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Whether decree in favour of Dead person is nullity?

IN THE HIGH COURT OF RAJASTHAN
(JODHPUR BENCH)

S.B. Civil Writ Petition No. 2756/2000

Decided On: 04.05.2017

Khairati Lal
Vs.
State of Rajasthan and Ors.

Hon’ble Judges/Coram:Arun Bhansali, J.

1. This writ petition has been filed by the petitioner aggrieved against the orders dated 12/12/1995 passed by the Revenue Appellate Authority, Sriganganagar and judgment dated 21/7/2000 passed by the Board of Revenue, whereby, the appeal filed by the respondent Smt. Meera has been accepted by the Revenue Appellate Authority and the revision petition filed by the petitioner has been rejected by the Board of Revenue, respectively.

2. The petitioner was allotted land ad measuring 2 Bigha 18 Biswa in Muraba No. 237/14 as a small patch by order dated 28/12/1987. The said land comprised in Muraba No. 237/14 had already been allotted to Budh Ram s/o Sardara Ram on 30/5/1985. It is claimed that said Budh Ram in fact died in the year 1981 itself.

3. An order dated 2/3/1995 (Annex.3) was passed by the Deputy Collector, Raisinghnagar that in case the land comprised in square No. 237/14 is not recorded as forest land or the land is not reserved for special allotment or land has not been allotted to any other person, the legal representatives of Budh Ram may be allowed to deposit the instalments with interest, which amount was deposited by Smt. Meera on 7/3/1995.

4. Whereafter, Smt. Meera filed an appeal before the Revenue Appellate Authority against the order dated 28/12/1987, whereby, the land was allotted to the petitioner. The Revenue Appellate Authority after hearing the parties came to the conclusion that at the time of allotment the land was already allotted to Budh Ram, before allotment to the petitioner the required procedure was not adopted and as required by Rule 14(1) of the Rajasthan Colonization (Allotment of Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 (‘the Rules, 1975’), the land of the petitioner was not adjoining to the allotted land and, therefore, the petitioner was not eligible for allotment, the order was passed by the Assistant Collector, Anoopgarh, who as per the provisions of the Rules of 1975 was not the allotting authority and consequently quashed the order of allotment dated 28/12/1987.

5. Feeling aggrieved, the petitioner filed revision petition before the Board of Revenue. The Board of Revenue after hearing the parties came to the conclusion that initially the allotment was made to Budh Ram on 30/5/1985 and as per Rule 14 of the Rules of 1975, there is no provision that in case the possession of the land is not taken or the payable amount is not deposited within the stipulated time, the allotment would stand cancelled automatically and further held that in case the conditions of allotment are not complied with, the allotment can be got cancelled but there is no provision for automatic cancellation and, therefore, when the land was allotted to the petitioner, the same was not available for allotment and, therefore, the allotment was liable to be cancelled and consequently dismissed the revision petition.

6. It is submitted by learned counsel for the petitioner that the Revenue Appellate Authority and the Board of Revenue committed grave error in accepting the appeal/dismissing the revision petition and, therefore, the orders impugned deserve to be quashed and set aside. It was submitted that the allottee Budh Ram had died in the year 1981 and the allotment in his favour was made on 30/5/1985 and as the allotment was made in favour of a dead person, the same was void ab initio and, therefore, the land was open for allotment to the petitioner and was rightly allotted to him in the year 1987.

7. It is further submitted that as the allotment was made in favour of Budh Ram after his death, till the year 1995 the legal representatives of Budh Ram did not take possession of the land in question and also did not pay the amount for allotment and, therefore, in terms of provisions of Section 7 (4) of the Rajasthan Colonization Act, 1954 (‘the Act, 1954’) neither they could be deemed as tenants nor they had any right or title in the land allotted to the petitioner and, therefore, the entire basis of accepting the appeal filed by respondent Smt. Meera being nonexistent the order/judgment deserve to be quashed and set aside.

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8. It is further submitted that provision in relation to allotment as contained in Rules of 1975 would apply only if the allottee has taken possession and as the possession was not taken, the land was available for allotment to the petitioner and was rightly allotted and, therefore, the orders impugned deserve to be quashed and set aside.

9. Reliance was placed on Ram Khelawan Choudhary v. Ramudar Choudhary : AIR 1939 Patna 534.

10. Learned counsel appearing for the respondent Smt. Meera and others vehemently opposed the submissions made by learned counsel for the petitioner.

11. It was submitted that the allotment of land as small patch, being tenure tenant of land adjoining the allotted land, was made to Budh Ram under Rule 14 of the Rules of 1975 in 1985 and when the allotment was made to the petitioner in 1987, the same was not available for allotment. It is submitted that entire plea about automatic cancellation of the allotment on account of allegedly not taking possession by the respondents is baseless as the provision of Rule 14 does not envisage such cancellation.

12. It is further submitted that the petitioner challenged the allotment made in favour of Budh Ram by filing revision petition under Section 83 read with Section 9 of the Rajasthan Land Revenue Act before the Board of Revenue, which revision petition was rejected by the Board of Revenue on 21/7/2000 inter alia holding again that under Rule 14 there was no provision for automatic cancellation and cancellation can take place under Rule 21 or 23 of the Rules only. It was also submitted that the petitioner had filed a suit for permanent injunction qua the land in question against the irrigation authorities, Tehsildar and the respondents, which suit was dismissed and against that the first appeal was also dismissed and, therefore, the petitioner has no case and the writ petition deserves to be dismissed.

13. Learned counsel for the State submitted that the petitioner was not put in possession of the land on allotment, the land was not recorded in his name in the revenue record and, therefore, the legal representatives of Budh Ram were put in possession and the revenue record stands in the name of said respondents.

14. It was submitted that the plea raised regarding automatic cancellation has apparently no support in the provisions of the Rules and that the reliance placed on the provisions of Section 7(4) of the Act has no substance and, therefore, the writ petition deserves to be dismissed.

15. Reliance was placed on Jaspal singh v. Board of Revenue & Ors. : S.B. Civil Writ Petition No. 7365/2009 decided on 27/7/2009 and State of Rajasthan & Anr. v. Smt. Sajjan Kanwar & Anr. : D.B. Special Appeal Writ No. 1007/205 decided on 22/3/2017.

16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

17. The principal submission made by learned counsel for the petitioner pertains to the fact that allottee Budh Ram died in the year 1981 and the allotment took place on 30/5/1985 and, therefore, the allotment was void ab initio. Before the Revenue Appellate Authority and the Board of Revenue submissions were made on behalf of Smt. Meera that as the allotment was made in favour of a dead person, the same cannot be treated as void and legal representatives were entitled to its benefit.

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18. The effect of death has been dealt with in the provisions of Order XXII CPC, which inter alia deals with death marriage and insolvency of a party. The fundamental principle as contained in Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. It is on account of provisions contained in Order XXII Rule 3 and 4 CPC that on death of a party, if the legal representatives are not brought on record, the proceedings abate and in that view of the matter, the applicability of provisions of Order XXII is sine qua non for alleging abatement on account of death. The principles of abatement etc. are essentially applicable to judicial proceedings and has apparently no application to allotment proceedings. The Fact as to whether Budh Ram died before the allotment took place in the year 1985 or not, though is not established on record, still even if it is assumed that the allotment took place after the death of Budh Ram, the same by itself cannot make the allotment void.

19. So far as the general principles regarding the order passed against a dead person being void is concerned, the same is founded on the principle of natural justice, wherein, no person can be condemned unheard, however, as to whether the order passed in favour of a dead person would be void has been dealt with by this Court in Prahlad Singh v. The President District Consumer Disputes Redressal Forum & Ors. : S.B. Civil Writ Petition No. 1103/2005 decided on 25/4/2005, wherein, it was laid down as under:

“10. Secondly, the order in favour of a dead person cannot be said to be nullity and, therefore also I do not find any merit in submission of the learned counsel for the petitioner that the order of the State Government is nullity. It may be true that the order against a dead person may be nullity, but same principle is not applicable when the order is in favour of a dead person.”
20. In a case before the judicial authority, the situation may be slightly different, wherein a decree passed in favour of a dead person, after the suit/appeal has abated on account of not bringing on record the legal representatives under Order XXII Rule 3 CPC. However, in such a case, the decree in favour of a dead person would have to be questioned by way of taking appropriate proceedings and getting it set aside and if such a decree in favour of a dead person remains unchallenged, it cannot be said to be void.

21. However, in the present case, besides the fact that for the purpose of allotment under the Rules, there is no question of any abatement insofar as the allotment in favour of a dead person is concerned, the plea raised by learned counsel for the petitioner in view of the above discussion has no substance.

22. Further, the provisions of Rule 14 of the Rules of 1975 dealing with allotment of small patch, do not envisage automatic cancellation and the requirement of a express provision for automatic cancellation/deemed cancellation can be seen from a specific provision in this regard provided under Rule 13-A of the Rules of 1975, which provides for Sale by Special Allotment, and under proviso to sub-rule (5) (iii) of Rule 13-A an express provision in this regard has been provided. In view thereof, the finding of Revenue Appellate Authority and Board of Revenue regarding absence of automatic cancellation/deemed cancellation cannot be faulted.

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23. So far as the judgment cited by learned counsel for the petitioner in the case of Ram Khelawan Choudhary (supra) is concerned, besides the fact that the said judgment is contrary to the judgment in the case of Prahlad Singh (supra) of this Court, in view of the above discussion, the same would have no application to the present case.

24. So far as reliance placed by learned counsel for the petitioner on Section 7(4) of the Act of 1954 is concerned, the provisions of Section 7(4) of the Act reads as under:

“7. Issue of statement of condition of tenancy –

(1) ………..

(2)……….

(3)………

(4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector, and after possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto;

Provided that where the allottee dies after such written order has been passed but before taking possession of the allotted land, his spouse or in case the spouse is not alive his legal heirs dependent on him may take possession of the allotted land.”
25. The provisions of Section 7(4) of the Act prohibits deeming of any person as tenant or to have any right or title in the land allotted to him unless he has taken possession of the land. The grant of status as tenant, results in the person enjoying the privileges of a tenant under the Act and gets right or title in the land allotted to him, however, the enforcement of the right as a allottee or legal representatives of a allottee does not require the status as a tenant under Section 7(4) of the Act and the said right can be enforced by the allottee/his legal representative independent of the fact that possession of the land was allegedly not taken in pursuance to the allotment.

26. If the submissions made by learned counsel for the petitioner are taken to logical conclusion, the effect would be that in case of a wrongful allotment the aggrieved person, as he is not a tenant under Section 7(4) of the Act cannot question the same, which submission, apparently cannot be accepted and, therefore, the plea raised in this regard is without any basis.

27. The Division Bench of this Court in the case of Smt. Sajjan Kanwar (supra), wherein, legal representatives of ex-serviceman approached the Court after allotment was made after several years of death of ex-serviceman and sought relief, when on behalf of the State reliance was placed on provisions of Section 7(4) of the Act for denying the benefits to them, the Division Bench negated the contention in this regard.

28. Further, there is substance in the submission made by learned counsel for the respondent that the petitioner was not eligible/entitled even for allotment in terms of Rule 14 of Rules of 1975, as he was not a tenure holder of a land adjoining the small patch of land, which was allotted to him by order dated 28/12/1987.

29. Further, the fact that the revision petition filed by the petitioner against the allotment made to Budh Ram has already been dismissed by the Board of Revenue and the suit & appeal filed by the petitioner against the irrigation authorities have also been dismissed and finding regarding possession of respondent Nos. 5 to 9 has been recorded by the Civil Court, even otherwise no interference is called for in the orders concurrently passed by the two authorities below.

30. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.

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