Rajasthan High Court - Jaipur
Ramdeva Son Of Modu Lal vs Laxmi Narayan S/O Nainaga Balai on 19 December, 2023
Bench: Manindra Mohan Shrivastava, Shubha Mehta
[2023:RJ-JP:38766-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Special Appeal (Writ) No. 1818/2014
In
S.B. Civil Writ Petition No.9322/2014
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavari
Patan, District Bundi.
----Appellant
Versus
1. State Of Rajasthan through the Tehsildar, Keshavrai Patan,
District Bundi.
2. Dev Kishan S/o Ram Dayal, R/o Village Naya Gaon, Tehsil
Keshavari Patan, District Bundi.
3. Rampal S/o Ram Dayal, R/o Village Naya Gaon, Tehsil
Keshavari Patan, District Bundi.
----Respondents
Connected With D.B. Civil Special Appeal (Writ) No. 1817/2014 In S.B. Civil Writ Petition No.21350/2013 Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavrai Patan, District Bundi.
----Appellants Versus
1. Sukhdev Son of Modu Balai, Aged about 38 Years
2. Smt. Chhoti Wife Of Modu Balai (Since Deceased), Both Residents Of Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
3. Board Of Revenue For Rajasthan, Ajmer Through Its Registrar.
4. Revenue Appellate Authority, Kota.
5. Sub Divisional Officer, Keshoraipatan.
6. State Of Rajasthan, Through Tehsildar, Keshoraipatan, District Bundi.
----Respondents (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (2 of 19) [SAW-1818/2014] D.B. Civil Special Appeal (Writ) No. 1819/2014 In S.B. Civil Writ Petition No.21349/2013 Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavrai Patan, District Bundi.
----Appellants Versus
1. Laxmi Narayan S/o Nainaga Balai,
2. Kailash Bai W/o Motilal, Aged About 55 Years,
3. Satya Narayan S/o Motilal, Aged About 35 Years,
4. Ram Prasad S/o Motilal, All Residents Of Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
5. Board Of Revenue For Rajasthan, Ajmer Through Its Registrar.
6. Revenue Appellate Authority, Kota.
7. Sub-Divisional Officer, Keshoraipatan
8. State Of Rajasthan, Through Tehsildar, Keshoraipatan, District Bundi.
9. Smt. Sushila Bai Wife Of Chittarlal, Resident Of Jhakhmund, Tehsil Talera, Distt. Bundi.
10. Smt. Kesar Bai Wife Of Kalulal Regar, Resident Of Jhakhmund, Tehsil Talera, Distt. Bundi.
----Respondents D.B. Civil Special Appeal (Writ) No. 1820/2014 In S.B. Civil Writ Petition No.21347/2013 Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavrai Patan, District Bundi.
----Appellants Versus
1. Gopal S/o Gordhan Harijan, Aged about 35 years,
2. Kalu S/o Gordhan Harijan, Aged About 32 Years,
3. Radhey Shyam S/o Gordhan Harijan, aged about 38 years
4. Smt. Kamla W/o Gordhan,
5. Smt. Munni Bai Wife Of Mahaveer, (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (3 of 19) [SAW-1818/2014]
6. Deepak S/o Mahaveer, Aged About 28 Years,
7. Vikas S/o Mahaveer, Aged About 18 Years, All Residents Of Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
8. Board Of Revenue For Rajasthan, Ajmer Through Its Registrar.
9. Revenue Appellate Authority, Kota.
10. Sub-Divisional Officer, Keshoraipatan
11. State Of Rajasthan, Through Tehsildar, Keshoraipatan, District Bundi.
12. Rajesh Kumar S/o Pooranmal, Resident Of Chhota Sogariya, Ramdev Ji Ke Mandir Ke Samney Station Kota, Tehsil Ladpur, Distt. Kota.
13. Mamta Wife Of Rajesh Kumar Bairwa, Resident Of Chhota Sogairya, Ramdev Ji Ke Mandir Ke Samney Station Kota, Tehsil Ladpura, Distt. Kota.
14. Raju Bai W/o Prabhu Lal Bairwa, R/o 338, Ramdev Ji Ka Mandir, Village Chhota Sogariya, Tehsil Ladpura, District Kota.
----Respondents D.B. Civil Special Appeal (Writ) No. 1821/2014 In S.B. Civil Writ Petition No.21348/2013 Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavari Patan, District Bundi.
----Appellant Versus
1. Kalyan Lal S/o Madho Balai aged about 50 years,
2. Chhitar Lal S/o Madho Balai aged about 45 years.
Both residents of Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
3. Board Of Revenue For Rajasthan, Ajmer Through Its Registrar.
4. Revenue Appellate Authority, Kota.
5. Sub Divisional Officer, Keshoraipatan.
6. State Of Rajasthan Through The Tehsildar Keshoraipatan, District Bundi.
----Respondents (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (4 of 19) [SAW-1818/2014] D.B. Civil Special Appeal (Writ) No. 1822/2014 In S.B. Civil Writ Petition No.21230/2013 Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavari Patan, District Bundi.
----Appellant Versus
1. Devkishan Balai S/o Rampal aged about 35 years, R/o Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
2. Board Of Revenue For Rajasthan, Ajmer Through Its Registrar.
3. Revenue Appellate Authority, Kota.
4. Sub Divisional Officer, Keshoraipatan.
5. State Of Rajasthan Through The Tehsildar Keshoraipatan, District Bundi.
----Respondents D.B. Civil Special Appeal (Writ) No. 1823/2014 In S.B. Civil Writ Petition No.21057/2013 Ramdeva S/o Modu Lal, Village Naya Gaon, Tehsil Keshavari Patan, District Bundi.
----Appellant Versus
1. Ram Dayal Nai S/o Kishanlal, aged about 56 years, R/o Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
2. Board Of Revenue For Rajasthan, Ajmer Through Its Registrar.
3. Revenue Appellate Authority, Kota.
4. Sub Divisional Officer, Keshoraipatan.
5. State Of Rajasthan Through The Tehsildar Keshoraipatan, District Bundi.
----Respondents For Appellant(s) : Mr. Sanjay Mehrish, Advocate with Mr. Rakesh Saini Advocate.
For Respondent(s) : Mr. Anil Mehta, Additional Advocate General with Mr. Yashodhar Pandey (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (5 of 19) [SAW-1818/2014] Advocate & Ms. Amaru Vishnoi Advocate.
Mr. N.K. Maloo, Senior Advocate with Mr. Pratyush Sharma, Advocate & Mr. V.K. Tamoliya Advocate Mr. Nitin Kumar Sharma Advocate with Mr. Pankaj Sharma Advocate.
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MRS. JUSTICE SHUBHA MEHTA Judgment 19/12/2023
1. This common order shall govern the disposal of all the appeals as they arise out of order dated 13.10.2014 passed by the learned Single Judge in writ petitions filed by the State as well as allottees.
2. For convenience, D.B. Civil Special Appeal (Writ) No.1818/2014 (Ramdeva S/o Modu Lal Versus State Of Rajasthan through The Tehsildar, Keshavrai Patan, District Bundi & Others) is being taken as the lead case.
3. The Writ petitions were filed by the State and the allottees challenging the order dated 30.10.2013 passed by the Board of Revenue on a revision petition preferred by the State Government. 3.1. The factual matrix of the case giving rise to the present batch of appeals in the matter of dispute between Appellant-Ramdeva on one hand and the State and allottees on the other hand are that the Ceiling proceedings were initiated under Rajasthan Tenancy Act, 1955 against one Modu Lal (Father of Ramdeva), which culminated in an order dated 29.05.1975 passed by the Assistant Collector, Bundi, declaring 137 Bigha and 8 Biswa of land held by Modu Lal, to be in excess of the Ceiling limit. Modu Lal challenged the order before the Appellate Authority, though remained unsuccessful as the (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (6 of 19) [SAW-1818/2014] Revenue Appellate Authority dismissed the appeal. Aggrieved by the order passed by the Revenue Appellate Authority, Modu Lal preferred second appeal before the Board of Revenue, which too was dismissed vide order dated 03.08.1976. Thereafter, Modu Lal did not challenge the aforesaid order and, thus, the Ceiling proceedings attained finality. In 1977, the surplus land, which vested in the State by operation of law, were allotted to several landless persons. Allotment letters were issued, land records were mutated in favour of the landless allottees in 1977. In this manner, not only the Ceiling proceedings attained finality but the allottees also started cultivating land allotted to them by the State since then.
4. In the year 1992, Ramdeva S/o Modu Lal filed suit No.54/1992 before the Revenue Court seeking declaration and partition against Modu Lal. The allottees were also made parties. The suit was filed on the pleadings that when Ceiling case was initiated and decided, he was a co-sharer as the land was ancestral one. As he was minor, his interest ought to be protected by his father while contesting the case but that was not done. The revenue suit was, however, dismissed by the Sub Divisional Officer on 07.01.2003 on the ground that the order passed in Ceiling proceedings could not be made a subject matter of a suit. Thereafter, in 2003, Ramdeva preferred an appeal against original order dated 29.05.1975 passed in the Ceiling proceedings by the Assistant Collector, Bundi. The Revenue Appellate Authority allowed the appeal vide order dated 20.08.2003. The Revenue Appellate Authority decided the appeal in favour of Ramdeva though it did not set aside order dated 29.05.1975 passed by the Assistant Collector, Bundi but remanded the matter with a direction to decide the issue of notional share of Ramdeva. (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (7 of 19) [SAW-1818/2014] Aggrieved by the said order, State preferred revision petition before the Board of Revenue. Ramdeva, aggrieved partly with the order to the extent it remanded the case for consideration, also preferred revision petition before the Board of Revenue. 4.1. Vide order dated 11.06.2008, the Board of Revenue allowed revision petition of the State but dismissed the revision petition filed by Ramdeva on the ground that the Ceiling proceedings have already attained finality in the past, appeal against order dated 29.05.1975 filed by Ramdeva was not only hopelessly barred by limitation but also barred by res judicata. Thereafter, Ramdeva filed a Writ Petition No.8013/2008 against order dated 11.06.2008 passed by the Board of Revenue to the extent it dismissed his Revision Petition No.1936/2006 though no writ petition was filed against the order of the Board of Revenue allowing State's revision. The writ petition was disposed off giving liberty to file review petition before the Board of Revenue. In the second round of litigation, the review petition filed by Ramdeva was allowed. Revision Petitions were reheard. Revision of State was dismissed, whereas, revision of Ramdeva was allowed. The Board of Revenue also reviewed its earlier order passed qua Modu Lal on 03.08.1976. It appears that though two allottees Ramdayal S/o Kishanlal and Devkisan S/o Rampal filed applications under Order 1 Rule 10 CPC for being impleaded in revision petition, those applications were not decided, kept pending and were finally rejected while deciding the revision petition.
4.2. Aggrieved by the aforesaid order of the Board of Revenue passed on 20.10.2013, the State Government filed Writ Petition No.9322/2014 and other writ petitions were filed by the allottees. All (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (8 of 19) [SAW-1818/2014] those petitions were heard and by impugned order, the writ petitions were allowed, order of the Board of Revenue was set aside by the learned Single Judge, giving rise to these appeals filed by Ramdeva.
5. Learned Single Judge held that the appeal filed in 2003 by Ramdeva against the order dated 29.05.1975 of the Assistant Collector, Bundi suffered from inordinate and unexplained delay and is based on false statement. It was found that while filing appeal in the year 2003, Ramdeva claimed that the order passed in 1975 came to his notice in 2003, whereafter the appeal was immediately filed, whereas, Ramdeva had filed revenue suit way back in the year 1992 and he was fully aware of the Ceiling proceedings and the orders passed. Therefore, the cause shown for condonation of delay was false to the knowledge of Ramdeva. The Board of Revenue could not have casually condoned the long delay of 28 years. It was also noticed that it is not merely the State but interest of large number of allottees were also adversely affected because they were allotted land, which were declared surplus in the year 1975. Learned Single Judge also held that the case against Modu Lal had attained finality and, therefore, the Board of Revenue could not have reconsidered the merits of the case.
6. Learned counsel appearing for Ramdeva in all the appeals, would submit that when Ceiling proceedings against Modu Lal were initiated in the year 1975, Ramdeva was a minor but he had a share in the ancestral property. The right of Ramdeva in those proceedings could not be taken away without impleading him as a party. The order was passed in the year 1977 behind his back. Therefore, merely because Modu Lal lost in all the proceedings upto the Board of Revenue and did not challenge the order passed by the Board of (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (9 of 19) [SAW-1818/2014] Revenue, it would not foreclose the right of Ramdeva. He would further submit that Modu Lal had initially filed a revenue suit for partition in which decree was obtained by his father with regard to partition of ancestral property, wherein preliminary decree was passed for the purpose of partition. The preliminary decree was made final on 13.07.1972. In Ceiling proceedings, it was nowhere considered that there was already a partition of the holdings and illegally entire land was taken as belonging to one unit of Modu Lal leading into passing of an illegal order declaring 137 Bigha and 16 Biswa land as surplus. He would submit that after Ramdeva attained the age of majority and when he came to know about the illegal orders that were passed in Ceiling proceedings affirmed upto Board of Revenue, he filed revenue suit in the year 1992, which was held not maintainable. It was only thereafter that he preferred appeal against order dated 29.05.1975 passed in Ceiling proceedings. In this exceptional background and circumstances, the Revenue Appellate Authority had rightly passed the order for consideration afresh on the aspect of division of land instead of treating the land of 137 Bigha and 16 Biswa as one Unit. The State's revision was illegally allowed and that the appeal filed by Ramdeva was dismissed without proper consideration of the merits of the case. After seeking liberty from the Writ Court, review was filed and the Board of Revenue rightly set aside earlier proceedings, dismissing State's revision, taking into consideration that initial order declaring land as surplus was bad in law which ought not to have been interfered with by the learned Single Judge. He would submit that on the aspect of delay, the merit was required to be examined first rather than holding dismissal of appeal justified as barred by limitation. He (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (10 of 19) [SAW-1818/2014] would further submit that the delay stood explained from the circumstances of the case. In support of his submissions, learned counsel for the appellants has placed reliance upon the decision of the Hon'ble Supreme Court in the cases of Madras Port Trust Versus Hymanshu International By Its Proprietor V. Venkatadri (Dead) By L.R.s, (1979) 4 Supreme Court Cases 176, Union of India Versus Giani, (2011) 11 Supreme Court Cases 480, B.T. Purushothama Rai Versus K.G. Uthaya and Others, (2011) 14 Supreme Court Cases 86, the judgment of this Court in the cases of Ram Pratap & 3 Others Versus State of Rajasthan & Others, 1989 (36) Rajasthan Revenue Decisions 127, Jugal Kishore & Others Versus S.D.O., Baran & Others, 1988 (2) Rajasthan Law Reporter 595, the judgment of the Single Bench of this Court in the cases of Bhoj Raj Versus S.D.O. & Others, 1985 (4) Rajasthan Law Reporter 557, Amb Singh & Another Versus S.D.O., Bhinmal & Others, 1986 (5) Rajasthan Law Reporter 359 and the decision of the Rajasthan Board of Revenue in the case of State of Rajasthan Versus Ram Kalyan, 1979 Rajasthan Revenue Decisions NUC 55 Page 31.
7. Per-contra, learned counsel appearing for the State would submit that Ceiling proceedings were initiated against Modu Lal and Ramdeva being his son, was duly represented by his father Modu Lal. He would submit that, in-fact, the Modu Lal raised a ground that part of the property was ancestral one and, therefore, his son Ramdeva also had a share in it, but the same was not accepted on the basis of the enquiry made in the Ceiling proceedings and the plea of partition was rejected. He would submit that Modu Lal filed appeal, which was dismissed and, thereafter, second appeal was (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (11 of 19) [SAW-1818/2014] filed before the Board of Revenue, which was also dismissed in the year 1976. The matter attained finality in 1976. Modu Lal never challenged the order. Ramdeva attained the age of majority long back but he also never challenged the same. Lands which were declared surplus were allotted to large number of allottees and they remained in cultivating possession for a decades when suit was filed by Ramdeva in the year 1992, which was held not maintainable. The pleadings in the suit are admission on the part of Ramdeva that he was in full notice and knowledge of the Ceiling proceedings and the orders passed. It is only when the suit was dismissed as not maintainable, that an appeal against original order passed way back in 1975 was filed in the year 2003 on a false statement that Ramdeva came to know about the order passed in 1975 only recently. This false plea was ignored and an order was passed by the Revenue Appellate Authority, which was challenged by filing revision by the State. The revision filed by the State was duly and properly appreciated by the Board of Revenue. However, the Board of Revenue later on, exceeded its jurisdiction in reviewing merits of the case in the garb of review of an order, which was passed way back in the year 1975 and passed the order which was rightly set aside by the learned Single Judge.
8. Learned Senior Counsel appearing for private Respondents/allottees in connected appeals would submit that the pleadings made in the revenue suit filed by Ramdeva way back in the year 1992 are admission of fact that Ramdeva had full notice and knowledge of order passed against his father Modu Lal in the year 1975. As per records and the stand taken by Ramdeva himself, he was aged 5 years when the order was passed in the year 1975, (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (12 of 19) [SAW-1818/2014] meaning thereby that he attained the age of majority in around 1988-89. Even thereafter, he did not initiate any proceeding and filed suit only in the year 1992 and appeal in 2003. It is also submitted by learned Senior Counsel that apart from being hopelessly barred by limitation, appeal filed by Ramdeva before the Revenue Appellate Authority, challenging order dated 29.05.1975 was not at all maintainable as that order was already challenged by Modu Lal earlier by filing an appeal, which was dismissed way back on 26.08.1975 and second appeal was also dismissed by the Board of Revenue on 03.08.1976. Thus, the order dated 29.05.1975 had already merged in the appellate order passed subsequently and, therefore, appeal filed by Ramdeva was not maintainable under the law.
8.1. It is further contended that false plea was taken to seek condonation of delay in filing appeal before the Original Appellate Authority that Ramdeva came to know about the order dated 29.05.1975 only in the year 2003. In the suit filed by him way back in the year 1992, he himself had pleaded regarding Ceiling proceedings and the orders passed therein. Thus, condonation was sought on false plea, which was duly appreciated by the learned Single Judge. It is also submitted that the appeal was not maintainable as all those persons who were subsequently allotted land and were in cultivating possession under the allotment letters issued in their favour long back in the year 1977, though necessary parties, were not impleaded. In-fact, their applications before the Board of Revenue remained pending and were dismissed only while passing final order. On merits also, it is argued that it is not for the first time that the plea regarding there being other share holders (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (13 of 19) [SAW-1818/2014] was taken by Ramdeva. Modu Lal had taken this ground before the Ceiling Authority and even in first & second appeals filed by him. The orders passed by the First Appellate Authority and Second Appellate Authority in first round of litigation initiated at the instance of Modu Lal were binding on his son Ramdeva because his interest was also duly represented by his father Modu Lal. In support is his submissions, learned Senior Counsel for private respondents/allottees has placed reliance upon the decision of the Hon'ble Supreme Court in the cases of Collector of Customs, Calcutta Versus East India Commercial Co. Ltd., Calcutta and Others, AIR 1963 Supreme Court 1124 (V 50 C 170), S.S. Rathore Versus State of Madhya Pradesh, AIR 1990 Supreme Court 10, Pundlik Jalam Patil (Dead) By LRs. Versus Executive Engineer, Jalgaon Medium Project and Another, (2008) 17 Supreme Court Cases 448, Oriental Aroma Chemical Industries Limited Versus Gujarat industrial Development Corporation and Another, (2010) 5 Supreme Court Cases 459 & Chandi Prasad and Others Versus Jagdish Prasad and Others, (2004) 8 Supreme Court Cases 724, the Judgment of this Court in the cases of Smt. Roop Kanwar D/o Late Sh. Udai Singh Versus Sohan Singh S/o Late Sh. Udai Singh and Others, 2013 (4) Western Law Cases (Raj.) 462 & Sangam Spinners Mandap Bhilwara (M/s.) & Another Versus Surendra Singh & Another, 2014 (3) DNJ (Raj.) 1129.
9. The submission of learned counsel for the parties have been considered and record perused.
10. Facts floating on the surface of the case are that the Ceiling proceedings were initiated against Modu Lal. In those proceedings, (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (14 of 19) [SAW-1818/2014] Ceiling Authority, after enquiry, arrived at conclusion of fact that land ad-measuring 197 Bigha and 16 Biswa belong to Modu Lal and Modu Lal and his family dependent upon him constitute one unit. A perusal of order dated 29.05.1975 passed by the Ceiling Authority would show that the plea taken by Modu Lal regarding there being other share holders and, therefore, entire land could not be taken as one unit for the purposes of Ceiling proceedings was rejected. Vide order dated 29.05.1975, 137 Bigha and 16 Biswa of land was declared surplus. Modu Lal preferred an appeal before the First Appellate Authority, which was dismissed on 26.08.1975. Thereafter, second appeal preferred before the Board of Revenue, which too was dismissed on 03.08.1976. There is nothing on record to establish that Modu Lal challenged the order of Board of Revenue before the Writ Court or in any other proceedings. The order, thus, attained finality. The record also speaks that the land was subjected to allotment in the year 1977 and number of allottees (appellants in other connected appeals) were allotted land through allotment letters. Those allotment letters, Mutation, Jamabandi record and challan have also been placed on record. It would thus, be seen that those allottees were allotted surplus land and since then they had remained in cultivating possession of the land.
11. It was only in 1992 that for the first time, Ramdeva had filed a revenue suit seeking declaration and partition against Modu Lal. The allottees were also made party in that suit. The pleadings in the suit show that it was the case of Ramdeva that he was minor when Ceiling Case was initiated and decided. The suit was, however, dismissed on 07.01.2003 on the ground that Ceiling proceedings could not be a subject matter of revenue suit. Thereafter, that order (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (15 of 19) [SAW-1818/2014] dated 29.05.1975 which otherwise had attained finality, was again sought to be challenged by Ramdeva. Ramdeva came out with the case that he came to know about the order dated 29.05.1975 only in the year 2003. This was a calculated false plea. In the suit, which he had filed in the year 1992, he himself disclosed through his pleadings that the orders passed in Ceiling proceedings against his father Modu Lal were within his notice and knowledge. Thus, delay of 28 years in filing appeal against an order was sought to be explained on false plea.
12. In Pundlik Jalam Patil (Dead) By LRs. Versus Executive Engineer, Jalgaon Medium Project and Another (Supra) & Oriental Aroma Chemical Industries Limited Versus Gujarat industrial Development Corporation and Another (Supra), taking a false plea to explain delay has been deprecated and it has been held that delay could not be justified on false plea. Similar is the view taken in Smt. Roop Kanwar D/o Late Sh. Udai Singh Versus Sohan Singh S/o Late Sh. Udai Singh and Others (Supra) & Sangam Spinners Mandap Bhilwara (M/s.) & Another Versus Surendra Singh & Another (Supra).
13. That apart, the order dated 29.05.1975 passed in Ceiling proceedings against Modu Lal, having been assailed and affirmed in first and second appeal before the First Appellate Authority and Second Appellate Authority (Board of Revenue), had merged in appellate orders. Therefore, the order could not be re-assailed by way of another round of litigation by filing a fresh appeal against order dated 29.05.1975, this time at the instance of Ramdeva.
14. The principle of merger has been explained in several decisions of the Hon'ble Supreme Court.
(Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (16 of 19) [SAW-1818/2014]
15. In the case of Collector of Customs, Calcutta Versus East India Commercial Co. Ltd., Calcutta and Others (Supra), the principle was explained thus:-
"The question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal,
(ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it.
It is this principle, viz. that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (17 of 19) [SAW-1818/2014] appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation."
16. In another constitution Bench Judgment of the Hon'ble Supreme Court in the case of S.S. Rathore Versus State of Madhya Pradesh (Supra), it has been held that the distinction made between courts and tribunals as regards applicability of doctrine of merger, is without any legal justification.
17. In Chandi Prasad and Others Versus Jagdish Prasad and Others (Supra), principle of merger was explained as below:-
"10. Where a statutory appeal is provided for, subject, of course to the restrictions which may be imposed, it is a continuation of suit. It is also not in dispute that when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger applies.
...........x.............x...............x............x....... ...........x.............x...............x............x.......
...........x.............x...............x............x......
22. When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intent and purport, the suit continues.
23. The doctrine of merger is based on the principles of propriety in the hierarchy of justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.
24. It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (18 of 19) [SAW-1818/2014] by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does."
18. In the light of aforesaid settled legal position, the order dated 29.05.1975 passed by the Assistant Collector, Bundi in original Ceiling proceedings having merged in the orders passed in appeals in First and, thereafter, in Second Appellate proceedings, no appeal against that order could again be filed but the remedy of Ramdeva lie elsewhere.
19. It is also worth noticing that when the Board of Revenue allowed the revision filed by the State and dismissed the appeal filed by Ramdeva vide its order dated 11.06.2008, Ramdeva filed Writ Petition No.8013/2008 only against order passed in his Revision Petition No.1936/2006, but did not file any Writ Petition nor challenged the order by which the Revision Petition No.704/2004 of the State was allowed. Therefore, the order passed in revision petition filed by the State attained finality. True it is that appellant- Ramdeva was given liberty to file review petition vide order dated 21.08.2008 passed in Writ Petition No.8013/2008, the legal position is that the order passed in Revision Petition No.704/2004 of the State attained finality. Therefore, for this reason alone, the order passed by the Board of Revenue on 20.10.2013 in the second round is unsustainable in law.
20. Last but not the least, we find that there were number of allottees who were allotted land which were declared surplus in the year 1975 and affirmed upto the Board of Revenue. These allotments were made way back in the year 1977. All those persons have claimed to be in cultivating possession after allotment made in (Downloaded on 20/12/2023 at 10:12:10 PM) [2023:RJ-JP:38766-DB] (19 of 19) [SAW-1818/2014] their favour and, therefore, names entered in revenue record. Second round of proceedings initiated by Ramdeva without impleading those persons as parties, were not maintainable for want of non-joinder of necessary party. We have noticed that when Ramdeva had filed revenue suit in 1992, he had made allottees also as party, but when he filed appeal, he did not implead allottees as parties.
21. In view of the above considerations, we do not find any good ground to interfere with the order passed by the learned Single Judge.
22. All these appeals are, accordingly, dismissed.
23. No order as to costs.
24. A copy of this order be placed on record of each connected appeal.
(SHUBHA MEHTA),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ SANJAY KUMAWAT-49-55 (Downloaded on 20/12/2023 at 10:12:10 PM) Powered by TCPDF (www.tcpdf.org)