HARDEO Vs. SYED HIMAT ALI

JUDGEMENT

(1.) PER Shri Kanwar Bahadur : This revision has been filed against an appellate decision of the learned Commissioner, Ajmer dated 7-12-59. The short facts of the case are as follows :

(2.) THE plaintiff-applicants filed a suit under Sec. 91 and 92 (a) of the Rajasthan Tenancy Act with the averment that they were Biswedars and residents of village Jharawasa, Tehsil Ajmer wherein Khasra No. 732 measuring 661 Bighas and 6 Biswas was demarcated and classified as Bir in the current settlement records. It was stated that this land had been used by all the villagers as pasture land for their cattle numbering 4500 since time immemorial. THE opposite party after coming into force of the Ajmer Abolition Intermediaries and Land Reforms Act, 1955, applied under sec. 27 to the Collector, Ajmer for allotment of land for their personal cultivation out of Khasra No. 732. It was prayed that the opposite party be restrained by means of mandatory injunction from claiming any right over this land except grazing their cattle, if any, alongwith the applicants in the suit land, and that the said land be declared as Gochar Bhumi of village Jharawasa. THE applicants also made an application in which they prayed for the issue of a temporary injunction against the non-applicants pending disposal of the main suit on 25. 8. 58. THE trial court issued an exparte order without having ever issued any notices to the non-applicants as in its opinion, there was an imminent threatening of the rights of the applicants. THE non-applicants thereafter filed their written statements also in which they completely denied the allegations made in the plaint. THEy also objected to the issue of an exparte temporary injunction against them. THE case lingered on for more than a year when the succeeding Asstt. : Collector not only vacated the temporary injunction issued by his predecessor against the non-applicants but also dismissed the suit. An appeal was filed against this order by the applicants before the learned Commissioner. He observed that as the land in question was entered in the Settlement Records as 'bir' the applicants had no right to ask for a declaration that it was the Gochar Bhumi or that it could not be allotted to the non-applicants for purposes of cultivation. Accordingly he also confirmed the order given by the Asstt. Collector, Ajmer. THE first question which arose for determination is whether in view of the proceedings under sec. 27 of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955, which were pending in the court of the Sub-Divisional Officer, Ajmer when the present suit was brought, the applicants instead of contesting those! proceedings could file this suit in a revenue court. It appears from the record that the non-applicants made an application before the Sub-Divisonal Officer, Ajmer under sec. 27 of the Act for allotment of land for Khudkasht upto the permissible limit. THE sub- Divisional Officer by his order dated 16. 7. 1957 sanctioned the allotment of 7 standard acres to each one of the non-applicants out of khasra No. 732 on the ground that none of them had any Khudasht or niji jot land in this jagir. This village allotment out of kharsra No. 732 was made because it was recorded as Bir land i. e. Government land out of which 165 bighas ware already under the control of the Forest Department. THE S. D. O. instead of submitting these proceedings to the Collector for confirmation gave the final order. THE applicants went in appeal before the Collector and raised a number of objections out of which the principal one was that they had a right to graze their cattle on this land, which was used as pasture land. THEse objections were over ruled by the Collector, Ajmer and the decision of the S. D. O. was modified only to the extent that some of the non-applicants were given smaller pieces of land than proposed by the S. D. O. and the claim of some of them was rejected as being time barred. THE claim of the applicants tot he effect that this land was a pasture land and that they have a right to graze their cattle thereon was rejected. In view of this decision of the Collector, Ajmer the arguments put forward by the learned counsel for the opposite party was that the present suit was barred under section 78 of the Act which lays down that "save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction to settle, decide, or deal with any question which is, by or under this Act, required to be settled or dealt with by the State Government, the sub Divisional Officer, the Collector, the Compensation Officer or the Compensation Commissioner. " THE submission was that as the applicants some how failed in achieving their object in the proceedings before the Collector, they had now brought this suit in respect of the same subject matter simply because undue harassment to the non-applicants. THE learned counsel for the applicants, however, urged that the order of the S. D. O. in the earlier proceedings was bad in the eye of law as he was not competent to give any such final order and as the dispute posed before him was whether the disputed land was or was not a Bir, he should have referred it to the Collector for determination under Sec. 76 read with rule 75 of the rules framed under the Act. Technically this objection may appear to be plausible, for the rules provide that such matters should not be finally disposed of by the S. D. O. , but should be referred to the Collector. What actually happened in the earlier proceedings was that the S. D. O. finally decided this question which eventually came up in appeal for a fresh determination by the Collector. He examined it independently on the basis of the facts before him and came to the conclusion that it was a Bir land and not a village pasture land. We are, therefore, inclined to the view that this slight deviation from the prescribed procedure has not caused any material prejudice to the parties. This being so we are of the view that the question whether Khasra No. 732 was a Bir, whether some strips out of it should be allotted to the non-applicants, and whether the applicants had any right to have it declared as Gochar Bhumi all these points had been thoroughly threshed out by the Collector and found in favour of the non-applicants. In the circumstances all these matters having been finally adjudicated upon by the Collector in the exercise of his powers under sec. 76 of the Act, the applicants' present claim is barred by sec. 78 of the Act. It is significant to point out that Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 is a special Act and the provision of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law and rules for the time being in force or any instrument having effect by. . . . . . . . . . . . (vide sec. 3 of the Act ). THE present proceedings even if I take them under sec. 91 and 92 (A) of the Tenancy Act cannot therefore be proceeded with. In the result 1 order that this revi-s. on shall stand dismissed. Per Shri R. N. Hawa : This revision against an appellate decision of the Commr. , Ajmer, dated 7-12-59 arises out of the following circumstances: - THE applicants filed a suit under sec. 91 and 92 (4) of the Rajasthan Tenancy Act. 1955 claiming Khasra No. 732 of village Jharwasa, Tehsil Ajmer, to have been demarcated and classified as Bir land in the current settlement and being used as pasture land for their cattle for time immemorial. This suit was brought in a representative capacity with due permission of the court under Order (1) Rule 8 C. P. C. on behalf of the residents of the village Jharwasa. THE occasion for the suit as stated by the applicants arose because of the opposite parties having got land allotted for their personal cultivation out of the said Khasra number under the provisions of sec. 27 of Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (hereinafter referred to as the Act ). This claim was contested by the opposite parties who are the Ex-Jagirdars of the Village. THEy denied that the villagers ever grazed their cattle on the disputed land as a matter of right. On the o:her hand it was alleged by them that the land had been in the possession of the Forest Department for improvement and experimental purposes from the year 1944 to 1954 and has ever since the release by the Forest Department been auctioned by the opposite party and the contractors had been either keeping the same for their exclusive use or allowing the village cattle to graze thereon on payment of certain charges. It was further contended that the suit was a miscon-cieved one, the subject matter there of being sub-judice before the Assistant Collector, Ajmer, under the provisions of sec. 27 of the Act and that: the matter being one liable to be dealt with under that Section, the Revenue courts had no jurisdiction to try it by virtue of sec. 78 of Act. It appears no issues were ever framed in the case. But long before the filing of the written statement by the opposite party an ex-parte temporary injunction order (because of the imminent threatening of the rights of the applicants by the opposite party) was passed by the learned Assistant Collector restraining the opposite party from interfering with the rights of the applicants. After a number of adjournments, probably because of the change of the incumbent of the office, the arguments were heard by the learned Asstt. Collector on 7. 8. 59, and on 21. 8. 59 he not only vacated the temporary injunction granted by him but also dismissed the suit of the applicants on the ground that the land had been recorded as 'bir' and not 'pasture land' and that the applicants had failed to establish their rights thereon. THE learned Commissioner, Ajmer, also rejected the appeal filed against this order of the Assistant Collector on same ground that when the disputed land was recorded in the settlement as 'bir' it did not give any right to the appellant for the grazing of their cattle. It is just possible that the learned Commissioner, as the opening lines of his judgment goes to show, might have treated the appeal before him only as an appeal against the order of refusal to grant a temporary injunction and, therefore, passed the order that he has done. But as he has rejected the appeal as it was filed before him and the order of the Assistant Collector purported to dismiss the whole suit, we have treated the order of the learned Commissioner also as purporting to dismiss the whole of the suit and heard this revision as such against the dismissal of the whole suit. We have heard the learned counsel for both the parties at length and have gone through the record carefully. At the very outset Shri Bishweswar Nath Bhargava appearing on behalf of the opposite party raised a point that as the suit could not lie because of the provisions of sec. 78 of the Act, which point had been raised on behalf of the opposite party even in their written statement, the revision should be rejected on that ground alone. THE argument of the learned Advocate Shri Bhumi Dutta appearing on behalf of the applicants was that as the learned S. D. O. dealing with the applications of the opposite party for the allotment of land for their personal cultivation had no authority to pass a final order thereon but still he had finally decided that, and that as the learned Collector, Ajmer instead of taking up the procee-dings by way of confirmation had heard an appeal against the decision of the learned S. D. O. and disposed of the matter as an appellate court, all the proceedings taken by the learned S. D. O. as well as the learned Collector were bad in the eye of law and, therefore, deserved to be ignored by the Revenue Courts, and could not be a bar to the decision of the present suit filed by the applicants. In essence, therefore, the real point for determination in the present case is whether sec. 78 of the Act barred or not any such suit for declaration against an order passed by the S. D. O. under sec. 27 of Act, or even regarding matters which could be dealt with by an S. D. O. under the provisions of that section. THE learned counsel for the applicants contends that there being no revision or appeal permitted against an order passed by the S. D. O. or the Collector under the provisions of the Act, there was no remedy excepting the filing of the suit for declaration left to the applicants and, therefore, the suit was in order and was not in any way barred by the provisions of the Act. Sec. 78 of the Act bars jurisdiction of Civil or Revenue Courts, as provided in the Act, to settle, decide, or deal with by the S. D. O. or the Collector and except as provided 111 the Act no order passed by the S. D. O. or the Collector can be called in question in any court. Allotment of land for personal cultivation to an intermediary whose jagir has been abolished under the Act is the subject dealt with by sec. 27 of the Act which requires that within six months from the date of vesting, the Jagirdar shall apply to the S. D. O. concerned for the allotment of such land to him. Sec 28 of the Act: requires the S. D. O. to issue notice to the applicant and oilier interested persons, if any, and to enquire in the manner prescribed alter giving the parties an opportunity of being heard, and pass an order of allotment after making such an enquiry. Sec. 29 deals with the principles regulating the allotment of such land to such an intermediary. Sub-sec. (4) of this Section lays down the categories of the land that: shall be allotted to such applicants along with the order in winch the same shall be so allotted. Laying down first Niji Jot land exceeding the minimum area in possession of a tenant: for less than three years on the date of vesting to the extent of such excess and then Niji Jot land not exceeding the minimum area in possession of a tenant for less than three years on the date of vesting shall be allotted to such an applicant, it goes to state that thereafter only any available culturable land in a village included 111 an estate or otherwise shall be allotted for the purpose. This goes to show that any other culturable land can be allotted for personal cultivation to Jagirdar only when a Niji Jot land described above is not available. Whether a Bir land, as admittedly the disputed land is falls under this category and can be so allotted or not under the provisions of this Section is a master entirely different not at all examined by any of the learned lower courts either in the present proceeding or in the proceedings relating to the grant of such land to the opposite party; nor is it material for the purpose of the decision of this revision by us. I shall, therefore, not examine it for the present. We arc concerned here only with the decision of the fact whether an allotment of land for personal cultivation to a Jagirdar is a matter to be settled, decided, and dealt with under the provisions of this Act or not. As is so clear from the perusal of the provisions of the Act referred to above, this is a matter to be dealt with and decided exclusively by the S. D. O. acting under sec. 27 of the Act. This being so the jurisdiction of any other revenue court in the matter is definitely barred by sec. 78 of the Act. Whether an allotment' order has been made validly or not also is therefore, a matter entirely out of the jurisdiction of the revenue courts. THE validity or otherwise of such an order passed by the S. D. O. or the Collector under the provisions of the Act can be examined under the provisions of sec. 66 (2) of the Act by the concerned appellate authority and not by a revenue court or a civil court in a suit for declaration or certain rights. Even if no proceedings have been taken under sec. 27 of the Act, no revenue or civil court can decide a suit for a declaration whether certain land can be allotted or not to an intermediary for purposes of personal cultivation under the provisions of the Act. .