JUDGMENT 1. - Seven petitioners, by way of this writ petition, have approached this court assailing judgment of the Board of Revenue dated 06.01.1997 by which order of the Collector, Bharatpur, dated 01.11.1994 was upheld. 2. Facts, necessary for decision, as averred in the writ petition, are that one late Jagannath Prasad, Advocate of Bharatpur, applied through one Baburam for allotment of land to the erstwhile State of Bharatpur on 10.07.1942. Vide order dated 26.07.1944, Shri Jagannath Prasad was allotted 10 bighas and 2 biswas of land in Khasra No.1120 outside Bharatpur city on payment of 'najrana' of a sum of Rs. 50/-, for development of orchard. The mutation of the land was attested in the revenue record vide Entry No.26/2 in Samvat 2001 and the land was thus recorded in his khatedari. Out of total 10 bighas and 2 biswas of land, Jagannath Prasad sold 10 biswas of land to one Puran Mali. In column 4 of Jamabandi of Samvat 2014, name of Jagannath Prasad was recorded, while in column 5 the land was recorded as 'Makbuja Malikan'. In Jamabandi of Samvat 2018 again Jagannath Prasad was recorded as owner of land of said Khasra measuring 9 bigha 12 biswa whereas Puran Mali was shown as khatedar in respect of 12 biswa. In Jamabandi of Samvat 2019 to 2022 Jagannath Prasad was recorded as khatedar of 9 bighas and 12 biswas of land, but Premdev Bhushan shown as khatedar of 10 biswas of land, who had purchased the same from Puran Mali. The petitioners' predecessor-in-title purchased 9 bigha and 5 biswa of land from Jagannath Prasad on 12.11.1968 by registered sale deed. Mutation was attested in their favor on 28.07.1972. 3. A complaint was made by one Bhagwat Prasad to Collector, Bharatpur that Jagannath Prasad never established an orchard over the land in question. The land continuously remained as 'Banjar Kadim'. Contrary to the conditions of allotment, Jagannath Prasad had illegally sold the land. The District Collector, Bharatpur made an enquiry on 20.11.1969 from Tehsildar Bharatpur as to whether Jagannath Prasad was recorded as 'Malik' under Section 17(A) of the Rajasthan Tenancy Act, 1955 and subsequently as khatedar. A notice was also sent to Jagannath Prasad challenging his status as khatedar and asking to show cause why mutation attested in his favour may not be cancelled. He sent a reply on 18.12.1969. A notice was also sent to Jagannath Prasad challenging his status as khatedar and asking to show cause why mutation attested in his favour may not be cancelled. He sent a reply on 18.12.1969. A note was put up to the Collector on 09.04.1972 proposing to cancel his khatedari, which was approved by the Collector on 14.04.1972. The Collector accordingly issued direction to Tehsildar on 12.06.1972 to cancel khatedari entries in favour of Jagannath Prasd. Jagannath having sold the disputed land to the petitioners, they challenged the aforesaid order in appeal before the Revenue Appellate Authority. The Revenue Appellate Authority in order dated 08.06.1976 held that the enquiry made by the Collector, Bharatpur, was one under Section 9 of the Zamindari and Biswedari Act. He further held that the appeal was barred by limitation as Section 24 of the Zamindari and Biswedari Act, which provided period of only 30 days for filing an appeal, therefore, the appeal was barred by limitation. Additionally, however, the Revenue Appellate Authority upheld that order on merits. The petitioners then approached the Board of Revenue. The Board, by its order dated 03.06.1980 allowed the appeal and set aside the order passed by the Revenue Appellate Authority dated 08.06.1976 and the orders of the District Collector dated 14.02.1972 and 12.06.1972. However, it held that this will not act as bar to the District Collector to take up the matter for correction of entries after following due procedure of law giving due opportunity to all the concerned parties. 4. In the meantime, one bigha out of aforesaid land was recorded 'gair mumkin temple'. The petitioners filed a revenue suit for declaring them as khatedar of this land and for correction in the revenue record. The respondent no.2 i.e. the State filed written-statement claiming that since this land vested in the State, therefore, it should be recorded as 'Makbuja Malikan'. However the suit was decreed in favour of the petitioners and they were declared as khatedar vide judgment dated 20.04.1982. It may be noted that this judgment attained finality and was not challenged any further. In compliance of the judgment of the Board of Revenue dated 30.06.1980 the land was again recorded by the Assistant Settlement Officer, Bharatpur in khatedari of the petitioners vide order dated 11.03.1987. The respondent State filed appeal before the Settlement Officer there-against, which was dismissed on 20.12.1987. 5. In compliance of the judgment of the Board of Revenue dated 30.06.1980 the land was again recorded by the Assistant Settlement Officer, Bharatpur in khatedari of the petitioners vide order dated 11.03.1987. The respondent State filed appeal before the Settlement Officer there-against, which was dismissed on 20.12.1987. 5. Simultaneously, the District Collector again issued a notice to the petitioners on 23.11.1981 under Rule 399 of the Land Revenue Rules 1957 for cancellation of the khatedari. Petitioners filed preliminary objection and reply to the said notice separately on 27.09.1994 and 25.10.1994. The District Collector appointed Tehsildar as receiver on the disputed land vide order dated 24.06.1994 and subsequently by order dated 01.09.1994 made a reference to the Board of Revenue under Section 9 of the Rajasthan Land Revenue Act 1956 for entire land as Government land except one bigha of land in the name of temple Satyanarain Ji. The Board of Revenue vide order dated 06.01.1997 declared all the entries in the name of late Shri Jagannath Prasad and through him, in favour of the petitioners, as illegal and directed that the land in dispute be recorded as 'sawai chuk'. It is against the backdrop of these facts, that the present writ petition has been filed. 6. Shri Rajendra Prasad, learned counsel for petitioner, has argued that the order of reference was illegal as no notice was served on the original khatedar Jagannath Prasad or his legal heirs before passing this order. The order has been passed against dead person and it is nullity in law. It was argued that the impugned orders re otherwise also void ab initio, being barred of principles of res judicata. The question of khatedari rights was decided in favour of the petitioner in the suit for declaration and correction in entries made in the revenue record as far back as in 1982 against the State. The petitioners were declared khatedar of the land in question. The said decree has not been assailed anywhere and has attained finality. The khatedari of the petitioners could not be cancelled in an administrative enquiry by the respondents. It was argued that after remand of the matter from the Board of Revenue, proceedings under Rule 399 of the Rajasthan Land Revenue (Land Records) Rules, 1957, though initiated but were not taken to logical conclusion. The khatedari of the petitioners could not be cancelled in an administrative enquiry by the respondents. It was argued that after remand of the matter from the Board of Revenue, proceedings under Rule 399 of the Rajasthan Land Revenue (Land Records) Rules, 1957, though initiated but were not taken to logical conclusion. The District Collector rather resorted to making of reference under Section 9 of the Act, in a patently illegal manner and in violation of the principles of natural justice. The learned counsel for the petitioner argued that when the earlier judgment was rendered by the Board of Revenue on 03.08.1980 the Assistant Settlement Officer recorded the petitioners as khatedars. The respondent State filed an appeal before the Settlement Officer, which was dismissed vide order dated Even that order has attained finality. The khatedari of the petitioners could not therefore be canceled. Shri Rajendra Prasad, learned counsel for the petitioners argued that Section 9 only provides for general superintendence of the Board of Revenue. It does not confer any power on the District Collector to make a reference and therefore the order passed by the District Collector of making reference is without jurisdiction. 7. The Board of Revenue has already exercised its powers as far back as in 1980 and did not hold anything against the petitioners. The impugned order tantamount to re-exercising the general powers of superintendence already exercised. The Board could not have taken a different view of the matter without any additional material on record. The learned counsel for the petitioners argued that the District Collector has no power or right to change the existing revenue record and right of the parties merely because the valuation of the land in the course of time has appreciated. The petitioners are bona-fide purchasers and they have constructed their houses and buildings on the land in dispute. The land presently fall in the 'abadi' area and agriculture tenancy has ceased to exist. Provisions of the Rajasthan Tenancy Act or the Raja than Land Revenue Act cannot be applied to said land. 8. Shri Rajendra Prasad, learned counsel for the petitioners, has referred to the proceedings of the grant/allotment of the land to Jagannath Prasad and the certified copy of the proceedings of the file No.75/43 and argued that this certified copy is collectively marked as Annexure-1. 8. Shri Rajendra Prasad, learned counsel for the petitioners, has referred to the proceedings of the grant/allotment of the land to Jagannath Prasad and the certified copy of the proceedings of the file No.75/43 and argued that this certified copy is collectively marked as Annexure-1. He submitted that perusal of the aforesaid proceedings would go to show that the Board of Revenue while accepting the reference has misread the file and has wrongly held that the land in dispute was allotted to Baburam and not to Jagannath Prasad. The Board of Revenue has also wrongly held that undertaking was furnished by Baburam that he will develop an orchard on such land and construct a building and that name of Baburam was recorded in column 4 as 'Makbuja Malikan' and that 'najrana' was also deposited by Baburam. When compared with the certified copy of proceedings produced by the petitioners before this Court, findings of the Board are found to be incorrect. Learned counsel for the petitioners argued that the Board of Revenue has wrongly held that Rajasthan Zamindari and Biswedari Abolition Act would apply to this case because this finding is wholly illegal as late Jagannath Prasad Advocate was neither a zamindar nor a biswedar. He was merely a grantee/allottee of the land. 9. Shri Rajendra Prasad, learned counsel for petitioners, argued that no such condition was attached to the allotment of land made in favour of Jagannath Prasad that if he failed to develop the orchard, allotment shall stand cancelled or revert back to the State. In fact the Board of Revenue in earlier judgment has taken note of the efforts made by Jagannath Prasad to develop an orchard and also the fact that he was in possession of the land in question as khud-kasht and therefore by virtue of Sections 5(4) and 29 of the Act of 1959 acquired khatedari rights by operation of law. Action of the respondents cannot at all held it justified. Private citizens cannot be deprived of their land for the sake of beautification of the city. There was no condition attached to the sale or allotment that on failure of Jagannath Prasad to develop an orchard the land would revert back to the State. Action of the respondents cannot at all held it justified. Private citizens cannot be deprived of their land for the sake of beautification of the city. There was no condition attached to the sale or allotment that on failure of Jagannath Prasad to develop an orchard the land would revert back to the State. In support of his arguments, learned counsel for the petitioners relied on the judgments of the Supreme Court in Devi Singh and Others v. Board of Revenue for Rajasthan and Others - (1994) 1 SCC 215 . It is therefore prayed that the impugned order be set aside and the entries in the name of the petitioners showing them as khatedars of the land in dispute be resorted. 10. Shri Zakawat Ali, learned Deputy Government Counsel appearing on behalf of the respondents State, has opposed the writ petition and submitted that the land in the present case was allotted to Baburam and not to Jagannath Prasad. Learned Deputy Government Counsel supported the findings recorded by the Board of Revenue in its judgment dated 06.01.1997 and argued that the learned Board of Revenue has rightly held on the basis of the record that the application for allotment was made by Baburam and it was he who deposited the amount of 'najrana'. The land was allotted to him for developing an orchard and construction of building and that he gave an undertaking to do so. His name was recorded in the jamabandi of the year 1943 and in column 4 as 'Makbuja Malikan'. Name of Jagannath Prasad was merely recorded in subsequent jamabandi of Samvat 2010, 2014 and 2018. The District Collector rightly made a reference as the Board of Revenue in its earlier judgment, clearly left it open to him for taking steps regarding correction of entries after following due process of law. Making of reference for correction of entries was perfectly justified. Learned Deputy Government Counsel argued that mutation of this land was never recorded in the name of Jagannath Prasad and non giving notice to legal heirs of Jagannath Prasad would not make any difference because the petitioners, who are in actual possession of the land, have been throughout contesting the matter. No prejudice would be caused to legal heirs of Jagannath Prasad. Jagannath Prasad never got possession of the land nor did he ever cultivate the same, let alone developing an orchard. No prejudice would be caused to legal heirs of Jagannath Prasad. Jagannath Prasad never got possession of the land nor did he ever cultivate the same, let alone developing an orchard. Petitioners did not get any title over the land in dispute because execution of the sale deed in their favour by Jagannath Prasad was inconsequential because if he himself did not possess any title, he could not transfer it to anyone. The impugned order has been passed after due opportunity of hearing to the petitioners. In so far as one bigha of land is concerned, it was occupied by an old temple. This temple existed even before the land was allotted to Baburam, therefore, the land covered by the temple has rightly been excluded. It is therefore prayed that the writ petition be dismissed. 11. I have given my anxious consideration to rival submissions and perused the material on record and also respectfully studied the cited case law. 12. What is assailed in essence is the order of the Board of Revenue dated 03.06.1980 and the judgment of the District Collector dated 14.04.1972. These two orders proceeds on the assumption that the land was allotted to Jagannath Prasad, but he actually never applied for allotment. The application was submitted by one Baburam, who forged his signatures, and that entire proceedings were drawn in his name and, therefore, the allotment of land in Khasra no.1120 was illegal, void and non-est. For that reason, the sale of land measuring 9 bighas 5 biswas by Jagannath Prasad on 12.11.1968 to the predecessor in title of the petitioners, namely, Baburam and 10 biswa to Puranmal was wholly illegal. The District Collector then proceeded on assumption that the land having been allotted to Public Works Department for beautification of the city, by order dated 11.06.1976 as modified on 15.06.1976, the entries made in favour of the petitioners were liable to be cancelled. 13. Curiously, the Board of Revenue had its own reasons in accepting the reference. It has based its judgment entirely on proceedings drawn on file No.75 of the erstwhile State of Bharatpur. It found that by order dated 06.11.1943 the land was not allotted to Jagannath Prasad, rather it was allotted to Baburam and payment of 'najrana' of Rs. 50/- was also made by him. It has based its judgment entirely on proceedings drawn on file No.75 of the erstwhile State of Bharatpur. It found that by order dated 06.11.1943 the land was not allotted to Jagannath Prasad, rather it was allotted to Baburam and payment of 'najrana' of Rs. 50/- was also made by him. He undertook that he would construct building on this land, develop an orchard and also develop the land. Baburam filed an application for allotment on behalf of Jagannath Prasad on 10.07.1942 before the competent authority but in fact, this application was filed by Baburam and an undertaking was also furnished by Baburam. Amount of 'najrana' of Rs. 50/- was also deposited by Baburam. The letter of allotment dated 11.09.1943 was also issued in favour of Baburam. It was on this basis that land was never mutated in favour of Jagannath Prasad. And it was on this basis that the Board of Revenue has directed cancellation of khatedari of the petitioner and recording of land in dispute as 'sawai chuk'. The petitioners have placed on record at Annexure-1, the proceedings of the very same file No.75 of the Erstwhile State of Bharatpur. It is evident from the proceedings that Baburam had filed an application on behalf of Jagannath Prasad Advocate on 10.10.1942 for allotment of 10 bigha and 2 biswa of land of Khasra in dispute on payment of 'najrana' of Rs. 50/-. The statement of Baburam was recorded on 10.07.1942 which is on record in which he is shown to have participated in auction on behalf of Jagannath Prasad, who wanted to purchase this land. He participated in the auction proceedings because Jagannath Prasad was not present and that he undertook on his behalf that the land would be used for development of an orchard and the 'najrana' will also be paid. The Secretary of the State Council, Bharatpur, passed the order of allotment on 26.07.1944 sanctioning allotment of the land to Jagannath Prasad Sharma, Advocate, for developing an orchard. When the matter was placed before the Revenue Minister for approval, he expressly desired that Jagannath Prasad, Advocate, be also required to construct a 'kothi' (bungalow) in Vijendra Nagar. The matter was then placed before the District Collector on 26.07.1944, who required the parties to appear. Baburam appeared on behalf of Jagannath Prasad on 24.09.1944. However, whenever the matter was taken up on 23.05.1943, Jagannath Prasad Advocate himself appeared. The matter was then placed before the District Collector on 26.07.1944, who required the parties to appear. Baburam appeared on behalf of Jagannath Prasad on 24.09.1944. However, whenever the matter was taken up on 23.05.1943, Jagannath Prasad Advocate himself appeared. He however stated that now he only wanted the land to develop an orchard and he had no intention to construct a bungalow in the land and that whenever he decided to construct a bungalow/house, he would apply for allotment of land in Vijendra Nagar. Then, the Secretary, State Council, has on 23.05.1945, drawn an order in compliance of the order of the Revenue Minister that sanctioning allotment of land in favour of Jagannath Prasad Advocate. The Revenue Minister has also made a note on the file on 25.01.1945 that Jagannath Prasad has stated that as and when he would construct a bungalow (kothi), he would make an application for allotment. Taking that note, the order was issued for allotment of the land on payment of remaining amount of 'najrana', if any. Copy of register 'dakhil kharij intkal' of Samvat 2001 has been placed on record in which name of Jagannath Prasad has been recorded in the category of 'malik'. An endorsement has been made in the register on 12.09.1944 attesting mutation in favour of Jagannath Prasad. 14. Certified copy of the proceedings obtained from the file No.75 of the Erstwhile State of Bharatpur, thus clearly shows that the findings recorded by the Board of Revenue are passed on misreading of the original file. Even the certified copy of the proceedings have been placed by the petitioner on record sixteen years ago. The respondent State, in spite of being required, has not filed reply to the writ petition. The State Government has thus not disputed the correctness of the proceedings as indicated from the certified copy thereof. In fact, in reply to Para 3 what they have stated is that the allotment was made to Jagannath Prasad directly. It was given to Baburam, who gave an application duly signed by him as well as by Jagannath Prasad on 10.07.1942 but neither Jagannath Prasad nor Baburam ever tried to improve the land in any manner. It was only the paper possession without any physical possession or any follow up action. It was given to Baburam, who gave an application duly signed by him as well as by Jagannath Prasad on 10.07.1942 but neither Jagannath Prasad nor Baburam ever tried to improve the land in any manner. It was only the paper possession without any physical possession or any follow up action. The Board of Revenue in the earlier order dated 03.06.1980 has observed that initially the entry of khatedari following 'Makbuja Malikan' over land not recorded as 'Khud-Kasht' has been taken as patently incorrect. Jagannath Prasad claimed that he was not biswedar but a grantee. No opportunity was given to him. The Collector has held that the entry in the revenue record was cancelled on the ground that he did not establish an orchard. The reply of Jagannath Prasad recalled his efforts to improve the land and the reasons for giving up his efforts. It is not clear how the failure of Jagannath Prasad to develop an orchard cancels his ownership. Further the authority of the Collector to cancel the entry is not clear. Even though the Board at that time while allowing the appeal and setting aside the order of the Revenue Appellate Authority and the Collector, observed that this would not act as an impediment for the Collector to correct entries after following due procedure and giving due opportunity. But the reasoning given by the Board in Para 18 of the said, to which effect argument has also been made by the learned counsel for the petitioners that the allotment may have been made for development of the land and for setting up of an orchard but no consequence of not setting up of an orchard has been given in the allotment. 15. The judgment of the Board of Revenue did not record the efforts put in by Jagannath Prasad for developing the land as an orchard. Admittedly in the allotment letter, no condition has been imposed that if the orchard is not developed, the allotment or khatedari rights would be liable to be cancelled or that the land would revert back to the Government. It has rightly been argued that the land of the citizen just because it is required for beautification of the city, cannot be in this manner taken possession of by the State and the khatedari rights lawfully accrued in favour of the petitioners, cannot be cancelled. It has rightly been argued that the land of the citizen just because it is required for beautification of the city, cannot be in this manner taken possession of by the State and the khatedari rights lawfully accrued in favour of the petitioners, cannot be cancelled. This is all the more so because suit filed by the petitioners for recording part of the land as 'gair mumkin temple' was decreed and that suit attained finality and the entry in the record recording the petitioners as khatedar by Assistant Settlement Officer dated 11.03.1980, in compliance of the order of the Board of Revenue dated 03.06.1980 and that the dismissal of appeal by the Settlement Officer there-against vide order 17.12.1988 have to attain finality. In the circumstances, the order passed by the Board of Revenue dated 06.01.1997 accepting the order passed by the District Collector dated 01.11.1994 making a reference, cannot be sustained in law. 16. In view of the above discussion, the present writ petition deserves to succeed. It is accordingly allowed. The order dated 01.11.1994 of the District Collector, Bharatpur and the order dated 06.01.1997 of the Board of Revenue, are set aside.Writ petition allowed. *******