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2013 DIGILAW 14 (RAJ)

Mohan Ram v. State of Rajasthan

2013-01-03

VINEET KOTHARI

body2013
JUDGMENT 1. - This writ petition is directed against the order dated 8.1.2001 passed by the Single Bench of the Board of Revenue, Ajmer dismissing Revision Petition No. 63/2000/LR/Jodhpur, Smt. Sundar Devi and ors. v. Sanwalram and anr. filed by the petitioner in Camp sitting at Jodhpur at admission stage whereby the learned Single Member of the Board of Revenue while dealing with the revision petition filed by the petitioner against the order dated 5.8.2000 passed by the Additional Divisional Commissioner, Jodhpur deciding First Mutation Appeal No. 3/1996, UIT v. LRs. of Durga Ram and ors. under Section 75 of the Rajasthan Land Revenue Act, 1956 whereby the learned Additional Divisional Commissioner, Jodhpur set aside the mutation in favour of the revision petitioner in pursuance of decree in favour of revision petitioners dated 30.7.1988 deciding Revenue Declaration suit under Section 88 and 188 of the Rajasthan Tenancy Act, which was filed on 23.9.1985 for declaration and injunction against the State Government. 2. The Additional Divisional Commissioner held that Tehildar while entering mutation in favour of the petitioners in pursuance of decree of the Revenue Court dated 30.7.1988 did not give an opportunity of hearing to the Urban Improvement Trust, Jodhpur in whose favour the land in question was set apart for development by the State Government vide order dated 28.3.1988. It may be pointed out here that the said order dated 28.3.1988 has never been placed on record before the Revenue Courts or the Authorities below including the Board of Revenue and even this Court, in any of the proceedings by the State or the UIT, Jodhpur in this case. The Additional Divisional Commissioner however, held that since the Tehsildar recorded mutation in favour of the petitioners without giving an opportunity of hearing to the UIT, Jodhpur, the order of the Tehsildar for mutation deserves to be quashed and thus, the appeal filed by the UIT came to be allowed by the Additional Divisional Commissioner against which the petitioner filed a revision petition before the learned Board of Revenue, Ajmer which came to be dismissed in the camp sitting by the learned Single Member of the Board of Revenue by the impugned order dated 8.1.2001. 3. 3. The learned Single Member of the Board of Revenue, Ajmer while dismissing the revision petition of the petitioners and upholding the order of the Additional Divisional Commissioner dated 5.8.2000 even set aside the decree dated 30.7.1988 in Revenue Suit No.5/1988 in favour of the present petitioners against which even the appeal filed by the UIT, namely, Appeal No.4/1989 was dismissed by the Revenue Appellate Authority on 27.9.1993 and even the revision petition by the Revenue Board came to be dismissed on 27.9.2000 and while setting aside the decree itself, the learned Single Member of the Board of Revenue set aside the mutation entry No.683 dated 24.11.1995 which was set aside by the Additional Divisional Commissioner by order dated 5.8.2000. 4. Being aggrieved by the said order dated 8.1.2001, the petitioner preferred this writ petition before this Court on 1.11.2001. 5. The learned counsel for the petitioner Mr.L.R.Mehta submitted that the learned Single Member while dealing with the revision petition filed by the present petitioner was not even seized of any challenge to the decree dated 30.7.1988 in the Revenue Suit No.5/1988, which decree had become final with the dismissal of appeal filed by the UIT, Jodhpur itself on 27.9.1993 and the Review petition against that also came to be dismissed on 27.9.2000 and therefore, while dealing with the revision petition filed against the impugned order of the Additional Divisional Commissioner only dealing with the mutation entry effected in favour of the petitioner by the Tehsildar in pursuance of decree, the learned Single Member could not have set aside the decree itself. 7. He also submitted that it was for the State Government to place the documents relating to setting apart of the land and handing over the same to the UIT, Jodhpur under the order dated 28.3.1988 before the learned Revenue Courts during trial and since such setting apart was done admittedly during the pendency of the Revenue suit, which was filed approximately 3 years prior to the same in the year 1985 and in absence of the same, the decree passed against the State would bind even UIT, Jodhpur. He urged that the decree in question, therefore, could not be nullified by the Board of Revenue while dealing with the case relating to mutation entries which are actually consequential in nature and are recorded to give effect to the decree in question. He urged that the decree in question, therefore, could not be nullified by the Board of Revenue while dealing with the case relating to mutation entries which are actually consequential in nature and are recorded to give effect to the decree in question. He also pointed out that the Single Bench of the Board even could not deal with the decree since there was neither any reference made to the Board of Revenue at the instance of Collector under Section 82 or Section 232 of the Rajasthan Tenancy Act nor the general superintendence power vested in the Board under Section 9 of the Land Revenue Act could be invoked for this purpose and therefore, the present writ petition deserves to be allowed and the impugned order dated 8.1.2001 of the learned Single Member of the Board deserves to be set aside. 6. Per contra, Mr.S.G. Ojha, appearing for the UIT,Jodhpur and Mr. Sandeep Bhandawat appearing for the Revenue Department urged that they may be permitted to place on record the document dated 28.3.1988 even now or in the alternative, the matter may be remanded back to the learned Board of Revenue for hearing the revision petition afresh with liberty to the State and UIT, Jodhpur to place on record the said documents and argue the matter again on merits denovo. 7. Having heard the learned counsels, this Court is of the opinion that interest of justice would be better subserved, if the matter is remanded back to the learned Board of Revenue by setting aside the impugned order dated 8.1.2001 and directing the appropriate Division Bench of Board of Revenue to decide the said revision petition afresh in accordance with law. It is also considered expedient to direct the respondent - State and UIT, Jodhpur to place on record the document dated 28.3.1988 under which the land in question is said to have been set apart for development purposes and given to the UIT for development. The Board of Revenue is expected to decide the revision petition again on merits and both the parties are at liberty to raise their respective contentions on merits which were raised before this Court. It is needless to add that after the decision of Board of Revenue on merits afresh, if either of the parties are aggrieved by the same, they are at liberty to file their appropriate legal remedy . 8. It is needless to add that after the decision of Board of Revenue on merits afresh, if either of the parties are aggrieved by the same, they are at liberty to file their appropriate legal remedy . 8. Accordingly, the present writ petition is allowed in the aforesaid manner and setting aside the order of the Board of Revenue dated 8.1.2001, the matter is remanded back to the learned Board of Revenue for being decided afresh in accordance with law preferably within a period of one year from today. Since the coordinate Bench of this Court had granted interim relief in favour of the petitioner on 16.8.2010 to the effect that the petitioners shall not be dispossessed from the land in question, the said interim order shall continue till the Board of Revenue again decides the case afresh on merits as directed above. Costs easy.Petition allowed. *******