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2006 DIGILAW 1015 (RAJ)

Om Prakash Maheshwari v. State of Rajasthan

2006-03-29

PREM SHANKAR ASOPA

body2006
Judgment Prem Shanker Asopa, J.-By the instant writ petition the petitioners have challenged the order dated 22.08.1988 passed by District and Sessions Judge, Sawaimadhopur in Civil Miscellaneous Case No. 69/1986 whereby the property in dispute has been held to be of deceased Smt. Soni Devi widow of Ganga Bishan who died issueless and declared escheat under the Rajasthan Escheats Regulation Act, 1956 (for short the Act of 1956). The petitioners have also challenged the order dated 11.01.1991 whereby the learned District Judge, Sawaimadhopur, has refused to re-open the issue on the ground that the application has been filed after eleven months and no provision of law for reopening of such cases has been cited before him. 2. Briefly stated the relevant facts of the case are that the present petitioners are legal heirs of late Brij Mohan and late Kishori Lal in respect of whom the wrong entry made in the revenue record has been corrected in compliance of the Judgment dated 30.03.1981 of the S.D.O. Gangapur in case No. 52/1977 filed by them against the State. 3. The case before the S.D.O. of the late father of the Petitioner Nos. 1 to 4 and husband of Petitioner No. 5 was that they are the bona fide khatedar tenants of the land in dispute but in revenue record it was wrongly mentioned that the aforesaid land was mortgaged with Ganga Bishan and Mst. Soni widow of Ganga Bishan but the fact is that father/husband of the petitioner was paying land revenue to the State Government as tenant and were in actual possession. The said civil suit was decreed after notice to the State Government on 30.03.1981. Thereafter the consequential entries were made in the revenue record. In the inquiry made by the Tehsildar under Section 4 of the said Act of 1956 on 08.08.1975 it was observed by him that the objector namely Brij Mohan and Kishori Lal were not the heirs of Smt. Soni. It was further observed by him that if the objector wants to get some rights over the land in question they may take other appropriate legal proceedings. It appears that the Tehsildar has forwarded the said proceedings to the Additional Collector who in turn has sent the same for declaration of the said property as escheat to the Collector. The Collector has ultimately referred the matter to the District Judge. It appears that the Tehsildar has forwarded the said proceedings to the Additional Collector who in turn has sent the same for declaration of the said property as escheat to the Collector. The Collector has ultimately referred the matter to the District Judge. But the aforesaid decree dated 30.03.1981 was not considered by the aforesaid authority. Otherwise also the said fact gave the right to the petitioners to object the declaration of the proceedings as escheate property but no notice was given to him and only a declaration was issued in the Rajasthan Gazettee and without following the proper procedure of affixing the notice as well as the personal notice as laid down under Section 6 of the Act of 1956. The order dated 22.08.1988 was passed by the District Judge declaring the said property as escheat property on the ground that no one has objected despite expiry of 23 months from the date of publication of the affixation. The petitioners have filed an application but that too was rejected on the ground of filing after eleven months and no provision has been cited for reopening of the issue. 4. The Respondent No. 1 the State Government has filed a reply to the writ petition stating threin that "It is incorrect to say that Khasra Nos. 2799 and 2815 situated in village Sewa Tehsil Gangapur City were recorded in khatedari of Shri Brij Mohan and Shri Shri Kishori Lal. It is relevant to mention here that the land comprising of these two khasra nos. were recorded in khatedari of Shri Ganga Bishan and thereafter in khatedari of Smt. Soni. Both Shri Ganga Bishan and Smt. Soni died without leaving behind any legal representative, therefore, the land became the escheat property. From the perusal of the Annexure 2 it became clear that the predecessor of the petitioners Shri Brij Mohan filed a suit in the Court of S.D.O. Gangapur which was decided on 30.03.1981 by which the plaintiffs were declared khatedar tenant of the land. It is relevant to mention here that in the Judgment dated 30.03.1981 it has been specifically mentioned that the names of Smt. Soni wife of Shri Ganga Bishan and Phool Chand and Smt. Kanti may be struck off . The Judgment has been passed in absence of Smt. Soni, therefore, the Judgment is not binding to the land held by Smt. Soni." 5. The Judgment has been passed in absence of Smt. Soni, therefore, the Judgment is not binding to the land held by Smt. Soni." 5. The submission of the Counsel for the petitioner is that in view of the objection raised in the proceeding before the Tehsildar dated 07.07.1975 and Judgment and decree of the S.D.O. dated 30.03.1981 which attained the finality as well as consequential entries in the revenue record which were in the knowledge of the respondents, therefore, they are entitled for notice. But no such notice was given to them and even after declaration, their application for reopening of the case was not entertained. The further submission of the Counsel for the petitioner is that provisions of Section 6 of the Act of 1956 regarding proclamation by affixing a copy thereof at some conspicuous place by beat of drum and further it shall be the duty of the Collector to obtain full information form the public records and by personal inquiries has not been followed by the authorities concerned and the District Judge has also ignored the said aspect of the matter by not considering whether the aforesaid provisions have been followed or not and based his Judgment simply on the publication in the Rajasthan Gazette. 6. The submission of the respondent is that the procedure as prescribed under Section 6 of the Act of 1956 was followed and further Smt. Soni and Ganga Bishan, who are members of Schedule Tribe, therefore, their land could not have been transferred. The further submission of the respondents is that the Judgment of the S.D.O. has been passed in absence of Smt. Soni, therefore, the same is not binding on Smt. Soni. The respondents have not disclosed the death of Smt. Soni. 7. I have gone through the record of the writ petition, perused the impugned order and further considered rival submissions made by the parties. In view of the proceedings dated 07.07.1975 and the Judgment dated 30.03.1981 as well as consequential mutation entry the petitioners atleast have a right to object the said declaration of the escheat property more particularly in view of Section 6(2) (ii) and (5) of the Act of 1956 but aforesaid facts were not brought to the notice of the District Judge. Since, the property rights are protected by Article 300-A, therefore, the petitioners have a right to retain the possession and could only be dispossessed by following the due process of law, therefore, in my view the Judgment of the District Judge dated 22.08.1988 is not sustainable. By another order simply the application for reopening was rejected but no rights of the parties have been determined. The submission of the respondent State is that the petitioners were not entitled for any notice, is contrary to the aforesaid fundamental rights and the rights given under Section 6 of the Act of 1956. Therefore, the said submission is wholly devoid of force. 8. The contentions of the petitioners have force and the contentions of the respondents are devoid of merit. 9. In view of the above, the writ petition is partly allowed and the Judgment s dated 22.08.1988 and 11.01.1991 are quashed. However, it will be open to the respondent to continue the proceedings of declaration of the property in dispute as escheat property after issuing notice to the petitioners.