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2022 DIGILAW 1782 (RAJ)

Doli Mandir Shri Thakur Ji v. State of Rajasthan

2022-05-25

SANDEEP MEHTA, VINOD KUMAR BHARWANI

body2022
ORDER 1. The petitioner has filed the instant intra court appeal being aggrieved of the judgment-cum-final order dated 09.07.2021 whereby, S.B. Civil Writ Petition No.8621/2021 preferred by the petitioner with the following prayers, was rejected: "It is therefore most humbly prayed that this writ petition may kindly be allowed:- That by an appropriate writ, order and direction the order dated 08.02.2021 (Annexure-20) Passed by Tehsildar, Jodhpur may kindly be declare highly illegal, arbitrary and against the provision of Act of 1955 and same may kindly be quashed and set aside and further the application (Annexure-18) filed by the respondents, may kindly be rejected. That by an appropriate writ, order and direction the entry of the Jamabandi (Anexure-21) may kindly be directed to restore in the name of petitioner temple Shri Thakur Ji village Pal, Tehsildar Jodhpur may kindly be directed to enter the name of the Doli Banam Temple Shri Thakur Ji in land of village Pal, Khasara No. 93 and 93/1 rakba 81.13 Bigha and Khasra no. 4 Rakba 22 Bigha, 13 Biswa. That by an appropriate writ, order and direction the order dated 01.04.2012 (Annexure-16) Passed by Divisional Commissioner, Jodhpur may kindly be declare highly illegal, arbitrary and against the provision of Act of 1955 and same may kindly be quashed and set aside. That the any other relief, which this Hon’ble Court deems fit to protect and maintained the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed." 2. While entertaining the instant appeal, this Court passed an interim stay order dated 13.09.2021 directing that effect and operation of the order dated 08.02.2021 (Annexure-2) passed by the Tehsildar, Jodhpur shall remain stayed and no third party right shall be created over the disputed land and the status quo as it exists today shall be maintained. 3. The matter is heard today on confirmation of the interim stay order dated 13.09.2021. 4. Shri Moti Singh, learned counsel representing the appellantwrit petitioner, vehemently and fervently urged that at the time of settlement, the land was entered as a Khudkast land of the Temple Shri Thakur Ji and was maintained by its priest. 3. The matter is heard today on confirmation of the interim stay order dated 13.09.2021. 4. Shri Moti Singh, learned counsel representing the appellantwrit petitioner, vehemently and fervently urged that at the time of settlement, the land was entered as a Khudkast land of the Temple Shri Thakur Ji and was maintained by its priest. However, on the basis of some circulars issued by the Department of Revenue and the Devasthan Department, the land came to be entered in the name of the Priest who executed sale deed in favour of certain private persons. 20.13 Bighas of land, which was recorded in the name of Beridas, was transferred to the respondents Prakash Chandra, etc. and their names were entered in the Jamabandi of Samvat 2053-2056 as khatedar tenants. Subsequently, on the basis of a direction given by the State Government and the circulars issued in this regard, it was ordered to delete the name of the priests from the revenue record and to restore the land to the deity. The District Collector, Jodhpur, in turn, issued the order dated 09.12.2004 and directed the Tehsildar to delete the entries of transfer of the deity land to the priests. Hanuman Das and few others challenged the said order dated 09.12.2004 by filing an appeal before the Additional Divisional Commissioner, Jodhpur which was dismissed vide order dated 01.06.2005. 5. Shri Moti Singh urges that the said order dated 1.6.2005 was never challenged and thus, has attained finality but despite that, the Divisional Commissioner entertained and accepted another highly belated appeal and set aside the order dated 9.12.2004 by order dated 1.4.2012. He urges that the order passed by the learned Divisional Commissioner as a consequence whereof, the questioned order dated 8.9.2021 has been passed, is absolutely arbitrary, illegal and hence, the court rightly passed the interim stay order which should be confirmed. 6. Per contra, Shri Rajesh Joshi learned Senior Counsel assisted by Shri Chandraveer Singh appearing for the private respondents urges that the petitioner appellant has concealed material facts while filing the writ petition. He contended that the land in question had been purchased by one Shri Shyam Bothra through a registered sale deed. 6. Per contra, Shri Rajesh Joshi learned Senior Counsel assisted by Shri Chandraveer Singh appearing for the private respondents urges that the petitioner appellant has concealed material facts while filing the writ petition. He contended that the land in question had been purchased by one Shri Shyam Bothra through a registered sale deed. Shri Shyam Bothra who had not been heard in the earlier round of litigation, questioned the validity of the order dated 9.12.2004 by filing an appeal before the Divisional Commissioner, wherein the petitioner temple was impleaded as a party. The appeal of Shri Shyam Bothra was allowed by the Divisional Commissioner vide order dated 10.4.2012; the order dated 9.12.2004 was set aside and it was directed to restore the mutation entry made in favour of Prakash Chandra. The State Government preferred a revision against the order dated 10.4.2012 which was dismissed by the learned Board of Revenue by order dated 4.3.2014. The State Government challenged these orders including the order dated 4.3.2014 passed by the Board of Revenue by filing a writ petition being S.B.Civil Writ Petition No.205/2015, wherein Shri Shyam Bothra was impleaded as a party respondent. In the said writ petition, the stay application preferred by the State Government was dismissed and the Special Appeal preferred there-against has also been rejected by the Division Bench by order dated 21.8.2017. Shri Joshi submits that the petitioner appellant has failed to implead Shri Shyam Bothra, the registered owner of the land in question as a party respondent in the writ petition. The order passed by the Board of Revenue referred to supra has also not been challenged in the writ petition. The petitioner appellant, got an impleadment order in the Writ Petition No.205/2015 but in Appeal No.638/2021 filed by Shri Shyam Bothra, he has been given liberty to seek review/recall of the order of impleadment. The review/recall application is still pending. He thus urges that the petitioner does not have any ground to seek a stay in these proceedings because the registered owner of the land in question has intentionally not been impleaded as a party respondent in the writ petition as well as in the appeal and also because the order passed by the Board of Revenue has not been assailed in the writ petition. 7. We have heard the arguments advanced at the bar and have gone the material available on record. 8. 7. We have heard the arguments advanced at the bar and have gone the material available on record. 8. The petitioner filed the writ petition before the learned Single Bench for assailing the order dated 08.02.2021 passed by the Tehsildar, Jodhpur and (i) to restore the name of the petitioner Temple in the revenue record; (ii) to quash the order dated 10.04.2012 passed by the Divisional Commissioner, Jodhpur. The learned Single Judge considered the issues raised before it in light of the judgment of Full Bench of this Court in the case of Tara and Ors. vs. State of Rajasthan, reported in 2015(3) RLW 2721 (Raj.) (on which heavy reliance was placed by Shri Moti Singh) and held as below: "Having heard learned counsel for the petitioner and having perused the material available on record, it is noticed that against the order dated 10.04.2012, the State of Rajasthan had preferred an appeal before the Board of Revenue, which came to be dismissed on 04.03.2014 and being aggrieved with that the State of Rajasthan preferred a writ petition before this Court and a Coordinate Bench of this Court had dismissed the stay petition against which, the State of Rajasthan had preferred D.B.Special Appeal Writ No.736/2016, wherein, initially the Division Bench, on 11.11.2016, while issuing notices of the appeal had ordered for maintaining status quo with regard to the land in question but later on the said D.B.Special Appeal Writ No.736/2016 was dismissed by the Division Bench of this Court vide judgment dated 21.08.2017. The judgment dated 21.08.2017 reads as under: ’An appeal is preferred to challenge the order dated 08.07.2016, whereby learned Single Bench dismissed the stay petition. In appeal, the only argument advanced by learned counsel for the appellant is that the instant matter pertains to a land which was entered in the Revenue records as of deity’s land and in the event of denial of the interim order as prayed for, the respondents would be in position to change the entire nature of the land and also be able to further transfer the same. We are of the considered opinion that for such eventualities, adequate care is taken by the law and therefore, the denial of interim order in no manner will adversely affect any right of the appellant. The appeal, hence, is dismissed. We are of the considered opinion that for such eventualities, adequate care is taken by the law and therefore, the denial of interim order in no manner will adversely affect any right of the appellant. The appeal, hence, is dismissed. The appellant-petitioner is at liberty to move an application for early hearing of the writ petition before learned Single Bench.’ While allowing the appeal vide order dated 10.04.2012, the Divisional Commissioner has recorded a finding to the effect that the land in question was not khudkasht land of the petitioner-temple but was cultivated by its Pujari. After observing this, the Divisional Commissioner has placed reliance on the decision of the Revenue Board, Ajmer dated 12.04.2007 as also on the orders passed by the District Collector, Jodhpur dated 27.06.2008 and 30.04.2010 respectively and further directed the Tehsildar, Jodhpur to make sure the compliance of the above referred orders. It was also noticed by the Divisional Commissioner that the orders of the conversion of the land in question took place in the year 1985 be also recorded in the revenue record. So the position as of today is that there is no stay operating against the order dated 10.04.2012 passed by the Divisional Commissioner, Jodhpur. The Tehsildar, Jodhpur, relying on the decision of the Divisional Commissioner dated 10.04.2012 has passed the impugned order dated 08.02.2021 (Annexure-20). This writ petition is filed by Shri Sukha Ram claiming himself as devotee-cum-priest of petitioner - Doli Mandir Shri Thakur Ji, however, no such material, in support of his claim of being the priest of the petitioner-temple, is placed on record. Having regard to the facts and circumstances of the case, this Court is of the opinion that if the petitioner has any locus, then he has an adequate alternate remedy under the provisions of Rajasthan Land Revenue Act to challenge the action of the Tehsildar of sanctioning the mutation in favour of the private respondents. In view of the above facts and circumstances of the case, I do not find any merits in this writ petition, hence, it is dismissed. Stay petition also stands dismissed.’ (Emphasis Supplied) 9. In view of the above facts and circumstances of the case, I do not find any merits in this writ petition, hence, it is dismissed. Stay petition also stands dismissed.’ (Emphasis Supplied) 9. The learned Single Bench noticed that the State had preferred S.B. Civil Writ Petition No.205/2015 for assailing the order dated 04.03.2014 and the stay application filed alongwith the said writ petition was dismissed and the order dismissing the stay petition was affirmed by the Division Bench vide order dated 21.08.2017. 10. This Court is apprised that in the said writ petition, the petitioner filed an impleadment application (No.01/2021) which was initially allowed by order dated 09.09.2021 but the same was challenged by the registered owner of the land Shri Shyam Bothra by filing D.B. Civil Special Appeal No.638/2021 which was disposed of vide order dated 15.02.2022 with liberty to seek review/recall of the impleadment order by bringing to the notice of the Court the order dated 09.07.2021 passed in S.B. Civil Writ Petition No.8621/2021. In furtherance thereof, an application (03/2022) came to be filed for recalling the order dated 09.09.2021 which is pending consideration. 11. The most important fact forthcoming when the entire material is seen that the appellant herein was aware of the fact that the order dated 10.04.2012 was passed in an appeal preferred by Shri Shyam Bothra. Despite that, the appellant intentionally did not implead Shri Shyam Bothra, who is the purchaser of the disputed land through a registered sale deed, as a party respondent in the writ petition. The appellant did not challenge the order dated 4.3.2014 passed by the Board of Revenue in the Single Bench writ petition and has rather, laid challenge to the order dated 10.04.2012 passed by the Divisional Commissioner, Jodhpur and the consequential order dated 8.2.2021 passed by the Tehsildar. Manifestly, the order dated 10.4.2012 has merged in the order dated 4.3.2014 passed by the Board of Revenue while exercising the revisional jurisdiction. In the earlier round of litigation, the Division Bench has already made it clear that denial of interim order would not in any manner adversely affect any right of the appellant. 12. In wake of the discussion made herein above, we are of the firm opinion that there are no valid and just grounds for confirming the interim stay order dated 13.09.2021 granted in favour of the appellant which is vacated. 12. In wake of the discussion made herein above, we are of the firm opinion that there are no valid and just grounds for confirming the interim stay order dated 13.09.2021 granted in favour of the appellant which is vacated. The stay application is thus rejected. 13. Office to proceed.