- (1.) All the afore-mentioned fifty writ petitions are being decided by this common order as in all of them identical and similar questions of law and facts are involved. S. B. Civil Writ Petition No. 3484/2002
(2.) This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner on 11-9-2002 against the respondents with the prayer that by an appropriate writ, order dr direction, the order dated 9-1-2001 (Ex. 1) passed by the respondent No. 2 Air Officer Commanding an-d Estate Officer, Air Force Station, Jodhpur by which he in exercise of the power conferred under the provisions of Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the Act of 1971") ordered the petitioner and other persons to vacate the premises in their occupation mentioned in schedule within 15 days of the date of publication of that order and the judgment dated 13-8-2002 (Ex. 2) passed by the learned Addl. District Judge No. 2, Jodhpur (respondent No. 3) by which the appeal of the petitioner against the order Ex. 1 was dismissed, be quashed and set aside and the respondents Nos. 1 and 2 be retrained from interfering with the petitioners peaceful possession and enjoyment of the property in dispute.
(3.) The case of the petitioner as put forward by him in this writ petition is as follows : The case of the petitioner is that he has his immovable property i.e. residential house in Haripura Vyas Colony (for short "Colony") located towards east of the old Jodhpur-Pali Road near the Air Force Area, Jodhpur. According to the petitioner, the said Colony is in existence for more than 30 years and the persons residing in this Colony including the petitioner have constructed their own houses and are living there with their families. They have their family ration cards, water and electricity connections and sewerage line connected with the sanitary line constructed by the Urban Improvement Trust, Jodhpur and the names of the eligible electors appear in the voter lists of the Lok Sabha, Rajsthan Vidhan Sabha and the Municipal Corporation of Jodhpur. Identity cards have also been issued to them. The further case of the petitioner is that a survey was got conducted by the Urban Improvement Trust, Jodhpur time and again and ultimately the State Government took a decision to regularise the inhabitants of this Colony by issuing licenses and lease deeds in their favour. When the Urban Improvement Trust started issuing lease deeds, objections were raised on behalf of the respondents Nos. 1 and 2 not to issue leases. The respondents Nos. 1 and 2 claimed that the Colony is habited on the land belonging to the Air Force. When a threat of demolition and dispossession was raised, number of persons residing in the colony approached civil Court for redress against the respondent No. 2 and so also the Urban Improvement Trust, Jodhpur. A dispute was raised in between the defendants i.e., the respondents Nos. 1 and 2 on the one hand and the Urban Improvement Trust, Jodhpur, on the other hand as to whom the land under the colony belonged. Since the old and established possession was there the civil Court issued an order that persons in established possession cannot be dispossessed without following due process of law. The Urban Improvement Trust categorically stated before the civil Court that in case land belongs to the Trust they are going to regularise possession by issuing title deeds. The further case of the petitioner is that when a title is disputed as to whether the land belonged to the State Government and vested in the Urban Improvement Trust or whether it belonged to the Air Force, the same can only be decided by a competent Civil Court or the revenue Court by a regular suit. The further case of the petitioner is that the respondent No. 2 Estate Officer gave a notice under Section 4 of the Act of 1971 nearly to 61 persons (inhabitants of that colony) and all persons submitted their replies and alleged that the respondent No. 2 had no jurisdiction whatsoever to issue any notice to them as the land in dispute does not belong to Air Force and, therefore, the proceedings initiated under the provisions of the Act of 1971 are contrary to law and in view of this fact, order Ex. 1 passed by the respondent No. 2 cannot be sustained. Apart from this, it has been further submitted by the petitioner that the land asalleged by the respondent No. 2 belongs to the Air Force and the respondent No. 2 himself is the Estate Officer i.e. Judge in his own cause and passed the order Ex. 1 under Section 5 of the Act of 1971 and, therefore, order Ex. 1 itself is vitiated since no one can be a Judge in his own cause. From this point of view also, order Ex. 1 cannot be sustained. The further case of the petitioner is that the respondent No. 2 Estate Officer took a subjective decision and passed an order Ex. 1 against the petitioner and other persons. Aggrieved from that order Ex. 1, all the persons including the present petitioner preferred an appeal under Section 9 of the Act of 1971 before the Appellate Authority i.e. respondent No. 3 Addl. District Judge No. 2, Jodhpur, but the respondent No. 3 dismissed the appeal of 56 persons vide judgment dated 13-8-2002, a copy of which is marked as Ex. 2. Hence, this wrilxpetition with the prayers as stated above. In this writ petition, the following submissions have been made by the petitioner: (i) That the Colony is habited in Khasra No. 676 and admittedly 92 bighas 7 biswas of land of that khasra vests In the Urban Improvement Trust, Jodhpur and 41 bighas 6 biswas of land belongs to the Defence Department. The dispute is as to on which part the petitioner and other inhabitants (other petitioners) of that colony have their residential houses. When the dispute was raised before the Tehsildar, Jodhpur, the Tehsildar vide letter dated 5-7-1999 categorically stated that it was not possible to identify the land separately. But even then In Ex. 3, the land of khasra No. 676 belonging to the colony was marked as belonging to Defence Department and these wording on the schedule annexed with Ex. 3 were written without any basis and the findings recorded by the respondent No. 2 Estae Officer in his impugned order Ex. 1 and similarly by the respondent No. 3 Addl. District Judge No.2 in his judgment Ex. 2 were based on these wordings and thus, the findings of the respondents Nos. 2 and 3 are perverse and erroneous one and should be set aside. (ii) That the dispute can only be decided by civil or revenue Courts and not by the respondent No. 2 Estate Officer, who himself is a party and who himself started the proceedings. (iii) That unless a clear demarcation is made of Khasra No. 676 by a competent Court, no proceedings can be initiated by the respondent No. 2 Estate Officer. (iv) That the respondent No: 3 Appellate Authority during the course of hearing of appeals called for relevant record and a perusal of letter dated 5-7-1999 written by the Tehsildar, Jodhpur to the Secretary, Urban Improvement Trust, Jodhpur reveals that the houses constructed in that colony were not in a properly demarcated manner and from letter Ex. 4 dated 16-5-2001 which was written by the Secretary, Urban Improvement Trust, Jodhpur to the Addl District Judge No. 2, Jodhpur (respondent No. 3), it further appears that" from khasra No. 676, 92 bighas 7 biswas of land was allotted to the Urban Improvement Trust, Jodhpur and 41 bighas 6 biswas of land was allotted to the Defence Department, but the persons, who were in occupation and possession were demanding regularisatioh of their plots etc. Therefore, it has been submitted by the petitioner that even Ex. 4 does not make-out the position clear about.the demarcation of the land. Hence, the present dispute is as to whether the land in dispute belongs to the UIT or to the Air Force and 83 that can only be decided by revenue or civil Court after taking evidence in accordance with law and not in the maner as has been done by the respondent No. 2 through Ex. 1. A reply to the writ petition was filed by the respondents Nos. 1 and 2 and it has been averred by them that the petitioner has suppressed an important aspect of the case that the petitioner filed a civil suit being suit No. 206/99 before the Court of Additional Civil Judge (Junior Division) No. 2, Jodhpur and the said suit was partly allowed on technical ground vide judgment and decree dated 21-4-2001 and the copy of said judgment and decree was prodyced by the learned counsel for the respondents during the course of arguments and the same is marked as C-l and in the said judgment C-l, the present petitioner and other petitioner were treated as trespassers. (The details of the judgment C/l shall be discussed later on at appropriate place). It has been further averred by the respondents that since the petitioner was in unauthorised occupation of the land in dispute, therefore, proceedings under the provisions of the Act of 1971 were rightly initiated against him by the respondent No. 2 and, therefore, order Ex. 1 passed by the respondent No. 2 Estate Officer and judgmentEx. 2 dated 13-8-2002 passed by the respondent No. 3 Appellate Authority cannot be challenged. It has been further averred by the respondents that since the petitioner has been adjudged as trespasser by the, competent civil Court, therefore, he has no right whatsoever over the land in dispute and furthermore, he is not entitled to get any relief under Article 226 of the Constitution of India because he has no enforceable right to remain on the land in question and since through judgment and decree dated 21-4-2001 (C-1), a finding has been given by the Civil Court that the respondent No. 1 is the owner of the land in dispute, therefore, from this point of view also, the petitioner has got no case. Hence, it was prayed that the writ petition filed by the petitioner, be dismissed. ; i;