Judgment:
ORDER
Dinesh Maheshwari, J.
1. While stating the grievance that he has been deprived of his property in an unlawful manner; and that he has been dispossessed without due process of law, the petitioner Keshar Deo Lohia (since deceased and represented by his son) filed this writ petition on 03.01.1989 claiming the reliefs in the form: that writ of mandamus be issued directing the respondents to vacate the property in dispute; that further writ of mandamus be issued for demolition of the constructions made by the respondents on the property in dispute; that with a writ of certiorari, the orders passed against the right, title and interest of the petitioner be quashed; and that by a writ of prohibition, the respondents be restrained from encroaching upon the property in dispute.
2. The reliefs aforesaid have been claimed in relation to the plots of land said to be bearing numbers 9, 11, 29, 30, 31, 32, 76, 79, 80, 98, 119, 120, 140, 141, 164 and 165 situated near Railway Station, Churu (also referred herein as 'the property in dispute'/'the said plots'). The petitioner has averred in the petition that himself and his late father Jamunadhar Lohia purchased the said plots of land, 16 in number, in the year 1942 in public auction from the then Government of Bikaner State; and that the said Government of Bikaner State accepted the consideration in respect of said plots of land, issued receipts thereof in the month of August 1942, and transferred the right, title and interest in favour of the purchasers by issuing the so-called 'kuchcha pattas'. While producing the copies of some such receipts and kuchcha pattas collectively as Annexure-A, the petitioner has averred that immediately after the sale, the Government of Bikaner State handed over possession of the said plots to himself and his father for the purpose of development of abadi and for erection of boundary wall within one year from the date of sale; and this time period came to be extended up to 31.12.1951.
3. The petitioner has further averred that the directions in the grant were complied with in toto and this fact was examined and verified by the Tehsildar, Churu. The petitioner has placed on record a copy of the report made by the Tehsildar, Churu on 07.09.1959 as Annexure-B and has referred to its contents indicating existence of some kuchcha constructions (kfy;k) on a few plots and some sort of fencing around (ckM). The petitioner has also averred that in the meantime and during the period of development of the said plots, his father Jamunadhar Lohia bequeathed the right, title and interest in plots Nos. 76, 79, 80, 140, 141, 164, 165, 98, 119, 120, 11 and 9 in his favour; and by the letter dated 26.02.1951 (Annexure-C) his father made a request to the Revenue Commissioner, Jaipur to mutate the said plots in his favour and to issue 'pucca pattas' accordingly.
4. The petitioner has alleged that though he had deposited kuchcha pattas with the respondent No. 5 (the Tehsildar, Churu) after submission of the reports and recommendations for the purpose of obtaining pucca pattas and had also constructed pucca boundary wall on the southern side of plot No. 80 but 'in the meantime' the respondent No. 3 (the Collector, Churu), in a clandestine manner while joining hands with the respondents Nos. 4, 7 and 8 (the Chairman, Municipal Board, Churu, the Superintendent of Police, Churu and the Dy. Superintendent of Police, Churu respectively), intentionally 'made a rampage over the said properties' and removed the existing constructions and fencing; and 'illegally took over possession of the said plots of land without any authority of law and dispossessed the petitioner'. The petitioner has stated that in this manner, jeopardising his right, title and interest over the said plots, the respondents took away the stone slabs to the Municipal Board Office though they were well aware that the properties were belonging to him. The petitioner has then alleged that the incident was also flashed in two local newspapers, namely 'Churu Keshari' dated 15.12.1986 and 'Yuvak' dated 12.12.1986; and has annexed copies thereof as Annexure-D.
5. The petitioner has further averred that inspite of the reports of the Tehsildar bearing dates 07.01.1952, 08.04.1952 and 07.09.1959, one Tej Kumar, then holding the office of respondent No. 3 (the Collector, Churu), suddenly made an apparently illegal and wrongful order on 30.05.1963 for resumption of the said plots without any authority of law; and, being aggrieved of such an illegal order, he preferred a revision petition before the Board of Revenue ('the Board') bearing No. 8/1963 wherein stay was granted against wrongful resumption. The petitioner has pointed out that the said revision petition was finally decided by the order dated 24.05.1968 (Annexure-E) whereby the matter was remanded to the Collector with the directions that he should re-write the judgment after hearing the parties and should cite the rules and regulations under which resumption of the land was justified.
6. Further averments in the writ petition are to the effect that despite the directions contained in the said remand order having been communicated, Shri B.K. Binju, then holding the office of respondent No. 3, flouted the said order with mala fide intention and further resumed the said plots without authority of law on 10.02.1972 in the purported Case No. 232; and by another order dated 31.12.1973, illegally directed the said plots of land to be taken over by the respondent No. 4 (the Municipal Board, Churu) who 'took over possession of the said plots' and was 'still holding possession thereof'.
7. It has further been averred in the petition that being aggrieved of the apparently illegal order passed by the Collector, Churu, the petitioner preferred another revision petition before the Board of Revenue that was registered as Case No. 82/1974 wherein ad interim stay order was granted and the matter was finally decided on 14.07.1978 (Annexure- F) setting aside the order dated 31.12.1973.
8. It is noticed from the said order dated 14.07.1978 (Annexure-F) that the learned Member of the Board, while holding that the Collector, Churu had issued the order dated 31.12.1973 against the earlier directions of the Board, set the same aside; but so far the order dated 10.02.1972 was concerned, held the same to be of the recommendations by the Collector as communicated to the State Government and, even while commenting that the authority and the procedure for resumption of the land had not been indicated, did not pronounce anything further thereupon with the observations that any action taken thereunder by the State Government would be a separate matter between the petitioner and the State Government. The learned Member of the Board also stated an advice to the petitioner to agitate the matter before the State Government or to seek other constitutional remedies.
9. The petitioner has stated surprise that the said order dated 14.07.1978 has not been carried out yet and the Revenue Department was also maintaining silence without any cogent reason and inspite of numerous representations and reminders.
10. The petitioner has further averred that during his absence from Churu, the respondents Nos. 3 and 4, with the intention of causing injury to him, illegally inducted the respondents Nos. 10 to 25 on the said plots of land by 'breaking open' the brick fencing made by him; and the said respondents were allowed to occupy plots Nos. 9, 11, 29, 30, 31, 32, 76, 79, 140, 141, 164 and 165 against illegal and unofficial payment; and were allowed to erect and construct their own brick built houses over the said plots without sanctioning any plan and while flouting all the norms. The petitioner has alleged that the amount so collected was shared by the respondents Nos. 3, 4 and 10 for their personal gain and on the other hand, various objections and pretexts were being made in issuing pucca pattas in lieu of kuchcha one deposited by him. The petitioner has averred that in these circumstances, he got served a notice through the lawyer on 14.11.1988 (Annexure-G) but the respondents Nos. 1 to 5 have failed to grant the relief until filing of the petition.
11. With such averments on facts, the petitioner has stated the grounds in the petition that the respondents Nos. 1 to 4 have infringed his fundamental rights; that the respondents Nos. 3 and 4 have infringed his rights to property inasmuch as they had dispossessed him for their personal wrongful gains; that respondents Nos. 3 and 4 by joining hands with the respondent No. 10 have illegally taken over his property in a clandestine manner; that the respondents Nos. 3 and 4 flouted all the norms of law while debarring him from the use and occupation of the plots purchased from the State of Bikaner; that the respondents Nos. 3 and 4 willfully and deliberately neglected to obey the orders of the Board of Revenue as passed on 24.05.1968 and 14.07.1978; that the respondents Nos. 3 and 4 have in connivance inducted the private respondents on the disputed property and allowed them to raise construction without authority of law and without sanctioning plans; and that the action of the respondents was that of fraud on the statute.
12. In sum and substance, the averments as taken in the writ petition, in whatever manner and form, state the case of the petitioner to the effect that he is having direct right and title in relation to the said plots of land that were purchased in the year 1942 in open auction and grant was made for the purpose of development of abadi within a period of one year, which was extended up to 31.12.1951; that as per the reports made by the Tehsildar, there had been constructions raised on certain portions of said plots; that he had deposited kuchcha pattas for the purpose of grant of pucca pattas; and that though the Collector, Churu proceeded to make the orders on 30.05.1963, 10.02.1972, and 31.12.1973 seeking illegal resumption of land but the Board of Revenue did not approve such propositions in its orders dated 24.05.1968 and 14.07.1978. The grievance of the petitioner is that the respondents have illegally, and in clandestine manner, taken over possession of the said plots and even handed over the same to the private respondents with unlawful dealings and permitted them to raise illegal constructions. It is also submitted that the requirements of the orders passed by the Board have not been carried out; and the Government in its Revenue Department has omitted to take the requisite decision despite service of notice.
13. In opposition to this writ petition, the respondent No. 4 Municipal Board, Churu has taken objection in its reply that the petitioner has not come with clean hands and has not stated as to when was he dispossessed and by whom; and all the necessary facts have been withheld. It is also submitted that the petitioner has concealed the facts relating to the order dated 10.02.1972 that was passed by the Collector in the presence of his Advocate but was not challenged before the State Government; and was affirmed by the State Government on 01.09.1972. Further, with reference to the contents of order dated 14.07.1978 as passed by the Board, it is submitted that essentially the order dated 10.02.1972 as made by the Collector, Churu was considered to be recommendatory in character and was not interfered with. It has been alleged that when felt disarmed by the observations of the Board inasmuch as the recommendations as contained in the order dated 10.02.1972 were not interfered with, the petitioner proceeded to submit a review petition to the State Government on 18.11.1978, notice whereof was received by the answering respondent on 27.10.1979; and the said review petition was ultimately dismissed for non-prosecution. According to the respondent Municipal Board, as per the contents of the review application, the petitioner was aware of the position that the order dated 10.02.1972 had attained finality. It is also submitted that the present petition involves disputed questions of fact; and for the grievance as stated and the reliefs as claimed, civil suit is the only appropriate remedy. The answering respondent has further pointed out that the petitioner did file a civil suit in the matter and has placed on record a copy of interim order passed therein on 03.01.1987 (Annexure R.4/4).
14. The respondent-Municipal Board has further averred that the property in dispute being an open piece of land, had never been in possession of the petitioner and rather certain persons made encroachments over the same before the year 1971; and it is maintained that the land was transferred to the Municipal Board under the order of the Collector that was affirmed as back as on 01.09.1972 and, thus, the answering respondent has all the ownership rights over the same. The said respondent has referred to the averments in the writ petition indicative of the fact that possession of the land in question had been taken way back in the years 1972-1973 and thus, according to the respondent, even if it be assumed that the petitioner had ever been in possession, the rights, whatever claimed by him, stood extinguished long back; and the petitioner had lost limitation even to recover possession. The respondent-Municipal Board maintains that the petitioner and his predecessor were never issued any title deed regarding the property in dispute; that only some plots of land were given with the conditions that the residential houses would be constructed and would be occupied, apart from the requirement of planting the trees. It is submitted that the title in relation to the land in question was to be conferred only after fulfillment of the conditions and otherwise it remained the Government land; and that the petitioner's father had no such title that he could have bequeathed or transferred to the petitioner. It is further submitted that even the report of the Tehsildar as relied upon by the petitioner is of no help as the required conditions were not fulfilled. According to the said respondent, the matter has attained finality for the Board of Revenue having not interfered with the order dated 10.02.1972, the State Government having affirmed the said order of the Collector and then, the review petition filed by the petitioner having been dismissed. The allegations in the petition have been denied being bereft of foundation and being vague and uncertain.
15. The respondents Nos. 1, 2, 3 and 5 have filed a separate reply taking objections that the petition involves disputed questions of fact and suffers from the vice of delay and laches; and that for the reliefs claimed, the petitioner ought to have taken resort to the remedies before the Civil Court. It is maintained that the petitioner has not been denied any of his legal or fundamental rights with the submissions, inter alia, that the order dated 10.02.1972 was passed after extending adequate opportunity of hearing to the petitioner and the State Government agreed to and confirmed the order dated 10.02.1972 by its order dated 01.09.1972 (Annexure R/2). It is also pointed out that the request for review as made by the petitioner was turned down by the State Government in its order dated 16.05.1989 (Annexure R/3).
16. The respondent No. 10 has filed a separate reply taking the objections against maintainability of this petition for involvement of disputed questions of fact, for its seeking enforcement of the property rights against private individuals, and for misstatement of facts. It has, inter alia, been pointed out that the grand father of the respondent No. 10 purchased from the Municipal Board, Churu a plot of land way back on 02.05.1952 (Annexure R10/1) and thereafter, even applied for strip of land that was sold to him on 12.10.1957 (Annexure R10/2); and after purchase, the grand father of the said respondent constructed a house over the land after obtaining permission from the Municipal Board. It is maintained by the respondent No. 10 that land in his possession does not belong to the petitioner at all; and it has also been pointed out that the land comprised in plots Nos. 76 and 79 was auctioned by the Municipal Board and hotel has been constructed thereat by one of the purchasers. It is also submitted that no right accrued to the petitioner or his predecessor for non-fulfillment of the conditions of the alleged grant.
17. It may be pointed out that on 04.01.1989, while entertaining this writ petition and issuing notices to the respondents, this Court directed status quo regarding the possession and the condition of the constructions over the property in dispute to be maintained; and a Commission 14 was also issued for the purpose of obtaining the report of the site including measurements of the total land and the portions said to have been encroached upon by or disposed of to or being in possession of the respondents Nos. 10 to 26. The Commissioner did visit the site on 16.01.1989 and has submitted an elaborate report with site plans and photographs showing various aspects relating to the extensive land sought to be made the subject of dispute herein including the facts about existence of the bus stand of Rajasthan State Road Transport Corporation on the entire plot No. 80 and major portion of plot No. 79; of various other residential and commercial constructions on several other parcels of land; and about plot Nos. 98, 119 and 120 lying vacant.
18. With reference to the facts of the case, learned Counsel for the petitioner contended that a grant was indeed made in favour of the petitioner and his father in the year 1942; and they were put in possession of the property in dispute; and they did carry out the developmental work required by the grant, as affirmed in the report made by the Tehsildar. Thus, according to the learned Counsel, the petitioner has been a title holder of the property in question and when there had neither been any acquisition proceedings nor any other lawful proceedings whereby the title of the petitioner was resumed, any attempt at deprivation of the petitioner of his property remains fundamentally illegal. The learned Counsel submitted in the alternative that in any case, there was a contract between the petitioner and the Bikaner State whereby and whereunder the petitioner came in possession of the land in question and thus, indisputably, the petitioner was in lawful possession of the property. Learned Counsel contended that in such a case where the petitioner had been continuing in lawful possession, he could not have been dispossessed without taking recourse to due process of law.
19. The learned Counsel submitted that on 30.05.1963, the Collector, Churu proceeded to pass the order with the proposition of resuming the plots but the said order was disapproved by the Board and was set aside on 24.05.1968 with specific directions to the Collector to point out the provisions of law under which the property was sought to be resumed; but such directions of the Board were never complied with. In regard to the order dated 10.02.1972, learned Counsel submitted that the same was of rather baseless recommendations for resumption of the land bereft of any legal foundation and bereft of any authority of law. The learned Counsel contended that even if the State Government proceeded to pass an order on 01.09.1972 purportedly approving such baseless recommendations, all such orders were not of any process of law what to say of due process whereby the petitioner could have been deprived of his property. The learned Counsel submitted that the Board of Revenue did not even approve the order dated 31.12.1973 as passed by the Collector seeking to dispossess the petitioner and set the same aside on 14.07.1978. According to the learned Counsel, looking to the observations as made in the order dated 14.07.1978, the petitioner did approach the Government and even served a notice for demand of justice but, for his grievances having not been redressed, has rightly invoked the writ jurisdiction of this Court.
20. The learned Counsel for the petitioner emphasised on the submissions that the Collector was under obligation to comply with the directions as contained in the order dated 24.05.1968 passed by the Board of Revenue; and was required to cite the law in support of the proposition of resumption of the land. Learned Counsel has referred to the contents of the order dated 10.02.1972 (Annexure R 4/10 as filed by the respondent No. 4) to submit that while ignoring the directions of the Board, the Collector attempted to rely on a strange procedure unknown to law and then made the recommendations to the Government; and the Government merely stated its agreement with whatever was proposed by the Collector; however, there had never been any order of cancellation of grant or resumption of the property. Learned Counsel submitted that for the respondents having failed to adopt due process of law, the petitioner deserves to be restored his property; and has referred to the decisions in Wazir Chand and Anr. v. State of Himachal Pradesh and Ors. : 1954CriLJ1029 , Bishan Das and Ors. v. State of Punjab and Ors. : [1962]2SCR69 , Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. : AIR1986SC872 , State of U.P. and Ors. v. Maharaja Dharmender Prasad Singh and Ors. : [1989]1SCR176 , Bishambhar Dayal Chandra Mohan and Ors. v. State of U.P. and Ors. : [1982]1SCR1137 , and Chandra and Co. v. State of Rajasthan and Ors. .
21. Learned Counsel for the respondent No. 10 has taken the objections that the writ petition is essentially in the nature of seeking the reliefs of recovery of possession and mandatory and prohibitory injunctions calling for a roving enquiry into the facts that cannot be made in the writ jurisdiction. It is further submitted that in fact, the land as allotted to the grand father of the respondent No. 10 does not even fall within the alleged plots in dispute and this respondent has unnecessarily been entangled in this litigation. It is submitted in the alternative that if at all the land allotted to the predecessor of the respondent No. 10 way back in the year 1952 forms part of the property in dispute herein then, all other suggestions of the petitioner about his dealing with the said land are falsified.
22. Learned Counsel for the respondent No. 10 strenuously contended that the petitioner having lost limitation even for filing a civil suit, is not entitled to maintain this writ petition that had been filed only in the year 1989 on the basis of cursory and uncertain averments and wherein his right to the property in dispute remains seriously in doubt.
23. It is further submitted that the petitioner was at the most granted an authorisation to develop the land; and resumption was rather automatic upon non-fulfillment of the conditions and no separate order was required to be passed for the petitioner having no vested right in the property in question. It is also contended that the orders as passed by the Collector being not in relation to any revenue land, interference by the Board was fundamentally without jurisdiction and such orders of the Board could only be ignored as nullity. According to the learned Counsel, in any case, under the order dated 24.05.1968 the Collector was at the most obliged to consider as to whether the conditions had been fulfilled or not by the petitioner and such aspect having been decided after hearing him, it cannot be said that the respondents have proceeded beyond or without due process of law. It is submitted that the cases as relied upon by the petitioner remain inapplicable because therein some right nevertheless existed in the complaining party whereas in the present case, rights were to come existing in the petitioner only after fulfillment of the conditions; and such conditions having not been fulfilled, there was no right in the petitioner.
24. Learned Counsel for the respondent No. 10 emphasised that the petitioner having failed to develop the land as required until the year 1956, and then, the property in dispute having been handed over in possession to various other persons, the petitioner is not entitled to any relief in this grossly belated petition filed only in the year 1989 and that too with concealment of material facts, and with suggestions of several disputed questions of facts. Learned Counsel has referred to and relied upon the decisions in Shri Vallabh Glass Works Limited and Anr. v. Union of India and Ors. : [1985]155ITR560(SC) , Bharat Singh and Ors. v. State of Haryana and Ors. : AIR1988SC2181 , Surinder Singh v. Central Government and Ors. : [1986]3SCR946 , North Eastern Railway v. Chhedi Lal and Ors. : [1988]172ITR624(SC) , and State of Rajasthan v. Bhawani Singh and Ors. : AIR1992SC1018 .
25. Learned Counsel appearing for the Municipal Board again emphasised on the submissions that the petition remains lacking in material particulars and that the petitioner is guilty of concealment of material facts. Learned Counsel pointed out, inter alia, that the petitioner has concealed the material facts that after passing of order by the Board, he did file a review petition before the State Government that was dismissed for non-prosecution. It is submitted that the petitioner even filed a civil suit covering the property in dispute and then abandoned the same; and this fact has also not been mentioned in the writ petition. The learned Counsel submitted that the property in dispute was handed over to the Municipal Board way back in the year 1972 by the then Collector and viewed from any angle, the petitioner has lost all the limitation for recovery of possession; and the petition being grossly belated, deserves to be dismissed on this count alone. In relation to the rights as claimed by the petitioner, learned Counsel contended that it were not a case of absolute grant to the petitioner but at the most there was a contingent contract whereby the grant would have been made if the petitioner developed the land; and at the best it could be considered to be a licence to the petitioner that would be deemed to have been revoked for non-fulfillment of the conditions.
26. The learned Counsel for the petitioner rejoined with the submissions that neither any fact has been concealed nor the petition could be said to be a belated one or involving such disputed questions of fact wherefor a writ would not be issued. The learned Counsel submitted that there had been sale letters issued to the petitioner and his father by the Bikaner State stating that the land had been sold and amount had been deposited; and such a grant cannot be termed as merely an authorisation or a licence. Learned Counsel further submitted that the question regarding fulfillment of the conditions was a matter entirely different and could have been determined in judicial proceedings but in any case, the Collector had no authority to deal with the matter in the manner attempted. Learned Counsel submitted that the order passed by the Board of Revenue on 24.05.1968 cannot be said to be wholly without jurisdiction and, for the same having attained finality, the Collector was under obligation to comply with its requirements; and merely making of recommendation on 10.02.1972 does not amount to the requisite compliance. Learned Counsel submitted that nothing having bearing on the points in issue has been concealed and so far the review application was concerned, the petitioner made the representation in terms of the order passed by the Board of Revenue on 14.07.1978 and thereafter, if the State Government had proceeded to dismiss the same without notice to the petitioner after filing of this writ petition, it cannot be of any adverse effect on the petitioner's rights. In relation to the civil suit as referred by the learned Counsel for the respondent, this much has been pointed out that it was filed on 13.06.1986 for injunction only and, according to the learned Counsel, filing of such a suit is of no adverse effect on the merits of this petition. The emphasis has been on the submissions that there remains no bar in granting relief to the petitioner against the wholly illegal and unauthorised action of the respondents where the petitioner was sought to be deprived of his property without due process of law. Learned Counsel submitted in the last alternative that even if some part of property in dispute had been alienated to the private individuals, the other part that remains free and unoccupied ought to be restored to the petitioner.
27. Having given a thoughtful consideration to the rival submissions and having scanned through the record, this Court is clearly of opinion that this writ petition has no merit; and no case is made out for issuance of any writ, order, or direction at the instance of the petitioner.
28. In the first place, it is difficult to find if the petitioner or his late father were granted ownership rights in the property in dispute, the aforesaid 16 plots of land. From whatever that has been pleaded and placed on record, it appears that under the alleged receipts and the so-called kuchcha pattas, they were only authorised to carry out developmental work at the said plots and title to the property was to be conferred on fulfillment of certain conditions; and in default, the land was to remain in the ownership of the Government with forfeiture of the deposit. In the face of such contents of so-called kuchcha pattas and the surrounding circumstances, this Court is unable to agree with the proposition that the petitioner and his father were granted any definite title to the property in dispute. Such kuchcha pattas cannot be construed anything further than an authorisation for the purpose of development of abadi and at the most giving a potential right to apply for grant of title after fulfilling the conditions
29. On the questions as to whether the said plots of land were developed and occupied after raising constructions in conformity with the requirements of the authorisation, the matter does not appear free from doubt. Of course, it appears that there had been certain enquiries made and certain reports submitted but then, the other referred reports like those dated 07.01.1952 and 08.04.1952 have not been placed on record. So far the report dated 07.09.1959 (Annexure-B) is concerned, the contents thereof give rise to more questions rather than supporting the case of the petitioner. In the said report, the Tehsildar mentioned the facts that such 16 plots were given with the condition of developing abadi within a year and that the matter was pending in dispute as to whether the pattas be granted or the land be resumed for non-fulfillment of the conditions. Thereafter, the Tehsildar referred to one recommendation dated 20.05.1952 whereby the Tehsil proposed granting of pattas but then, also referred to another report dated 26.09.1952 to the effect that the entire land was required to be developed and occupied whereas out of 16 plots, a few kuchcha constructions were available on 5 plots and fencing had been placed around the others and, for the condition of development of abadi having not been fulfilled, the plots should be resumed; and further referred to some other reports and the proceedings that were undertaken particularly to find the location of the plots and the extent of developmental work. The Tehsildar, after stating the facts about existence of a few kuchcha constructions and few fencings, posed the issue as to whether every plot was individually and separately required to be developed or development at 3-4 plots be treated sufficient; and thereafter, referred to an example cited by the applicant, of Case No. 485 dated 08.08.1942, wherein it was allegedly decided by the Commissioner, Bikaner on 14.05.1952 that every individual plot was not required to be developed particularly when the property stood comprised in a single compound. With reference to the fact that development of a few plots was treated sufficient in another person's case, the Tehsildar opined that in the present case too, the petitioner be granted pattas in relation to the property in dispute except plots Nos. 76, 79 and 80 that were found to be separate and not adequately developed.
30. The said report dated 07.09.1959 had been nothing but an expression of opinion by the Tehsildar for the purpose of consideration of relevant authorities and cannot be considered decisive of the matter. Moreover, the contents of said report, on facts and in substance, operate rather against the claim of the petitioner. It has undoubtedly come on record that the petitioner failed to develop all the plots so as to fulfill the conditions whereby a grant could have been made to him. Mere putting up a few temporary structures (sic) on 3-4 plots or some fencing (sic) could hardly have been construed sufficient or adequate fulfillment of the conditions of authorisation. In relation to plots Nos. 76, 79 and 80, the Tehsildar himself was clear that the petitioner was not entitled to be granted the title. In fact, in the report as made by the Commissioner appointed by this Court, it has further come on record that 30 years before the date of report (made in the year 1989), there came existing the bus stand of the State Road Transport Corporation on plot No. 80 and on the larger part of plot No. 79.
31. In the given state of affairs, the Collector and the State Government cannot be said to have committed any illegality if they did not agree with the opinion stated by the Tehsildar and declined to grant the title to the petitioner. The obvious consequence of not granting the title to the petitioner was that the land in question was to remain the Government land. If it has remained so and dealt with accordingly, no fault could be assigned to the respondents.
32. The main plank of the submissions of the learned Counsel for the petitioner had been that in any case, the petitioner was in lawful possession of the property in dispute and could not have been dispossessed without taking recourse to due process of law. The decisions as relied upon by the learned Counsel are clear on the point and settled it is that a person in lawful possession of the property cannot be dispossessed except in accordance with the procedure established by law but then, in the present case, the shortcomings and lacunae in the case of the petitioner are too many wherefor the said principles do not come to his rescue.
33. In the first place, the case as set up by the petitioner of unlawful dispossession is itself so much indefinite and uncertain that one is only left to speculate if the petitioner had at all been in settled possession of the land in question and if so, as to when was he dispossessed and by whom. Though the petitioner has claimed recovery of possession but then, in the entire length and breadth of petition, it has not been candidly stated as to when did the petitioner lose the possession of the property in dispute.
34. Though the learned Counsel for the petitioner attempted to submit that the petitioner is not in a position to state the exact date of dispossession but then, the frame of this petition indicates the things much adverse to the petitioner. After a reference to the letter addressed by his father on 26.02.1951 in paragraph 4 of the petition, the petitioner has averred in paragraph 5 that he had deposited kuchcha pattas for obtaining pucca one after submission of the reports and recommendations and, according to the petitioner, 'in the meantime', the respondents Nos. 3,4,7 & 8 made rampage over the property in dispute, removed the existing construction and illegally took over possession of the plots. Thereafter it has been alleged that the incident was also flashed in two local newspapers; and copies have been filed of such newspapers of the month of December 1986. The petitioner has, however, omitted to state as to when did he deposit the kuchcha pattas and so far the alleged reports and recommendations are concerned, the last report/recommendation, referred in the petition as Annexure-B, had been made on 07.09.1959.
35. So far the said newspaper reports of the year 1986 (Annexure-D) are concerned, therein essentially the questions had been raised about the authorities taking up construction activities during night hours on certain parcels of land without taking appropriate decisions and despite pendency of dispute. It is difficult to co-relate them with the other averments as taken in the petition; and the said reports are hardly of any relevance or of any probative value on the root question as to when did the petitioner lose possession of the property in dispute. On the other hand, in the frame of the petition and looking to the averments as taken in paragraphs 4 and 5 and the surrounding events referred, pertaining to the year 1951 when the petitioner's father addressed the communication Annexure-C; and pertaining to the year 1959 when the Tehsildar lastly stated the report Annexure-B, the only possible deduction is that the petitioner had lost the possession somewhere around the year 1960! This deduction is strengthened by the contents of the order dated 10.02.1972 wherefrom it appears that while issuing notices in the year 1960, certain other persons were also given the notices for they were in possession of the property in dispute.
36. Further, as per the averments of the petitioner, the Municipal Board had taken over possession of the property in dispute pursuant to the orders passed by the Collector in the years 1972-1973. Even going by such averments and taking them on their face value, apparent it is that by the years 1972- 1973 not only had the petitioner lost the possession but further, the Municipal Board had entered into the possession. Moreover, indisputable it is that several third party rights did come into existence before the petitioner chose to take up the matter in this writ petition.
37. In the aforesaid circumstances and in the given state of affairs, the objection on behalf of the respondents that the petition had been filed with vague averments and that the petitioner had not only lost the possession long back but had also lost limitation for filing the suit for recovery of possession, cannot be dubbed as baseless; and there appears no justification to issue any writ, order or direction in this petition filed only in the year 1989. Inconsistency, incongruity and oddity in the petitioner's case is at the heights when it is noticed from the document as filed by the respondent No. 10 that the patta was granted in favour of his predecessor in the year 1952 and thereafter another strip of land was allotted in the year 1957. If the land as belonging to the respondent No. 10 be at all considered comprised in the plots of land referred by the petitioner, the only inference would be that the petitioner had lost possession way back in the year 1952!
38. Put in a nutshell, when the petitioner has put forward vague and uncertain averments; and in any event, had apparently been dispossessed long back and third party rights had been created decades before filing of the petition, the claim for restoration of possession cannot be countenanced in this belatedly filed writ petition.
39. Even the contentions that the respondents have not taken recourse to law remain unconvincing and rather frail in the fact situation of this case. From the incomplete averments as taken in the petition and from the documents as filed, this much is apparent that the Collector, Churu passed an order way back on 30.05.1963 seeking to resume the land in question with forfeiture of the amount deposited. The petitioner has chosen not to place the said order dated 30.05.1963 on record. It seems that the said order was challenged in a revision petition before the Board of Revenue and though an objection was raised against maintainability of the revision petition, the Board proceeded to hold the same maintainable per Section 9 of the Rajasthan Land Revenue Act. Leaving such aspects relating to the maintainability of the action before the Board aside, what is noticed from the final order dated 24.05.1968 (Annexure-E) as passed in the said revision petition is that the Board proceeded to remand the matter to the Collector to re-write the judgment after hearing the parties and to cite the rules and regulations under which such resumption of land was considered justified. Even from the said order dated 24.05.1968 (Annexure-E), it is not borne out if the Board had otherwise pronounced in favour of the petitioner about some existing legal right or title. Be that as it may, other material on record makes it clear that pursuant to the order as passed by the Board on 24.05.1968, the learned Collector took up the matter in Case No. 232/1968; examined the entire record; heard the arguments of the counsel appearing for the petitioner; and passed the detailed order dated 10.02.1972.
40. Though the petitioner has chosen not to place on record a copy of the order passed by the Collector, Churu on 10.02.1972 either; however, the copies of the said order have been filed as Annexure-R/4/10 by the respondent Municipal Board and as Annexure R/1 by the State. In the said order dated 10.02.1972, the learned Collector referred to the aforesaid authorisation granted to the petitioner and his father and to the other background facts including the one that time for compliance was extended until the month of December 1951. The learned Collector further pointed out that though various reports were made in the matter including the one dated 07.04.1952 as made by the Gajdhar and another dated 20.05.1952 as made by the Tehsildar proposing grant of pattas but the Assistant Collector did not agree and recommended resumption; and the then Collector also made similar recommendation on 25.08.1952. The learned Collector, thereafter, referred to the report dated 24.08.1953 as made by the Tehsildar stating that except plot No. 80, abadi had come up on the other plots whereupon the Commissioner's office enquired on 02.02.1954 about the extent of constructions and then, a report was made by the Nayab Tehsildar on 07.04.1954 pointing out existence of a few constructions on some of the plots but 11 plots being totally vacant. The learned Collector noticed that the Tehsildar, Churu thereafter recommended resumption of all the plots whereupon the Revenue Commissioner ordered on 02.04.1955 to issue show cause notice as to why resumption be not made for nonfulfillment of the conditions. The learned Collector pointed out that no reply was given of the notice but the Commissioner's office further asked for the report about the condition and location of the land whereupon another report was made on 30.07.1956 and thereafter the file surfaced only on 21.06.1960; and since other persons were found in possession, all were called upon and heard; and thereafter the order was passed on 31.05.1963 directing that the land was required to developed in abadi and the trespassers were to be evicted. The learned Collector pointed out that the said order dated 31.05.1963 was challenged in revision wherein the Board directed passing of the order afresh stating the rules and regulations to show as to how resumption was justified; and that pursuant to such directions, the arguments of the counsel for the petitioner were heard.
41. It was suggested before the Collector on behalf of the petitioner with reference to a file pertaining to plots Nos. 83, 84, 87 and 88 that raising of a few temporary structures was treated as sufficient compliance but the learned Collector observed that in the present case, despite granting time until the month of December 1951, 14 plots remained totally vacant and certain temporary structures were put upon 2 plots. The learned Collector found inapt the reference to the file pertaining to the other plots Nos. 83 etc. and observed that for the petitioner having failed to carry out the requirements, the amount deposited shall stand forfeited and the land would remain in the ownership of the Government. The arguments as advanced before the learned Collector of protection of rights in the property were negatived with the observation that the petitioner had never been conferred any ownership of the property in dispute; and that it were only an agreement whereby title could have been conferred on fulfillment of the conditions. The learned Collector also referred to the provisions of Section 39 of the Indian Contract Act to say that for non-compliance of the conditions, the land was liable to be resumed and handed over to the Municipal Board with forfeiture of the amount. The said order dated 10.02.1972 was sent as recommendation by the Collector to the State Government in its Revenue Department and, on 01.09.1972, the State Government stated its agreement with the opinion formed and conclusions drawn by the Collector.
42. The aforesaid orders and the proceedings clearly show that notices were issued and petitioner was heard and with reference to the record, specific conclusion was drawn that for his having failed to fulfill the conditions of authorisation, the petitioner was not entitled to be granted the title to the property in question; and the Government agreed that the property was liable to be resumed and handed over to the Municipal Board. In the wake of such orders, particularly the order dated 10.02.1972 as passed by the Collector, Churu and the order dated 01.09.1972 as passed by the State Government, it cannot be said that the respondents proceeded against the petitioner wholly arbitrarily or absolutely beyond the law or that they omitted to take recourse to due process of law.
43. In view of the aforesaid and looking to the peculiar fact situation of the present case, the decisions as relied upon by the learned Counsel for the petitioner are hardly of any support to the petitioner. It may, however, be pointed out that the decision in Maharaja Dharmender Prasad Singh's case (supra) on the other principles that cancellation or revocation of a permission for development of land by a private party is incidental or supplemental to the grant of permission; and that cancellation of permission for violation of covenant may not be invalid, essentially operates against the title claim of the petitioner. Added feature in the present case has been the specific term in the authorisation itself that on failure to fulfill the conditions, the property in dispute was to remain the Government land with forfeiture of deposit.
44. Looking to the overall circumstances, the present one cannot be said to be a case of deprivation of property in an unlawful manner. In any case, so far the question of possession is concerned, as already noticed, the petitioner had lost the same long before. If the petitioner yet chose not to take recourse to the appropriate proceedings for recovery of possession at the relevant point of time, hardly any case is made out worth consideration in this writ petition filed as late as in the year 1989.
45. Though the learned Counsel for the petitioner has made submissions that the Board of Revenue did not approve of the proceedings adopted by the Collector but such submissions have their own shortcomings. As noticed, in the order dated 24.05.1968, the Board of Revenue merely directed the Collector to pass an order afresh but did not otherwise rule on merits in favour of the petitioner. Interestingly, in the next order dated 14.07.1978, the Board, even while commenting adversely on the order dated 10.02.1972 that the authority and the procedure for resumption were not indicated, left the matter relating to the said order at that only with the observations that any action taken thereunder by the State Government would be a separate matter between the applicant and the Government; and rather sounded an advice to the petitioner that if any action had been taken by the State Government in pursuance of those recommendations, he should agitate the matter with the State Government directly or seek other constitutional remedies. In the said decision dated 14.07.1978, the Board proceeded to set aside only the letter bearing No. 3291-92 dated 31.12.1973 as issued by the Collector, Churu. The said order dated 14.07.1978, in its relevant paragraphs, reads as under:
8. The Board in its directions dated 24.5.68 had specifically asked the Collector Churu to re-write his order discussing the rules and law under which the land could be resumed.
9. The letter dated 10.2.72 to the State Government does not indicate the authority and the procedure under which the land should be resumed; but we are not concerned with this letter since any action taken thereunder by the State Government would be a separate matter between the applicant and the State Government.
10. The letter and order dated 31.12.73 to the applicant is with reference to the letter dated 10.2.72 and again does not quote the authority under which the Collector resumed the land. This letter/order is clearly illegal and against the specific directions of the Board. The order No. 3291-92 dated 31.12.73 is therefore set aside.
11. The recommendations made by the Collector Churu to the State Government vide his order dated 10.2.72, is a matter for the State Government to consider and if any action has been taken by the State Government in pursuance of these recommendations, then the applicant is advised to agitate the matter with the State Government directly or to seek other constitutional remedies open to him. With these observations the revision is partially accepted in that the letter No. 3291-92 dated 31.12.73 of the Collector Churu is set aside.
46. Thus, even while commenting adversely on the order dated 10.02.1972, the Board consciously chose not to interfere with the same leaving the matter to be agitated with the State Government or in other forum. The fact of the matter was that such communication dated 10.02.1972 had already been approved by the State Government way back on 01.09.1972, i.e., much before passing of the said order by the Board on 14.07.1978. Though the Board proceeded to set aside the so called order dated 31.12.1973 bearing No. 3291-92 (copy whereof has been placed on record with the reply filed by the State Government as Annexure R/4) but the same had only been of a communication to the petitioner that the land had been handed over to the Municipal Board and the deposited amount was not required to be returned. This Court is unable to find any legal and logical consequence in favour of the petitioner for mere setting aside of such a communication.
47. On their substance, even if the orders as passed by the Board of Revenue are taken as they are, nothing much turns upon in favour of the petitioner. On the contrary, the resultant position operates rather against the petitioner, for if seeking to assert any right, the petitioner ought to have taken up the appropriate proceedings at appropriate stage.
48. It appears that instead of taking recourse to the appropriate legal proceedings at the appropriate stage, the petitioner firstly adopted the proceedings in revision before the Board and then, chose merely to submit a so-called review application before the State Government on 18.11.1978 (Annexure R.4/1) and remained rest contended with it. In that regard too, it is difficult to find if the petitioner pursued and prosecuted his case before the State Government from the year 1978 until the year 1988 when a so-called notice was got served through lawyer. Some cryptic averments in the petition about making 'numerous representations' are neither here nor there; not a single copy of any such representation has been placed on record.
49. Apart from the above, the petitioner has not been forthright either. The petition is found wanting in material particulars and is replete with inconsistent, incomplete, and incongruous averments; rather the relevant facts have been avoided in an inexplicable manner. As noticed, the very fundamental fact as to when did the petitioner lose possession has been left in obscurity. The petitioner has suggested as if the Collector 'suddenly' passed the order dated 30.05.1963 but it is borne out from the record that such an order was passed after notice and hearing. The said order dated 30.05.1963, which was challenged in the so-called revision petition before the Board of Revenue, has not been placed on record. Even the order dated 10.02.1972 as passed by the Collector regarding which several arguments were addressed before the Court in challenge, was not placed on record by the petitioner. Though a relief has been claimed that all the orders passed contrary to the right, title and interest of the petitioner be quashed but then, without filing copies of the relevant orders, the petitioner does not appear justified in claiming such relief. The petitioner has even not disclosed the fact about passing of the order dated 01.09.1972 by the State Government, has not stated all the facts relating to his filing of the so-called review application before the State Government, and has not stated even the fact of filing of a civil suit.
50. The petition further suffers from the vice of non-joinder of necessary parties inasmuch as several reckless allegations have been levelled against the authorities including the Collector, Chairperson of the Municipal Board, Superintendent of Police etc. even of 'clandestine dealings' 'malafides', and 'personal wrongful gains' but then, such persons have not been impleaded personally as the parties to the writ petition.
51. From whatever angle the petition is looked at, the same appears to be only of a late and cursory attempt to somehow resurrect a stale case without existence of any legal right in the petitioner. There is no quarrel with the proposition that a person cannot be deprived of his property without authority of law and without adopting due process of law; however, in the present case, this Court is unable to find a clear case if the petitioner at all had any existing right to the property in question or that he was deprived of the property without authority of law and without recourse to the due process of law..
52. For want of clear case of an existing legal right and then, for delay and laches; for vague, uncertain and incongruous pleadings much wanting in material particulars; and for the overall facts and circumstances noticed above, there appears no reason or justification to exercise extra ordinary writ jurisdiction in favour of the petitioner.
53. The petition stands dismissed; however, in the circumstances, without any order as to costs.