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2004 DIGILAW 496 (RAJ)

Narendra Kumar Acharya v. Bhure Khan

2004-04-02

SUNIL KUMAR GARG

body2004
Honble GARG, J.–This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner against the respondents on 10.10.2001 with the prayer that by an appropriate writ, order or direction, the order dated 6.9.2000 (Annex.12) passed by the respondent No. 42 Collector, Bikaner by which he came to the conclusion that the patta (Annex.2) dated 6.4.1949 which was issued in favour of Maharaja Sardul Singh comprises of the land of khasra Nos. 33, 34 and 37 and not of khasra No. 83 and therefore, he ordered that necessary correction to that effect be made in revenue record and the order dated 30.5.2001 (Annex.13) passed by the respondent No. 44 Board of Revenue by which the application filed by the petitioner under Section 9 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ``the Act of 1956) was rejected, be quashed and set aside. (2). Before proceeding further, it may be stated here that during the pendency of this writ petition, the respondent No. 1 Bhure Khan died and his LRs were taken on record and amended cause title was filed. (3). The case of the petitioner as put forward by him in this writ petition is as follows:- The petitioner is the devotee of deity and the respondents under the provisions of Section 136 of the Act of 1956 had transferred the land belonging to the deity by changing the Arazi numbers and further, a colony had been established in the name of ``Jai Narain Vyas Colony and the land, which has been grabbed by the respondents, has the market value of crores of rupees. The further case of the petitioner is that initially a patta (Annex.1) was issued in favour of Maharaja Sardul Singh on 21.10.1948 on the name of Vallabh Garden for the land measuring 2589 bighas and 6 biswas at village Shiv Badi and thereafter, a second patta (Annex.2) was also issued in favour of Maharaja Sardul Singh on 6.4.1949 for the land measuring 659 bighas and 19 biswas, which is ultimately the patta and land in dispute in the instant case. The further case of the petitioner is that the land granted through patta (Annex.2) was mutated on 28.10.1949 and fixed as Khasra No. 83 of Bikaner. The mutation entries were made on 28.12.1949, a copy of which is marked as Annex.4. The further case of the petitioner is that the land granted through patta (Annex.2) was mutated on 28.10.1949 and fixed as Khasra No. 83 of Bikaner. The mutation entries were made on 28.12.1949, a copy of which is marked as Annex.4. The entries of khasra No. 83 upto the samvat year 2027-28 are marked as Annex.5. Meanwhile, the original grantee Maharaja Sardul Singh expired in 1950 and his successor Maharaja Karni Singh transferred that land and patta in dispute in favour of his mother Smt. Sudarshan Kumari by a registered gift deed in the year 1958 and Rajmata Smt. Sudarshan Kumar sold the various lands by registered sale deed to some persons as mentioned in para No. 7 of the writ petition. The further case of the petitioner is that with the passage of time there was a vast development of Bikaner City and various colonies have been developed and established and even in Arazi khasra No. 83, the UIT had prepared various schemes and Jai Narain Vyas Colony had been established. The further case of the petitioner is that under the garb of the provisions of Section 136 of the Act of 1956, the other lands of khasras Nos. 33, 34, 35, 36 and 37 were being substituted in place of khasra No. 83 by the respondent No. 42 Collector, Bikaner through the impugned order Annex.12 dated 6.9.2000, which was wholly without jurisdiction and illegal. According to the petitioner, in Arazi Khasra No. 37, there is a land dedicated to the local deity and duly recorded as ``Oran Bhomiaji and in Rajasthani it means a forest or gochar land dedicated to any deity and nobody had a right to take any forest produce from it except the deity. So far as the land of Arazi Khasra No. 33 is concerned, the same was also entered as abadi land in the Gram Panchayat Shiv Badi and the Gram Panchayat Shiv Badi had issued various residential pattas to various persons. Further, the Arazi Khasra No. 34 is a cultivable agricultural land. The further case of the petitioner is that the Patwari, on his own, without any order of the competent Revenue Authority recorded Arazi Khasra No. 37 as ``Oran in the Samvat Years 2025 to 2028 and even the word ``Oran means a forest or gochar land dedicated to the deity. The further case of the petitioner is that the Patwari, on his own, without any order of the competent Revenue Authority recorded Arazi Khasra No. 37 as ``Oran in the Samvat Years 2025 to 2028 and even the word ``Oran means a forest or gochar land dedicated to the deity. However, after Samvat Year 2028, the land of khasra No. 37 was recorded in the name of Oran Bhomiaji, which means a forest or gochar land dedicated to the deity and nobody had right to take any forest produce from it except the deity. The further case of the petitioner is that a complaint was made by one Birma Ram Choudhary before the Divisional Commissioner, Bikaner and the Divisional Commissioner, Bikaner examined the matter and through order Annex.11 dated 24.2.2000, he came to the following conclusion:- (i) That presently, on most part of the disputed land, construction had been made and some unauthorized colonies had also been established. (ii) That in the patta (Annex.2), which was issued in favour of Maharaja Sardul Singh on 6.4.1949, khasra numbers were not mentioned and the same was issued for extension of Vallabh Garden, but it is not clear for which khasra number, patta Annex.2 was issued. (iii) That in the file of patta Annex.2, there was a mention of khasra No. 83, but if the plans, which were prepared on the back of patta Annex.2 are perused, that land could not form the part of khasra No. 83 and on the contrary, the land comprising of khasra No. 33 was also included in patta Annex.2 and therefore, it appeared that in the file of Patta Annex.2, khasra No. 83 was wrongly mentioned and for that, a correction is required to be made in the revenue record and thus, the file was ordered to be sent to the Collector, Bikaner for making necessary corrections, but on the condition that this may be done after hearing the concerned parties. The further case of the petitioner is that thereafter, the respondent No. 42 Collector, Bikaner, in compliance of the order Annex.11 dated 25.2.2000, took the proceedings under Section 136 of the Act of 1956 and he also issued notices to the complainant Birma Ram, but he did not appear before the respondent No. 42 Collector Bikaner and after hearing other parties appeared before him and considering the materials available on record, the respondent No. 42 Collector, Bikaner through order Annex.12 dated 6.9.2000 came to the conclusion that the patta Annex.2 dated 6.4.1949, which was issued in favour of the Maharaja Sardul Singh, comprises of the land of khasras No. 33, 34, 37 and not of khasra No. 83 and therefore, he ordered that necessary corrections to that effect be made in the revenue record. The further case of the petitioner is that the Revenue Authorities have adopted the device under the provisions of Section 136 of the Act of 1956 with oblique motive to confer title of valuable piece of land on respondents Bhure Khan and Ors. The further case of the petitioner is that he being a public spirited worker and devotee of Bhomiaji, moved an application under Section 9 of the Act of 1956 before the Board of Revenue (respondent No. 44), which has supervisory jurisdiction for all the revenue courts. Before the Board of Revenue (respondent No. 44), a preliminary objection was taken about the maintainability of the application under section 9 of the Act of 1956 and the Board of Revenue (respondent No. 44) through impugned order Annex.13 dated 30.5.2001 rejected the application filed by the petitioner under Section 9 of the Act of 1956 holding inter- alia:- (i) That the petitioner has other alternative remedy to seek his grievance meaning thereby he could have filed appeal against the order Annex.12 dated 6.9.2000 before the competent authority. Therefore, the petition under Section 9 of the Act of 1956 is not maintainable. (ii) That before the respondent No. 42 Collector, Bikaner, the petitioner moved an application for becoming party and that application was rejected, but thereafter, no judicial remedy was sought against that order. Hence, application of the petitioner under Order 1 Rule 10 CPC was dismissed by the Board of Revenue. (ii) That before the respondent No. 42 Collector, Bikaner, the petitioner moved an application for becoming party and that application was rejected, but thereafter, no judicial remedy was sought against that order. Hence, application of the petitioner under Order 1 Rule 10 CPC was dismissed by the Board of Revenue. (iii) That therefore, the matter does not come within the purview of Section 9 of the Act of 1956 and the preliminary objection was sustained on the following grounds:- (a) Alternative available remedy was not sought. (b) The issue of Personal Property Patta is not a case under Rajasthan Land Revenue Act, 1956 but under Rajasthan Land Reforms and Acquisition of Land Owners Estates Act, 1963. The issue regarding genuineness of personal property can be enquired only by the Compensation Commissioner. (c) If the land involved in Government land then Government should take appropriate action in pursuance of Collectors orders who has only given khasra numbers to this patta. (iv) That the petitioners main aim is to protect the Government land and therefore, the Government should take remedial measures if Government wants to. Aggrieved from the said order of the Board of Revenue (respondent No. 44) dated 30.5.2001 (Annex.13), the petitioner filed a writ petition as PIL being D.B. Civil Writ Petition No. 3015/2001 before the Division Bench of this Court and the Division Bench of this Court through order dated 9.8.2001 directed that the said petition be placed before the learned Single Judge and the said order dated 9.8.2001 reads as follows:- ``By way of this writ petition the petitioner has challenged the order of the Board of Revenue dated 21.5.2001. In view of this, the instant writ petition cannot be entertained as Public Interest Litigation. Let this petition be placed before the learned Single Judge. Thereafter, the said writ petition was treated as SB Civil Writ Petition of the same number and the same was placed before the learned Single Judge of this Court and the learned Single Judge of this Court vide order dated 3.9.2001 dismissed that writ petition as the petitioner withdrew that writ petition with liberty to file a fresh writ petition. In the above circumstances, the present writ petition has been filed by the petitioner with the prayers as stated above. In the above circumstances, the present writ petition has been filed by the petitioner with the prayers as stated above. A reply to the writ petition was filed on behalf of the respondent No. 14 and in that reply, it was submitted that the land granted to His Highness Maharaja Sardul Singh through patta Annex.2 dated 6.4.1949 included a part of the land shown as Khasra No. 37 as it will be evident from the plan prepared in 1949. Further, khasra No. 37 consisted of 740 bighas of land and that land was not cultivable and Oran Bhomiyaji had no legal status under Bikaner Tenancy Act and Bhomiyaji was only a Jagirdar being Muafidar under the Land Reforms and Jagirs Act. Hence, Bhomiyaji never acquired any khatedari rights in any part of the land of Khasra No. 37. It was further submitted by the respondent No. 14 that the land in question was allotted by the State Government in favour of the Rajasthan Housing Board, Urban Improvement Trust, Kabristan and OTS School etc. Further, the petitioner, who claims himself to be a devotee of Bhomiyaji, did not raise any objection at the time of allotment of the lands of Khasra No. 37 in favour of the Rajasthan Housing Board, Urban Improvement Trust, OTS School etc. and now colonies had been established long back. It has been further submitted by the respondent No. 14 that the Divisional Commissioner, Bikaner through order Annex.11 has already held that the land, which was allotted through patta Annex.2 dated 6.4.1999, could not be land of khasra No. 83 and that order Annex.11 had not been challenged by the petitioner. Further, the petitioner did not appear before the Collector, Bikaner (respondent No. 42). Hence, the petitioner is not entitled to challenge the order of the Collector, Bikaner (respondent No. 42) dated 6.9.2000 (Annex.12) and that of the Board of Revenue (respondent No. 44) dated 30.5.2001 (Annex.13), as he had no locus standi. Apart from this, the khasra No. 83 was not even the part of the village Shiv Badi in 1949 and therefore, no question could have arisen that patta (Annex.2) dated 6.4.1949 comprises of the land of khasra No. 83. In khasra No. 83, the Colony ``Jai Narain Vyas had been established and the land for it was acquired through Notification published in the official gazette. In khasra No. 83, the Colony ``Jai Narain Vyas had been established and the land for it was acquired through Notification published in the official gazette. Thus, it was submitted by the respondent No. 14 that no case for interference is made out and this writ petition deserves to be dismissed. A reply to the writ petition was also filed by the respondents No. 41 to 43 and it was submitted by them that land comprised in the patta (Annex.2) could not be of khasra No. 83 and actually, the land of patta (Annex.2) comprises of khasras Nos. 33, 34, 37 and 160/178 of village Shivbadi and the land of khasra No. 83 is situated at farther away on the north eastern side of the land of first patta (Annex.1) in revenue village Bikaner. Apart from this, substantial part of the land under the second patta (Annex.2) had been subjected to various transfers and various residential colonies had been established and therefore, now the reliefs claimed by the petitioner cannot be granted. Hence, the writ petition filed by the petitioner be dismissed. (4). I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the entire materials available on record. (5). Before proceeding further, it may be stated here that in this writ petition, the propriety and legality of the impugned order Annex.13 dated 30.5.2001 (Annex.13) passed by the respondent No. 44 Board of Revenue can be examined at the most as the petitioner has not filed any appeal against the order dated 6.9.2000 (Annex.12) passed by the respondent No. 42 Collector, Bikaner. (6). As per the case of the petitioner as well as the case of the respondents, the following facts have emerged:- (i) That there is no dispute on the point that through patta Annex.2 dated 6.4.1949, land was allotted to Maharaja Sardul Singh. (ii) That there is also no dispute on the point that over the land, which was allotted through patta Annex.2 dated 6.4.1949, various colonies had been established since long back. (iii) That there is also no dispute on the point that on the complaint of one Birma Ram, the Divisional Commissioner, Bikaner examined the matter and passed the order Annex.11 dated 25.2.2000, but that man (Birma Ram) did not appear before the respondent No. 42 Collector, Bikaner, who passed the order Annex.12 dated 6.9.2000. (iii) That there is also no dispute on the point that on the complaint of one Birma Ram, the Divisional Commissioner, Bikaner examined the matter and passed the order Annex.11 dated 25.2.2000, but that man (Birma Ram) did not appear before the respondent No. 42 Collector, Bikaner, who passed the order Annex.12 dated 6.9.2000. (iv) That there is also no dispute on the point that the petitioner has not appealed against the orders; Annex.11 and Annex.12. (v) That there is also no dispute on the point that the order Annex.12 dated 6.9.2000 passed by the respondent No. 42 Collector, Bikaner is an appealable order under the provisions of Section 75 of the Act of 1956. (vi) That there is also no dispute on the point that the petitioner did not avail any remedy and for the first time, taking resort to the provisions of Section 9 of the Act of 1956, he approached the Board of Revenue (respondent No. 44) against the order Annex.12 dated 6.9.2000 passed by the respondent No. 42 Collector, Bikaner. (vii) That there is also no dispute on the point that so far as the revenue authorities are concerned, they are of the view that the patta Annex.2 dated 6.4.1949, which was issued in favour of Maharaja Sardul Singh, did not comprise of the land of khasra No. 83, but it comprises of land of khasras Nos. 33, 34 and 37. These orders have not been challenged by the petitioner or any other person before the competent authority. (7). The question for consideration is whether in the above facts and circumstances, the findings recorded by the Board of Revenue (respondent No. 44) in the impugned order Annex.13 dated 30.5.2001 can be sustained or not. (8). For convenience, Section 9 of the Act of 1959 is quoted here:- ``9. General Superintendence of Subordinate Revenue Court- Subject to other provisions of this Act, the general superintendence and control over all revenue courts and over all revenue officers shall be versed in, and all such courts and officers shall be subordinate to the Board. (9). The words ``Subject to other provisions of this Act in Section 9 of the Act of 1959 have been used to limit the jurisdiction of the Board and where the alternative remedy by way of appeal, or revision etc. (9). The words ``Subject to other provisions of this Act in Section 9 of the Act of 1959 have been used to limit the jurisdiction of the Board and where the alternative remedy by way of appeal, or revision etc. is available, the extraordinary jurisdiction of the Board under Section 9 of the Act of 1956 cannot be invoked and this is a well settled law now. (10). Thus, when this being the position of law, the observations and findings of the Board of Revenue (respondent No. 44) that since the petitioner had other alternative remedy to seek his grievances, therefore, his application under Section 9 of the Act of 1959 was not maintainable, cannot be said to be erroneous or perverse one. (11). Apart from this, the Board of Revenue (respondent No. 44) in the impugned order Annex.13 dated 30.5.2001 has also observed that the petitioners main aim was to protect the Government land and for that, the Government should take remedial measures if the Government wants to do so and that is why, the Board of Revenue (respondent No. 44) has sent the copy of the impugned order Annex.13 to the Government Advocate in the Board of Revenue, Revenue Secretary in the Department of Revenue and the Divisional Commissioner, Bikaner for necessary action and when the copies of the impugned order Annex.13 have already been sent to them, therefore, the petitioner should approach these authorities for further remedial measures. (12). Apart from this, it may be stated here that the petitioner was nowhere involved as party in any of the orders Annex.11 dated 25.2.2000 passed by the Divisional Commissioner, Bikaner and Annex.12 dated 6.9.2000 passed by the Collector, Bikaner (respondent No. 42). He has not availed the alternative remedy available to him under the provisions of Section 75 of the Act of 1956. Furthermore, over the land in dispute, constructions over constructions had been raised since long and things were going on and going on since 1949 and during that period, the petitioner has not come forward. He has not availed the alternative remedy available to him under the provisions of Section 75 of the Act of 1956. Furthermore, over the land in dispute, constructions over constructions had been raised since long and things were going on and going on since 1949 and during that period, the petitioner has not come forward. Since the petitioner was not party before the Divisional Commissioner and the Collector (respondent No. 42) and he did not come forward when the constructions over the land in question were being raised, therefore, in these circumstances, at a highly belated stage, he has no locus standi to take resort to the provisions of Section 9 of the Act of 1956 especially when alternative remedy was available to him against the order of the Collector (respondent No. 42) dated 6.9.2000 (Annex.12). Thus, the petitioner by his conduct intentionally permitted the others to do something which he knew and now at this highly belated stage, he cannot be allowed to say that such things were going on wrongly. (13). Furthermore, it may be stated here that since the petitioner has come to this Court aggrieved by the order Annex.13 dated 30.5.2001 passed by the Board of Revenue (respondent No. 44), which is a quasi-judicial order, therefore, the case of the petitioner cannot be treated as a public interest litigation, as observed by the Division Bench of this Court through order dated 9.8.2001. (14). Apart from the above, it may be stated here that under Article 226 of the Constitution of India, the High Court does not sit or act as an appellate authority over the actions of the subordinate authorities or tribunal. (15). Under Article 227 of the Constitution of India, the High Court cannot interfere with the exercise of a discretionary power vested in the inferior court or Tribunal, unless its finding or order is clearly perverse or patently unreasonable. (16). The power of general superintendence conferred by Article 227 of the Constitution of India involves a duty on the part of the High Court to keep all courts and tribunals within its territorial jurisdiction within the bounds of their authority, to see that they do what their duty requires and they do it in a legal manner. This means that the High Court can interfere in case of- (a) Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise jurisdiction. This means that the High Court can interfere in case of- (a) Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise jurisdiction. (c) Error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction. (d) Violation of principles of natural justice. (e) Arbitrary or capricious exercise of authority, or discretion. (f) Arriving at a finding which is perverse or based on no material. (17). Keeping the above principles in mind, if the findings recorded by the Board of Revenue (respondent No. 44) through the impugned order Annex.13 dated 30.5.2001 are examined, it cannot be said that they are perverse, illegal or erroneous. The findings and observations of the Board of Revenue (respondent No. 44) that since the petitioner has other remedies to seek his grievance, therefore, his application under Section 9 of the Act of 1956 was not-maintainable, cannot be said to be erroneous one. Apart from this, the Board of Revenue (respondent No. 44) has also observed that since the main aim of the petitioner was to protect the Government land, therefore, for that, the Government should take remedial measures, if the Government wants to do so and hence, a copy of the impugned order Annex.13 was sent to the Government Advocate in Board of Revenue, Revenue Secretary in the Department of Revenue and Divisional Commissioner, Bikaner for necessary action. These observations of the Board of Revenue (respondent No. 44) cannot be said to be erroneous one. The impugned order Annex.13 dated 30.5.2001 does not suffer from any basic illegality or infirmity. (18). Hence, no interference is called for with the impugned order Annex.13 dated 30.5.2001 passed by the respondent No. 44 Board of Revenue in exercise of powers under Articles 226 and 227 of the Constitution of India and this writ petition deserves to be dismissed. Accordingly, this writ petition filed by the petitioner is dismissed. No order as to costs.