Rajasthan High Court - Jodhpur
State Of Rajasthan And Ors vs Pratap Chand And Ors on 3 September, 2019
Bench: S. Ravindra Bhat, Pushpendra Singh Bhati
(1 of 14) [SAW-300/2017]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Spl. Appl. Writ No. 300/2017
State of Rajasthan & Ors.
----Appellants
Versus
Kalu Ram & Ors.
----Respondents
Connected With
(2) D.B. Spl. Appl. Writ No. 423/2017
The State Of Rajasthan & Ors.
----Appellants
Versus
Pratap Chand & Ors.
----Respondents
For Appellant(s) : Ms. Rekha Borana, AAG with
Mr. Saransh Vij, Ms. Vaishali
Parihar
For Respondent(s) : Mr. Anil Vyas
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 03/07/2019 Pronounced on 03/09/2019 Reportable Per Hon'ble the Chief Justice
1. By the impugned order, the learned Single Judge allowed the writ petitions filed by the respondents/petitioners seeking directions to determine compensation for the petitioners and others in terms of the previous judgment of the Court in Dalit Manch of Bikaner v Union of India & ors. (S.B.Civil Writ Petition No.2233/1985 decided on 16.9.1991). (Downloaded on 03/09/2019 at 09:00:11 PM)
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2. The petitioners filed these proceedings under Article 226 of the Constitution, before the court alleging that they approached the Land Acquisition Officer, Bikaner in 1997-98, pursuant to the judgment in Dalit Manch (supra). On 6.6.2003, the District Collector by a letter stated that since the records were not available for verification, the compensation could not be granted. A similar letter was written by the Tehsildar too. The writ petitioners alleged that their lands along with the lands of others were acquired by the State of Rajasthan for use by the Union Ministry of Defence i.e. for Military and Air Force purposes. The allegation levelled was that no proceedings under the Land Acquisition Act were initiated and that the land in the area in and around village Udasar and Anoopsagar of Bikaner were forcibly taken away and occupied in 1983. This action by the respondents, especially the State, became the subject matter of proceedings in Dalit Manch (supra). The Court in Dalit Manch (supra) was of the opinion that the Central Government action in taking over possession of lands without paying compensation was contrary to law.
3. It was submitted that the benefits of the judgment in Dalit Manch (supra) were not confined to individuals and the writ petitioners who approached the Court, but also to others situated in identical circumstances. The Court in Dalit Manch (supra) had observed as follows:-
"However, it is now the military land which stands acquired and the same is also being used for cantonment areas, therefore, whether the proceedings under the Rajasthan Land Acquisition were followed or not, the acquisition is now complete and a fate accomplice. Therefore, no useful purpose would be served by directing the respondents to follow the proceedings under the Rajasthan Land Acquisition for the purpose of acquisition. The question remains only with regard to compensation to be paid to the members of the petitioners organisation.(Downloaded on 03/09/2019 at 09:00:11 PM)
(3 of 14) [SAW-300/2017] Therefore, I direct the respondents No. 2 to 4 to decide the question of compensation which may be payable to each of the persons whose land had been taken for the purpose of cantonment area, particularly the persons whose names have been mentioned in Annexure-2 and looking to the quality of land and other considerations, the compensation which may be payable to each of them may be determined and may be paid out of the amount which the State Government has already received from the Central Government. For this purpose, the concerned persons, members of the petitioner organisation or any other persons who were entitled to get the compensation or did not accept the alternative land will file their claims before the concerned authorities within a period of two months from the date the copy of the order is made available to the concerned authorities by the claimants and thereafter within a period of four months the claims shall be decided and the amount of compensation shall be determined in accordance with extent law and paid to such claimants.
This writ petition is accordingly allowed in the manner indicated above, with no order as to costs."
4. It was submitted that all the petitioners and others- numbering 24, preferred their claims containing particulars of the lands from which they were dispossessed. However, the respondent-State authorities took no action and consequently, they could not receive compensation. The petitioners also relied upon an order made in S.B.CWP No.4232/1998 Dau Lal V/s Land Acquisition Officer-Sub Divisional officer (North), Bikaner where the Court directed the respondent-State to pass the award and pay the amount of compensation in light of the decision in Dalit Manch (supra). The petitioners complained that the inaction of the respondents was arbitrary and that grant of compensation to those who had approached the State earlier, while denying the petitioners similar treatment, was discriminatory. The writ petition had annexed and relied upon the schedule to say that at the relevant time when the dispossession took place, their (Downloaded on 03/09/2019 at 09:00:11 PM) (4 of 14) [SAW-300/2017] names were recorded in the revenue documents. The same was produced as Schedule-I to the writ petition.
5. The respondent-State denied any liability; it was firstly urged that the proceedings were not in public interest; it was also argued that the writ petitioners had approached after considerable delay and laches. It was further stated in the counter affidavit that after thorough enquiry the Collector, Bikaner concluded that the land in question was 'Arajiraj' and that 24 persons including the petitioners were neither khatedars nor ghair khatedars of the land at the time when it was handed over to the Union Defence Ministry. The writ petitioners' averment about inaction was denied; the letter of 6.6.2003 was reproduced. It was emphasized that when the acquisition proceedings were initiated and possession was taken in 1983, the record nowhere shows that the petitioners were in possession of the land. Furthermore, none of the writ petitioners alleged any grievances at that time or even thereafter. In these circumstances, according to the State, the petitioners could not claim parity with those who had approached the Court in Dalit Manch (supra).
6. The learned Single Judge in this case followed the orders made in Gopal Ram v State of Rajasthan (S.B.CWP No.1618/2004 and a connected case, decided on 21.11.2007). The State was directed to follow the directions issued in Gopal Ram (supra). In Gopal Ram (supra), the learned Single Judge took note of the previous ruling in Dalit Manch (supra) and quoted the same in extenso in the judgment. The writ petitioners in Dalit Manch (supra) had approached the Court in 1985 through public interest litigation alleging that their lands were taken away forcibly in 1983. The petitioners in Gopal Ram and other connected cases alleged that though they were placed similarly to the (Downloaded on 03/09/2019 at 09:00:11 PM) (5 of 14) [SAW-300/2017] petitioners in Dalit Manch (supra), they were discriminated against and not awarded compensation. The court then relied upon the later ruling in Dau Lal (supra). The Court noticed that directions were issued by the Court in the course of writ petitions filed by Surjaram, Keshar Singh and Gopal Ram (S.B.CWP. No.326/2001, 324/2001 and 325/2001) on 19.2.2003. Pursuant to the directions, an enquiry was conducted in which it was transpired that the name of Gopal Ram was in-fact recorded in the revenue document despite which the revenue authorities (SDO) flouted the High Court's orders. Consequently, the Court allowed the writ petition, after noting that 'de novo' enquiry conducted was unwarranted. The concluding portion of the judgment in Gopal Ram (supra) reads as follows:-
"13. In fact, the language of the said judgment as well as whole tenor of it goes to show that such further enquiry was not permissible but despite this referring to observations in the previous judgment dated 7.5.99, the learned S.D.O., assumed this jurisdiction and holding such enqiry de novo and on a strange ground namely that the petitioner's right over the land in question was only of one year cultivatory possession, negatived their claims for compensation. A bare perusal of some of the revenue records produced by the petitioners as Annex.1 in this writ petition clearly indicates that earlier the name of father of the present petitioners Gopal Ram namely Kishano S/o Dhudaji B/C Nayak was incorporated in the Zamabandi for the samvat year 2017 and for Khasra No.45/16 ad measuring 60 bighas for the same land in question and thereafter, the name of the petitioners Gopal Ram came to be incorporated in the revenue records vide Annex.3 Khasra Girdavari for the Samvat Year 2025 (Page 46) in which the name of the agriculturists is shown to be Gopal S/o Kishna for the same Khasra No. 45/16 ad-measuring 60 bighas. This prima facie establishes the right of the petitioners over the land in question both cultivatory possession and a khatedari right entitling them for the compensation. Since, admittedly the State has disbursed compensation to even Gair Khathedars and persons in the cultivatory possession in pursuance of the first determination in this regard quoted above in (Downloaded on 03/09/2019 at 09:00:11 PM) (6 of 14) [SAW-300/2017] the case of Dalit Manch pursuant to judgment dated 16.9.1991, there appears to be no valid rhyme or reason behind refusing such compensation to the present petitioners on the ground of their one year cultivatory possession as stated by the learned SDO. This clearly, therefore, appears to be an extraneous reason which prevailed with the learned SDO in rejecting the claim of petitioners totally ignoring the law and clear mandate of this Court in these three judgments. This act of learned SDO of findings some way or the other to bye-pass the directives of this Court in three consistent judgments which admittedly became final and have not been upset by any appellate or superior court, can hardly be appreciated and this Court could have imposed exemplary costs on the learned SDO for passing the said order in the aforesaid manner, however taking a liberal view in this regard and giving the benefit of "good faith" clause in passing such orders by quasi judicial authority, this Court refrain from doing so at this stage. Nonetheless, it is felt that the said order passed by learned SDO on 3.7.2003 (Annex.21) was not at all justified and cannot be sustained in the light of previous judgments of this Court and facts obtaining in the present case.
14. Consequently, these writ petitions are allowed and the impugned order of learned SDO dated 3.7.2003 (Annex.21) is quashed and it is directed that the compensation for the land in question shall be paid to these two petitioners within a period two months from today after determination of the said compensation amount by learned S.D.O., (North), Bikaner before the said period of two months. The petitioners may appear before the S.D.O., on 10.12.2007 in the first instance in this regard. It is further directed that if such actual amount of compensation on the basis of measurement of land is not determined and paid by the said learned S.D.O., within two months from today i.e. on or before 31.1.2008, a cost of Rs. 200/- each day of the delay after said date would be payable by the learned S.D.O. personally and he may also be held liable for action under the contempt law."
7. The State, which is the appellant in these appeals, argues that the learned Single Judge fell into error in granting relief in the circumstances of the case. It was highlighted by Ms. Rekha Borana, learned Additional Advocate General, that (Downloaded on 03/09/2019 at 09:00:11 PM) (7 of 14) [SAW-300/2017] when in 1983, possession was handed over to the Union Defence Ministry by the colonization Department of the State (which was in possession of lands from 1963 onwards) the writ petitioners were not in possession. The pleadings and the documents produced at best would reveal that for some time, some of the writ petitioners' predecessors were gair khatedars or had cultivated lands either intermittently or for certain seasons. Considerable developments took place thereafter; the lands were colonized and had vested in the State.
8. Ms. Borana, the AAG argued that when Section 15AAA of the Rajasthan Tenancy Act, 1955 was introduced (in 1983), the writ petitioners or their predecessors were not in possession. It was highlighted that the writ petitioners were not allotted lands by the Colonization Department and that unlike in Gopal Ram, Surjaram and Keshar Singh, all of whom were in possession at the relevant point of time in 1983 or even before that, at the time when the lands were taken over by the Colonization Department, the writ petitioners in the present case failed to establish their possession at the relevant point of time. Arguing that the learned Single Judge fell into error in granting relief, the learned AAG stated that the demand for parity was made for the first time in the year 2000 when a legal notice was issued on behalf of the writ petitioners. It was submitted that in these circumstances when the petitioners approached the Court in 2005, in any event, their claims was belated. (Downloaded on 03/09/2019 at 09:00:11 PM)
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9. It was lastly argued that although the writ petitions have been filed by only two individuals in each case, they claimed relief on behalf of about 24 persons. By its very nature, the proceedings claim individual relief i.e. compensation for the ousted land owners. In the absence of authorization by individuals who are alleged to have been deprived of their rights, the present writ petitioners cannot maintain a public interest litigation. It is contended that even if it were assumed for a moment that others had a claim at some point in time- after passage of decades, it would be unsafe to grant relief to individuals who were not present before the Court with the claim. This would lead to speculative transaction and what is more, spurious claim on behalf of the alleged similar third party.
10. The respondents, who had succeeded before the learned Single Judge argued that the impugned order was made having regard to the interest of justice. It is contended that the decision in Dalit Manch (supra) is very clear that the judgment operates in rem. This meant that every individual placed in similar or identical circumstance as the petitioners in Dalit Manch (supra) acquired a right to approach the Court. Therefore, the petitioners can maintain the present proceedings on their behalf as well as on behalf of others in a representative capacity.
11. It was argued next that the submission with regard to lands having been taken over at the point of time when the petitioners were not in possession, is without substance. Counsel highlighted that in the case of others who were (Downloaded on 03/09/2019 at 09:00:11 PM) (9 of 14) [SAW-300/2017] granted relief as such in Gopal Ram etc., the possession was established only in respect of a limited period like in the present case. Therefore by parity of reasoning the writ petitioners were entitled to compensation for dispossession. It was submitted that having regard to the fact that the possession stands established for the period of 1955-60, the rights of the petitioners to whatever limited extent have to be recognized. Those rights were sought to be extinguished without compensation. Not granting relief would mean that the State would be allowed to violate Article 300A of the Constitution of India by divesting individuals of their property, without payment of compensation.
12. In the present case, at the outset this Court notices that in the appeal (SAW No.300/2017) filed against Kaluram and others, only two respondents had approached the Court as writ petitioners. In the other appeal State of Rajasthan V/s Pratap Chand & ors. (SAW No.423/2017) only one writ petitioner had approached the Court. Yet the writ petitioners annexed a schedule containing a large number of other names. The petitions ostensibly were filed in public interest, yet the claims are in respect of individuals in possession of land who alleged to have been ousted from it.
13. This Court notices that unlike in the case of displacement on account of a project or large-scale acquisition, in the present case, the lands had vested and even been taken over by the colonization department of the State as far back as in 1963. This is not disputed by the petitioners. Yet apparently, despite the land having been (Downloaded on 03/09/2019 at 09:00:11 PM) (10 of 14) [SAW-300/2017] vested in the colonization department under the Colonization laws many individuals continued in occupation and had cultivated those lands. The question is whether any of the three petitioners (in both the appeals) were in that situation. The record would show that in SAW No.300/2017, the writ petitioners Kalu Ram and Puran Singh had not produced any revenue record relatable to the year 1983 (Samvat 2040). The legal notice issued on their behalf does not specify any particulars with respect to possession as on the relevant cut off date. The possession claimed by them relates to the years between 1955 to 1962 (Samvat 2012-2019, in some cases 2025).
14. A combined reading of Sections 5(43), 14, 15 and 15AAA of the Rajasthan Tenancy Act, 1955 would show that those who were tenants and in possession of lands at the relevant time i.e. at the time of coming into force of the Act or the coming into force of amendments at various points of time including the amendment in 1983, were entitled to tenancy and khatedari rights. In the present case, apart from sketchy material in the form of extracts of the khasra girdawari and Jamabandi etc. for various periods, do not indicate that the respondents-petitioners' possession was continuous and that they had perfected such possession as khatedars or tenants. Nevertheless, they had possession- perhaps even likely as in the case of the writ petitioners who had approached earlier, in Gopal Ram.
15. In the opinion of this Court, the judgment in Dalit Manch (supra) is categorical, inasmuch as it recorded that clearly (Downloaded on 03/09/2019 at 09:00:11 PM) (11 of 14) [SAW-300/2017] many individuals were divested from possession of their lands at the same time the State of Rajasthan was given about Rs.30 crores to compensate occupiers, by the Central Government. The writ petitioners have approached the Court after considerable delay. Gopal Ram had been appealed by the State, since the Single Judge had followed the decision in Dalit Manch (supra) and the subsequent order in Daulal (supra). The Court, in the Division Bench ruling, noted that the writ petitioners had approached the Court after considerable delay. At the same time the Court felt that the learned Single Judge's order granting complete relief was not appropriate and that the SDO ought to enquire into the matter having regard to the status of the record, and held as follows:
"10. At the outset, it may be observed, that learned Counsel for the appellant is right in contending, that the claim of the petitioners is grossly belated, inasmuch as, the acquisition is of the year 1983, and the petitioners laid their claim before the learned SDO for the first time in the year 1996, and on that count, we would have been inclined to throw away the claim, on the face of it. But then, the precise predicament in our way is, that in the writ petitions two round of judgments had been rendered, one being dated 7.5.99, and other being dated 19.2.2003, and rightly or wrongly, or for whatever considerations, those judgments have not been challenged on behalf of the appellants; and in those judgments, it had been directed to learned SDO to examine the entitlement of the writ petitioners to get compensation, and not to reject the claim on the ground of delay, therefore, in our view it would not be appropriate for us, hearing these appeals, to now throw away the claims on the ground of delay. However we make it clear, that we should not be understood to be opening flood gates for laying claims by other persons claiming interest in the lands, which had been acquired in 1983, simply because of sequence of judgments rendered in cases of the present writ petitioners, (Downloaded on 03/09/2019 at 09:00:11 PM) (12 of 14) [SAW-300/2017] including this judgment. It is further clarified that it will always open to the respondents to contest the other claims if they come, on the ground of their being belated, and the judgments rendered, comprising of the above sequence of judgments, including this judgment will not be of any help to such claimants.
11. Coming to the merits of the claim of the present writ petitioners, what we find from the documents is, that the petitioners' name were recorded in the Jamabandis, at least from 2016 onwards, and it does appear, that since the land went into Colonisation, the revenue entries were not maintained by revenue authorities. With this, so far as the submission said to have been made on behalf of the writ petitioners, as recorded in Annex-21, about their having been allotted the land for one year, and then the appellant producing the order of the SDO dated 7.4.60, allotting the land for one year, is concerned, we are not impressed with the point, inasmuch as, under the Rajasthan Land Revenue Act, or the Rules framed thereunder, or under any other provisions, as were prevailing in 1960, there was no provision, for making allotment of land for one year, nor any such provision has been shown to us to be existing at that time. Then, even if for the sake of argument it was to be presumed, that the land was allotted for one year, even in that event, the entry cannot be said to be unlawful, and thereafter it is not shown on the side of the appellants, as to when, and how, and by adopting what procedure, the possession of the petitioners was resumed.
12. In that view of the matter, it cannot be said that the writ petitioners are not the "persons interested" in the land, so as to be denied the entitlement to any compensation whatever.
13. Thus, we are not inclined to interfere with the order of the learned Single Judge, in so far as it holds, that the writ petitioners are entitled to compensation. However, the direction given by learned Single Judge, imposing cost of Rs. 200/- for each day of delay, appears to be very very harsh, and requires to be set aside. At the same time, since the matter is already hanging fire at least since 1999 till the date, it is required to be decided most expeditiously, to bring the controversy to an end, finally.
14. Accordingly, the appeal is partly allowed, and the direction given by learned Single Judge, imposing cost of Rs. 200/- for each day of delay, and the learned SDO (Downloaded on 03/09/2019 at 09:00:11 PM) (13 of 14) [SAW-300/2017] being liable for contempt, is set aside. The rest of the direction given by the learned Single Judge, to the SDO, to decide the matter within two months, and to make payment within the time frame, is maintained, which period of two months shall commence from the date, the certified copy of this order is produced before the learned SDO. In the event of default of payment of compensation, the amount will carry additional interest @ 12% p.a. It is also clarified, that in the event of the writ petitioners being not satisfied with the quantum of compensation determined, they will be free to move appropriate application for reference, in accordance with the provisions of Section 18 of the Land Acquisition Act 1894. The parties are left to bear their own costs so far."
16. In the present case as well, the Court is of the opinion that a similar approach and view is to be adopted. As noticed previously, the documents on record would show that the respondent-petitioners have been able to show possession for the period 1955-1962 (Samvat 2012-2019; in some cases 2025). In these circumstances, following the decision of the Division Bench in Gopal Ram (supra), a direction is issued to the SDO to consider the relevant records and decide whether in 1963 when the colonization of land took place or in 1983 the writ petitioners or their predecessors were in possession of the land. The SDO shall complete the process of verification within three months after giving notice to the parties. In case it is found that the writ-petitioners were in possession for any period which entitled them to compensation, such compensation shall be determined within six months thereafter together with interest. It is clarified at the same time, that relief is confined to the writ petitioners only.
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17. The appeals are partly allowed in the above terms. (DR. PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ Parmar/-
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