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2023 DIGILAW 1606 (RAJ)

Urban Improvement Trust, Udaipur, through its Secretary v. Ratan Lal S/o Vagta

2023-08-25

NUPUR BHATI

body2023
ORDER : (1) The present writ petition has been filed under Articles 226 and 227 of the Constitution of India with the following prayers:- “i) the impugned order dated 28.11.2008 (Annex.P/1) passed by learned S.D.O., impugned judgment dated 21.12.2009 (Annex.P/3) passed by learned Single Member and impugned judgments dated 30.07.2013 (Annex.P/5) and judgment dated 13.11.2014 (Annex.P/7) may kindly be declared as illegal and be quashed and set aside; ii) That if during the pendency of the writ petition the petitioner is dispossessed from the land in question or if the physical possession is taken away by the respondents from the petitioner then the same be declared illegal and the respondents may kindly be directed to restore the possession in favour of the petitioner forthwith with cost; iii) that if any other order/direction/action is passed/ taken during the pendency of the writ petition prejudicial to the interest of the petitioner, the same also be kindly be called for and be declared illegal and be quashed and set aside.” (2) The facts in nutshell giving relevant for the present controversy are that the respondents Nos.4 to 6 and Smt. Kanku Bai (deceased) filed an application under Section 136 of the Rajasthan Land Revenue Act, 1956 (for short, ‘the Act of 1956’) before the Sub Divisional Officer, Girva stating therein that before settlement they were recorded as Khatedars of the land, measuring 5 bighas situated in Khasra No.369/3. Thereafter, the land in question was recorded as Bila-Naam in the new settlement and the same was later on allotted to the petitioner-Trust by the District Collector. The old Khasra No.369 was later on turned to Khasra No.619-625 under the new settlement and the land was also mutated in the name of petitioner-Trust as Mutation No.1628 dated 07.03.2005. Hence, it was prayed by them that the land be re-entered in their names. (3) The Sub Divisional Officer, vide its order dated 28.11.2007 (Annex.P/1) allowed the application aforesaid. Aggrieved by the order dated 28.11.2007, passed by the Sub Divisional Officer, the petitioner preferred an appeal before the Additional Divisional Commissioner, Udaipur which was allowed vide order dated 18.12.2008 (Annex.P/2) setting aside the order dated 28.11.2007, passed by the Sub Divisional officer. (3) The Sub Divisional Officer, vide its order dated 28.11.2007 (Annex.P/1) allowed the application aforesaid. Aggrieved by the order dated 28.11.2007, passed by the Sub Divisional Officer, the petitioner preferred an appeal before the Additional Divisional Commissioner, Udaipur which was allowed vide order dated 18.12.2008 (Annex.P/2) setting aside the order dated 28.11.2007, passed by the Sub Divisional officer. (4) Against the order dated 18.12.2008, passed by the Additional Divisional Commissioner, Udaipur, the respondents Nos.4 to 6 and Smt. Kanku Bai (deceased) filed an appeal before the Board of Revenue, which was allowed vide judgment dated 21.12.2009 (Annex.P/3) while setting aside the order dated 18.12.2008 passed by the Additional Divisional Commissioner and the order dated 28.11.207 passed by the Sub Divisional Officer was restored. (5) The petitioners, being aggrieved with the judgment dated 21.12.2009, preferred special appeal before the Division Bench of the Board of Revenue. Both the members of the Board of Revenue passed separate judgments dated 30.07.2013 (Annex.P/5) and 31.07.2013 (Annex.P/6). Vide judgment dated 30.07.2013, the Member of the Board of Revenue dismissed the appeal, whereas vide judgment dated 31.07.2013, the member of the Board of Revenue allowed the appeal. The matter was, therefore, placed before another member of the Board of Revenue, who vide judgment dated 13.11.2014 (Annex.P/7), agreed with the judgment dated 30.07.2013 (Annex.P/5) whereby the appeal was dismissed. (6) Hence, the petitioners, being aggrieved with the judgments dated 13.11.2014 (Annex.P/7), 30.07.2013 (Annex.P/5) and the judgment dated 28.11.2007 (Annex.P/1), preferred the present writ petition. (7) Learned counsel for the petitioners drew attention of this Court towards the provisions of Section 136 of the Act of 1956, which reads as under:- “136. (6) Hence, the petitioners, being aggrieved with the judgments dated 13.11.2014 (Annex.P/7), 30.07.2013 (Annex.P/5) and the judgment dated 28.11.2007 (Annex.P/1), preferred the present writ petition. (7) Learned counsel for the petitioners drew attention of this Court towards the provisions of Section 136 of the Act of 1956, which reads as under:- “136. Correction of errors – The land Records Officer may, at any time, correct or cause to be corrected in the prescribed manner any clerical errors and any errors which the parties interested admit to have been made in the record of rights or register, or which a Revenue Officer may notice during the course of his inspection in any Register: Provided that when any error is noticed by a Revenue Officer in any record of rights during the course of his inspection, no error shall be corrected unless a notice to show cause has been given to the parties.” It was submitted that as per the provisions of Section 136 of the Act of 1956, the land Records Officer can exercise its jurisdiction only when it is a case of any correction of clerical errors, which the parties interested admit to have been made in the record of rights or register, or which a Revenue Officer may notice during the course of his inspection in any Register. Thus, the impugned orders have been passed without jurisdiction as it was neither a case of any correction nor is the case of any admission of the petitioner-Trust. (8) Learned counsel for the petitioners also submitted that the respondents have filed the application under Section 136 of the Act of 1956 not seeking correction of any clerical error or error in the record of rights, rather they are seeking a direction for entering their names as khatedars-tenants of the land in question, which is not the scope of Section 136 of the Act of 1956. It was submitted that in other words, the respondents are seeking declaration as khatedars-tenants whereas seeking declaration of khatedari rights, the remedy is only by way of filing a suit before the competent revenue court and not the application under Section 136 of the Act of 1956. It was submitted that in other words, the respondents are seeking declaration as khatedars-tenants whereas seeking declaration of khatedari rights, the remedy is only by way of filing a suit before the competent revenue court and not the application under Section 136 of the Act of 1956. (9) Learned counsel for the petitioner also submitted that the learned courts below have exceeded their jurisdiction while deciding the matters in favour of the petitioners as the scope of Section 136 of the Act of 1956 is only to rectify the clerical mistake, that too which is admitted by either of the parties. In the case in hand, the petitioner-Trust has never admitted the mistake. The provisions of Section 136 of the Act of 1956 does not provide for declaration of rights. Apparently, the learned courts below have declared khatedari rights in favour of the petitioners, which is not permissible under the provisions of Section 136 of the Act of 1956. (10) Learned counsel for the petitioners placed reliance upon the judgment of the Hon’ble Supreme Court in the matter of Municipal Board, Barmer Tr. Exec. Officer Vs. State of Rajasthan & Ors. [2015(1) RRT 10 Supreme Court], in which it was observed as under:- “9. The revenue record from 1955 indicate that the land in question was being shown in the name of the State Government at least from 1955. If the respondents have a better title, they were required to prove the same by taking resort to appropriate remedy as may be available to them. In our considered opinion, power vested under Section 136 could not have been exercised by the sub-divisional officer in the present case and particularly in the light of the facts for making changes in the revenue record. For it is a case where the respondents are required to prove their title to the land and once they proves it by cogent and reliable evidence, then only the name of the State could be deleted from the revenue records and in its place the name of the respondents could be inserted. The aforesaid remedy is a remedy available under the law and not through the procedure provided under Section 136 of the Rajasthan Land Revenue Act. Consequently, we set aside the orders passed by both the benches of the High Court and restore the order of the Board of Revenue. The aforesaid remedy is a remedy available under the law and not through the procedure provided under Section 136 of the Rajasthan Land Revenue Act. Consequently, we set aside the orders passed by both the benches of the High Court and restore the order of the Board of Revenue. In the facts and circumstances of the case, we give liberty to be respondents to establish their rights, if any, in the land by filing appropriate civil suit in accordance with law.” (11) Per contra, learned counsel for the respondents Nos. 4 to 6 submitted that Shri Chatra Gameti was allotted 5 bighas land in Khasra No.369/3 and after mutation he was given khatedari rights in the year 1982 and after the death of Chatra Gameti, his legal representatives are in possession over the land in dispute. He submitted that, the land was recorded as billa naam in the land records by mistake and the District Collector was not having any jurisdiction to transfer the land in the name of the petitioner-UIT and the learned Court below has rightly passed the order and thus, prayed for dismissal of the petition. (12) Learned counsel for the respondents Nos.1 to 3 submitted that they are bonafide purchasers of the land in question and they are in occupation of the land legally. It is also submitted that the District Collector wrongly made incorrect entries in the mutation record, which can be rectified by the learned Courts below under the provisions of Section 136 of he Act of 1956. (13) Learned counsel for the respondents also submitted that the powers under Article 227 of the Constitution of India is limited to seeing that the courts of law function within the limits in its authority or jurisdiction. (14) Learned counsel for the respondents placed reliance upon the judgments rendered in the cases of Achal Puri & Ors. Vs. State of Rajasthan & Ors. [2012(2) RRT 814]; Chhota Ram Vs. Board of Revenue, Ajmer & Ors. [AIRonline 2019 Raj.29] and Jodha Ram & Anr. Vs. Board of Revenue & Ors. [S.B. Civil Writ Petition No.6316/2017, decided on 13.10.2017]. (13) Heard learned counsel for the parties and perused the material available on record. Vs. State of Rajasthan & Ors. [2012(2) RRT 814]; Chhota Ram Vs. Board of Revenue, Ajmer & Ors. [AIRonline 2019 Raj.29] and Jodha Ram & Anr. Vs. Board of Revenue & Ors. [S.B. Civil Writ Petition No.6316/2017, decided on 13.10.2017]. (13) Heard learned counsel for the parties and perused the material available on record. (14) This Court finds that after the amendment in Section 136 of the Act of 1956, the State Government issued a circular 20.12.1995, which reads as under:- ^^Hkw izcU/k ds nkSjku Hkw izcU/k deZpkjh@vf/kdkfj;ksa }kjk /kkjk 123 o 125 dh vkM esa dCts ds vk/kkj ij [kkrsnkjh dh Hkwfe dks flok; pd@pkjkxkg ;k blds foijhr flok; pd pkjkxkg dks [kkrsnkjh esa vafdr dj fn;k tkrk Fkk ftlds ifj.kkeLo:i cMh la[;k esa vfu;ferrk,a gqbZ gS ftuls vuko';d eqdnesckth Hkh cढh gS vkSj dCts ds vk/kkj ij ,sls fookn Hkh fuf.kZr dj fn;s tkrs Fks tks muds vf/kdkj {ks= esa ugha FksA bl la'kks/ku ds }kjk /kkjk 122 dks la'kksf/kr fd;k x;k] /kkjk 123 o 125 dks foyksfir fd;k x;k vkSj /kkjk 136 dks izfrLFkkfir fd;k x;kA bl la'kks/ku ds ihNs ewy Hkkouk ;g Fkh fd mijksDr izdkj dh xyfr;ksa dks Bhd fd;k tk ldsA mDr ifji= ds fcUnw la[;k 5 esa ;g Hkh Li"V fd;k x;k gS fd& Hkw izcU/k ds nkSjku ;fn fcuk fdlh l{ke vnkyr ds vkns'k ds fdlh dks [kkrsnkjh vFkok xSj [kkrsnkjh dh d`f"k Hkwfe dks fdlh dh pkjkxkg@flok; pd@jktdh; Hkwfe ntZ dj fn;k x;k gS rks jktLFkku Hkw jktLo vf/kfu;e dh /kkjk 136 ds vUrxZr Hkw vfHkys[k vf/kdkjh }kjk Bhd fd;k tk ldsxk ;k Bhd djk;k tk ldsxkA^^ In the case in hand, the land in question was in the khatedari rights of the respondents before the settlement. However, after the new settlement, the land in question was inadvertently recorded as billa naam and the District Collector, vide Mutation No.1628, mutated in the name of the petitioner-Trust. However, the Sub Divisional Officer, vide order dated 28.11.2007 (Annex.P/1), rectified the mistake, in view of the Circular dated 20.12.1995. However, after the new settlement, the land in question was inadvertently recorded as billa naam and the District Collector, vide Mutation No.1628, mutated in the name of the petitioner-Trust. However, the Sub Divisional Officer, vide order dated 28.11.2007 (Annex.P/1), rectified the mistake, in view of the Circular dated 20.12.1995. (15) In the case of Chhota Ram (supra), this Court observed as under:- “6… the name of khatedar tenant recvorded in Jamabandi cannot be deleted without there being an order of competent authority of hearing and thus, the deletion of the name of Smt. Madki from Jamabandi was apparently an error crept in, which has rightly been ordered to be rectified by the authority concerned invoking the provisions of Section 136 of the Act.” In the case in hand, the land in question was in the khatedari of the respondents before settlement. After settlement, the land was recorded as billa naam, without there being any order of the competent authority. (16) In the case of Achal Puri & Ors. (supra), this Court observed as under:- “11. Be that as it may, assuming for the sake of arguments that the correction of the error as alleged does not squarely fall within the scope of the provisions of Section 136 then too, in considered opinion of this Court, the Board of Revenue has committed no error in rectifying the error by invoking power under Section 9 of the Act. … …” (17) In the case of Jodha Ram & Anr. (supra), this Court observed that when the concurrent findings of all the courts below are based on appreciation and analysis of the evidence on record, the said findings should not be interfered by the High Court in its exercise of power under Article 227 of the Constitution of India, taking into consideration the observations made in the judgment of the Hon’ble Surpeme Court in the case of Nibran Chandra Bag Vs. Mahendra Nath Ghughu [ AIR 1963 SC 1895 ], in which it was observed as under:- “… jurisdiction conferred (under Article 227) is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority...” (18) This Court, thus, observes that the Sub Divisional Officer has the power to rectify the mistake crept in during the settlement proceedings. Further, there are concurrent findings of both the courts below and this Court has got limited power under Article 227 of the Constitution of India as this Court, under its supervisory jurisdiction, cannot sit as an appellate court. (19) In view of the above, this Court does not find any error apparent on the face of record and the writ petition is, therefore, dismissed being devoid of merit. (20) The stay application and all other pending applications, if any, also stand dismissed.