1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER (1) S.B.CIVIL WRIT PETITION NO.1256/2000 Ram Karan and others V. BOR and others (2) S.B. CIVIL WRIT PETITION NO.5137/1999 Rameshwar V. BOR and others (3) S.B. CIVIL CONTEMPT PETITION NO.454/2002 Nathu V. Ajija Bano Date of order ::: October 20,2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.M.M.Ranjan with Mr.H.S.Khandelwal, for the petitioners Mr.A.K.Bhandari, Sr. Advocate with Mr.R.K.Goyal, for the respondents BY THE COURT In SBCWP No.1256/2000, the petitioners have challenged the order dated 10.8.1999 (Anx.7) passed by the Board of Revenue by placing reliance on the earlier order dated 18.8.1999 whereby identical appeals have been rejected as not maintainable. SBCWP No.5137/1999 has been filed challenging the order dated 18.8.1999 (Anx.7) and order dated 10.6.92 (Anx.6). The petitioners have also challenged the allotment made in favour of Smt.Malika Jamani, the ex- Jagirdar on 10.6.1992 issued by the Khudkasht Commissioner and have further sought direction against the respondent No.8 M/s.Suman Hotels & Resorts Management India. (2) S.B. Civil Contempt Petition No.454/2002 has been filed by Rameshwar against Ajija Banoo 2 and others for alleged disobedience of interim order dated 16.11.1999 passed by this Court of status quo in SBCWP No.5137/1999. (3) Briefly stated, the facts of the case, are that decree dated 14.3.1984 of permanent injunction was passed in favour of Gopi and Bhonriya by the court of A.C.M. Jaipur in Civil Suit No.94/1980 whereby Khatedari rights on agricultural land measuring 25 Bighas 6 Biswas in Khasra No.351 had been conferred upon them. The petitioners are claiming their right of Khatedari as legal heirs of Gopi and Bhonriya and have further stated in the writ petition that in the month of February, 1994, the Tehsildar, Bassi along with his staff members came to dispossess the petitioners and other similarly situated persons from the land and it was told by the Tehsildar that the land had been allotted to Smt. Malika Jamani, the former Jagirdar of Ajabpura,Tehsil Lalsot. It is case of the petitioners that the respondents have not paid any heed to the aforesaid judgment and decree dated 14,3,1984 and therefore, they had filed SBCWP No.1681/94 which was dismissed on 11.5.1994 mainly on the ground of alternative remedy with the observation of condonation of delay in case the appellate authority is 3 satisfied. On dismissal of the aforesaid writ petition, the respective petitioners filed appeals before the Board of Revenue, two out of which – Appeal No.86/1994 and 87/94 were dismissed on 18.8.1989 and in the impugned order of dismissal dated 1.11.1999 passed in other similar Appeal No.358/1998 challenged in Writ Petition No.5137/99, the fact of dismissal of the identical appeals on 18.8.1989 has not been disputed and request was made to the Board of Revenue that since the appeal is not maintainable, therefore,the same may be returned for presentation before the competent court but the said request was wrongly rejected by the Board of Revenue vide order dated 18.8.1999 on the ground that there is no such order of returning back the appeal, in earlier judgment dated 1.11.1999, therefore, there cannot be two orders in the similar cases and the appeal was thus rejected as not maintainable. (4) The respondents have filed reply to the writ petition and justified the allotment made to Smt.Malika Jamani vide order dated 10.6.1992 as well as aforesaid impugned orders of the Board of Revenue. (5) Submission of counsel for the petitioners is that since this Court in its order dated 4 11.5.1994 has observed that the order of Khudkasht Commisioner is appealable, as provided in the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (in short `the Act of 1952') therefore, they had rightly invoked the jurisdiction of the Board of Revenue. Further the court has also observed for condonation of delay, therefore, the petitioners have not committed any kind of mistake in filing the appeals and the parties as well as the Board of Revenue were bound by the said order. Even if the Board of Revenue was of the view that the appeals are not maintainable, then the same ought to have been returned back to the petitioner for presentation before the proper forum in view of the judgments reported in R.S.D.V.Finance Co. Pvt. Ltd. V. Shree Vallabh Glass Works Ltd. (AIR 1993 SC 2094) (Para 7) and Auto Engineering Works V. Bansal Trading Company and others (2001) 10 SCC 630. Para 7 of the judgment in R.S.D.V. Finance Co. Pvt.Ltd. (supra) reads as under: “7. We have heard Learned counsel for the parties and have perused the record. In our view the Learned Division Bench was wrong in holding that in the facts and circumstances of this case the Bombay High Court had no jurisdiction to entertain the suit. The amount of Rs. 10,00,000 itself was paid by a cheque dated 5.7.1983 drawn on the Canara Bank and the said amount was deposited in the bank account of the defendant at the 5 Bank of Baroda, Nariman Point, Bombay. On 11.7.1983 the defendant issued a deposit receipt and the said deposit receipt contained an endorsement of 'Subject to Anand Jurisdiction'. The date of maturity was mentioned as 3.10.1983. It is also not in dispute that the amount of Rs.10,00,000/- along with interest was not paid on the due date and the defendant wrote a letter to the plaintiff on 19.10.1983 stating therein that in view of certain problems they were not in a position to repay the deposit amount on the due date and thereby requested the plaintiff to allow the defendant to keep the deposit till the end of November, 1983 with interest at 19% per annum on the delayed payment as well. The defendant also issued the five post dated cheques for Rs. 2,00,000 each drawn on Bank of Baroda, Nariman Point, Bombay dated 23rd, 24th, 25th, 29th and 30th November,1983 respectively. It is also an admitted position that the leave to defend the suit was obtained by the defendant from the Bombay High Court itself. The Learned Division Bench in our opinion was clearly wrong in holding that the suit was not based on the five post dated cheques and that the Bombay High Court had no jurisdiction to try the suit as the deposit receipt contained endorsement of 'Subject to Anand jurisdiction'. The entire reading of the plaint clearly shows that the suit was based not only on the basis of the deposit receipt of Rs. 10,00,000 but also on the basis of the five post dated cheques. Even if there was any doubt in the mind of the Division Bench, the Learned counsel for the plaintiff had made a request for allowing him to amend the plaint but such request was wrongly refused by the Learned Division Bench. The Division Bench was totally wrong in passing an order of dismissal of suit itself when it had arrived to the conclusion that the Bombay Court had no jurisdiction to try the suit. The only course to be adopted in such circumstances was to return the plaint for presentation to the proper court and not to dismiss the suit . It may be further noted that the Learned Single Judge trying the suit had recorded a finding that the Bombay Court had jurisdiction to entertain and decide the suit. Sub-sec.(1) of Section 21 of the Code of Civil Procedure provides 6 that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been consequent failure of justice. The above provision clearly lays down that such objection as to the place of suing shall be allowed by the appellate or revisional court subject to the following conditions :- (i) That such objection was taken in the Court of first instance at the earliest possible opportunity; (ii) in all cases where issues are settled then at or before such settlement of issues; (iii) there has been a consequent failure of justice.” (emphasis supplied) The orders of the Board of Revenue are liable to be set aside on this ground alone. (6) On merits, it has been submitted that the petitioners are the Khatedars of the land through the aforesaid decree dated 14.3.1984 whereby the Khatedari rights have been conferred through their ancestors Gopi and Bhonriya, therefore, subsequent allotment of the same piece of land which was not vacant piece of land, to Smt.Malika Jamani in the capacity of the ex-Jagirdar is void ab initio. (7) Counsel for the respondents has disputed conferment of any right upon the petitioners through the said decree dated 14.3.1984. The respondents have disputed any connection of the petitioners with Bhonriya as well as right of 7 the petitioners in the land in question. Further submission of counsel for the respondents is that Smt. Malika Jamani being the ex-Jagirdar was rightly allotted the land by the Khudkasht Commissioner and Board of Revenue has not committed error in rejecting the appeal. Otherwise also, the petitioners have admitted before the Board of Revenue, as referred in the subsequent order dated 18.8.1989, that the appeals are not maintainable and requested for returning the appeals for presentation before the proper forum. (8) I have gone through record of the writ petition and further considered rival submissions of counsel for the parties. (9) Before proceeding to decide the writ petition on merits, I have to examine the validity of the order of the Board of Revenue by referring the provisions of the Act of 1952. Sec.16,19-B,39 and 40 of the Act of 1952 read as under: “16. Allotment of Khudkasht.-(1) Where an application under section 14 is received by the Commissioner for khudkasht lands, he shall after holding the inquiry in the prescribed manner pass such orders thereon as he deems fit having regard to the provisions of clause (a) of sub- section (2). (emphasis supplied) (2) Where an application under section 14 is received by the Collector after holding in the prescribed manner such inquiry as he deems fit may - 8 (a) where the jagirdar has conferred khatedari rights in his jagir land on any person after the commencement of this Act, or where any member or members of the jagirdar's family hold land according to the scale laid down in section 18, reject the application; (b) where the area applied for to be allotted as khudkasht does not exceed thirty acres, either reject the application or allot to the applicant such area of land (not exceeding the area applied for) as khudkasht as he may deem proper; and (c) in any other case submit his report in respect of the matters contained in the application to the Commissioner for khudkasht lands for his order and where the Collector makes a recommendation for the allotment of khudkasht, he shall specify the manner in which his recommendation may be carried out.” “19.B. Examination and cancellation of allotment of certain lands as Khudkasht.- Notwithstanding anything contained in section 19 or in the rules made under this Act, the State Government, upon a complaint in writing made in that behalf or upon the facts otherwise coming to its knowledge, within six months from the date of commencement of the Rajasthan Land Reforms and Resumption of Jagirs (Eighth Amendment) Act, 1958 or the date of such allotment, whichever may be later, may after hearing the person complained against - (i) order that the matter of the allotment of any land specified in sub- section (1) of section 19 may be examined by such officer, not below the rank of a Collector, as the State Government may by such order authorise, and (ii) cancel such allotment if it is found to have been secured by means of fraud or misrepresentation on the part of the allottee.” “39. Appeals from the orders of 9 Jagir Commissioner and Collector.- (1) The Government or any person aggrieved by any decision of the Jagir Commissioner or the Collector, as the case may be, under section 5, sub-section (2) of section 23, section 24, sub-section (2) of section 25, Section 26-A, sub section (2) of section 32, sub section (3) of section 35, section 36, section 36-A, section 37, section 38, or section 38-B may within ninety days from the date of such decision appeal to the Board. (1A) Any person aggrieved by an order made by the Collector under section 16 may appeal therefrom to the Commissioner from Khudkasht lands within sixty days from the date of the order. (emphasis supplied) (2) When an appeal is made to the Board under sub-section (1), the appeal shall be heard and decided by a bench of the Board consisting of two members. (3) In deciding an appeal under this Section, the authority hearing the appeal shall follow the same procedure as is prescribed for the hearing of appeals made to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). (4) The decision of the Board or the Commissioner for Khudkasht lands as the case may be in an appeal under this section shall be final.” “40-A. Review. (1) The Board, the Jagir Commissioner or the Commissioner for Khudkasht Lands may either on an application made, within three months of the 18th of January, 1958 or of the date of order, whichever is later, by any interested party or suo moto, review an order passed by the Board or by such Commissioner himself or his predecessor in-office and pass such order in relation thereto as it or he thinks fit. (2) No order passed by the Board or the Jagir Commissioner or the Commissioner for Khudkasht Lands shall be reviewed under sub-section (1) otherwise than on any of the grounds mentioned in rule 1, Order 47 of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908), and the provisions of the said Order shall apply.” 10 (10) A perusal of Sec.16 of the of 1952 would reveal that the land could be allotted by the Commissioner of Khudkasht as well as by the Collector and in case the land is allotted by the Collector, then appeal lies u/s 39(1A) of the Act of 1952 but there is no provision of appeal against the order of allotment of Khudkasht land passed by the Jagir Commissioner u/s 16 of the Act of 1952. The only provision is for examination and cancellation of allotment of land as Khudkasht by the Government after making an enquiry from the Collector on the ground of fraud or misrepresentation is under section 19-B of the Act of 1952 and there is further provision under section 40A of the Act of 1952 for review but the petitioners have neither approached the Jagir Commissioner under section 40A of the Act of 1952 nor approached the Government u/s 19-B of the Act of 1952, therefore, the Board of Revenue has committed no error of law in rejecting the appeal as not maintainable. (11) So far as submission of the petitioners of referring the word `appeal' by this Court in its earlier judgment, I have to only observe that the order of the Court has to be read with the provisions of the Act of 1952 as the Court has 11 no power to confer the right of appeal where there is none. It appears that the petitioners have not been properly advised at the time of filing of the appeal before the Board of Revenue and even if, in case the petitioners were of the view that no appeal is provided under the Act, then it was open to them to file special appeal against the earlier order of co-ordinate Bench but no such special appeal has been filed. Therefore, the same has attained finality. (12) Since both the orders of the Board of Revenue are under challenge, the contention of the petitioners that the appeals ought to have been returned for presentation before the proper forum has some force. (13) Accordingly, the impugned orders of dismissal of the appeals by the Board of Revenue are upheld subject to the modification that in view of the aforesaid Supreme Court judgments in R.S.D.V.Finance Co. Pvt. Ltd and Auto Engineering Works (supra), the Board of Revenue is directed to return back the appeals to the petitioners for presenting the same before the proper forum and the appropriate forum shall proceed in accordance with law. The writ petitions stand disposed of as indicated above. SB Civil Contempt Petition No.454/2002 12 (14) The contempt petition has been filed on the ground that during the continuation of the order of status quo, the respondents started construction of the boundary wall upon the land measuring 3 Bighas 10 Biswas but it appears that the land was sold out by Smt.Malika Jamani who subsequently expired on 31.12.1999 after selling it to M/s. Suman Hotels and Resorts which in turn also, sold it out further. (15) The successor in title have been impleaded as party subsequently, therefore, no contempt is made out. The contempt notices are discharged and the contempt proceedings are dropped. (PREM SHANKER ASOPA) J. GoPal