Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1420 (RAJ)

Mohan Singh v. State of Rajasthan

2018-07-03

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. This case has a chequered history, however to examine the contentions, it would be appropriate to first mention the facts relating to the revenue record of the land in question as available on record. Admittedly, the land situate in Village Manpur Devri alias Meenawala Tehsil, Jaipur, bearing khasra No. 24 admeasuring 1 bigha 3 biswas, khasra No. 25 admeasuring 1 bigha 8 biswas, khasra No. 26 admeasuring 9 biswas, khasra No. 27 admeasuring 12 bigha 2 biswas, khasra No. 29 admeasuring 5 bigha 6 biswas, khasra No. 32 1 bigha 8 biswas, khasra No. 33, admeasuring 3 biswas, khasra No. 36, 9 biswas, khasra no. 32/1401 biswa i.e. in all 22 bighas 9 biswas was in the khatedari of one Nand Rani widow of Govind Singh. However, the names came to be entered of Mori, Govinda and Chothu sons of Bhorya as khatedari tenants vide mutation No. 10 and the name of widow was deleted. When the said three persons transferred the piece of land, litigation ensued. 2. The Tehsildar while coming to know of such act, initiated reference proceedings under Sec. 82 of the Land Revenue Act on 22.02.1997 to the Collector against mutation No. 10 whereby the name of widow Nand Rani was deleted and the land was entered in the name of Mori son of Bhorya, Govinda son of Bhorya and Chothu son of Bhorya and whereafter the said land was further entered in the name of other persons vide mutation nos. 34, 44, 45, 46 and 64. The reference proceedings were initiated and on enquiry, it was found that Mori son of Bhorya who was by caste Meena and belonged to Scheduled Tribe, changed his religion to Christianity for the purpose of selling the land, although after his death, all rituals and ceremonies performed as per Hindu Rites. 3. The reference was initiated on the basis of the provision contained under Sec. 46 read with Section 19 of the Rajasthan Tenancy Act, 1955 which allowed letting or subletting by a widow, and therefore, the tenants would not acquire khatedari rights on her land in terms of Section 19 of the Act of 1955. Name of Nand Rani was thus wrongly struck off in mutation No. 10. 4. At the stage of reference, notices were issued to the LRs of Nand Rani i.e. the petitioner Mohan Singh (deceased). Name of Nand Rani was thus wrongly struck off in mutation No. 10. 4. At the stage of reference, notices were issued to the LRs of Nand Rani i.e. the petitioner Mohan Singh (deceased). The other brothers of Moti, Govinda and Chothu were also served with notices and the successive transferees namely Rajeshwari Devi wife of Prakash Chand, Ramesh Chand son of Inder Chand and Bhanwar Mal son of Inder Chand were also issued notices. 5. Vide order dt. 17.11.2004, the Collector answered the reference and set-aside the mutation No. 10 and all successive transfers vide mutation Nos. 34, 44, 45, 46 and 64. However thereafter, Collector did not revert the land back in the name of widow Nand Rani and directed the same to be registered as Siway Chak i.e. Government land and sent the reference for approval to the Board of Revenue. 6. The Board, registered the reference and while upholding the order of the Collector vide its order dt. 06.08.2007, accepted the reference. The petitioner in the present writ petition, who is stated to be the legal representative of the widow Nand Rani has challenged the part of the order passed by the Collector and the Board of Revenue whereby the land has been directed to be now entered as a Government land i.e. Siway Chak. Being aggrieved with order dt. 06.08.2007 with regard to the denial of reverting the land to the widow Nand Rani and her LRs, and treating the land as Government land, the grandson of late Nand Rani namely Mohan Singh filed the Special Appeal before the Division Bench of the Board of Revenue. The same was dismissed on 23.02.2010 and thereafter the review petition was preferred. During the pendency of the review petition Mohan Singh expired and the petitioner, the LR of Mohan Singh, namely Maithli Sharan Sharma preferred an application for substitution on the basis of the registered will dt. 01.06.1990. The application was allowed by the Board however it dismissed the review petition on merits vide its order dt. 17.01.2014. 7. Accordingly, the present writ petition has been preferred with a prayer to set-aside the order passed by the Board of Revenue dt. 17.01.2014 as well as the order dt. 23.02.2010 and the order dt. 01.06.1990. The application was allowed by the Board however it dismissed the review petition on merits vide its order dt. 17.01.2014. 7. Accordingly, the present writ petition has been preferred with a prayer to set-aside the order passed by the Board of Revenue dt. 17.01.2014 as well as the order dt. 23.02.2010 and the order dt. 06.08.2007 passed by the Board whereby it directed the land to be registered in the name of Government as Siway Chak and prays to decide the matter as per the reference dt. 22.02.1997 and the land be allowed to be mutated in revenue records in the name of LRs of Nand Rani who were existing appellant. 8. While the case was pending, an application was moved by the Vikas Samiti of Ashok Vihar scheme for the impleadment and accordingly the Court allowed the application of Ashok Vihar Vikas Samiti and impleaded them as party to the proceedings. The State has filed his reply and submitted that land was taken over under receivership of the Tehsildar in compliance of the order passed by the SDO dt. 05.06.1982, before reference was made and after the reference by District Collector was passed, the land has already been recorded in name of the State vide order dt. 06.08.2007 against which the petitioner's appeal was dismissed on 23.02.2010 and the review was dismissed on 17.01.2014. It is submitted that once it is found that any mutation has wrongly been opened, the land would referred to the original land holder i.e. the State and the petitioner cannot claim that the land after reversion should be entered in the name of the petitioner. 9. Reply to the writ petition was filed by the newly impleaded respondent No. 2 Ashok Vihar Vikas Samiti who have raised an objection, there is no document to prove that the petitioner was the only grandson of Smt. Nand Rani. So far as the Maithli Sharan Sharma is concerned, his representation on the basis of the will was a subject matter of challenge by the respondents before the Competent Authority and it has not been proved that Mohan Singh is the legal heir of Smt. Nand Rani and that Maithili Sharan Sharma is legal representative of Mohan Singh. The actual year of death of Nand Rani was mentioned as 1961 while in the amended suit as in the year 1966. The actual year of death of Nand Rani was mentioned as 1961 while in the amended suit as in the year 1966. In the voters list of State Legislative published on 31.07.1961 and 15.09.1966, name of Nand Rani is not available. It is further submitted that the name of legal heir of Bhorya was on account of the original land being in khatedari of Chanda son of Ganesh and Chaina son of Maida. The same is reflected by the copies of the orders passed by the Settlement, Comparison of Area Samwat 1987 and Khatoni Settlement of Samwat 2015 to 2034 since entry of names of Moti, Govinda and Chothu were never challenged either by Nand Rani or her son or grandson, but the same could not have been disturbed by way of reference. It is further stated that Moti, Govinda and Chothu had sold 15 bigha 2 biswas of land to Smt. Rajeshwari Devi on 15.11.1955 who filed a suit on 11.09.1964 for transfer of rights entitlement against Moti, Govinda and Chothu. The suit was decreed in favour of Smt. Rajeshwari Devi and mutations were accordingly opened for Khasra Nos. 24 to 27 in the name of Rajeshwari Devi on 02.07.1965. It is stated that no objection in the said suit was taken by any person. Later on the said land was sold by Smt. Rajeshwari Devi by sale agreement and final agreement on 16.08.1975 and 26.09.1978, respectively. The Sahakari Samiti developed a residential scheme namely Ashok Vihar and also deposited conversion charges and submitted the list of 127 allottees in the year 1994. 10. When the JDA passed an order on 31.08.2000 executing proceedings under Sec. 90-B and uploaded the map of Ashok Vihar Residential Scheme, rights were created to the plot holders but on account of appointment of receiver, the construction of houses was put on hold. It is also stated that the remaining land of Khasra Nos. 29, 32, 33, 36, 32/140 had been sold by Govinda and Chothu to Moti who sold the land to one Ratan Lal Singhvi vide agreement dt. 24.01.1968. It is also stated that the remaining land of Khasra Nos. 29, 32, 33, 36, 32/140 had been sold by Govinda and Chothu to Moti who sold the land to one Ratan Lal Singhvi vide agreement dt. 24.01.1968. The same was transferred in the name of Bhanwarmal Singhvi on 08.07.1971 and out of the aforesaid land, 7 bigha 7 biswa was sold to Gulab Badi Grah Nirman Sahakari Samiti who developed another residential scheme namely Murtikala Colony and 90-B proceedings were initiated by JDA thereto on 04.12.1999 and lease has also been issued by the JDA to the land holders. 11. Although, it has come on record that deceased Mohan Singh has filed the suit on 14.06.1979 before the Sub Divisional Officer-1, Jaipur for declaration and dispossession against Ratan Chand Singhvi and Smt. Rajeshwari Devi and there was an order of status-quo was passed, the respondent parties in the suit had already sold the land to the housing society, and therefore a receiver was appointed on the lands on 04.06.1982 and presently the land position, the manner as stated. The respondent thus specifically states that the name of Nand Rani itself was wrongfully recorded in the revenue record. It is further stated by the respondent Ashok Vihar Vikas Samiti that they preferred a writ petition before this Court to set-aside the order of reference dt. 06.08.2007 and issued lease deed after regularization which was withdrawn by them with liberty to file fresh. A fresh petition was again moved with prayer for regularization of Ashok Vihar Colony to which the Court directed to make a reference before the JDA Tribunal and the JDA Tribunal reference is pending. In rejoinder, the averments made by the respondent have been denied and all objections have been answered stating in the S.B.C.W.P. No. 17072/2013 filed by the respondent No. 2 has already been dismissed by this Court. It is stated that there is a registered will in favour of the petitioner by late Mohan Singh for becoming a legal representative which was allowed and the said order has not been challenged by any person and has become final. Date of death of Nand Rani was never a question before the Court which is year 1961 as per the plaint originally filed by Mohan Singh in 1979 in SDM Court, Jaipur. Date of death of Nand Rani was never a question before the Court which is year 1961 as per the plaint originally filed by Mohan Singh in 1979 in SDM Court, Jaipur. The land was never belonging to Chada son of Ganesh and Chaina son of Meda as projected by the respondent No. 2. Nand Rani had become owner of the land on the basis of purchase of the said land in government auction and her ownership rights were never challenged by Moti, Govinda and Chothu, Rajeshwari Devi, New Pink Society or any other person apart from respondent No. 2 but the concocted document shows that the Nand Rani was original owner as on 23.11.1947 and the auction proceedings have been placed on record. It is noted that Chanda and Chaina were also present in the said auction but preferred not to bid the auction. The entire sale of subsequent sales of land, possessed by Nand Rani by Moti, Govinda and Chothu were clandestinely made and the name was wrongly entered by the revenue authorities. It is submitted that once the Court found the auction to be wrongful benefit could not come in favour of the State and the land could not have been reverted as government land and the very purpose of Section 46 of the Tenancy Act would stand frustrated if such wrongful auctions are allowed and land in name of widow is taken away from her possession and entered in the name of the government on the basis of a reference made by the Tehsildar. The petitioner, therefore, prays that the land should be entered in the name of the petitioner. 12. The subsequent purchase made by New Pinkcity Grah Nirman Sahkari Samiti members was without any right flowing in their favour and would be liable to be treated as void ab initio since the said Pink City Samiti itself did not have title it could not have given a better title to any of its members. 13. This Court at the time of hearing, on an application of the respondent No. 2, passed an order on 24.01.2017, which reads as under:- "The case has a checkered history thus needs to be narrated. The land in dispute was originally belonging to Nand Rani. It was then mutated in the name of Moti, Govinda and Chothu. 13. This Court at the time of hearing, on an application of the respondent No. 2, passed an order on 24.01.2017, which reads as under:- "The case has a checkered history thus needs to be narrated. The land in dispute was originally belonging to Nand Rani. It was then mutated in the name of Moti, Govinda and Chothu. Those persons belong to Meena Community yet sold the land to general castee candidate namely Rajeshwari Devi though it was not permissible as per Section 42 of the Rajasthan Tenancy Act. The Rajeshwari Devi then sold the land to New Pink City Grah Nirman Sahkari Samiti. A reference to the Board of Revenue was made by the Collector by invoking Section 82 of the Land Revenue Act, 1956. It was taking into consideration that the land belonging to the widow i.e. Nand Rani could not have been mutated in the name of three persons named above. It is hit by Section 46 of the Act of 1955 thus mutation No. 10 onwards was sought to be quashed with further prayer to record the land in question as "Sivai Chak". The reference aforesaid has been answered by the Board of Revenue and found that land of widow could not have been mutated in favour of Moti, Govinda and Chothu. It was in violation of Section 45 and 46 of the Act of 1955. It was also found that even the subsequent sale by Moti, Govinda and Chothu was not legal as they were belonging to Meena caste, whereas, the sale was to a general caste i.e. Rajeshwari Devi. It is hit by Section 42 of the Act of 1955. The implication of Section 42 was also seen. Moti, Govinda and Chothu got converted to Christianity but it was not held valid for sale of the land. A reference to Section 42(B) and 175 of the Act has been given. The applicants are the holders of land allotted by New Pink City Grah Nirman Sahkari Samiti, who purchased the land from Rajeshwari Devi. Smt. Rajeshwari Devi purchased the land in violation of Section 42 of the Act of 1955 thus could not have passed better title to the New Pink City Grah Nirman Sahkari Samiti than possessed. The applicants are the holders of land allotted by New Pink City Grah Nirman Sahkari Samiti, who purchased the land from Rajeshwari Devi. Smt. Rajeshwari Devi purchased the land in violation of Section 42 of the Act of 1955 thus could not have passed better title to the New Pink City Grah Nirman Sahkari Samiti than possessed. It seems that the order under Sec. 90-B of the Act of 1956 was passed ignoring the aforesaid and even during the pendency of the reference application made in the year 1997. It is stated that land came to Rajeshwari Devi pursuant to the decree of the Assistant Collector but then after the reference and now the order of Board of Revenue, the land vests in the Government unless the order of the Board of Revenue is interfered. If any order or sale was made in violation of Section 42 or 46 of the Act of 1955 then it cannot pass on better title than possessed. The facts aforesaid were not brought to the notice of the Court and even before the JDA Appellate Tribunal, though goes in the roots of the case. Now the order of Board of Revenue is against the petitioner as well as those in whose name, the land was mutated. Till it stands, land would be belonging to the Government. The Tehsildar has been appointed as Receiver of the land. I find that the applicants having a contest in regard to the same land thus to avoid multiplicity of litigation, they should be impleaded as party-respondents and, accordingly, application submitted by the Ashok Vihar Vikas Samiti is allowed. They are impleaded as party-respondents. Amended cause title be filed accordingly. The copy of this order would however be sent to the JDA Appellate Tribunal where a reference has been preferred by Ashok Vihar Vikas Samiti so that an order may not be passed in contradiction and in ignorance of the relevant fact narrated in this order because the Ashok Vihar Vikas Samiti may inform only one part of the litigation. The same time parties are directed to produce copy of this order in all the litigations which includes the pending appeal before the Board of Revenue in the hands of the petitioner against the order of 90-B in favour of New Pink City Grah Nirman Sahkari Samiti. The same time parties are directed to produce copy of this order in all the litigations which includes the pending appeal before the Board of Revenue in the hands of the petitioner against the order of 90-B in favour of New Pink City Grah Nirman Sahkari Samiti. The parties would produce receipt of copy of this order by different Court or the Tribunal. In case of failure, appropriate view would be taken against them." 14. The Ashok Vihar Vikas Samiti which comprises of the members, who had purchased the plots from the New Pink City, have submitted written statements and opposed the writ. Learned counsel for the Samiti submits that the land thereafter has been correctly entered in the name of Smt. Nand Rani by mutation. The counsel therefore, submits that provisions of Section 46 (4) of the Act and Section 45 would not be applicable as she died prior to the enactment of Rajasthan Tenancy Act, the provisions thereto would not affect their rights. It is stated further that Ashok Vihar Vikas Samiti had filed earlier a writ petition before this Court with a prayer to quash and set-aside the order of reference dt. 06.08.2007. However, the same was withdrawn and liberty was sought to file fresh writ petition. Prayer had been made for regularization of Ashok Vihar Colony in view of Section 90-B order, however the Court directed to make a reference before the JDA Tribunal and the reference is pending before it for adjudication. It is however submitted that since Mohan Singh is the grandson of Smt. Nand Rani, he did not have right to execute the will in favour of a person other than the member of her family and therefore the will executed in favour of petitioner could not create rights in his favour. 15. Facts of S.B.C.W.P. No. 11654/2015:- Ashok Vihar Vias Samiti preferred this writ petition wherein it has prayed to quash the order dt. 15.09.2015 passed by Board of Revenue in review petition whereby its earlier order dt. 19.02.2015 has been reviewed and the revision petition filed by the respondent has been allowed. By the said order, the petitioner Ashok Vihar Samiti has been held to be neither a necessary party nor a proper party. The order dt. 15.09.2015 passed by Board of Revenue in review petition whereby its earlier order dt. 19.02.2015 has been reviewed and the revision petition filed by the respondent has been allowed. By the said order, the petitioner Ashok Vihar Samiti has been held to be neither a necessary party nor a proper party. The order dt. 29.12.2014 passed by the SDO whereby the petitioner was impleaded as a party has been set aside and the earlier order passed by the Board dt. 19.02.2015 in appeal has also been set-aside. Learned counsel submits that it has entered in shoes of the purchaser Pink City and therefore was a necessary party. The SDO has rightly impleaded them as a party. The petitioner has also raised objection relating to the exercise of power of review by the Board of Revenue and submits that the power of review could have only been exercised if there was any apparent error on face of the record. 16. The present writ petition was replied by the JDA wherein it has been mentioned that the scheme as submitted by the New Pink City Grah Nirman Sahakari Samiti has not been regularized by them and receiver has been appointed on the said land as Revenue Board has recorded the land as a Siway Chak. In the circumstances, the petitioners do not have any locus on the said land nor they can claim it to be land of the New Pink City Grah Nirman Sahakari Samiti. No society can set up a residential colony. The application for impleadment was therefore rightly rejected. 17. The respondent No. 3, who is the petitioner in the connected case has also filed reply pointing out that the petitioners are not the residents of Ashok Vivek Vihar as there was no such scheme and no plots have been converted and the land is in possession of the Tehsildar since 04.06.1982. All the documents are fictitious and Ashok Vihar Samiti is a merely misnomer having no existence. Thus, for these reasons the Revenue Board has reviewed its earlier order as the application was neither supported by an affidavit nor it contained the name of any person, applying for the same. All the documents are fictitious and Ashok Vihar Samiti is a merely misnomer having no existence. Thus, for these reasons the Revenue Board has reviewed its earlier order as the application was neither supported by an affidavit nor it contained the name of any person, applying for the same. It is also pointed out that the conversion charges deposited for the agricultural land was with relation to the scheme known as Ashok Vihar Extension Scheme however the said additional conversion charges does not create in favour of the petitioner as the land belonged to the said respondent and had been wrongly entered in the name of such persons who had no right or title. 18. Having noted the aforesaid submissions, this Court finds that the contentions raised by the Ashok Vihar Samiti are without any substance. They are complete strangers to the litigation. No right is created in their favour since the land was in possession of the Receiver i.e. Tehsildar since 04.06.1982 which was in continuation of an interim order passed by the SDO in suit No. 116/79 dt. 11.07.1979. Thus, the petitioner cannot be said to be a proper or necessary party and the order passed by the Board of Revenue in review does not call for any interference. 19. However, in the interest of Justice, the submissions of the petitioner have already been noted in the connected case and accordingly, therefore, the present writ petition No. 16654/2015 is without merit and the same is rejected. 20. Taking note of the submissions made in S.B.CW.P. No. 2775/2015, as above, this Court finds that while the Board of Revenue has rightly reached to the conclusion that mutation could not have been entered in the name of Mori, Govinda and Chothu and the mutation No. 10 and subsequent mutations have been set-aside following Section 46 of the Act which prohibits khatedari rights in terms of Section 19 of the said Act on the land of a widow Admittedly, the petitioner's ancestor Nand Rani was having the khatedari rights and the land was in her name on the day when the Act come into force. There was no reason to deny her claim in view Section 46. Thus, the name of Moti, Govinda and chothu was wrongly added. 21. There was no reason to deny her claim in view Section 46. Thus, the name of Moti, Govinda and chothu was wrongly added. 21. The contention raised by the respondent Ashok Vihar Vikas Samiti regarding the land being in name of Chanda and Chaina in the year 1930 would make no difference as thereafter the land came to be entered in the name of Smt. Nand Rani in the revenue record and the said entry was never challenged by any person. 22. The question before the Court was only with regard to the subsequent entry made in revenue record on coming into force of the Act of 1955 in favour of Moti, Govinda and Chothu by deleting name of Smt. Nandrani who was a widow. The reference was also made only with regard to the said aspect which has been examined upto the Board. 23. It is also noticed that Nand Rani had become owner of the land by purchasing of the said land in the government auction and thus the contentions of the Samiti that the land would fall in name of Moti, Govinda and Chouthu who are stated to be sons of Bhorya who was the son of Chanda Meena would not arise and the findings of all the three Courts below in this regard do not call for any interference in writ jurisdiction. 24. The question raised by the petitioner before this Court is only limited to the extent whether the land could be rightly treated as Siway Chak after a finding has been arrived at that the land was wrongly noted in names of Moti, Govinda and Chothu on coming force of the Act. 25. Once the Court have reached to the conclusion that the land was required to remain in the name of the widow and the revenue authorities could not have entered the names in place of the widow, at the time of coming into force of the Act of 1955; the same principles would also apply with regard to the entry of the land in the name of the Government. As per Section 46 The widow in whose name the land existed will continue to remain even after the coming into force of the Act of 1955 therefore Government does not have the power to convert the land in khatedari of a person to its own name whereby on account of wrongful act of revenue authorities. If such a course is allowed, the revenue authorities may take over land belonging to any person having khatedari rights by initiating such wrongful action contrary to the provisions and correct it subsequently and declare the land as Sewai Chak. Thus viewed, if the order of Board of Revenue and the Authorities thereunder is allowed to stand, in all cases where wrongfully the land belonging to SC/ST or widow is entered in name of other persons, would become Government land and the very purpose of safeguarding the interest of SC/ST or widow in terms of Sections 42 and 46 of the Act would be rendered otiose and futile. Such was neither the purpose of the legislature nor such interpretation can be given to the provisions of the Act. 26. In the circumstances, the order passed by the Collector and the Board dt. 17.11.2004, 6.8.2007 respectively whereby the reference was accepted, deserves to be modified only to the extent that the land would fall back in name of the concerned widow i.e. Nand Rani and Nand Rani has expired, the land would be entered in the name of the heirs existing. 27. The contention that the grandson of Nandrani could not have bequeathed the land by will in favour of petitioner (Deceased) is without basis and is rejected as the will has not been challenged in any Court of law. Collateral challenge in present proceedings cannot be allowed. 28. In view of the above, the order of the Board dt. 6.8.2007 to the said extent of directing the land to be treated as Siway Chak is quashed and set-aside. The Revenue Authorities are directed to enter the name of the petitioners in terms of the reference. As has come on record, the petitioner being legal heirs, the name of the petitioner be entered in the revenue records. The writ petition No. 2775/2015 is accordingly allowed. 29. In view of the discussion hereinabove, S.B.CW.P. No. 16654/2015 is dismissed. No costs.