Gulab Kanwar (Smt.) And Ors. vs State Of Rajasthan And Ors. on 25 July, 2006

Rajasthan High Court
Gulab Kanwar (Smt.) And Ors. vs State Of Rajasthan And Ors. on 25 July, 2006
Equivalent citations: RLW 2006 (4) Raj 3076
Author: A Parihar
Bench: A Parihar


Ashok Parihar, J.

1. Since on same set of facts similar relief has been sought, both the writ petitions have been heard together and are being decided by this common order.

2. The matter appears to have a checkered history. A plot measuring 4833.33 square yards was purchased by one Rai Bahadur Himmat Singh from the erstwhile State by registered sale deed executed on 4.8.1949. The plot was identified as plot No. C-4A in Scheme E of Banipark, Jaipur. In the sale deed apart from the measurement of the plot, all the four sides had also clearly been mentioned. On the eastern side there existed plot No. C-6, on the western side plot No. C-2, a road on the northern side and plot No. D-241 on the southern side. The above plot No. C-4A was later on sold by the said Rai Bahadur Himmat Singh to one Thakur Ummed Singh on 23.5.1950 by a registered sale deed. In the sale deed so executed in favour of Thakur Ummed Singh, the measurement and the identification of the plot were the same as mentioned in the original sale deed dated 4.8.1949. It has also come on record that the above plot had further been gifted by Thakur Ummed Singh to his daughter Smt. Gulab Kanwar, one of the petitioners, on 8.1.1959. The gift deed was however executed on 29.8.1963. Smt. Gulab Kanwar, the petitioner, has alleged that there was a built area, a bungalow and some out houses and a compound wall in the plot which was gifted by her father. It was only in the year 1969 that the petitioner Smt. Gulab Kanwar, with a view to develop the plot, took up the work of clearing sand dunes and trees and, at that point of time, it was discovered that the plot, as mentioned in the deeds, as referred to above was more than 10,000 square yards instead of 4833.33 square yards. The petitioner Smt. Gulab Kanwar made an application before the then Urban Improvement Trust, Jaipur on 17.12.1969 for allotting her the excess land after receiving necessary Nazarana. Though, no final decision was taken on the application so filed by the petitioner Smt. Gulab Kanwar, however, the authorities demolished some part of the outhouses, cow sheds, garage and compound wall on the alleged excess land on eastern side of the plot C-4A. Since the land belonged to the State, the same was also put to auction as per notice published in the news paper on 28.6.1974.

3. At that point of time, the petitioner Smt. Gulab Kanwar sought intervention of this Court under writ jurisdiction. This Court, while allowing the Writ Petition No. 1696/1974, filed by petitioner Smt. Gulab Kanwar, vide order dated 26.11.1976, though, held that the petitioner Smt. Gulab Kanwar is legally entitled to hold the plot measuring 4833.33. sq. yards only, however, so far as alleged remaining excess portion is concerned, the authorities could take possession only in accordance with law. The above order dated 26.7.1974 passed by the learned Single Judge further came to be affirmed by the Division Bench vide order dated 15.5.1984 in a Special Appeal filed on behalf of the State of Rajasthan. The contention of the petitioner Smt. Gulab Kanwar that the plot was sold to the petitioner’s predecessor-in-interest by description of boundary of land then it must be held that all the land within the boundaries had been sold was again rejected by the Division Bench. The Division Bench, however, gave liberty to the State functionaries to take legal proceedings under the law for eviction of the petitioner respondent and her successors or for regularising the sale of the land at fair and reasonable current market price. Subsequently, after a decision been taken not to regularise the sale so made of the property in question, a notice for eviction was issued by the Jaipur Development Authority to the petitioner Smt. Gulab Kanwar on 10.3.1983. Subsequently, an application under Section 4 of the Rajasthan Public Premises (Eviction of Unauthorised Occupant) Act, 1964 was filed before the Estate Officer, Jaipur Development Authority, Jaipur. After issuing notice to the parties concerned, the Estate Officer, while allowing the application under Section 4 of the Act, ordered for eviction vide order dated 3.10.1988. The appeals filed by the petitioners against the order of the Estate Officer were dismissed by the District & Sessions Judge, Jaipur vide order dated 3.9.1990. Hence the present writ petitions, challenging the order of the Estate Officer as also the Appellate Authority with a further prayer for regularisation of the plot in question.

4. The matter would not have come to an end here. During the pendency of the writ petition before this court, petitioner Smt. Gulab Kanwar allowed to have entered into an agreement to sale of eastern portion of plot No C-4A measuring 5000 sq yards to petitioners – Jyoti Gagjiwan Nagar Cooperative Housing Society (hereinafter to be referred to as the ‘society’) on 25.4.1975. In view of some disputes between the parties, the society filed a civil suit against Smt. Gulab Kanwar for specific performance. The suit had been decreed by the trial Court on 21.8.1988. In pursuance to ex parte decree so granted by the trial court, the sale In favour of the society was registered on 4.7.1988. Subsequently, the same plot measuring 5000 sq yards on the eastern part of plot No. C-4A, as purchased by the society, was further sold by the society to four persons on 3.12.1998.

5. Mr. Bajrang Lal Sharma, learned Counsel appearing on behalf of petitioner – Smt. Gulab Kanwar has assailed the orders passed by the Estate Officer as also the Appellate Authority on the ground of jurisdiction and limitation. Mr. Sharma has contended that it was only at the time of levelling it was found that the plot so purchased by Rai Bahadur Himmat Singh, subsequently sold to Thakur Ummed Singh and then gifted to petitioner Smt. Gulab Kanwar, was, in fact, measuring 10000 sq. yards instead of 4833.33 sq. yards. It has further been submitted that since the title of the land in question itself is under dispute the proceedings for eviction under the Act of 1964 could not have been taken.

6. Mr. G.L. Pareek, learned Counsel appearing for the society, while supporting the submissions made by Shri Bajrang Lal Sharma, has further submitted that the society, in no case, can be treated as the trespasser or unauthorised occupant since the society has legally and bonafidely purchased the land in question from Smt. Gulab Kanwar and, as per the decree passed by the trial Court, the land in question has also been registered in the name of the society.

7. Mr. R.K. Goyal, learned Counsel appearing for legal heirs of Smt. Gulab Kanwar, however, brought it to the notice of the court that ex parte decree granted by the trial court in favour of the society on 21.8.1988 is already under challenge by the legal heirs of the petitioner Smt. Gulab Kanwar before this Court challenging the legality and existence itself of alleged sale deed made on 25.4.1975 in favour of society.

8. After having considered submissions of learned Counsel for the parties, I have carefully gone through the material on record as also the impugned orders passed by the authorities below and the provisions of the relevant Act.

9. There cannot be any dispute that the plot, originally purchased by Rai Bahadur Singh in the year 1949, had clearly been identified and demarcated in the sale deed so executed. Apart from measurements, four sides of the plot had clearly been mentioned in the sale deed. As per the judgment of the learned Single Judge in the earlier writ petition No. 1696/1974 it has also come on record that Rai Bahadur Himmat Singh had applied for a plot measuring about 1 acre and the same was allotted to him accordingly as per the rates fixed at the relevant time and 1 acre comes to near about 4833.33 sq yards. The measurement and identification of the plot No. C-4A remains the same upto to the gift deed executed by father of petitioner Smt. Gulab Kanwar in the year 1963. The sale deeds executed on 4.8.1949 and 23.5.1950 as also the gift deed have been placed on record. A bare reading of the documents referred to above would show that apart from clear measurements of the plot there is no mention whatsoever of any boundary in any of the documents. By no stretch of imagination it can be assumed or presumed that at the time of levelling the plot, clearly mentioned as measuring 4833.33 sq yards, would stretch to 10000 sq yards. Even as per admission of the petitioner Smt. Gulab Kanwar she was not having legal right on the excess land, as such, she had applied for allotment of the excess land on receiving requisite charges. The plot gifted to Smt. Gujab Kanwar could clearly be identified since the same included constructed area. Admittedly, the land surrounding the plot No. C-4A vested initially in Urban Improvement Trust, Jaipur then to Jaipur Development Authority. Jaipur Municipal Corporation has now come in footsteps of Jaipur Development Authority so far land in question is concerned. In spite of no legal allotment been made in favour of Smt. Gulab Kanwar of the excess land, it is not known as to under what authority Smt. Gulab Kanwar sold the land in question measuring 5000 sq yards to the society in the year 1975 itself when her writ petition was pending before this Court. There is also no mention of this fact of selling the land in question to the society by Smt. Gulab Kanwar in the judgment dated 26.7.1976, passed by the learned Single Judge, or even in the judgment dated 15.5.1984, passed by the learned Division Bench. The society alleged to have purchased eastern portion of plot No. C-4A, measuring 5000 sq yards by Smt. Gulab Kanwar and, in the site plan also, the side plots have also been mentioned as the same which were mentioned in the original sale deeds executed in the years 1949 and 1950.

10. As has already been referred above, a clear contradictory and conflicting stand has been taken by the petitioners in regard to plot in question. Petition Smt. Gulab Kanwar contends that she had already applied for allotment of excess land and, admittedly, no regular allotment had been made to her by the authorities till date. The society has alleged that they purchased the excess land measuring 5000 sq yards from Smt. Gulab Kanwar in the year 1975, however, the fact remains that Smt. Gulab Kanwar had no legal title over the land which she alleged to have sold to the society. The legal heirs of Smt. Gulab Kanwar, on the other hand, has taken a somersault challenging existence of the sale deed itself executed by Smt. Gulab Kanwar in favour of the society which is under challenge before this court. On a repeated query been made by this Court at the time of hearing, none of the learned Counsel for the petitioners were prepared to identify the exact land measuring 4833.33 sq yards as allotted to Rai Bahadur Himmat Singh and ultimately came into possession of Smt. Gulab Kanwar.

11. Contention of learned Counsel for the petitioners that actual area of the plot should have been taken by boundaries and not the measurement mentioned in the deed is wholly misconceived since there is no such mention of boundaries in any of the deeds and further side plots been clearly mentioned. The judgments cited on behalf of the petitioners are not at all applicable on the facts of the present case.

12. A further contention that the authorities should have first identified and prove their title over the land in question before a competent court before eviction is only to be considered for rejection on the face of it. Admittedly, land belonged to the State. The petitioner Smt. Gulab Kanwar applied for allotment of land, however, without legal allotment Smt. Gulab Kanwar sold the same to the society during pendency of her writ petition. This Court in the present writ petition filed by Smt. Gulab Kanwar passed an order of status quo on 13.9.1990. The writ petition by the society had also been filed by the society on 13.9.1990 challenging the same orders of the Estate Officer and the Appellate Court. As such, the society could not further sell the same plot in the year 1998 to four persons. The sales referred above without legal title were void ab initio and non-est in the eyes of law. A person without legal title can only be treated as unauthorised occupant or the encroacher on the government land.

13. Learned Counsel for the society has alleged that the society had purchased the eastern portion of the plot No. C-4A from Smt. Gulab Kanwar however, he has also not been able to say as to how the measurements of plot C-4A had been made by Smt. Gulab Kanwar at the time of bifurcation of the plot in two portions i.e. eastern and western. On the other hand, the respondents have been able to show that in absence of regularisation or allotment of the plot in question in the name of Smt. Gulab Kanwar, the petitioners were only trespassers and unauthorised occupants when no title even could be claimed by any on the basis of the sale deed made without authority of law and legal title over the land in question.

14. Learned Counsel for the petitioner has also submitted that now the State Government as a policy decision is regularising such unauthorised occupations. The contention so raised is wholly misconceived in the facts of the present case and entire blame has to be put on petitioners who tried to create confusion and complications. In view of observations made in above paras, since title itself of all the petitioners on the same land is in serious dispute, no observations what to say of directions can be issued even for consideration for regularisation.

15. There appears to be a clear case of total inaction and connivance of the authorities concerned where the government land is trespassed/grabbed and then seek regularisation under the litigation or even with the lapse of time due to litigation claim adverse possession. Apart from both the authorities below having used proper discretion after due consideration, even otherwise, since the petitioners have not come up with clean hands, no interference, whatsoever, is called for by this Court in the present matter under writ jurisdiction. It has become a general practice that Land Mafias occupy the government land without any authority of law and the authorities do not take proper action in time and under pressure political or otherwise try to regularise such encroachments on the public land. Such practice can only be deprecated and no court can or should endorse such practice. It is high time the courts must come heavy on such unauthorised occupants and the local authorities also should take stern action against the officer responsible for the same.

16. Both the writ petitions are dismissed accordingly as having no merits. Considering the conduct of the petitioners, who have been playing hide and seek even during pendency of litigation before this Court and interim orders also been passed, since they have not come up writ clean hands, both the writ petitions are dismissed with costs of Rs. 10,000/- in each writ petition.

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