Decided on July 21,1960

TULCHA Respondents


- (1.)THIS revision against an appellate order of the learned Divisional Commissioner, Bikaner dated 11. 8. 59 arises from the following facts : -
(2.)GRAM Panchayat of village Thawaria approached the Government to earmark suitable area for grazing purposes in the village by passing a resolution in terms of Sec. 24 (22) and rule 10 of the Rajasthan Panchayat Act. A formal application in this behalf was also made by the Sarpanch to the Tehsildar. Collector and other Officers. The Tehsildar accordingly made an enquiry and recommended that land including Khasra Nos. 128, 131, 132, 307 which were in the occupation of Khatedars including the opposite party could be earmarked for pasturage if Khatedars were given another land in exchange which was available in the village. The S. D. O. endorsed this recommendation and submitted the case to the Collector who, however, directed the S. D. O. to obtain the consent of the khatedars by giving them other land in exchange or to acquire the land after paying them due compensation. Without complying with these directions the S. D. O. simply issued a proclamation under Rule 6 of the rules framed under Sec. 5 (28) of the Rajasthan Tenancy Act and as no objections from any quarters were received, he proposed that the land be earmarked for the said purpose. The Collector in his turn again issued a proclamation and as no objections were received from Khatedars including the opposite party, he passed an order declaring 592 bighas, 4 biswas land as pasture land for the village. This area included occupied land of the khatedars as well as some unoccupied land of the village. The opposite party filed an appeal against the said order of the Collector before the learned. Commissioner, who, after examining the provision of the rules referred to above, observed that only unoccupied area could be earmarked and occupied area could be so included without acquiring the same. Accordingly the order of the Collector in so for as it concerned Khasra Nos. 128, 131, 132 and 307 was set aside and the appeal was allowed to that extent. In revision it has been urged by Shri Lamror that as the opposite party did not implead the applicants who were the necessary party to the appellate proceedings, the, appeal filed before the learned Commissioner suffered from the defect of non-joinder of a necessary party and should have been on these grounds alone dismissed by him. It was also pointed out that the applicants having learnt of these appellate proceedings pending before the learned Commissioner made an application on 11. 8. 59 in which they requested themselves to be impleaded as a necessary party to the appeal but no order whatsoever except 'shamil Rahe' was given by the lower court. We have looked into the application referred to above. It was presented before the learned Commissioner on the date when the judgment was pronounced by him. The order sheet read in this context, however, shows that the counsel for non-applicant alone was present, which, in our opinion, clearly indicates that the impugned application was presented after the case had been heard and the judgment was duly announced. Ordinarily the court should have filed the application with the remark that it was presented after the decision but somehow it seems to have escaped its notice. This being so we hold that the application could not be looked into as it was presented after hearing the arguments and announcing the judgment. This brings before* us the main contention namely whether the proceedings before the lower courts stood vitiated on account of non-joinder of a necessary party. O. 1, R. 9 C. P. C. makes the distinction between a necessary party and proper party and the effect of their non-joinder on the suit. A necessary party is one in whose absence the court cannot pass an effective decree at all, whereas the proper party is one whose presence is necessary in order to enable the court to completely and adequately adjudicate on all the matters involved in the proceedings. If the non-joinder is only of proper, as contrasted with a necessary party, it can never be in itself fatal to the suit. But in the case of a necessary party the court cannot decide the suit at all in its absence. In the present proceedings what we really find is that the State was made a party by the non-applicant in the appeal before the learned Commissioner. The unoccupied land in a village unless it vests in somebody belongs to the State and its conversion into the village pasture or for any other purpose eventually causes loss in the revenue. It was for this reason that the State was impleaded as a necessary party as no final order would have been effective without impleading the State. The GRAM Panchayat's interest was only to the extent of having this land earmarked. It was at best a proper party in the appeal and its non-joinder could not effect the merits of the case to the extent as urged before us at the bar. In this view of matters we hold that the omission on the part of the learned Commissioner to implead the applicants as party to the proceedings before him do not vitiate the decision under revision. Coming to the merits of the case it is clear beyond doubt that the law as given in Rule 6 of the Rules referred to above empowers Collector to earmark only unoccupied land and gives him no jurisdiction to include occupied land held by the khatedars. In fact the manifest intention of the framers of the legislation on tenancy laws in the State is that no person in lawful occupation of a holding can be deprived of his possession except by due process of law and no such holding can be acquired for any purposes whether private or public except by acquiring it on payment of compensation in accordance with provision of law in this behalf. The learned Commissioner was therefore fully justified in excluding the land held by the Khatedars from being included in the village pasture land. It was stated at the bar by Shri Lamror that some of the non-applicants had voluntarily surrendered pendente lite the whole or a portion of their holding for this purpose. We are not for the moment concerned with the merits of this statement. If some of the Khatedars have actually done so in full consciousness of their rights according to the provision of law in this behalf the applicants should feel satisfied. In case it is not so they may if so advised approach the competent authority for initiating acquisition proceedings in a lawful manner. In the result the decision given by the learned Commissioner is upheld and the revision petition stands dismissed. R. N. Hava.- I concur. I would, however, also like to add that Rule 6 authorised the S. D. O. to earmark and the Collector to sanction pasture land only out of an unoccupied area. Any action taken by them, therefore in relation to occupied area, knowing fully well that it was occupied by certain persons as khatedars, was ultra vires of them. Failure to respond to any proclamation issued thus in excess of their powers could not affect the rights of such Khatedars in any way. .

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