Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 1557 (RAJ)

Neeta Goyal v. Khudkasht Comm.

2007-08-14

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.—Smt. Neeta Goyal has filed this writ petition challenging the order dated 28.12.1994 passed by Khudkasht Commissioner by which review petition one Ramu, husband of respondent No. 4 and father of respondents No. 5 & 6 was allowed and has prayed for a declaration to the effect that allotment of land of khasra No. 163 of revenue village Kanota measuring 1 Bigha and 6 biswas in favour of Ex-Jagirdar Nand Singh (respondent No.7) is legal and valid and the petitioner having purchased the said land from him through his power of attorney holder vide sale-deed dated 1.6.1992 be declared as the khatedar of the said land and the order dated 23.5.1995 passed by the District Collector entering the mutation in the name of Ramu be set aside. 2. I have heard Shri Ajeet Bhandari, the learned counsel for the petitioner and Shri Ghaneshwar Bardar with Shri Mohan Palsaria for respondents. 3. Shri Ajeet Bhandar, the learned counsel for the petitioner argued that Nand Singh, respondent No. 7 was a Jagirdar of Village Gumanpur, Tehsil Bassi, District Jaipur. His Jagir was resumed by the State Government on enforcement of the provisions of the Rajasthan Land Reforms and Resumption of Jagirdari Act, 1952 (for short, - the Act of 1952). He thereafter applied for allotment of kudhkasht land in view of the resumed land. The Kudhkasht Commissioner proposed allotment of certain lands to him and asked for his consent. Shri Nand Singh accordingly sent his consent letter dated 15.5.1992. Tehsildar Bassi made enquiry about status of such lands and submitted his report on 25.2.1992. It was thereafter that the kudhkasht Commissioner by his order dated 29.5.1992 allotted 86 bighas and 16 biswas of land in various revenue villages including the disputed land to Shri Nand Singh. Possession of the entire lands including the land in dispute was handed over to respondent No.7 and mutation was entered in his name. land of khasra No. 163 was also mutated in his name vide mutation No. 573 dated 26.6.1992 whereby he was duly recorded as khatedar of the land. Possession of the entire lands including the land in dispute was handed over to respondent No.7 and mutation was entered in his name. land of khasra No. 163 was also mutated in his name vide mutation No. 573 dated 26.6.1992 whereby he was duly recorded as khatedar of the land. The petitioner purchased the aforesaid land of khasra No. 163 measuring 1 bighas and 6 biswas from respondent No.7 through his power of attorney holder vide registered sale-deed dated 1.6.1992 an on that basis, mutation No. 581 was entered in her favour and her name was also recorded as khatedar in the revenue records on 26.6.1992. It is stated that the said land is in possession of the petitioner since then. 4. Shri Ajeet Bhandari submits that respondent No.4 to 6, wife and sons of the deceased Ramu, came to the disputed land on 29.5.1997 and claimed that they are owners of the said land. On enquiry, the petitioner learnt that a notice under Section 91 of the Rajasthan Land Revenue Act was issued to Ramu for the said land and Tehsildar Bassi passed an order on 26.6.1990 for evicting him. She later also came to know that Ramu had filed a review petition before the Kudkasht Commissioner under Section 40-A of the Act of 1952 of the premise that he was allotted the disputed land on 27.4.1989 by the Advisory Committee and therefore it was not an unoccupied land and could not have been allotted to respondent No.7. It is argued that although the respondent No.7 was made a party to the review petition, but no notice of such proceedings was given to the petitioner nor was she heard prior to passing of the order dated 28.12.1994 whereby the aforesaid review petition was allowed to the extent of allotment of the lands of khasra No. 163 measuring 1 bighas and 6 biswas in favour of respondent No.7 which was reviewed and recalled. Shri Ajeet Bhandari argued that though a decision was taken by the Advisory Committee for regularising possession of Ramu but no allotment letter as such was issued in his favour in as much as his name was not recorded in the revenue records as khatedar. Various provisions like Rule 5, 6 & 7 of Rajasthan Land Revenue (Allotment of Land of Agricultural Purposes) Rules, 1970 (for short - the Rules of 1970) were not complied with. Various provisions like Rule 5, 6 & 7 of Rajasthan Land Revenue (Allotment of Land of Agricultural Purposes) Rules, 1970 (for short - the Rules of 1970) were not complied with. Based on the recommendation of the Advisory Committee, no consequential order was passed by the Sub-Divisional Officer as required by Rule 20 of the Rules of 1970. On the basis of the judgment of the Kudhkasht Commissioner dated 28.12.1994, the Tehsildar vide order dated 28.12.1994, the Tehsildar vide order dated 16.1.1995 recorded the land as savai chak by mutation No. 648 against which appeal was filed by deceased Ramu before District Collector who by vide his order dated 23.3.1995 set aside the order of Tehsildar and directed that fresh order be passed after hearing him and consequently mutation No. 667 was recorded in his favour. It was therefore argued that the order passed by the District Collector and consequential mutation recorded in favour of Ramu and later, respondent Nos. 4 to 6, was result of the review order passed by the Kudhkasht Commissioner dated 28.12.1994 and therefore the said order having been passed without opportunity of hearing to the petitioner is liable to be set aside. It was argued that mere providing of opportunity of hearing to respondent No. 7 Nand Singh would not cure this deficiency in the impugned order because Nand Singh having sold the land in dispute to the petitioner through his power of attorney holder would not be in any manner adversely affected by exclusion of one bigha and 6 biswas of lands of khasra No. 163 out of the total 86 bighas and 16 biswas of land allotted to him as Kudhkasht. It was argued that even if it is taken that the petitioner claims title over the land in dispute through Nand Singh, she being a bona fide purchaser and her name having been recorded in the revenue records as khatedar with the mutation entered in her favour, she at a subsequent point of time could not have been completely left in lurch just because notice of the review proceedings was given to respondent No. 7 Nand Singh. It was therefore prayed that the impugned order be set aside and the writ petition be allowed in terms of the prayers aforementioned. 5. It was therefore prayed that the impugned order be set aside and the writ petition be allowed in terms of the prayers aforementioned. 5. On the other hand, Shri Gyaneshwar Bardar, the learned counsel for the contesting respondent opposed the writ petition and argued that the allotment of the disputed land was secured by the respondent on the basis of his report erroneously prepared by Tehsildar that the said land was unencumbered/unoccupied and in complete ignorance of the fact that the khatedari rights had been conferred upon the contesting respondents by the Advisory Committee under the Rules of 1970. Such order was rightly revoked by Khudkasht Commissioner on 28.12.1994. The disputed land was allotted to Ramu, the predecessor in title of the contesting respondents by way of regularisation and therefore this land was not an unoccupied land so as to be available for allotment to respondent No. 7. It was argued that the possession of the land in dispute was never handed over to respondent No. 7 nor was it ever with the petitioner. Ramu and the respondents No.4 to 6, as his successors, have been in continuous possession of the land in dispute since Samvat 2024 (1967 AD) till today. It was argued that when respondent No.7 got the right over the land in dispute by virtue of order dated 29.12.1992 and the said order has been set aside and revoked by the Khudkasht Commissioner by subsequent order dated 28.12.1994, the sale-deed allegedly made in favour of the petitioner by power of attorney holder of respondent No. 7 Nand Singh could not pass any title in his favour. Reference to the notice u/s. 91 has been wrongly made as the same pertain to Ramu S/o Govinda and that too about land of khasra No. 162 whereas Ramu in the present case was Hariyana Brahmin and was in possession of khasra No. 163. 6. It was submitted that when opportunity of hearing was provided to respondent No.7 Nand Singh, through whom the petitioner claims to have acquired the right in the said property, no prejudice was caused to her even if she was not heard as an order passed in the presence of respondent No. 7 was equally binding on the petitioner. 6. It was submitted that when opportunity of hearing was provided to respondent No.7 Nand Singh, through whom the petitioner claims to have acquired the right in the said property, no prejudice was caused to her even if she was not heard as an order passed in the presence of respondent No. 7 was equally binding on the petitioner. Shri Gyaneshwar Bardar further argued that in any case if the matter is now remanded to the Khudkasht Commissioner, scope of fresh consideration can be confined to examining the claim of the petitioner for allotment of alternative land. So far as the land in question is concerned, possession of which was regularised in favour of the contesting respondents, that cannot be cancelled and reopened. He therefore prayed that the writ petition be dismissed. 7. Shri B.N. Sandu, the learned Deputy Government Advocate also opposed the writ petition and argued that the Jaipur Development Authority act, 1982 having been enforced from 1st May, 1982, the land in question fall within the Jaipur region as defined therein. Though the possession of the contesting respondent was regularised vide order dated 27.4.89 but entry about this regularisation was not made in the revenue records, and owing to this reason, report of the land being unoccupied was submitted to the Khudkasht Commissioner. It was submitted that pursuant to allotment order, mutation was effected in the name of respondent No. 7, but actually possession of the land was not delivered to him. The respondent No. 7 however transferred the land to the petitioner on 1.6.1992 only after the allotment. The District Collector has rightly ordered for cancellation of the mutation No. 648 and entering and opening another mutation in favour of Ramu as per the order of the Khudkasht Commissioner. It was therefore prayed that the writ petition be dismissed. 8. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the material on record. 9. There are few facts which have not been disputed and are admitted on all hands and these are that the Khudkasht Commissioner on obtaining consent letter for making allotment about the proposed lands including the land in dispute to respondent No. 7 Nand Singh asked the Tehsildar Bassi on 15.5.1992 to make enquiry about the fact that such lands are unoccupied. Tehsildar, Bassi submitted his enquiry report on 23.5.1992. Tehsildar, Bassi submitted his enquiry report on 23.5.1992. On the basis of such report, the Khudkasht Commissioner vide his order dated 29.5.1992 allotted 86 Bighas and 16 biswas of land as Khudkasht to respondent No.7 Nand Singh. On that basis mutation was also entered in his favour and his name was recorded in the revenue records as khatedar. He through his power of attorney holder sold khasra No. 163 measuring 1 bighas and 6 biswas situated in revenue village Kanota for a sale consideration of Rs. 60,000/- to the petitioner. Subsequently, mutation of the said land was entered in favour of the petitioner who was also recorded as khatedar in the revenue records on 26.6.1992. Possession over the very same land was regularised in favour of Ramu in the proceedings of Advisory Committee held on 27.4.1989. It has not been brought on record from either of the parties whether any consequential allotment order was issued in favour of Ramu by Sub-Divisional Officer. Though notice of the proceedings on review petition filed by Ramu under Section 40-A of the Act of 1952 was served on respondent No.7 Nand Singh, ex-jagirdar, the petitioner was neither impleaded as party of the review petition, nor was she ever served with any notice in this regard. Consequently she was not provided an opportunity of hearing before passing the order dated 28.12.1994. 10. The question therefore arises whether the petitioner should be non-suited only because respondent No. 7, Nand Singh from whom she purchased the land in dispute was provided opportunity of hearing when the impugned order dated 18.12.1994 was passed by Khudkasht Commissioner in review proceedings and if that is done, what would be its consequences. Answer to that is simple. Petitioner is a bona fide purchaser and even if opportunity of hearing was provided to respondent No. 7, Nand Singh, from whom, she purchased the land in dispute, the impugned order has not caused any prejudice to Nand Singh as such because out of the total land of 86 bighas and 16 biswas allotted to him as khatedar, the original order has been fortified/ amended so as to cancel the allotment of land measuring 1 bighas and 6 biswas in khasra No. 163 which is the disputed land. Accepting this argument would virtually leave the petitioner remediless for no fault of her. Accepting this argument would virtually leave the petitioner remediless for no fault of her. It was boundened duty of respondent No. 7 to disclose to the Khudkasht Commissioner that he had already sold out the property in dispute to the petitioner. But he has not done so, why then the petitioner be made to suffer on that account? Should she not have been given an opportunity of presenting her case before the Khudkasht Commissioner? In my considered view, such an opportunity cannot be denied to the petitioner on the analogy that since she is claiming through respondent No. 7 Nand Singh, an opportunity provided to respondent No. 7 Nand Singh would be sufficient compliance of the principles of natural justice. It is although trite law that principles of natural justice cannot be put in a straight jacket formula but at the same time, it is also equally correct that their application will depend on the facts and circumstances of a given case. In the present I find that the mere opportunity provided to respondent No. 7 Nand Singh who has not been in any way prejudice by the impugned order, would not be sufficient to discharge the obligation of applying principles of audi alterm partem in so far as the petitioner is concerned. She being a bona fide purchaser, has been gravely prejudiced by the impugned order having been passed behind her back particularly when the mutation in her name has been opened and her name has been recorded as khatedar in revenue records. I have therefore, deliberately not dealt with any other arguments which have been raised by either side except this one on which I consider appropriate to set aside the impugned order and remand the matter to Khudkasht Commissioner to examine the issue afresh whether at all the original order passed on 29.5.1992 is required to be reviewed and if so whether the petitioner would have the right to secure allotment of an alternate piece of land. It goes without saying that Khudkasht Commissioner before passing any fresh order shall provide an opportunity of hearing both the parties. 11. It goes without saying that Khudkasht Commissioner before passing any fresh order shall provide an opportunity of hearing both the parties. 11. In view of what has been discussed above, the present writ petition is allowed and the order dated 28.12.1994 is set aside and the parties are directed to maintain status quo with regard to the land in dispute till any fresh order is passed by the Khudkasht Commissioner and are further directed to appear before the Khudkasht Commissioner on 3.9.2007 for fresh hearing of the matter. The Khudkasht Commissioner is directed to pass afresh order upon hearing the parties within six months thereafter.