CHHIGANLAL Vs. KESARLAL

JUDGEMENT

(1.) THE circumstances that give rise to this revision may briefly be stated thus: Shri Keshrlal and Shri Chandmal presented an application before the Tehsildar, Niwai on 23-12-50 with the allegations that Chhiganlal bad carried out certain pucca constructions over Government land without obtaining prior permission. THE Tehsildar after enquiry held that the constructions carried out by Chhiganlal amounted to encroachment upon Government land and directed their demolition. Chhiganlal went up in appeal before the Collector Tonk, who agreed with the findings arrived at by the Tehsildar and hence rejected the appeal Chhiganlal has come up in revision before us.

(2.) WE have heard the learned counsel appearing for the parties and have carefully gone through the record as well. The most important point involved for decision in the case is as to whether the Tehsildar or the Collector could order demolition or removal of encroachment in an executive or semi-judicial capacity as has been done in the case. The learned Government Advocate was requested to assist us in arriving at a decision on the point. He appears to have contacted the Collector who has not been able to throw any light on the subject. A decision of the Board in case No. 36/tonk of the Svt. 2006, decided on 27-11-50 (Ramchandra vs. Kesarlal has been produced in the case where it was decided to demolish a wall and to impose a fine for encroachment on Government land. As the point which has been raised in the present case did not arise in that case and was not at all considered or examined by the learned Members of the Board who awarded their decision, little or no assistance is to be derived from that decision. The point was, however, raised before a Division Bench of the Rajasthan High Court in Bhanwarlal vs. Rajasthan Board of Revenue, decided on 17-2-55. In that case the allegations of the petitioners were that they repaired the walls of their house after obtaining permission from the Municipal Board of Niwai which was accorded on the 2nd April. 1948. One Chotu filed an application in Tehsil Niwai on the 9th of April, 1948 that the land on which the wall was constructed by the petitioners belonged to the Government and that the petitioners had encroached thereon. The Tehsildar on the 21st June, 1949, after ordering an inquiry through the Naib-Tehsildar, imposed a fine of Rs. 11/- on Bhanwarlal Tiwari for sub-letting his Kham house to Ramchandra Teli. One Kesarlal Chabra who was a neighbour of the petitioners filed an appeal against the order of the Tehsildar before the Assistant Collector who on 14th of December, ordered resumption of the land on which the Kham house of the petitioners stood and also ordered demolition of the wall erected by the petitioners. The fine of Rs. 11/- imposed by the Tehsildar was also confirmed. The petitioners went in appeal to the Collector who on the 30th of March, 1950, upheld the order passed by the Assistant Collector. The petitioners went up in appeal to the Board of Revenue who on the 27th of November,1950 modified the order of Collector in so far as resumption of the land on which the house of the petitioners stood, was concerned and excepting resumption of the land, the order of the Collector was confirmed. The petitioners went up before the Hon'ble High Court in a writ petition on the ground that the Board of Revenue and authorities which were impleaded as opposite parties in that petition had no jurisdiction to impose a fine or to order demolition of the wall or resumption of the land. It would thus appear that the facts of this revision are almost similar to those of the writ case decided by the Hon'ble High Court. The following observations of the learned Judges may be quoted extensively. "it was conceded by the learned counsel of both the parties that the case relating to encroachment on Government land does not fall within the scope of the Jaipur Land Revenue Act of 1947, Jaipur Tenancy Act, 1945 and Jaipur State Grants Land Tenure Act 1947. No other provisions of any law was cited under which the revenue courts could exercise their powers in a matter like the present one. Hidayat issued by Alia Council on the 13th of June, 1925 was cited by Mr. Rastogi which provides that no one shall be entitled to repair a pukhta or a Kham house without permission from the proper authorities excepting the cases specified therein. It is further provided that contravention of the hidayat would render one liable to a penalty and the structures so constructed would also be liable to be demolished. No procedure has been provided in the hidayat referred to by Mr. Rastogi nor does it lay down as to which officers would take cognizance of such cases. It is also not clear if redress in civil courts for safeguarding the rights to the Government property was contemplated by the hidayat. Much assistance cannot be had from the hidayat because it is very vague. It is also not clear whether the said hidayat has force of law as it has not been shown whether it was published and whether it was made in exercise of the legislative powers of the State Council of the then Jaipur State. However, leaving that aspect of the case aside, it is evident that hidayat is of no avail to the case of the parties. No other provision of law has been referred to under which the Collector, the Assistant Collector or the Tehsildar could act judicially or quasi-judicially or to adjudicate upon the rights of the parties in cases of encroachment on the Government lands. Under these circumstances, it seems difficult to hold that the Collector, the Assistant Collector or the Tehsildar in the present case had acted except in the matter of imposition of a fine in the exercise of the revenue powers or judicial or quasi-judicial functions. It seems, the officials were guided by the sense of responsibility in safeguarding the interest of the Govt. against encroachment on the Govt. lands by private individuals. " The action was however interpreted as being in exercise of the administrative functions of this Officer and was held not liable to correction by a writ of certiorari. The fine imposed in the case was set aside by the learned Judges but as for other matters the learned Judges did not express any opinion and left the petitioners to seek their redress in a competent civil court. The learned counsel appearing for the opposite party including the Government Advocate have frankly conceded their inability to show us any law, rule or regulation whereby the Collector or the Tehsildar may have legal authority to remove encroachments or to inflict punishments upon them. Executive authorities can discharge those functions or perform those duties or wield those powers only which are vested in them by the legislature. In the absence of any enactment such executive decisions like removal of encroachments upon Government land by administrative orders can find no section in the eye of law. The observations made by the learned Judges of the High Court throw ample light upon the question posed before us and we are in respectful agreement with the views expressed therein The action of the Tehsildar and the Collector is clearly ultra vires. WE would, therefore, allow this revision, set aside the orders of the lower courts and direct that no action regarding demolition of the construction shall be taken against the applicant as ordered by the Tehsildar. It will be open to the Collector to take such suitable action against the applicant as may be valid in the eye of law. .