Rajasthan High Court - Jaipur
Virendra Kumar Jain vs State (Forest Department)Ors on 2 January, 2018
Author: M.N.Bhandari
Bench: M.N.Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 6411 / 2016
Virendra Kumar Jain S/o Late Shri Shiv Ram Jain, Plot No. 3, Shiv
Sadan, Govind Marg, Near Teen Murti Jaipur.
----Petitioner
Versus
1. State of Rajasthan Through Chief Secretary, Secretariat, C-
Scheme, Jaipur.
2. Divisional Forest Officer, Forest Department, Government of
Rajasthan, Mini Secretariat, Banipark, Jaipur.
3. Dy. Forest Conservator, Forest Animal, Mini Secretariat,
Banipark, Jaipur.
4. Jaipur Development Authority, Through Commissioner, Jawahar
Lal Nehru Marg, Jaipur.
----Respondents
_____________________________________________________ For Petitioner(s) : Mr.Rajesh Mehrishi with Mr.Hari Mohan Yadav For Respondent(s) : Mr.Noor Ahmed for Mr.Shiv Raj Singh Rathore, Dy.GC Mr.Mahesh Kumar Saini for Ms.Anamika Arora _____________________________________________________ HON'BLE MR. JUSTICE M.N.BHANDARI Judgment 02/01/2018 By this writ petition, a challenge is made to the order dated 03rd April, 2015 so as the order dated 12th August, 2015 passed by the Rent Tribunal and the Appellate Rent Tribunal.
The petitioner preferred an application under Section 11 of the Rajasthan Rent Control Act, 2001 (for short "the Act of 2001") to seek restoration of the property sealed and possessed by the Forest Department. The application was dismissed by the Rent Tribunal and appeal thereupon was also (2 of 6) [CW-6411/2016] dismissed by the Appellate Rent Tribunal.
Learned counsel for the petitioner submits that the land in dispute was given on lease initially by the Forest Department. It was for the period of ten years. The lease period was to expire in the year 1978, but, prior to it, the land was acquired and transferred initially to the Urban Improvement Trust (UIT) and now to Jaipur Development Authority (JDA). The land accordingly vested in UIT, but, the Forest Department unauthorisedly taken possession of the land thus an application under Section 11 of the Act of 2001 was maintained. The Forest Department had no authority to take possession of the property vested in the JDA and earlier to UIT. The Rent Tribunal however dismissed the application treating it to be property of the Forest Department. It is mainly in reference to Jamabandi where name of the Forest Department still exists, though, the land should have been mutated in favour of UIT on its acquisition.
A reference of gazette notification has also been given where the area in question was transferred to UIT, Jaipur. The gazette notification was also ignored by the Tribunal while dismissing the application under Section 11 of the Act of 2001. In fact, the title came to the UIT, Jaipur and, thereupon, to JDA thus the Forest Department had no authority to take possession of the property in dispute. Accordingly, the application under Section 11 of the Act of 2001 should have been allowed.
The petitioner preferred an appeal against the order passed by the Rent Tribunal, but, it has also been dismissed. The main issue about authority of Forest Department to take (3 of 6) [CW-6411/2016] possession of the property remained undecided and, specifically, in reference to acquisition of land and the gazette notification issued thereupon transferring the area. The orders under challenge may accordingly be set aside with acceptance of application under Section 11 of the Act of 2001 and, accordingly, possession of the disputed property may be restored to petitioner.
Learned counsel appearing for the Forest Department has opposed the petition. It is submitted that the land in dispute was belonging to the Forest Department and, accordingly, it was leased out to the petitioner for the period of ten years. The period of lease expired in the year 1978, but, prior to it, land in dispute was transferred by the petitioner to one Mr.Shikhar Jain. The petitioner has no authority to challenge the action of the respondents in view of the transfer of the land by him. In fact, Mr.Virendra Kumar Jain was not found in possession, but, his son Mr.Nitin Kumar Jain was found on the spot when possession of the property was taken. It is further submitted that once lease period expired, the petitioner had no authority to continue with the possession of the property and, accordingly, he was served with the notice. When possession was not given even after receipt of notice, it was taken as the petitioner remained unauthorised occupant of the property.
So far as the fact pertaining to acquisition of land is concerned, the issue aforesaid could not have been raised before the Rent Tribunal as title and ownership of the property cannot be determined under the Act of 2001. The mutation of the property was existing in the name of Forest Department on the date of (4 of 6) [CW-6411/2016] taking possession of the property thus the plea taken by the petitioner in reference to gazette notification and other documents are not tenable. The gazette notification was otherwise not for transfer of the property in dispute, rather, transfer of certain colonies and the area for its development. The gazette notification is not issued for the purpose of transfer of the property, rather, according to the petitioner himself, it was acquired by the Government and given to the UIT. If that was so, no gazette notification for transfer of property was required to be issued.
In any case, if the application under Section 11 of the Act of 2001 is perused, it would show that the petitioner had challenged authority of the Forest Department showing UIT and JDA as title holder of the property, whereas, the issue aforesaid could not be determined by the Rent Tribunal. Accordingly, there is no illegality if the application under Section 11 of the Act of 2001 filed by the petitioner has been dismissed. The prayer is accordingly to dismiss the writ petition.
I have considered rival submissions made by learned counsel for the parties and perused the record.
It is not in dispute that the land measuring 150x75 ft. was given on lease to the petitioner on 22nd May, 1968. The lease period was expired in the year 1978. A dispute about transfer of lease property has been raised by learned counsel for the Forest Department alleging that it was transferred to one Shikhar Jain thus the petitioner had no authority to maintain an application under Section 11 of the Act of 2001. It is moreso when, transfer of the property was in violation of the lease deed between the (5 of 6) [CW-6411/2016] parties.
The issue in reference to acquisition of the land and gazette notification to transfer the area to UIT and now to JDA has also been referred. The crux of the arguments raised by learned counsel for the petitioner is about ownership of the property. According to the petitioner, it lies with the JDA, whereas, learned counsel for the Forest Department has disputed it in reference to mutation in the name of the Forest Department.
The question is as to whether issue of title can be determined by the Rent Tribunal under the Act of 2001.
Learned counsel for the petitioner has made a reference of Sections 11 and 18 of the Act of 2001 to show that if the land belongs to Government, Chapter (ii) and (iii) of the Act of 2001 would not apply. The fact, however, remains that Section 11 falls in the Chapter (iv) so as Section 18 thus the issue raised by learned counsel for the petitioner in reference to Chapter (ii) and
(iii) of the Act of 2001 are of no consequence, as Section 11 of the Act of 2001 is under Chapter (iv).
The fact further remains that issue of title of the property as to whether it vests with the JDA or lies with the Forest Department to challenge their authority, does not lie with the Rent Tribunal thus the application under Section 11 of the Act of 2001 could not have been maintained by impleading JDA as a party respondent and with the pleading that title lies with the JDA after issuance of gazette notification. In fact, application under Section 11 of the Act of 2001 could have been maintained only against the Forest Department.
(6 of 6) [CW-6411/2016] At this stage, learned counsel for the petitioner submits that if jurisdiction of the Tribunal was not existing then he may be given liberty to maintain a regular suit to challenge the authority of Forest Department and even to challenge their title. There the impugned order should not come in their way so as the provisions of the Act of 2001.
I find that controversy in reference to title or ownership of the property cannot be determined under the Act of 2001. The application under Section 11 of the Act of 2001 was not maintainable in the manner presented by the petitioner disputing the title of the Forest Department.
Accordingly, while dismissing this writ petition, a liberty is given to the petitioner to take other legal recourse, as available to him against the action of the Forest Department and, for which, impugned order would not come in their way.
(M.N.BHANDARI) J.
Preeti, PA/116