G.M. Lodha, J.
1. State officers' colossal negligence, indifference, bordering on apathy towards land reform legislations has resulted in filing of 'no return' after pendency of more than three years of this writ petition. The Law Officer fairly and frankly expressed their helplessness, in filing the return, when concerned officers become 'dumb and deaf to the repeated requests to send instructions and record. This Court is not concerned with the 'internal disorder 'exhibited above' but feel handicapped in the absence of production of relevant record and even notification of delegation, if any. With the above tiny preface let me now narrate the case in traditional convention.
2. The petitioner in these writ petitions have challenged the order Annex. 1, in both the cases, passed by Tehsildar, Colonisation directing their eviction, imposing penalty and sentence of three months civil imprisonment under . In both the cases the impugned orders state that the petitioners have committed trespass second time, after they were declared trespassers for this very land earlier.
3. The petitioners in their writ petitions have said that they are only hired laboures and are not the cultivators of these lands.
4. In both the writ petitions, Mr. I. J. Lodha, Learned counsel for the petitioner has challenged the order Annex. 1 on the ground that the Tehsildar, Colonisation is not empowered to pass an order under Section 22 and the Deputy Commissioner Colonisation could have only passed the impugned order. It was argued that delegation has been made to the Deputy Commissioner Colonisation and neither second delegation has been made nor can be made to the Tehsildar Colonisation. It was also pointed out that since the petitioners have been ordered to undergo civil imprisonment, the ordinary remedy of appeal if any, cannot be sufficient to oust the jurisdiction of this Court under Article 226 of the Constitution.
5. Dr. Bhandawat, learned Deputy Government Advocate has contested these writ petitions. No reply has been filed controverting the facts. It was explained that although the writ petitions were filed in the year 1981 and the stay orders were obtained in the year 1981 itself and time was taken for filing the reply, the State functionaries did not come to file the reply and instruct the Government Advocate in spite of repeated requests.
6. Mr. Ashok Mathur, learned Addl. Advocate General also appeared to assist the Court, but he also expressed his helplessness in the matter of filing the reply or showing any notification of delegation to Tehsildar because the officers of the Government, in spite of repeated reminders and requests have not given instructions to file the reply.
7. Before, I proceed to adjudicate the points raised before me, I must mention that these two cases are of agricultural land in Ganganagar District where irrigated lands reapextremely good crops and there is always pressure for land allotments. The absence of return only puts a question mark on the bona fides of the concerned officers, but beyond that it is not for this Court to make any deductions.
8. In all the two cases, the proceedings for removal of trespassers and encroachment have been taken at least for the second time, after the first order declaring the petitioners as trespassers has become final, as they have either not challenged the earlier order or if they have challenged, then the challenge was not successful. The record has been left all 'high and dry' about it.
9. In all fairness, it was expected from the petitioners that they should file the earlier order by which they were declared trespassers, so that this Court can have a correct and comprehensive study of the nature of the rights if any asserted by the petitioners and repelled by the authorities. In the absence of the earlier order, it is not possible for this Court to adjudicate precisely what was the dispute raised and adjudicated and all that can be said is that they were held trespassers.
10. It is the salutary principle of equitable jurisdiction under Article 226 of the Constitution that the petitioner, when they want to invoke the equitable jurisdiction and claim equity, should conduct themselves with all fairness and produce before this Court all relevant facts and documents. Suppression of any material, fact and document disentitles the petitioners from invoking the extraordinary jurisdiction of this Court. In the instant two cases, the petitioners should have filed the earlier order by which they were declared trespassers, which has not been done even though the cases have remained pending for more than 3 years in this Court and, therefore, they have not come with clean hands and are guilty of suppression.
11. It is unfortunate that the respondents also have acted in a similar negligent manner by not filing the reply and returns and not producing the record of these cases to assist in effective adjudication of the rights of the parties.
12. In matters of land reforms and land allotment where ultimately surplus land goes to the landless or needy, the collosal negligence, exhibited by the GovernmentOfficers as has happened in the present cases, by not filing the return for more than 3 years, even after the passing of the stay order and not instructing the Government Advocate for filing the reply as has been pointed out by Dr. Bhandawat and corroborated by Mr. Mathur only shows that there is an organised apathy , and serious indifference on both the counts, firstly, in the implementation of the land reforms and secondly in dealing with the court cases, when the notices are sent and instructions are sought to be obtained from the Government Officers by the Law Officer.
13. It is not for this Court to suggest, but itwould be for the top brass of bureaucracy tofind out methods by which due assistance isprovided to the courts by placing the recordbefore it, when notices are issued and filingthe return, unless the respondent feels thatthe case is unrenderable.
14. Now, coming to the merits of the case,since the petitioners are trespassers havingheld to be so earlier by orders, which are notchallenged or if challenged the challenge failed,this Court under Article 226 of the Constitutioncannot enter into the controversy whetherthey are 'hired labourers' or having any otherrights by which they can successfully defendthemselves against the charge of trespass.Obviously, after the first order was passeddeclaring them as trespassers, nothing newhas happened by which they can be taken outfrom the purview of trespassers.
15. It is also significant to note that that disputed question regarding the rights of the petitioners; if any in spite of earlier order, can be agitated in the appellate forum under the provisions of Section 5 of the Rajasthan Colonisation Act. In all the matters where the Colonisation Act is not having any provision, the laws relating to agricultural tenancy and land. etc. shall in so far as may be applicable, apply to tenancies held and to proceedings conducted. Section 5 of the Act, reads as under : --
5. Applicability of tenancy and land revenue laws 1 Except as otherwise provided in this Act, the laws relating to agricultural tenancies, land the powers, duites, jurisdiction and procedure of revenue Courts, the survey and record operations the settlement and collection of revenue rent and other demands and the portion of estates and tenancies, for the time being in force in a colony, shall, in so far asmay be applicable apply to tenancies held and to proceedings conducted under this Act.
(2) Nothing in such laws shall, however, be so construed as to vary or invalidate any rule made or any condition entered in any statement of conditions issued, by the State Government under this Act.'
Section 75 of the Rajasthan Land Revenue Act, 1956 provides appeal, which reads as under : --
'75. First Appeals.-- Save when otherwise provided in this Act, a first appeal shall lie- (a) to the Collector from an original order passed by a Tehsildar in matters not connected with settlement or land records :
(b) to the revenue appellate authority from an original order passed by an Assistant Collector or a Sub-Divisional Officer or a Collector in matters not connected with settlement ;
(c) to the Settlement Officer from an original order passed by a revenue Court or Officer subordinate to him ;
(d) to the land Records Officer from an original order passed by a revenue Court or Officer subordinate to him,
(e) to the Settlement Commissioner from an original order passed by a Settlement Officer or by a Collector in matters connected with settlement;
(f) to the Director of Land Records from an original order passed by a land Records Officer in matters connected with land records, and
(g) to the Board from an original order passed by the Revenue Appellate Authority, the Settlement Commissioner.'
16. Thereafter there are also provisions for revision, reference and review under the Act The remedy of appeal should have been resorted to by the petitioners and writ petition cannot be entertained, as there is alternative remedy.
17. In view of the above, it is not necessary for me to decide, whether the delegation to Tehsildar by notification suffers from any infirmity because there are earlier delegations, to the Deputy Commissioner Colonisation as alleged by Mr. Lodha, I am not deciding this point for the additional reason that since I am of the opinion that the adjudication about thetrespass cannot be reopened before this Court in subsequent proceedings, it is not necessary to decide the effect of earlier delegation to the Deputy Commissioner and subsequent delegation to the Tehasildar, if any. Dr. Bhandawat and Mr. Mathur, who appeared on behalf of the respondent, could not point out any notification of delegation to Tehsildar in this respect.
18. In Gian Singh v. Collector, Bhilwara 1956 Raj LW 44, it was observed as under by a Division Bench of this Court :--
'The Commissioner under the Workmen's Compensation Act for Bhilwara passed an order under Section 23 of the WC Act. 1923, read with the rules, and awarded a lump sum of Rs. 1500/- as compensation to one Mst. Mani who has not been made a party to this application. That order was appealable under Section 30 of the WC Act. We are told by learned counsel that no appeal was filed against that order which the Commissioner under the Women's Compensation Act is now executing under Section 31, and he has requested the Collector to realize the amount under the Public Demand Recovery Act. It is true that the applicant had objected under Section 8 of the Public Demands Recovery Act, and had denied his liability. Under Section 8(2) of the Act, the Collector, after he receives such an objection has to forward it to the officer who has made the requisition, and that officer determines whether the liability is there or not. In this particular case we fail to understand how the applicant can deny his liability under an order under the Workmen's Compensation Act, though of course he has actually done so. In the circumstances though the Collector was wrong in not forwarding this objection to the officer who had sent him the requisition. We are not prepared to interfere in favour of the applicant whose denial appears to us to be dishonest.
We, therefore dismiss the application; but in view of the circumstances pass no order as to costs.'
19. Thus this Court even after holding that there was substance on merits, held that as the claim of the petitioner was not bona fide, no interference can be made under Article 226 of the Constitution.
20. The same principle applies in the present two cases also.
21. Mr. Lodha submitted that it would notbe necessary for him to file an appeal because the sentence of civil imprisonment has been awarded by a person, who is not authorised and, therefore, even without filing an appeal he can invoke the extraoridinary jurisdiction of this Court.
22. As I have already observed above that the writ petition is being rejected on twofold grounds. Firstly because of the earlier order declaring the petitioners as trespassers has finally adjudicated his rights, and have been suppressed from the Court and has not been filed on account of which the petitioners became disentitled to invoke the extraordinary jurisdiction by their own conduct The second reason which is additional one is that an alternative remedy of filing an appeal was there and disputed questions could have been gone into. Thus; even if in a given case it is held that the right of appeal is not sufficient to deprive the petitioner, when the question of civil liberty is under challenge, the first hurdle or impediment against the petitioner of concealment and suppression of material documents still remains. Thirdly as held in Gian Singh's case the claim lacks bona fides and is dishonest.
23. The result of the above discussion is that I am not inclined to invoke the extraordinary jurisdiction of this Court and therefore these writ petitions cannot succeed and are consequently dismissed. Since the respondents have not filed any return nor have shown the record of the cases and exhibited collosal negligence they are not entitled to any costs. -
24. A copy of this order should be sent to the Chief Secretary of the State of Rajasthan for necessary remedial action.