Ashish Kumar and Others vs The Divisional Commissioner and Others

Amitava Roy, C.J.—The instant appeals witness a challenge to the order dated 20.11.2013, whereby notices have been issued in the five writ proceedings instituted by the respondent No. 3 herein against the appellants as well as the official respondents, assailing the judgment and order dated 05.06.2013 passed by the Divisional Commissioner, Jaipur in a series of appeals including Appeal No. 146/2013, corresponding to S.B. Civil Writ Petition No. 17882/2013.

We have heard N.K. Maloo, the learned Senior Counsel assisted by Mr. V.K. Tamoliya, Advocate for the appellants and Mr. Lokesh Sharma & Mr. G. Bardar, the learned counsel for the respondent No. 3.

The framework of facts being identical qua the issues to be addressed, for the sake of convenience and brevity, the pleadings of S.B. Civil Writ Petition No. 17882/2013, would be referred.

Briefly stated, the Prescribed Authority under the Rajasthan Land Revenue Act, 1956 (for short, hereafter referred to as ''the Act'') had, by its order dated 23.08.2010 under Section 90-B(3) thereof, resumed the land admeasuring 5.48 hectare and 1.88 hectare, covered under various Khasra Nos. i.e. 1, 2, 4, 67, 68, 69 etc., located at village Shishyawas, Tehsil Sanganer, District Jaipur, in favour of the State for conversion and allotment to the appellants herein. After a lapse of about three years, the respondent No. 3 filed an appeal being No. 146/2013 before the learned Divisional Commissioner, Jaipur contending, inter alia, that it i.e. Thakur Ji Shree Gopal Ji Maharaj, was the recorded Khatedar of the said land, which was registered as ''Muafi Mandir'' in the revenue records and that at the time of settlement proceedings conducted by the Settlement Department in Samvat 2015 to 2024, the names of Bhura, Kanha and Chothu S/o. Mangilal, ere wrongly entered therein as cultivators and eventually, the said land was transferred in the name of appellants herein. It asserted that it being a perpetual minor and title holder of the land, it could not have been divested thereof by the Settlement Department, in the manner done. It pleaded that the decision of the Prescribed Authority under Section 90-B of the Act was also repugnant to Section 46 of the Act as the land belonging to the perpetual minor, could not be transferred. That a reference on this issue was also pending before the Additional Collector, Jaipur, was mentioned. It was contended that the respondent No. 3, having come to know of the order dated 23.08.2010 on 05.03.2013, it filed an appeal and as the same was belated, an application for condonation of delay under Section 5 of the Limitation Act, 1963, was also lodged. In the appeal, the appellants not only questioned the maintainability thereof contending that it was not sustainable as the order dated 23.08.2010 had been passed under Section 90-B(3) of the Act, but also asserted that contemporaneous records did not demonstrate that the land involved had ever been entered in the revenue records, registering the respondent No. 3 to be the Khatedar thereof.

The Divisional Commissioner, Jaipur, sustained both these objections and dismissed the appeal. As a matter of fact, four other appeals filed by the respondent No. 3 (though different plots of land and persons were involved), were also dismissed similarly by order dated 05.06.2013.

Being aggrieved, the respondent No. 3 instituted the writ proceedings, as above, in which by the order impugned, the learned Single Judge issued notices and also in the interim, directed maintenance of status-quo of the land involved.

Mr. Maloo has argued that as the appeal in the face of Section 90-B of the Act, filed by the respondent No. 3 before the Divisional Commissioner, Jaipur, was not maintainable, the order impugned thereunder being one rendered under Section 90-B(3) thereof, the writ proceedings ought to have been dismissed in limine. According to the learned Senior Counsel, not only the respondent No. 3 was a stranger vis-�-vis the determination made by the Prescribed Authority under Section 90-B(3) of the Act, in the face of the suits meanwhile filed by it on the same issues which are presently pending, the learned Single Judge ought to have dismissed the writ petitions, as an abuse of the process of the Court.

Mr. Maloo reiterated that the land involved did never belong to the deity i.e. the respondent No. 3 and that its name had not been ever mutated in the revenue records as Khatedar thereof. To reinforce his arguments, the learned Senior Counsel has placed reliance, amongst others, on the decision of a coordinate Bench of this Court at Principal Seat at Jodhpur in Smt. Sheela Kothari v. Board of Revenue & Ors., 2013 WLC (Raj.) UC 331.

Per contra, the learned counsel for the respondent No. 3 have urged that the instant appeal is not maintainable in the teeth of Rule 134 of the Rules of the High Court of Judicature for Rajasthan, 1952 (for short, hereafter referred to as ''the Rules''), the impugned order being not a judgment or a final order, but one unmistakably of an interlocutory nature. They contended that the proceeding under Section 90-B of the Act was a nullity in the face of Section 46 thereof and thus, the learned Divisional Commissioner, Jaipur had grossly erred in law and on facts in declining to interfere with the order dated 23.08.2010 of the Prescribed Authority. Learned counsel for the respondent, however, did not dispute and/or deny the pendency of the suits filed by the respondent No. 3 involving the same lands, wherein the State of Rajasthan, Jaipur Development Authority, Jaipur and the appellants have been impleaded as defendants, wherein a decree for declaring its Khatedari rights has been sought for.

We have considered the pleaded facts, the documents on record as well as the arguments advanced.

A plain perusal of the order impugned in the instant appeals, would reveal that it is one in which, after hearing the learned counsel for the parties, notices have been directed to be issued and in the interim, status-quo of the land in dispute has been ordered to be maintained. The learned Single Judge did record the assertion made on behalf of the appellants herein that the appeal filed by the respondent No. 3 before the Divisional Commissioner, Jaipur, was not maintainable, but observed, with reference to the ''Jamabandi'' of Samvat 2017 to 2020, that the land had been recorded in its (respondent No. 3) name and that the same being a ''muafi'' land, was not liable to land revenue. The plea of delay on its part to file the appeal before the Divisional Commissioner, Jaipur, was rejected on the ground that a deity has to be treated to be a minor in law.

In our comprehension, having regard to the rival contentions and the pleaded facts bearing thereon as well as the determination made under Section 90-B(3) of the Act and in the appeal by the learned Divisional Commissioner, Jaipur, the impugned order entertaining the writ proceedings and directing maintenance of status-quo of the land, is one of moment significantly touching upon the rights of the appellants vis-�-vis the land and thus, cannot be construed, by any means, to be an interlocutory order simplicitor.

A coordinate Bench of this Court in Jaipur Metro Rail Corporation Limited Vs. Alok Kotahwala and Others, , while examining the challenge to the maintainability of an appeal under Rule 134 of the Rules against an order staying acquisition proceedings of the land involved and granting liberty to the State Government to restart the same in accordance with law, on a similar plea, after an exhaustive survey of the judicial pronouncements of the Hon''ble Apex Court, construed the said order to be judgment falling within the purview of the Rules. In concluding thus, their Lordships, amongst others, did take note of the enunciation made in Jugal Kishore Paliwal v. Sat Jit Singh, (1984) 1 SCC 358, whereby an order refusing amendment of written statement at the time of framing issues had been adjudged to be one vitally affecting rights of the parties and causing injustice to the plaintiff and was not construed as purely an interlocutory order. Their Lordships, in the contextual facts, having regard to the nature of the order impugned in the appeal and its effect, held it to be a judgment.

We subscribe to the view expressed in Jaipur Metro Rail Corporation Limited v. Alok Kotahwala & Ors. (supra). In the facts and circumstances of the present case, we are of the considered opinion that the order assailed in the present appeals, cannot be termed to be interlocutory order, not appealable under Rule 134 of the Rules. We are, thus, not inclined to sustain the plea against the maintainability of the present appeals on this count.

A plain perusal of the plaints in the suits filed by the respondent No. 3 against the appellants and the official respondents herein, in the Court of Assistant Collector, Jaipur-II, Headquarter Jaipur i.e. 48/2013, 51/2013, 52/2013, 53/2013, 54/2013, 55/2013 & 56/2013, admittedly pending adjudication, demonstrates that the same land is involved therein. The respondent No. 3, as the plaintiff, has pleaded the same facts, as narrated in the writ proceedings and while referring, inter alia, to the order dated 23.08.2010 passed by the Prescribed Authority under Section 90-B of the Act, has prayed for a decree, amongst others, for declaration that it (respondent No. 3) is the Khatedar of the suit lands and for registration of its name in the revenue records by deleting the names of the appellants therefrom. Thus at its instance, an elaborate judicial scrutiny of the claimed status of the respondent No. 3 as the Khatedar of the lands involved is awaited.

Noticeably, the respondent No. 3 in its writ petitions, had admitted that the order dated 23.08.2010 passed by the Prescribed Authority, was under Section 90-B of the Act. In course of the hearing, our attention has not been drawn to any overwhelming material on record to dislodge the finding of the learned Divisional Commissioner, Jaipur that it had, in fact, been rendered under Section 90-B(3) of the Act, from which an appeal under Section 90-B(7) of the Act is not maintainable, as has been held by a coordinate Bench of this Court in Smt. Sheela Kothari v. Board of Revenue & Ors.(supra). Apart therefrom, in the face of pendency of the aforementioned suits filed by the respondent No. 3 against the appellants and the official respondents with the reliefs claimed therein, we are of the unhesitant opinion that the respondent No. 3 ought not to be permitted to pursue two parallel proceedings seeking the same reliefs. On this count alone, the writ proceedings ought not to be entertained on merits. The respondent No. 3, having chosen to avail efficacious alternative remedy in law, the writ petitions filed by it claiming the same reliefs, in our view, ought not to be allowed to be pursued.

In our estimate, having regard to the pendency of the suits, the observations made in the impugned order with regard to the status of the land and the disclosures from the Jamabandi vis-�-vis the respondent No. 3, cannot be sustained. Those are, thus, interfered with.

The appeals succeed. The impugned orders are set aside. The stay applications stand disposed.

This determination, notwithstanding, the parties are left at liberty to seek appropriate reliefs depending on the situational exigencies, in the suit or any other appropriate forum, as permissible in law.

A copy of this order be placed in all connected files.