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2000 DIGILAW 240 (RAJ)

Shiviilal v. State of Rajasthan

2000-02-23

J.C.VERMA

body2000
JUDGMENT 1. - It is the contention of the petitioner that he had purchased certain property measuring 22 Bigha 15 Biswas on 23.4.1957 and he was also put in possession. The property was purchased from Seth Hari Chand son of Harakchand of Ajmer. On the enforcement of the provisions of the Rajasthan Zamindari & Biswedari Abolition Act, 1959, the rights, title and interest of the petitioner Biswedari vested in the State Government by virtue of Section 5 of the said Act. It is stated that the rights of khudkasht and personal property were retained by the petitioner and as per the provisions of Rule 6 & 7 of the Rajasthan Zamindari & Biswedari Abolition Rules, 1959, the petitioner filed an application for declaration of his rights of personal property vide Annexure-B. Action was taken under Rule 8 of the rules framed under the Act and the learned Additional Collector vide his order dated 11.3.1968 had given a declaration that the petitioner had purchased the said land from Harichand. The land was alleged to be situated in the municipal limits. Copy of ' the order of the Additional Collector has been attached as Annexure-C. The Tehsildar, not satisfied with the order Annexure-C, applied for review on 2.5.1968. It was stated in the review application that the land in question was an agricultural land and also did not fall within the municipal limits. It is stated that the review application was dismissed as not maintainable having not been filed by the competent authorised person vide order Annexure-D on 29.7.1969. 2. One Nathu, now respondent No.2, moved the authorities on 12.8.1975 stating that he and certain other persons were in possession of the said property and this property could not be declared as personal property of the petitioner and, therefore, asked for inquiry and review of the orders passed. The application is attached as Annexure-E. This application was objected to by the petitioner, even challenging the status and locus standi of the objector respondent No.2. However, this application was examined and it was held that the land was agricultural land and could not be deemed to be house site as was purchased for a sum of र 4,000/- only. The application is attached as Annexure-E. This application was objected to by the petitioner, even challenging the status and locus standi of the objector respondent No.2. However, this application was examined and it was held that the land was agricultural land and could not be deemed to be house site as was purchased for a sum of र 4,000/- only. Interest of the State was involved and, therefore, ultimately a reference was made to the Board of Revenue on 6.10.1977 vide Annexure-G. The petitioner was aggrieved against the order Annexure-G and, therefore, filed an appeal before the RAA under section 24 of the Act read with Section 75 of the Rajasthan Land Revenue Act. However, the Board of Revenue had accepted the reference made by the Collector and set aside the order dated 11.3.1968 vide order dated 4.9.1979, copy of which is attached as Annexure-J to the writ petition. The petitioner also filed a review application before the Board of Revenue which was also dismissed on 20.2.1980. An objection was taken about deciding of the case of the petitioner by a Single Member of the Board, however, ultimately the matter went to the Division Bench of the Board who dismissed the review application vide Annexure-M. The petitioner is aggrieved against the order Annexure G and M. 3. It is the contention of the petitioner that the Zamindari & Biswedari Abolition Act was a special Act and is excluded of applicability of all other laws and, therefore, no reference what-so-ever could have been made to set aside the order passed by the Additional Collector and for this purpose, the petitioner relies on the provisions of Section 3 of the Act which provides that the provisions of the Act and the Rules made thereunder shall have effect notwithstanding anything inconsistent therewith, contained in any other law and rules for the time being in force. Section 5 of the Act lays down the consequences of abolition and the savings. Section 6 provides the nature of the private party and khudkasht lands and Section 7 provides for the recognition -1 a " transfers. Section 5 of the Act lays down the consequences of abolition and the savings. Section 6 provides the nature of the private party and khudkasht lands and Section 7 provides for the recognition -1 a " transfers. Section 35 makes provision that by special orders of the State Government, the Collector may, with the approval of the State Government, delegate all or any of the powers conferred on him by this Act to any Sub- divisional officer or Assistant Collector subordinate to him and all actions so taken by the delegates shall be taken to have been passed in accordance with law by the Collector. It is the contention of the petitioner that the Collector had no jurisdiction to make a reference on the complaint made by the respondent and, therefore, the order making the reference itself was illegal from the very beginning and no action could be taken on such reference by the Board of Revenue. It is also the submission of the petitioner that Annexure-C was passed by the Collector after making enquiries and there was hardly any scope for entertaining the application of the non-petitioner No.2 and prays for setting aside the order dated 6.10.1977, 4.9.1979, 14.8.1980 and 15.10.1981. In Annexure-C, the Additional Collector had accepted the application filed under Rule 7 of the rules framed under the Act for declaration of the land as personal property of the petitioner as required under section 6 of the Act situated in village Thok Malian, Ajmer. It is further observed that the Tehsildar had reported that all the khasra numbers are fit for cultivation except a few khasra numbers which were Gair Mumkin and khasra No. 6663 was a well. The authority accepting the application had observed that on the basis of the affidavit filed by the petitioner, he had held that the land in question which is situated near the populated area of Ajmer city, right side of Ajmer-Beawer road and where a factory of Hindustan Tools is also being constructed and there being no counter evidence, is personal property, therefore, the application was allowable. 4. Vide order Annexure-D the review was dismissed on the ground that the review could only be filed by the Collector and not by the Tehsildar. 4. Vide order Annexure-D the review was dismissed on the ground that the review could only be filed by the Collector and not by the Tehsildar. Order Annexure-D shows that an objection was taken by the Tehsildar that the land was cultivable land and Chahi land and regularly cultivated and, therefore, a gross mistake had been committed by the Additional Collector in passing the order Annexure-C. It was further stated in the review application that the land is said to have been inspected by the Additional Collector in the absence of the parties: the land was stated to be out of limits of the municipal council. Ultimately vide Annexure-G a reference was recommended by the Collector on 6.10.1977. It was observed in Annexure-G that the land in question was cultivable land and could not be considered to be a house site. 5. The Board of Revenue vide Annexure-J had accepted the reference. The Board of Revenue had found that the requirement of Section 6 of the Act of 1959 was not fulfilled. The property site in question was not a house site; it was an agricultural land and was being cultivated on the date of vesting in the State. Even in the alleged sale-deed it was not mentioned that the purchase was for the purpose of house site and the land was sold for र 4,000/- only which could not be by any stretch of imagination called the proper consideration for such a big chunk of land meant for housing as alleged. It was held by the Board of Revenue that the Rajasthan High Court in (1) 1966 RRD 44 had held that there was no bar in entertaining the reference and so was the view taken in (2) 1975 RRD 270. The Board of Revenue held that the land in question was covered by the provisions of Section-6A of the Act and could not be defined as house site. 6. In the written statement filed by the respondents, it is stated that even the appeal filed by the petitioner before the RAA against the order Annexure-G for recommending the reference were dismissed on 7.1.1984. 7. The Board of Revenue had further observed that the earlier application of the Tehsildar for reviewing the impugned order dated 11.3.1968 was maintainable and had been wrongly rejected by the authorities below. 8. 7. The Board of Revenue had further observed that the earlier application of the Tehsildar for reviewing the impugned order dated 11.3.1968 was maintainable and had been wrongly rejected by the authorities below. 8. It is the contention of the petitioner that no review/reference was maintainable for the reason that the Biswedari Abolition Act was special law and had over riding effect on all other laws and for that purpose relies on Section 3 of the Act which provides that the provisions of the Act, rules and orders made thereunder shall have overriding effect notwithstanding anything inconsistent in any law, rule or any instrument, usages, agreement, settlement, grant, sanad and any decree or order of a court or authority. It is true that so far as achieving the aims and purposes of Abolition 'Act are concerned, the Abolition Act has paramountcy, but it cannot be said that the power of review or reference cannot be invoked for the purpose of un-doing of the illegality or correcting the orders passed by the subordinate authorities which may be against the provisions of the Act itself. 9. Section 5 of the Abolition Act lays down the consequences of abolition whereas Section 6 provides the nature of private properties of a Zamindar or Biswedar and so is Section 6(2). Section 7 provides that no transfer of an estate or part thereof made by the Zamindar or the Biswedar on or after the first day of January 1953, by way of sale or gift or by making a grant or by way of lease for a non-agricultural purposes shall be recognised for any purpose of this Act and the estate or part so transferred shall be deemed to continue to vest in the transferor, if such transfer is established to have been made not in good faith and in the normal course of management but in anticipation of the abolition and acquisition of Zamindari or Biswedari estate. Section 35 authorises the State to delegate the powers. 10. Section 35 authorises the State to delegate the powers. 10. Scheme of the Act is that after issuance of the notification under Sub-section (1) of Section 4, no right shall be acquired in or over any land in estate affected thereby except by succession or under a grant or contract in writing made or entered into by or on behalf of the State Government and no fresh clearings for cultivation of for any other purpose shall be made in such land by or on behalf of the holder of such estate otherwise than in accordance with rules made by the State Government in this behalf. 11. In the present case, the so called sale is said to have been made in the year 1957 and, therefore, was clearly hit being in violative of the provisions of Section 7 of the Act. Sections 6 and 6(2) do provide that the private land of all house-sites purchased by the Zamindar or Biswedar or by his predecessor-in-interest or by any other person for valuable consideration, all places of worship or wells situated in such house-sites and in khudkasht land belonging to and held by the zamindar, all private houses and all nohras or enclosures attached thereto, all land covered by such places of worship, wells, houses and nohras or enclosures, all trees belonging to the Zamindar shall continue to belong to and be held by such Zamindar or Biswedar or other person. 12. Section 6(2) relates to groves wherever situated and recorded in the annual registers before the date of vesting as belonging to and being held by Zamindar or Biswedar. 13. The provisions of Section 5, 6 and 6(2) and 7 are reproduced as under: 5. Consequences of Abolition:-(1) After the issue of a notification under sub-section (1) of Section 4 no right shall be acquired in or over any land in estate affected thereby except by succession or under a grant or contract in writing made or entered into by or on behalf of the State Government and no fresh clearings for cultivation of for any other purpose shall be made in such land by or on behalf of the holder of such estate otherwise than in accordance with rules made by the State Government in this behalf.' 6. Private properties of a Zamindar or Biswedar: 1 Notwithstanding anything contained in Section 5: a. All house sites purchased by the Zamindar or Biswedar or by his predecessor-in-interest or by any other person for valuable consideration, b. All places of worship or wells situated in such house-sites as are mentioned in clause (a) and in khudkasht land belonging to and held by the Zamindar or Biswedar or any other person at the date of vesting. c. all private houses and all nohras or enclosures attached thereto, provided that such nohras or enclosures are in continuous possession of the Zamindar or Biswedar since the 'first day of January, 1953. d. all land covered by such places of worship, wells, houses and nohras or enclosures, and e. all trees belonging to the Zamindar or Biswedar or any other person and standing on house sites mentioned in clause (a) and on khudkasht land shall continue to belong to and be held by such Zamindar or Biswedar or other person. Section 6(2) -Notwithstanding as aforesaid-(i) all groves wherever situated and recorded in the annual registers before the date of vesting as belonging to and being held by the Zamindar or Biswedar or other person and the land under such groves shall be deemed to be settled with him by the State Government on such terms and conditions as it may determine, and ii all tanks, ponds and embankments belonging to and held by the Zamindar or Biswedar or other (sic ?), a which are situated on khudkasht land or on any other land not being a village site; and, (b) in which no other person has any right of irrigation, shall continue to belong to and be held by the Zamindar or Biswedar or other person to whom they actually belong:- ' 7. Provisions as certain transfers & agreement-Notwithstanding anything contained in any law, no transfer of an estate or part thereof made by the Zamindar or the Biswedar on or after the first day of January, 1953, by way of sale or gift or by making a grant or by way of lease for a non-agricultural purpose shall be recognised for any purpose of this Act and the estate or part so transferred shall be deemed to continue to vest in the transferor if such transfer is established to have been made not in good faith and in the normal course of management but in anticipation of the abolition and acquisition of Zamindari or Biswedari estate: Provided that nothing in this sub-section shall apply to any sale made under order of a court in execution of a decree or order for payment of money.' 14. By reading of the sale-deeds it is dear that the land which was an agricultural land were neither a house nor did it fall in any of the provisions for which a declaration of private property could have been given by the authority vide order dated 11.3.1968. 15. Objections were taken by the Tahsildar to the effect that the land doe: not fall under the provisions of the relevant sections, but still only relying on to affidavit of the petitioner only, the authority had passed the order dated 11.31968. The Tahsildar was justified in moving an application for reviewing' the Order which order was not based on record, but the reviewing authority had illegibly held that the review can only be moved by the Collector and the Board of venue had rightly observed that such observation by the reviewing authority was neither proper nor justified. Section 26 of the Act does vest the power of review in the Board, Revenue Appellate Authority, the Collector or any other officer exercising powers of Collector by either on its own motion or on the application from any interested party. In the present case the Government was interested party and the application moved by the Tahsildar was moved in accordance with law. Even otherwise, Section 26 authorises for review of the order on the application moved by any person. 16. Counsel for the petitioner wants to rely on a judgment of this court in the case of (3) Anandi Lai Vs. State of Rajasthan & Ors. Even otherwise, Section 26 authorises for review of the order on the application moved by any person. 16. Counsel for the petitioner wants to rely on a judgment of this court in the case of (3) Anandi Lai Vs. State of Rajasthan & Ors. 1995(1) RLR 555 =1996 RRD 170 , (4) Sukkal & Ors Vs. State of Rajasthan & Ors. S.B. Civil Writ Petition No. 141/89 decided on 16.9.1998 , (5) Dhanna Lai Vs. State 1996(1) RLR 116=1996 RRD 562 (sic 565). 17. Sukkal's case (supra) was a case of reference which was recommended after 25 years of delay in regard to changing of entries in the revenue record and relying on Anandilal's case (supra) it was held that even though there is no period of limitation provided under Section 82 of the Land Revenue Act or under Section 232 of the Tenancy Act, but still the invocation of powers of reference after inordinate delay and to exercise interference after unreasonable time was declared to be unjust. 18. In the case of Dhanna Lal 1996 RRD 562 (sic 565), it was a case of reference under Section 232. The non-interference by the Board of Revenue on the ground that the dispute relating to the private parties was not accepted by the Division Bench of this court and the matter was referred back for passing a proper order. It was held by the Division Bench that the regard must be held to the facts and circumstances of the present case where fraud has been perpetuated from the very beginning and there was a collusive decree right from the beginning, the fruits of which were sold out to the other respondents and, therefore, the Hon'ble Division Bench were of the considered view that it is in the fitness of the things that the powers under section 232 are to be exercised by the Board of Revenue. In my opinion the case reported in (6) State of Rajasthan Vs. Board of Revenue, 1996 RRD 562, does not assist in any manner the case of the petitioner. 19. In the alternative, counsel for the petitioner submits that the power of review under Order 47 Rule 1 and 2 can only be exercised if there is a mistake or error on the face of record. Board of Revenue, 1996 RRD 562, does not assist in any manner the case of the petitioner. 19. In the alternative, counsel for the petitioner submits that the power of review under Order 47 Rule 1 and 2 can only be exercised if there is a mistake or error on the face of record. In my view such submission made b7 the petitioner do not further cause of the petitioner for the reason that it has been held by the impugned orders that the land itself was not available or does not fall within the ambit of the provisions of Section 6 or Section 6(2) if the Biswedari Abolition Act and the land seems to have been transferred after the notified date only to defeat the purpose of the Biswedari Act itself. 20. During the pendency of the writ petition, the petitioner ha( died and application was moved on 23.5.1990 on behalf of Inder Chand, the on of the deceased Sunil Kumar and Sanjay Kumar the grand-sons of the deceased for bringing them on record. The said legal representatives are order ed to be brought on record with all just exceptions. 21. For the reasons mentioned above, I am not inclined to interfere in any of the impugned order and do not find any merit in the writ petition and the same is dismissed. No order as to costs.Petition Dismissed *******