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ishar and ors. Vs. Naib-tahsildar of Govindgarh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberWrit Appln. Nos. 97, 100 and 115 of 1951
Judge
Reported inAIR1954Raj81
ActsAdministration of Evacuee Property Act, 1950 - Sections 50; Administration of Evacuee Property (Central) Rules, 1950 - Rule 14(4); Constitution of India - Article 226
Appellantishar and ors.
RespondentNaib-tahsildar of Govindgarh and ors.
Appellant Advocate Umrao Lal,; Ram Deva, Advs. and others and; Uma Datt
Respondent Advocate R.A. Gupta, Govt. Adv.
DispositionPetitions dismissed
Cases ReferredProvince of Bombay v. Khushaldas S. Advani
Excerpt:
.....custodian or assistant custodian when the action complained of was taken. , resettlement, or the naib tehsildar resettlement concerned acted under the administration of evacuee property act, or were invested with the powers of custodian, deputy custodian or assistant custodian at the time they took the action complained of. , tehsildar or the naib tehsildar concerned were invested with the powers of custodian, deputy costodian or assistant custodian when they made the orders complained of. 108, published in part i of the rajasthan gazette dated 10-11-1951, that such powers were conferred upon the said officers after the orders complained of were made. prom the allegations in the petitions as well, it is clear that the actions of the officers concerned were not challenged as actions of..........100 and 115 of 1951, besides the state of rajasthan, the s. d. o. resettlement, alwar district and naib tehsildar, resettlement of tehsil mandawar, have also been made parties.2. the case of all the petitioners in their petitions is that they had been tenants of lands given in their petitions for many years and were recorded as such in revenue records. their land-holders migrated to pakistan after the partition of india, they held these lands as tenants upto may 1951, when the tehsildar. resettlement and naib tehsildar sub-tehsil mandawar in case no. 97 of 1951 arid s. d. o., resettlement alwar district and re-settlement naib tehsildar mandawar tehsil in the other two cases took illegal measures to eject the petitioners without serving any notice on them to show cause why they should not.....
Judgment:

Sharma, J.

1. These are three similar petitions by certain tenants of certain agricultural lands in Alwar District under Article 226 of the Constitution of India. All of them are directed against 'inter alia' the State of Rajasthan. To the petition No. 97 of 1951 Naib Tehsildar and Re-settlement Tehsildar of Govindgarh Sub-Tahsil in District Alwar and Bachan Singh and Hari Singh of Sub-Tahsil Govindgarh hereinafter to be referred to as 'new lessees' have also been made parties. To the petitions Nos. 100 and 115 of 1951, besides the State of Rajasthan, the S. D. O. Resettlement, Alwar District and Naib Tehsildar, Resettlement of Tehsil Mandawar, have also been made parties.

2. The case of all the petitioners in their petitions is that they had been tenants of lands given in their petitions for many years and were recorded as such in Revenue Records. Their land-holders migrated to Pakistan after the partition of India, They held these lands as tenants upto May 1951, when the Tehsildar. Resettlement and Naib Tehsildar Sub-Tehsil Mandawar in case No. 97 of 1951 arid S. D. O., Resettlement Alwar District and Re-settlement Naib Tehsildar Mandawar Tehsil in the other two cases took illegal measures to eject the petitioners without serving any notice on them to show cause why they should not be ejected. The lands in question were never declared evacuee properties and the Resettlement Tehsildar and Naib Tehsildar Govindgarh in one case and the Resettlement S.D.O. Alwar District and the Resettlement Naib Tehsildar Mandawar in the other two were not appointed Custodian or Deputy or Assistant Custodian till the dates they made orders of the ejectment of the petitioners. Even a Custodian or Deputy or Asst. Custodian had no right to cancel or vary the terms of a lease granted by his own-self or to evict a lessee without serving upon him a notice under Rule 14, Administration of Evacuee Property Rules, to show cause. The ejectment of a tenant was also illegal unless under certain condition given in Rajasthan Protection of Tenants Ordinance or under Section 180 of Alwar State Land Revenue Code which did not obtain in the present case.

It is, therefore, complained that the actions of these authorities were illegal and without jurisdiction. The petitioners, therefore, pray for writ of prohibition against the opposite party restraining them from ejecting the petitioners or cancelling, varying the terms of their leases or terminating them and allotting them to new lessees. It has also been prayed that any such orders made be quashed by a writ of certiorari, or any other writ, direction or order, suitable under the circumstances of the case be issued.

3. On behalf of the opposite party, objections have been taken to the petitions on the ground that the petitioners were the tenants of Rajasthan State from year to year; that their yearly leases granted last expired before the orders of ejectment were made & that such orders were made by the Resettlement S.D.O. Alwar District, Resettlement Naib Tehsildar, Mandawar, and Resettlement Tehsildar and Naib Tehsildar Sub Tehsil Govindgarh, as representing Rajasthan State, the lessor and not under the Administration of Evacuee Property Act as Custodians or Deputy or Assistant Custodians. It is also pleaded that there was effective and adequate remedy under Section 7, Rajasthan Protection of Tenants Ordinance, or ordinary law by way of suit.

4. When the cases were last heard, counsel for both the parties insisted on each other stating his case definitely and precisely. They have done it. The counsel for the petitioners Begraj and others made a clear statement that the action of the Resettlement S. D. O. and the Naib Tehsildar was not under the Administration of Evacuee Property Act nor were they invested with these powers when orders of ejectment were made. He also stated that the petitioners were yearly lease-holders under Revenue Tehsildar, Mandawar. Mr. Ram Avtar, who represented the opposite party, also made similar statements in all the three cases.

Mr. Umrao Lal appearing in the other two cases or petitioners however, did not choose to make a clear statement. He stated that the petitioners had been cultivating the and in question since the time of the original land owners, who later on left the territories of Alwar State due to partition of India. Even afterwards they continued as such up to the year 2007 when another lease was granted by the Government through, the Tehsildar for one year. The possession continued as before. The S. D. O., Resettlement, Alwar District, Resettlement Tehsildar, Govindgarh, the Naib Tehsildar, Govindgarh, and the Resettlement Naib Tehsildar, Tehsil Mandawar, were not lessors of the petitioners, and they did not dispossess them purporting to act as lessors. They dispossessed the petitioners as Assistant Custodians so far as the applicants knew. It may be said that in. neither of the two petitions in which Mr. Umrao Lal appears for the petitioners has it been alleged that the S. D. O., Tehsildar or the Naib Tehsildar in question acted under the provisions of the Administration of Evacuee Property Act or they acted as Custodian, Deputy Custodian or Assistant Custodian, when they made the orders in question. The statement made by Mr. Umrao Lal makes a departure from what he has said in his petitions.

5. The same questions of law and fact are involved in all the three petitions and so they can be disposed of by one judgment. Even Mr. Umrao Lal could not show any allegations in his petition No. 97 of 1951 from which it might be inferred that the Naib Tehsildar and Resettlement Tehsildar concerned took action under the Administration of Evacuee Property Act or were invested with the powers of Custodian, Deputy Custodian or Assistant Custodian when the action complained of was taken. In application No. 100 of 1951 also it has not been alleged that the S. D. O., Resettlement, or the Naib Tehsildar Resettlement concerned acted under the Administration of Evacuee Property Act, or were invested with the powers of Custodian, Deputy Custodian or Assistant Custodian at the time they took the action complained of. Only vaguely it has been alleged that no notice under Rule 14 (4) of the Administration of Evacuee Property Rules, 1950, was given to the petitioners before making the order for eviction. Rule 4 (4) does not apply unless the action is taken by the Custodian, Deputy Custodian or Assistant Custodian under the Administration of Evacuee Property Act. The mention of Rule 14 (4), therefore, is altogether irrelevant.

6. On careful consideration of all the three cases, we come to the conclusion that neither of the three petitioners impleaded the S. D. O., the Tehsildar or the Naib Tehsildar as Custodian, Deputy Custodian or Assistant Custodian. According to the very fair and straightforward statement made by Mr. Uma Dat-t in the case of Begraj and others, the S. D. O. and Naib Tehsildar concerned did not act as Custodian, Deputy Custodian or Assistant Custodian under the Administration of Evacuee Property Act, nor were they vested with these powers when they made the order. His case is that the petitioners were lessees under the Revenue Tahsildar of Mandawar representing the Government of Rajasthan, and the lease was first granted in Samvat 2005, and thereafter renewed from year to year. Although Mr. Umrao Lal has not made such a clear statement, yet he has been unable to show that the S. D. O., Tehsildar or the Naib Tehsildar concerned were invested with the powers of custodian, Deputy Costodian or Assistant Custodian when they made the orders complained of. Rather it is proved from the Gazette Notification No. 108, published in part I of the Rajasthan Gazette dated 10-11-1951, that such powers were conferred upon the said officers after the orders complained of were made.

Prom the allegations in the petitions as well, it is clear that the actions of the officers concerned were not challenged as actions of Custodian. Deputy Custodian or Assistant Custodian under the Administration of Evacuee Property Act. It is, therefore, idle for Mr. Umrao Lal to contend that they acted as such. This argument was invented only for the purpose of showing that no alternative remedy lay to the petitioners by virtue of Section 46 of the Administration of Evacuee Property Act, and that notice was required under Rule 14 of the Administration of Evacuee Property Rules. Thiswas a belated attempt, and could not be of any advantage to the petitioners in the face of their case laid down in their petitions.

The S. D. O., Tahsildar or the Naib Tahsildar concerned can either be said to act as agents of the Government whose lessees the petitioners in all the three cases were at the time when the orders complained of were made, or they might be said to be acting without any legal authority. If they acted in the first-mentioned capacity, it is a case between the lessor and the lessee, and ordinary action can be brought against the lessor if the petitioners were illegally evicted in contravention of the terms of the lease or of law.

It has been held in a Division Bench case of this court in -- 'Budhmal v. Shri Gulab Singh', AIR 1952 Raj 151 (A) that the High Court will not use its extraordinary powers under Article 226 in cases arising out of contractual relationship, where there is specific remedy available otherwise, and where the harm done can be compensated for by a suit for damages for breach of contract. Similarly, in another case of Division Bench,-- 'Ganeshilal v. Director of Mines, Rajasthan', 1951 Raj LW 426 (B) it has been held that a dispute between a lessee and a lessor, the lessee being, the Rajasthan Government could well be settled in a regular suit, and that it was not a case for the issue of a writ of prohibition or certiorari or mandamus restraining the lessor from taking possession of the lands.

In the present case, as has been said above, the officers concerned either acted as agents of the lessor or as persons having no authority. Under the circumstances, the petitioners could either apply for reinstatement under Section 7 of the Tenants Protection Ordinance or could file a regular suit either in the revenue or civil court.

Their only fear at the time of the last hearing was that if they took up proceedings either in revenue or in civil court the opposite party might take the position that the proceedings were barred; by virtue of Section 46 of the Administration of Evacuee Property Act. This fear must be set at rest after the learned counsel for the opposite party has made a clear statement that the officers concerned did not act under the Administration of Evacuee Property Act as Custodian, Deputy Custodian or Assistant Custodian. So far as the primary relief of writs of prohibition and certiorari is concerned the latter writ is issued to an inferior court to quash the proceedings of that court which are in excess of its legal authority. Similarly, a writ of prohibition is issued to prohibit an inferior court from acting in excess of its legal authority. The order against which a writ of certiorari may be directed should be a judicial or quasi-judicial order. Their Lordships of the Supreme court in --'Province of Bombay v. Khushaldas S. Advani', AIR 1950 SC 222 (C) held that

'wherever any body of persons having legalauthority to determine questions affecting rightsof subject and having the duty to act judicially,act in excess of their legal authority a writ ofcertiorari may issue'.

Their Lordships further say that:

'When the law under which the authority ismaking a decision, itself requires a judicialapproach, the decision will be quasi-judicial.Prescribed forms of procedure are not necessaryto make an inquiry judicial, provided in comingto the decision the well-recognised principles ofapproach are required to be followed'.

In the present case, as has been said above, the S. D. O., the Tahsildar or the Naib Tahsildarconcerned have, in the context of the present casesnot been shown to be persons having legal authority to determine questions affecting rights of subjects or having the duty to act judicially. Even apart from the question of there being an adequate alternative remedy, therefore, no writs of certiorari and prohibition can be issued in the present case. We do not think, under the circumstances of the case, that this Court ought to exercise its extraordinary powers under Article 226 of the Constitution of India.

7. All the three petitions are dismissed, butunder the circumstances of the case we award theopposite parties no costs.


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