Rajasthan High Court - Jaipur
State Of Rajasthan And Anr. vs Triloki Nath Sahani And Anr. on 31 July, 2001
JUDGMENT Sharma, J.
1. This litigation has had a chequered history. In pursuance to Notification dated April 30, 1964 reference Under Section 18 of the Land Acquisition Act made by the Land Acquisition Officer in regard to land situated at village Jhalana Doongar bearing Khasra Nos. 22 and 68 measuring 127 Bighas and 14 Biswas came up for disposal before the Civil Judge Jaipur District who vide his order dated November 5, 1985 allowed the reference in favour of respondent T.N. Sahani and awarded a sum of Rs. 4000/- per bigha as compensation, 10% of solalium and interest @ 4% and further a sum of Rs. 500/- as costs. Against the aforesaid award respondent T.N. Sahani preferred Civil Misc. Appeal. The High Court vide judgment dated April 10, 1987 allowed the appeal and enhanced the compensation from Rs. 4000/- per bigha to Rs. 10,500/- per bigha. The judgment of the High Court was assailed before the Hon'ble Supreme Court by the respondent T.N. Sahani as well as the appellant State of Rajasthan. While deciding Civil Appeal No. 3784/1989 on Sept. 6, 1989 the Hon'ble Supreme Court indicated that to fix the market value of the land per sq. yard at Rs. 12/-may not be high. But taking into consideration the large extent of property under acquisition and the fact that the appellant had confined his claim to Rs. 6/- Sq. Yard it was held that the appellant was not entitled io compensation al a rate higher than RE. 6/- per sq. yard. The award of the land acquisition officer and the decision upon reference and in appeal by the High Court were modified and it was directed by their Lordships of the Supreme Court lhat the compensation of the property acquired under the Notification shall be at Rs. 6/- per sq. yard. The judgment has been implemented by the State of Rajasthan and amount of compensation has been paid to me respondent T.N. Sahani.
2. The State of Rajasthan issued another Notification on August 21, 1969 to acquire land bearing Khasra Nos. 21 and 22 measuring 75 Bighas and 15 Biswas situated at village Jhalana Doongar. On a application of the respondent T.N. Sahani, the Land Acquisition Officer made a reference Under Section 18 of the Land Acquisition Act to the Civil Judge Jaipur City. The reference was dismissed on January 6, 1979 in the absence of T.N. Sahani and his counsel. Application seeking restoration of the proceedings was also dismissed in default. Learned Civil Judge vide order dated January 8, 1986 dismissed the another application filed for restoring the restoration appiication. The revising petition preferred by T.N. Sahani against the said order was allowed on Jan., 22, 1987 by the High Court in the presence of the counsel for the State of Rajasthan and the case was remanded back to the Civil Judge who thereafter vide order dated December 11, 1987 restored the reference proceedings. Ultimately the Civil Judge vide its Judgment dated April 6, 1990 awarded compensation to the respondent T.N. Sahani @ Rs. 40,000/- per bigha. Additional amount @ 12% was awarded from August 21, 1969 to March 11, 1974 as per Section 23 A of the Central Act. 30% as solatium and interesl @ 9% was also awarded.
3. The appellants State of Rajasthan and the Land Acquisition Officer have impugned the aforesaid judgment dated April 6, 1990 of the learned Civil Judge, in the instant miscellaneous appeal.
4. The appellanls have filed an application under Order 41 Rule 27 CPC and made a request to take on record as many as six documents and to consider them at the time of disposal of appeal.
5. It is submitted on behalf of the appellants that the learned Civil Judge passed the impugned award without providing the opportunity to the appellants as such the relevant facts and material documents could not be produced. The land bearing Khasra No. 21 and 22 was the part and parcel of Jagir Jhalana Dungar of the erstwhile State of Jaipur. It was the UDAK Grant @ 500% per year in favour of the then Jagirdar by the erstwhile Ruler of Jaipur. The grant continued from one successor to another. At the relevant period when the last jagirdar Raj Kumar expired the Matmi was sanctioned in favour of his son Sheo Prasad, and thereafter in favour of Ganesh Narain. After the death of Ganesh Narain his only son Roop Narain applied for sanction of matmi in his favour. One Purushottam filed objection in the Matmi Proceedings claiming joint ownership over the land. The Mahakama Khas of Jaipur directed Puroshottam to file a Civil Suit for the determination of his rights. Meanwhile Matmi was sanctioned in favour of Roop Narain on April 29, 1943 for different villages but in relation to Jhalani Doongar, it was decided that Matmi shall be made after the civil suit is decided. In view of postponement of matmi the proceedings of Zapti (possession) were taken on an order of Mahkma Khas dated May 26, 1944. Thus the land came in possession of State. After a long litigation ultimately the Matmi was sanciioned in favour of Brij Mohan S/o Roop Narain on May 22, 1958 by the Collector Jaipur. Meanwhile the Land Reform and Resumption of jagir act, 1952 came into force w.e.f. Feb. 18, 1952 and the jagir of Jhalana Doongar was resumed vide Notification dated November 1, 1958. The possession of the land of Jhalana Doongar including the land in dispute was taken over by the State of Rajasthan. Jagirdar Brijmohan submitted a claim for compensation before the Jagir Commissioner Under the provisions of Jagir Resumption Act for all the villages including the land in dispute. Jagir Commissioner passed a claim for compensation on Feb. 3, 1966. The jagirdar preferred appeal before the Board of Revenue, the case was remanded back for fresh decision. Again an order was passed by the jagir Commissioner on Sept. 8, 1972. The following six documents have been annexed with the application under Order 41 Rule 27 CPC by the appellants-
(i) Application of Jagirdar Brij Mohan to the jagir Commissioner.
(ii) Details of Land refered in the application.
(iii) Order of jagir Commissioner dated Feb. 2, 1966.
(iv) Order of Jagir Commissioner dated Sept. 8, 1972.
(v) Order of final determination of compensation of claim No. F. 4(212) JC/Jaipur.
(vi) Order of final determination of compensation of claim No. F (212) JC/Jaipur.
6. The contention of the appellants is that the respondent T.N. Sahni trespassed in some portion of jagir land Khasra No. 21 and 22 after the resumption of Jagir. The Tehsildar though initially issued notice under Section 91 of the Rajasthan Land Revenue Act to T.N. Sahani but subsequently dropped the proceedings and entered the name of T.N. Sahani as Khatedar in the revenue records. The State of Rajasthan assailed the order of the Tehsildar and the matter went upto the High Court. The Division Bench of the High Court allowed the writ petition of T.N. Sahani (D.B. Writ Petition No. 1214/1969 vide order dated October 18, 1979). It was indicated in the judgment that it was not proper of justified for the authorities to treat T.N. Sahani as trespasser in a summary manner under Section 91 of the Rajasthan Land Revenue Act. The proper way for the State was to take appropriate proceedings for declaration of his right in the competent court if it desired to contest the right of T.N. Sahani. Quashing of the order of the Board of Revenue the Division Bench restrained the Stale of Rajasthan from interfering with the possession of T.N. Sahani on such portions of the land on which they may be in actual possession and which may not have been resumed.
7. On the strength of the aforequoted six documents and the judgment of Division Bench it is urged that the Division Bench did not declare T.N. Sahani as the Khatedar of the land and no award could be passed in favour of T.N. Sahani treating him as the owner of the land in dispute.
8. I have given my anxious consideration to the rival submission and carefully scanned the material on record.
9. So far as first argument raised on behalf of the appellants in regard of not providing opportunity of hearing is concerned, it may be noticed that on Feb. 4, 1977 a joint reply was filed on behalf of the State of Rajasthan and Urban Improvement Trust Jaipur before the Civil Judge Jaipur City when the argument was raised on behalf of the appellants that no notice was served on the appellants, this court on November 10, 1995 passed the following order-
"Arguments were heard in part. One of the main contention of Shri R.D. Rastogi, learned counsel for the appellants is that no notice was given by the learned civil Judge Jaipur City, either to the State of Rajasthan or to the land Acquisition Officer in respect of the reference proceedings Under Section 18 of the Land Acquisition Act. It was contended that though in the reply dated 4.2.77, it has been mentioned that the same was filed on behalf of Rajasthan Government and the UIT Jaipur, but the same has been signed only by Shri N.K.. Sethi, the then Secretary UIT Jaipur and Shri Madan Mohan Sharma Advocate whereas Shri Madan Mohan Sharma had filed his vakalatnama on behalf of the Secretary UIT Jaipur only. In the file of the lower court notice issued against the State Government and/or Land Acquisition Officer is also not available. In such circumstances to make the things straight and clear, appellants are directed to file the affidavit of Shri N.K. Sethi, the then Secretary U1T, Jaipur and affidavits of other concerning officials on the following points:
i) Whether any notice/summons was issued to the appellants by the lower court for the reference proceedings.
(ii) Whether the appellants were served with such notice/summons if so dates thereof;
(iii) Whether Shri N.K. Sethi, the then Secretary U.I.T. was also the officer incharge appointed by the Government of Rajasthan in that case; and
(iv) Whether or not the reply dated 4.2.77 was also filed on behalf of Govt. of Rajasthan.
There is no dispute that the said Shri Madan Mohan Sharma Advocate has expired long back.
The appellants are also directed to produce the concerning file of the UIT Jaipur pertaining to this matter in the court on the next date.
The Hon'ble Supreme Court has directed to dispose of this appeal within four weeks vide its order dated 6.1.95 and as such the disposal of this appeal has already been delayed. Therefore this appeal be now listed for filing of those documents and further arguments on 16.11.95."
10. The State of Rajasthan was again asked to comply with the aforesaid order on April 26, 2001. On May 10, 2001 Shri Mahaveer Prasad Deputy Commissioner Zone A-1 Jaipur Development Authority filed affidavit stating as under-
'(1) That I am presently the officer-incharge on behalf of State of Rajasthan in above listed appeal and 1 am conversant with the facts and circumstances of the case.
(2) That in compliance of the order passed by the Hon'ble Court on 26.4.2001, Shri N.K. Sethi the then Secretary was requested to file affidavit on the points mentioned in the order dated 10.11.1995 passed in this appeal. The communication/letter dated 7.5.2001 received in reply is filed herewith in original as Annex-1. In this letter Shri N.K. Sethi has expressed his inability to say anything in the matter unless the file of U.I.T. of the relevant years 1975-76 and 1976-77 is made available to him. The relevant file of the UIT Jaipur of this case pertaining to reference proceedings could not be made available to him since the same is not traceable. In these circumstances it has not become possible to file affidavit of Shri N.K. Sethi.
(3) That the file of U.I.T. Jaipur of relevant years of this case i.e. proceedings to proceedings of reference before Civil Judge, Jaipur is not traceable. It appears from the report of the concerned dealing assistant that the file is not traceable for long time. This report is filed herewith as Annex-2."
11. The appellant State of Rajasthan and its officers, it appears do not choose to place the concerning file of the matter. Even Shri N.K. Sethi the then Secretary UIT is not prepared to file affidavit unless the files of the UIT of the relevant years 1975-76 and 1976-77 are made available to him. Under these circumstances I have no option but to draw adverse inference and to hold that Shri N.K. Sethi the then Secretary U.I.T. who put his signatures as officer incharge of the case on the joint reply filed on behalf of the State of Rajasthan and the UIT Jaipur was also the officer-incharge of the case appointed by the Government of Rajasthan and the State of Rajasthan had notice of the reference proceedings. As already stated the High Court allowed the revision petition of T.N. Sahani on January 22, 1987 in the presence of Shri S.M. Mehta, the Counsel of the State of Rajasthan and remanded the case to the court of Civil Judge for passing the order on restoration application. Thus it is fallacious to contend that the State of Rajasthan had no knowledge of the reference proceedings.
12. While allowing D.B. Writ Petition No. 1214/1969 vide order dated October 18, 1779 the High Court indicated that it was admittedly proved on record that T.N. Sahani being the tenant of the land would fall within the purview of Section 15 of the Rajasthan Tenancy Act, 1955, to acquire Khatedari rights. It was observed that when the Revenue Appellate Authority and the Board of Revenue arrived at the conclusion that T.N. Sahani was in possession of the land in dispute from 1956 by virtue of pattas issued in his favour by the erstwhile Jaglrdar and he was paying rent thereafter till the resumption of the Jagir and T.N. Sahani himself and moved an application on January 4, 1960 to the Assistant Settlement Officer that the entry of 'Sivai Chak' made in the settlement record may be removed an he may be entered as khatedar tenant, and he was in possession of the disputed land since 1955, it was not proper of justified for the authorities concerned to treat him as trespassers in a summary manner under Section 91 of the Rajasthan Land Revenue Act.
The Division Bench passed the aforequoted order after examining the entire relevant record including the six documents that have been filed by the appellants alongwith the application under Order 41 Rule 27 CPC. On the basis of this judgment dated October 18, 1979 the Civil Judge Jaipur District allowed the reference vide order dated november 5, 1985 in favour of T.N. Sahani in regard to land situated at village Jhalana Doongar bearing Khasra Nos. 22 and 68 measuring 127 Bighas and 14 Biswas which was finally adjudicated upon by the Hon'ble Supreme Court while deciding Civil Appeal No. 3784/1989 on Sept. 6, 1989 and in compliance of the said direction, compensation has already been paid to T.N. Sahani. Now the appellants want rne (o declare the above judgment of the Division Bench as per incurium being rendered against he law land down by their Lordships of the Supreme Court in Thakur Amar Singh Ji v. State of Rajasthan (I), and also against the provisions contained in Sections 4.9 and 21 of the Rajasthan land Reforms and jagir Resumption Act, 1952.1 do not find any merit in the submission. The judgment rendered by the Hon'ble Supreme Court in Thakur Amar Singh's case (supra) as well as the provisions contained in Rajasthan Land Reforms and jagir Resumption Act 1952 were discussed by the Division Bench in the judgment dated October 18, 1979. The judgment attained Tinality as it was never assailed by the Stale of Rajasthan and even the compensation in compliance to award dated November 5, 1985 based on the said judgment in respect of the land bearing Khasra Nos. 22 and 68 situated at Jhalana Doongar has been paid to T.N. Sahani.
13. It is next contended that the learned Civil Judge while deciding the reference has gone beyond the terms of reference. The reference was only made with regard to amount of compensation payable. No reference with regard to entitlement of T.N. Sahani to receive Compensation was made but the civil Judge also determined the question of entitlement, I am not impressed with this submission in view of Full Bench decision of Allahabad High Court rendered in Makhan Lal v. Secretary of State (2), wherein it was held that where on a reference by a Collector the District Judge, Under Section 18 title to land claimed on behalf of the Government and such title is disputed by claimant, the District Judge can decide the question of title on evidence.
In the instant case the learned Civil Judge decided issue No. 1 in view of decision dated October 18, 1979 of the Division Bench and held that the title of the land vested in T.N. Sahani.
14. It is lastly contended that the compensation assessed by the learned Civil Judge is highly excessive looking to the fact that T.N. Sahani was at best a paper khatedar of the land. This argument is also devoid of merit. Learned Civil Judge while assessing the compensation swayed by the observations of the Hon'ble Supreme Court made i the judgment dated Sept. 6, 1989 in Civil Appeal No. 3784/1989. In regard to land bearing Khasra No. 22 (the same land which is in dispute in the instant matter) their Lordships of the Supreme Court indicated that "to fix the market value of the land per square yard at Rs. 12/- may not be high "Having calculated as above the market, value of one Bigha land bearing Khasra No. 22 situated in Jhalana Doongar was Rs. 36, 000/- in 1964 and in 1969 when the notification to acquire land bearing khasra Nos. 21 and 22 situated in Jhalana Doongar was published, the market value of the Bigha land was in the prices in five years. I find no infirmity in the assessment of compensation made by the learned Civil Judge.
15. Having considered the application under Order 41 Rule 27 CPC, I am of the view that all the six documents annexed with the application were already examined by the Division Bench while delivering the judgment on October 18, 1979 and it was held that T.N. Sahani being tenant of the land would fall within the purview of Section 15 of the Rajasthan Tenancy Act to acquire Khatedari rights. On the strength of the six documents viz. (1) application of Jagirdar Brij Mohan-to the Jagir Commissioner (ii) details of land referred in the application (iii) order of Jagir Commissioner dated Feb. 2, 1966 (iv) order of Jagir Commissioner dated Sept. 8, 1972 (v) order of final determination of compensation claim No. F. 4(212) JC/ Jaipur, and (vi) order of final determination of compensation of claim No. F (212) JC/ Jaipur, now an attempt has bee made lo establish that the judgment of Division Bench dated October 18, 1979 was per incurium but 1 am unable lo pursuade myself to agree with the submission. The judgment of Division Bench had attained finality and on the basis of the said judgment the Civil Judge Jaipur District vide order dated November 5, 1985 allowed the reference in regard to lands bearing Khasra No. 22 and 68 which was finally adjudicated upon by the Hon'ble Supreme Court in the Civil Appeal No. 3784/1989 decided on Sept., 6, 19879 and the State of Rajasthan has already made compliance of the judgment. Thus I do not consider these six documents relevant for the disposal of the instanl appeal. Consequently, 1 dismiss the application filed under Order 41 Rule 27 CPC. by the appellants.
16. In view of what I have discussed herein above, the appeal fails and stands dismissed without any order as to costs.