Danji Vs. State of Rajasthan and ors. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - so far no decision for allotment was taken, therefore, the appeal was held premature and dismissed, vide order dated 2-8-1976. 4. the tehsildar (revenue), abu road, after receiving back the file, has issued notice to the petitioner and after hearing the petitioner came to the conclusion that the land was given to the petitioner by the municipal board in the year 1965. there the petitioner is running a hotel, which provides good facilities to the passengers and there is no objection in running the same. therefore, it was not an independent exercise of jurisdiction and, is, therefore, bad. during in the currency of such order any alienation by the municipal board is bad. 7132 dated 28-2-1976 written to the tehsildar, abu road clearly indicated that the land in question comes within the road boundary limits of the p.orderbhagwati prasad, j.1. petitioner in this writ petition has raised a grievance regarding 500 sq. meters of land, which was allotted to him by a resolution of the municipal board, mt. abu dated 29-6-1964 for 7 years vide annex. 1. after the land was allotted to petitioner vide annex. 1 he was handed over the possession of the land on 1-4-1966. petitioner after obtaining the possession of the land started running a tea stall on the said land.2. a notice was issued by the tahsildar, abu road to petitioner enquiring about the allotment of the land to petitioner. copy of the notice has been submitted by the petitioner as annex. 3. petitioner appeared before the tehsildar pursuant to the notice annex. 3 and submitted about the allotment of land and the possession given to him. thetehsildar (revenue) abu road initiated proceedings against the petitioner. these proceedings concluded by the tehsildar by observing that the land was given to the petitioner by the municipal board on lease of 7 years. the tahsildar also held that the land belongs to the state government though the same is situated within the municipal limits. the tehsildar observed that the land can be allotted to the petitioner and it is not necessary to order the dispossession. the order of the tehsildar has been produced on record as annex.4.3. the chief manager, delwara temple, mt. abu filed an appeal against the order annex. 4. the collector, sirohi observed that the appeal is premature as there is only a recommendation for regularisation. so far no decision for allotment was taken, therefore, the appeal was held premature and dismissed, vide order dated 2-8-1976.4. the tehsildar (revenue), abu road, after receiving back the file, has issued notice to the petitioner and after hearing the petitioner came to the conclusion that the land was given to the petitioner by the municipal board in the year 1965. there the petitioner is running a hotel, which provides good facilities to the passengers and there is no objection in running the same. in these proceedings, the municipal board also admitted that the land is situated within its jurisdiction. in these proceedings, the tehsildar concluded that the possession of the petitioner be regularised. this was in consonance with the earlier decision taken by the tehsildar. the order of the tehsildar dated 28-4-1977 has been produced with the petition as annex. 5.5. the tehsildar sent the file to the s.d.o. (revenue), mt. abu, the s.d.o. (revenue) concurred with the tehsildar and submitted the file for regularisation to the collector, sirohi. the collector, sirohi did not issue any notice to any of the parties including the petitioner and gave a finding that the land is situated within the municipal limits, therefore, according to the notification no.f.6(17) raj./va/71 dated 3-7-1971 the same cannot be regularised and proceedings be initiated against the petitioner. petitioner has submitted an uncertified copy of the order of the collector, sirohi as annex.6 as he could not get a certified copy of the same.6. the tehsildar (revenue) after receipt of the order of the collector again initiatedproceedings and he observed that the land cannot be regularised pursuant to the state government notification/direction dated 3-7-1971. after observing this petitioner's possession was held to be unauthorised and he was declared as trespasser. it was directed that petitioner be evicted from the land in question. the order of the tehsildar dated 7-12-1978 has been produced as annex.7.7. petitioner has contended that this order was passed by the tehsildar in pursuance of the order of the collector. the order was passed at the back of petitioner, because no notice was issued. petitioner prayed to the collector that instead of hearing the case himself, he may make a reference to the board of revenue for consideration of the case of petitioner. the collector, after hearing the petitioner, gave a finding that the land is situated within the jurisdiction of the municipal board, mt. abu, therefore, the case of the petitioner cannot be considered within the ambit of rule 20 of the rajasthan land revenue (allotment for agricultural purposes) rules of 1970 (referred to hereinafter as 'the rules of 1970'). the collector upheld the order of the tehsildar (revenue), abu road, vide its order dated 3-3-1980, produced with the petition as annex.8.8. petitioner preferred a revision petition before the board of revenue. the board of revenue refused indulgence to the petitioner by observing that the petitioner had not preferred any appeal against the order of the tehsildar and in view thereof the power of malting reference cannot be used to give benefit to the individual party. the revision petition was dismissed by the board of revenue vide its order dated 17-10-1986 produced with the petition as annex. 9.9. while these proceedings were going on the rajasthan land revenue (allotment, conversion and regularisation of agricultural land for residential and commercial purposes in urban areas) rules, 1981 (referred to hereinafter as 'the rules of 1981') came into being. petitioner submitted an application for regularisation of his land under the aforesaid rules. his application was registered and he was asked to submit evidence in this regard. a notice was issued to the petitioner which has been produced as annex. 10 with the petition. vide notice dated 11-3-1982 petitioner was required to deposit regularisation and conversion fees before 26-3-1982. a copy of this notice has been produced as annex. 11, thereafter,nothing was done and petitioner enquired from the office of the s.d.o. by filing an application which has been produced with petition as annex. 12. petitioner was informed that his application under the rules of 1981 has been dismissed on 14-3-1986. this intimation was given to the petitioner on 23-5-1987. a copy of this intimation has been produced as annex. 13. petitioner then obtained a copy of the order of the s.d.o. dated 14-3-1986. the same is produced as annex. 14.10. it has been contended by petitioner that the order was passed by the tehsildar without hearing the petitioner and was passed on the basis of the letter of the deputy town planner, jodhpur dated 20/ 21-8-1982 and thus, the petitioner has claimed that the order annex.7 passed by the tehsildar dated 7-12-1978, order annex. 8 passed by the collector dated 3-3-1980, order annex. 9 passed by the board of revenue dated 17-10-1986 and order annex. 14 passed by the s.d.o. dated 14-3-1986 be quashed.11. petitioner has stated that these orders deserve to be quashed because the land in question is situated within the municipal limits of municipal board, mt. abu. that being the position, the municipality allotted this land to the petitioner and the tehsildar (revenue) abu road and s.d.o. and the collector, sirohi had no authority or jurisdiction to initiate any proceedings under the provisions contained in section 91 of the rajasthan land revenue act, 1956 (referred to hereinafter as 'the act of 1956'). petitioner further contended that the order annex.6 dated 31-5-1978 passed by the collector was passed without hearing the petitioner. therefore, the same is violation of the principles of natural justice.12. it has further been contended by the petitioner that the order of the tehsildar dated 7-12-1978 has been passed taking into consideration the order annex. 6 dated 31-5-1978 of the collector. therefore, it was not an independent exercise of jurisdiction and, is, therefore, bad. petitioner has claimed that the board of revenue in dismissing the revision petition of the petitioner has erred in law by merely holding that petitioner has not preferred an appeal and instead filed the application before the collector for making a reference. it has been submitted by the petitioner that the remedy of reference is preferred only when no regular remedy hasbeen provided. therefore, on this count the petitioner could not have been denied the order of reference.13. petitioner has said that there had been a policy of the respondents to regularise the old possessions. petitioner could not have been denied regularisation of the land. in the petition, the petitioner has also challenged bye-law 52 of the municipal board, mt. abu but no arguments in relation thereto were addressed at the time of hearing. therefore, that question is not being gone into.14. respondent no. 7 made an application for being impleaded as a party in the writ petition. this court vide its order dated 19-12-1990 ordered impleadment of respondent no. 7 as party respondent to the petition as the petitioner had not objected the application. the freshly added respondent no. 7 filed reply to the writ petition and has raised preliminary objections about the maintainability of the writ petition.15. it has been stated that vide annex. rule 7/1 sirohi state had issued a notification no. 50 dated 28-11-1947 which was published in the sirohi state gazette dated 1-12-1947, whereby a prohibition was imposed on sale, mortgage and any other kind of alienation of any immovable property situated in village delwara. it was ordered that any transaction in contravention of the said order would be null and void.16. the answering respondent has claimed that the order of the municipal board, annex. 1, was in contravention of the order of the state of sirohi, which was the predecessor of the state of rajasthan and, therefore, ii had the authority to issue such orders. during in the currency of such order any alienation by the municipal board is bad.17. the land in question lies in the vicinity of delwara jain swetamber temple. the state government vide its letter no. 5197 dated 24-2-1966, annex. r.7/2 had precluded the municipal board from alienating the land and, therefore, the alienation of land was against the prohibitory orders of the state government and, therefore, not enforceable.18. the assistant land records officer vide his judgment dated 22-4-1970 has held that the disputed land khasra no. 13 occupied by the petitioner was part of khasra no. 14 belonging to the answering respondent. itshould be corrected from bilanam and be entered in the name of answering respondent. in view thereof the petitioner was a clear trespasser over the land in question and was liable to be evicted.19. it has further been claimed by the answering respondent that the order of the tehsildar dated 7-12-1978 which has declared the petitioner as trespasser over khasra no. 13 and ordered his eviction has become final. no appeal was filed against this order. in the present writ petition which was filed in the year 1987 the order dated 7-12-1978 cannot be challenged.20. petitioner has not disclosed in the writ petition that after his application for regularisation and conversion was rejected by annex. 14 dated 14-3-1986 and his revision petition was dismissed on 17-10-1986 vide annex.9, he submitted an application dated 19-4-1987 to the collector, sirohi presumably for regularisation but the same was rejected by the collector vide his order dated 25-6-1987 annex.r.7/7.21. apart from the aforesaid preliminary objections, the answering respondent has also contended that the municipal board, mt. abu had no authority to allot the land to the petitioner. it has been further averred that the municipal board vide its letter no. 7132 dated 28-2-1976 written to the tehsildar, abu road clearly indicated that the land in question comes within the road boundary limits of the p.w.d. it is on the main road and, therefore, the same could not be regularised and the petitioner be evicted therefrom.22. it has further been contended that though the land was situated in the municipal area but was not municipal land at all. it was agricultural land for which the collector had jurisdiction and was competent to pass order 31-5-1978 annex.6. this order was passed in administrative and executive capacity and not in judicial capacity. therefore, there is no question of any opportunity of hearing being afforded to the petitioner.23. it has been contended that the municipal board had no authority to lease out the land and allow construction in defiance of the state government order dated 24-2-1976. the land was a government land situated in municipal area and the tehsildar is competent enough to order eviction of the petitioner, therefore, the order passed by the tehsildar dated 17-10-1978 cannot be struck down.24. the land was wrongly allotted to the petitioner, the land could not have been allotted to the petitioner. in any case the petitioner was granted a lease for 7 years and his lease has come to an end. there was no extension or renewal of the lease. thus, after the expiry of the lease period the petitioner has become a trespasser.25. a reply has also been filed on behalf of the respondents no. 1, 2, 4, 5 and 6. these respondents are state functionaries and they have claimed that the disputed land was a government land and the municipal board, mt. abu had no right to lease out this land to any one. further it has been contended on behalf of these respondents that the tehsildar, abu road was not right in recommending the case of the petitioner for regularisation. such orders of regularisation are orders without jurisdiction and, therefore, such orders, which are without jurisdiction, cannot be enforced. the recommendations of the tehsildar has been turned down by the collector and, therefore, they have lost their significance.26. it has also been contended by the answering state functionaries that it would be wrong to say that the order dated 7-12-1978, passed by the tehsildar, abu road was not passed after hearing the petitioner. petitioner was very much heard. it was observed in the order that the land being in municipal area cannot be covered by the circular dated 3-7-1971. petitioner could have availed the remedy of appeal against this order but instead of filing an appeal the petitioner prayed for making a reference which was a mistake on the part of the petitioner and thus, the petitioner had pursued a wrong remedy. further the land sought to be regularised by the petitioner was objected by the deputy town planner, jodhpur vide its letter dated 20/21-8-1982 and held that the land claimed by the petitioner is not to be converted. thus, there being an objection on behalf of the town planning department, the land could not have been converted.27. respondent no. 3 municipal board has also filed a return and has contested that the land in dispute was allotted to the petitioner by the answering respondent no. 3 for 7 years. petitioner by seeking regularisation of the land from the revenue authorities has challenged the title of the answering respondent no. 3 who was the lessor of thepetitioner and in challenging the title of the answering respondent no. 3 the petitioner has hit at his own base.28. the answering respondent no. 3 has further stated that the writ petition involves several disputed questions of fact regarding the nature of the land, ownership of the land etc. such disputed questions of fact cannot be decided in proceedings under article 226 of the constitution of india. therefore, the writ petition filed by the petitioner deserves to be dismissed on this ground also.29. the municipal board has also prayed that the writ petition is liable to be dismissed on the count of misjoinder of causes of action. the petitioner has challenged the orders which he could have appealed against. the order refusing conversion, orders passed under section 91 of the act of 1956 and such a composite petition is not maintainable. the petitioner has violated the lease given to him and he has encroached upon more land which he promised that he would remove vide annex. r.3/2. the petitioner was not permitted to raise permanent construction but he has raised so which is in violation of the permission granted to the petitioner. the answering respondents have stressed that the tehsildar, abu road was not competent to recommend any regularisation in favour of the petitioner. according to the answering respondent, the application for land conversion was rightly dismissed by the s.d.o.30. a rejoinder has been filed by the petitioner and has claimed that the respondent no. 7 is not a legal person. no proceedings can be taken in the name of the trust. if the land in question belongs to the answering respondent no. 7 then the proceedings under section 91 of the act of 1956 could not have been initiated because they can only be initiated in relation to the lands owned by the state government. it has further been averred on behalf of the petitioner that order annex. r.7/1 came to an end after coming into force of the constitution of india. it has further been contended that annex. r.7/2 came into existence in 1966 whereas the land in question was allotted to the petitioner in the year 1964. therefore, such prohibition has no bearing.31. apart from the fact that the parties were heard through counsel they have also filed written submissions.32. in the written submissions filed bythe petitioner, it has been contended that the municipal board vide resolution dated 29-9-1964 has permitted the lease of 500 sq.ft. of the land at rent of rs. 2/- per sq. yard per year near bus stand. possession of the land was handed over to the petitioner on 1-4-1964. rent was received by the municipal board from the petitioner upto the year 1974. a resolution has also been relied upon by the petitioner that a recommendation was made by the revenue authorities that if the land is regularised in favour of the petitioner, then they have no objection. the petitioner further contends that though no lease deed was executed but, rent was received, on the basis of oral agreement, coupled with handing over of possession. initially the land was leased out for 7 years but the lease became monthly lease after expiry of the period of these 7 years. the petitioner has relied upon air 1957 cal 625, air 1944 cal 84 and air 1991 sc 1551.33. the petitioner has further submitted that the tensildar, mt. abu sought a report from the patwari regarding the status of the land, whether it is a nazul land or agricultural land. the municipal board vide its letter dated 19-5-1974 informed the tehsildar, delwara that delwara is within the municipal limits and that all lands situated within the municipal limits were declared as nazul abadi lands since 1955 and, therefore, it should be presumed that the land given to the petitioner was abadi land.34. it has further been contended on behalf of the petitioner that even otherwise all government nazul lands within the limits of the municipal board, mt. abu were placed at the disposal of the municipal board, mt. abu vide government of rajasthan notification dated 8-10-1959 and once the nazul land has been placed at the disposal of the municipal board, the municipal board was competent to create a lease. 7 years' lease was created by the municipal board for which no previous sanction was required. the tenancy rights have in fact been created in favour of the petitioner.35. the petitioner has further contended that as and when a tenancy right is created unless it is terminated the petitioner could not be treated as a trespasser. the lease was created in terms of section 107 of the transfer of property act by oral agreement accompanied by delivery of possession. therefore, the lease cannot be said to be illegal andunless such lease is terminated, the petitioner cannot be treated as a trespasser. the petitioner has contended that nazul land has been defined in the rajasthan municipalities act which means abadi land within the limit of a municipality or panchayat circle. since the land was within the limits of the municipal board and was given by the municipal board a judicial notice is also canvassed to be taken that delwara temple exists in village delwara for centuries. thus, the area of the land covered by the delwara temple cannot be considered to be an area of the agricultural lands because the land is not being used as agricultural land. thus, it has ceased to be an agricultural land. a presumption has to be drawn in this regard and the land has to be held to be nazul land.36. the possession was given to the petitioner of the land situated near the bus stand. the bus stand is also admitted to be situated on non-agricultural land. therefore, the entries in the revenue record relied upon by the respondents cannot be pressed into service. in any case, a person who has been inducted as a lessee cannot be summarily evicted under section 91 of the rajasthan land revenue act. in any case the nazul committee of the municipal board can consider the case of the petitioner for regularisation.37. the answering respondent has also filed written-submissions and has contended that the provisions of the transfer of property act cannot be pressed into service. the land was agricultural land and by virtue of section 117 of the transfer of property act such act has no application unless notified by the state government. no notification of the application of chapter v of the transfer of property act has been issued by the state government. therefore, the provisions of the transfer of property act have no application and in this background the petitioner cannot claim that he is a tenant and rights as a tenant have been created on him on the strength of the cases relied upon by him, namely, air 1957 cal 625, air 1944 cal 84 and air 1991 sc 1551. these cases related to non-agricultural lands whereas the case of the petitioner is squarely within the ambit of the scope of agricultural land.38. the petitioner himself is not sure of his position. he has not only sought regularisation of his possession under government order/circular dated 3-7-1971 dated1-8-1983 (annex.1) but he has claimed to have deposited fees for conversion of the land under the rajasthan land revenue (allotment, conversion and regularisation of agricultural land for residential and commercial purposes in urban area) rules, 1981. therefore, it is clear that he has been asking for conversion of the land and he has taken steps in this regard also. once the petitioner applied for conversion of the land, then he presumes that the land is agricultural land. if the petitioner takes this stand in one breath and in the next breath he contends that land was given to the petitioner by the municipal board as nazul land then it is an enigmatic situation. these two stands cut the basis of the argument of the petitioner.39. the petitioner has tried to blow hot and cold together. in this view of the matter the question becomes highly disputed as to what is the true character of the land, whether it is an agricultural land or nazul land. land revenue records have been produced by the respondents and the state authorities have also contended that the land is an agricultural land. considering this the revenue authorities have rightly proceeded in the matter. the petitioner himself has not raised any such dispute before the revenue authorities that they are not competent to adjudicate in relation to the land in question because it is not an agricultural land. once the petitioner submitted himself to the jurisdiction of the revenue authorities and permitted the orders of the tehsildar to become final, by not challenging the same, before the hierarchy of revenue courts, then by merely making an application for referring the matter to the board of revenue, it cannot be said that the order which has become final can be reopened in the fashion as desired by the petitioner. having permitted to become final he cannot now challenge the same in the writ petition. the mutation of the land was sanctioned in favour of the municipality on 4-6-1991 and prior to that the municipal board had no right to create a lease in favour of the petitioner. in this view of the matter also, no rights accrued to the petitioner.40. i have considered the rival submissions of the learned counsel for the parties and have perused the record.41. from the pleadings, arguments and the written submissions what stands outboldly is the question about the nature of the land. from the above discussion it is a question of highly disputed character. the petitioner himself has taken two different stands. once wherein he has claimed that the municipal board had admitted it to be a land which is in its area. therefore, it is a nazul land. secondly, by making an application to the revenue authorities for conversion of the land he accepts that it is agricultural land.42. if the petitioner himself is not sure of his stand then it is difficult for this court to determine this question on the basis of the stands of the petitioner himself as to what is the true nature and character of the land. to determine this controversy, this court feels that the writ petition is not a proper remedy available to the petitioner.43. further the petitioner claims tenancy rights over the land. if the land is not a nazul land then no tenancy rights can be said to be accrued to the petitioner in view of the provisions of section 117 of the transfer of property act. if the land is a nazul land then how would the petitioner ask for its conversion for agricultural land.44. today, the municipal board and the state government both are not supporting the petitioner. except for an initial period of 7 years that the petitioner had a lease, he has no continuing legal right/title vested in him. the petitioner permitted the revenue authorities to take action against him under section 91 of the rajasthan land revenue act. he submitted himself to the jurisdiction of the revenue authorities and did not raise any of the questions which he has tried to raise in this writ petition before the revenue authorities, including the board of revenue where the case went up in relation to the reference petition filed by the petitioner himself.45. what has not been contended by the petitioner before the revenue authorities including the board of revenue is sought to be contended before this court in this writ petition. a constitutional court would be slow, when the petitioner ignores to raise the question in the court of first instance, to permit the petitioner to raise the disputed questions of facts. it is also noteworthy that the proceedings under section 91 of the rajasthan land revenue act which culminated against the petitioner were notchallenged by the petitioner in appeal. those orders are also challenged in this writ petition. the orders which are otherwise challengeable, cannot be permitted to be challenged in the writ petition.46. much depends upon what is the status of the petitioner in relation to the land. if the land is a nazul land then it cannot be treated as tenant and whatever has been held by the revenue authorities under section 91 of the act of 1956 will hold the field. if the land is a nazul land then could the municipal board create a lease orally beyond one year. in the instant case the same was created for 7 years without there being a written document. all these questions require a scrutiny of evidence and such kind of exercise requires leading of evidence. in a writ petition all this cannot be legitimately done.47. further the petitioner wants that his application for regularisation of the land which is pending before the municipal board, mt. abu should be considered. if the petitioner is already pursuing a remedy before the municipal board for regularisation of the land then also his pursuing of the present proceedings comes under a cloud because, he is seeking regularisation of the land from the municipal board. that has not been taken up, as informed by the counsel for the petitioner, because the writ petition is pending before this court. simultaneously the petitioner cannot be permitted to take a parallel recourse.48. in the aforesaid circumstances, this court feels that the petitioner is not in a position to establish a clear title on the basis of affidavits. the declaration of the rights of the petitioner is a must before any relief can be granted to him. such determination in exercise of the extraordinary jurisdiction cannot be done. the court is faced with many disputed questions of facts and in this background this court declines to entertain the writ petition on behalf of the petitioner. the remedy of the petitioner lies elsewhere.49. in view of the aforesaid discussion this court refuses to entertain the present writ petition because it involves various questions of facts which are disputed and, therefore, there is no force in this writ petition and the same is, therefore, rejected as not entertainable.

Judgment:
ORDER

Bhagwati Prasad, J.

1. Petitioner in this writ petition has raised a grievance regarding 500 sq. meters of land, which was allotted to him by a resolution of the Municipal Board, Mt. Abu dated 29-6-1964 for 7 years vide Annex. 1. After the land was allotted to petitioner vide Annex. 1 he was handed over the possession of the land on 1-4-1966. Petitioner after obtaining the possession of the land started running a Tea Stall on the said land.

2. A notice was issued by the Tahsildar, Abu Road to petitioner enquiring about the allotment of the land to petitioner. Copy of the notice has been submitted by the petitioner as Annex. 3. Petitioner appeared before the Tehsildar pursuant to the notice Annex. 3 and submitted about the allotment of land and the possession given to him. TheTehsildar (Revenue) Abu Road initiated proceedings against the petitioner. These proceedings concluded by the Tehsildar by observing that the land was given to the petitioner by the Municipal Board on lease of 7 years. The Tahsildar also held that the land belongs to the State Government though the same is situated within the municipal limits. The Tehsildar observed that the land can be allotted to the petitioner and it is not necessary to order the dispossession. The order of the Tehsildar has been produced on record as Annex.4.

3. The Chief Manager, Delwara Temple, Mt. Abu filed an appeal against the order Annex. 4. The Collector, Sirohi observed that the appeal is premature as there is only a recommendation for regularisation. So far no decision for allotment was taken, therefore, the appeal was held premature and dismissed, vide order dated 2-8-1976.

4. The Tehsildar (Revenue), Abu Road, after receiving back the file, has issued notice to the petitioner and after hearing the petitioner came to the conclusion that the land was given to the petitioner by the Municipal Board in the year 1965. There the petitioner is running a hotel, which provides good facilities to the passengers and there is no objection in running the same. In these proceedings, the Municipal Board also admitted that the land is situated within its jurisdiction. In these proceedings, the Tehsildar concluded that the possession of the petitioner be regularised. This was in consonance with the earlier decision taken by the Tehsildar. The order of the Tehsildar dated 28-4-1977 has been produced with the petition as Annex. 5.

5. The Tehsildar sent the file to the S.D.O. (Revenue), Mt. Abu, The S.D.O. (Revenue) concurred with the Tehsildar and submitted the file for regularisation to the Collector, Sirohi. The Collector, Sirohi did not issue any notice to any of the parties including the petitioner and gave a finding that the land is situated within the municipal limits, therefore, according to the notification No.F.6(17) Raj./Va/71 dated 3-7-1971 the same cannot be regularised and proceedings be initiated against the petitioner. Petitioner has submitted an uncertified copy of the order of the Collector, Sirohi as Annex.6 as he could not get a certified copy of the same.

6. The Tehsildar (Revenue) after receipt of the order of the Collector again initiatedproceedings and he observed that the land cannot be regularised pursuant to the State Government Notification/direction dated 3-7-1971. After observing this petitioner's possession was held to be unauthorised and he was declared as trespasser. It was directed that petitioner be evicted from the land in question. The order of the Tehsildar dated 7-12-1978 has been produced as Annex.7.

7. Petitioner has contended that this order was passed by the Tehsildar in pursuance of the order of the Collector. The order was passed at the back of petitioner, because no notice was issued. Petitioner prayed to the Collector that instead of hearing the case himself, he may make a reference to the Board of Revenue for consideration of the case of petitioner. The Collector, after hearing the petitioner, gave a finding that the land is situated within the jurisdiction of the Municipal Board, Mt. Abu, therefore, the case of the petitioner cannot be considered within the ambit of Rule 20 of the Rajasthan Land Revenue (Allotment for Agricultural Purposes) Rules of 1970 (referred to hereinafter as 'the Rules of 1970'). The Collector upheld the order of the Tehsildar (Revenue), Abu Road, vide its order dated 3-3-1980, produced with the petition as Annex.8.

8. Petitioner preferred a revision petition before the Board of Revenue. The Board of Revenue refused indulgence to the petitioner by observing that the petitioner had not preferred any appeal against the order of the Tehsildar and In view thereof the power of malting reference cannot be used to give benefit to the individual party. The revision petition was dismissed by the Board of Revenue vide its order dated 17-10-1986 produced with the petition as Annex. 9.

9. While these proceedings were going on the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas) Rules, 1981 (referred to hereinafter as 'the Rules of 1981') came into being. Petitioner submitted an application for regularisation of his land under the aforesaid rules. His application was registered and he was asked to submit evidence in this regard. A notice was issued to the petitioner which has been produced as Annex. 10 with the petition. Vide notice dated 11-3-1982 petitioner was required to deposit regularisation and conversion fees before 26-3-1982. A copy of this notice has been produced as Annex. 11, Thereafter,nothing was done and petitioner enquired from the office of the S.D.O. by filing an application which has been produced with petition as Annex. 12. Petitioner was informed that his application under the Rules of 1981 has been dismissed on 14-3-1986. This intimation was given to the petitioner on 23-5-1987. A copy of this intimation has been produced as Annex. 13. Petitioner then obtained a copy of the order of the S.D.O. dated 14-3-1986. The same is produced as Annex. 14.

10. It has been contended by petitioner that the order was passed by the Tehsildar without hearing the petitioner and was passed on the basis of the letter of the Deputy Town Planner, Jodhpur dated 20/ 21-8-1982 and thus, the petitioner has claimed that the order Annex.7 passed by the Tehsildar dated 7-12-1978, order Annex. 8 passed by the Collector dated 3-3-1980, order Annex. 9 passed by the Board of Revenue dated 17-10-1986 and order Annex. 14 passed by the S.D.O. dated 14-3-1986 be quashed.

11. Petitioner has stated that these orders deserve to be quashed because the land in question is situated within the municipal limits of Municipal Board, Mt. Abu. That being the position, the Municipality allotted this land to the petitioner and the Tehsildar (Revenue) Abu Road and S.D.O. and the Collector, Sirohi had no authority or jurisdiction to initiate any proceedings under the provisions contained in Section 91 of the Rajasthan Land Revenue Act, 1956 (referred to hereinafter as 'the Act of 1956'). Petitioner further contended that the order Annex.6 dated 31-5-1978 passed by the Collector was passed without hearing the petitioner. Therefore, the same is violation of the principles of natural justice.

12. It has further been contended by the petitioner that the order of the Tehsildar dated 7-12-1978 has been passed taking into consideration the order Annex. 6 dated 31-5-1978 of the Collector. Therefore, it was not an independent exercise of jurisdiction and, is, therefore, bad. Petitioner has claimed that the Board of Revenue in dismissing the revision petition of the petitioner has erred in law by merely holding that petitioner has not preferred an appeal and instead filed the application before the Collector for making a reference. It has been submitted by the petitioner that the remedy of reference is preferred only when no regular remedy hasbeen provided. Therefore, on this count the petitioner could not have been denied the order of reference.

13. Petitioner has said that there had been a policy of the respondents to regularise the old possessions. Petitioner could not have been denied regularisation of the land. In the petition, the petitioner has also challenged bye-law 52 of the Municipal Board, Mt. Abu but no arguments in relation thereto were addressed at the time of hearing. Therefore, that question is not being gone into.

14. Respondent No. 7 made an application for being impleaded as a party in the writ petition. This Court vide its order dated 19-12-1990 ordered impleadment of respondent No. 7 as party respondent to the petition as the petitioner had not objected the application. The freshly added respondent No. 7 filed reply to the writ petition and has raised preliminary objections about the maintainability of the writ petition.

15. It has been stated that vide Annex. Rule 7/1 Sirohi State had issued a Notification No. 50 dated 28-11-1947 which was published in the Sirohi State Gazette dated 1-12-1947, whereby a prohibition was imposed on sale, mortgage and any other kind of alienation of any immovable property situated in village Delwara. It was ordered that any transaction in contravention of the said order would be null and void.

16. The answering respondent has claimed that the order of the Municipal Board, Annex. 1, was in contravention of the order of the State of Sirohi, which was the predecessor of the State of Rajasthan and, therefore, ii had the authority to issue such orders. During in the currency of such order any alienation by the Municipal Board is bad.

17. The land in question lies in the vicinity of Delwara Jain Swetamber Temple. The State Government vide its letter No. 5197 dated 24-2-1966, Annex. R.7/2 had precluded the Municipal Board from alienating the land and, therefore, the alienation of land was against the prohibitory orders of the State Government and, therefore, not enforceable.

18. The Assistant Land Records Officer vide his judgment dated 22-4-1970 has held that the disputed land Khasra No. 13 occupied by the petitioner was part of Khasra No. 14 belonging to the answering respondent. Itshould be corrected from Bilanam and be entered in the name of answering respondent. In view thereof the petitioner was a clear trespasser over the land in question and was liable to be evicted.

19. It has further been claimed by the answering respondent that the order of the Tehsildar dated 7-12-1978 which has declared the petitioner as trespasser over Khasra No. 13 and ordered his eviction has become final. No appeal was filed against this order. In the present writ petition which was filed in the year 1987 the order dated 7-12-1978 cannot be challenged.

20. Petitioner has not disclosed in the writ petition that after his application for regularisation and conversion was rejected by Annex. 14 dated 14-3-1986 and his revision petition was dismissed on 17-10-1986 vide Annex.9, he submitted an application dated 19-4-1987 to the Collector, Sirohi presumably for regularisation but the same was rejected by the Collector vide his order dated 25-6-1987 Annex.R.7/7.

21. Apart from the aforesaid preliminary objections, the answering respondent has also contended that the Municipal Board, Mt. Abu had no authority to allot the land to the petitioner. It has been further averred that the Municipal Board vide its letter No. 7132 dated 28-2-1976 written to the Tehsildar, Abu Road clearly indicated that the land in question comes within the road boundary limits of the P.W.D. It is on the main road and, therefore, the same could not be regularised and the petitioner be evicted therefrom.

22. It has further been contended that though the land was situated in the municipal area but was not municipal land at all. It was agricultural land for which the Collector had jurisdiction and was competent to pass order 31-5-1978 Annex.6. This order was passed in administrative and executive capacity and not in judicial capacity. Therefore, there is no question of any opportunity of hearing being afforded to the petitioner.

23. It has been contended that the Municipal Board had no authority to lease out the land and allow construction in defiance of the State Government order dated 24-2-1976. The land was a Government land situated in municipal area and the Tehsildar is competent enough to order eviction of the petitioner, Therefore, the order passed by the Tehsildar dated 17-10-1978 cannot be struck down.

24. The land was wrongly allotted to the petitioner, the land could not have been allotted to the petitioner. In any case the petitioner was granted a lease for 7 years and his lease has come to an end. There was no extension or renewal of the lease. Thus, after the expiry of the lease period the petitioner has become a trespasser.

25. A reply has also been filed on behalf of the respondents No. 1, 2, 4, 5 and 6. These respondents are State functionaries and they have claimed that the disputed land was a Government land and the Municipal Board, Mt. Abu had no right to lease out this land to any one. Further it has been contended on behalf of these respondents that the Tehsildar, Abu Road was not right in recommending the case of the petitioner for regularisation. Such orders of regularisation are orders without jurisdiction and, therefore, such orders, which are without jurisdiction, cannot be enforced. The recommendations of the Tehsildar has been turned down by the Collector and, therefore, they have lost their significance.

26. It has also been contended by the answering State functionaries that it would be wrong to say that the order dated 7-12-1978, passed by the Tehsildar, Abu Road was not passed after hearing the petitioner. Petitioner was very much heard. It was observed in the order that the land being in municipal area cannot be covered by the circular dated 3-7-1971. Petitioner could have availed the remedy of appeal against this order but instead of filing an appeal the petitioner prayed for making a reference which was a mistake on the part of the petitioner and thus, the petitioner had pursued a wrong remedy. Further the land sought to be regularised by the petitioner was objected by the Deputy Town Planner, Jodhpur vide its letter dated 20/21-8-1982 and held that the land claimed by the petitioner is not to be converted. Thus, there being an objection on behalf of the Town Planning Department, the land could not have been converted.

27. Respondent No. 3 Municipal Board has also filed a return and has contested that the land in dispute was allotted to the petitioner by the answering respondent No. 3 for 7 years. Petitioner by seeking regularisation of the land from the revenue authorities has challenged the title of the answering respondent No. 3 who was the lessor of thepetitioner and in challenging the title of the answering respondent No. 3 the petitioner has hit at his own base.

28. The answering respondent No. 3 has further stated that the writ petition involves several disputed questions of fact regarding the nature of the land, ownership of the land etc. Such disputed questions of fact cannot be decided in proceedings under Article 226 of the Constitution of India. Therefore, the writ petition filed by the petitioner deserves to be dismissed on this ground also.

29. The Municipal Board has also prayed that the writ petition is liable to be dismissed on the count of misjoinder of causes of action. The petitioner has challenged the orders which he could have appealed against. The order refusing conversion, orders passed under Section 91 of the Act of 1956 and such a composite petition is not maintainable. The petitioner has violated the lease given to him and he has encroached upon more land which he promised that he would remove vide Annex. R.3/2. The petitioner was not permitted to raise permanent construction but he has raised so which is in violation of the permission granted to the petitioner. The answering respondents have stressed that the Tehsildar, Abu Road was not competent to recommend any regularisation in favour of the petitioner. According to the answering respondent, the application for land conversion was rightly dismissed by the S.D.O.

30. A rejoinder has been filed by the petitioner and has claimed that the respondent No. 7 is not a legal person. No proceedings can be taken in the name of the Trust. If the land in question belongs to the answering respondent No. 7 then the proceedings under Section 91 of the Act of 1956 could not have been initiated because they can only be initiated In relation to the lands owned by the State Government. It has further been averred on behalf of the petitioner that order Annex. R.7/1 came to an end after coming into force of the Constitution of India. It has further been contended that Annex. R.7/2 came into existence in 1966 whereas the land in question was allotted to the petitioner in the year 1964. Therefore, such prohibition has no bearing.

31. Apart from the fact that the parties were heard through counsel they have also filed written submissions.

32. In the written submissions filed bythe petitioner, it has been contended that the Municipal Board vide resolution dated 29-9-1964 has permitted the lease of 500 sq.ft. of the land at rent of Rs. 2/- per sq. yard per year near Bus Stand. Possession of the land was handed over to the petitioner on 1-4-1964. Rent was received by the Municipal Board from the petitioner upto the year 1974. A resolution has also been relied upon by the petitioner that a recommendation was made by the revenue authorities that if the land is regularised in favour of the petitioner, then they have no objection. The petitioner further contends that though no lease deed was executed but, rent was received, on the basis of oral agreement, coupled with handing over of possession. Initially the land was leased out for 7 years but the lease became monthly lease after expiry of the period of these 7 years. The petitioner has relied upon AIR 1957 Cal 625, AIR 1944 Cal 84 and AIR 1991 SC 1551.

33. The petitioner has further submitted that the Tensildar, Mt. Abu sought a report from the Patwari regarding the status of the land, whether it is a Nazul land or agricultural land. The Municipal Board vide its letter dated 19-5-1974 informed the Tehsildar, Delwara that Delwara is within the municipal limits and that all lands situated within the municipal limits were declared as Nazul abadi lands since 1955 and, therefore, it should be presumed that the land given to the petitioner was abadi land.

34. It has further been contended on behalf of the petitioner that even otherwise all Government Nazul lands within the limits of the Municipal Board, Mt. Abu were placed at the disposal of the Municipal Board, Mt. Abu vide Government of Rajasthan Notification dated 8-10-1959 and once the Nazul land has been placed at the disposal of the Municipal Board, the Municipal Board was competent to create a lease. 7 years' lease was created by the Municipal Board for which no previous sanction was required. The tenancy rights have in fact been created in favour of the petitioner.

35. The petitioner has further contended that as and when a tenancy right is created unless it is terminated the petitioner could not be treated as a trespasser. The lease was created in terms of Section 107 of the Transfer of Property Act by oral agreement accompanied by delivery of possession. Therefore, the lease cannot be said to be Illegal andunless such lease is terminated, the petitioner cannot be treated as a trespasser. The petitioner has contended that Nazul land has been defined in the Rajasthan Municipalities Act which means abadi land within the limit of a Municipality or Panchayat Circle. Since the land was within the limits of the Municipal Board and was given by the Municipal Board a judicial notice is also canvassed to be taken that Delwara temple exists in village Delwara for centuries. Thus, the area of the land covered by the Delwara temple cannot be considered to be an area of the agricultural lands because the land is not being used as agricultural land. Thus, it has ceased to be an agricultural land. A presumption has to be drawn in this regard and the land has to be held to be Nazul land.

36. The possession was given to the petitioner of the land situated near the Bus Stand. The Bus Stand is also admitted to be situated on non-agricultural land. Therefore, the entries in the revenue record relied upon by the respondents cannot be pressed into service. In any case, a person who has been inducted as a lessee cannot be summarily evicted under Section 91 of the Rajasthan Land Revenue Act. In any case the Nazul Committee of the Municipal Board can consider the case of the petitioner for regularisation.

37. The answering respondent has also filed written-submissions and has contended that the provisions of the Transfer of Property Act cannot be pressed into service. The land was agricultural land and by virtue of Section 117 of the Transfer of Property Act such Act has no application unless notified by the State Government. No notification of the application of Chapter V of the Transfer of Property Act has been issued by the State Government. Therefore, the provisions of the Transfer of Property Act have no application and in this background the petitioner cannot claim that he is a tenant and rights as a tenant have been created on him on the strength of the cases relied upon by him, namely, AIR 1957 Cal 625, AIR 1944 Cal 84 and AIR 1991 SC 1551. These cases related to non-agricultural lands whereas the case of the petitioner is squarely within the ambit of the scope of agricultural land.

38. The petitioner himself is not sure of his position. He has not only sought regularisation of his possession under Government Order/Circular dated 3-7-1971 dated1-8-1983 (Annex.1) but he has claimed to have deposited fees for conversion of the land under the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Area) Rules, 1981. Therefore, it is clear that he has been asking for conversion of the land and he has taken steps in this regard also. Once the petitioner applied for conversion of the land, then he presumes that the land is agricultural land. If the petitioner takes this stand in one breath and in the next breath he contends that land was given to the petitioner by the Municipal Board as Nazul land then it is an enigmatic situation. These two stands cut the basis of the argument of the petitioner.

39. The petitioner has tried to blow hot and cold together. In this view of the matter the question becomes highly disputed as to what is the true character of the land, whether it is an agricultural land or Nazul land. Land revenue records have been produced by the respondents and the State authorities have also contended that the land is an agricultural land. Considering this the revenue authorities have rightly proceeded in the matter. The petitioner himself has not raised any such dispute before the revenue authorities that they are not competent to adjudicate in relation to the land in question because it is not an agricultural land. Once the petitioner submitted himself to the jurisdiction of the revenue authorities and permitted the orders of the Tehsildar to become final, by not challenging the same, before the hierarchy of revenue Courts, then by merely making an application for referring the matter to the Board of Revenue, it cannot be said that the order which has become final can be reopened in the fashion as desired by the petitioner. Having permitted to become final he cannot now challenge the same in the writ petition. The mutation of the land was sanctioned in favour of the Municipality on 4-6-1991 and prior to that the Municipal Board had no right to create a lease in favour of the petitioner. In this view of the matter also, no rights accrued to the petitioner.

40. I have considered the rival submissions of the learned counsel for the parties and have perused the record.

41. From the pleadings, arguments and the written submissions what stands outboldly is the question about the nature of the land. From the above discussion it is a question of highly disputed character. The petitioner himself has taken two different stands. Once wherein he has claimed that the Municipal Board had admitted it to be a land which is in its area. Therefore, it is a Nazul land. Secondly, by making an application to the revenue authorities for conversion of the land he accepts that it is agricultural land.

42. If the petitioner himself is not sure of his stand then it is difficult for this Court to determine this question on the basis of the stands of the petitioner himself as to what is the true nature and character of the land. To determine this controversy, this Court feels that the writ petition is not a proper remedy available to the petitioner.

43. Further the petitioner claims tenancy rights over the land. If the land is not a Nazul land then no tenancy rights can be said to be accrued to the petitioner in view of the provisions of Section 117 of the Transfer of Property Act. If the land is a Nazul land then how would the petitioner ask for its conversion for agricultural land.

44. Today, the Municipal Board and the State Government both are not supporting the petitioner. Except for an initial period of 7 years that the petitioner had a lease, he has no continuing legal right/title vested in him. The petitioner permitted the revenue authorities to take action against him under Section 91 of the Rajasthan Land Revenue Act. He submitted himself to the jurisdiction of the revenue authorities and did not raise any of the questions which he has tried to raise in this writ petition before the revenue authorities, including the Board of Revenue where the case went up in relation to the reference petition filed by the petitioner himself.

45. What has not been contended by the petitioner before the revenue authorities including the Board of Revenue is sought to be contended before this Court in this writ petition. A constitutional Court would be slow, when the petitioner ignores to raise the question in the Court of first instance, to permit the petitioner to raise the disputed questions of facts. It is also noteworthy that the proceedings under Section 91 of the Rajasthan Land Revenue Act which culminated against the petitioner were notchallenged by the petitioner in appeal. Those orders are also challenged in this writ petition. The orders which are otherwise challengeable, cannot be permitted to be challenged in the writ petition.

46. Much depends upon what is the status of the petitioner in relation to the land. If the land is a Nazul land then it cannot be treated as tenant and whatever has been held by the Revenue Authorities under Section 91 of the Act of 1956 will hold the field. If the land is a Nazul land then could the Municipal Board create a lease orally beyond one year. In the instant case the same was created for 7 years without there being a written document. All these questions require a scrutiny of evidence and such kind of exercise requires leading of evidence. In a writ petition all this cannot be legitimately done.

47. Further the petitioner wants that his application for regularisation of the land which is pending before the Municipal Board, Mt. Abu should be considered. If the petitioner is already pursuing a remedy before the Municipal Board for regularisation of the land then also his pursuing of the present proceedings comes under a cloud because, he is seeking regularisation of the land from the Municipal Board. That has not been taken up, as informed by the counsel for the petitioner, because the writ petition is pending before this Court. Simultaneously the petitioner cannot be permitted to take a parallel recourse.

48. In the aforesaid circumstances, this Court feels that the petitioner is not in a position to establish a clear title on the basis of affidavits. The declaration of the rights of the petitioner is a must before any relief can be granted to him. Such determination in exercise of the extraordinary jurisdiction cannot be done. The Court is faced with many disputed questions of facts and in this background this Court declines to entertain the writ petition on behalf of the petitioner. The remedy of the petitioner lies elsewhere.

49. In view of the aforesaid discussion this Court refuses to entertain the present writ petition because it involves various questions of facts which are disputed and, therefore, there is no force in this writ petition and the same is, therefore, rejected as not entertainable.