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2009 DIGILAW 857 (RAJ)

State of Rajasthan v. Kana Ram

2009-03-24

DINESH MAHESHWARI

body2009
Hon'ble Maheshwari, J.—By the order dated 03.04.2001 as drawn in Reference Application No.16/1994, the Collector, Jodhpur proceeded to make a reference to the Board of Revenue for setting aside mutation No. 314 as effected in relation to the land comprised in khasra Nos.910/747 and 910/1/747 at Khema-ka-kua, Tehsil Jodhpur. 2. On the basis of a complaint made to him, the learned Collector noticed that the father of the non-applicants (respondents Nos. 1 to 3 herein) had been a trespasser over the said land comprised in khasra Nos.910/747 and 910/1/747 that was a Government land falling within the municipal limits; and that the Tehsildar, Jodhpur adopted proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956 ('the Act of 1956') and directed dispossession while imposing fine but then, the said proceedings under Section 91 of the Act of 1956 were dropped upon taking of an appeal to the Additional Collector, Jodhpur. The learned Collector observed that merely for dropping of the proceedings under Section 91 of the Act of 1956, the non-applicants did not acquire khatedri rights in the land in question but during a revenue campaign, the Assistant Collector proceeded to issue a sanction in favour of the non-applicants on the basis of the order passed in the said appeal arising out of the proceedings under Section 91 of the Act of 1956 that led to the disputed mutation No.314. The learned Collector opined that such a communication from the Assistant Collector was not authorised by law; and the disputed mutation No.314 having not been effected on the basis of a competent order, was liable to be set aside. 3. The reference so made was taken up for consideration by the Board of Revenue in Reference Case No. 582/2001. It was argued before the Board of Revenue in support of the reference that a similar nature Reference Case No. 266/1986: State vs. Ganga Ram had already been allowed wherein mutation No. 315 dated 03.07.1979 was ordered to be set aside. It was, however, contended on behalf of the nonapplicants that the land in question in the present case was earlier comprised in khasra No. 747/20 and in its relation, the Sub Divisional Officer, Jodhpur, while allowing an application moved under Section 15 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955'), declared khatedari rights in favour of the father of the non-applicants by the order dated 28.11.1956. The non-applicants contended that the said one was an order passed by the competent Court under Section 15 (5) of the Act of 1955 and had attained finality. The non-applicants further contended that themselves and their ancestors had been in possession of the land in question even before Svt. Year 1997 and referred to the documentary evidence in that regard. It was asserted that the mutation in question had not been sanctioned merely on the basis of dropping of the proceedings under Section 91 of the Act of 1956 but was essentially based on the order passed under Section 15 of the Act of 1955. It was also pointed out that after the mutation in question, the land had been permitted to be divided; and further mutation No. 526 dated 25.08.1986 had been effected in that regard. While submitting that the reference was a highly belated one and was made only on the basis of a complaint that was lodged for personal enmity, the non-applicants also pointed out that the Board of Revenue had dismissed the similar nature reference cases on 07.09.1987. 4. The learned Member of the Board found that the contentions as urged before him by the counsel for the non-applicants were definitely urged before the Collector, Jodhpur but while making the reference, the learned Collector did not dilate on such points nor even examined the evidence. The learned Member also found that the order as passed under Section 15 of the Act of 1955 granting khatedari rights to the non-applicants and their father was neither taken into consideration by the Collector in his reference order nor was it shown if the said order was ever challenged. The learned Member also referred to the fact that upon the land in question falling within the municipal limits, the Urban Improvement Trust, Jodhpur did move an application to the Collector concerned for making a reference but then, such an application came to be rejected as withdrawn. 5. The learned Member of the Board of Revenue noticed the facts that the mutation in question was effected as back as on 28.12.1978 and ever since the year 1979, the land stood recorded in the names of the non-applicants; and also found correct the fact that further mutation No. 526 was effected after the division was agreed to by the Tehsildar in his order dated 25.08.1986. The learned Member referred to the decision of this Court in the case of Anandi Lal vs. State of Rajasthan & Ors. : 1996 (1) RLW 396 to find that reference could not be permitted after an inordinate delay; and observed that in any case, for the order under Section 15 of the Act of 1955 having become final in favour of the non-applicants, the reference was liable to be rejected. 6. The learned Member also considered the contentions as urged on behalf of the petitioners about other Reference Case No. 266/1986 having been allowed in relation to mutation No. 315 but observed that in the said case, the land in question was found to have been given to the Urban Improvement Trust for abadi extension and the disputed mutation was set aside for the Urban Improvement Trust having not been heard. The learned Member pointed out that the position in the present case was entirely different and rather, the reference proceedings as adopted by the Urban Improvement Trust in relation to the land in question stood terminated way back in the year 1995. 7. The petitioner State of Rajasthan through the Tehsildar, Jodhpur has preferred this writ petition seeking to challenge the order so passed by the Board of Revenue rejecting the reference made by the Collector. While examining this writ petition and looking to the observations made in the order passed by the Board of Revenue, it was considered appropriate to hear the Urban Improvement Trust, Jodhpur in this matter and the petitioner was, therefore, directed to implead the said Urban Improvement Trust as party respondent by the order dated 12.09.2008. Thereafter, for the said Urban Improvement Trust having been substituted by the Jodhpur Development Authority, Jodhpur, such directions were modified on 12.12.2008 and the said successor of Urban Improvement Trust, Jodhpur, i.e., the Jodhpur Develop-ment Authority, Jodhpur was ordered to be impleaded as party-respondent. 8. Upon being served with a notice in this matter, submissions have been made on behalf of the Jodhpur Development Authority, Jodhpur specifically to the effect that the land in dispute was never set apart in favour of the Urban Improvement Trust under the Land Revenue Act and had not been acquired for the Urban Improvement Trust; and that the application for reference as made by the Urban Improvement Trust was withdrawn. It has, therefore, been submitted that the respondent Jodhpur Development Authority, Jodhpur has nothing to do with the matter. 9. The categoric stand taken on behalf of the Jodhpur Development Authority, Jodhpur makes it clear that the petitioners were not right in suggesting similarity of the present case with the other one wherein the reference was allowed particularly after finding the land in question having been set apart and handed over to the Urban Improvement Trust. For the fundamental difference of facts, the decision in Reference Case No.266/1986 has no application to the present case whatsoever. 10. The basic facts of the present case make it absolutely clear that the learned Collector proceeded merely on the assumption that the questioned mutation No.314 was sanctioned in favour of the non-applicants only on the basis of dropping of the proceedings under Section 91 of the Act of 1956. Such observations have been found not in accord with the record; and it has been noticed that the directions were issued by the Assistant Collector on the basis of the earlier orders, patta, and other pieces of evidence that were placed before him and were referred in his communication dated 28.12.1978. There does not appear any reason to consider any interference in the writ jurisdiction of this Court in such findings on essential facts by the Board of Revenue. 11. Apart from the aforesaid, it is but apparent that the disputed mutation was effected as back as in the year 1978. The proceedings in reference were taken up by the Collector concerned only in the year 1994; and significantly, in the year 1995, the reference application as moved on behalf of the Urban Improvement Trust in relation to the same mutation was withdrawn. Thereafter, the reference in question was made in this case only in the year 2001. The reference proceedings cannot be adopted as a matter of course and as a matter of right at any time as chosen by the authorities concerned. 12. The reference having been made after an inordinate delay with nothing on substance; and no case of any fundamental illegality or manifest error having been made out, the Board of Revenue cannot be faulted in having rejected the same. 13. There appears no ground in this case to consider any interference in the extraordinary writ jurisdiction. 12. The reference having been made after an inordinate delay with nothing on substance; and no case of any fundamental illegality or manifest error having been made out, the Board of Revenue cannot be faulted in having rejected the same. 13. There appears no ground in this case to consider any interference in the extraordinary writ jurisdiction. In view of the aforesaid, the writ petition does not merit admission; and stands rejected.