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2014 DIGILAW 520 (RAJ)

Lrs. of Gambhir Singh v. The Board of Revenue

2014-02-20

SANGEET LODHA

body2014
JUDGMENT 1. - By way of these writ petitions, the petitioners have questioned legality of order dated 31.7.98 of the Board of Revenue, Rajasthan, whereby while accepting the references made by the Additional Collector, Dungarpur, vide order dated 12.1.98 passed on various applications seeking reference made by Tahsildar, Dungarpur, the judgment and decree passed in favour of the petitioners herein by the Sub Divisional Officer (SDO), Dungarpur, stands set aside and consequently, the mutation of the disputed land made in favour of the petitioners is directed to be cancelled. 2. The relevant facts are that land ad measuring 990 bighas 12 biswas comprising khasra no.3303 situated at village- Punjpur, Tahsildar-Aaspur, District-Dungarpur is recorded as tank-bed of the pond known as 'Punjela Talab' . The petitioners' forefathers and thereafter the petitioners herein used to cultivate the different 'rakbas' forming part of the said land, when the bed of the pond remained free of water i.e. dry. The petitioners claim that the land in question which is a jagir land was in their long continuous cultivatory possession, however, after coming into force of Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (for short "the Act of 1952"), the same was entered in the name of the Government in the revenue record. It is stated that even thereafter, the petitioners were provided the land for cultivation. The petitioners in the respective petitions, claiming themselves to be in cultivatory possession of the land as khatedar filed separate suits for declaration and permanent injunction before the SDO, Dungarpur. Precisely, the case as set out by the petitioners before the SDO was that their land ad measuring 990 bighas 12 biswas has wrongly been recorded as 'bila nam sarkar' in the revenue record and since they are in cultivatory possession of the land as khatedar, they deserve to be declared khatedar tenant of the land. The petitioners prayed for injunction against the State Government not to allot the land in question to anybody else and not to dispossess them from the land in question. 3. The suit was contested by the State by filing the reply thereto taking the stand that the land in question is recorded as 'rohan gair mumkin' in the revenue record and the petitioners never acquired khatedari rights in respect thereof. 3. The suit was contested by the State by filing the reply thereto taking the stand that the land in question is recorded as 'rohan gair mumkin' in the revenue record and the petitioners never acquired khatedari rights in respect thereof. The State had taken a categorical stand that the petitioners are holding the land as trespasser and not as khatedar tenants. It was contended that the land in question being part of the tank-bed by virtue of provisions of Section 16 (ii) of the Rajasthan Tenancy Act, 1955 ("the Act"), no khatedari right accrues in favour of any person on account of alleged land use for casual or occasional cultivation. 4. On the basis of the pleadings of the parties, the trial court framed the issues and parties led their evidence. After due consideration of the rival submissions, the court arrived at the finding that the petitioners were not khatedar tenant of the land in question and therefore, no khatedari rights can be conferred upon them, however, they were found to be in cultivatory possession of the land. Accordingly, the suit preferred by the respective petitioners were decreed by separate judgment and decree dated 27.12.72, in terms that the petitioners herein are in cultivatory possession of the land but they are not entitled for complete khatedari rights. It was ordered that the petitioners shall pay the full rent for the period the land remains in their cultivatory possession and shall pay one fourth rent when the land remains sub-merged in the water. That apart, the State Government was restrained from allotting the land for cultivation to anybody else under the Rules governing allotment of such land. 5. After a lapse of about 15 years, the petitioners were issued notice to show cause by the Collector, Dungarpur, as to why the reference may not be made to the Board of Revenue under Section 232 of the Act for cancellation of the decree and the mutation effected pursuant thereto inasmuch as, the same are found to be in violation of the provisions of Section 16(ii) of the Act. The reference application was contested by the petitioners by filing a reply thereto. After due consideration of the rival submissions, the Additional Collector, Dungarpur vide order dated 12.1.98 made reference to the Board of Revenue under Section 232 of the Act read with Section 82 of the Rajasthan Land Revenue Act, 1956. 6. The reference application was contested by the petitioners by filing a reply thereto. After due consideration of the rival submissions, the Additional Collector, Dungarpur vide order dated 12.1.98 made reference to the Board of Revenue under Section 232 of the Act read with Section 82 of the Rajasthan Land Revenue Act, 1956. 6. On behalf of the State Government it was contended before the Board of Revenue that admittedly, the disputed land is the land forms part of tank-bed and therefore, keeping in view, the provisions of Section 16(ii) of the Act, no khatedari rights could accrue in favour of the petitioners alleged to be in cultivatory possession thereof. It was contended that there is no provision under the Act whereby a suit for declaration of gair khatedari rights could be maintained. That apart, it was submitted that no permanent injunction could have been issued by the court restraining the State Government from allotting the land forming part of the tank-bed when the land does not remain submerged in the water. 7. On the other hand, it was contended on behalf of the petitioners herein that in terms of provisions of Section 16(ii) of the Act, the declaration of khatedari rights over the land forming part of tank-bed is prohibited but no such restriction exists regarding the declaration of gair khatedari rights. It was contended that as a matter of fact, the State Government has issued a notification dated 2.12.67 to the effect that if any person is in cultivatory possession of the land forming part of the tank-bed, he may be entered as gair khatedar and the same may not be allotted for cultivation under the provisions of Rajasthan Land Revenue (Allotment of Tank-bed Lands for Cultivation) Rules, 1961 ( for short "the Rules of 1961") and therefore, the revenue court had committed no error in passing the decree in favour of the petitioners herein. It was contended that the judgment and decree having attained finality, no reference could have been made after a lapse of more than a year. 8. The contention raised on behalf of the petitioners herein before the Board of Revenue questioning the maintainability of the reference, it was contended on behalf of the State Government that the decree passed in favour of the petitioners being collusive and void, ab initio the reference made belatedly, was maintainable. 9. 8. The contention raised on behalf of the petitioners herein before the Board of Revenue questioning the maintainability of the reference, it was contended on behalf of the State Government that the decree passed in favour of the petitioners being collusive and void, ab initio the reference made belatedly, was maintainable. 9. After due consideration of the rival submissions, the Board arrived at the finding that admittedly, the land in question forms part of tank-bed and therefore, by virtue of provisions of Section 16(ii) of the Act, no khatedari right accrues in favour of the persons alleged to be in cultivatory possession thereof. The Board observed that under Section 88 of the Act, a suit for declaration of khatedari right is maintainable but it does not make any provision permitting declaration of gair khatedari rights. The Board observed that no injunction can be issued restraining the State Government from taking proceedings in accordance with law. The Board observed that as a matter of fact, the suit preferred for declaration of khatedari rights being barred by virtue of provisions of Section 16(ii) of the Act should have been dismissed by the SDO at the very threshold. The Board arrived at the conclusion that the permanent injunction issued by the court restraining the State Government from allotting the land in question in future for cultivation purpose in conformity with the Rules of 1961, was ex facie without jurisdiction. Accordingly, the references made by the Additional Collector as aforesaid have been accepted by the order impugned and while setting aside the judgment and decree passed in favour of the petitioners herein,the mutation effected in their favour pursuant thereto, have been directed to be cancelled by the order impugned. Hence, these petitions. 10. Learned counsel for the petitioners contended that the learned Board of Revenue has failed to appreciate the law in correct perspective. Learned counsel submitted that the Board of Revenue has seriously erred in ignoring the fact that the lands in question had been in possession of petitioners' ancestors since the time of jagir and the same were part and parcel of the jagir land. Learned counsel submitted that the Board of Revenue has seriously erred in ignoring the fact that the lands in question had been in possession of petitioners' ancestors since the time of jagir and the same were part and parcel of the jagir land. Learned counsel submitted that by virtue of Section 9 of the Act of 1952, the petitioners have acquired heritable and full transferable rights as khatedar tenant in respect of the land in question and therefore, the provisions of Section 16(ii) of the Act are not attracted in the matter. Learned counsel submitted that the provisions of Section 16(ii) cannot have retrospective operation so as to adversely affect the accrued rights. Learned counsel submitted that the petitioners being in continuous and undisturbed cultivatory possession of the land in question, the gair khatedari rights conferred upon them being in conformity with the circular issued by the State Government, there was no occasion for the Board of Revenue to interfere with the judgment and decree passed by the court of competent jurisdiction in favour of the petitioners. Learned counsel submitted that the respondents cannot be permitted to dispossess the petitioners and allot the land to anybody else for the purpose of cultivation. Learned counsel submitted that the land in cultivatory possession of the petitioners was wrongly recorded as tank-bed and therefore, the error crept in record of rights during the settlement operations deserves to be rectified. In support of the contention, learned counsel has relied upon a Bench decision of this court in the matter of " Poosa Ram v. Board of Revenue & Ors.", 1997 RRD, 504. Lastly, learned counsel urged that the reference made by the Additional Collector after inordinate delay of more than 15 years was liable to be rejected on this count alone. 11. On the other hand, learned Government Counsel reiterating the stand taken before the Board of Revenue, submitted that for the reasons recorded the Board has committed no jurisdictional error in setting aside the judgment and decree passed in favour of the petitioners and directing the cancellation of the mutations effected in their favour pursuant thereto, so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. I have considered the rival submissions and perused the material on record. 13. 12. I have considered the rival submissions and perused the material on record. 13. Indisputably, the land in question forms part of tank-bed of the pond known as "Punjela Talab" situated in Village Punjpur, Tehsil Aspur, District Dungarpur and therefore, by virtue of provisions of Section 16 (ii) of the Act, no khatedari rights accrue in favour of the petitioner alleged to be in cultivatory possession thereof. It is also not in dispute that Section 88 of the Act provides remedy for declaration of khatedari rights and therefore, the trial court having arrived at the finding that the petitioners were not entitled to be declared khatedar tenant of the land, there was no occasion for it, to declare them as "Gair Khatedar" and restrained the State Government to allot the land in future to anybody else under the relevant rules governing cultivation of the land forming part of tank-bed. 14. In Abdul Rahman v. State" 2005 RRT 59 , a Bench of this court has issued direction to the State Government to remove encroachment in the catchment area of the water bodies. In the matter of " Suo Motu v. State of Rajasthan"(S.B.C.Writ Petition No.11153/11), disposed of by Jaipur Bench of this court vide order dated 29.5.12 , specific directions are issued restraining allotment of the land falling in catchment areas of water reservoirs like Johar, Nala, Tank, River, Pond etc. It is further directed that the appropriate action shall be taken for cancellation of the allotment made in defiance of Section 16 of the Act of 1955. It is not in dispute that as per the revenue record the land falls within the tank-bed and thus, not available for allotment. Suffice it to say that the claim of the petitioner for regularisation of the possession over the land in question, is absolutely baseless. 15. It is true that the land falling within the tank-bed can be allotted for temporary cultivation purpose whenever it comes out of submergence in accordance with the provisions of Rajasthan Land Revenue (Allotment of Tank-Bed Lands for Cultivation) Rules, 1961, however, for that purpose, the petitioners have to make appropriate application before the competent authority and the land will be allotted in their favour in the manner provided under the rules. But in any case, the trial court could not have declared the petitioners as "Gair Khatedar" of the land and restrained the State Government from allotting the land to anybody else for cultivation under the relevant rules. 16. The contention of the petitioners that the lands in question had been in their possession since the time of Jagir and therefore, by virtue of Section 9 of the Act of 1952, they have acquired heritable and full transferable rights as khatedar tenant is not tenable inasmuch as there is no foundation in this regard was laid before the court below. Moreover, the decree passed by the trial court holding that the petitioners are not entitled to be declared khatedar tenant of the land, has attained finality. 17. In the considered opinion of this court, keeping in view the settled position of law discussed as above, the decision of the Board of Revenue in accepting the references made by the Tahsildar, Dungarpur and setting aside the decree passed in favour of the petitioners by SDO, Dungarpur declaring them as Gair Khatedar does not suffer from any infirmity or illegality or jurisdictional error so as to warrant interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 18. In the result, the writ petitions fail, the same are hereby dismissed. No order as to costs. *******