{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPL. APPEAL (WRIT) NO.322/2002 STATE OF RAJASTHAN & ORS. VS. AMRING Date of Judgment : 12.11.2010 PRESENT HON'BLE MR.JUSTICE A.M.SAPRE HON'BLE MR.JUSTICE C.M. TOTLA Mr. R.K. Soni, AGC & Mr. Sandeep Bhandawat, AGC, for the appellants. Mr. J.L. Purohit, for the respondents. BY THE COURT: (PER HON'BLE A.M. SAPRE, J) This is an intra court appeal filed by the respondent (State) of writ petition No. 781 of 1996 under Rule 134 of Rajasthan High Court Rules against an order Dt. 3.4.2002 passed by single judge in aforementioned writ petition. 2. By impugned order, the learned Single Judge allowed the writ petition filed by the writ petitioner (respondent herein) and issued mandatory directions in the form of issuance of writ of mandamus against the State and in favour of writ petitioner. 3. So the question that arises for consideration in this appeal is whether Single Judge was justified in allowing the writ petition and in consequence justified in issuing directions in the form of mandamus against the State for compliance? { 2 } Facts of the case are these 4. The dispute in this case relates to 3 bighas of agricultural land bearing khasra No. 203 situated in village Devli in district Udaipur. In the year 1991, the revenue authorities treating the writ petitioner as an encroacher on this land which according to authorities belongs to State initiated eviction proceedings under the Land Revenue Act. The writ petitioner on being noticed of the proceedings contested by contending inter alia that he has acquired khatedari rights over the land in question and hence he could not be evicted from the land as an encroacher in possession. His contention did not find favour to any of the revenue authorities beginning from Additonal Tahsildar, then Collector as an appellate authority and lastly the Board of Revenue as a revisionary authority. All these authorities held that the writ petitioner was an encroacher on the land in question, and that he did not acquire any ownership rights as contended by him on the land in question. It is against these orders, the writ petitioner felt aggrieved and filed writ petition out of which this intra court appeal arises under article 227 of the Constitution of India. 5. By impugned order, the learned Single Judge allowed the writ petition and while setting aside of all the orders passed by Revenue Authorities referred supra, directed the Government to allot another 3 bighas of agricultural land to the writ petitioner either in the same village where the land in question is situated or at the nearest available place after following due procedure prescribed in law. It is against this order; the State has felt aggrieved and filed this intra court appeal. 6. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to { 3 } allow the appeal and while setting aside of the impugned order, dismiss the writ petition out of which this intra court appeal arise and in consequence uphold the orders passed by Revenue Authorities including that of the Board of Revenue. 7. This is what the eventual directions of the learned Single Judge are in concluding Para of the impugned order. “Consequently, there is merit in this petition. The same is accepted. All the orders of the courts below are set aside and the respondents are directed to allot three bighas agricultural suitable land to the petitioner in the same village or at the nearest available point after due procedure according to law.” 8. In our opinion, apart from any other errors in the impugned order which renders the impugned order unsustainable in law as detailed infra, the impugned directions quoted supra are themselves enough to set aside the impugned order. 9. When the writ court allowed the writ petition as it appears on mere perusal of the impugned directions and set aside the orders passed by revenue authorities, then its natural consequence was that the stand taken by writ petitioner before the revenue authorities was accepted by the writ court. In such circumstances, the writ petitioner should have been held as owner in his own right of the land in question. In other words, the effect of allowing the writ was that, the possession of the writ petitioner on the land in question should have been held legal and accordingly proceedings initiated against the writ petitioner treating him as encroacher on the land should have been quashed as being totally without jurisdiction. Instead, the learned Single Judge, { 4 } proceeded to direct the State to give some alternative 3 bigha land to the writ petitioner either in the same village or in near by village after due procedure prescribed in law. 10. With respect, in our considered opinion, such directions are totally uncalled for and without jurisdiction for more than one reason. Firstly, it being a writ petition under article 227 of the Constitution of India filed against the order passed by the Board of Revenue, the writ court was only required to examine the legality and proprietary of the order passed by Board of Revenue and that too within the parameters laid down for exercising the powers under article 227 ibid. Secondly, the impugned directions were never sought by the writ petitioner either before Revenue Authorities at any stage much less before the writ court and hence there was neither any occasion nor jurisdiction available with the writ court to travel outside the case of the parties and issue such directions. Thirdly, as stated supra, impugned directions are inconsistent with the relief granted to the writ petitioner. Fourthly, in the absence of any factual foundation, and legal right in favour of the writ petitioner, he could not claim any state land much less in the form of an alternative one in the same area or anywhere. 11. A right to claim the state larges (land) arises only when the state offers to public at large any land for a particular purpose or when there is some statutory provision under the Act which entitles the person to apply for such land on fulfillment of certain conditions prescribed for such grant or when there is some kind of privy between the person and the state or when there is a state policy made for any allotment etc. 12. In our opinion, the writ court exceeded its powers conferred under article 227 ibid when it proceeded to allow { 5 } the writ petition and quashed the order passed by Board of Revenue. Firstly, the writ court acted like an original authority or we may say a first appellate authority in deciding the writ petition. It was not legally permissible. Secondly, it proceeded entirely on wrong premises as would be clear from the very question posed. Viz- what was to be decided by the courts below was whether the petitioner was in occupation of the suit land since the year 1958 or not? Thirdly, if the writ court was so keen in formulating any question for the disposal of writ petition, then the question should have been “whether Board of Revenue was right in dismissing the revision filed by the writ petitioner thereby justified in upholding the orders passed by subordinate revenue authorities? And secondly whether writ petitioner was an encroacher on the land in question and if not than what was his status on such land qua state?” Fourthly, the writ court did not record any finding much less categorical one in favour of writ petitioner namely whether he acquired any khatedari rights over the land in question and if so how and on what basis? 13. In our opinion, therefore, the aforesaid errors which are apparent on the face of the impugned order are sufficient to set aside the impugned order. Yet, we examined the order passed by the Board of Revenue, with a view to find out as to whether any case is made out by the writ petitioner for its setting aside as was argued by the learned counsel appearing for the writ petitioner (respondent). Having perused the order of Board, we find no good ground to set aside 14. In our opinion, the writ petitioner failed to substantiate his claim consistently before all the Revenue Authorities i.e original, appellate and revisionary that he acquired khatedari rights over the land as provided in Revenue Laws. There was no conclusive evidence adduced by the writ { 6 } petitioner to substantiate this plea. The documents relied upon by the writ petitioner were not held and in our opinion rightly to confer any khatedari rights on him. The finding of fact recorded by the authorities apart from it being concurrent in nature holding the writ petitioner to be an encroacher on the land was not such that it could not have been recorded. It was for all these reasons, the writ court should not have interfered in findings of fact recorded by Revenue authorities and respecting such findings, they should have been upheld. 15. We are also not impressed by the submission of learned counsel for the respondent when he urged that since the writ petitioner was in possession of the land from last few decades and hence was able to establish his ownership rights over the land. To say the least, the submission has no merit. 16. It is a settled principal of law that possession of an encroacher how so ever long, it remains an illegal possession creating no right, title and interest. In other words, such person remains an encroacher as against its true owner, regardless of it duration. In the light of this well settled principal, mere possession on the state land even if it exists would not create any rights on such land in favour of the writ petitioner. 18. In view of the forgoing discussion, which is more than sufficient, the appeal succeeds and is accordingly allowed. Impugned order is set aside and in consequence, the writ petition filed by the respondent herein out of which this appeal arise, is held to be devoid of merit and hence it is dismissed. No cost ( C.M. TOTLA),J. ( A. M. SAPRE ),J.