1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: J U D G M E N T ::: Chhoga Lal Vs. State of Rajasthan & Ors. D.B. CIVIL SPECIAL APPEAL (WRIT) No. 205/2001. Date of Judgment ::: 22nd March 2010 P R E S E N T HON'BLE THE CHIEF JUSTICE MR JAGDISH BHALLA HON'BLE MR JUSTICE DINESH MAHESHWARI Mr D.R. Bhandari, for the appellant. Mr Suresh Shrimali } Mr Mahesh Joshi } for the respondents. Mr Arvind Shrimali for Mr D.D. Thanvi } ... BY THE COURT: {Per Hon'ble Dinesh Maheshwari, J.} This special appeal by the petitioner-appellant Chhogalal is directed against the order dated 09.01.2001 passed in S.B. Civil Writ Petition No.1314/2000 whereby the learned Single Judge of this Court, while declining to interfere with the land use conversion orders as passed by the Revenue Authorities at the instance of the respondent No. 4 Ganeshmal (since deceased and represented by his legal representatives), has left it open for the petitioner-appellant to agitate the issue of his right and interest in the appropriate forum. The dispute relates to a parcel of land named “Jaw Gundariya”, admeasuring 13 bighas 1 biswa and situated at 2 Sumerpur District Pali. The land in question was permitted to be converted for non-agricultural use by the Collector, Pali by an order dated 15.12.1976 (Annex.2) passed on the application made by the respondent No.4 Ganeshmal after charging a premium of Rs.6,316.25. The amount of premium so charged was the subject matter of consideration in the reference proceedings before the Revenue Minister who proceeded to approve the order passed by the Collector by his order dated 08.07.1999 (Annex.3). The petitioner-appellant Chhogalal, by filing the writ petition (CWP No.1314/2000) on 26.04.2000, attempted to question the aforesaid orders dated 15.12.1976 and 08.07.1999 with the submissions that he had been the partner with the respondent No.4 Ganeshmal in the firm M/s Ganeshmal Bhagwanji and Company; and that the land in question had been a part of khatedari land belonging to the said firm. The petitioner-appellant averred that when differences arose between himself and Ganeshmal, an Arbitrator was appointed to settle the accounts of the partnership and to distribute the assets; that the Arbitrator made his award on 03.11.1961 and despite objections, the Additional District Judge, Sirohi proceeded to make the award a rule of the Court and passed a decree on 24.02.1975. The petitioner-appellant further averred that he preferred an appeal before this Court that came to be allowed on 11.11.1992 and the decree as passed by the Additional District Judge, Sirohi was set aside. According to the appellant, in the judgment dated 11.11.1992, this Court held that the said land known as “Jaw Gundariya” was the property of the said firm and, therefore, the arbitration award 3 required registration. The appellant contended that the orders as passed by the Revenue Authorities permitting conversion of such land on misrepresentation by Ganeshmal were required to be set aside, for being wholly without jurisdiction and for having been passed without extending him an opportunity of hearing. The learned Single Judge considered the submissions made on behalf of the appellant and dismissed the writ petition by the order dated 09.01.2001 while observing that no fault could be found with the orders impugned; but left it open for the appellant to agitate the issue of his right and interest before the appropriate forum. Questioning the order dated 09.01.2001 as passed by the learned Single Judge, the learned counsel for the appellant has referred to the judgment dated 11.11.1992 passed in Civil Misc. Appeal No.89/1975: Chhoga Lal Vs. L.Rs. of Keshav Lal (reported in 1992 (2) RLW 240) and contended that this Court having held the land in question to be the property of the partnership firm, the order as passed for conversion of the land use at the instance of Ganeshmal cannot be countenanced. The learned counsel further submitted that the averments as taken in paragraphs Nos. 3 and 6 of the writ petition - to the effect that the land in question belongs to the firm and that such had been the finding of the High Court - have not been specifically denied in the reply submitted on behalf of the respondents and hence, the facts so pleaded are required to be taken as admitted; and, in this regard, has relied upon the decisions in Sachhidanand Sharma Vs. Jaipur Development Authority : 1992 (2) WLN 415 and Smt Naseem Bano Vs. State of U.P. and others : 4 AIR 1993 SC 2592. The learned counsel further submitted that the entire exercise of conversion of the land under the Rajasthan Land Revenue (Conversion of Agriculture Land for Residential and Commercial Purposes in Rural Areas) Rules, 1971 had been without jurisdiction. Per contra, it has been contended on behalf of the contesting respondents that there had not been any admission on the material facts and rather, the case of the respondents had been clear and specific that the petitioner-appellant was having no right in the land in question. It is further submitted that the appellant attempted to assert his right over the land in question by filing a suit in the court of Sub Divisional Officer, Sumerpur ('SDO') that came to be dismissed on 04.06.2004 and the appeal filed by the petitioner-appellant was also dismissed by the Revenue Appellate Authority, Pali ('RAA') on 02.12.2006. It is submitted that having failed to establish his right in the property in question, the petitioner-appellant was not entitled to maintain a challenge to the conversion order passed by the Collector way back on 15.12.1976 by filing a writ petition in the year 2000. Having given a thoughtful consideration to the rival submissions and having scanned through the record of the case, we are unable to find any reason to show interference in this appeal. The petitioner-appellant attempted to question the conversion order essentially on the allegation that Ganeshmal obtained the same while misrepresenting the fact that the land in question was his khatedari land whereas it had been the property of the partnership wherein the appellant was equally a partner. However, there is no 5 direct and cogent material on record to find if the land in question formed the part of partnership property so as to consider the case as that of invasion of the existing legal right of the appellant. The assertion of the appellant regarding his rights in the land in question has been put to contention by the respondents with the submissions that it were the khatedari land of Ganeshmal. In the given fact situation, the attempt as made by the petitioner-appellant to question the conversion order without a cogent and convincing proof of his existing legal right in the land in question could only have been declined by the writ Court. The learned Single Judge has, in our considered opinion, rightly dismissed the writ petition while leaving it open for the petitioner-appellant to agitate the issue of his right, interest, and share before the appropriate forum. With the position staring hard on the face of record that there is nothing to show an existing legal right in his favour, the appellant has attempted to carve out a case with the submissions that this Court in CMA No.89/1975 held the land in question to be the property of the partnership firm; and that the factual averments as taken in the writ petition, in regard to the land in question belonging to the firm and in regard to the findings of this Court, having not been specifically denied, the same be taken as admitted by the respondents. The submissions so made remain bereft of substance for both the alleged circumstances being rather non-existent. After having examined the pleadings of the parties, we find incorrect the submissions as made on behalf of the petitioner- 6 appellant regarding admission of facts by the respondents. It is noticed that there has been specific denial on the part of the respondents to the averments taken in the petition on the professed rights of the petitioner-appellant. In reply to paragraph-3 of the writ petition, while denying the petition averments, the respondents have asserted that the land in question was purchased in the name of Ganeshji and Chandanmal – son and grandson of Bhaggaji - under the sale deed dated 20.11.1947; and a copy of the sale deed has been filed with the reply as Annexure-R4/7. The averments contained in paragraph- 6 of the writ petition have also been denied while asserting that this Court never held the land known as “Jaw Gundariya” to be the property of the firm. It has further been the submission of the respondents that such a question never came up for adjudication before this Court because the appeal related only to question as to whether the award made by the Arbitrator required registration or not? On a comprehensive reading of the averments of parties, we are unable to find even a basis wherefor the arguments regarding want of specific denial and regarding admission in the pleadings have at all been advanced on behalf of the appellant. The decisions as relied upon in this regard, in the given fact situation, are not of any application. So far as the meaning and import of the judgment dated 11.11.1992 in CMA No.89/1975 is concerned, it is noticed that the said appeal came up before this Court against the order passed by the Additional District Judge, Sirohi, making the arbitral award rule of the Court. The decree was challenged in this Court by the appellant 7 on various counts. The learned Single Judge of this Court allowed the appeal and set aside the order passed by the learned Additional District Judge essentially on two counts: one, that the original award filed in the Court could not be treated to be an award in the eye of law and could not be made rule of the Court for having not been signed by the Arbitrator; and second, that the award purported to create a right in immovable property worth more than Rs.100/- and hence, required registration. In the context of the question raised by the appellant that the award affected movable and immovable properties both and was inadmissible for want of registration, the learned Single Judge considered the evidence adduced by the parties and found that the award (Ex.1) related to both movable and immovable properties where it declared that apart from movable properties divided by the Arbitrator, the remaining immovable properties would be owned by Ganeshmal. It was, thus, held by the learned Single Judge that the award purported to create a right in favour of Ganeshmal and hence, required registration. True it is that in the said decision, the learned Single Judge referred to the evidence led by the parties before the Arbitrator regarding the land known as “Jaw Gundariya” but then, such reference had only been to point out that the award purportedly created rights in immovable property too particularly when it carried a clause to the effect that the remaining property of the firm shall be of the ownership of Ganeshmal Bhagwanji. It is, however, difficult to deduce from the observations as made in the said order dated 11.11.1992 that there had been a concluded finding on the 8 question as to whether the firm had the title to the land in question. The question of title to the land in question was not a matter in issue before this Court; and was not even germane to the essential issue dealt with by this Court in the said appeal namely, as to whether the award in question be made the rule of Court or not. The essential legal consequence of the order dated 11.11.1992 as passed in CMA No.89/1987 has been that the order making award rule of the Court stood set aside with this Court finding the award to be a nullity and the defects being incurable for the Arbitrator having breathed his last. It is noticed that the order making award rule of the Court was passed on 24.02.1975 and the appellant Chhogalal had preferred the appeal against the said order in the year 1975 itself. On the other hand, though the impugned order of conversion came to be passed by the Collector on 15.12.1976 but then, the appellant seems not to have taken up any proceedings against this order dated 15.12.1976 at appropriate stage and in appropriate forum; and chose to file the writ petition only in the year 2000 with reference to an order passed by the Revenue Minister on 08.07.1999. Noticeable it is that the said order dated 08.07.1999 was passed while dealing only with the question of rate of conversion charges and not beyond. The principal order of conversion had been passed by the Collector, Pali way back on 15.12.1976 and it remains inexplicable as to why the appellant, if at all aggrieved, did not challenge the same within reasonable time. Moreover, it appears from the material placed on record that the appellant indeed took up the issue of his rights in the land in 9 question by filing the suit, albeit in the year 1997 only, before the SDO and an application for temporary injunction moved therein came to be rejected by the trial court on 16.01.1999 and then, the plaint was rejected on 04.06.2004; and further, the appeal preferred by the petitioner-appellant was also dismissed by the RAA on 02.12.2006. It is also noticed from the aforesaid orders dated 04.06.2004 and 02.12.2006 as passed by the revenue Courts that in fact the SDO rejected the plaint as filed by the appellant by the order dated 04.06.2004 after finding the position that in the revenue record, the said land was entered in the name of Ganeshmal Bhagwanji and after his death, in the name of his heirs; and that the same was purchased by Ganeshmal Bhagwanji in his name and in the name of his son Chandanmal. The learned SDO observed that no order or decision was produced to show that the land in question was the property of the partnership firm. The learned SDO referred to the aforesaid order passed by this Court on 11.11.1992 and observed that if the position of the firm before its alleged dissolution dated 13.08.1961 stood restored and the land in question was the property of the firm, the matter was essentially of the jurisdiction of the Civil Court. The learned SDO observed that unless the plaintiff could get decided from the Civil Court that the land in question was the property of the said firm and he had a right therein as partner, the suit as filed could not be tried by the Revenue Court. The learned SDO, accordingly, rejected the plaint while leaving it open for the plaintiff to take recourse to the appropriate remedies in the Civil 10 Court for declaration of his rights. The said decision has been approved by the RAA while rejecting the appeal filed by the appellant on 02.12.2006. Though we are not making final comments in regard to the aforesaid orders dated 04.06.2004 and 02.12.2006 but, standing the said orders and the present status of record, we are unable to find any existing legal right in the petitioner-appellant in relation to the land in question so as to issue any writ, order or direction at his instance. However, to avoid any ambiguity and to put the record straight, we again make it clear that the petitioner-appellant is free to agitate the issue of his right and interest in the appropriate forum; of course, in accordance with law. With the observations aforesaid, the appeal fails and, is therefore, dismissed but, in the circumstances, without any order as to costs. (DINESH MAHESHWARI),J. (JAGDISH BHALLA), CJ. MK 11