YASUDEEN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By the instant writ of certiorari the petitioner seeks to quash the judgment dated Jan. 31, 1995 of the learned Division Bench of the Board of Revenue Ajmer, whereby the special appeal preferred by the Urban Improvement Trust Jodhpur (in short the UIT) was allowed and the judgment of the learned single Bench of the Board of Revenue Ajmer dated May 30, 1986 was set aside.

(2.) Brief re'sume' of the facts is that in the city of Jodhpur, there lies a big chunk of land titled as Khasra Nos. 751/1160, 751/1157, and 751/1159 measuring 40 bighas situated at Khema Ka Kuan, Pal Road Jodhpur. The Collector Jodhpur vide order dated October 16, 1975 converted the said land into Abadi land and placed it at the disposal of the UIT on payment of 40 times the land revenue. This order was called in question by the petitioner by filing an appeal under Section 75 of the Land Revenue Appellate Authority Jodhpur on the ground that the land in question was not unoccupied Government land and it was erroneously placed at the disposal of the UIT. It was also contended that the land was possessed by the petitioner and he was the title holder of the said land having possession over it since ancestral time and the Collector Jodhpur had no right to hand over the same to UIT. The Revenue Appellate Authority Jodhpur vide order dated July 2, 1976 set aside the aforequoted order of Collector Jodhpur and allowed the appeal. Thereafter two appeals were preferred against the order of the Revenue Appellate Authority before the Board of Revenue Ajmer by the State of Rajasthan as well as by the UIT. The Board of Revenue after examining the old revenue record of Jodhpur State gave positive finding that the land in dispute was not the Government land but a private property of the petitioner who is having a patta over it and rejected both the appeals vide judgment dated February 25, 1983. The State of Rajasthan assailed the judgment of the Board of Revenue by filing writ petition before this Court. The petitioner placed communication dated March 19, 1983 (Annexure 4) addressed by the Deputy Secretary to the Government Advocate Board of Revenue Ajmer advising him that the writ in the matter is not desirable as the order of the Collector against the party was passed without giving an opportunity of being heard which was against the principles of natural justice. Thereafter the Legal Remembrancer to the Govt. of Rajasthan wrote a letter dated October 11, 1983 to the Government Advocate Jodhpur that if the writ petition has been filed and not listed for hearing the same may be recalled or withdrawn without further delay. If the writ petition had not been filed then the papers may be returned to the department. S. B. Civil Writ Petition No. 1432/1984 State of Rajasthan and another v. Yashubuddin and others was listed before this Court and the Government Advocate made a statement that the writ petition has become infructuous and the State did not want to press it therefore the writ petition was dismissed as not pressed vide order dated October 10, 1985. Thereafter the UIT submitted a review petition before the single Bench of the Board of Revenue Ajmer seeking review of the judgment dated February 25, 1983, but the said petition was dismissed by the learned single Bench vide its judgment dated May 30, 1985. Against this judgment the UIT preferred special appeal under Section 10 of the Land Revenue Act before the Division Bench of the Board of Revenue. The learned Division Bench allowed the appeal as indicated hereinabove.

(3.) Mr. Rajendra Mehta, learned counsel appearing for the petitioner canvassed that the judgment of the Board of Revenue dated Feb. 25, 1983 was merged in the order dated Oct. 10, 1985 passed by the High Court and therefore it could not have been reviewed, second limb of argument of Mr. Mehta learned counsel appearing for the petitioner is that in view of the provisions contained in proviso of sub-section (1) (b) of Section 10 of the Act, the special appeal could have been filed before the Division Bench against the decision of single Bench only after seeking declaration of learned single Member who passed the order that the case was fit for appeal. Reliance was placed on Shree Narayana Dharmasanghom Trust v. Swami Prakas-nanda (1997) 6 SCC 78 .