1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. SPL. APPL. WRIT No. 476 of 1995 VIVEK SAXENA V/S STATE 2. SPL. APPL. WRIT No. 536 of 1995 UTTAM CHAND V/S STATE Mr. KN JOSHI, for the appellant / petitioner Vivek Saxena. Mr. ARVIND SHRIMALI for Mr. D.D.THANVI for appellant/ petitioner Uttam Chand. Mr. LR MEHTA, Mr. RISHI VAISHNAV for the respondent Akshya Kumar and State, respectively. Date of Order : 21.5.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. JUDGMENT (By the Court: Per Hon'ble Gupta, J.) These two appeals have been filed by the two appellants Uttam Chand and Vivek Saxena, against the judgment of learned Single Judge dt. 19.6.1995, dismissing both the writ petitions. Brief facts of the case are, that the two appellants filed two separate writ petitions, being Writ 2 Petition No. 5018 and 4989 of 1994. The former was filed by Uttam Chand, and latter by Vivek Saxena. In Writ Petition No. 5018 Uttam Chand seeks quashing of the orders dt. 29.1.1992, 7.3.1994 and 27.9.1994, and has prayed to be granted mining lease of plot no. 31 in Nai Parbati, while in Writ Petition No. 4989, the petitioner seeks to have quashed the order dt. 7.3.1994, 27.9.1994, being the orders of the appellate authority, and of the State Government, and also prays that the report of the two Patwaris under the assistance of Mining Engineer, being falsely procured be quashed. The precise controversy between the parties is, regarding allotment of mining plot no. 31, comprised in Khasra no. 2803, situated in village Nai Parbati District Rajsamand. All the three parties, being the two appellants, and the private respondent, Akshay Kumar, applied for grant of mining lease, with respect to same plot, on different dates. Uttam Chand applied on 30.7.1991, while Akshay Kumar applied on 23.11.1991, and Vivek Saxena applied on 4.5.1992. The applications of Uttam Chand and Akshay Kumar were rejected on 29.1.1992, on the ground, that they failed to submit the document relating to land, in compliance of notice dt. 30.8.1991. Akshay Kumar and Uttam Chand filed appeals. However, the learned Additional Director, by common order 3 dt. 7.3.1994, rejected the appeal of Uttam Chand, and accepted the appeal of Akshay Kumar, and granted mining lease to him, obviously setting aside the conditional sanction granted to Vivek Saxena. Against this order Vivek Saxena filed revision before the State Government, while Uttam Chand filed appeal before the State, which were decided by the common dt. 27.9.1994. It is substantially challenging the order dt. 27.9.1994, that the two writ petitions have been filed. The learned Single Judge, as observed above, dismissed both the writ petitions, giving rise to the two appeals. The matter was heard in Appeal No. 476 having been filed by Vivek, while in the other Appeal No. 536, learned counsel for the appellant did not desire to make any submission. In that view of the matter we take the facts from the matter of Vivek Saxena. Vivek Saxena, shall hereafter be referred to as the petitioner, while Akshay Kumar would be referred to as the respondent. The case of the petitioner is, that it is an admitted position, that plot no. 31 is situated in Khasra no. 2803, which is owned by private person. It is alleged that the petitioner applied for the allotment of marble query at plot no. 31, situated in Khasra no. 2803 village Parbati. It is also alleged, that the petitioner was directed to 4 produce no objection, in case plot no. 31 or part of it falls in khatedari of private person. In response, the petitioner submitted no objection of the Khatedar tenant, as part of portion of plot no. 31 was owned by him, and ultimately plot no. 31 was allotted, and sanctioned in favour of the petitioner, and demarcation was made under the signature of foreman, which shows, that plot no. 31 is situated in Khasra no. 2803, which is owned by Khatedars viz. Kersa, Lalu and so on. It is then alleged, that during the process of application of the petitioner, the respondent and Uttam Chand filed appeal, under Rule 43 of the Rajsthan Minor, Minerals, Concession Rules, 1986 while at the time of filing of the application of the petitioner, no appeal was pending. It is alleged that from the factual position of the appeal it came to the notice of the petitioner, that the respondent and Uttam Chand had earlier applied for the allotment, but since they failed to furnish No Objection Certificate, or the title deeds regarding the land, to find out, whether the impugned query, or part of it, is owned by the private person, or not, but they failed to produce such document, therefore, their application was rejected. It is alleged, that in appeal filed by the respondent, petitioner was not impleaded as party. However, on coming to know of the appeal, he got himself impleaded. Then, it is alleged that in the appeal the contention of the present respondent is, that the land does not belong to the private person, rather it is a government land, 5 therefore, there was no necessity of submitting the title deeds, or N.O.C. etc., and thus the application was wrongly rejected. During pendency of the appeal, the petitioner requested the Collector to find out the actual position, and location, as to whether the plot no. 31 is situated in Khasra no. 2803, whereupon the Collector deputed one Tehsildar, along with Revenue Inspector, and five Patwaris, to survey the site, and it was observed by them, that portion of plot no. 31 falls in Khasra no. 2803, which is owned by private person. However, the Additional Director accepted the appeal of the private respondent, as observed above, and dismissed the appeal of Uttam Chand, which orders were challenged before the State Government, unsuccessfully. It is alleged, that in continuation of revision petition, the petitioner filed additional documents, and additional affidavit, giving details about situation of the land, showing, that portion of plot no. 31 falls in Khasra no. 2803, which is owned by private person, as such it was necessary for the respondent to submit the relevant document, including No Objection Certificate. It is also alleged, that the land was surveyed and inspected by the Tehsildar along with five Patwaris, and it was observed that part of plot no. 31 falls in Khasra no. 2803, which report will be shown at the time of argument, if necessity arise. However, on being asked, the learned counsel expressed his inability to make available the report, for perusal of the Court. Interalia with this 6 pleading, the order impugned is sought to be challenged, substantially on the ground, that the “only controversy is whether the plot no. 31 or portion of it falls under Khasra no. 2803 or not and in case it falls in Khasra no. 2803, the Mining Engineer was justified in rejecting the application of respondent no.4......”, as according to the petitioner Khasra no. 2803 is owned by private person. The petitioner, as noticed above, has referred to various documents, and in the additional affidavit filed before the State Government, copy whereof has been produced as Annexure-4, in para-6 it is pleaded, that team who inspected the site on 7th and 8th August, 1994 found, that part of plot no. 31 fell in Khasra no. 2803, which is of private Khatedari. Then, in para-8, it is pleaded, that it is evident, that the appellate authority committed illegality, and erroneously held, that plot no. 31 fell in Khasra no. 859/668/43 in village Parbati, which is Bilanam land, and it is affirmed, that part of plot no. 31 is included in Khasra no. 2803. It may be observed here, that it is not clarified by the petitioner, as to, to what extent the plot no. 31 falls in Khasra no. 2803, and in which land the portion of the remaining plot falls, nor it is disclosed, as to what is the nature of the remaining portion of the land. Be that as it may. 7 Reply to the writ petition has been filed on behalf of private respondent Akshay Kumar, contending interalia, that plot no. 31 forms part of Araji No. 859/668/43, of village Parbati, and is entered in the revenue records as Siwaya Chak Bilanam Banjar Government land, and that the petitioner has come out with wholly wrong premise, that the plot in question falls in Khasra no. 2803, in the Khatedari of private person. It is also pleaded, that the petitioner applied for allotment of marble query by alleging, that this is situated in Khasra no. 2803. Obviously, it was never disclosed, that only part of the plot falls in Khasra no. 2803. Then, certain conduct of the petitioner was highlighted. Then it is pleaded, that during course of hearing before Additional Director, with the agreement of the parties, the exact location of plot no. 31, and its demarcation was got ascertained, and accordingly the demarcation report was submitted, which shows, that plot no. 31 was situated in Siway Chak agricultural land (Banjar) Bilanam Sarkar, and was comprised in Khasra no. 859/668/43 of village Parbati, and entered in the revenue record, and thus it was found to have been rightly allotted to the private respondent. Then, it is pleaded that the revisional authority also, vide his order dt. 27.9.1994, again called for site inspection and demarcation, by re-surveying the area, which was accordingly done, and submitted, which fortified the 8 earlier report, that plot no. 31 is situated in Khasra no. 859/668/43 of village Parbati. Then, in para-23 it is pleaded, that at some places in the writ petition the petitioner has came out with new pleas, that some portion of the area in question belonged to private khatedars, and thus changed his earlier stand, that the entire Khasra no. 2803, in which plot no. 31 fell, belonged to private khatedars, and thus has changed his earlier stand that the entire Khasra no. 2803 in which plot no. 31 fell belonged to private khatedars, and that, he has wrongly stated, that Khasra no. 2803 fell in village Parbati, and thus contradictory stand has been taken. The respondent has produced the copy of the report dt. 27.7.1994, with Tehsildar's certificate, showing that plot no. 31 falls in Khasra no. 859/668/43. Then the precise detail of length and breadth of Khasra No. 859/668/43 is given, to show, as to how the plot no. 31 is situated therein. Then, in para- 34 it is pleaded, that pursuant to direction of this Court, as given in the order dt. 1.11.1994, the Assistant Settlement Officer, and his team, conducted survey, and took measurements, and found that plot no. 31 does not fall in Khasra no. 2803. However, no report was prepared, but then, after about 3 weeks the Assistant Settlement Officer prepared report in his office on 16.1.1995, still showing, that the land does not fall in Khasra no. 2803. Then, a rejoinder has been filed by the 9 petitioner, and in that rejoinder it is stressed, that according to the report of the Settlement Officer, the portion of plot no. 31 falls in Khasra no. 2803, and some portion falls in Khasra no. 668/43. It may be observed here, that notwithstanding the report of the Settlement Officer having been received, showing, that only a small portion of plot no. 31 falls in Khasra no. 2803, the petitioner has not chosen to clearly plead, as to the extent of portion of plot no. 31 falling in Khasra no. 2803, and/or 668/43. Not only this, even when the report of Settlement Officer showed, that the plot no. 31 forms part of Araji No. 859/668/43 of Village Parbati, which is Bilanam Govt. (Banjar) land, as per the revenue records, the petitioner has not produced any document, showing Khasra No. 668/43 to be not Siway Chak Bilanam Govt. Land. It is pleaded, that though the report was submitted in hotchpotch manner, but it is specifically mentioned, that portion of the plot no. 31 falls in Khasra no. 2803, which is owned by the private person. Thus, the rejection of the application of the private person was not required to be interfered with. Various other pleadings were reiterated. Then it is pleaded, that the land in question is in possession of Gujar of Agariya for a long time, they have constructed Kacha boundary wall, besides that they have procured 304 hectares of land of Khasra no. 663 from Thakur Parvati s/o Bhagwat Singh, and that, the 10 land was registered in favour of Gujar of Agariya, namely Lalu, Heera etc. and was in possession, and that the State Government granted the land, and delineated plot no. 35 on the basis of transfer from Jagirdar, and plot no. 35 falls in southern side of plot no.31. Thus it is clear, that majority of plot no. 31 is in possession of Gujar of Agariya, and owned by the private persons, from whom the petitioner obtained No Objection Certificate. Then, the report submitted in pursuance of the direction of this Court was sought to be commented upon. However it is pleaded, that analysing the four reports prepared, it is clear, that part of plot no. 31 comes in Khasra no. 2803, and the other report shows, that the plot no. 31 falls in Khasra no. 668/43, which is owned by private person. Then, replying para-23 of the reply, it was pleaded in rejoinder that the contention raised is not tenable, inasmuch as it was clearly mentioned in the reply, that the portion of plot no. 31 falls under the private person's land of Khasra no. 2803, and that no new case is sought to be made out. Interalia with this, it was prayed, that the writ petition be allowed. Then, after filing of the reply and the said rejoinder, State also filed reply. In the reply of the State it was interalia contended, that the petitioner has tried to raise a baseless controversy about plot no. 31 being falling in Khasra no. 2803 of Village Parbati, 11 whereas as per factual report the said land forms part of Araji No. 668/43, and same is recorded in the revenue record as Siway Chak Bilanam Banjar Government land, and that, Khasra no. 2803 does not fall in village Parbati. Then the findings of the learned Additional Director, and State Government, were sought to be supported. Then, the report of inspection dt. 2.3.1994 was sought to be invoked. It was also pleaded, that the petitioner had filed a suit in respect of same subject matter in dispute, on the same cause of action, which was dismissed on 30.4.1994. It was pleaded that it appears, that the petitioner wanted to play two innings in two different courts, and thus on the ground of concealment of material fact also, it was contended that the petitioner is not entitled to any relief. In additional rejoinder substantially the original pleadings were sought to be reiterated. Then, an application was filed on behalf of the petitioner on 8.5.1995, seeking to produce certain additional documents, and seeking to plead certain more facts also. It was sought to be pleaded regarding Khasra No. 668/43, that certain revenue proceedings pending under Ceiling Law, and portion of it was acquired, against which appeal was filed by Khatedar Shri Narayan Singh, which was rejected, copy of that order dt. 6.3.1990, is sought to be produced as Annexure-13, and in compliance thereof 12 Tehsildar has taken possession, Parcha Moka whereof is produced as Annexure-14. Then, it is sought to be pleaded, that this Khasra No. 668/43, of which plot no. 31 is also part, is owned, and is in the Khatedari of Narayan Singh, and Narayan Singh is said to have filed appeal against the order of the Additional Collector, before Board of Revenue, where from the matter is remanded to the lower Court, vide judgment dt. 6.9.1994, which judgment was also sought to be produced. Thus it was sought to be contended, that in view of the judgment of Board of Revenue, taking of possession from Narayan Singh is vitiated, and the agricultural land shall be deemed to be continuing in possession of private Khatedars. Then, further additional affidavit was filed, seeking to produce certain orders, passed in the matter of one Chanchal Devi. It is in this background of factual situation, that the learned Single Judge dismissed the writ petition, holding interalia, that so far as the question of plot no. 31 being situated in private land is concerned, report called by this Court, reporting that part of land falls in Khasra no. 2803, was found to be of no help to the petitioner, as perusal of the report, along with the finding arrived at by the authorities below shows, that it does not come within the Khasra no. 2803, as alleged by the petitioner, but falls in Khasra No. 856/668/43, which is government land, entered in revenue record as Bila Naam 13 Sarkar. It is found, that both the authorities below have arrived at concurrent finding of fact, regarding the position of the land, which cannot be interfered with, as this Court cannot sit as a court of appeal. Then, it was also found, that the petitioner has failed to establish, that the land in question is owned by private person presently, hence question of allotment to him does not arise, and filing of No Objection Certificate does not give any right. It was also noticed, that the petitioner is hand in gloves with Uttam Chand, as is clear from the conduct of the petitioner, including that the petitioner after dismissal of the suit, filed revision without impleading Akshay Kumar as a party, waited till the report is received, and only became party in Akshay Kumar's appeal, and did not file appeal against the conditional grant, apart from the fact, that the appeal of Uttam Chand was filed through the same counsel, who was representing the petitioner Vivek Saxena, who was made party in appeal, filed by Akshay, and he was fully aware, when the matter was sent back. Then it was also found, that Akshay Kumar was never asked to furnish any documents before rejection of his application. Assailing the impugned order it was contended by Mr. Joshi, that the whole controversy in the matter revolves round the question, as to whether the land in question being plot no. 31, is a private land, or 14 Government land. In case it is a private land, then since the petitioner had produced No objection Certificate, while no such document or title deed was produced by the respondent, the lease could not be granted to the private respondent, and it should have been granted to the appellant, while if it is found to be government land, then of course no interference is required to be made in favour of the petitioner. Then, on the aspect of the land being Government land, it was contended, that the petitioner had filed copy of Jamabandi before the learned Single Judge, showing that even the land comprised in Khasra no. 668/43 is a land of Khatedari of private person, and undisputedly Khasra no. 2803 is a private land, in such circumstances it is more than clear, that the entire land is a private land, and the learned Single Judge was in error in dismissing the writ petition. The submission is an over simplified attempt on the part of the appellant, inasmuch as it is not the controversy ever joined issue. As noticed above the petitioner's case has initially been, that the entire land of plot no. 31 is comprised in Khasra no. 2803, which is private land, whereas from all the surveys and inspections, repeatedly conducted at various levels, by various authorities, it became clear, that small portion of plot no. 31 falls in Khasra no. 2803, and major portion, say more than 80%, falls in Khasra no. 668/43. When, this fact 15 came to be surfaced during appeal before Additional Director, even at that stage it was not the case raised by the petitioner appellant, that Khasra no. 668/43 is also a private land, much less, that he has obtained No Objection Certificate with regard to that land also. Then, even in the writ petition, it is again not the stand, rather it is during the progress of the writ petition, that the stand was sought to be modulated. This is one aspect of the matter. In our view, the petitioner cannot be allowed to modulate the stand in this manner, so as to keep the rights of the allotees on tentor’s hook, indefinitely. The opposite party is required to meet the case as set up by the petitioner, and he cannot be allowed to change his stand like this. Secondly, so far as the Jamabandi sought to be produced before the learned Single Judge is concerned, a look at the affidavit, filed accompanying with the said document, and the order sheet of the learned Single Judge shows, that it was during course of final arguments, which arguments continued for number of days, that the affidavit was filed, without giving copy thereof to the opposite party, and then, along with affidavit only a photo stat copy of certain Jamabandi of Samvat 2033 was filed, which certified copy was obtained on 6.4.1995, showing the land to be in Khatedari of Bharat Singh s/o Ram Singh. It is significant to note, that this photostat copy as such could not be said to be admissible in evidence. This is one technical aspect of the matter. 16 Coming to the factual aspect of the matter also, there are very many things appearing on record, inasmuch as, as noticed above, in the application filed by the petitioner on 8.5.1995, seeking to produce certain documents, it has clearly been pleaded by the petitioner himself, that ceiling proceedings were initiated against Narayan Singh, wherein the land was resumed, and possession was taken over from him vide Annexure-14. This Annexure-14 is dated 2.5.1991, and the order of resumption passed in ceiling proceeding is dated 6.3.1990, while the purported Jamabandi produced is of Samvat 2033, which corresponds to calendar year 1976. Obviously, this Jamabandi, on the face of the averments made in the application filed by the petitioner on 8.5.1995, looses its significance, as thereafter, even according to the petitioner, the land had been resumed. Of course, it is then alleged, that the Revenue Board had remanded the matter, but then it is no- where the averment, that the possession resumed from Narayan Singh was ever restored to him, nor is it shown even now, that during all this interregnum period of 14 years, what has been the progress of that ceiling matter. In any case, this much is clear, that the possession of land was resumed vide Annexure-14, as noticed above, on 2.5.1991, and the matter was remanded by the Board as late as on 6.9.1994, while the application for 17 grant of mining lease in favour of private respondent was dismissed on 29.1.1992, and appeal against that order was allowed on 7.3.1994, by which time the order of the Board of Revenue did not come into existence, and the land very much stood resumed to the State, and to be very much constituted to be the government land. This position survived, even till passing of the order by the State Government, as it was passed shortly after the judgment of the Board of Revenue, which judgment was never brought to the notice of the authority deciding the revision petition/appeal, vide order dt. 27.9.1994. In that view of the matter, it can very safely be said, that even on own showing of the petitioner, as appears from the application dt. 8.5.1995, that as at the time of consideration of the application of the respondents, and even at the time of decision of the appeal by the Additional Director, the land very much stood to be government land, and cannot be said to