Case: Moti Bhawan Sahkari Samiti Ltd Vs. Sohan Lal Mali &amp; Others

These proceedings arise from a judgment and order of the Rajasthan High Court dated 9 August 2012. Allowing a petition which was instituted in public interest, the High Court directed the Jaipur Development Authority (JDA), the Municipal Corporation and other authorities including the police to remove all encroachments from a cremation ground within a fortnight and to report compliance to the court. The judgment of the High Court has been questioned in two special leave petitions, one by asociety which claims interest in the land and the second by a group of allottees of residential plots from the. The land in question forms a part of khasra No.31/133/1 of village Brijlalpura. On 6 April 1962, an order was passed by theand Land Officer, Jaipur. An objection was lodged by a person by the name of Sheobaksh during the course of settlement, claiming that the land in question was in his possession with cultivation rights and the name of Dilip Kumar Mukherji (the respondent to those proceedings) had been recorded wrongfully. Sheobaksh sought a correction of the revenue entries. Mukherji, as the order records, did not appear despite service of notice in the proceedings which proceeded ex parte. The SDO accepted the case of Sheobaksh that an extent of 10 bighas was in his possession and cultivation while on an area admeasuring about 3 bighas a cremation ground was in existence. This order of the SDO has held the field since 1962 and has neither been challenged nor modified.Moti Bhawan Sahkari Samiti Limited claims that Dilip Kumar Mukherji was the owner of the land and that his name was reflected in the jamabandi for the years samvat7). Mukherji is alleged to have transferred the land to Nasira Begum between 1968 and 1971  she in turned is stated to have transferred the land to Santosh Kumari. Thesociety claims to have entered into an agreement to sell dated 11 January 1980 in respect of the land with Santosh Kumari. The claim of the society and necessarily of all those who claim through it, is based on the agreement to sell dated 11 January 1980.In 1999, the Tehsildar submitted an application before the authorised officer under Section 90B of the Rajasthan Land Revenue Act, 1956, stating that Santosh Kumari had transferred land admeasuring 29 bighas and 19 biswas to the members of theral purposes. In the course of the enquiry, notice was issued to thewhich was dully served besides being published in the newspapers. By an order dated 12 November 1999, the authorised officer found that the agricultural land was being used forpurposes and in consequence directed that the land be resumed by the state after revoking the khatedari rights of theConsequent to this direction, the authorised officer also ordered that the land be vested in Jaipur Development Authority in pursuance of the provisions of Section 54 of the Jaipur Development Authority Act, 1982. The petitioners have accepted that on 28 December 1999, a mutation order was issued by which the name of JDA was inserted in place of Santosh Kumari in the revenue records.On 25 February 2004, the Executive Engineer of the Municipal Corporation, Jaipur sanctioned a fund of Rs.8,93,865/for the development of a cremation ground on the land in dispute. On 11 September 2004, the Municipal Corporation is alleged to have started the work of developing a cremation ground through its officers and employees. In 2006, according to the petitioners, a suit was instituted before the Additional Civil Judge (Junior Division) No.2, Jaipur City for a permanent injunction restraining the development of a cremation ground over the land in dispute. In Civil Suit No. 266 of 2006 (titled as Tika Ram Sharma v. Municipal Corporation Jaipur), the Municipal Corporation was the sole defendant. JDA was not impleaded to those proceedings. On 9 March 2007, the trial court decreed the suit by granting a permanent injunction restraining development of the property as a cremation ground. Appeals (Regular Civil Appeal Nos. 34 and 35 of 2007) questioning the judgment and decree of the trial court were dismissed on 18 January 2008. According to the petitioners, the decree of permanent injunction attained finality.In 2012, a petition was filed in public interest by the first respondent before the Rajasthan High Court seeking inter alia a direction that 3 bighas of land forming a part of the cremation ground at Brijlalpura should be directed to be used only as a cremation ground and JDA be restrained either from constructing a park thereon or from regularizing plots of land alleged to have been allotted by "the land mafia". Notably, an application for impleadment was filed by as many as fifteen persons, claiming to be the residents of Swami Vihar colony. According to them, the land which was originally owned by Dilip Kumar Mukherji had subsequently devolved on Nasira Begum and Santosh Kumari by subsequent transfers until eventually, it was purchased by Moti Bhawan Sahkari Samiti Limited. The disputed land was, according to the application for impleadment, shown in the layout plan filed before the competent authority as a facility area. The application for impleadment relied upon the judgment and decree of the trial court in the suit for permanent injunction (referred to above) and upon the order of the first appellate court dismissing the appeals.In response to the petition, affidavits were filed before the High Court by the state government and by JDA. According to the state government, the revenue records indicate that the land in dispute was Gair Mumkin Abadi land of JDA. The state government disputed the claim that the land was developed as a graveyard. In the counter affidavit filed by JDA, the same position was adopted. JDA in the course of its counter affidavit submitted that the Municipal Corporation had no jurisdiction to issue a work order dated 25 February 2004 for the development of a cremation ground.Though this was the position which was adopted in the affidavits that were filed on behalf of the state government and JDA, the High Court noted that during the course of the hearing the Deputy Commissioner, JDA admitted that there existed on the spot a cremation ground and that in the map which was submitted by thesociety a way was left to approach the cremation ground. The Deputy Commissioner apprised the High Court that a Committee was constituted and JDA would keep the area reserved for a cremation ground. An apology was tendered for the wrong statement of facts on affidavit denying the existence of a cremation ground. Similar was the case with the state government on whose behalf the Additional Advocate General made a statement that "there is a cremation ground as apparent from the documents on record". An apology was tendered on behalf of the Deputy Commissioner for having filed an affidavit containing wrong statements of fact.The High Court by its judgment came to the conclusion that the order passed by the SDO in 1962 established that 3 bighas of land were reserved for a cremation ground and on that basis, an entry had been made in the khasra reflecting the land as being reserved for a cremation ground. The High Court expressed its dismay at the manner in which facts had been denied in the counter affidavits filed before it. The High Court adverted to the fact that the averments in the affidavits have been admitted to be incorrect by the officers and counsel present before the court. The High Court found that the Municipal Corporation had sanctioned the construction of a boundary wall and the development of the cremation ground in 2004.As regards the decree in the civil suit, the High Court came to the conclusion that the suit was instituted without impleading JDA. Hence, the decree in its view could not bind JDA which was not a party to the proceedings though the land had been vested in it. In the view of the High Court, though the land was transferred to JDA, the revenue entry reflecting the reservation for a cremation ground could not be changed, particularly, in light of a circular issued by the state government to that effect. In the view of the High Court, even otherwise JDA had stated in its return that the land was reserved for a facility area, which could also include a cremation ground. In conclusion, the High Court held that since 1992, 3 bighas of land were reserved for a cremation ground. However, there was an entry of 2 bighas, 5 biswas of land (the remaining part of land having been encroached upon). In issuing the directions which we have noted earlier, the High Court held that the area which was reserved for a cremation ground had to be protected and the encroachments existing as of the date of the order would have to be removed.

Reasoning:
13. We have before us a copy of the judgment of the trial court dated 9 March 2007. The suit, as we have noted earlier, was instituted by Tika Ram Sharma and ten other persons against the Municipal Corporation. The judgment of the trial court indicates that PW1 Tika Ram Sharma during the course of hisdenied that the site in dispute in the suit was situated in khasra No.31/133/1 which was shown as a cremationextracts from the findings recorded by the trial court make it abundantly clear that the land in dispute in the suit (which resulted in the decree for permanent injunction) was not situated in khasra No. 31/133/1 which, according to the judgment, was recorded as a cremation ground and was owned by JDA. Once it is evident that the decree for permanent injunction in the suit did not relate to khasra No. 31/133/1 (which is the land in dispute in the present case) the proceedings of that suit and the result will be of no relevance to the present proceedings. The main challenge of the petitioners as we have noted earlier is that the High Court in the exercise of its jurisdiction under Article 226 while deciding a public interest petition was not justified in reversing the effect of a decree for permanent injunction passed by a court of competent jurisdiction. There is no substance in this plea, once we have come to the conclusion that the land which was in dispute in the suit was not the land in khasra No. 31/133/1 pertaining to the cremation ground which formed the subject matter of the proceedings before the HighThe facts as they have emerged from the record make it abundantly clear that since the order of the SDO of 6 April 1962, 3 Bighas of land were recorded as a cremation ground. After the land vested in JDA, this position has continued and in fact has been accepted by the development authority. The High Court was in these circumstances justified in coming to the conclusion that the land was reserved for a cremation ground and was required to be protected.The petitioners have made an undisguised attempt to negate the reservation of the land for a cremation ground which has been in existence since 1962. Their claim is totally lacking in substance. In these circumstances, while we are inclined to affirm the judgment of the High Court, we deem it appropriate and proper to impose costs upon the petitioners while dismissing the special leave petitions. No ground to interfere with the impugned order is made out under Article 136 of the Constitution of India.