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Rajasthan High Court · body

2007 DIGILAW 1820 (RAJ)

Narain v. Maufi Mandir Shri Chaturbhujji

2007-09-21

MOHAMMAD RAFIQ

body2007
Honble RAFIQ, J.—This is a petition in which the prayer has been made for issuance of a writ of certiorari thereby quashing the judgment dated 30.12.1982 passed by Additional Collector, order of mutation dated 19.4.1986, the judgment dated 29.11.1988 passed by Board of Revenue, Ajmer and the judgment dated 17.02.1993 passed by Additional Divisional Commissioner; Kota rejecting his appeal against mutation and also the judgment dated 11.02.1998 passed by Board of Revenue upholding the aforesaid judgment of Additional Divisional Commissioner. A further prayer has been made that the name of the petitioner be restored in the revenue record as a khatedar of the land in dispute and respondents be restrained from interfering with his peaceful possession. The dispute pertains to agricultural land bearing Khasra No. 981 measuring 3 bighas and 1 biswas, Khasra No. 982 measuring 18 biswas, Khasra Nos. 983, 950 and 1331/1 measuring 3 big has and 6 biswas and Khasra No. 984/4 measuring 2 big has and 12 biswas situated at Village Chan in Tehsil Khandar of District Sawaimadhopur. The petitioner claims to be in possession of the said land and has placed on record copies of Khasra Girdawari for Samvat 2009 to 2012. He also placed on record Jamabandi for Samvat 2017 to 2020 indicating his name. Further, the petitioner has also placed on record the Jamabandi for Samvat 2024 to 2026 as also for Samvat 2028 to 2031 and thereafter for Samvat 2032 to 2035 as also for Samvat 2036 to 2039 and Samvat 2041 to 2044, in all of which his name is entered as Krishak. 2. One Ghasilal, Pujari of the temple of Shri Chaturbhujji raised dispute about the aforesaid land, which was compromised between the parties with the intervention of the villagers as far as back on 19.1.1958. Ever since the land in dispute is in possession of the petitioner and his name has been recorded as Khatedar. It was argued that the petitioner acquired the Khatedari rights over the land by virtue of Section 15 of Rajasthan Tenancy Act, 1955 when this Act was enforced on 15.10.1955. It was 30 years thereafter the Tehsildar, Khandar filed an application before the Additional Collector on 17.6.1981 for making reference under Section 82 of Land Revenue Act. The Additional Collector by its order dated 30.12.1982 made a reference to the Board of Revenue for cancellation of mutation. It was 30 years thereafter the Tehsildar, Khandar filed an application before the Additional Collector on 17.6.1981 for making reference under Section 82 of Land Revenue Act. The Additional Collector by its order dated 30.12.1982 made a reference to the Board of Revenue for cancellation of mutation. The Board of Revenue vide its judgment dated 22.11.1985 allowed the reference and directed for recording the name of Maufi Mandir Chaturbhujji by cancelling the mutation entered in the name of the petitioner. Consequently, the mutation dated 19.4.1986 was recorded in the name of respondent No.1. One Brijmohan filed a revenue suit against the petitioner in relation to the same land in 1984. The suit was dismissed in default by the learned S.D.O., Sawai Madhopur vide order dated 24.5.1986. The petitioner filed appeal against the mutation entry dated 19.4.86 before the Collector, Sawai Madhopur, who rejected the same on 19.11.1988. He thereafter filed further appeal before the Additional Divisional Commissioner, Kota, who also rejected the same. The revision petition filed there against before the Board of Revenue was also rejected on 11.2.1998. It is in this background that the present writ petition has been filed by the petitioner. 3. I have heard Shri Nitin Jain, the learned counsel for the ;Jetitioner and Shri B.N. Sandu, the learned Additional Government Advocate for the State. 4. Shri Nitin Jain, learned counsel" for the petitioner argued that the judgment passed by the Collector, Additional Divisional Commissioner as well as the Revenue Board are ex-facie illegal and contrary to law and, therefore, not sustainable. It was argued that above referred two Jamabandies and Khasra Girdawaries would show that the petitioner had all along been in cultivatory possession of the land in dispute since Samvat Year 2009 and was in possession of the same when the Act of 1955 was enforced on 15.10.1955 and, therefore, by virtue of Section 15, he acquired the Khatedari rights. The present nature of land has not been excluded for the purpose of conferment of Khatedari rights even in section 16 of the Act. He then argued that the reference was made by Additional Collector to the Revenue Board more than 3 decades after the name of the petitioner was initially recorded in Khasra Girdawari. The present nature of land has not been excluded for the purpose of conferment of Khatedari rights even in section 16 of the Act. He then argued that the reference was made by Additional Collector to the Revenue Board more than 3 decades after the name of the petitioner was initially recorded in Khasra Girdawari. Even if no time limit has been prescribed under section 82 of the Limitation Act, still the authorities for exercise of this power, are in law required to exercise that power within the reasonable time period. Shri Nitin Jain relied on the Division Bench judgment of this Court in Anandilal vs. State of Rajasthan - RLR 1995(1) 555, and State of Rajasthan vs. Teja, 2005(2) WLC (Raj.) 53, Briflal vs. Board of Revenue, AIR 1994 SC 1128 , and Situ Sahu & Ors. vs. State of Jharkhand & Ors., 2004(8) SCC 340 . It was argued that the order making reference having been passed after enormous delay of more than three decades was incompetent in law and accordingly the order passed by the Board of Revenue was liable to be set aside. Learned counsel for the petitioner further argued that the very foundation of the order dated 30.12,1982 making reference was wrong because the Additional Collector merely observed that the land was entered in the name of the petitioner from Samvat Year 2036 to 2039 whereas he ignored the Khasra Girdawari/Jamabandi of Samvat 2011 onwards uptil the date of passing of said order which was very much on record. He also relied on the compromise which was arrived at between the parties in the year 1958 and argued that neither any fraud was played by the petitioner on the authorities, nor did he make any misrepresentation and, therefore, inordinate delay in making of the reference could not be ignored. Shri Nitin Jain invned attention of the court to the order passed by Board of Revenue accepting the reference dated 22.11.1985 and argued that none of the documents, which were on record before the Board and have been produced before this Court, were considered by the Board which has allowed the reference by unilaterally and cursorily looking at the things. He, thereforef prayed that the order of reference dated 22.11.1985, and the consequential orders be quashed and set aside and the writ petition be allowed in terms of prayers made therein. 5. He, thereforef prayed that the order of reference dated 22.11.1985, and the consequential orders be quashed and set aside and the writ petition be allowed in terms of prayers made therein. 5. Though the respondents have chosen not to contest the matter but Shri B.N. Sandu, learned Additional Government Advocate has appeared for the State and argued that the land in question was a temple land and Khatedari rights could not be acquired by the petitioner over such land. It was argued that the learned Additional Collector was perfectly justified in making reference and the Board of Revenue upon consideration of the entire record has rightly accepted the reference and directed for deleting the name of the petitioner as khatedar from revenue records and recording the same in the name of respondent No.1. He argued that subseqlient orders passed thereafter by the Collector, Additional Divisional Commissioner and the Board of Revenue in which the petitioner unsuccessfully challenged the cancellation of mutation in his favour and opening the mutation in favour of respondent No.1 were all consequential to the judgment of the Board of Revenue dated 22.11.1985 and, therefore, in the face of the first order of Board, none of these orders could be adjudged illegal. He, therefore, prayed that writ petition be dismissed. 6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record. 7. Although the petitioner has challenged the number of judgments/ orders passed by various authorities but the basic order is the order passed by the Board of Revenue dated 22.11.1985 by which it has accepted the reference made to it by the Additional Collector by order dated 30.12.1982. Whether or not the reference was made with delay and what would be the starting point for counting the period of delay to decide as to how much was the delay, would depend on examination of the entire material on record. The petitioner has asserted that he has been continuing in possession of this land even prior to enforcement of the Act of 1955 and has produced the documents on record in support of his claim in the shape of Khasra Girdawari from Samvat 2009 to 2012, 2017-2020, 2024-2026, 2028-2031, 2032-2035, 2036-2039 and 2041-2044 wherein his name has been recorded as Krishak. The perusal of the judgment passed by the Board of Revenue in the reference proceedings indicate that it has proceeded on the assumption that the name of the petitioner was entered only in Jamabandi of Samvat Year 2036 to 2039. In other words, none of the other Jamabandies for various years starting from 2009 onwards have been noticed by Board of Revenue. What would be the effect of the possession of the petitioner over the land in dispute when the Act of 1955 was came into force has also not at all been analysed. 1n deciding this question in the context of Section 15 of the Act of 1955 and whether the reference was enormously delayed, the relevant material thus escaped the attention of the Board though it is asserted that the same was on record. The Board has merely held that the land in dispute was earlier recorded in the name of the respondent No.1 but for the first time from Samvat Year 2036 to 2039 it was er.tered in the name of the petitioner, whereas the facts narrated above clearly show that this finding may not be as well founded. 8. Although it is true that Division Bench of this Court in Anandilal, supra while examining the same issue with regard to delayed reference having been made in relation to Maufi land recorded in the name of temple held that even if no time period has been prescribed for making of reference under section 82 and 232 of the Land Revenue Act, 1956, yet making of reference with unreasonable delay would amount to arbitrary exercise of power. A somewhat similar view was expressed by the Division Bench of this Court in the case of Teja, supra, where it was held that if a person has acquired tenancy/khatedari rights and continued to remain in possession of the land for number of years, his rights cannot be cancelled after unreasonable delay in a reference proceedings. Law to the same effect has been laid in other judgments relied on by the learned counsel for the petitioner including the one delivered by the Supreme Court in Situ Sahu, supra. But the application of law in a given case would always depend on the facts which are accepted .by the parties- or are assumed to have been established by the Court. But the application of law in a given case would always depend on the facts which are accepted .by the parties- or are assumed to have been established by the Court. In the present case, such an exercise has to be first undertaken by Board of Revenue. The record reveals that the Board of 20 Revenue has completely ignored large number of documents, which the petitioner has now produced for consideration of this court. In fact, while reading the judgment of the Board of Revenue dated 22.11.1985, to say the lease, indicates the per-functory manner in which the issues have been considered and decided. It was expected of the Board to have at least briefly considered the material on record and not to have straightway directed cancellation of Khatedari rights of the petitioner without giving a serious thought to the matter, as after all, it severally affects the rights of the parties. Such consideration must be reflected from the order passed by the Board, which should clearly indicate that it has applied its mind to the issues involved. The Board, as it appears from its order, has answered the reference against the petitioner in less than two pages, which it would have been appropriate, if was decided by comprehensive order. 9. This court on the basis of all the material which the petitioner seeks to rely upon cannot itself adjudicate the correctness or otherwise of the view taken by the Board and, therefore, I deem it appropriate to remand the matter again to the Board for fresh adjudication of the reference. Consequently, the judgment of Board of Revenue dated 22.11.1985, judgment dated 30.12.1982 passed by Additional Collector for mutation dated 19.4.1986, the judgment dated 29.11.1988 passed by Board of Revenue, Ajmer and the judgment dated 17.2.1993 passed by Additional Divisional Commissioner, Kota rejecting his appeal against mutation and also the judgment dated 11.2.1998 are set aside and the matter is remanded back to the Board of Revenue for revival of the reference case No. 0543/83/Reference/LR/Sawaimadhopur and deciding the same afresh in accordance with law. 10. The writ petition is accordingly allowed. There shall be however no order as to costs.