Rajasthan High Court - Jaipur
R I I C O Ltd Jaipur vs A D J No. 6 And Ors on 11 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition NO. 1919/1999
Rajasthan State Industrial Development & Investment Corporation
Limited, Udyog Bhawan, Tilak Marg, Jaipur through its Senior
Deputy General Manager, Vishwa Karma Industrial Area, Jaipur.
.......Petitioner
Versus
1. The Additional District Judge No. 6, Jaipur City, Jaipur.
2. The Estate Officer Rajasthan State Industrial Development &
Investment Corporation Ltd., Udyog Bhawan, Tilak Marg, Jaipur.
3. Pavan Kumar, Son of Shri Kistur Chand, Proprietor, Badjatya
Limes work, Jhotwara Industrial Area, Near Police Station, Jaipur.
........Respondents
For Petitioner(s) : Mr. A.K.Pareek, Adv. with
Ms. Rani Bhandari, Adv.
For Respondent(s) : Mr. Mahendra Goyal, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment/Order
Reserved On 02/04/2019
Pronounced On 11/04/2019
1. By way of this writ petition, petitioner has submitted that the State Government vide its order dated 07/10/1960 set apart a land measuring 151 bighas and 7 biswas under the provisions of Section 92 of the Rajasthan Land Revenue Act for industrial purpose. The same was transferred to the petitioner subsequently. The land was thereafter shown in the revenue records as in the name of the petitioner Rajasthan State Industrial Development & Investment Corporation Limited (for short, 'RIICO'). As the land having been transferred to the petitioner, it falls within the definition of public premises and therefore, the petitioner, on (Downloaded on 28/06/2019 at 12:05:49 AM) (2 of 9) [CW-1919/1999] coming to know of the illegal possession and construction by the respondent no.3 on the aforesaid land in Khasra No.5/237 measuring 5078 sq. yds., gave a notice to remove the illegal construction and vacate the land.
2. The respondent no.3 alongwith his father challenged the notice dated 03/05/1983 by filing a Civil Suit No.419/1983 which was dismissed by the learned Civil Judge on 08/05/1995.
3. The appeal was allowed by the learned lower appellate court and the suit was decreed in favour of the respondent no.3 and his father with observations that the plaintiff shall not be dispossessed from the land in dispute. The decision of the learned lower appellate court was challenged by the petitioner by filing SB Civil Second Appeal No.398/1995 which was dismissed on 20/09/1996.
4. Thereafter, the petitioner gave another notice to the respondent no.3 on 06/09/1995 to produce documents to prove their title on the disputed land to which the respondent no.3 filed reply on 18/09/1995 and thereafter the petitioner filed an application before the Estate Officer on 29/11/1995 seeking to dispossess the respondent no.3 from the land admeasuring 5078 sq.mts.. The Estate Officer, after taking into consideration the reply and the documents which had come on record, found that the State Government had allotted the land admeasuring 4872.04 sq.yds. to one M/s. Mavanda Lime Suppliers Company for starting industrial unit on 09/12/1959. The respondent no.3, his father and one one Roop Narain were partners in the concern. However, Roop Narain withdrew his partnership and thereafter father of respondent no.3 renamed his concern as M/s. Badjatya Lime Works Suppliers and continued to operate the lime industry after having also obtained no objection certificate from the Railways (Downloaded on 28/06/2019 at 12:05:49 AM) (3 of 9) [CW-1919/1999] and other authorities. The Estate Officer also found that the contentions raised by the petitioner were not proved that the respondent no.3 was a tress-passer or encroacher on the land. It also found that the Industries Department had granted sanction for the concern lime clin at the site which was actually having 5200 sq.yds. area on 09/02/1965. The Railways also had given no objection to the firm for setting up the industry on 16/10/1959 and the amount for running industry on the land had also been deposited with the Urban Improvement Board as it then existed vide receipt no. 21 dated 28/12/1959 which entitled the respondent no.3 not only to establish the lime clin but also to use and utilize the land for industrial purposes and they were not to be evicted from the land. A notice was given by the Tehsildar under Section 91 of the Land Revenue Act which was opposed by father of the respondent no.3 and Roop Narain and after examining the same, the said notice was cancelled on 02/12/1971. The document of cancellation of notice was also noticed and taken on record by the Estate Officer. M/s. Badjatya Lime Suppliers Industry was duly registered on 29/11/1973 and when the proceedings were undertaken before the Conversion Officer, the Conversion Officer noted that the land was to be treated as industrial area vide his noting dated 23/05/1980 and was to be regularized after taking necessary charges by the Industries Department. The Estate Officer also noticed that the Municipal Corporation had been receiving the land use fees and the firm was also depositing sales tax and income tax also.
5. A contention was raised by the respondent no.3 before the Estate Officer that the land was never transferred to the RIICO by the State Government or the Industries Department and it was (Downloaded on 28/06/2019 at 12:05:49 AM) (4 of 9) [CW-1919/1999] situated at the other site of the road. Hence, the Estate Officer directed the petitioner to produce documents to show that the land was allotted to them by the Industries Department. Several opportunities in this regard were given to the petitioner who failed to submit any document to show their title or ownership of the land. In the circumstances, the Estate Officer found that it cannot be said to be the land belonging to RIICO and the very application moved under the Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964 was unauthorized. At the same time, the Estate Officer also found that there was no condition of allotment at the time when the sanction was granted to father of respondent no.3 for establishing the industry in the year 1959. However, taking into consideration the documents as noted above, namely; no objection certificate, the decision of Tehsildar to withdraw the notice under Section 91 of the Act, the conversion charges deposited with the SDO for the purpose of industrial use and the tax paid to the Municipal Corporation were sufficient proof to hold that the property in question was duly allotted to father of respondent no.3 for industrial purposes and the industry was continuing at the place. Accordingly, the application filed by the petitioner was rejected by the Estate Officer vide order dated 10/07/1997 against which appeal was preferred before the District Judge, Jaipur City, Jaipur which came to be listed before the Additional District Judge No.6, Jaipur City, Jaipur and the appeal was rejected on three counts. Firstly, that the appeal was belated and had been preferred after fifteen days, as there was no application moved for condonation of delay, the appeal was held to be belated. Secondly, the learned court below held that the appeal could not have been filed as the appeal could (Downloaded on 28/06/2019 at 12:05:49 AM) (5 of 9) [CW-1919/1999] be preferred under the Act only against the order of eviction. Thirdly, the learned court below also noticed that the petitioner had not been able to place any documentary proof regarding the land having been allotted or transferred to the petitioner. Feeling aggrieved thereto, the present writ petition has been preferred by the petitioner-RICO.
6. Learned counsel for the petitioner submits that as the show cause notice had been issued with the same date, it was sufficient to prove that the land in question was vested with the RIICO. It is submitted that in the revenue record, name of the petitioner has been mentioned and the appellate court has fallen in error. Learned counsel further submits that the learned Additional District Judge has wrongly made observations on merits once it has found that the appeal was not maintainable in terms of Section 5 and 9 of the Act of 1964 as the order of eviction had not been passed. Learned counsel assails the original order passed by the Estate Officer and submits that the Estate Officer has committed an error in not holding the land to be with the RIICO. Learned counsel further submits that in the list of existing industrial units in the area, which were handed over to the District Industries Center, Jaipur on 31/03/1990, name of the industry of the respondent no.3 was not available.
7. Per-contra, learned counsel for the respondents has submitted that the respondent no.3 had placed on record all documents before the Estate Officer to prove the allotment and possession. Learned counsel alongwith reply has filed the documents as noted above. It is his submission that the RIICO with the purpose to take advantage of the subsequent allotment of the land to the RIICO has wrongfully taken action against the (Downloaded on 28/06/2019 at 12:05:49 AM) (6 of 9) [CW-1919/1999] respondent no.3. Learned counsel has taken this Court to the order passed in Civil Second Appeal where admittedly the High Court has held that Mr. Kishur Chand, father of the respondent no.3 was having peaceful possession over the land for last about 30 years and the appellants were therefore, rightly restrained from dispossessing the respondents therein. Learned counsel has also taken this Court to the registration letter dated 29/11/1973 whereby the Industries Department had registered M/s. Badjatya Lime Suppliers, Jhotwara as an industry and the requisite fees was also deposited. The allotment letter dated 09/12/1959 issued by the Urban Development Board has also been placed on record and the site plan and the open land adjacent to Kamani Road has also been placed on record.
8. Heard learned counsel for the parties.
9. The Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964 provides for eviction of unauthorized occupants and the procedure to be followed therein is to move application before the Estate Officer. For the said purpose of application of the Act of 1964, the property must be public premises and must be shown to have been occupied unauthorizedly. It is a sine-qua-non for setting up of an application under Section 5 as held in Maya Devi Kaswani Vs. The Estate Officer (Addl. District Magistrate), Jaipur & ors.:2002(1) RLR 401. The onus of proving that the premises was public premises is for the applicant who moves such an application. The Estate Officer is required to be satisfied that the property is a public premises. However, as has been noted above, the Estate Officer has found that the land was duly allotted to father of respondent no.3 for establishing a lime clin in the year (Downloaded on 28/06/2019 at 12:05:49 AM) (7 of 9) [CW-1919/1999] 1959 by the Urban Development Board and after depositing the amount, the allotment was made. It is also noticed that the Industries Department granted sanction for setting up the industry and the same was duly registered with the Industries Department on 29/11/1973. It is also noticed that the Tehsildar has withdrawn his notice moved under Section 91 of the Land Revenue Act holding the land to be duly allotted. Thus, there is no occasion for the petitioner to claim the land as their land. The land which has been allotted to father of respondent no.3 for industrial purposes, therefore, would be treated as part of the industrial area and the RIICO could not have demanded for vacating the premises treating it to be unauthorizedly occupied.
10. In view of the admitted position of the land having been used for industrial purposes prior to formation of the RIICO itself, the existing industries after the land having been vested with the RIICO cannot be treated to be unauthorized and it was for the RIICO to have included it as an existing industry on the day when RIICO was transferred the land from the Industries Department. The Estate Officer so also in the RIICO itself and thus the order could not have been challenged by the RIICO in appeal as such an appeal was not provided under the Act. However, as the appeal was preferred by the RIICO, it cannot be said that the learned Additional District Judge has committed an error in examining the matter on merits also. The petitioner admitted themselves to the jurisdiction of the Additional District Judge who examined the matter threadbare and reached to the conclusion similar to that of the Estate Officer.
11. Section 10 of the Act of 1964 provides that any order made by an estate officer or the appellate officer under this Act, shall be (Downloaded on 28/06/2019 at 12:05:49 AM) (8 of 9) [CW-1919/1999] final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by the Court. However, In a recent judgment in Khatoon Vs. State of Rajasthan and ors.: 2016(4) WNL 259 (Raj.), the Division Bench has taken a view that appeal would also lie against the order whereby the eviction application is rejected and the State Government can prefer an appeal before the District Judge.
12. Taking into consideration the view taken by the Division Bench, the observation of the District Judge so far as it relates to the Appeal being maintainable is set aside and it is held that the appeal would be maintainable before the District Judge. However, as the District Judge has also decided the matter on merits, no purpose would be served in remanding the matter back to the District Judge. As this Court has already held that the view taken by the District Judge on merits is correct and in accordance with law and the order passed by the Estate Officer is based on factual findings, no interference is called for with the order passed by the Estate Officer as well as the District Judge on merits.
13. The writ petition filed by the petitioner is not extension of the proceedings under the Act of 1964. The High Court in writ jurisdiction under Article 226 & 227 would have limited scope for interference. Unless the wrong as alleged is referable to grave dereliction of duty or flagrant abuse of power by the subordinate authorities or has resulted in grave injustice to any party or where there a perversity, then alone, the power of superintendence would be exercised otherwise it has to be exercised sparingly and with only purpose to keep the subordinate courts and tribunals or authorities exercising judicial power within their bounds of (Downloaded on 28/06/2019 at 12:05:49 AM) (9 of 9) [CW-1919/1999] authority. The power cannot be exercised for correcting mere errors as held in Waryam Singh Vs. Amarnath:1954 SCR 565 nor can this Court substitute its opinion on the facts proved to that of the authority as held by the Supreme Court in Sadhna Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC 524. Similar view has been taken in Ladoo Lal Jain (deceased) through legal heirs Vs. Smt. Kailash Bai: 2017(1) RLW 198 (Raj.).
14. Consequently, the order dated 10/07/1997 passed by the Estate Officer is upheld and it is held that the land is duly allotted to the respondent no.3 for industrial purposes and the petitioner- RIICO is directed not to disturb the respondent no.3 from peaceful possession of the land bearing Khasra No.5/237 measuring 5078 sq.mts. and is further directed to include the said industry in the list of industries. The prayer made by the petitioner-RIICO, so far as it relates to order dated 27/01/1999 passed by the appellate authority regarding maintainability of the appeal is allowed to the extent of maintainability of the appeal before the District Judge. However, dated 10/07/1999 and the observations made by the appellate authority on merits upholding entitlement and allotment of land to the respondent no.3 is upheld.
15. The writ petition is accordingly dismissed. No costs.
(SANJEEV PRAKASH SHARMA),J Raghu (Downloaded on 28/06/2019 at 12:05:49 AM) Powered by TCPDF (www.tcpdf.org)