Ramnarayan vs State Of Rajasthan And Ors on 16 January, 2019

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Rajasthan High Court - Jodhpur

Ramnarayan vs State Of Rajasthan And Ors on 16 January, 2019

1. These petitions are directed against the orders dated 28.12.17 of the Division Bench of Board of Revenue Rajasthan, whereby the Special Appeals preferred by the respondents No.2 to 4 against the order dated 4.5.10 of Single Member, Board of (5 of 13) [CW-1966/2018] Revenue, have been allowed and accordingly, while setting aside the aforesaid order dated 4.5.10, the order passed by the Revenue Appellate Authority (RAA), Bhilwara dated 16.6.09 setting aside the order dated 26.9.07 passed by the District Collector, Bhilwara, and the order dated 21.5.07 passed by Tehsildar, Raipur, directing eviction of the petitioners from the land measuring 0.19 hectare of Khasra No. 4707/1361 Village Borana, Tehsil Raipur, District Bhilwara, are upheld. That apart, invoking the provisions under Section 9 of the Rajasthan Land Revenue Act, 1956 ("the Act of 1956"), Tehsildar, Raipur has been directed to restore the Khasra No.4707/1361, area 0.19 hectare, Village Borana to Samvat 2049 status and record it as "Sri Po Bharai Sthan Deh Samast Asamiyan" within 30 days from the date of issue of the order.

2. The facts relevant are that the land measuring 0.19 hectare, Khasra No.424 new Khasra No. 4707/1361 Village Borana, Tehsil Raipur, District Bhilwara is entered in the revenue record as "Po Bharai Sthan Deh Samast Asamiyan". Inter alia the petitioners herein encroached upon the said land and constructed the shops. The Tehsildar, Raipur initiated proceedings under Section 91 of the Act of 1956 and passed the order dated 23.12.91 for eviction of the petitioners as trespassers. Aggrieved thereby, one of the petitioners preferred an appeal before Additional District Collector, Bhilwara, which was dismissed on 30.11.92. The second appeal preferred was also dismissed by the RAA vide order dated 25.3.95. A revision petition preferred was also dismissed by the Board of Revenue vide order dated 13.10.95 at the admission stage and thus, the said order passed by the Tehsildar, Raipur directing eviction of the petitioners, attained finality.

(6 of 13) [CW-1966/2018]

3. The petitioners somehow appear to have continued in possession and therefore, fresh proceedings were instituted by Tehsildar, Raipur for eviction of the petitioners and after giving them an opportunity of hearing vide order dated 21.5.07, they were directed to be evicted from the land, which as per the revenue record was set apart for public purpose. The order passed by the Tehsildar, Raipur was set aside by the Additional Collector, Bhilwara as appellate authority vide order dated 26.9.07, observing that the land stands recorded as Gair Mumkin Abadi in the revenue record and therefore, Tehsildar, Raipur had no jurisdiction to initiate proceedings under Section 91 of the Act of 1956. On the second appeal being filed by the private respondents, the RAA arrived at the finding that there is nothing on record suggesting that the land which is recorded as "Po Bharai Sthan Deh Samast Asamiyan" was ever divested for the use as Abadi land by any order passed by the competent authority and thus, on the basis of alleged land conversion order and unregistered agreement to sell, no right is created in favour of the petitioners herein. Accordingly, the appeal was allowed and the order passed by the Tehsildar, Raipur directing eviction of the petitioners from the suit land was restored. Aggrieved by the order passed by the RAA as aforesaid, the petitioners preferred separate revision petitions before the Board of Revenue, which were partly allowed. The Single Member, Board of Revenue while setting aside the order passed by the RAA, remanded the matter to Tehsildar, Raipur to make a detailed inquiry on the points specified and pass fresh order. Aggrieved by the order passed by the Single Member, Board of Revenue, the private respondents herein preferred special appeals before the Division Bench of the (7 of 13) [CW-1966/2018] Board of Revenue, which have been allowed as aforesaid. Hence these petitions.

4. Learned counsel appearing for the petitioners contended that the petitioners had purchased the land duly converted for residential purposes by way of agreement to sell from 'Borana Sarvajnik Dharmik Sanstha Po Bharai Deh', and thus, the land having been converted for residential use by the prescribed authority under Rajasthan Land Revenue (Conversion of the Agriculture Land for Non-Agriculture Purposes in Rural Area) Rules, 1992, the Tehsildar, Raipur had no jurisdiction to initiate the proceedings for eviction of the petitioners from the suit land under Section 91 of the Act of 1956. Learned counsel submitted that as a matter of fact, the special appeals preferred before the Division Bench were not maintainable inasmuch as the respondents had not obtained the declaration from the Single Member, Board of Revenue that the case is a fit one for appeal. Learned counsel submitted that the land in question is recorded in the name of "Po Bharai Sthan Deh Samast Asamiyan" as Gair Mumkin Abadi and not as Bilanam Government land and therefore, the provisions of Section 91 of the Act of 1956 could not have been invoked for this reason also. Learned counsel submitted that the State Government or Tehsildar had not challenged the order passed by the Additional Collector, Bhilwara dated 26.9.07 and therefore, the private respondents herein have no right to prefer appeal against the said order. Learned counsel submitted that the appeal preferred against the conversion order dated 4.4.96 by the Laxmi Lal and others having been dismissed by the Additional Collector, Bhilwara, the conversion order passed by the prescribed authority remains operative and thus, the petitioners cannot be evicted (8 of 13) [CW-1966/2018] from the land in question by taking proceedings under Section 91 of the Act of 1956. Drawing the attention of the court to the conversion order and the agreement to sell alleged to have been executed in favour of the petitioners herein by Borana Sarvajanik Dharmarth Sanstha, Borana ('the Society' hereinafter), learned counsel submitted that the transfer made in favour of the petitioners is valid transfer and thus, the entire proceedings taken for their eviction are ex facie without jurisdiction.

5. On the other hand, learned counsel appearing for the respondents No. 2 to 5 submitted that the land in question comprising Khasra No. 424 new Khasra No.4707/1361 is entered in the revenue record since settlement as "Po Bharai Sthan Deh Samast Asamiyan" which is the land used as water pond for the residents and the cattle of the village and thus, the land set apart for public purpose is not open to be divested for any other purpose. Learned counsel submitted that the said land was never khatedari land of the society as alleged by the petitioners and thus, any conversion order of some portion of the suit land obtained by the said society is nullity in the eye of law. Learned counsel submitted that photo stat copy of the agreement to sell in no manner relate to the disputed land occupied by the petitioners and as a matter of fact, the petitioners have attempted to mislead this court. It is submitted that the petitioners are attempting to grab the public land on the basis of the concocted and false documents and thus, the Board of Revenue has committed no error in upholding the order passed by the RAA and directing restoration of the disputed land in the revenue record as 'Po Bharai Sthan Deh Samast Asamiyan', invoking its power of superintendence of subordinate courts under Section 9 of the Act (9 of 13) [CW-1966/2018] of 1956, which is akin to the power of this court under Article 227 of the Constitution of India.

6. I have considered the rival submissions and perused the material on record.

7. Indisputably, the disputed land measuring 0.19 hectare comprising khasra no. 424, new khasra no.4707/1361 village Borana, Tehsil Raipur, District Bhilwara is recorded in the revenue record in the name of 'Po Bharai Sthan Deh Samast Asamiyan' and thus, apparently, the land is set apart for the public purpose. There is nothing on record suggesting that the said land was ever allotted to any individual or society. The stand sought to be taken by the petitioners that on the application made by the Society, the land was converted for residential use is absolutely incorrect and misleading. There is no document placed on record showing that the said Society was ever recorded as khatedar tenant of the land in question. It is not clear as to how the application preferred by the said Society for conversion of the land for residential purpose was entertained by the prescribed authority. It is pertinent to note that the land alleged to have been encroached upon by the unscrupulous persons including the petitioners is 0.19 hectare which comes to 1900 sq. meter i.e. 20451.43 sq. ft. whereas, vide order dated 4.4.96, the land alleged to have been converted for residential purpose on the application preferred by the President of the Society is only 108.3 sq. meter i.e. 1165.73 sq. ft. It is pertinent to note that to support the contention that the land in possession of the petitioners stands converted for residential purpose, all the petitioners before this court have relied upon the aforesaid conversion order which relate to conversion of the land 108.3 sq. meter only. That apart, the agreement to sell alleged to (10 of 13) [CW-1966/2018] have been executed in favour of the petitioners placed on record in no manner suggest that the same relate to the disputed land.

8. It is alleged by the petitioner that in respect of the property in question, in some cases the agreement was executed by Chairperson of the Society dated 3.4.02 and in some cases, the respondent no.3 Bhagwati Lal s/o Laluram had executed the agreement, who was then Treasurer of the Society. In this regard, the petitioner has produced on record a photostat copy of agreement dated 18.8.86 alleged to have been executed by Hiralal s/o Badrilal Kabra bearing an endorsement dated 11.11.94 in most of the cases, stating that the identical agreements were executed in favour of the petitioners herein, however, the agreement if any, executed in favour of the petitioners individually are not placed on record. Yet another agreement produced by the petitioners alleged to have been executed on 3.4.02, placed on record in Writ Petitions No.1966/18 and 1566/18 does not disclose the name of the person who has executed the said agreement on behalf of 'Borana Samaj Asamiyan' in favour of Govardhan Lal and Dharam Chand, transferring the land measuring 930 sq. ft.

9. A bare perusal of the notices issued by the Tehsildar (Revenue) under Section 91 of the Act of 1956 placed on record reveal that each of the petitioners except Bhanwar Lal, are shown to be in unauthorised occupation of the land ad measuring 0.01 hectare which comes to 1076.39 sq. ft. The land in unauthorised occupation of Bhanwar Lal is disclosed to be 0.02 hectare i.e. 2152.78 sq. ft. As noticed above, by way of conversion order, which is apparently issued by the prescribed authority without authority of law, only relates to 1165.73 sq. ft. Thus, the entire edifice of the writ petitions raised by the petitioners on the ground (11 of 13) [CW-1966/2018] that Tehsildar (Revenue), Raipur had no jurisdiction to initiate the proceedings under Section 91 of the Act of 1956 on account of the land being already converted for residential use, is absolutely baseless. This court is constraint to observe that while taking the stand as aforesaid, the petitioners have indulged in sheer falsehood and have attempted to mislead the courts throughout.

10. It has come on record that earlier while taking the proceedings under Section 91 of the Act of 1956, the petitioners were directed to be evicted from the land in question and the said proceedings attained finality in the year 1995. It is not clear as to how the petitioners continued in possession thereafter and why the possession of the land which is set apart for the public purpose was not taken by the authority concerned. In any case, the said Society who was not khatedar tenant of the land in question could not have transferred the land in favour of any person and the petitioners and their likes who claim to be such transferee in possession do not acquire any right whatsoever on the basis of alleged agreement to sell inasmuch as, the alleged transfer if any, made by the society, which had no title over the land in question, is nullity in the eyes of law.

11. There is yet another aspect of the matter. As noticed above, there is nothing on record suggesting that the said Society was ever allotted the said land or it acquired the khatedari rights over the land in question and was recorded as khatedar tenant in the revenue record. The entry in the revenue record clearly shows that it was the land earmarked for use of general public and therefore, by virtue of provisions of Section 16 of the Rajasthan Tenancy Act, 1955, even otherwise, no khatedari right can accrue over the disputed land and the same cannot be diverted for any (12 of 13) [CW-1966/2018] other use. Thus, viewed from any angle, the petitioners are unauthorised occupants over the land in question and they are rightly been directed to be evicted by taking proceedings under Section 91 of the Act of 1956.

12. In this view of the matter, the order impugned passed by the Board of Revenue upholding the order passed by the RAA, Bhilwara and directing restoration of the land in the revenue record in the name of ' Po Bharai Sthan Deh Samast Asamiyan' does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

13. Coming to the question raised by the petitioners regarding maintainability of the appeal before the Division Bench of Board of Revenue, it is noticed that no such objection was raised by the petitioners before the Division Bench of the Board of Revenue. The jurisdiction of the Division Bench of the Board of Revenue to entertain the appeal against the decision of Single Member, Board of Revenue, is not in dispute. A fortiori, on the facts and in the circumstances of the case, where the petitioners and their likes have attempted to grab the public land in fraudulent manner, the Board of Revenue has committed no error in exercising the power of superintendence under Section 9 of the Act of 1956.

14. In the result, the petitions fail, the same are hereby dismissed. The District Collector, Bhilwara is directed to ensure that the encroachment made by the petitioners is removed, in any case, within a period of four weeks from the date of receipt of certified copy of this order and the land is taken possession of the State. The compliance report shall be filed before this court within a period of six weeks. Any further lapse on the part of the (13 of 13) [CW-1966/2018] authorities in executing the order of eviction of the petitioners from the land in question shall be viewed seriously and dealt with sternly. No order as to costs.

A copy of this order may be sent to the District Collector, Bhilwara forthwith.

(SANGEET LODHA),J.

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Rajasthan High Court - Jodhpur