S.K. Mal Lodha, J.
1. Petitioners Qurban son of Lakha and Lakha son of Shafi have filed this petition under Articles 226 and 227 of the Constitution of India praying that a writ of certiorari or prohibition or any other appropriate writ, order or direction may be issued restraining the respondents State of Rajasthan and Tehsildar Chohtan froth ejecting them from khasra No. 90 measuring 33 bighas 11 biswas situate in village Jalila, tehsil Chohtan and further that a direction may also be issued for regularisation of their case Whereby quashing order Anx. C dated April 19, 1979.
2. The petitioners are residents of village Jalila and are landless cultivators. Their case is that in Smt. 2032 they took possession of Sawai Chak Government land khasra No. 90 measuring 33 bighas and 11 biswas, and since then, they have been in continuous cultivatory possession of it. Their case further is that the unauthorised occupation made on the aforesaid land should have been regularised as per Government Circulars No. F (20) Rev./B/71 dated April 13, 1971 and No. 16(7) Rev/Gr(sic)v/77 dated April 14, 1977 and Rule 20 of the Rajasthan Land Revenue Rules, 1970 (hereinafter to be referred to as 'the Rules'). The petitioners have stated that they made applications in 1978 and also on April 29, 1979, but no orders were passed thereon. Instead of passing any order, the Tehsildar, Chohtan, issued a notice under Section 91 of the Land Revenue Act, 1956 (No. XV of 1956 (for short, 'the Act' here after). The land was allotted by means of Anx C, dated April 19, 1979 to Bhoja. They have, thereafter, filed the present; wit petition under Articles 226 and 227 of the Constitution for the reliefs mentioned above.
3. A show cause notice was ordered to be issued to the respondents on June 14, 1979. The respondents have filed reply to the, writ petition supported by an affidavit of Shri Chhattarsingh, Sub Divisional Officer Burner along with Anxs. R1 to R4. Thereafter, the petitioners have filed rejoinder to the reply on September 10, 1979. On August 9, 1979, an application was moved by the learned Counsel for the petitioner praying, therein that the Additional Collector, Barmer; SDO. Banner and Bhoja son of Hatla may be impleaded as respondents Nos. 3, 4 and 5 respectively.
4. The writ petition is contested on various grounds. It was, inter alia, contended that the petitioners are not in possession of the land measuring 33 bighas 11 biswas of khasra No. 90 and that in pursuance of, the notice, issued under Section 91 of the Act, the order for eviction of the petitioner was passed on October 22, 1978. The copy of the order dated October 22, 1978 has been filed by the respondents marked as Anx R3. It was stated by the respondents that the said land was allotted to Bhoja on April 10, 1979 and possession of the same was delivered to him on May 28, 1979. To show delivery of possession to Bhoja, Ghatna Bahi Anx. R4 has been filed by the respondents.
5. I have heard Mr. A.B. Sindhi, learned Counsel for the petitioners and Mr. Rajesh Balia, Deputy Government Advocate.
6. It was contended by the learned Counsel far the petitioners that they are landless persons and as such, According to the aforementioned Government Circulars and Rule 20 of the Rules, the encroachment made by them should have been regularised. The learned Deputy Government Advocate disputed that the petitioners are landless persons and as such encroachment made by them Cannot be regularised in view of Section 5(26A) of the Rajas-than Tenancy Act (No. III of 1975) (which will hereinafter, for the sake of brevity, be referred to as the Tenancy Act') Section 5(26) A defines 'landless person', and according to the definition, landless person means an agriculturist by profession and who cultivates or can reasonably be expected to cultivate land personally but does not hold any land, whether in his own name or in the same of any member of his joint family, or folds a fragment. Section 5(11-B) of the Tenancy Act defines 'fragment'. According to the definition, fragment means a piece of land less in area than the minimum prescribed by the State Government for the purpose of Sub-section (1) of Section 53 Section 53 of the Tenancy Act deals with division of holding. Sub-section (1) of Section 53 leave down at the division of holding shall not be carried out so as to result in formation of holding of a lesser area than the minimum prescribed area for each district or a part of a district. Here, reference may be made to Section 180 of the Tenancy Act. Material portion of Section 180 reads as under:
Section 180 Additional provisions for a (sic) ejectment of Khudkasht or Ghair-Khatedar tenants or sub-tenants : (1) A tenant of Khudkasht or a Ghair-khatedar tenant or sub-tenant shall also be liable, on application to ejectment on any of the following grounds, namely:
(a) that the land held by such tenant or sub-tenant is in excess of the minimum area prescribed by the State Government for the district or part of the district in which such land is situated and ejectment from the excess area is sought by the landholder for the purposes of his personal cultivation:
Provided that different limits may be prescribed for diff rent district or parts of a district, so, however, as to ensure a net annual income of twelve hundred rupees for each tenant or sub-tenant, exclusive of the cost of his labour and the labour of his family.(b) that he is a tenant or sub-tenant holding from year to year:
Provided that no tenant or sub-tenant holding land in the Abu area from year to year shall be liable to ejectment under this clause.
Explanation : For the purpose of Clause (b) a tenant or sub-tenant holding from year to year shall include a tenant or sub-tenant who remains in possession of the holding after the determination of the lease or sub-lease and the lessor or his legal representative accepts rent from the tenant or subtenant, or otherwise assents to his continuing in possession.
(c) that the lease or sub-lease granted after the commencement of this Act under Section 45 has expired or will expire before the end of the current agricultural year and the landholder requires the land for his personal cultivation.
(d) that the land had been under the personal cultivation of the land holder for a continuous period of five years immediately preceding the agricultural year 1948-49 and was, during or after that year, given on lease or sub lease for a fixed term and such lease or sublease would have, terminated and the tenant would have been liable to return possession of the land to his landholder but for the provisions of the Rajasthan (Protection of Tenants) Ordinance, 1949 (Rajasthan Ordinance IX of 1949) unless in the meanwhile Khatedari rights have accrued to such tenant or sub-tenant under any law during the term of such lease or sub-lease:
Provided that a landholder shall not be entitled to an order for ejectment under Clause (d) unless he requires, the land from which ejectment is sought for his personal cultivation, and unless such land is in excess of the minimum area prescribed for the purposes in Clause (a)
Provided further that a landholder holding under his personal cultivation an area of land equal to the ceiling area applicable to him shall not also be entitled to an order for ejectment of a tenant under Clause (d) and a landholder holding a less area shall be entitled to such an order only from such areas which, together with the area already held by him, shall not exceed the ceiling area applicable to him.....
The Rajasthan Tenancy (Government) Rules (for short, the 'Tenancy Rules', 1955, were published in the Rajasthan Gazette Part IV-C dated December 17, 1955. Chapter IV-B contains Rule 24E. The Tenancy Rules were amended from time to time. Chapter IV-B, which contains Rule 24E, reads as under,
24E The minimum areas for the purpose of Section 53 of the Act shall be one-fifth of minimum area fixed for each district or part of a district for purposes of Clause (a) of Section 160 and given in Rule 66 and schedule thereto.
Chapter XI of the Tenancy Rules contains Rules 65 and 66. These rules are for giving effect to the provisions of Section 180 of the Tenancy Act, Rule 66 of the Rules reads as under:
66. Prescription of minimum area for the purpose of Section 189 of the Act. - The minimum areas for the purpose of Clause (a) of Section 180 of the Act shall be such as are shown in the Schedule annexed to these rules and where the areas consist of both irrigated and unirrigated lands, three acres of unirrigated land shall, for calculating the minimum area, be deemed to be equivalent to one acre of irrigated land.
Item No. 11 of the Schedule of the Tenancy Rules, is as under:
S.No. Name of Name of Minimum areaDistrict Tehsil of Barani land(in acres)11. Barmer Siwana 60Pachpadra 75Barmer)Chohtan) 100Sheo)
7. It may be mentioned that the Rajasthan Tenancy Act, 1955 by Devendra Singh Yadav, 1st Addition, 1978, does not contain Rule 24E of the Tenancy Rules & substituted Schedule under Rule 66 of the Tenancy Act. By notification No. F.6(38)Rev/B Gr. 1/64 dated August 17, 1965, published in the Rajasthan Gazette Extraordinary dated August 17, 1965. the Tenancy Rules as originally published under notification No. F1(37) Rev B/55 in part IV(C) of the Rajasthan Gazette dated December 17, 1955, were amended. While deciding S.B. Civil writ petition No. 497 of 1979, Reshma v. State of Rajasthan and Ors. on August 6, 1979, Rule 24E and the substituted Schedule of the Tenancy Rules were not brought to my notice.
8. From the above-mentioned provisions, it is clear that order to be a landless person in Tehsil Chohtan, he should be an agriculturist by profession and should hold land less than 20 acres. Learned Deputy Government Advocate, on the basis of the Jamabandi (khewat Kkatauni) Anxs R1 and R2 disputed that the petitioner Lakha is land less person. Rule 20 of the Rules was amended from time to time, which reads as under:
Rule 20. Allotment of fond to traspasser Notwithstanding anything contained in the rules, subject to the specific or general direction of the State Government the Sub-Divisional Officer may, on the advice of the Advisory Committee, instead of ejecting a trespasser from any land occupied by him without any lawful authority, allow him to retain such land if he is a landless person and the total are of land held by such person including the land so allotted does not exceed 75 bighas in Barani areas of the former Bikaner Division Banner District (Except Siwana Tehsil) Jaisalmar District and Tehsil Sergarh, Phalodi and Osian excluding 40 villages as mentioned in Schedule 1 of Jodhpur District not covered by any irrigation project and 15 bighas in any other part of the State and that the lard so allotted does not, fall within the categories specified in Rule 4 of these rules.
(2) Upon such allotment, the allottee shall be bound by the condition of allotment as laid down in these rules and Khatedari rights him accrue to him as if his case was of allotment under these rules.
Explanation-
(1) One bigha for the purpose, of this rule shall be tales to be equal to 5/8 acres.
(2) One bigha of irrigated land for the par pose of this rule shall be taken equal to 2 bighas of unirrigated land.
What area of land is held by, the petitioners is a disputed, question of fact which cannot conveniently be decided on the basis of the material which is an the record and as such no finding can be recorded on this question of fact.
9. It is clear from Anx. R3 that order for dispossessing Qurban was passed on October 22, 1978 and after his dispossession) the land was alloted to Bhoja. Regularisation under Rule 20 of the Rules is required to be done by the concerned Sub Divisional Officer on the advice of the Advisory Committee. There is nothing in the writ petition to show that the Advisory Committee has advised for the regularisation of the unauthorised occupation of khasra No. 90. The instructions issued by the State Government only lay down the guidelines to be followed by the Sub-Divisional Officer while regularising the unauthorised occupation. S.O. 5 dated April 14, 1977 inter alia, mentions that encroachments may be regularised subject to the terms, conditions and restrictions said down in the Rules and the existing circular dated April 13, 1971. Under Rule 20 of the Rules, there is no entitlement to the trespasser to get his encroachment regularised as it is discretionary with the Sub Divisional Officer whether in regularise or not the unauthorised occupation of the landless persons. A trespasser cannot claim regularisation as a matter of right and as such the petitioners cannot claim issuance of writ in the nature of mandamus. There are four pre-requisites essential to the issue of the writ of mandamus-
(1) Whether the petitioner has a clear and specific legal right to the relief demanded by him.?
(2) Whether there is a duty, imposed by down the respondent?
(3) Whether such duty is of an imperative ministeral character invoking no judgment or discretion on the point of the respondent, and
(4) Whether the petitioner has any remedy other than by way of mandamus for the enforcement of the right which has been denied to him.
10. All the Conditions are not satisfied in the case.
11. For the reasons mentioned above, the petitioners aft not entitled to the issuance of any writ, order or direction of the regularisation of the unauthorised occupation of the land in question.
12. A pefsual of Anx. R3 dated October 22, 1978 shows that the petitioner Qurban was declared trespasser and order for his dispossession was made. The order Under Section 91 of the Act for dispossessing him from 33 bighas and 11 biswas of land and for imposing penalty was passed on Oct. 22, 1978. No appeal against order dated October 22, 1978 contained in Anx. Rule 3 was preferred. It is admitted that no appeal was filed within the period of limitation and Instead, this joint writ petition was filed in this Court on June 13, 1979. It is true that the petitioner have stated in para 4 of the writ petition that they moved application for regularisation but that cannot affect the proceedings under Section 91 of the Act. Section 75 of the Act deals With lodging of first appeals and according to Section 75(1)(a), an appeal against the order of tehsildar in matters not connected with settlement of land records lies to the Collector within 30 days from the date of the order to which objection is made. Second appeal lies against the order passed by the Collector in matters not connected with settlement of land record to the Revenue Appellate Authority. As no appeal was preferred against the order dated 22-10-1978 and as possession was delivered to Bhoja on May 28, 1979 vide Anx. Rule 4, it will not be proper to quash the allotment. The petitioner Ourban could agitate the order Anx. R/3 by preferring appeal before the Collect of on the ground that order for his dispossession should not have been passed. He did not exhaust the remedy open to him under the Act. As petitioners did not avail the remedy of the appeal provided under the Act, & further for the reason that there is absence of good ground for by passing remedy of appeal, extraordinary jurisdiction vested in this Gourd under Article 226 cannot be invoked for quashing the allotment order Anx. C dated April 19, 1979, and the petition cannot be entertained, Learned Counsel for the petitioners invited my attention to Carl Still G.M.B.H. v. State of Bihar : [1962]2SCR81 , Khurai Municipality v. Kamal Kumar : [1965]2SCR653 , Baburam v. Zila Parishad : [1969]1SCR518 and Isha Beebi v. Tax Recovery Officer : [1975]101ITR449(SC) . In Carl Still's case : [1962]2SCR81 , it was held, per majority, as under:
When proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Article 226 for issuing appropriate writs for quashing then on the ground that they are incompetent without his being obliged to wait unstill those proceedings run their full course.
In Khurai Municipality's case : [1965]2SCR653 , in para 7 of the report, it was observed:
Though the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party, it has jurisdiction to grant the relief to such a party if it thinks proper to do so in the circumstances of the case.
In that case the High Court chose to exercise discretion in favour of the respondents. It was further held that it would not be right for the Supreme Court to interfere with the exercise of that discretion unless it is satisfied that the action of the High Court was arbitrary or unreasonable. In that case, nothing was brought to the notice of their Lordships of the Supreme Court from which it could be inferred that the High Court acted arbitrarily in granting the writ prayed for In Baburam's case A.I.R. 1969 S.C. 456, in para 3, it was lard down:
It is a well established proposition of law that when and alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ, it is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ But, as observed by this Court in...'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted....
In Isha Beevi's case : [1975]101ITR449(SC) , the reliefs claimed were writ of certiorari, mandamus an prohibition. It was observed as under:
The existence of an alternative remedy is not generally a bar to the issuance of a writ of prohibition. But in order to substantiate a right to obtain a writ of prohibition from a High Court or the Supreme Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority cons-plained against. It is not enough if a wrong section or provision of law is cited in a notice or order if the power to proceed is actually there under another provision.
In this case, as stated by me above, the order against the petitioner Qurban, was made on October 22, 1978. Thereafter, standing crop was auctioned and sale of the crop was confirmed on May 5, 1979 and possession was delivered on May 23, 1979. In these circumstances, this Court is disinclined to invoke its extraordinary jurisdiction under Article 226 of the Constitution.
13. After the decision given in Reshmi v. State of Rajasthan (S.B. Civil Writ Petition No. 497 of 1979, decided on August 6, 1979), the petitioners moved an application on August 9, 1979 for impleading the Additional Collector, Barmer, the Sub Divisional Officer and Bhoja as respondents Nos. 3, 4 and 5. In view of the conclusions to which I have arrived as aforesaid, it is not necessary to implead the Additional Collector, the Sub Divisional Officer and Bhoja as respondents to the writ petition. The application dated August 9, 1979, therefore, deserves to be dismissed.
14. For the reasons mentioned above, the writ petition bas no force and it is, accordingly dismissed, without any order as to costs.