- (1.) This writ petition has been filed by the petitioner Rishikesh Sharma assailing the order dated 25.05.2000, dismissing his appeal and order dated 21.07.2000, dismissing his review petition, passed by the Board of Revenue for Rajasthan, Ajmer(for short 'the Board of Revenue') and order dated 12.12.1997 passed by the Revenue Appellate Authority, Sikar(for short 'the RAA') with the prayer that the order dated 03.09.1997 passed by the Collector, Jhunjhunu and order dated 21.04.1997 passed by the Tehsildar, Udaipurwati be restored.
(2.) Briefly stated the facts of the case are that the petitioner is resident of Village Gudagodji, Tehsil Udaipurwati, District Jhunjhunu. The Tehsildar, Nawalgarh, on the report of Patwari concerned, initiated proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956(for short 'the Act') against Respondent No. 5. The allegation in the report was that he trespassed over the government land comprised in khasra No. 625(old) and 711(New) measuring 84 square yards situated in village Todi, Tehsil Nawalgarh, District Jhunjhunu. The Tehsildar, Nawalgarh vide order dated 06.01.1986 regularised possession of Respondent No. 5. The Gram Panchayat filed an appeal before the Collector, Jhunjhunu under Section 75 of the Act against the aforesaid order, who vide order dated 18.08.1986 set aside order of Tehsildar and directed ejectment of Respondent No. 5. Respondent No. 5 filed second appeal against the aforesaid order dated 18.08.1986 before the RAA, which vide order dated 21.05.1988 dismissed the same. The Board of Revenue vide order dated 06.04.1992 rejected revision petition filed by Respondent No. 5 and also rejected review petition filed thereagainst vide order dated 07.03.1995. According to the petitioner, Respondent No. 5, in the meantime, illegally construct seven shops on the land in dispute. The Tehsildar vide his order dated 21.04.1997 ordered ejectment of Respondent No. 5 and confiscated seven shops constructed by him and the same were taken into possession on 26.04.1997. Appeal filed by Respondent No. 5 was rejected by the Collector, Jhunjhunu vide order dated 03.09.1997. However, the RAA accepted the appeal of the Respondent No. 5 vide order dated 12.12.1997 and regularised the trespass and unauthorised constructions over the land in dispute. The petitioner filed revision petition against the order passed by the RAA, which was dismissed vide order dated 25.02.2000. The petitioner thereafter filed review petition, which too was dismissed vide order dated 21.07.2000. Hence, this writ petition.
(3.) Mr. R.K. Goyal, learned counsel for the petitioner has submitted that the RAA in its order dated 12.12.1997 has wrongly held that the Board of Revenue, while rejecting the appeal of Respondent No. 5 in earlier order dated 01.03.1995, has directed that the Respondent No. 5 could move the competent authority for regularisation of his unauthorised construction. In fact, no such direction was given by the Board of Revenue. Rather, it rejected his revision petition vide order dated 06.04.1992 upholding order of Collector, Jhunjhunu dated 18.08.1986 and the order of the RAA dated 21.05.1988. The RAA seriously erred in accepting contention of Respondent No. 5 that Tehsildar had regularised illegal trespass vide order dated 30.05.1983 accepting his possession over the disputed land since 1964 and issued patta on 16.12.1983. The order of Tehsildar was set aside by the Collector by detailed order dated 18.08.1986, in which the Collector held that Respondent No. 5 had failed to prove his possession over the disputed land since 1964. The order of Collector was upheld by the RAA vide order dated 21.05.1988 and by the Board of Revenue vide order dated 06.04.1992. The RAA, in second round of litigation, ought not to have gone behind those orders and pass a new order. Even despite order being passed by the RAA and Board of Revenue, Respondent No. 5 illegally constructed seven shops and such shops are liable to be demolished. It is argued that the Board of Revenue also lost sight of the fact that Respondent No. 5 had invoked jurisdiction of the Civil Court more than once and the Munsiff, Udaipurwati vide order dated 22.12.1993 refused to grant the relief to him. District Judge, Jhunjhunu dismissed his appeal vide order dated 07.07.1995. Respondent No. 5, later on withdrew the suit on his own request that no further suit will be filed by him and the stay application was dismissed by the Munsiff vide order dated 24.07.1995. Even then, Respondent No. 5 filed another suit in the Court of Munsiff, which was pending when the writ petition was filed. This suit was accompanied with temporary injunction application under Order 39 Rule 1 and 2 CPC. The Munsiff vide order dated 13.04.1999 dismissed that application. All these facts were concealed by Respondent No. 5 before the RAA. Therefore, the orders passed by the RAA and the Board of Revenue are liable to be set aside. Learned counsel for the petitioner has further argued that the land in dispute is the land of public way and gair mumkin pahad and no order of regularisation could be passed in respect of such land. Reference is made to order of Tehsildar, Nawalgarh dated 06.01.1986, wherein a finding is given that the disputed land is the land of public way and gair mumkin pahad. In support of this argument, learned counsel for the petitioner has placed reliance upon the judgments of the Hon'ble Supreme Court in Jagpal Singh & Others Vs. State of Punjab & Others, (Civil Appeal No. 1132/2011 decided on 28.01.2011); judgments delivered by this Court in Munna Lal & Others Vs. State of Rajasthan & Others, RRT 2009(2) 1241; Kajod Vs. Board of Revenue, RDD 1989 page 203.;