CW6280201508 09 2015

1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR
:ORDER:
(1) S.B.CIVIL WRIT PETITION NO.6280/2015

Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai & Anr.
Vs.
Estate Officer, Nathdwara & Anr.
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Vs.
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Vs.
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Vs.
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Vs.
Date of Order :: 8th September 2015
PRESENT
HON'BLE MR.JUSTICE P.K.LOHRA
Mr.C.S.Kotwani for the petitioners
BY THE COURT:
In all these petitions, common question of law and facts are
involved and, therefore, all are heard together and disposed of by a
common order.
The facts necessary and germane to the matter are that
second respondent initiated proceedings against all the petitioners
for their eviction by taking shelter of Rajasthan Public Premises
(Eviction of Unauthorised Occupants) Act, 1964 (for short ‘the Act of
1964’) and consequently applications under Section 4 of the Act of
1964 were submitted before the first respondent – Estate Officer. In
all these applications, it is, inter alia, averred by the second
respondent - Nathdwara Temple Board that their tenancy had been
terminated by serving a registered notice but inspite of that neither
they have handed over the possession of the disputed premises nor
they have paid the requisite amount of rent. In that background,
while categorising their possession as that of unauthorised
occupants, the second respondent claimed for their eviction and

3
also prayed for relief of mesne profits for use and occupation.
Taking cognizance of the application, the first respondent - Estate
Officer issued notices to all the petitioners and solicited their reply.
In the reply, petitioners have disputed the ownership of the
second respondent – Nathdwara Temple Board and it is averred that
land in question was transferred to Seth Jamna Dass Lallu Bhai
Charitable Trust, Mumbai by the then Maharaja Dhiraj Goswami
Maharaj Shri Govardhanlalji in Svt. 1945 on receipt of consideration
of amount of Rs.501/- and therefore, the said trust is the owner of
the property. It is further submitted in the return that petitioners are
tenant of Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai and
as such they are not obliged to pay rent to the second respondent -
Nathdwara Temple Board. A reference is also made that earlier
there was a civil litigation pertaining to the owner of the property
wherein Seth Jamna Dass Lallu Bhai Charitable Trust, Mumbai was
also a party and eventually the matter was amicably settled between
the second respondent and the aforesaid trust by way of
compromise. Placing heavy reliance on the terms of compromise,
petitioners pleaded in their reply that in terms of compromise, Seth
Jamna Dass Lallu Bhai Charitable Trust, Mumbai is the owner of the
property and authorised to recover rent and, therefore, in that
background, the proceedings initiated by the second respondent
under the provisions of the Act of 1964 are not tenable. Petitioners
have also asserted with full emphasis that they are regularly paying
rent to the aforesaid trust and requisite receipts are also issued to
them. Reiterating their stand that second respondent is not the
owner of the property, petitioners have also alleged in the reply that
no proof much less concrete proof has been placed on record by the
4
second respondent to prove its ownership regarding the property in
question. In totality, the petitioners have questioned the jurisdiction
of the first respondent to proceed against them under the provisions
of the Act of 1964 by contending that they are not unauthorised
occupants. Taking shelter of Section 9 of the Code of Civil
Procedure, it is also submitted in the reply that proceedings under
the provisions of the Act of 1964 are incompetent and a proper
remedy is before the civil court. Emphasizing the status of Seth
Jamna Dass Lallu Bhai Charitable Trust, Mumbai, it is averred in the
return that the same is a registered Public Trust under the provisions
of Bombay Public Trust Act and, therefore, first respondent as
Estate Officer is having no jurisdiction to proceed in the matter. For
want of impleadment of Seth Jamna Dass Lallu Bhai Charitable
Trust, Mumbai, a specific objection was also incorporated in the reply
that application suffers from the vice of non-joinder of necessary
parties. In the alternative, it is also pleaded that even if the premises
in question is taken to be properties of the second respondent, the
same do not fall within the ambit of public prmises under sub-section
(b) of section 2 of the Act of 1964.
Subsequent to the reply submitted by the petitioners, some
additional facts are also pleaded by the second respondent by way
of rejoinder reiterating the stand taken in the original application.
Regarding the factum of transfer of property on consideration by
Maharaja Dhiraj Goswami Maharaj Shri Govardhanlalji, it is
specifically averred in the rejoinder that no such sale deed was ever
executed. The second respondent has also called upon the
petitioner to place on record any document showing title of the
property in the name of Seth Jamna Dass Lallu Bhai Charitable

5
Trust, Mumbai. It is also submitted in the rejoinder that the property
belongs to Prabhu Shree Shrinathji managed by the second
respondent and deity being perpetual minor, transfer of any property
owned by the deity is not permissible under the law.
After rejoinder, evidence was tendered by the second
respondent and the second respondent, to substantiate the
averments in the application, tendered affidavit of one Mahesh
Chandra who was subjected to cross-examination by the counsel
representing the cause of the petitioners.
It appears that on 06.06.2014 ex parte proceedings were taken
against the petitioners and subsequently on their request and
considering application under Order IX Rule 7 CPC, ex parte order
was set aside. Yet another attempt was made by the petitioners to
prolong the proceedings by way of laying application under Sections
65 to 67 of the Indian Evidence Act, 1872 but that application did not
find favour from the Estate Officer and the same was rejected.
At the behest of the petitioners, an attempt was made to
consolidate all the matters and an application to this effect was also
submitted before the Estate Officer. The Estate Officer after
considering the applications noticed that in all the applications,
different incumbents are tenants and their tenancy has also
commenced on different dates, therefore, it is necessary to record
evidence in each case separately. By observing this, the prayer
made at the behest of the petitioners for consolidating all the matters
was turned down by the Estate Officer by its order dated 16.01.2015.
The Estate Officer also observed that since filing of the application
for eviction almost three years have lapsed, therefore, the matter is
required to be proceeded expeditiously. The proceedings initiated by

6
the second respondent are still pending before the Estate Officer
and by these writ petitions, the petitioners have prayed for quashing
of all the proceedings being without jurisdiction.
Mr.C.S.Kotwani, learned counsel for the petitioners has
strenuously urged that proceedings initiated by the first respondent -
Estate Officer against the petitioners are wholly without jurisdiction
and, therefore, proceedings are liable to be quashed by issuing a
writ of certiorari. Learned counsel submits that issue relating to title
of the disputed premises is contentious and such contentious issue
cannot be determined by the Estate Officer in summary proceedings
under the Act of 1964. Elaborating his submission, Mr.Kotwani has
urged that all these issues can only be determined by a competent
Civil court and therefore if the proceedings are allowed to continue
before the Estate Officer, the same would result in miscarriage of
justice. Learned counsel has also urged that premises in question
do not fall within the ambit of public premises and, therefore, the first
respondent cannot act as Estate Officer in the matter to adjudicate
the applications submitted by the second respondent. In the
alternative, Mr.Kotwani has urged that necessary direction be issued
to the Estate Officer to decide first the preliminary objections of the
petitioners regarding maintainability of the petitions for eviction. In
support of his contentions, learned counsel for the petitioners has
placed reliance on following legal precedents:-
1. Hasham Abbas Sayyad Vs. Usman Sayyad & Ors. [AIR 2007 SC
1077 (1)]
2. Chief Engineer, Hydel Project & Ors. Vs. Ravinder Nath & Ors.
[AIR 2008 SC 1315]

7
3. Sarwan Kumar & Anr. Vs. Madan Lal Aggarwal [(2003) 4 SCC
147]
4. Jagmittar Sain Bhagat & Ors. Vs. Director, Health Services,
Haryana & Ors. [(2013) 10 SCC 136]
In Hasham Abbas Sayyad (supra), Hon’ble Apex Court while
interpreting Section 21 CPC has made a distinction between court
lacking in territorial/pecuniary jurisdiction and court lacking in
jurisdiction over the subject-matter. The Court held,-
“21. The core question is as to whether an order passed by

a person lacking inherent jurisdiction would be a nullity. It will
be so. The principles of estoppel, waiver and acquiescence
or even res judicata which are procedural in nature would
have no application in a case where an order has been
passed by the Tribunal/Court which has no authority in that
behalf. Any order passed by a court without jurisdiction
would be coram non judice being a nullity, the same
ordinarily should not be given effect to. [See Chief Justice of
Andhra Pradesh and Another v. L.V.A. Dikshitulu and
Others, AIR 1979 SC 193 & MD Army Welfare Housing
Organisation v. Sumangal Services (P) Ltd. (2004) 8 SCC
619].
22. This aspect of the matter has recently been considered

by this Court in Harshad Chiman Lal Modi v. DLF Universal
Ltd. and Another [(2005) 7 SCC 791], in the following terms :
"We are unable to uphold the contention. The
jurisdiction of a court may be classified into several
categories. The important categories are (i) Territorial
or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii)
Jurisdiction over the subject matter. So far as territorial
and pecuniary jurisdictions are concerned, objection to
such jurisdiction has to be taken at the earliest
possible opportunity and in any case at or before
settlement of issues. The law is well settled on the
point that if such objection is not taken at the earliest, it
cannot be allowed to be taken at a subsequent stage.
Jurisdiction as to subject matter, however, is totally
distinct and stands on a different footing. Where a
court has no jurisdiction over the subject matter of the
suit by reason of any limitation imposed by statute,
charter or commission, it cannot take up the cause or
matter. An order passed by a court having no
jurisdiction is nullity."
[See also Zila Sahakari Kendrya Bank Maryadit v. Shahjadi
Begum & Ors., 2006 (9) SCALE 675 and Shahbad Co-op.
Sugar Mills Ltd. v. Special Secretary to Govt. of Haryana &
Ors. 2006 (11) SCALE 674 para 29]
8
23. We may, however hasten to add that a distinction

must be made between a decree passed by a court which
has no territorial or pecuniary jurisdiction in the light of
Section 21 of the Code of Civil Procedure; and a decree
passed by a court having no jurisdiction in regard to the
subject matter of the suit. Whereas in the former case, the
appellate court may not interfere with the decree unless
prejudice is shown, ordinarily the second category of the
cases would be interfered with.”
In Chief Engineer, Hydel Project (supra) Hon’ble Apex Court
while relying on doctrine of coram non judice declined to upheld a
decree which was passed by a court having no jurisdiction even if
no objection was taken at the initial first appellate or second
appellate stage. The Court held,-
“19. Once the original decree itself has been held to

be without jurisdiction and hit by the doctrine of coram non
judice, there would be no question of upholding the same
merely on the ground that the objection to the jurisdiction
was not taken at the initial, First Appellate or the Second
Appellate stage. It must, therefore, be held that the civil court
in this case had no jurisdiction to deal with the suit and
resultantly the judgments of the Trial Court, First Appellate
Court and the Second Appellate Court are liable to be set
aside for that reason alone and the appeal is liable to be
allowed. In view of this verdict of ours, we have deliberately
not chosen to go into the other contentions raised on merits.
We, however, make it clear that we have not, in any manner,
commented upon the rights of the plaintiffs- respondents, if
any, arising out of the Labour Jurisprudence.”
In Sarwan Kumar and another (supra) Hon’ble Apex Court
while examining the provisions of Section 47 and Order XXI CPC
held a decree passed by a civil court lacking inherent jurisdiction to
entertain the suit in view of specific bar contained in the special act
governing the case would be a nullity and therefore objection
regarding invalidity of such decree can be raised at any later stage
including the stage of execution of decree or any other collateral
proceedings.
In Jagmittar Sain Bhagat (supra), Hon'ble Apex Court has held
that jurisdiction of courts/forums cannot be conferred by consent of
parties or acquiescence or waiver.

9
The pivotal question which is subject matter of judicial scrutiny
in all these petitions lies in a narrow compass. In substance, the
petitioners are questioning the jurisdiction of Estate Officer with a
prayer for issuance of a writ of prohibition and certiorari. The order
or prohibition is not of right unless the defect of jurisdiction is clear.
Similarly, the order of certiorari is discretionary and can be issued to
quash the proceedings if the person, body or tribunal is charged with
judicial or quasi-judicial duty. Upon analysing the facts of all the
cases, there remains no doubt that the respondent-Nathdwara
Temple Board has initiated action for eviction against the petitioners
by laying applications before the Estate Officer under Section 4 of
the Act of 1964 somewhere in 2011 and since then the proceedings
are going on. It is also borne out from the material placed on record
that the Estate Officer is proceeding in all these matters within the
parameters of its jurisdiction. The contention of the petitioners that
premises in question is not owned by the Temple Board appears to
be quite alluring but not of substance inasmuch as the document
(Annex.3) cannot be construed as conferment of valid title on Seth
Jamna Dass Lallu Bhai Charitable Trust, Mumbai. Moreover, the
property in question was owned by the Deity Lord Shrinathji who is a
perpetual minor and therefore there was no authority with any one to
transfer or alienate the said property. The respondent- Temple
Board has seriously disputed Annexure-3 including its legal sanctity.
There is yet another aspect of the matter that if the document
(Annex.3) is examined on the touch stone of “Pratigya Patra”
(Annex.4), the alleged compromise between Temple Board and
some of the trustees of Seth Jamna Dass Lallu Bhai Charitable
Trust, Mumbai then it would ipso facto reveal that Seth Jamna Dass
10
Lallu Bhai Charitable Trust, Mumbai was simply authorised to collect
rent from some of the shops on behalf of the Temple Board. The
relevant excerpt from Annexure-4 containing terms of compromise
are reproduced infra in vernacular:-
“1. यह क धरश ल रखय द र उतर-दक ण चर

द न व अनदर ग ऊण! फल#र र$ नव ननररत श#प)*ग स$टर
र) र$ ) र स*० 1 द र ब ज र पव रसत क य ज रह
ह3 , जजस पवसतत 6 सवर) स*लगन ब9य: प;*ट र$ ननदरशत ह3,
भड ) र स*० 1 द र क र यद र स ए त@त र
) र स*० 2 यहA ननरनतर जर र य ज र रसBद ; प
र$ ग। ननध ररत शत अनस र ज# भB द न$ ननररत
गई हG, उन क र य शB 6 षण भण! र र$ जर ह#ग । स*च रलत
3 नटJन क रय र रश )चचBस ;नतशत भ ग शB 6 षण
भण! र र$ जर ह#ग ।
2. ) र स*० 1 द र ज# द न$ क र य दJ गई ह3, व
क र यद र ) र स*० 1 क र यद र हG, तथ व हJ
क र यद र स क र य वस:ल र शB 6 षण भण! र र$ जर
रन रलय ) बनद हG, जजन क र यद र द न क रय
)र दJ गई, उन स:चB यथ सरय ) र स*० 2 # द दJ
ज यगB।
3. यह क उक द न र$ स यदद #ई द न अनय #
अनतररत ज यगB त# क र य चचटठQ ननष) ददत र न
)व : ) र स*० 1 ) र स*० 2 स उस रलय रलखSत र$
सहरनत ; प र$ ग, तथ उस अनस र हJ ) र स*० 1
क सB अनय # द न अनतरर*त र स $ ग।
4. यह क ;सतत ;नतज )@ अनस र रसपवल नय य धBश
( ननष Sण!) न थद र नय य लय र$ लजVबत ब द र$
आ)सB र जBन र$ ; थन )@ ;सतत र ददय ज यग ,
तथ ) र स*० 2 तदनस र नय य लय स र दर उठ
लग ।
5. यह क ) र स*० 1 न ) र स*० 2 ) र$ ज# यह
;नतज )@ ननष) ददत क य ह3, उस अरभ-सवB 6 नत सवर)
15,00,000/- अ र$ )नXह ल S र)य भ$ ट सवर) ) र स*०
2 शB 6 षण भण! र र$ जर र य ज य$ग।
6. यह क धरश ल दक ण ददश र$ ) र स*० 1 न
ए नय दरव ज S#ल हG, तथ उस )व: )जYर र$ ज#
द न बन ई गयB हG उन क रय ) र स*० 1 हJ वस:ल
र$ ग, तथ उस धरश ल ;बनध व पव स र$ Sच क य
ज यग , तथ इस रलय ) र स*० 2 न सवच[ स अ)नB
सहरनत ;द न र दJ हG।"
Therefore, contention of the petitioners that premises in
question is owned by Seth Jamna Dass Lallu Bhai Charitable Trust,
Mumbai falls flat and decks are cleared about the title of the Temple
Board regarding the premises. Moreover, on the face of it, on the

11
strength of Annexure-4, the so-called title of Seth Jamna Dass Lallu
Bhai Charitable Trust, Mumbai has lost all its efficacy and is of no
avail and consequence to the petitioners.
The question that whether property belonging to Temple Board
falls within the ambit of public premises is free from any doubt in
view of exhaustive definition of “public premises” under clause (b) of
Section 2 of the Act of 1964. Clause (xii) of clause (b) of Section 2 of
the Act of 1964 clearly postulates that premises belonging to Deity of
Shri Shrinathji Temple, Nathdwara is a public premises. Sub-clause
(xii) of clause (b) of Section 2 of the Act of 1964 reads as under:-
2(b) “public premises” means any premises belonging to, or

taken on lease or requisitioned by, or on behalf of the State
Government; and includes any premises belonging to-
......
......
(xii) The Diety of Shri Shrinathji Temple, Nathdwara
administered in accordance with the provisions of
Nathdwara Temple Act, 1959 (Rajasthan Act No.13 of
1959); or”
As regards status of the petitioners as unauthorised
occupants, suffice it to observe that Nathdwara Temple Board has
determined their tenancy and they are in occupation of the premises
after determination of tenancy. The definition of “unauthorised
occupation” under clause (e) of Section 2 of the Act of 1964 is clear
and unequivocal in this behalf which reads as under:-
“(e) unauthorised occupation”, in relation to any public

premises means the occupation by any person of the public
premises without authority for such occupation, and includes
the continuance in occupation by any person of the public
premises after the authority (whether by way of grant or any
other mode of transfer) under which he was allowed to
occupy the premises has expired or has been determined
for any reason whatsoever.”
In this view of the matter, the objections raised by the
petitioners about the jurisdiction of the Estate Officer to proceed

12
against them under the Act of 1964 are wholly unfounded and there
is no concrete material available on record to show that the Estate
Officer is acting without jurisdiction or de hors the law. It goes without
saying that a writ of prohibition and certiorari cannot be claimed by an
aggrieved person as a matter of right and both these remedies are
discretionary in nature. In want of proof about lack of jurisdiction of
the Estate Officer to proceed against them, the petitioners are
precluded from claiming any relief from this Court in the nature of writ
of prohibition and certiorari.
On perusal of the proceedings going on before the Estate
Officer, there remains no room of doubt that Estate Officer is giving
full opportunity to the petitioners to defend their cause and is making
endeavour to adjudicate the matter strictly in accordance with law.
Continuance of proceedings for the last more than three yeas before
the Estate Officer suggests clearly and unequivocally that the
petitioners shall be allowed full opportunity to tender their evidence
and defend their cause, which is yet another cause which has
persuaded this Court to decline the relief of certiorari.
The legal precedents on which learned counsel for the
petitioner has placed reliance are examined by me threadbare and
while fully agreeing with the proposition laid down in all these
judgments, I may observe here that all these judgments are clearly
distinguishable and therefore cannot render any assistance to the
cause of the petitioners. The petitioners have miserably failed to
make out a case that Estate Officer is acting without jurisdiction and
consequently the ratio decidendi of these judgments is of no avail and
consequence to them for seeking redressal from this Court in all
these petitions.
13
Before parting, I may hasten to add that all these petitions have
been filed by the petitioners to prolong the eviction proceedings which
are going on before the Estate Officer and such an attempt at the
behest of the petitioners cannot be countenanced, more particularly
when they are invoking extraordinary equitable jurisdiction of this
Court enshrined under Article 226 & 227 of the Constitution of India. It
is needless to observe here that any adverse order passed by the
Estate Officer against the petitioners is also assailable before the
Appellate Authority under Section 9 of the Act of 1964. Under
Section 9 of the Act of 1964, the order passed under Section 5 or
Section 7 of the Act of 1964 is appealable before the District Judge
of the District where premises are situated. This being the position,
the petitioners are always at liberty to assail the order passed by the
Estate Officer while availing the remedy of appeal by incorporating all
the necessary grounds available to them. However, in the backdrop
of the facts and circumstances, at this stage, when the Estate Officer
is proceeding in the matter well within his jurisdiction and in strict
adherence of the procedure provided under the Act of 1964, no
interference with the on-going eviction proceedings is called for.
The upshot of the above discussion is that all these writ
petitions are bereft of any merit and consequently are dismissed
summarily.
A copy of this order be placed in all connected files.
(P.K.LOHRA),J.
MK

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1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

(1) S.B.CIVIL WRIT PETITION NO.6280/2015

(11) S.B.CIVIL WRIT PETITION NO.6300/2015

Date of Order :: 8th September 2015

HON'BLE MR.JUSTICE P.K.LOHRA

Mr.C.S.Kotwani for the petitioners

In all these petitions, common question of law and facts are

involved and, therefore, all are heard together and disposed of by a

The facts necessary and germane to the matter are that

second respondent initiated proceedings against all the petitioners

for their eviction by taking shelter of Rajasthan Public Premises

(Eviction of Unauthorised Occupants) Act, 1964 (for short ‘the Act of

1964’) and consequently applications under Section 4 of the Act of

1964 were submitted before the first respondent – Estate Officer. In

all these applications, it is, inter alia, averred by the second

respondent - Nathdwara Temple Board that their tenancy had been

terminated by serving a registered notice but inspite of that neither

they have paid the requisite amount of rent. In that background,

while categorising their possession as that of unauthorised

occupants, the second respondent claimed for their eviction and

Taking cognizance of the application, the first respondent - Estate

In the reply, petitioners have disputed the ownership of the

second respondent – Nathdwara Temple Board and it is averred that

land in question was transferred to Seth Jamna Dass Lallu Bhai

Charitable Trust, Mumbai by the then Maharaja Dhiraj Goswami

Maharaj Shri Govardhanlalji in Svt. 1945 on receipt of consideration

of amount of Rs.501/- and therefore, the said trust is the owner of

the property. It is further submitted in the return that petitioners are

Nathdwara Temple Board. A reference is also made that earlier

there was a civil litigation pertaining to the owner of the property

the second respondent and the aforesaid trust by way of

compromise. Placing heavy reliance on the terms of compromise,

petitioners pleaded in their reply that in terms of compromise, Seth

property and authorised to recover rent and, therefore, in that

background, the proceedings initiated by the second respondent

them. Reiterating their stand that second respondent is not the

second respondent to prove its ownership regarding the property in

question. In totality, the petitioners have questioned the jurisdiction

of the first respondent to proceed against them under the provisions

of the Act of 1964 by contending that they are not unauthorised

occupants. Taking shelter of Section 9 of the Code of Civil

Procedure, it is also submitted in the reply that proceedings under

the provisions of the Act of 1964 are incompetent and a proper

remedy is before the civil court. Emphasizing the status of Seth

Jamna Dass Lallu Bhai Charitable Trust, Mumbai, it is averred in the

of Bombay Public Trust Act and, therefore, first respondent as

Estate Officer is having no jurisdiction to proceed in the matter. For

want of impleadment of Seth Jamna Dass Lallu Bhai Charitable

Trust, Mumbai, a specific objection was also incorporated in the reply

that application suffers from the vice of non-joinder of necessary

parties. In the alternative, it is also pleaded that even if the premises

in question is taken to be properties of the second respondent, the

(b) of section 2 of the Act of 1964.

Subsequent to the reply submitted by the petitioners, some

additional facts are also pleaded by the second respondent by way

of rejoinder reiterating the stand taken in the original application.

Regarding the factum of transfer of property on consideration by

Maharaja Dhiraj Goswami Maharaj Shri Govardhanlalji, it is

executed. The second respondent has also called upon the

petitioner to place on record any document showing title of the

property in the name of Seth Jamna Dass Lallu Bhai Charitable

Trust, Mumbai. It is also submitted in the rejoinder that the property