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2009 DIGILAW 418 (RAJ)

Indraj v. State of Rajasthan

2009-02-09

G.K.TIWARI

body2009
Judgment TIWARI, M.—This is revision under Section 84 of the Rajasthan Land Revenue Act 1956 (in short `the Act of 1956') against the judgment dated 6.10.1997 of Revenue Appellate Authority Bikaner. 2. Briefly stated, the facts leading to the revision are that Sub-Divisional Officer Nohar by his judgment dated 8.9.1977 ordered for making correction in record of right under Section 136 of the Act of 1956 for carrying out inspection of the revenue record and the site of the disputed land said to be `Johad Paytan' (land for water reservoir). The petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code (C.P.C.) on 5.12.1985 for setting aside the ex-parte order dated 8.9.1977. The Sub-Divisional Officer by his judgment dated 24.12.1991 rejected this application against which an appeal was preferred before Revenue Appellate Authority Sriganganagar from where it was transferred to Revenue Appellate Authority Hanumangarh and thereafter to Revenue Appellate Authority Bikaner due to change in jurisdiction. The Revenue Appellate Authority Bikaner by his impugned judgment dated 6.10.1997 rejected the appeal and upheld the order of Sub-Divisional Officer dated 24.12.1991. 3. I have heard the learned counsels for both the parties. 4. The learned counsel for the petitioner has argued that the disputed land was recorded in gair-khatedari right of the petitioner but Sub-Divisional Officer recorded the disputed land as `Johad Paytan' deleting the name of the petitioner as a gair-khatedar without providing opportunity of hearing to the petitioner by his order dated 8.9.1977. When the petitioner came to knowledge of this order of Sub-Divisional officer he filed an application under Order 9 Rule 13 of the CPC on 5.12.1985 for setting aside the order of 8.9.1977 and decide the case afresh after giving opportunity of hearing to the petitioner but Sub-Divisional Officer did not accept his application and the Revenue Appellate Authority in his appeal also did not allow the appeal and upheld the order dated 8.9.1977 illegally. It was contended that the petitioner is gair-khatedar of the disputed land and his khatedari right cannot be extinguished without giving him an opportunity of hearing. The order dated 8.9.1977 was passed ex-parte on the ground that the petitioner did not appear before the court of Sub-Divisional Officer despite service on him by affixing a copy of notice on his residence. The order dated 8.9.1977 was passed ex-parte on the ground that the petitioner did not appear before the court of Sub-Divisional Officer despite service on him by affixing a copy of notice on his residence. It is argued that the service was not made on him properly according to provisions of Order 5 Rules 12 to 20 of the C.P.C. which have been violated. The petitioner never evaded service of notice on him even then substituted service is made without order of the concerned court. The provisions of Rules 17 to 20 of Order 5 of the CPC have not been followed. Thus, the order dated 8.9.1977 was passed in contravention of principle of natural justice without giving opportunity of hearing. The learned counsel cited 1998 RBJ 499, 2007 RBJ 142, 1997 RLW (3) (Raj.) 1719, 2003(1) RRT 19, 1976 RLW 1 in support of his contention that compliance of the provisions contained under Order 5 Rule 17 to 20 of the C.P.C. are mandatory and any order passed in their contravention should be set aside providing opportunity of hearing to the concerned party. In view of these provisions the application filed under Order 9 Rule 13 of the C.P.C. should have been allowed by the Sub-Divisional Officer but he committed illegality in not allowing this application; Revenue Appellate Authority also committed illegality in his judgment dated 6.10.1997 by rejecting the appeal and upholding the order of Sub-Divisional Officer. Thus orders of both the lower courts should be set aside and the petitioner should be allowed an opportunity of hearing before passing any order relating to correction of entry under section 136 of the Act of 1956. 5. Opposing the contentions of the learned counsel for the petitioner, the learned Dy. Govt. Advocate argued that the disputed land is a land of `Johad Paytan' which is reserved as a water body for common public purpose; such land can neither be allotted nor any khatedari right can accrue in such land under Section 16 of the Rajasthan Tenancy Act 1955 (in short `the Act of 1955'). The disputed land was never allotted to the petitioner but he was shown as gair-khatedar tenant illegally by some wrong entry of the Settlement Department. The disputed land was never allotted to the petitioner but he was shown as gair-khatedar tenant illegally by some wrong entry of the Settlement Department. The Sub-Divisional Officer as a Land Records Officer is competent under Section 136 of the Act of 1956 to carry out inspection of the record and correct such wrong entries in the record of right, which he did by his order dated 8.9.1977. The petitioner after lapse of 8 years filed the application under Order 9 Rule 13 of the C.P.C. before Sub-Divisional Officer for setting aside ex-parte order. The Sub-Divisional Officer had given the petitioner opportunity of hearing by issuing notice but the report of process server clearly shows that the petitioner declined to accept the notice; as such in presence of two witnesses the notice was affixed on his residence. So this is proper service on the petitioner as provided under the provisions of Land Revenue Act and Revenue Courts Manual. The provisions of C.P.C. do not apply in matters relating to Land Revenue Act where procedure for service is prescribed separately. It was also contended that the application under Order 9 Rule 13 of the C.P.C. was heavily time barred without any application and affidavit for condonation of delay under the Limitation Act. As such this application was not maintainable at all. The petitioner is free to get his right established by filing a regular revenue suit in the competent revenue court. His right cannot be decided under Section 136 of the Act of 1956 which is meant only for correction of error in record of right. As such the orders of both the lower courts should not be interfered with. 6. I have given thoughtful consideration to the rival contentions, perused the impugned orders of both the lower courts and carefully gone through the record. 7. Perusal of the record shows that Sub-Divisional Officer by his order dated 8.9.1977 made correction of an error which he noticed in revenue record during course of inspection under Section 136 of the Act of 1956. The Sub-Divisional Officer has observed that the land under consideration is land of public purpose recorded as `Johad Paytan' which is meant as water reservoir. This disputed land was neither ever allotted nor any khatedari right is accruable in such land as per section 16 of the Act of 1955. The Sub-Divisional Officer has observed that the land under consideration is land of public purpose recorded as `Johad Paytan' which is meant as water reservoir. This disputed land was neither ever allotted nor any khatedari right is accruable in such land as per section 16 of the Act of 1955. The Settlement Department, he observed, erroneously made a wrong entry in the record of right which he corrected under Section 136 of the Act of 1956. Perusal of the file of Sub-Divisional Officer shows that a notice was issued to the petitioner on 19.7.1977. The report of process server shows that the petitioner declined to accept the notice; as such he affixed a copy of the notice at the residence of the petitioner in presence of two witnesses whose names are also given at the back of the notice. The Sub-Divisional Officer accepted this as a proper service and proceeded ex-parte when the petitioner did not turn up before him for the hearing. The learned counsel for the petitioner has serious objection about the method of this kind of service of the notice which, he contends is contrary to the provisions contained under Order 5 Rule 17 to 20 of the C.P.C. The learned counsel has placed exclusive reliance on provisions of Order 5 Rule 17 to 20 of the C.P.C.; but it is noteworthy to observed here that the provisions of C.P.C. do not apply in matter coming under provisions of Rajasthan Land Revenue Act, 1956. The Act of 1956 is both substantive and procedural law. It has been held, interalia by the Larger Bench of this Court in `Smt. Sarbati Devi vs. M.M. Shri Ramkunwariji Maharaj' reported in 2008 RRD 850, as under:- "(a) Provisions of the C.PC. are not applicable to the non-judicial matters dealt with in the Rajasthan Land Revenue Act, 1956 and Rules made thereunder. "(b) The provisions of the C.P.C. with its amendments would not be applicable to the appeals, revisions, references, reviews and proceedings under the Rajasthan Land Revenue Act, 1956 and rules thereunder where specific provisions have been provided under the Rajasthan Land Revenue Act, 1956. "(b) The provisions of the C.P.C. with its amendments would not be applicable to the appeals, revisions, references, reviews and proceedings under the Rajasthan Land Revenue Act, 1956 and rules thereunder where specific provisions have been provided under the Rajasthan Land Revenue Act, 1956. "(c) The provisions of the C.P.C. with its amendments would be applicable to the appeals, revisions, references reviews and proceedings under the Rajasthan Land Revenue Act and Rules made thereunder in regard to such matters where there is no special enactment in the Rajasthan Land Revenue Act, 1956." Since procedure for matters relating to service of summons is already provided under section 59 of the Act of 1956, the provisions of the C.P.C. in this respect will not be applicable to the revision filed under the Act of 1956. The provisions of the C.P.C. apply only where the procedure is not prescribed under the Act of 1956. The provisions of the C.P.C. apply only where the procedure is not prescribed under the Act of 1956. In the case under consideration under Section 136 of the Act of 1956, section 59 of the Act of 1956 expressly provides for procedure for service of summons- which is reproduced as below:- Section 59 "serving of summons-Every summons shall be served- (i) "by tendering or delivering a copy of it- (a) to the persons summoned, or (b) to his recognised agent or legal practioner, or (c) to any adult male member of his family usually residing with him; or (ii) If any of the aforesaid persons cannot be found or refuses to accept the service of summons, by affixing a copy thereof to some conspicuous part of his usual or last know place of residence; or (iii) "if such person resides in another district, by sending the summons by post to the Collector of such district for service in accordance with clause (i) or clause (ii); or (iv) "if the revenue court or officer so directs, for reasons to be recorded in writing, by sending the summons to the person named therein either in addition to or in substitution of, any other mode of service, by post under a registered cover." Thus, it is clear that in respect of the matters pertaining to the Act of 1956 only above provisions of Section 59 apply and not the provisions of the C.P.C. as contained under Order 5 Rule 17 to 20 of the C.P.C. The Act of 1956 is a special law and it has overriding effect on the general law in respect of the substantive and procedural law provided under the Act of 1956. I am fortified in holding this view by the judgment of the Larger Bench of this Court as reported in 2008 RRD 850. 8. In my humble opinion the service carried out on petitioner in respect of the matter under Section 136 of the Act of 1956 - which is of summary nature- is complete according to section 59(iii) of the Act of 1956. So far as the citations quoted by the learned counsel for the petitioner are concerned, 1997 (3) RLW (Raj.) 1719 and 1976 RLW 1 are in respect of the civil cases pending in civil courts where only provisions of the C.P.C. apply. So far as the citations quoted by the learned counsel for the petitioner are concerned, 1997 (3) RLW (Raj.) 1719 and 1976 RLW 1 are in respect of the civil cases pending in civil courts where only provisions of the C.P.C. apply. Similarly 1998 RBJ 499, 2007 (14) RBJ 142 and 2003 (1) RRT 19 are in respect of the matters covered by the Rajasthan Tenancy Act of 1955 (the Act of 1955) where provisions of the C.P.C. do apply subject to section 208 of the Act of 1955 read with IV Schedule (List 1) as appended to the Act of 1955. Apparently, the above mentioned citations do not apply in respect of the matters covered under Section 136 of the Act of 1956- which is to be decided summarily by the Land Records Officer consequent upon his inspection of the record. It would not be out of place to mention here that provisions of Order 9 Rule 13 of the C.P.C. are applicable for setting aside ex-parte decree. But under Section 136 of the Act of 1956 no decree is passed. There was no regular suit before the Land Records Officer who acted only as an inspecting authority of land records. The petitioner is free to get his right declared under the Act of 1955 in the competent revenue court. 9. It is worth-observing that rectification of the error noticed by Land Records Officer was made by his order dated 8.9.1977 against which application under Order 9 Rule 13 of the C.P.C. was put up after lapse of almost 8 years on 5.12.1985. No justification for this inordinate delay was given. Both the lower courts have not given attention to this inordinate delay in filing the application; such a conduct of the petitioner reflecting extreme latches cannot be ignored and overlooked. 10. In view of the aforesaid discussion it is apparent that Revenue Appellate Authority Bikaner has neither committed any jurisdictional error nor any illegality nor material irregularity in passing the impugned judgment dated 6.10.1997. As such the revision fails. 11. Resultantly, the revision is dismissed. Pronounced.