Dismissed

Devendra Singh and Anr. v. State and Anr.

Rajasthan HC2 May 2013CW/4399/2013

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging an order ejecting petitioners who allegedly encroached on pasture land. The Court held that the petitioners failed to prove eligibility for regularization under Rule 20 and rejected the claim that a clerical error regarding their father's profession invalidated the concurrent findings of revenue authorities.

What did the court decide?

Writ petition dismissed with no order as to costs; direction to ejection remained.

Devendra Singh and Anr. Vs State and Anr. — Land Acquisition | Rajasthan HC (2013)

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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ORDER

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S.B. Civil Writ Petition No.4399/2013

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Devendra Singh & Anr. Vs. State of Rajasthan & Ors.

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DATE OF ORDER

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nd ::: 02 May 2013

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P R E S E N T

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HON'BLE DR. JUSTICE VINEET KOTHARI

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Mr. Nikhil Dungawat, for the petitioners.

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1. The petitioners have filed the present writ petition aggrieved by the order dated 11.03.2013 (Annex.5) passed by the learned Single Member of Board of Revenue, Ajmer upholding the proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956 (for short, hereinafter referred to as ' Act of 1956 ') for ejecting and removing the encroachment made by the petitioners on the land in question measuring 2 Bighas and 5 Biswas in Khasra No.206 situated in Village-Gunjol, Tehsil- Nathdwara.

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2. The Tehsildar, Nathdwara, in the first instance vide order Annex.1 dated 27.08.2002, had held that the petitioners had encroached over the said land in question and the land in question was a 'Pasture Land' and the petitioner's father being a Government servant had fraudulently got entered the names of his sons, namely,

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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Devendra Singh and Hukam Singh (petitioners herein) in the revenue record and had encroached over the land in question. The case of the petitioners under Rule 20 of the Rajasthan (Allotment of Land for Agricultural Purposes) Rules, 1970 (for short, hereinafter referred to as 'Rules of 1970') which provides for allotment of land to the trespassers, cannot be considered favourably in his case and on the other hand, for the misuse of powers being a Government servant, the petitioner deserved to be punished suitably.

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3. The said order dated 27.08.2002 of the Tehsil, Nathdwara, was challenged by the petitioners by way of appeal before the learned District Collector, Rajsamand, which Revenue Appeal No.26/2002 also came to be dismissed by the learned District Collector vide Annex.2 order dated 22.10.2002, who also held that the appellants being Government servant in the “Samvat Year” 2059 committing fraud in collusion with the revenue authorities, namely, the Patwari, got the names of his sons surreptitiously entered in the revenue record, therefore, such encroachment cannot be regularized invoking the Rule 20 aforesaid. The District Collector, however, while dismissing the appeal of the petitioners held that the petitioners will not be sent to civil jail as held by the Tehsildar. The second appeal u/s 76 of the Act of 1956 before the learned Revenue Appellate Authority, Udaipur, viz. Appeal No.186/02, also came to be dismissed by the learned R.A.A., Udaipur vide the order dated 18.11.2006 (Annex.3). The relevant portion of the order passed by the learned R.A.A., Udaipur is quoted herein below for ready reference: -

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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“हमन� उभयपक� क� बहस पर मनन ककय� तथ� अध�नसथ नय�य�लय ज�ल� कलक�र र��समन� एव" तहस#ल��र न�थद�र� क� पत�वल& एव" पत�वल& पर उपलब� �सत�व � # स�कय� क� गमभ#रत� प+व,क अवल-कन ककय�। उभयपक#य अभभभ�षक� क� बहस पर भ# मनन ककय�।

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अध�नसथ नय�य�लय ज�ल� कलक�र, र��समन� न� अपन� ननर,य म3 यह अ"ककत ककय� ककय� "अप#ल�न� क� कब�� कब स� ह4? अप#ल�न� न� कब�� क� प5ष7 म3 क-ई पम�र पथम द7य� म�र� समक पसत5त नह&" ककय� ह;। सद�व# भ+भमह&न क= षक क� ब�र� म3 ह& ककस# अनतकमर क- ननरसत करन� क� भलए पथम द7�य� षवच�र ककय� �� सकत� ह4।" ....... गत वष, तक यह अनतकमर अप#ल�न� क� षपत� श# �यभस"ह क� न�म पर ��, थ� , �- कक र�जय कम,च�र& ह;। ककस# भ# र�जय कम,च�र& द�र� सरक�र& भ+भम पर ककय� गय� अनतकमर र��. र�जय आचरर ननयम� क� षवपर&त आत� ह4, अत: गत वष, तक अप#ल�न� क� षपत� क� न�म पर प.14 म3 अ"ककत अनतकमर क� अवध� क- ननयमन ह�त5 सव#क�र नह&" ककय� �� सकत� ह4।"

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अध�नसथ नय�य�लय ज�ल� कलक�र, र��समन� न� अपन� ननर,य म3 यह भ# सप7 ककय� कक "षवव�द�त भ+भम पर अप#ल�न� क� अनतकमर पथम द7य� क�बबल ननयमन नह&" ह4। परनत5 अध�नसथ नय�य�लय द�र� पश�तवतF अनतकमर क� बबन�5 पर अप#ल�न� क� षवरद एक म�ह क� भसषवल क�र�व�स क� प�ररत �णK��श, षवध�वत �सत�व � एव" स�कय क� अभ�व म3 न4सधग,क नय�य क� षवद�नत� क� षवपर&त ह-कर नय�य-धचत नह&" ह4।"

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हम अध�नसथ नय�य�लय ज�ल� कलक�र, र��समन� क� उक षवव�चन स� प+र, सहमत ह4 और उसम3 ककस# पक�र क� हसतक�प करन� आवशयक नह&" समझत� ह;।

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अत: उपर-क षवव�चन अन5स�र अप#ल अप#ल�न� ख�रर� क� ��कर अध�नसथ नय�य�लय ज�ल� कलक�र, र��समन� क� ननर,य द�न�"क 22.10.2002 यथ�वत रख� ��त� ह4 तथ� तहस#ल��र, न�थद�र� द�र� प�ररत ननर,य द�न�"क 27.8.2002

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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म3 एक म�ह क� भसषवल कर�व�स क� आ��श क- ननरसत करत� ह5ए श�ष आ��श यथ�वत रख� ��त� ह4।

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ननर,य भलख�य� ��कर आ� द�न�"क 8.11.2006 क- ख5ल� नय�य�लय म3 स5न�य� गय�।

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(ब#. आर. भ��&) भ+-पबन� अध�क�र& एव" प��न र��सव अप#ल अध�क�र& उ�यप5र"

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4. The further revision petition filed by the petitioners before the learned Board of Revenue also came to be dismissed by the learned Single Member of the Board of Revenue by the impugned order Annex.5 dated 11.03.2013 in the following terms: -

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“7. This fact has not been denied by the petitioners that they are sons of Jai Singh who worked as Patwari in the State Government when the encroachment was made in the 1992. This is something very serious that a revenue functionary who is supposed to protect the government and pasture lands from trespass has himself started encroaching the community lands through his family members . This court condemns the conduct of such a Patwari. In these circumstances no regularization of the disputed land can be made in favour of the petitioners. The regularization is generally done in favour of the landless, poor persons belonging to the weaker sections who have hardly anything for their sustenance. If the regularization of the disputed land is made in favour of the petitioners, rule 20 of the Rajasthan Land revenue (Allotment of Government Land for Agricultural Purposes) Rules, 1970 will lose its relevance in the true

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

Order dt: 02/05/2013

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spirit .

8. As discussed above the revision petition filed by the petitioners is dismissed. The Tehsildar, Nathdwara is directed to eject the petitioners physically from the disputed land.

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Pronounced.

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Sd/(Bajrang Lal Sharma) Member”

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5. Mr. Nikhil Dungawat, learned counsel for the petitioners

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vehemently submitted that the learned Board of Revenue was wrongly swayed by the fact and taking a wrong impression that the father of the petitioners, namely, Sh. Jai Singh Chouhan, was 'Patwari' himself and misusing his office, he got the land in question entered in his name and wanted to get it regularized under Rule 20 aforesaid, whereas the father of the present petitioners, Sh. Jai Singh Chouhan, was in fact a teacher and was never a 'Patwari'. In support of the above contentions, the petitioners have produced a copy of the order Annex.6 dated 02.07.1974 has been produced as Annex.6 to the writ petition. By the aforesaid order Annex.6, the father of the petitioners was appointed as teacher on 02.07.1974 and worked as such till 31.12.2009 when he retired as teacher, vide the averments made in para 10 of the writ petition. He, therefore, submitted that the learned Board of Revenue has wrongly held that the petitioners were the encroachee/s and their case for regularization of the disputed land could not be considered as per Rule 20 of the Rules of 1970.

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6. The Rule 20 of the Rules of 1970 is quoted below for

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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ready reference: -

“ Rule 20 - Allotment of land to trespassers . (1) Notwithstanding anything contained in these rules, subject to the specific or general direction of the State Government, the Sub-Divisional Officer may on the advice of the Advisory Committee, instead of ejecting a trespasser from any land occupied by him without any lawful authority, allow him to retain such land if he is a [landless agriculturist] and the total area of land held by such person including the land so allotted does not exceed 75 bighas in Barani areas of the former Bikaner Division, Barmer District (except Siwana Tehsil), Jaisalmer District and Tehsils, Shergarh, Phalodi and Osia excluding 40 villages as mentioned in Schedule I, of Jodhpur District, not covered by any irrigation project and 15 bighas in any other part of the State and that the land so allotted does not fall within the categories specified in rule 4 of theserules.]

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(2). [Upon such allotment, the allottee] shall be bound by the conditions of allotment laid down in these rules and Khatedari right shall accrue to him as if his case was of allotment under these rules.

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Explanation: (1) One bigha for the purpose of this rule shall be taken to be equal to 5/8 acres.

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(2) One bigha of irrigated land for the purpose of this rule shall be taken equal to 2 bighas of unirrigated land;

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Provided that the Collector shall have the power to cancel any regularisation made by the S.D.O. or Tehsildar either suo-moto or on the application of any

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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person in case where regularisation has been secured through fraud or mis-representation or has been made against rules.] ”

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7. Not only both the authorities below concurrently and four of them have held against the petitioners that they were simply the trespassers over the land in question and being Government servant and while misusing his position, fraudulently he got the names of his two sons entered into the revenue record and sought to get it regularized under Rule 20 of the Rules of 1970, and therefore, in the present writ petition under Article 227 of the Constitution of India, there is no basis for this Court to draw any inference in favour of the present petitioners that they were bonafide landless and poor persons and were holding the long possession over the land in question, which satisfying the criteria under Rule 20 of the Rules of 1970, their case could be considered as per Rule 20 by the revenue authorities.

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8. On the other hand, right from the first authority, namely, the Tehsildar, in the initial order dated 27.08.2002 (Annex.1) held that not only the petitioners were evicted u/s 91 of the Act of 1956 in the previous proceedings in Case No.518/01 on 06.11.2001, but again, he/they encroached over the land in question and by committing fraud in collusion with 'Patwari', the names of the petitioners were got entered in the revenue record. The land in question was 'Bilanam Chanchod Bhumi' (Pasture land) and consequently, the case of regularization of the land in favour of petitioners cannot be

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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considered and on the other hand, he deserved to be punished in accordance with law. The subsequent appeals were also dismissed by detailed and reasoned orders by the learned District Collector, Revenue Appellate Authority, Udaipur; and merely because the revisional authority of the Board of Revenue inadvertently observed that the petitioner's father was 'Patwari' and not otherwise a Government servant condemned such an action on the part of the petitioner's father, namely, Sh. Jai Singh Chouhan, it cannot be said that the whole proceedings or basis of the findings of the revenue authorities and courts below stood washed away. The contrary evidence of the petitioner's father, being a teacher from 1974 till 1990, was produced before this Court for the first time in the present writ petition, the same does not appear to have been brought to the notice of the courts/authorities below at all at any point of time at least before the Board of Revenue.

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9. It appears that the mistake, bonafide and inadvertent one, which occurred in para 7 of the order of the learned Single Member of the Board of Revenue, occurred on account of wrong contention raised by the learned Dy. Government Advocate before the learned Board of Revenue. The relevant para 5 of the impugned order dated 11.03.2013 (Annex.5) is quoted below here under, which contains the contentions raised by the learned Dy. Government Advocate before the Board of Revenue:

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“ 5. The learned Dy. Govt. Advocate has contended that the disputed land is a pasture land as

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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per the order passed by the Tehsildar and it is also a serious matter that the father of the petitioners was a Patwari , therefore, the trespass of the petitioners have been entered just to conceal the identity of the Patwari who is in service of the State . The learned advocate submitted before the court that the orders passed by both the courts below are reasoned orders which do not warrant any interference at this stage. Therefore, the revision petition be dismissed.”

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10. From the above, it is clear that it was the Government Counsel, who made a wrong contention before the learned Single Member of the Board of Revenue and in the absence of any contrary evidence available on record, the learned Single Member of Board of Revenue made such observation condemning the conduct of the appellant as 'Patwari'. The allegations against the petitioner's father, Sh. Jai Singh Chouhan, in collusion with the revenue authorities, however, emanated not for the first time before the Board of Revenue, but right from the first authority, namely, the Tehsildar, who observed to this effect in the first order itself vide Annex.1 dated 27.08.2002. Therefore, this slip, if it can be called to be one, in the order of the learned Board of Revenue, does not enure to the benefit of the petitioners in any manner. Otherwise, all the authorities have concurrently held against the petitioner that the case of the petitioner could not be considered for regularization under Rule 20 of the Rules of 1970.

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S.B. Civil Writ Petition No.4399/2013 Devendra Singh & Anr. Vs. State of Raj. & Ors.

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Order dt: 02/05/2013

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11. No relevant and cogent evidence for the said Rule was ever produced by the petitioners before any of the authorities or the courts below, therefore, any contention based on such rule for the first time before this Court, that too, under Article 227 of the Constitution of India, of which the scope is very limited and narrow, cannot be invoked for disturbing the concurrent findings of facts and interference cannot be made at the instance of the petitioners. The case of the petitioners, therefore, does not inspire any confidence so as to invoke the writ jurisdiction under Article 227 of the Constitution of India in favour of the petitioners.

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12. Consequently, in view of above discussions, the present writ petition filed by the petitioners is found to be devoid of any force and the same is hereby dismissed with no order as to costs. A copy of this order be sent to the parties concerned and the revenue courts below forthwith.

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(DR. VINEET KOTHARI) , J .

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Devendra Singh and Anr. v. State and Anr.

Case brief

What is this about?

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Devendra Singh and Anr. v. State and Anr.

Case brief

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