1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: ORDER LR of Keshar Deo Lohia Vs. The State of Rajasthan &Ors. S.B. CIVIL WRIT PETITION NO.19/1989 Date of Order :: 29th June 2009 . PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.J.L.Purohit for the petitioner. Mr.S.D.Vyas with ) Mr.Anil Vyas ) Mr.M.S.Singhvi with ) Mr.Manish Patel ), for the respondents. :: BY THE COURT : While stating the grievance that he has been deprived of his property in an unlawful manner; and that he has been dispossessed without due process of law, the petitioner Keshar Deo Lohia (since deceased and represented by his son) filed this writ petition on 03.01.1989 claiming the reliefs in the form: that writ of mandamus be issued directing the respondents to vacate the property in dispute; that further writ of mandamus be issued for demolition of the constructions made by the respondents on the property in dispute; that with a writ of certiorari, the orders passed against the right, title and interest of the petitioner be quashed; and that by a writ of prohibition, the respondents be restrained from encroaching 2 upon the property in dispute. The reliefs aforesaid have been claimed in relation to the plots of land said to be bearing numbers 9, 11, 29, 30, 31, 32, 76, 79, 80, 98, 119, 120, 140, 141, 164 and 165 situated near Railway Station, Churu (also referred herein as 'the property in dispute'/'the said plots'). The petitioner has averred in the petition that himself and his late father Jamunadhar Lohia purchased the said plots of land, 16 in number, in the year 1942 in public auction from the then Government of Bikaner State; and that the said Government of Bikaner State accepted the consideration in respect of said plots of land, issued receipts thereof in the month of August 1942, and transferred the right, title and interest in favour of the purchasers by issuing the so-called 'kuchcha pattas'. While producing the copies of some such receipts and kuchcha pattas collectively as Annexure-A, the petitioner has averred that immediately after the sale, the Government of Bikaner State handed over possession of the said plots to himself and his father for the purpose of development of abadi and for erection of boundary wall within one year from the date of sale; and this time period came to be extended up to 31.12.1951. The petitioner has further averred that the directions in 3 the grant were complied with in toto and this fact was examined and verified by the Tehsildar, Churu. The petitioner has placed on record a copy of the report made by the Tehsildar, Churu on 07.09.1959 as Annexure-B and has referred to its contents indicating existence of some kuchcha constructions (ढलय) on a few plots and some sort of fencing around (बड). The petitioner has also averred that in the meantime and during the period of development of the said plots, his father Jamunadhar Lohia bequeathed the right, title and interest in plots Nos.76, 79, 80, 140, 141, 164, 165, 98, 119, 120, 11 and 9 in his favour; and by the letter dated 26.02.1951 (Annexure-C) his father made a request to the Revenue Commissioner, Jaipur to mutate the said plots in his favour and to issue 'pucca pattas' accordingly. The petitioner has alleged that though he had deposited kuchcha pattas with the respondent No.5 (the Tehsildar, Churu) after submission of the reports and recommendations for the purpose of obtaining pucca pattas and had also constructed pucca boundary wall on the southern side of plot No.80 but 'in the meantime' the respondent No.3 (the Collector, Churu), in a clandestine manner while joining hands with the respondents Nos.4, 7 and 8 (the Chairman, Municipal Board, Churu, the Superintendent of Police, Churu and the Dy. 4 Superintendent of Police, Churu respectively), intentionally 'made a rampage over the said properties' and removed the existing constructions and fencing; and 'illegally took over possession of the said plots of land without any authority of law and dispossessed the petitioner'. The petitioner has stated that in this manner, jeopardising his right, title and interest over the said plots, the respondents took away the stone slabs to the Municipal Board Office though they were well aware that the properties were belonging to him. The petitioner has then alleged that the incident was also flashed in two local newspapers, namely 'Churu Keshari' dated 15.12.1986 and 'Yuvak' dated 12.12.1986; and has annexed copies thereof as Annexure-D. The petitioner has further averred that inspite of the reports of the Tehsildar bearing dates 07.01.1952, 08.04.1952 and 07.09.1959, one Tej Kumar, then holding the office of respondent No.3 (the Collector, Churu), suddenly made an apparently illegal and wrongful order on 30.05.1963 for resumption of the said plots without any authority of law; and, being aggrieved of such an illegal order, he preferred a revision petition before the Board of Revenue ('the Board') bearing No.8/1963 wherein stay was granted against wrongful resumption. The petitioner has pointed out that the said 5 revision petition was finally decided by the order dated 24.05.1968 (Annexure-E) whereby the matter was remanded to the Collector with the directions that he should re-write the judgment after hearing the parties and should cite the rules and regulations under which resumption of the land was justified. Further averments in the writ petition are to the effect that despite the directions contained in the said remand order having been communicated, Shri B.K. Binju, then holding the office of respondent No.3, flouted the said order with mala fide intention and further resumed the said plots without authority of law on 10.02.1972 in the purported Case No.232; and by another order dated 31.12.1973, illegally directed the said plots of land to be taken over by the respondent No.4 (the Municipal Board, Churu) who 'took over possession of the said plots' and was 'still holding possession thereof'. It has further been averred in the petition that being aggrieved of the apparently illegal order passed by the Collector, Churu, the petitioner preferred another revision petition before the Board of Revenue that was registered as Case No.82/1974 wherein ad interim stay order was granted and the matter was finally decided on 14.07.1978 (Annexure- F) setting aside the order dated 31.12.1973. 6 It is noticed from the said order dated 14.07.1978 (Annexure-F) that the learned Member of the Board, while holding that the Collector, Churu had issued the order dated 31.12.1973 against the earlier directions of the Board, set the same aside; but so far the order dated 10.02.1972 was concerned, held the same to be of the recommendations by the Collector as communicated to the State Government and, even while commenting that the authority and the procedure for resumption of the land had not been indicated, did not pronounce anything further thereupon with the observations that any action taken thereunder by the State Government would be a separate matter between the petitioner and the State Government. The learned Member of the Board also stated an advice to the petitioner to agitate the matter before the State Government or to seek other constitutional remedies. The petitioner has stated surprise that the said order dated 14.07.1978 has not been carried out yet and the Revenue Department was also maintaining silence without any cogent reason and inspite of numerous representations and reminders. The petitioner has further averred that during his absence from Churu, the respondents Nos.3 and 4, with the intention of causing injury to him, illegally inducted the 7 respondents Nos. 10 to 25 on the said plots of land by 'breaking open' the brick fencing made by him; and the said respondents were allowed to occupy plots Nos.9, 11, 29, 30, 31, 32, 76, 79, 140, 141, 164 and 165 against illegal and unofficial payment; and were allowed to erect and construct their own brick built houses over the said plots without sanctioning any plan and while flouting all the norms. The petitioner has alleged that the amount so collected was shared by the respondents Nos.3, 4 and 10 for their personal gain and on the other hand, various objections and pretexts were being made in issuing pucca pattas in lieu of kuchcha one deposited by him. The petitioner has averred that in these circumstances, he got served a notice through the lawyer on 14.11.1988 (Annexure-G) but the respondents Nos.1 to 5 have failed to grant the relief until filing of the petition. With such averments on facts, the petitioner has stated the grounds in the petition that the respondents Nos.1 to 4 have infringed his fundamental rights; that the respondents Nos.3 and 4 have infringed his rights to property inasmuch as they had dispossessed him for their personal wrongful gains; that respondents Nos.3 and 4 by joining hands with the respondent No.10 have illegally taken over his property in a 8 clandestine manner; that the respondents Nos.3 and 4 flouted all the norms of law while debarring him from the use and occupation of the plots purchased from the State of Bikaner; that the respondents Nos.3 and 4 willfully and deliberately neglected to obey the orders of the Board of Revenue as passed on 24.05.1968 and 14.07.1978; that the respondents Nos.3 and 4 have in connivance inducted the private respondents on the disputed property and allowed them to raise construction without authority of law and without sanctioning plans; and that the action of the respondents was that of fraud on the statute. In sum and substance, the averments as taken in the writ petition, in whatever manner and form, state the case of the petitioner to the effect that he is having direct right and title in relation to the said plots of land that were purchased in the year 1942 in open auction and grant was made for the purpose of development of abadi within a period of one year, which was extended up to 31.12.1951; that as per the reports made by the Tehsildar, there had been constructions raised on certain portions of said plots; that he had deposited kuchcha pattas for the purpose of grant of pucca pattas; and that though the Collector, Churu proceeded to make the orders on 30.05.1963, 10.02.1972, and 31.12.1973 seeking illegal 9 resumption of land but the Board of Revenue did not approve such propositions in its orders dated 24.05.1968 and 14.07.1978. The grievance of the petitioner is that the respondents have illegally, and in clandestine manner, taken over possession of the said plots and even handed over the same to the private respondents with unlawful dealings and permitted them to raise illegal constructions. It is also submitted that the requirements of the orders passed by the Board have not been carried out; and the Government in its Revenue Department has omitted to take the requisite decision despite service of notice. In opposition to this writ petition, the respondent No.4 Municipal Board, Churu has taken objection in its reply that the petitioner has not come with clean hands and has not stated as to when was he dispossessed and by whom; and all the necessary facts have been withheld. It is also submitted that the petitioner has concealed the facts relating to the order dated 10.02.1972 that was passed by the Collector in the presence of his Advocate but was not challenged before the State Government; and was affirmed by the State Government on 01.09.1972. Further, with reference to the contents of order dated 14.07.1978 as passed by the Board, it is submitted that essentially the order dated 10.02.1972 as 10 made by the Collector, Churu was considered to be recommendatory in character and was not interfered with. It has been alleged that when felt disarmed by the observations of the Board inasmuch as the recommendations as contained in the order dated 10.02.1972 were not interfered with, the petitioner proceeded to submit a review petition to the State Government on 18.11.1978, notice whereof was received by the answering respondent on 27.10.1979; and the said review petition was ultimately dismissed for non-prosecution. According to the respondent Municipal Board, as per the contents of the review application, the petitioner was aware of the position that the order dated 10.02.1972 had attained finality. It is also submitted that the present petition involves disputed questions of fact; and for the grievance as stated and the reliefs as claimed, civil suit is the only appropriate remedy. The answering respondent has further pointed out that the petitioner did file a civil suit in the matter and has placed on record a copy of interim order passed therein on 03.01.1987 (Annexure R.4/4). The respondent-Municipal Board has further averred that the property in dispute being an open piece of land, had never been in possession of the petitioner and rather certain persons made encroachments over the same before the year 11 1971; and it is maintained that the land was transferred to the Municipal Board under the order of the Collector that was affirmed as back as on 01.09.1972 and, thus, the answering respondent has all the ownership rights over the same. The said respondent has referred to the averments in the writ petition indicative of the fact that possession of the land in question had been taken way back in the years 1972-1973 and thus, according to the respondent, even if it be assumed that the petitioner had ever been in possession, the rights, whatever claimed by him, stood extinguished long back; and the petitioner had lost limitation even to recover possession. The respondent-Municipal Board maintains that the petitioner and his predecessor were never issued any title deed regarding the property in dispute; that only some plots of land were given with the conditions that the residential houses would be constructed and would be occupied, apart from the requirement of planting the trees. It is submitted that the title in relation to the land in question was to be conferred only after fulfillment of the conditions and otherwise it remained the Government land; and that the petitioner's father had no such title that he could have bequeathed or transferred to the petitioner. It is further submitted that even the report of the Tehsildar as relied upon by the petitioner is of no help as the 12 required conditions were not fulfilled. According to the said respondent, the matter has attained finality for the Board of Revenue having not interfered with the order dated 10.02.1972, the State Government having affirmed the said order of the Collector and then, the review petition filed by the petitioner having been dismissed. The allegations in the petition have been denied being bereft of foundation and being vague and uncertain. The respondents Nos.1, 2, 3 and 5 have filed a separate reply taking objections that the petition involves disputed questions of fact and suffers from the vice of delay and laches; and that for the reliefs claimed, the petitioner ought to have taken resort to the remedies before the Civil Court. It is maintained that the petitioner has not been denied any of his legal or fundamental rights with the submissions, inter alia, that the order dated 10.02.1972 was passed after extending adequate opportunity of hearing to the petitioner and the State Government agreed to and confirmed the order dated 10.02.1972 by its order dated 01.09.1972 (Annexure R/2). It is also pointed out that the request for review as made by the petitioner was turned down by the State Government in its order dated 16.05.1989 (Annexure R/3). The respondent No.10 has filed a separate reply taking 13 the objections against maintainability of this petition for involvement of disputed questions of fact, for its seeking enforcement of the property rights against private individuals, and for misstatement of facts. It has, inter alia, been pointed out that the grand father of the respondent No.10 purchased from the Municipal Board, Churu a plot of land way back on 02.05.1952 (Annexure R10/1) and thereafter, even applied for strip of land that was sold to him on 12.10.1957 (Annexure R10/2); and after purchase, the grand father of the said respondent constructed a house over the land after obtaining permission from the Municipal Board. It is maintained by the respondent No.10 that land in his possession does not belong to the petitioner at all; and it has also been pointed out that the land comprised in plots Nos.76 and 79 was auctioned by the Municipal Board and hotel has been constructed thereat by one of the purchasers. It is also submitted that no right accrued to the petitioner or his predecessor for non-fulfillment of the conditions of the alleged grant. It may be pointed out that on 04.01.1989, while entertaining this writ petition and issuing notices to the respondents, this Court directed status quo regarding the possession and the condition of the constructions over the property in dispute to be maintained; and a Commission 14 was also issued for the purpose of obtaining the report of the site including measurements of the total land and the portions said to have been encroached upon by or disposed of to or being in possession of the respondents Nos.10 to 26. The Commissioner did visit the site on 16.01.1989 and has submitted an elaborate report with site plans and photographs showing various aspects relating to the extensive land sought to be made the subject of dispute herein including the facts about existence of the bus stand of Rajasthan State Road Transport Corporation on the entire plot No.80 and major portion of plot No.79; of various other residential and commercial constructions on several other parcels of land; and about plot Nos.98, 119 and 120 lying vacant. With reference to the facts of the case, learned counsel for the petitioner contended that a grant was indeed made in favour of the petitioner and his father in the year 1942; and they were put in possession of the property in dispute; and they did carry out the developmental work required by the grant, as affirmed in the report made by the Tehsildar. Thus, according to the learned counsel, the petitioner has been a title holder of the property in question and when there had neither been any acquisition proceedings nor any other lawful proceedings whereby the title of the petitioner was resumed, 15 any attempt at deprivation of the petitioner of his property remains fundamentally illegal. The learned counsel submitted in the alternative that in any case, there was a contract between the petitioner and the Bikaner State whereby and whereunder the petitioner came in possession of the land in question and thus, indisputably, the petitioner was in lawful possession of the property. Learned counsel contended that in such a case where the petitioner had been continuing in lawful possession, he could not have been dispossessed without taking recourse to due process of law. The learned counsel submitted that on 30.05.1963, the Collector, Churu proceeded to pass the order with the proposition of resuming the plots but the said order was disapproved by the Board and was set aside on 24.05.1968 with specific directions to the Collector to point out the provisions of law under which the property was sought to be resumed; but such directions of the Board were never complied with. In regard to the order dated 10.02.1972, learned counsel submitted that the same was of rather baseless recommendations for resumption of the land bereft of any legal foundation and bereft of any authority of law. The learned counsel contended that even if the State Government proceeded to pass an order on 01.09.1972 purportedly 16 approving such baseless recommendations, all such orders were not of any process of law what to say of due process whereby the petitioner could have been deprived of his property. The learned counsel submitted that the Board of Revenue did not even approve the order dated 31.12.1973 as passed by the Collector seeking to dispossess the petitioner and set the same aside on 14.07.1978. According to the learned counsel, looking to the observations as made in the order dated 14.07.1978, the petitioner did approach the Government and even served a notice for demand of justice but, for his grievances having not been redressed, has rightly invoked the writ jurisdiction of this Court. The learned counsel for the petitioner emphasised on the submissions that the Collector was under obligation to comply with the directions as contained in the order dated 24.05.1968 passed by the Board of Revenue; and was required to cite the law in support of the proposition of resumption of the land. Learned counsel has referred to the contents of the order dated 10.02.1972 (Annexure R 4/10 as filed by the respondent No.4) to submit that while ignoring the directions of the Board, the Collector attempted to rely on a strange procedure unknown to law and then made the recommendations to the Government; and the Government 17 merely stated its agreement with whatever was proposed by the Collector; however, there had never been any order of cancellation of grant or resumption of the property. Learned counsel submitted that for the respondents having failed to adopt due process of law, the petitioner deserves to be restored his property; and has referred to the decisions in Wazir Chand & Anr. Vs. State of Himachal Pradesh & Ors.: AIR 1954 SC 415, Bishan Das & Ors. Vs. State of Punjab & Ors.: AIR 1961 SC 1570, Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors.: (1986) 1 SCC 133, State of U.P. & Ors. Vs. Maharaja Dharmender Prasad Singh & Ors.: (1989) 2 SCC 505, Bishambhar Dayal Chandra Mohan & Ors. Vs. State of U.P. & Ors.: (1982)1 SCC 39, and M/s Chandra and Co. Vs. State of Rajasthan & Ors: AIR 1981 Rajasthan 217. Learned counsel for the respondent No. 10 has taken the objections that the writ petition is essentially in the nature of seeking the reliefs of recovery of possession and mandatory and prohibitory injunctions calling for a roving enquiry into the facts that cannot be made in the writ jurisdiction. It is further submitted that in fact, the land as allotted to the grand father of the respondent No.10 does not even fall within the alleged 18 plots in dispute and this respondent has unnecessarily been entangled in this litigation. It is submitted in the alternative that if at all the land allotted to the predecessor of the respondent No.10 way back in the year 1952 forms part of the property in dispute herein then, all other suggestions of the petitioner about his dealing with the said land are falsified. Learned counsel for the respondent No.10 strenuously contended that the petitioner having lost limitation even for filing a civil suit, is not entitled to maintain this writ petition that had been filed only in the year 1989 on the basis of cursory and uncertain averments and wherein his right to the property in dispute remains seriously in doubt. It is further submitted that the petitioner was at the most granted an authorisation to develop the land; and resumption was rather automatic upon non-fulfillment of the conditions and no separate order was required to be passed for the petitioner having no vested right in the property in question. It is also contended that the orders as passed by the Collector being not in relation to any revenue land, interference by the Board was fundamentally without jurisdiction and such orders of the Board could only be ignored as nullity. According to the learned counsel, in any case, under the order dated 24.05.1968 the Collector was at the most obliged to consider 19 as to whether the conditions had been fulfilled or not by the petitioner and such aspect having been decided after hearing him, it cannot be said that the respondents have proceeded beyond or without due process of law. It is submitted that the cases as relied upon by the petitioner remain inapplicable because therein some right nevertheless existed in the complaining party whereas in the present case, rights were to come existing in the