Ram Chandra and Others vs Mahesh Dan Singh and Others

Veerender Singh Siradhana, J.�The intra court appeals detailed out hereinabove as well as the contempt proceedings instituted arise out of allotment of plots of land made vide orders dated 16th July, 1973 and 27th October, 1977, to the parties out of Khasra No. 10 of village Gandlai, Tehsil Lalsot, District Jaipur measuring in all 55 bighas and 5 biswas; and therefore, are being adjudicated upon by this common judgment and order.

Shorn of unnecessary details, the essential skeletal materials facts necessary for adjudication of the controversy needs to be first noticed. In Samvat 2021 (equivalent to year 1964 of the English calendar), land measuring 121 Bighas and 6 Biswas of Khasra No. 8, 9, 10, 106, 39, 46 and 64 situated in village Gandlia, Tehsil Lalsot, District Jaipur; was entered in the khatedari of Gandlia Cooperative Society. Shri Rampal, President of the Cooperative Society, the predecessor in title of the appellants/petitioners in DBSAW No. 938/2003 and Shri Uda, the predecessor in title of the appellant/petitioner in DBSAW No. 933/2003, who was one of the members the Cooperative Society; allegedly continued in the possession on the land in dispute of the Cooperative Society. On 11th December, 1970, the Revenue Department of the State issued the circular providing for 50% of the allotable lands to be allotted to the members of Scheduled Tribes and Scheduled Caste persons, 35% of ex-soldiers and 15% to other persons upto 31st March, 1973. On liquidation of ''Gandlia Cooperative Society'' in the year 1973, the lands of the khatedari and possession of the Cooperative Society, including the lands of Khasra No. 10; were ordered to be recorded as ''Siwai Chak'' land vide mutation No. 34 of village Gandlia, Tehsil Lalsot, District Jaipur. The Sub-Divisional Officer, Dausa, on 1st July, 1973 issued a proclamation under Rule 7 of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (hereinafter referred to as the ''Rules of 1970'', for short), inviting applications for allotment of land within fifteen days. Mahesh Dan Singh S/o. Shri Prabhu Singh, Sheokaran S/o. Shri Shazad Singh, Jhabbar Singh S/o. Shri Hem Singh and Nanag Ram S/o. Shri Chhagan Lal Soni (herein after referred to as ''respondents-ex-soldiers''), were allotted 8 bighas of land each out of Khasra No. 10 of Village Gandlia by the Land Allotment Committee, Sub-Division, Dausa, vide order dated 16th July, 1973 in the category of Ex-soldiers.

The allotment made in favour of the respondents-Ex-soldiers, was challenged by initiation of proceedings under Rule 14(4) of the Rules of 1970, in the Court of Additional Collector, Jaipur on 22nd August, 1973 wherein an order of status quo was made on 12th September, 1973 in their favour since they were in possession. The Nayab Tehsildar, Lalsot, dismissed the mutation of ''Gair Khatedari'' land of Khasra No. 39 to 42 of village Gandlia, Tehsil Lalsot, entered in favour of the respondents-Ex-soldiers. The stay order dated 22nd August, 1973 in appeal No. 190 of 1973 was ordered to continue till further orders. On 30th December, 1974, the Additional Collector, Jaipur allowed the application of Ramphal and Uda (deceased), canceling the allotment of the respondents-ex-soldiers made vide order dated 16th July, 1973. An appeal No. 13 of 1975 was preferred before the Revenue Appellate Authority, Jaipur, by the respondents-ex-soldiers, assailing the legality, validity and correctness of the order dated 30th December, 1974 passed by the Additional Collector, Jaipur. The Revenue Appellate Authority, Jaipur, made an interim order on 18th January, 1975, staying the execution of the order dated 30th December, 1974, with a further direction to maintain status quo. According to the appellants/petitioners, the stay order passed by the Revenue Appellate Authority, Jaipur, on the appeal preferred by the respondents-ex-soldiers, was continued only up to 8th April, 1976 as it was not extended further. The appeal of the respondents-ex-soldiers was finally adjudicated upon vide order dated 31st May, 1989, quashing and setting aside the order dated 30th December, 1974, passed by the Additional Collector, Jaipur.

According to the appellants-petitioners since the stay order was not extended by the Revenue Appellate Authority, beyond 8th April, 1976, and therefore, the land was available for allotment and was allotted by the Land Allotment Committee, Sub-Division, Dausa, in favour of Ramphal and Uda (deceased) measuring 15 Bighas out of Khasra No. 10 of Village Gandlai, in favour of each of Ramphal and Uda (deceased), on 27th October, 1977 and mututation of ''Gair Khatedari'', was carried out in their favour on 1st December, 1978. Further, since Ramphal and Uda (deceased) were necessary parties to the proceedings to appeal No. 13 of 1973, pending before the Revenue Appellate Authority, Jaipur, and who died in the meantime, but the matter was finally adjudicated upon vide order dated 31st May, 1989, without impleading the legal representatives of Ramphal and Uda (deceased), the judgment and order dated 31st May, 1989, was a nullity. Further, the respondents-ex-soldiers on 9th February, 1976, initiated proceedings under Rule 14(4) of the Rules, 1970, for cancellation of allotment of land made in favour of Rampal and Uda, by the Land Allotment Committee, Sub-Division, Dausa vide order dated 27th October, 1977. The Additional Collector, Dausa, allowed the application on 14th May, 1998, canceling the allotment of land made in favour of Rampal and Uda (deceased) vide order dated 27th October, 1977. As regards the delivery of possession, the Additional Collector, Dausa, made an order for initiation of proceedings, by way of suit, for ejectment against the appellants-petitioners before the competent Court. The appeals preferred by the appellants-petitioners before the Revenue Appellate Authority, Jaipur by Ramchandra and others and Jagdish (Legal representatives of Rampal and Uda), against the order dated 14th May, 1998, passed by the Additional Collector, Dausa, were dismissed on 16th December, 2000. On 27th March, 2003, the Board of Revenue, Ajmer, also dismissed the appeals preferred by the appellants/petitioners against the judgment and order dated 16th December, 2000, passed by the Revenue Appellate Authority, Jaipur. The appellants/petitioners instituted writ proceedings being SBCWP No. 4155/2005 and 4504/2004, which have been dismissed by the learned Single Judge of this Court and are subject matter of Special Appeals (Writ) No. 933/2003 and 938/2003.

The DBSAW No. 1176/2006 is directed against the judgment and order passed by the learned Single Judge in SBCWP No. 6677/2003 (Mahesh Dan Singh Vs. State of Raj. & Ors.), whereby the respondents-ex-soldiers instituted the writ proceedings praying for delivery possession of the land in dispute which was allotted in their favour.

We have heard the learned counsel for the parties and with their assistance perused the materials available on record.

Learned counsel for the appellants/petitioners, reiterating the facts and grounds of the writ application as well as memo of the Special Appeal (Writ) No. 933/2003 and 938/2003, while assailing the impugned judgment and order passed by the learned Single Judge in the writ applications, emphatically argued that the impugned judgment and order passed by the learned Single Judge dated 1st August, 2003; suffers with manifest errors of law and facts, and therefore, is wholly illegal. The learned counsel would further submit that the Revenue Appellate Authority, Jaipur, while entertaining the Appeal No. 13 of 1975, preferred by the respondents-ex-soldiers, though made an interim order on 18th January, 1975, staying the execution of the order dated 30th December, 1974, which was in favour of the appellants/petitioners; was not extended beyond 8th April, 1976, and therefore, the land in dispute became available for allotment and was rightly allotted vide order dated 27th October, 1979. Furthermore, since Rampal and Uda predecessors in title of the appellants had died during the pendency of the appeal and their legal representatives i.e. the appellants-petitioners, were not impleaded as parties to the proceedings before the Revenue Appellate Authority, Jaipur, hence, the order dated 31st May, 1989, passed on the appeal in favour of the respondents-ex-soldiers, is a nullity, and as such was not required to be challenged by the appellants/petitioners and thus, the learned Single Judge committed a serious illegality in dismissing the writ applications of the appellants/petitioners. The impugned order passed by the learned Single Judge has also been assailed for the reason that the learned Single Judge committed an illegality while holding that the status of deceased Rampal and Uda as complainant(s) in the appeal No. 13 of 1975, decided vide judgment dated 31st May, 1989, pending before the Revenue Appellate Authority, Jaipur preferred by the respondents-ex-soldiers, and therefore, were not necessary parties to the proceedings, wherein the order dated 30th December, 1974, passed by the Additional Collector, Jaipur, was challenged by which the allotments made in favour of the respondents-ex-soldiers, were cancelled. Further, the findings recorded by the learned Single Judge with reference to the judgment dated 31st May, 1989, for its finality for the appellants/petitioners did not challenge the same, has been assailed for reason that the appellants/petitioners were not impleaded as parties to the proceedings, and therefore, the judgment dated 31st May, 1989 is a nullity qua the appellants/petitioners. Moreover, since the appellants/petitioners also assailed the judgment dated 31st May, 1989, passed by the Revenue Appellate Authority, Dausa, before the learned Single Judge, but the learned Single Judge lost sight of this aspect of the matter, and hence, the impugned judgment and order passed by the learned Single Judge is illegal. Learned senior counsel has also argued that the land in dispute was never allotted in favour of Mahesh Dan Singh and Sheo Karan (respondents-ex-soldiers) as they submitted their applications for allotment in village ''Chandsen Bidarka'' of Tehsil Lalsot, and thus, the entire proceedings and findings arrived it by the learned Single Judge as well as the revenue Courts, are wholly illegal. The learned senior counsel further added that the allotments made in favour of Rampal and Uda (deceased), were subjected to challenge by the respondents-ex-soldiers after an undue, inordinate and unexplained delay of 19 years, by initiation of proceedings under Rule 14(4) of the Rules of 1970, and therefore, the challenge ought to have been declined, but the courts below as well as the learned Single Judge, but this aspect of the matter has been completely lost sight of. The appellants/petitioners have continued in the possession of the land in dispute which was recorded in the revenue records as ''Siwai Chak'' land and was lawfully allotted in favour of Rampal and Uda (their predecessors in title) and thus, there was no illegality in the order of allotment dated 27th October, 1977.

According to the learned counsel, the appellants/petitioners are in cultivatory possession on the land in dispute for last 33 years and have also raised Pakka-Kaccha constructions. The cancellation of allotment dated 27th October, 1977, would result not only into a great hardship, but would also displace the family members completely, and therefore, the impugned judgment and order passed by the learned Single Judge in 6677/2003 preferred by the respondents-ex-soldiers for delivery of possession of the land in dispute wherein a direction has been issued by the learned Single Judge to the State-respondents to ensure delivery of possession of the land in dispute, allotted to the respondents-ex-soldiers vide order dated 16th July, 1973; within a period of one week of the receipt of the certified copy of the impugned order with a further direction to also ensure delivery of possession of the land in dispute with constructed hutments and other structures, within a period of three months; deserves to be quashed and set aside.

Per contra, the learned counsel for the respondents-ex-soldiers, supporting the judgment and order passed by the learned Single Judge as well as the orders passed by the revenue courts, vehemently argued that the respondents-ex-soldiers were allotted lands in dispute by the Government of Rajasthan in pursuance of a scheme introduced to allot land to army personnel''s keeping in view their devotion of duties to the nation while they rendered the services in the capacity of army personnel. The learned counsel would further submit that the respondents-ex-soldiers were allotted agricultural land by the Allotment Committee in village Gandlia, Tehsil Lalsot, District Dausa on 16th July, 1973 and possession was also delivered on 18th July, 1973 followed by entries in this regard on 26th July, 1973, in the revenue record and the lands in dispute were in fact cultivated by the respondents-ex-soldiers in the year 1973 to 1977. The proceedings instituted under Rule 14(4) of the Rules of 1970 by the predecessor in title of the appellants/petitioners, for cancellation participated into an order dated 30th December, 1974, against the respondents-ex-soldiers. Be that as it may, the impugned order dated 30th December, 1974, was successfully challenged in appeal before the Revenue Appellate Authority, Jaipur, by the respondents-ex-soldiers and judgment dated 31st May, 1989, was delivered in their favour, which attained finality as neither the appellants nor their predecessors in title challenged the judgment dated 31 May, 1989, which could have been challenged either before the Board of Revenue or by way of a writ application. Learned counsel further added that the appeal against the order dated 14th May, 1998, preferred by the appellants/petitioners before the appellate authority impleading the respondents-ex-soldiers, as parties to the proceedings, was rejected on 16 December, 2000. A second appeal challenging the legality and validity of the order dated 16th December, 2000, was also dismissed on 27th March, 2003, against which a writ application No. 4155/2003, was preferred, which has also been dismissed with a detailed and well reasoned judgment impugned, by the learned Single Judge. Moreover, a bare perusal of the facts, circumstances and materials available on record would reveal that the Collector, Dausa; Revenue Secretary, Chief Secretary and His Excellency, the Governor of Rajasthan, time and again directed the Revenue Appellate Authorities to ensure delivery of possession of the land in dispute to the respondents-ex-soldiers, but the lower hierarchy of the Revenue Department, for extraneous considerations, on one or the other pretext has delayed the delivery of possession. In the circumstances aforesaid, the respondents-ex-soldiers were compelled to initiate writ proceedings before this Court and the learned Single Judge by a detailed and reasoned order, issued necessary directions to ensure delivery of possession of the lands in dispute. Learned counsel would further and that the appellants/petitioners having lost the matter in all forums in four rounds, have been successful in illegally retaining the possession of the lands in dispute and are trespassers as once decided by the competent authority, which was not challenged in any subsequent proceedings. Further, even after, the allotment made in favour of the respondents on 16 July, 1973, which was found to be valid and legal, yet the respondents-ex-soldiers have been deprived of the possession over the lands in dispute and thus, have suffered for last 33 years. The intra-court appeals, therefore, deserves to be dismissed with exemplary costs.

From the pleadings of the parties and materials available on record, it is evident that the respondents were allotted land measuring 8 Bighas each by the Land Allotment Committee on 16th July, 1973 in the category of ''ex-solidiers''. The allotments were assailed by Ramphal and Uda (deceased through legal representatives), by institution of proceedings under Rule 14(4) of the Rules, 1970. The allotment was cancelled by the Additional Collector, Jaipur vide order dated 30th December, 1974, which was successfully challenged in appeal by the respondents-ex-soldiers before the Revenue Appellate Authority, Jaipur, whereby the appeal was allowed vide order dated 31st May, 1989.

It is also relevant to mention here that ignoring the interim order passed by the Revenue Appellate Authority, Jaipur, on 18th January, 1975, the Allotment Committee again allotted the land in dispute in favour of Ramphal and Uda (deceased through legal representatives).

Be that as it may, the allotment so made in favour of Ramphal and Uda (deceased), vide order dated 27th October, 1977, was successfully challenged by the respondents-ex-soldiers. The order dated 27th October, 1977, was set aside by the Additional Collector, Dausa, vide order dated 14th May, 1998. An appeal filed before the Revenue Appellate Authority, Jaipur (camp Dausa), was also dismissed vide order dated 16 December, 2000. The Second appeal preferred by the appellants/petitioners and other persons, before the Board of Revenue was also declined vide order dated 27th March, 2003. All the revenue authorities have recorded concurrent findings, against the appellants, canceling the allotments made in their favour and upholding the allotments in favour of respondents both with regard to their eligibility for allotment and the procedure in making the allotments.

Learned Single Judge, taking into consideration the facts, materials available on record, has recorded specific findings to the effect that the order passed by the Additional Collector, Jaipur, canceling the allotment made in favour of the respondents-ex-soldiers on 16th July, 1973, was subject matter of the appeal before the Revenue Appellate Authority, Jaipur, and that the interim order dated 18th January, 1995, was in operation and the appeal of the respondents-ex-soldiers was ultimately allowed by the Revenue Appellate Authority vide order dated 31st May, 1989, which was not subjected to further challenge by the appellants/petitioners.

A bare perusal of the text of Rule 14(4) of the Rules of 1970, would reveal that the power to cancel any allotment made by a Sub Divisional Office [or a Tehsildar under the Rules repealed by Rule 21 of the rules] either suo moto or on the application of any person in case the allotment has been secured through fraud or misrepresentation or has been made against rules or in case the allottee has committed breach of any of the conditions of allotment; is within the jurisdiction of the Collector. In such proceedings after entertaining the complaint, if any, it is only the allottee, who is necessary party. Since the predecessors of the appellants/petitioners, were only complainant(s) in the proceedings pending before the Revenue Appellate Authority, Jaipur, they were at best proper parties. Their death therefore could not have resulted into abatement of the appeal(s) preferred by the respondents-ex-soldiers and hence the order dated 31st May, 1989; passed by the Revenue Appellate Authority, Jaipur, is not illegal and void in law. At best it will be treated as irregular order.

Indisputably, the appellants/petitioners did not challenge the order dated 31st May, 1989, before the Board of Revenue or any other forum, in accordance with law.

The appellants/petitioners while resisting the claim of the respondents-ex-soldiers, for delivery of possession of the lands in dispute, in SBCWP No. 6677/2003, contended that the appellants/petitioners acquired a right by adverse possession on account of the fact that they were trespassers in terms of Section 183(iv) of the Rajasthan Tenancy Act, 1955. The contention was not repelled by the learned Single Judge for the said contention was available to them at the time they filed their objections against the allotment by way of an appeal under Rule 14(4) in the year 1974, and in case the objections were not tenable in view of the legal position as the orders had attained finality on account of findings arrived at by the Revenue Appellate Authority vide judgment and order dated 31st May, 1989.

Learned Single Judge referring to the provisions of the Rajasthan Tenancy Act, 1955, with a reference to "unoccupied land" and "occupied land", concluded that the lands in dispute, having been allotted to the respondents-ex-soldiers on 16th July, 1973, much earlier in point of time to the predecessor of the appellants/petitioners; was "occupied land" and could not be treated as "unoccupied land", and thus, was not available for subsequent allotment to the predecessor of the appellants/petitioners on 26th October, 1977.

The objections to the effect that the appellants/petitioners even if they were trespassers, could not be evicted save in accordance with the procedure provided under the law, was repelled by the learned Single Judge in view of the judgment dated 31st May, 1989; passed by the Revenue Appellate Authority, Jaipur setting aside the judgment of the Additional Collector, Jaipur dated 30th December, 1974.

The learned Single Judge while considering the claim of the respondents-ex-soldiers in SBCWP No. 6677/2003, instituted with a prayer for delivery of the possession of the lands in dispute observed thus:

"The objection of the respondents that they cannot be evicted even if they are trespassers, save in accordance with the procedure provided under the law needs to be rejected as once the judgment of the Additional Collector dated 30.12.1974 was set aside in appeal by the learned Revenue Appellate Authority vide judgment dated 31.05.1989, the petitioners were liable to be restituted to the position which prevailed prior to the judgment dated 30.12.1974 in accordance with the principles as contained Section 144 CPC which is also applicable to the revenue courts under the provisions of Section 208 of the Rajasthan Tenancy Act, 1955 which provides that the provisions of Code of Civil Procedure, 1908 except the provisions which may be inconsistent with the provisions in the Act shall apply to the suits and proceedings under the Revenue Laws. Thus, on the above principle of equity as enshrined in Section 144 CPC, the petitioners who were dispossessed, after their allotment dated 16.07.1973 was held to be invalid by the Additional Collector vide judgment dated 30.12.1974 nor entitled to be restituted to the same position which prevailed prior to 30.12.1974. In spite of the fact mat the judgment dated 30.12.1974 of the Additional Collector had been set aside and order of allotment upheld, as has been recorded by the learned Single Judge in his judgment dated 01.08.2003 in S.B. Civil Writ Petition No. 4155/2003 filed by the respondents, that the allotment was made to the respondents in spite of the fact that learned Revenue Appellate Authority had granted a stay on 18.01.1975 in favour of the present petitioners against the judgment dated 30.12.1974, the petitioners after 31.05.1989 were liable to be placed in the same position as they were prior to 30.12.1974. Thus, the petitioners need not, in my opinion, follow the procedure as provided under Section 183 of the Rajasthan Tenancy Act, 1955 when they can have recourse to the provisions of Section 144 CPC for restitution of the position which prevailed of Section 144 CPC for restitution of the position which prevailed prior to the order dated 30.12.1974. It may only be added that subsection (2) of Section 144 CPC clearly provides that no suit shall be instituted for the purposes of obtaining any restitution or other relief which can be obtained by the application under sub-section (1) of Section 144 CPC. The petitioners, in my view, who are Ex-servicemen and to whom the land was allotted taking into consideration their services to the nation, have approached all the authorities but have been deprived of their rights to the land in pursuance of a valid order of allotment dated 16.07.1973 for more than a period of thirty years and have approached this court for a direction to this effect. On the other hand, the respondents who are trespassers and had no title over the disputed land have successfully deprived the lawfully authorized persons, the petitioners from the fruits of their allotment. It is surprising that a period of nearly 15 years has elapsed between the judgment of the learned Additional Collector dated 30.12.1974 and the decision of the appeal by the learned Revenue Appellate Authority dated 31.05.1989 and in spite of the judgment dated 31.05.1989, the petitioners have not been able to obtain possession of the land and the Revenue authorities have only now, in May-June, 2006, as is evident from the documents (Annexure A-1 to A-4) filed along with the application dated 14.08.2006, decided to act to provide possession of the land to the petitioners. Thus, I am not inclined to accept the objection raised by the respondents, both the private respondents as well as the State Functionaries, that the petitioners have the remedy of filing a suit under Section 183 of the Rajasthan Tenancy Act, 1955 which in the light of the provisions of sub-section (2) of Section 144 CPC, in my opinion, is not maintainable. The above objection is, therefore, dismissed.

In view of the above, the land being unoccupied, it was capable of being allotted to the petitioners under the Rules of 1970. So far as the respondent revenue authorities are concerned, as has been noticed on the basis of the documents which have been furnished along with the application dated 14.08.2006 (Annexures A-1 to A-4), the revenue authorities from the Divisional Commissioner to the Tehsildar have all agreed with the fact that the possession of the land in question deserves to be handed over to the petitioners on account of the allotment made in favour of the petitioners on 16.07.1973 and the same having been found to be valid.

Consequently, I am of the view that petitioners need not proceed against the respondents by means of any proceedings under Section 183 of the Rajasthan Tenancy Act, 1955. It is the duty of the revenue authorities that in pursuance of the allotment made in favour of the petitioners on 16.07.1973 of the unoccupied land, to handover the possession of the land in dispute to the petitioners. This court had on 12.04.2004 prima facie after being satisfied had passed the following interim order:--

In the light of the view which I have already taken and expressed above I also draw support from the interim order dated 12.04.2004 that there was no need for any further proceedings to be taken in the matter either under Section 183 of the Rajasthan Tenancy Act, 1955 or under Rule 14(4) as the allotment dated 16.07.1973 in favour of the petitioners had already been found to be valid and subsequent allotments made in the year 1977 to the respondents cannot stand as the land was not available for allotment since the same already stood allotted to the petitioners on 16.07.1973. Consequently, the writ petition is allowed. The stay application also stands disposed of."

We notice from the observations and findings aforesaid that the respondents-ex-soldiers, who were allotted lands in accordance with the provisions of Rules of 1970 vide order dated 16th July, 1973, but have not been able to enjoy the fruits of the allotment. The appellants/petitioners were successful to delaying the proceedings and retained the possession of the lands in dispute. We do not find any illegality in the directions issued by the learned Single Judge, for delivery of possession of the lands in dispute.

For the reasons and discussions herein above, the intra-Court appeals are devoid of any substance and deserve to be dismissed.

Ordered accordingly.

In view of the final adjudication on the intra-Court appeals, the contempt proceedings, are closed.

The State-respondents are directed to ensure compliance, with reference to the delivery of possession of the lands in dispute as directed by the learned Single Judge vide order dated 12th October, 2006 in SBCWP No. 6677/2003, within three months from the date of receipt of a certified copy of this judgment.

No Costs.

A copy of this judgment will be placed in all connected files.