Badri Ram & Ors vs Board Of Revenue & Ors on 8 November, 2016

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Rajasthan High Court - Jodhpur

Badri Ram & Ors vs Board Of Revenue & Ors on 8 November, 2016

By way of this writ petition, the petitioners herein have approached this Court for assailing the order (Annex.10) dated 4.8.2016 passed by the Board of Revenue Ajmer rejecting as not maintainable, the revision preferred by the petitioners against the order (Annex.9) dated 10.1.2014 issued by the Tehsildar Gudamalani requisitioning Police aid to evict the petitioners from the khatedari land belonging to the respondents in the village Mukhawa.

Undisputed facts as available on record reveal that the respondents No.3 to 11 being members of Scheduled Caste community filed a revenue suit under Section 188 and 183 of the Rajasthan Tenancy Act before the Assistant Collector and prayed that the petitioners herein may be directed not to interfere in the possession and cultivation of the respondents on the khatedari land belonging to them. The suit was dismissed in default. However, later on, an application filed by the respondents before the Tehsildar concerned under Section 183 of the Tenancy Act came to be allowed on 28.7.1993 and it was directed that the petitioners be evicted from the land in question and the possession thereof be restored to the respondents No.3 to 11 being the khatedars of the land. The said order was challenged by taking recourse of appellate as well as 3 revisional jurisdiction and was affirmed by the Board of Revenue vide order dated 21.6.2001, which has attained finality. The respondents herein being the khatedars of the land in question belonging to the Scheduled Caste Community, made several attempts to regain possession of the land but failed in their endeavour. Finally, the Tehsildar issued the communication (Annex.8) dated 10.1.2014 addressed to the SHO Gudamalani Barmer and requisitioned police aid for ousting the petitioners from the khatedari land belonging to the respondents and to restore the possession to the lawful owner. The petitioners challenged the said order before the Board of Revenue by way of a revision which was dismissed vide order dated 4.8.2016 upon which, the instant writ petition has been preferred.

Shri RJ Punia, learned counsel for the petitioners vehemently contended that the Board of Revenue rejected the revision filed by the petitioners observing that the order dated 10.1.2014 was an administrative order which finding is absolutely perverse and illegal. Relying on the judgment rendered by the Hon'ble Supreme court in the case of Shankarlal Aggarwala & Ors. Vs. Shankarlal Poddar & Ors. reported in AIR 1965 SC 507, he urges that the orders in the nature which decide the rights of the parties, have to be termed as judicial orders. As per Shri Punia, the 4 order passed by the Tehsildar requisitioning police aid to evict the petitioners from the disputed land directly infringed the rights of the petitioners and thus, the same has to be qualified as a judicial and not an administrative order. He urged that the order passed by the Board of Revenue on 21.6.2001 declaring the petitioners to be trespassers on the khatedari land owned by the respondents can only be executed by taking recourse to regular execution proceedings under Section 185 of the Rajasthan Tenancy Act. Thus, as per him, the impugned order passed by the Board of Revenue is grossly illegal and should be quashed and set aside.

Per contra, Shri SM Parihar, learned counsel representing the respondents No.3 to 11 urges that the orders passed by hierarchy of competent revenue courts declaring that the petitioners were trespassers on the khatedari land owned by the respondents No.3 to 11 being persons of Scheduled Caste community attained finality way-back in the year 2001. He submits that special extraordinary provisions have been introduced in the Tenancy Act to protect the rights of persons belonging to the Scheduled Castes and Scheduled Tribes and such provisions have overriding effect over the provisions of general law. As per him, Section 183-B is one of such special provisions, which provides summary procedure for 5 ejectment of a trespasser from the land owned by a member of the Scheduled Caste or Scheduled Tribe. Thus, Sh.Parihar urged that the petitioners cannot be allowed to take a stance that the regular execution proceedings under Section 185 of the Tenancy Act are required to be undertaken for ousting them from the land in question. Relying on the Hon'ble Apex Court Judgment in the case of Amrendra Pratap Singh Vs. Tej Bahadur Prajapati & Ors. reported in AIR 2004 SC 3782, Shri Parihar urges that while interpreting provisions analogous to ones contained in the Rajasthan Tenancy Act, the Hon'ble Apex Court in no unequivocal terms held that the provisions enacted to protect the rights of such weaker sections of the society have to be given preferential and overriding consideration over and above the general provisions of law. He thus submits that the impugned orders being perfectly just and proper, do not require any interference by this Court in exercise of its extraordinary writ jurisdiction.

I have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

Undisputed factual position emerging from the record is that the petitioners did not challenge the order dated 21.6.2001 passed by the Board of Revenue by which a stamp of finality was appended on the issue that 6 respondents No.3 to 11 are the khatedars of the land in question and that the petitioners were trespassers thereupon. The respondents have pleaded that they made repeated endeavours to regain possession of their agricultural land but the petitioners thwarted such attempts by using their clout. Finally, the revenue authority seems to have taken cognizance of the plea of the respondents herein and the communication (Annex.9) dated 10.1.2014 was issued by the Tehsildar Gudamalani to the SHO Gudamalani for providing police aid to evict the petitioners and to restore the possession of the khatedari land to the respondents. Undeniably the order/communication (Annex.9) was only to requisition police aid and nothing beyond that. Neither the rights of the parties were required to be or were adjudicated at that stage because such rights stood firmly crystalized as long back as in the year 2001. Thus, by no stretch of imagination, can the communication dated 10.1.2014 be considered to be a judicial order. Therefore, the Board of Revenue was perfectly justified in rejecting the revision preferred by the petitioners by order dated 4.8.2016 holding that the communication dated 10.1.2014 was purely administrative in nature and revision did not lie against such order.

Now coming to the argument that the eviction of the petitioners could only be undertaken by taking recourse of 7 execution proceedings under Section 185 of the Tenancy Act. Section 183-B of the Tenancy Act reads as below:

"Section 183-B. Summary ejectment of trespasser of the land held by a member of a scheduled caste or a scheduled tribe- (1) Notwithstanding to the contrary contained in any provision of this Act, a trespasser who has taken or retained possession, without lawful authority of land held by a tenant belonging to scheduled caste or scheduled tribe shall be liable to ejectment on an application of the person or persons entitled to evict him or on the application, in the prescribed manner; of a further liable to pay as penalty for each agricultural year during the whole or any part whereof he has been in such possession, a sum which may extend to fifty times the annual rent. (2) The inquiry on an application under sub-

section (1) shall be made in a summary manner and shall be concluded, as far as practicable, within the prescribed period and after affording a reasonable opportunity of being heard to the person alleged to be a trespasser."

The Section provides a special summary procedure for ejectment of trespasser on the khatedari land of a member of the Scheduled Caste or Scheduled Tribe. Viewed in light of the ratio of Amrendra Pratap Singh's case (supra) relied upon by Shri Parihar, counsel for the respondents, this Court has no hesitation in holding that the Section 183-B of the Tenancy Act has an overriding effect over Section 185 of the Act whenever the issue pertaining to the restoration of possession of a member of Scheduled Caste or Tribe on his/her khatedari land arises. Thus, the argument advanced by Shri Punia that the ouster of the petitioners' from the khatedari land belonging to the respondents was only 8 permissible by taking recourse to regular execution proceedings has no legs to stand whatsoever. The provisions of law being unambiguous, it was obligatory for the Tehsildar to have taken cognizance of the rights of the respondents crystalized under the judicial orders passed by the revenue courts way-back and to have directed removal of the rank trespassers from such land. The impugned orders ex-facie do not suffer from any illegality, irregularity or perversity so as to call for interference in the exercise of the extraordinary writ jurisdiction of this Court.

The Tehsildar Gudamalani is directed to forthwith take police aid and evict the trespassers and to restore possession of the respondents No.3 to 11 on the land in question not later than within a period of one month from today.

The writ petition and the stay petition are thus rejected with the above directions.

No order as to costs.

( SANDEEP MEHTA ),J.

/tarun/

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Rajasthan High Court - Jodhpur