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2012 DIGILAW 177 (RAJ)

Achal Puri v. State of Rajasthan

2012-01-17

SANGEET LODHA

body2012
Hon'ble LODHA, J.—This writ petition is directed against order dated 28.12.10 of the Board of Revenue, Rajasthan, Ajmer, whereby a revision petition preferred by the respondent No. 5 herein, Sarpanch, Gram Panchayat, Ahore u/Sec. 84 of Rajasthan Land Revenue Act, 1956 (in short "the Act") against the judgment dated 17.2.10 of Additional Divisional Commissioner, Jodhpur has been allowed. 2. The relevant facts in nutshell are that Kapur Puri, Mangal Puri sons of Shivpuri, Mool Puri s/o Pokar Puri and Smt. Jethi Bai widow of Pokar Puri transferred their 3/4th share in 8 bighas and 3 biswas agriculture land comprising Khasra No. 313 in village and Tehsil, Ahore in favour of Sumermal and Tejraj sons of Shri Gulab Chand by way of registered sale deed dated 2.6.69, who later, gifted the land to then Municipality, Ahore through a registered gift deed dated 11.8.77 and thus, Municipality, Ahore became khatedar tenant of the disputed land. However, subsequently during the settlement, the disputed land got entered back to the names of original Khatedars, the petitioners herein, notwithstanding the fact that they had already sold the land through a registered sale deed in favour of Sumermal and Tejraj. 3. The Municipality, Ahore was later converted into Gram Panchayat, Ahore and therefore, Sarpanch, Gram Panchayat, Ahore filed an application u/S. 136 of Act before the Sub Divisional Officer (SDO), Ahore against the State Government through Tehsildar, Ahore and petitioners herein, for recording the disputed land in the name of Gram Panchayat, Ahore as khatedar tenant. The application was rejected by the SDO by order dated 21.2.06 holding that the entry of the khatedar tenant recorded in the revenue cannot be rectified by invoking power u/S. 136 inasmuch as, the same cannot be considered to be a clerical error. An appeal preferred by the respondent No. 5 herein against the aforesaid order dated 21.2.06 before the Additional Divisional Commissioner, Jodhpur u/S. 75 of the Act also failed for the parity of reasons. 4. Aggrieved by the order dated 17.2.10 of the Additional Divisional Commissioner, Jodhpur the Sarpanch, Gram Panchayat, respondent No. 5 herein. preferred a revision petition before the Board of Revenue, Ajmer u/S. 84 of the Act. 4. Aggrieved by the order dated 17.2.10 of the Additional Divisional Commissioner, Jodhpur the Sarpanch, Gram Panchayat, respondent No. 5 herein. preferred a revision petition before the Board of Revenue, Ajmer u/S. 84 of the Act. The Board opined that technically the matter is not covered under Section 136 of the Act it is not a clerical mistake or a mistake where both the parties admitted the mistake to have taken place, however, holding it to be a glaring and blatant illegality committed by Settlement Department, exercising the power u/Sec. 9 of the Act with regard to superintendence and control over the subordinate Revenue Courts, by the order impugned, the Board of Revenue has directed for deletion of the names of the petitioners herein from the revenue record and to get the disputed land recorded back in the name of Gram Panchayat, Ahore. Hence, this petition. 5. Learned counsel for the petitioners contended that the Board of Revenue has exceeded its jurisdiction by invoking the powers u/S. 9 of the Act while deciding a revision petition. Learned counsel submitted that once it is accepted by the Board of Revenue that the application u/S. 136 of the Act was not maintainable, no relief could have been granted to the respondent Gram Panchayat on the said application. Learned counsel contended that u/S. 136, the SDO as Land Record Officer has limited jurisdiction to correct any clerical error which parties interested admit to have been made in the record of rights or which a Revenue Officer may notice during the course of its inspection in any register and therefore, no correction in the entries could be permitted by taking recourse to proceedings u/S.136 of the Act which is summary in nature. 6. It is next contended by the learned counsel that the rights are claimed by the Gram Panchayat, Ahore on the basis of gift deed dated 11.8.77 alleged to have been executed by Shri Sumermal and Tejraj in favour of the municipality, however, from perusal of gift deed, it is manifestly clear that the gift was not accepted by then Municipal Board and the possession was also not handed over. It is submitted that Kapur Puri, Mangal Puri, Mool Puri and Smt. Jethi Bai had transferred their 3/4" share of the land out of joint khatedari land in favour of Sumermal and Tejraj who later gifted the disputed land in favour of Municipal Board, Ahore, however, no specific part of the joint khatedari land was transferred by the recorded khatedar tenants in favour of Sumermal and Tejraj and therefore, they were not entitled to take possession of the land they had purchased and therefore, no gift deed as alleged could have been executed by them in favour of the Municipal Board. In this regard, the reliance has been placed by the learned counsel on decisions of the Hon'ble Supreme Court in the matters of "Mani Kayala Rao vs. Nara Simha Swami, AIR 1966 SC, 470, "Gajara Vishnu Gosavi vs. Prakash Nanasaheb Kamble & Ors. (2009) 10 SCC 654 and "Peethani Suryanarayana vs. Repaka Venkata Ramana Kishore" (2009) 11 SCC, 308. Accordingly, it is submitted that no right can be claimed by the respondent-Gram Panchayat on the basis of alleged gift deed. 7. I have considered the submissions of the learned counsel for the petitioners and perused the material on record. 8. In the first instance, it will be appropriate to consider the scope of Section 136 of the Act, which provides for correction of errors in the record of rights or register. The text of Section 136 may be beneficially quoted:- "136. Correction of errors-The Land Records Officer may, at any time, correct of cause to be corrected in the prescribed manner any clerical errors and any errors which the parties interested admit to have been made in the record of rights or register, or which a Revenue Officer may notice during the course of his inspection in any register: Provided that when any error is noticed by a Revenue Officer in any record of right during the course of his inspection, no error shall be corrected unless a notice to show cause has been given to the parties." 9. A bare perusal of Section 136 makes it abundantly clear that it deals with correction of three kinds of the error i.e. (1) clerical errors (ii) any error which the parties interested admitted to have been made and (iii) any error noticed by the Revenue Officer in any record of rights during the course of his inspection. A bare perusal of Section 136 makes it abundantly clear that it deals with correction of three kinds of the error i.e. (1) clerical errors (ii) any error which the parties interested admitted to have been made and (iii) any error noticed by the Revenue Officer in any record of rights during the course of his inspection. It is to be noticed that for the correction of the clerical error, no opportunity of hearing to the parties is envisaged. Similarly, no opportunity of hearing is required to be given when the parties interested admit the error to have been made which is sought to be corrected. But, when any error noticed by the Revenue Officer in any record or rights during the course of inspection, the same cannot be corrected unless a notice has been given to the parties. Obviously, the error of the category (iii) referred supra, refers to the errors which are neither clerical nor the error which are admitted by the parties to have been made. Needless to say that such error may also be brought to the notice of the parties affected by making appropriate application before the Land Record Officer concerned and in that case, if on the inspection of the record of rights or register, it is confirmed that such error has crept in then, the Land Record Officer may correct such error after giving show cause notice to the parties concerned. There is no reason to restrict the provisions regarding correction of error falling in the category (iii) only when it comes to the notice of the Land Record Officer on his own and not where the same is brought to the notice of the Land Record Officer by the parties affected. But, in any case, by invoking the powers u/S. 136 of the Act, only the errors crept in could be rectified and adjudication of any dispute between the parties relating to the entries made in the record of rights does not fall within the scope of the provisions of Sec. 136 ibid. 10. It is to be noticed that khatedar Kapura, Mangla sons of Shivpuri were having 1/2 share and Mulpuri s/o Pokar Puri and Smt. Jethi Bal widow of Pokar Puri were having 1/4 share in 8 bighas and 5 biswas land comprising khasra No. 313. 10. It is to be noticed that khatedar Kapura, Mangla sons of Shivpuri were having 1/2 share and Mulpuri s/o Pokar Puri and Smt. Jethi Bal widow of Pokar Puri were having 1/4 share in 8 bighas and 5 biswas land comprising khasra No. 313. It is not in dispute that the said khatedars of the land transferred their 3/4 share in favour of Sumermal & Tejraj sons of Gulabchand by way of registered sale deed dated 2.6.69 and the land was mutated in their names vide mutation entry No. 345 dated 15.9.78. Besides, Sumermal & Tejraj were having 2/3rd share in 6 bighas and 5 biswas land comprising khasra No. 316 and 314. It is also not in dispute that the aforesaid land comprising khasra Nos. 313, and 316 were transferred by the khatedars Sumermal & Tejraj in favour of Municipal Board, Ahore by a registered gift deed and accordingly, the land was mutated in the name of Municipal Board, Ahore. In this view of the matter, during the settlement operation in the new khasras of khasa No. 313 i.e. khasa Nos. 977, 1008 & 1009, the 3/4th share in the land in question was required to be mutated in the name of Sumermal & Tejraj sons of Gulab Chand, however, inadvertently, his share was entered only 1/4 and 1/2 share was again entered in the name of the vendors Kapura & Mangla, sons of Shivpuri. Thus, it was apparently an error committed ignoring the entries existing in the revenue record and therefore, after the inspection of the record, the same could have been rectified by the Land Record Officer after giving an opportunity of hearing to the parties interested. 11. Be that as it may, assuming for the sake of arguments that the correction of the error as alleged does not squarely fall within the scope of the provisions of Section 136 then too, in considered opinion of this Court, the Board of Revenue has committed no error in rectifying the error by invoking power u/S. 9 of the Act. Indisputably, the Board of Revenue exercises the power of general superintendence over all subordinate Courts therefore, if a blatant illegality committed by any subordinate Court or officer comes to the notice of the Board, it has ample jurisdiction to set aside the illegal order and correct the error. Indisputably, the Board of Revenue exercises the power of general superintendence over all subordinate Courts therefore, if a blatant illegality committed by any subordinate Court or officer comes to the notice of the Board, it has ample jurisdiction to set aside the illegal order and correct the error. The petitioners having sold their share in the land, their khatedari right stands extinguished and merely on the basis of some entry inadvertently made during the settlement operation in the record of rights, they cannot be permitted to claim khatedari rights over the land in question. They cannot be permitted to question collaterally the validity of the gift executed by the khatedars of the land in favour of the Municipal Board, Ahore either. Moreover, if for any reason, the gift deed executed by Sumermal & Tejraj is adjudicated to be invalid then, obviously, the land will revert back to Sumermal & Tejraj and not to the petitioners. In considered opinion of this Court, by passing the impugned order, invoking the powers u/S. 9 of the Act, justice has been done by the Board of Revenue and such order cannot be interfered with by this Court invoking the writ jurisdiction which is always exercised for the sake of justice. Needless to say that interference with the order impugned, will amount to perpetuating an illegality and for this reason also, the petitioners cannot be permitted to invoke the writ jurisdiction of this Court. 12. In the result, the writ petition fails, it is hereby dismissed. No order as to costs.