongwith their area as colony area wherein some of the Chaks for village Dabli Kala and Dabli Kliurd were also included. But in those Chaks and villages also, Chak 1 LGW has not been included. This Court by its order dated 4.2.93 had directed the learned Add). Govt. Advocate to enquire from the Colonisation Commissioner, Bikaner and to submit any notification by which Chak 1 LGW Tehsil Hanumangarh has been declared as a colony area. In pursuance thereof, Add). G.A. has submitted a Photostat copy of the Rajasthan Gazette dt. 30.12.71 Part 4(Ga) pages 147 to 155 and clearly stated that Chak 1 LCJW has not been declared as a colony area by the State Govt. till this date.

In such circumstances, the only irresistible conclusion that can be drawn, is that Chak 1 LGW has not been declared as a colony area u/s 2(ii) of the Act, 1954 and, therefore, the provisions of the Colony Conditions, 1955 could not be pressed into service by the SDO (respondent No. 2) in sanctioning the disputed passage on the khatedari lands of the petitioner. Hence the impugned order dated 7.9.90 (Annex. 8) is clearly without jurisdiction, non est and a nullity, which cannot be sustained.

It may also be mentioned here that since the Tehsildar(Revenue), Hanumangarh had rejected the application of the villagers u/s 251 of the Rajasthan Tenanct Act, 1955 for opening the disputed passage passing through the agricultural land of Pillar No. 57/283 and 59/283, the villagers or respondents No. 4 to 16 could seek their remedy by filing a regular suit in a competent Civil Court for their alleged right of way. Hence, the SDO also did not have any jurisdiction u/s 251 of the Rajasthan Tenancy Act, 1955 to grant or sanction the disputed passage. Therefore, on this count also, the impugned order Annex. 8 is without jurisdiction and the same deserves to be quashed.

A careful perusal of ordersheet dated 10.9.90 (Annex. 12) shows that the petitioner''s crops were standing on Killa Nos. 3, 4 and 5 of Pillar No. 59/283 and Killa Nos. 4 and 5 of Pillar No. 58/283. His crops were attached and value thereof was assessed at Rs. 1880/-. It is also evident that by that time, the disputed passage was not get opened on the spot. On the other hand, the Tehsildar had mentioned in Annex. 12 that a letter be issued to the Patwari Halka for getting the sanctioned passage opened. Therefore, till 10.9.90, infact the disputed sanctioned passage was not opened on the spot and petitioner''s crops were standing thereon. In such circumstances, it was the duty of the Tehsildar to have complied-with the stay order of the Revenue Appellate Authority dated 10.9.90 Annex.ll instead of seeking a direction from the SDO. Moreover as per certificate dated 14.9.90 (Annex. 17) issued by the Sarpanch, Gram Panchayat Dabli Rathan, it appears that till 14.9.90, petitioner''s crops were standing on the disputed sanctioned passage and that the same were illegally and unauthorisedly destroyed/damaged by respondents No. 2 and 3 despite the persistent requests of the petitioner and the stay order of the R.A.A. (Annex.ll).

In view of this, the action of the Tehsildar (respondent No. 3) dated 10.9.90 vide Annex. 12 as well as the action taken by the respondents No. 2 and 3 on 14.9.90 by damaging/destroying petitioner''s standing crops on his khatedari land cannot be sustained and those are hereby quashed.

The net result of the above discussion is that this writ petition is allowed and the order dated 7.9.90 (Annex. 8) passed by the SDO (Revenue) Hanumangarh as well as the action of the Tehsildar (Revenue), Hanumangarh enumerated in his ordersheet dt. 10.9.90 (Annex. 12) as well as the impugned actions taken by the said SDO and the Tehsildar on 14.9.90 are hereby quashed. The respondents are also restrained from interfering in the cultivatory possession of the petitioner in Killa Nos. 3, 4 and 5 of Square No. 59/283 in Chak 1 LOW.