KESARLAL Vs. BHANWARLAL

JUDGEMENT

(1.) THIS is a revision against an appellate order of Collector, Tonk dated 9. 7. 56 reversing the order of the Tehsildar in a case relating to removal of encroachment upon Sarkari Parat Land.

(2.) WE have heard the learned counsel for the parties and have examined the record as well. A simple legal point in involved for decision in the case and it is this : "whether the court which is called upon to execute an order can go behind it and refuse to execute it if the order is found to be without jurisdiction. " To appreciate this point, the facts of the case may be stated briefly. A complaint was filed by one Chhotu Balai against Ramchandra to the effect that he had erected a Kham compound wall and had thereby encroached upon Sarkari Parat Land. Ramchandra pleaded that he was living with the permission of Bhanwarlal and that the construction complained against was made by Bhanwarlal. Bhanwarlal admitted having made the construction but pleaded his own property in the land. Kesarlal also applied for being made a party to this proceeding on the ground that a Pacca house was in the vicinity. After necessary inquiry, the Tehsidar imposed a fine of Rs. 11/-upon Bhanwarlal for taking possession of another's Kham house. Kesarlal appealed to the Assistant Collector who inspected the site and passed an order directing demolition of the newly constructed wall, resumption of the Kham house and imposition of a fine of Rs. 11/- upon Bhanwarlal. An appeal was filed before the Collector who upheld the decision of the Assistant Collector. The case came up in revision before the Board The learned Membsrs of the Board who heard this revision were of the opinion that resumption of the Kham house was not justifiable and to that extent to orders of the lower courts were set aside. As regards demolition of the construction and imposition of the fine the decisions of the subordinate courts were however confirmed. Thereupon Shri Bhanwarlal filed a writ petition before the hon'ble High Court of Judicature for, Rajasthan which was decided on 17. 2. 55. Their Lordships were pleased to observe that "no law or regulation provided for the imposition of a fine and to that extent the order of the Board was 'set aside. As for demolition of the construction it was observed by the hon'ble High Court that Bhanwarlal lead a claim to the proprietary interest in the land in dispute and the same depended upon proof of facts and hence it was held that a regular suit can provide an adequate and efficacious remedy in the circumstances of the case. On behalf of the Government an undertaking was given before the hon'ble High Court that execution proceedings of the order would not be carried out till the expiry of the period of notice under Sec. 80, C. P. C. so that Bhanwarlal may have an opportunity to serve the Government with a notice in case he desired to file a suit. On 27. 10. 55 Kesarlal applied to the Tehsildar for demolition of the wall on the strength of the decisions of the Board and the hon'ble High Court. The Tehsildar directed demolition by his order dated 29. 12. 55. An appeal was filed against this ¦order before the Collector who in view of the observations of the Board contained in Kesarlal vs. Chhaganlal (1955 RRD 203) held that the order of the Tehsildar directing demolition was illegal and consequently set aside the same. Kesarlal has come up in revision against this order.