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2015 DIGILAW 600 (RAJ)

Ashok v. State of Rajasthan

2015-03-10

ALOK SHARMA

body2015
JUDGMENT 1. - This petition has been filed impugning the judgment dated 25.01.2010, passed by the Board of Revenue, Ajmer, (hereinafter “the Board”) accepting the reference made by the Collector, Bharatpur under Section 82 read with Section 9 of the Rajasthan Land Revenue Act, 1956 (hereinafter “the Act of 1956”) and directing that mutation Nos.717, 724, 800 & 828 as also 1602 & 1604 be set aside and 46 bigha agricultural land in khasra No.515, Kasba Bharatpur be reverted in revenue records as Sawai Chak (Government Land). 2. Counsel for the petitioners has submitted that the order passed by the Board is vitiated for having recorded that the predecessors in interest of the petitioners i.e. Samanta and Chiranji were allotted the land in dispute temporarily for a period of one year in Samvat 2014 i.e. 1957. He submits that even though no Patta of allotment was filed before the Collector, Bharatpur, yet under Section 140 of the Act of 1956, the entries in favour of the predecessors in interest of the petitioners in the khasra girdawari 2010-14 and 2014-2018 ought to have been presumed to be true unless the contrary was proved and then possession taken as proof of khatedari rights. It is submitted that in the circumstances, the mere failure of the petitioners to file any allotment letter in favour of their predecessors in interest or an order of a competent court or of the authority under Section 15 of the Rajasthan Tenancy Act, 1955 (hereinafter “the Act of 1955”) was of no consequence. It is submitted that the petitioners' predecessors in interest, Samanta and Chiranji, were entitled to khatedari by operation of Section 15 of the Act of 1955 having been in possession of the disputed land in Samvat 2010 and in 2012 when the Act of 1955 came into force. These aspects of the matter having been overlooked by the Collector in his opinion on the Tehsildar's reference and the Board in its judgment dated 25.01.2010, the judgment deserves to be set aside and the mutations in favour of the petitioners in the revenue records evidencing their khatedari sustained. 3. Heard the counsel for the petitioners and perused the impugned dated 25.01.2010, passed by the Board. 4. Section 15 of the Act of 1955” deals with “khatedar tenants” and details those entitled to conferment of such right. 3. Heard the counsel for the petitioners and perused the impugned dated 25.01.2010, passed by the Board. 4. Section 15 of the Act of 1955” deals with “khatedar tenants” and details those entitled to conferment of such right. Sub-section (2) of Section 15 provides that notwithstanding anything contained in sub-section (1) khatedari rights shall not accrue to any person to whom land had been let out before the commencement of the Act of 1955 by the State Government inter alia under some special order and subject to some specified conditions. Sub-section (3) of Section 15 provides that any person referred to in sub-section (2) may within three years from the date of commencement of the Act of 1955 and on payment of the court-fee of twenty five naye paise apply to the Assistant Collector having jurisdiction praying for a declaration that he has acquired khatedari right under sub-section (1) in the land held by him. Sub-section (4) of Section 15 details the grounds on which the application under sub-section (3) can be made. Subsection (5) of Section 15 thereafter provides that the Assistant Collector shall upon the presentation of an application under sub-section (3) make inquiry in the prescribed manner and afford reasonable opportunity to the applicant of being heard and shall, if he does not reject the application, allow the application. 5. From the facts on record, it is clear that khasra No.515 admeasuring 46 bighas in Kasba Bharatpur at the time of the commencement of the Act of 1955 (Samvat 2012) was recorded as Sawai Chak (Government Land). It is also established from the facts of the case that the aforesaid land was at no point of time allotted to any person. Nor in respect thereof any person obtain a declaration of khatedari rights by a competent court. 6. It is also an admitted fact in the present case that no application to the Assistant Collector was made by the petitioners' predecessors in interest, including Samanta and Chiranji, seeking conferment of khatedari rights by operation of law. Instead the Tehsildar, Bharatpur acting without jurisdiction proceeded to confer khatedari rights on the predecessors in interest of the petitioners in 1985. Consequent to which mutation Nos.717, 724, 800 & 828 were opened in their names. Instead the Tehsildar, Bharatpur acting without jurisdiction proceeded to confer khatedari rights on the predecessors in interest of the petitioners in 1985. Consequent to which mutation Nos.717, 724, 800 & 828 were opened in their names. The Board has found that nothing from the record evidenced that aside of a temporary allotment for one year in samvat 2014 (1957) any permanent allotment was made or Patta issued to the predecessors in interest of the petitioners consequent to which they could claim to be the khatedar tenants. Further the land in issue was within Bharatpur municipal limits and for this reason too could not have been permanently allotted. In the circumstances, the action of the Tehsildar, Bharatpur conferring khatedari rights purportedly under Section 15 of the Act of 1955 was wholly without jurisdiction as he had no such powers and his act was in the cross-hairs of Section 15 Sub-sections (2), (3), (4) of the Act of 1955. The conferment of khatedari rights by the Teshildar was thus clearly fraudulent and collusive. In these circumstances, the Board concluded as had the Collector, Bharatpur that the order of the Tehsildar, Bharatpur in-1985 conferring khatedari rights on the petitioners' predecessors in interest was null and void and of no effect. And so were the consequent mutations bearing Nos. 717, 724, 800 & 828. In the circumstances, mutations in favour of the petitioners resulting from inheritance or as also assignment by sale resulting in mutation Nos.1602 & 1604 were liable to be declared null and void. Reference was made by the Board to the judgment of this Court reported in 1996 RRD 563 to hold that any conferment of khatedari rights under the Act of 1955 or otherwise through fraudulent means on the bedrock of collusion with revenue officers acting without jurisdiction would not obstruct the exercise of power of reference under the Act of 1956 and further on such fact situation obtaining, there was no limitation as to time within which the power of reference under the Act of 1956 could be invoked/exercised. 7. Heard. Considered. 8. 7. Heard. Considered. 8. In my considered opinion, this petition filed on 12.12.2013 against the Board's impugned judgment dated 25.01.2010 is liable to be dismissed on the ground of laches inasmuch as the putative reason for the delay in filing the petition, i.e. the Board's judgment being passed against dead person i.e. Chiranji is falsified from the fact on record that following Chiranji's death his LRs were impleaded and served before the Board of Revenue. This fact has been suppressed by the petitioner No.3, who himself was served. Consequently, the petition is liable for dismissal for the petitioners not having approached this Court with clean hands. in there also no force in the contention of the petitioners' counsel based on assertion of khatedari rights based on possession. It has been held in State of Rajasthan v. Jeeva [1988 RRD 14] that no khatedari rights can accrue on the basis of possession. Similarly argument of the petitioners' counsel, though not pleaded in the writ petition, that the petitioners were entitled to the benefit of the presumption of Section 140 of the Act of 1956, which was allegedly not rebutted by the State, is wholly untenable. It is well settled that khasra girdawari is not a record of rights or an annual register as a Jamabandi is where entries are recorded after attestation by the parties. A khasra girdawari is not subject to complete scrutiny by the revenue officer/s who only check for its veracity by sample check. Hence the presumption of khatedari under Section 140 of the Act of 1956 is not available for entries of a khasra girdawari which may be relevant to the question of possession alone. In this regard, reference can be made to the case of Shri Panne Singh v. Guman Singh [1965 RRD 101] , Salya v. Harchandi & Anr . [1994 RRD 449] and Rajole Ram v. Ramji Lal [1992 RRD 658] . Further in any event it would be in place to record that even in respect of entries in the record of rights i.e. Jamabandi, they can be presumed to be true only if made in accordance with applicable provisions, established practise and due care. [1994 RRD 449] and Rajole Ram v. Ramji Lal [1992 RRD 658] . Further in any event it would be in place to record that even in respect of entries in the record of rights i.e. Jamabandi, they can be presumed to be true only if made in accordance with applicable provisions, established practise and due care. In the case at hand, the entries made in the record of rights in favour of the predecessors in interest of the petitioners were made by the Tehsildar without authority of law, quite fraudulently without an allotment or an order of a competent court and hence of no avail. 9. The reasoning of the Board in its judgment/order dated 25.01.2010 is founded upon the clear provisions of law with regard to manner of conferment of khatedari rights. Admittedly the procedure for conferment of khatedari rights under Section 15 sub-section (2)(3)(4) of the Act of 1955 was not resorted to. No application was made to the jurisdictional Assistant Collector. Instead the khatedari rights were conferred by the order of Tehsildar, Bharatpur acting without jurisdiction and therefore were wholly ultra vires to the provisions of the Act of 1955. Nothing perverse, nor any misdirection in law vitiates the impugned order dated 25.01.2010 passed by the Board. 10. In the facts obtaining, I find no force in the petition. 11. Dismissed. 12. Consequent to the dismissal of the writ petition, the status quo order passed by this Court on 03.01.2014 stands vacated.Petition Dismissed. *******