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2015 DIGILAW 760 (RAJ)

Kundan Kanwar v. Board of Revenue, Rajasthan, Ajmer

2015-04-06

ARUN BHANSALI

body2015
JUDGMENT 1. - This Writ Petition under Article 227 of the Constitution of India is directed against Judgment dated 8.12.2014 passed by the Board of Revenue, Rajasthan, Ajmer ('Board'), whereby, the Appeal filed by the petitioner against order of the Additional Divisional Commissioner, Jodhpur ('Commissioner') dated 28.2.2011 has been rejected. The Commissioner had rejected the Appeal filed by the petitioner against Order dated 9.7.2009 passed by the Sub-Divisional Officer, Jodhpur ('S.D.O.') on an application filed by the Respondent Nos. 2 to 4 under Section 128 of the Rajasthan Land Revenue Act, 1956 ('the Act). 2. An application was filed by the Respondent Nos. 2 to 4 under Section 128 of the Act seeking determination of boundaries before the S.D.O. 3. The application was opposed by the petitioner and the S.D.O. directed that a team under the Chairmanship of Nayab Tehsildar, Jodhpur be constituted, whose members would be Patwari Karwar, Patwari Bhawad and Land Record Inspector, Mathaniya, further, the team would take help from the settlement Department and would indicate the boundaries and in case of requirement can take police help as well. 4. Feeling aggrieved, the petitioner filed an Appeal before the Commissioner. 5. The Commissioner by his Order dated 28.2.2011 noticed that the main objection of the appellant-petitioner was that the land should have been got measured by the Settlement Department, whereas, the S.D.O. has formed a team of employees of Revenue Department and before directing the same, the resolution of boundary dispute was necessary. 5. The Commissioner by his Order dated 28.2.2011 noticed that the main objection of the appellant-petitioner was that the land should have been got measured by the Settlement Department, whereas, the S.D.O. has formed a team of employees of Revenue Department and before directing the same, the resolution of boundary dispute was necessary. The Commissioner, whereafter noticed the following- " geus cgl ds nkSjku v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; fnukad 9-7-2009 ,oa bl U;k;ky; dh i=koyh esa miyC/k lhekadu QnZ fnukad 18-6-2010 rFkk 8-7-2010 dk voyksdu fd;kA bl U;k;ky; esa vihy is'k djus ds i'pkr Hkh mDr fookfnr Hkwfe dk lhekKku Hkw&izca/k foHkkx ls djokus ds vihykaV ds gh fuosnu ij Hkw&laca/k foHkkx tks/kiqj dks Hkw&izca/k foHkkx dh Vhe xfBr dj nksuksa i{kksa dh ekStwnxh esa iSekbZ'k djokdj fjiksVZ izLrqr djus ckcr U;k;ky; fMohtuy dfe'uj tks/kiqj ls fnukad 26-5-2010 dks fy[kk x;kA ftl ij Hkw&izca/k foHkkx tks/kiqj ds dk;kZy; vkns'k fnukad 3-6-2010 ls Hkw&izca/k foHkkx ds fujh{kd dsljhpan ,oa Hkw&ekid lqcsflag dks rSukr dj ekSds dj nksuksa i{kksa dh ekStwnxh esa fnukad 18-6-2010 dks iSekbZ'k dj fjiksVZ izLrqr djus ckcr vknsf'kr fd;k tkus ij lsVyesaV foHkkx dh Vhe }kjk Hkw&vfHkys[k fujh{kd ,oa iVokjh gYdk dks lkFk nksuksa i{kksa dh mifLFkfr esa ekSds ij fookfnr Hkwfe dk lhekadu fd;k tkdj lhekadu QnZ cukbZ xbZA ftl ekSdk QnZ ij vihykaV ,oa muds iq= us gLrk{kj djus ls badkj djus ,oa visf{kr lg;ksx ugha djus ij lhekadu dk;Z iw.kZ ugha gks ldkA U;k;ky; fMohtuy deh'uj tks/kiqj ls iqu% Hkw&izca/k vf/kdkjh tks/kiqj dks iqfyl bZenkn ds lkFk lhekKku dj ikyuk izLrqr djus gsrq fnukad 1-7-2010 dks fy[kk x;kA Hkw&izca/k foHkkx tks/kiqj ds dk;kZy; vkns'k 7-7-2010 }kjk xfBr Vhe }kjk iqu% fnukad 8-7-2010 dks Hkw&izca/k foHkkx ds rduhdh lg;ksxh }kjk crk;s x;s uke vuqlkj ekSds ij tjhc pykbZ tkdj QhYM cqd rS;kj dh tkdj lhekadu QnZ rS;kj dj izLrqr dh] tks rglhynkj tks/kiqj dh fjiksVZ fnukad 16-8-2010 ls layXu i=koyh esa uRFkh gSA vr% mijksDr foospu ,oa fo'ys"k.k ds vk/kkj ij lsVyesaV foHkkx dh Vhe }kjk dh xbZ lhekadu fjiksVZ fnukad 8-7-2010 ds vk/kkj ij dk;Zokgh djus ds vkns'k rglhynkj tks/kiqj dks fn;s tkrs gS] bl funsZ'k ds lkFk vihy dk fuLrkj.k fd;k tkrk gSA " 6. A look at the observations made reveals that the Commissioner at the request/objection of appellant directed the Settlement Department to constitute a team and take measurements in the presence of both the parties; whereafter, the measurements were done in the presence of the parties on 18.6.2010, on which, the petitioner and her son refused to sign; whereafter again the requisition was sent on 1.7.2010 to the Settlement Department to do the same with the Police help, which was done on 8.7.2010 and report dated 16.8.2010 was produced and, therefore, the Commissioner directed the Tehsildar, Jodhpur take steps accordingly. 7. 7. The petitioner filed Second Appeal before the Board and the Board in its judgment dated 8.12.2014 noticed as under- " 7- i=koyh ij myyC/k vk{ksfir fu.kZ; ls Li"V gS fd izR;FkhZ la[;k 1 ls 3 us ,d izkFkZuk&i= vUrxZr/kkjk 128 jktLFkku Hkw&jktLo vf/kfu;e ds rgr ijh{k.k U;k;ky; ds le{k izLrqr dj fookfnr Hkwfe dh us[kecanh djkus dk fuosnu fd;k] ftuds }kjk vius fu.kZ; fnukad 9-7-2009 ds rgr izkFkZuk&i= Lohdkj dj fookfnr Hkwfe dh iRFkjx<+h djus ds vkns'k tkjh fd;s x;sA mDr vkns'k ls O;fFkr gksdj vihykaV us vihy vfrfjDr laHkkxh; vk;qDr tks/kiqj ds le{k izLrqr dhA vihykaV dk eq[; ,rjkt ;g gS fd fookfnr Hkwfe dk uki lsVyesaV foHkkx ls dkjokbZ tkuh Fkh] ysfdu v/khuLFk U;k;ky; }kjk jktLo foHkkx ds deZpkfj;ksa dh Vhe xfBr dj iRFkjx<+h dk vkns'k ikfjr fd;k x;k gSA vihykaV dk ;g Hkh ,rjkt gS fd iRFkjx<+h ls iwoZ Hkwfe dk lhekKku djok;k tkuk vko';d gSA 8- vihy i=koyh esa ekStwn v/khuLFk U;k;ky; }kjk ifjr fu.kZ; 9-7-2009 ,oa vfrfjDr laHkkxh; vk;qDr] tks/kiqj dh i=koyh esa miyc/k lhekadu QnZ fnukad 18-6-2010 ,oa 8-7-2010 dk vokysdu fd;k x;kA vfrfjDr laHkkxh; vk;qDr tks/kiqj us vihy is'k gksus ds ckn fookfnr Hkwfe dk lhekKku Hkw&izca/k foHkkx ls djokus ds vihykaV ds gh fuosnu ij Hkw&izca/k foHkkx tks/kiqj dks Hkw&izca/k foHkkx dh Vhe xfBr dj nksuksa i{kksa dh ekStwnxh esa eki djok dj fjiksVZ izLrqr djus ckcr U;k;ky; laHkkxh; vk;qDr] tks/kiqj ls fnukad 26-5-2010 dks fy[kk x;k gS] ftl ij Hkw&izca/k foHkkx] tks/kiqj ds dk;kZy; vkns'k fnukad 3-6-2010 ls Hkw&izca/k foHkkx ds fujh{kd ,oa Hkw&ekid dks rSukr dj nksuksa i{kksa dh mifLFkfr esa iSekbZ'k dj fjiksVZ is'k djus ckcr vkns'k fn;s tkus ij Hkw&izca/k foHkkx dh Vhe }kjk Hkw&vfHkys[k fujh{kd ,oa iVokjh ds lkFk nksuksa i{kksa dh ekStwnxh esa fookfnr Hkwfe dk lhekadu fd;k tkdj lhekadu QnZ cukbZ xbZ gS] ftl ij vihykaV o mlds iq= us gLrk{kj djus ls euk dj fn;kA blds mijkar iqu% fnukad 8-7-2010 dks Hkw&izca/k foHkkx ds rduhdh lg;ksxh }kjk crk, x, eki vuqlkj ekSds ij tjhc Mky dj QhYM cqd rS;kj dh tkdj lhekadu QnZ rS;kj dh xbZ gSA bl izdkj i=koyh esa miyC/k vfHkys[kksa ,oa lk{; ds ifjizs{; esa ge v/khuLFk U;k;ky;ksa }kjk ikfjr fu.kZ;ksa esa fdlh izdkj dk fof/k ,oa rduhdh =qfV ugha ikrs gS] ftlls v/khuLFk U;k;ky;ksa ds fu.kZ; esa fdlh izdkj dk gLr{ksi fd;k tk ldsA " Consequently, the Appeal was dismissed. 8. 8. It is submitted by learned Counsel for the petitioner that the proceedings under Section 128 of the Act was not maintainable and it is only under Section 111 of the Act that the proceedings could take place and, as such, the authorities below were not justified in passing the orders impugned. 9. I have considered the submissions made by learned Counsel for the petitioner. 10. A bare look at the provisions of Section 128 of the Act reveals that all disputes concerning boundaries are required to be decided by the Land Records Officer in the manner laid down in Section 111 and Section 111 of the Act whereafter provides for decision of disputes as to boundaries based on existing survey maps and/or the basis of actual possession. 11. As noticed hereinbefore, the principal objection raised by the petitioner, as noticed by the Commissioner, was that the boundaries have to be ascertained by the Officers of the Settlement Department and the Commissioner during the pendency of the Appeal twice passed the orders for the officers of the Settlement Department to demarcate the boundaries, the petitioner and her son despite presence did not sign the report in the first instance and whereafter the Commissioner directed determination of boundaries with the police help by the Officers of the Settlement Department, which was done by them and the report was produced by them, which was accepted by the Commissioner and he passed orders accordingly. 12. In view of the fact that the principal objection raised by the petitioner was taken care of by the Commissioner by directing the determination of boundaries by the Settlement Department, the Board rightly found on reason to interfere with the order passed by the Commissioner. 13. In view of the concurrent findings recorded by three authorities below.no interference is called for in the present Writ Petition under Article 227 of the Constitution of India. 14. 13. In view of the concurrent findings recorded by three authorities below.no interference is called for in the present Writ Petition under Article 227 of the Constitution of India. 14. So far as the plea raised by the petitioner regarding applicability of Section 111 of the Act is concerned, as noticed hereinbefore, the application under Section 128 of the Act is to be dealt with as per the procedure laid down under Section 111 of the Act and once the objection raised by the petitioner stood redressed by the Commissioner by appointing team of the Settlement Department to demarcate the boundaries, the petitioner cannot be heard to raise objection about non-compliance of the-provisions of Section 111 of the Act.In view of the above discussion, no case for interference is made out. The Writ Petition as well as Stay Petition are dismissed.Petition dismissed. *******