S.K.MAL LODHA, J. -
(1.)THE unsuccessful petitioner in a petition under Article 226 of the Constitution has filed this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 against the order dated Decerhber 18, 1975 of the learned Single Judge, by which, the writ pelition was dismissed summarily.
(2.)IN view of the conclusion to which we have arrived at after hearing the learned Counsel for the parties, it is not necessary to state the facts in detail. Suffice it to mention that the petitioner -appellant filed the writ petition on December 15, 1975 for quashing the order dated August 31, 1974 of the Deputy Colonisation Commissioner, Vijaynagar and for a direct on that the respondents may be restrained from dispossessing him from the lands in dispute until his eligibility for permanent allotment in respect of the lands in dispute is determined and decided under the Rajasthan Colonization (Allotment and Sale of Government lands in the Rajasthan Canal Colony Area) Rules 1975 (for short 'the Rules' herein). The vires of Rules 2(xv), 3(2) and 4(4) of the Rules was also challenged. It may be stated that Respondent No. 4 Malaram was not impleaded as a party in the writ petition. After the decision of the want petition an application was Sled by Malaram on January 15, 1983 along with some documents. On July 5, 1983, an order was made that Malaram be impleaded as respondent No. 4 as his presence was necessary before the Court in order the effectually adjudicate the controversy involved in the appeal.
Respondents No. 1 to 3 contested the writ petition before the learned Single Judge. Before the learned Single Judge, two contentions were raised, viz. (1) that the Rules are bad and liable to be struck down in as much as under Rule 5 it has been provided that temporary cultivation lease -holders and landless persons besides two more classes of persons will be eligble for allotment of Government land for agricultural purposes under the Rules but both for landless persons as well as temporary cultivation lease holders as defined in Rule 2(xiii) and (xvii) it is provided that they must be residents of Rajasthan and a 'resident' of Rajasthan' has been defined under the same rule against item No (xv) as a person who is ordinarily residing in Rajasthan since before the 1st day of April, 1955 and shall not include a person ordinarily resident of any other state who has been coming to Rajasthan only from seams to season for the purpose of cultivation of land, and (2) that direction regarding dispossession given against the petitioner by order dated August 31, 1974 purporting to be under Section 22 clause (3) of the Rajasthan Colonization Act is bad and liable to be struck down. While dismissing the writ petition, the learned Single Judge by his order dated December 13, 1975 recorded the following findings:
(1) that the definition of 'landless person' as given in the Rules is not ultra vires and it does not suffer from any unconstitutionality; (2) that it was not open to the petitioner to question the order (Ex 4) dated November 13, 1964 of the Deputy Colonization Commissioner by which the petitioner was found to be tress -passer in respect of Khasras No. 279 and 302. The Second contention was, therefore, repelled without going into the merits of it.
In this appeal, respondent No. 4 has filed documents which are contained in the supplementary paper -book showing that out of two khasras in dispute, one was allotted to him on October 28, 1974 aid Patta was also issued. In pursuance of the allotment order, respondent No 4 was put in possession on February 26, 1975. During the course of arguments, Mr. K.L, Purohit, learned Counsel for the appellants has filed certified copy of the judgment dated August 26, 1976 of the Sub Divisional Officer (Revenue) Raisinghnagar Malraam v. Charansingh Revenue Suit No. 224 of 1976. It was submitted that some of the document filed by respondent No. 4 may not be considered and that the certified copy of the aforesaid judgment may be taken into consideration while disposing of the appeal. It is not necessary to express any opinion as to whether the documents filed by respondent No. 4 and the appellant should be read as an additional evidence in this appeal. The appeal can be disposed of on a short point. It is not in dispute that by means of Ex. 4 dated November 13, 1964, the petitioner -appellant was found to be trespasser regarding Khasras No. 279 and 302. A perusal of Ex. 8 dated August 31, 1974 shows that against the order (Ex 4) dated November 13, 1964, appeal and review were filed by the petitioner -appellant and the orders passed thereon were agitated before this Court but the petitioner could not succeed Mr. Purohit, learned Counsel for (he petitioner -appellant submits that against the order (Ex 4) dated November 13, 1964, revision and review were filed and that notices under Sections 22/24 of the Rajasinan Colonization Act, 1954 were issued and as by order (Ex. 4) dated November 13. 1964 the petitioner -appellant was found to be a trespasser in respect of the Khasras in question, those notices culminating in passing the order (Ex. 9) dated Aug. 31, 1974. The learned Single Judge, in our opinion, was right when he held that the order (Ex. 8) dated August 31, 1974 was in pursuance of the order (Ex. 4) dated November 13, 1964 by which it was held that the petitioner -appellant was liable to be dispossessed froe land in dispute. Tin order (Ex. 4) though was not directly under challenge was indirectly sought to be challenged by attacking the order (Ex. 8) dated August 31, 1974. As the, writ petition was filed on December 15, 1975, the learned Single Judge has refused to go into the question as according to him the petition was belated regarding the validity of the order (Ex. 4) dated November 13, 1964. It was also conceded before him that that order has been taken in appeal before the higher authority and that appeal is pending. As stated above, he was further of the opinion that in view of the order (Ex. 4) dated November 13, 1964, the petitioner had no right or title to the land in dispute and had occupied the same without lawful authority and, therefore, the order (Ex. 8) dated August 31, 1974 cannot be interfered with, for, the basic order is Ex. 4 dated November 13, 1954. The learned Single Judge in express of his discretion has refused to grant any relief to the petitioner on this ground. It is well settled that in a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, when the learned Single Judge has refused to issue a writ in exercise of his discretion, than until and unless it is shown that that discretion has not been properly, reasonably or judiciously exercised or there are other strong reasons to justify the interference, it should not be interfered with. Reference in this connection may be made to Rajinder Prashad v. The Punjab State AIR 1966 Punjab 185 (F.B.) Rajinder Prashad's case AIR 1966 Punjab 185 (F.B.) has been followed by the Division Benches of this Court in several other cases. As we agree with the learned Single Judge in respect of his findings recorded in respect of the second contention, we do not consider it necessary to examine the question relating to the validity of the Rules under challenge.
(3.)MR . B.L. Purohit, learned Counsel for the petitioner -appellant informs us that the revenue litigation pending between the parties has not reached its finality and the result of that litigation has bearing on the question regarding the eligibility for permanent allotment of land in question to the appellant.