J.C. Verma, J.
1. Agriculture land in Khasra Nos. 396 and 397 measuring 15 Biswas and 1 Bigha 15 Biswas respectively situated in Village Palsana belonged to the petitioner Ganpatlal and Chouth Mal, father of the petitioners No. 2 to 5 and husband of petitioner No. 6. Shri Kanhaiyalal Tambi, who was the father of petitioner Ganpatlal and the deceased Chouthmal and late Shri Jamunadas was elder brother of Ganpatlal and late Shri Chouth Mal. A school had been constructed by said Shri Kanhaiyalal and late Shri Chouthmal which was donated to the government in the year 1949. It is admitted fact that the School in the name of late Shri Kanhaiyalal Tambi Govt. Secondary School, Palsana, is still in existence. This school has now been upgraded from Secondary to Senior Secondary. A donation deed was also executed in Feb. 1971. The above said Khasra No. 396 and 397 were abutting the buildings of the school. The school authorities required more land for the purpose of school ground, and, therefore, Shri Ganpatlal and late Shri Chouth Mal were approached by the authorities for handing over these khasras to the school so that me boundary of the school be extended. The land abutted not only the school boundary but it was situated on the National Highway. In lieu of the said land a proposal was made by the authorities to hand over a part of the land in exchange, to the said persons situated in khasra Nos. 231 measuring 10 Bighas. Out of the said area of 10 Bigha 10 Biswas, 1 and 2 Bigha and 10 Biswas, land was to be handed over to said Shri Ganpatlal and late Shri Chouthmal. The area was demarcated and the new Khasra was allotted as Khasra
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No. 231/1 and a separate allotment was made in favour of said persons in lieu and in exchange of the land situated in Khasra No. 396 and 397. This was so accomplished in the year 1972. Of course even though the final decision of exchange was implemented in the year 1972 but the matter was being negotiated right from 1962 onwards. The Collector, Sikar, vide his order dated 3-6-72, ultimately when the exchange was approved, made the allotment of the area 2 Bigha 10 Biswas in the name of the ancestral of petitioners. The order of the Collector, has been reproduced at page 7 of the writ petition which is not denied. The mutation of the said land was also entered in the name of the said two persons. Even the demarcated map was also prepared. Copy of the mutation has been annexed as Annex-6.
2. One Rameshwar Dass, Sarpanch was having certain objections and he filed an appeal before the Revenue Appellate Authority challenging the decision of the Collector by which the exchange was allowed. This appeal was dismissed on 6-5-74 vide Annex. 7 attached to the writ petition. No further action was taken by any of the authority nor the order or action of exchange of land was challenged by any person before any authority. It was after 13 years of the said allotment or mutation when the petitioner was issued notice by the Tehsildar on 6th Sept. 1985, vide Annex. 8 stating therein to explain as to why certain building material has been placed or collected by the petitioners in Khasra No. 231. Petitioner replied to the aforesaid notice vide Annex-9 on 12th Sept. 1985 by giving all the details of exchange. It was stated by the petitioners in Annex. 7 that the petitioner was only constructing boundary wall around the area allotted to them in lieu of the exchange of the land which transaction had been completed in the year 1972. The petitioners have alleged that because of some political rivalry and political reasons they have been harassed by one Shri Narain Singh who had contested elections from Danta Ramgarh Assembly Constituency as a Congress (I) candidate for the reasons that the family of the petitioner was the supporters of Bhartiya Janta Party. A complaint was made by the petitioners vide Annex. 10 but without any result. Even said Shri Narain Singh, M.L.A., had tried to raise the issue in Assembly by putting starred question No. 76, wherein an answer was said to have been given to the fact that the possession from the land in question shall be got vacated from the petitioners and consequently, on 26th March 1986 impugned order Annex. 11 was passed wherein the Dy. Secretary (Admn.) Government of Rajasthan, had stated that the earlier order passed on 3-6-72, allotment of alternative land in lieu of .exchange land was not according to the rules and, therefore, the orde r dated 3-6-1972 is to be withdrawn. The District Collector, Sikar, was asked to get the possession vacated not only from the land in Khasra No. 231 but also land in Khasra No. 394 measuring 11 Biswas situated in Village Palsana, which land had also been allotted to the petitioners earlier. Admittedly the order Annex-11 was passed without issuing any show cause notice to any of the petitioners and also without stating any reason whatsoever in the impugned order.
3. It is stated that the one Jagirdar Khandelapana had earlier issued a patta of land measuring 12 Bigha 5 Biswas in favour of late Chouthmal and Bansidhar Tambi in Oct. 1954 which land included the area of 1 Bigha of land of Khasra No. 394, and as such 1 Bigha of land in Khasra No. 394 continued to be in continuous possession of said persons right from 1954. The Gram Panchayat Palsana had also granted permission on Oct. 1960 to construct a boundary wall around this land Khasra no. 394. In the year 1967 about this land of Khasra No. 394, the Tehsildar had passed certain adverse orders against the then occupants but the order was set-aside by the Additional Collector, Sikar on 16-11-1967. The case was remanded back to the Tehsildar. The Tehsildar again reiterated his earlier order which was again appealed before the Collector and the Collector vide his order dated 8-4-69 had set aside the order passed by the Additional Collector, Sikar, by giving a direction to the Tehsildar to reconsider the matter in view of the patta issued by the then Jagirdar of Khandela Pana. When the true facts were brought to the notice of the Tehsildar, the Tehsildar regularised the possession of the then occupants Ganpatlal and late Chouthmal over Khasra No. 395/1 measuring 18 Biswa and Khasra No. 394 measuring 1 Bigha. The State Government had challenged the said order passed by the Tehsildar on 26th August 1970 before the Collector in the year 1983 i.e. after a period of 13 years. The State Government had thought to file an appeal against the order of Tehsildar. The appeal of the State Government was dismissed on 4-9-85 and the order passed by the Tehsildar was maintained vide order Annexure-12.
4. It is also the case of the petitioners that the advisory Committee had allotted another one bigha of land out of Khasra No. 394 in the meeting held on 3-6-74 in which Advisory Committee Shri Narain Singh who had raised the question in Assembly was also a member. This allotment was also separately challenged by the State under Rule 14(4) of the Rajasthan Land Revenue (Allotment of land for Agricultural purposes) Rules, 1970. The case of the State was dismissed by the Collector on 24th July 1985 and the order of allotment of additional land of 1 Bigha in Khasra No. 394 as made by the Advisory Committee and the SDO, Sikar on 3-6-74, was maintained. The order dated 3-6-74 and order dated 24th July 1985 are attached as Annex. 13 and 14 respectively.
5. It is stated that some dispute had arisen about the actual demarcations and the measurements of the Khasra numbers involved which were in possession of the petitioners and various directions were passed for effecting the measurement and ultimately a physical measurement was made on 11/12th Jan. 1986 in the presence of the school authorities. Sarpanch of Gram Panchayat, Palsana, Assistant Secretary, Gram Panchayat and other persons in pursuance of the directions issued by the SDO, Sikar. The demarcation was made by the Assistant Settlement Officer, Land Surveyor Shri Ashok Kumar Sen and the Inspector Hargovind. Report was submitted vide Annex. 20. The petitioners want to submit that the land in Khasra No. 231/1 stood allotted to the petitioner in lieu and in exchange of Khasra Nos. 396 and 397 and so far the lands in Khasra No. 394 are concerned, those were the property of the petitioners by way of grant by the Jagirdars and also by way of allotment by the Advisory Committee & by the S.D.O. and both the transactions have been held to be legal by the quasi-judicial pronouncements made whenever so challenged by the State. It is stated that even though the petitioner is entitled to be in possession of the more land in Khasra No. 394 but on measuring it was found that the actual possession was even less by 2 Biswas.
6. Prayer has been made for quashing the order Annex. 11 and any other proceedings started or contemplated to be started u/s 91 of the Rajasthan Land Revenue Act, 1956 in respect of Khasra No. 394 or in respect of Khasra No. 231/1 situated in the said village.
7. Reply has been filed by the State. The facts as stated are not denied in regard to the exchange of the land, i.e. in regard to the allotment of land in Khasra No. 231 and also in regard to allotment and the grant of land in Khasra No. 394. However, it is submitted that in view of the fact that the petitioner was holding land measuring about 100 Bigha, therefore, any regularisation of the land comparising in Khasra No. 394 was not in accordance with law. In regard to land in Khasra No. 231, 231/1, which was allotted in view of the land of Khasra No. 396 and 397 belonging to the ancestrals of the petitioners, it is submitted that there was no authority with the District Collector to have agreed to that exchange.
8. From the above pleadings and averments in regard to Khasra No. 231/1 and as per the documents placed on record, it is not disputed that the following facts stand established that :
(i) there was aschool owned by the anscestrals of the petitioners.
(ii) the land under the school and the building was donated by them to the government and the government had accepted the donation and deed was also executed and the school is still running.
(iii) abutting, the school and building and the said of the National High Way, there was a land comparised in Khasra No. 396 and 397 belonging to the petitioners through their ancestrals. Land in Khasra No. 396 and 397 was required by the School authorities for expanding the play ground of the school;
(iv) proposal was made by the Inspector of the School as far back as in August 1962;
(v) in the proposal it was also mentioned that the petitioners can be compensated by exchange of land from the Khasra No. 231 to the extent of 2 Bighas and 10 Biswas.
(vi) the site plans were prepared. Proposal was accorded vide Annex. 2 and 3 as far as back on 24th August 1962.
9. Vide Annex-4, the Tehsildar had asked the petitioners for carrying out the proposal as mooted and ultimately on 3rd June 1972, a final order by the Collector was made as reproduced at page 7 of the writ petition. Objections filed by the Panchayat were dismissed. For 13 years the parties abided by the execution of the exchange.
10. Without issuing any notice of show cause and without giving any reason and only because of the reason that some question had been asked in the Assembly and without going into the background of the case, the impugned order Annex. 11 was passed effecting the civil rights of the petitioners.
11. In regard to Khasra No. 394, the grant as well as allotment made by the Advisory Committee of the total area of 2 Bighas had been finally adjudicated by the quasi-judicial authorities and said possession by way of allotment etc. became final in favour of the petitioners. Despite the judicial orders having been passed against the State, in the present case, the State in my opinion in a most arbitrary manner had cancelled the earlier accomplished deed of exchange and held the petitioner as trespasser on the part of the land in Khasra No. 394 and 231. Admittedly no notice was issued and in the written statement it has been admitted by the State that there was hardly any necessity to issue any notice. It is the paramount principle that the rule of law with the State expects the Citizens to follow is to be followed by the State itself as well while affecting the civil rights of the Citizens which has been said a good-bye in this case.
12. Counsel for the respondents Mr. N.L. Pareek, states that even though no notice was required but if the Court is of the opinion that notice should have been issued, the matter can be remanded back.
13. In my opinion, this contention cannot be accepted. For the reason that the rights of the parties stood established by the accomplished act of the parties amongst themselves and the State is estopped from going back and withdrawing the order of exchange or even by passing the orders passed by the judicial authorities in regard to Khasra Nos. 232 and 394. Apparently instead of seeing the reasons, the State has probably passed the order immediately on the starred question having been asked in the Assembly. The government has required that the steps be taken to get the possession vacated without ascertaining whether the possession of the petitioner was made by way of allotments by the State authorities itself. If the government had already made up its mind to get the possession vacated before passing the impugned order, it shall be futile to refer the matter back to the State to decide it on merits once again, for which mere is already pre-determination of mind. The State Government has already raised a plea in the written statement that the petitioners have no right in the land in question. The same authority which has earlier passed, the order shall be asked by the State to reconsider the matter and pass a fresh order which shall be a futile exercise.
14. To my mind no fresh order can be passed so far Khasra No. 394 is concerned as the allotments made in favour of the petitioners and the rights of the petitioners had been finally adjudicated by the judicial authorities on the judicial appeal filed by the Stale. It is not open to the State to bye-pass the determination of the rights made by the judicial authorities by passing an order on the administrative side, similarly the situation in regard to exchange of land made in lieu of Khasra No. 396 and 397. In my opinion, the State should have been obliged to late Shri Kanhaiyalal who had donated the school building and the land under it to the State for running the school and also had agreed to the proposal made by the State authorities in Education Department for giving more land to the school in Khasra No. 396 and 397 and if on the proposals and suggestions made by the State authorities itself and after negotiating for about 10 years, preparing the site plans and completing the demarcations, on the saying of the State itself, an exchange of land is made out of Khasra No. 231 measuring 2 Bigha and 10 Biswa, the State is totally estopped by his conduct to say that exchange was not in accordance with law.
15. In my opinion, the State was not acting fairly. Instead of being thankful to late Shri Kanhaiyalal and its successor who had donated the land under the school building and also agreeing for extension of the land, abutting the land with school for extension of the school, the respondent had not acted bona fide. The action of the State cannot be called a fair action and the petitioners have not been given a fair deal which could have been avoided had some application of mind been made by some competent persons.
16. It is the contention of Shri Mehta that as per 'Patwari Rojnamacha', the State has already taken the possession which is disputed by the counsel for the petitioner. The stay was granted on 29th August 1986 and the possession seem to have been delivered on 2nd Sept. 1996 which could not have been delivered at all in view of the restrain order granted by this Court. Even otherwise the Stale action having been set aside and the impugned order being quashed, if the petitioners are in possession, they will remain in possession and in case some possession has been taken by the State or any authority of the State that shall be restored to them forthwith.
17. The writ petition is allowed. Order Annex. 11 is quashed being illegal. The petitioners shall be entitled to the cost of Rs. 5.000/-