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2004 DIGILAW 135 (RAJ)

Rajendra Singh v. State of Raj.

2004-01-27

RAJESH BALIA

body2004
Honble BALIA, J.–Heard the learned counsel for the parties. (2). In the set of tripple petitions viz. S.B. Civil Writ Petition No. 510/85, 693/91 and 3916/2001 which have been directed to be listed for hearing together vide order dated 12.12.2003 passed in S.B. Civil Writ Petition No. 510/85, order under challenge in above writ petition is first in chronology. Hence, this petition is taken up first. (3). By this writ petition, the petitioner challenge order of Board of Revenue lastly passed on 30/07/1982 by which the claim of erstwhile Jagirdar of Jagir Dugari, Tehsil Nainwa Distt. Bundi to declare Kanak-Sagar land as his private property under Sec. 23 of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (hereinafter referred to as the Act, 1952), has been rejected. (4). Sec. 23 (1) (d) under which claim was laid, reads as under:- Sec. 23. Private land, buildings, wells, house sites and enclosures- (1) Notwithstanding anything contained in the last preceding section- (a) ... ... ... ... ... ... ... ... ... (b) ... ... ... ... ... ... ... ... ... (c) ... ... ... ... ... ... ... ... ... (d) all tanks in the personal occupation of the Jagirdar and not used for irrigating the lands of any tenant in the jagir land, shall continue to belong to or be held by such jagirdar or other person: Provided that nothing contained in Clause (d) shall affect the rights of the jagirdar in any portion of a tank which may be in the personal cultivation of the jagirdar. (5). The chequered history of the case shows that by order dated 4.8.1966, the Jagir Commissioner held that the water of the tank was being used for irrigation and therefore it cannot be declared as a private property or personal property of the Jagirdar on its resumption. (6). This led to filing an appeal before the Board of Revenue. The appeal was heard by a Division Bench in the first instance. Both the learned Members of the Board were of the opinion that the Kanak Sagar tank cannot be declared personal or private property of the ex-Jagirdar under Sec. 23 (1) (d) of the Act of 1952. (6). This led to filing an appeal before the Board of Revenue. The appeal was heard by a Division Bench in the first instance. Both the learned Members of the Board were of the opinion that the Kanak Sagar tank cannot be declared personal or private property of the ex-Jagirdar under Sec. 23 (1) (d) of the Act of 1952. However, before the Board of Revenue, for the first time, an alternative prayer was made on behalf of ex-Jagirdar that under proviso to Sec. 23(1) (d) of the Act, 1952 part of the land at tank bed which was actually in the personal cultivation of Jagirdar may be declared personal property of the Jagirdar. One learned Member of the Board opined that the case be remanded to the Jagir Commissioner to consider this and on the basis of his finding to pass the appropriate order. Another learned Member of the Board was of the opinion that the declaration, acceptance or rejection of claim be made on the basis of available record, without remand. On this difference of opinion about the declaration of ex-Jagirdars right in respect of part of tank bed claimed to be in personal cultivation, the matter was referred to third Member. (7). The learned third Member of the Board of Revenue in his order dated 1.9.1972 recorded the apprehension of the ex-Jagirdar expressed before the Board in the following terms:- ``The question remaining is whether, in accordance with the proviso to sub-Sec. (1) of Section 23, such portion of the tank which is in personal cultivation of the Jagirdar has to be determined even though it is not personal property. It appears that the Jagirdar fears that if no such declaration is made, he may be deprived of his khudkasht rights in respect of land in the bed of the tank. (8). Repelling the contention of the State Counsel that in view of Sec. 16 (ii) of the Rajasthan Tenancy Act, khatedari rights cannot accrue in land used for casual or occasional cultivation in the bed of a tank, he concluded that the proviso to Sec. 23 (1) protects the rights of the Jagirdar in cultivating in any portion of a tank. The ex-Jagirdar has a right to Khudkasht. With this conclusion, the learned third Member opined that proviso to Sec. 23 (1) protects the rights of the Jagirdar. The ex-Jagirdar has a right to Khudkasht. With this conclusion, the learned third Member opined that proviso to Sec. 23 (1) protects the rights of the Jagirdar. It cannot be said that this proviso calls for determination and demarcation of such land, as has been held by Shri Kakar. Nor does sub-section (2) of Section 23 apply because the nature of the property had already been determined by the Jagir Commissioner and by the two learned Members. There is no basis for the Jagirdars fear that he will be deprived of his Khudkasht in the bed of the tank, yet he seems anxious that the extent of this Khudkasht should be officially determined. (9). With these conclusions, the learned third Member held that this is not a fit case to exercise the inherent powers of the Court and thus finding no force, the appeal was dismissed. (10). Apparently, so far as claim to declaration of the tank as the personal property of the Jagirdar, it came to a close even by the concurring opinion of Members of Division Bench with which no different opinion was recorded by third Member also. (11). Before parting with the appeal, the Third Member of the Board of Revenue to whom the matter was referred, in exercise of inherent powers, directed the Jagir Commissioner to examine the entire Khudkhast case of the appellant so that no cause for dispute will remain. (12). During the proceedings before the Board, Inder Singh had died in 1967 and his estate was represented by his son Mahendra Singh. (13). In the aforesaid circumstances, the matter came to be posited with the Jagir Commissioner once again for determination of the area of the land in the bed of Kanak Sagar which can be said to be under personal cultivation of ex-Jagirdar and can be declared a Khudkasht to be dealt with subsequently, under the Rajasthan Tenancy Act, 1955, which had come into operation after Act of 1952. (14). During the proceedings before Jagir Commissioner on remand, Mahendra Singh also died in 1974 and in his place widow Daulat Kanwar was brought on record to represent his estate. (15). With this scenrio, the principal question remanded throughout is whether Inder Singh, the holder of Jagir at resumption was in personal cultivation of land at the bed of Kanak Sagar. (16). (15). With this scenrio, the principal question remanded throughout is whether Inder Singh, the holder of Jagir at resumption was in personal cultivation of land at the bed of Kanak Sagar. (16). Thereafter, by order dated 6.10.79, the Jagir Commissioner held that ex Jagirdar was not entitled to declaration of any part of the land forming part of the tank bed also, as it is not proved that any part of such land was under personal cultivation of Jagirdar. (17). This appeal was dismissed by the Board of Revenue on 30/07/1982 finding that there was no material to interfere with the finding of the Jagir Commissioner, that no part of land at bed of Kanak Sagar tank was under personal cultivation of Jagirdar. (18). Before proceeding further, it may also be noticed that notwithstanding clear finding which has become final and there was no dispute left with Jagir Commissioner to decide that the tank was not the personal property of the Jagirdar, and rights, if any, he could claim only in terms of proviso to Sec. 23(1)(d) of Act, 1952 and the claim of the ex-Jagirdar before the Board of Revenue was only that he was in cultivation of part of the land of tank-bed, his heirs tried to enhance claim again to the entire tank bed by claiming it to be in personal cultivation and the same matter was sought to be argued before the Board of Revenue in appeal. The Board of Revenue in its order dated 30/07/1982 held once again that so far as nature of the tank being not the personal property has become final and claim which was made before the Board of Revenue in the earlier proceedings was only in respect of part of the land of tank bed claimed under personal cultivation, cannot be enlarged under the garb of order, to the entire tank bed. Having come to this conclusion, on merit of the finding about the personal cultivation of the Jagirdar, the Board also held that the ex-Jagirdar was not in personal cultivation of any part of the land of tank bed so as to get any benefit within the province of proviso to Sec. 23 (1)(d) of the Act, 1952. (19). This order was not challenged by anyone until the present writ petition was filed on 31/07/2001 exactly after 19 years of the order. (19). This order was not challenged by anyone until the present writ petition was filed on 31/07/2001 exactly after 19 years of the order. Apparently, the petition suffers from gross laches for which no plausible explanation is to be found on record. The feeble attempt was made by the learned counsel for the petitioner that since the present petitioner was minor at the time when the impugned orders were made and the interest of persons representing the estate of Inder Singh was adverse to his interest, his rights cannot be defeated and he could avail the remedies after he attained the age of majority. (20). This contention fails to impress and cannot be sustained on its face value. In the petition nowhere the date of birth or age of the petitioner has been mentioned. However, according to the petitioners own affidavit, at the time of filing of the writ petition, he has deposed his age to be 30 years. Assuming it to be true, he long passed the age of minority. Even if he were to file a suit in support of his purported independent right, the period of filing a suit in respect of a minor in whose case, the period of limitation has not commenced would have become time barred long before. It is one of the criterion for which laches with which this petition suffers cannot be condoned. (21). Moreover, this plea appears to be a deliberate suppression. This petition has been filed by the petitioner while S.B. Civil Writ Petition No. 510/85 filed by the petitioner alongwith his mother as petitioners was also pending in this Court in connection with ceiling matter in respect of Inder Singh erstwhile Jagirdar relating to determination of land held by him under any tenure as on 1.4.66 under Chapter III-B of the Rajasthan Tenancy Act. The said petition was ordered to be connected with this petition by order dated 4.9.2001 at the time of admission. From the record of the said petition, it appears that as on 1.4.66, Rajendra Singh was claimed to be six years of age. If that be so, then the petitioner Rajendra Singh at the time of making the order under challenge was about 22 years of age. Moreover, the order dated 30.7.82 has been produced as Annexure to writ Petition No. 510/85 in 1985 itself. If that be so, then the petitioner Rajendra Singh at the time of making the order under challenge was about 22 years of age. Moreover, the order dated 30.7.82 has been produced as Annexure to writ Petition No. 510/85 in 1985 itself. The Writ Petition No. 510/85 has been filed by Rajendra Singh with his mother Daulat Kanwar. In the said Writ Petition filed on 20.3.85, Annex.6, the order of Board of Revenue dated 30.7.82 has not been challenged. Challenge in the said writ petition was only to Annexures - 1 to 4 which are orders under ceiling proceedings. In the said petition, no claim that Rajendra Singh is minor was laid. (22). Thus, to plead ignorance about the order on account of minority per se becomes a matter of suppression of material fact which becomes relevant to consider the plea explaining laches. (23). Secondly, as has been noticed by the learned Member of the Board of Revenue, the proceedings have initially started by the erstwhile Jagirdar himself under Sec. 23 in which no claim of personal cultivation was made. It was only at the time of appeal on the earlier occasion, the alternative plea for part of land in the bed of tank being in personal cultivation of the holder was made by Mahendra Singh S/o Inder Singh and father of present petitioner, who claimed to be only heir of Inder Singh surviving at the relevant time. Mahendra Singh, who was brought on record as legal representative of late Inder Singh whose rights are to be determined, and who himself had not laid any claim of personal cultivation. The said fact was noticed by the learned Member in his order dated 1.9.72. Thus, as a question of fact, whether any part of the tank bed was in personal cultivation of late Inder Singh was for the first time, made by the heir of the erstwhile Jagirdar who is none else than father of the petitioner, a claim which was not made at any time by Inder Singh, the Jagirdar, who has filed the claim under Sec. 23. The estate of ex-Jagirdar was fully represented by his son Mahendra Singh, in these proceedings in the first instance. The estate of ex-Jagirdar was fully represented by his son Mahendra Singh, in these proceedings in the first instance. We may notice that when the proceedings were started and the first order of Jagir Commissioner came, perhaps the present petitioner was not even born, if his plea about his age is accepted as per his deposition on oath to lay any claim to the personal cultivation by himself or for any member of his family, nor he be in personal Knowledge of any such facts on the basis of which he could say that the said land was under personal cultivation of his grand-father Inder Singh and his personal rights are being affected. (24). I, further find that during the subsequent proceedings Mahendra Singh also died and was represented by his widow and mother of present petitioner as legal representatives. She, thus became a person representing the estate of Inder Singh. (25). Apart from this fact, it cannot be said that so far as declaration of the land in question as a personal property or part of the tank bed of Kanak Sagar as Khudkast in terms of the order dated 30.7.1982 is concerned, the interest of Mahendra Singh or present petitioner cannot be put in conflict with each other any manner. It is not the petitioners challenge to acquisition of any interest by succession or inheretence, which takes place on the demise or holder of any estate in accordance with law governing his succession. Therefore, the plea that the interest of legal representatives before the Board of Revenue in earlier proceedings was in conflict with the interest of present petitioner, also cannot be sustained. Thus, it is a case in which the petition suffers from obvious gross laches and there is no reason for invoking extraordinary jurisdiction in favour of the petitioner after 19 years of passing of the order by the Board of Revenue. (26). Apart from the ground of latches, another fact which appears glaringly on record is about the finding of absence of personal cultivation in any part of tank bed which is a finding of fact. The finding recorded by both the authorities was that no part of tank bed was in personal cultivation of the erstwhile Jagirdar and it was given for cultivation on contract. (27). The finding recorded by both the authorities was that no part of tank bed was in personal cultivation of the erstwhile Jagirdar and it was given for cultivation on contract. (27). The definition of `land in personal cultivation has been provided in Section 2(1) of the Act of 1952 on which reliance was placed by the learned counsel for the petitioner. However, it does not bring it within the ambit of the land cultivated by contract as land personally cultivated by the erstwhile Jagirdar. (28). Clause (k) of Sec. 2 defines the `land cultivated personally and reads as under:- (k) `land cultivated personally with its grammatical variations and cognate expressions means land cultivated on ones own account- (i) by ones own labour; or (ii) by the labour of any member of ones family; or (iii) by servants on wages payable in cash or in kind (but not by way of a share in crops) or by hired labour under ones personal supervision or the personal supervision of any member of ones family. Provided that in the case of a person who is a widow or a minor or is subject to any physical or mental disability or is a member of the Armed Forces of the Union, or who, being a student of an educational institution recognised by the Government is below the age of twenty-five years, land shall be deemed to be cultivated personally even in the absence of such personal supervision. (29). The land which is being cultivated through contractor is not included in the land cultivated personally, therefore, on merit also, this writ petition has no force. (30). The petition is accordingly dismissed with costs. As in my opinion filing of this petition at such a late stage clearly amounts to gross abuse of the process of the Court, the cost is quantified at Rs. 10,000/- (Rs. Ten thousand only).