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S.B. CIVIL WRIT PETITION NO.4948/2006.
State of Rajasthan Vs. Kana Ram & Ors.
Date of Order :: 24th March 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Sandeep Bhandawat, GC, for the petitioners.
Mr. S.D.N. Bhatt ]
Mr. S.G. Ojha ], for the respondents.
....
BY THE COURT:
By the order dated 03.04.2001 as drawn in Reference
Application No.16/1994, the Collector, Jodhpur proceeded to
make a reference to the Board of Revenue for setting aside
mutation No. 314 as effected in relation to the land comprised
in khasra Nos.910/747 and 910/1/747 at Khema-ka-kua,
Tehsil Jodhpur.
On the basis of a complaint made to him, the learned
Collector noticed that the father of the non-applicants
(respondents Nos. 1 to 3 herein) had been a trespasser over
the said land comprised in khasra Nos.910/747 and 910/1/747
that was a Government land falling within the municipal limits;
and that the Tehsildar, Jodhpur adopted proceedings under
Section 91 of the Rajasthan Land Revenue Act, 1956 (‘the Act
of 1956’) and directed dispossession while imposing fine but
then, the said proceedings under Section 91 of the Act of
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1956 were dropped upon taking of an appeal to the Additional
Collector, Jodhpur. The learned Collector observed that
merely for dropping of the proceedings under Section 91 of the
Act of 1956, the non-applicants did not acquire khatedri rights
in the land in question but during a revenue campaign, the
Assistant Collector proceeded to issue a sanction in favour of
the non-applicants on the basis of the order passed in the
said appeal arising out of the proceedings under Section 91 of
the Act of 1956 that led to the disputed mutation No.314. The
learned Collector opined that such a communication from the
Assistant Collector was not authorised by law; and the
disputed mutation No.314 having not been effected on the
basis of a competent order, was liable to be set aside.
The reference so made was taken up for consideration
by the Board of Revenue in Reference Case No. 582/2001. It
was argued before the Board of Revenue in support of the
reference that a similar nature Reference Case No. 266/1986:
State Vs. Ganga Ram had already been allowed wherein
mutation No. 315 dated 03.07.1979 was ordered to be set
aside. It was, however, contended on behalf of the non-
applicants that the land in question in the present case was
earlier comprised in khasra No. 747/20 and in its relation, the
Sub Divisional Officer, Jodhpur, while allowing an application
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moved under Section 15 of the Rajasthan Tenancy Act, 1955
(‘the Act of 1955’), declared khatedari rights in favour of the
father of the non-applicants by the order dated 28.11.1956.
The non-applicants contended that the said one was an order
passed by the competent court under Section 15 (5) of the Act
of 1955 and had attained finality. The non-applicants further
contended that themselves and their ancestors had been in
possession of the land in question even before Svt. Year
1997 and referred to the documentary evidence in that regard.
It was asserted that the mutation in question had not been
sanctioned merely on the basis of dropping of the proceedings
under Section 91 of the Act of 1956 but was essentially based
on the order passed under Section 15 of the Act of 1955. It
was also pointed out that after the mutation in question, the
land had been permitted to be divided; and further mutation
No. 526 dated 25.08.1986 had been effected in that regard.
While submitting that the reference was a highly belated one
and was made only on the basis of a complaint that was
lodged for personal enmity, the non-applicants also pointed
out that the Board of Revenue had dismissed the similar
nature reference cases on 07.09.1987.
The learned Member of the Board found that the
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contentions as urged before him by the counsel for the non-
applicants were definitely urged before the Collector, Jodhpur
but while making the reference, the learned Collector did not
dilate on such points nor even examined the evidence. The
learned Member also found that the order as passed under
Section 15 of the Act of 1955 granting khatedari rights to the
non-applicants and their father was neither taken into
consideration by the Collector in his reference order nor was it
shown if the said order was ever challenged. The learned
Member also referred to the fact that upon the land in question
falling within the municipal limits, the Urban Improvement
Trust, Jodhpur did move an application to the Collector
concerned for making a reference but then, such an
application came to be rejected as withdrawn.
The learned Member of the Board of Revenue noticed
the facts that the mutation in question was effected as back as
on 28.12.1978 and ever since the year 1979, the land stood
recorded in the names of the non-applicants; and also found
correct the fact that further mutation No. 526 was effected after
the division was agreed to by the Tehsildar in his order dated
25.08.1986. The learned Member referred to the decision of
this Court in the case of Anandi Lal Vs. State of Rajasthan &
Ors. : 1996 (1) RLW 396 to find that reference could not be
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permitted after an inordinate delay; and observed that in any
case, for the order under Section 15 of the Act of 1955 having
become final in favour of the non-applicants, the reference
was liable to be rejected.
The learned Member also considered the contentions as
urged on behalf of the petitioners about other Reference Case
No. 266/1986 having been allowed in relation to mutation No.
315 but observed that in the said case, the land in question
was found to have been given to the Urban Improvement Trust
for abadi extension and the disputed mutation was set aside
for the Urban Improvement Trust having not been heard.
The learned Member pointed out that the position in the
present case was entirely different and rather, the reference
proceedings as adopted by the Urban Improvement Trust in
relation to the land in question stood terminated way back in
the year 1995.
The petitioner State of Rajasthan through the Tehsildar,
Jodhpur has preferred this writ petition seeking to challenge
the order so passed by the Board of Revenue rejecting the
reference made by the Collector. While examining this writ
petition and looking to the observations made in the order
passed by the Board of Revenue, it was considered
appropriate to hear the Urban Improvement Trust, Jodhpur in
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this matter and the petitioner was, therefore, directed to
implead the said Urban Improvement Trust as party-
respondent by the order dated 12.09.2008. Thereafter, for the
said Urban Improvement Trust having been substituted by the
Jodhpur Development Authority, Jodhpur, such directions
were modified on 12.12.2008 and the said successor of Urban
Improvement Trust, Jodhpur, i.e., the Jodhpur Development
Authority, Jodhpur was ordered to be impleaded as party-
respondent.
Upon being served with a notice in this matter,
submissions have been made on behalf of the Jodhpur
Development Authority, Jodhpur specifically to the effect that
the land in dispute was never set apart in favour of the Urban
Improvement Trust under the Land Revenue Act and had not
been acquired for the Urban Improvement Trust; and that the
application for reference as made by the Urban Improvement
Trust was withdrawn. It has, therefore, been submitted that
the respondent Jodhpur Development Authority, Jodhpur has
nothing to do with the matter.
The categoric stand taken on behalf of the Jodhpur
Development Authority, Jodhpur makes it clear that the
petitioners were not right in suggesting similarity of the
present case with the other one wherein the reference was
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allowed particularly after finding the land in question having
been set apart and handed over to the Urban Improvement
Trust. For the fundamental difference of facts, the decision in
Reference Case No.266/1986 has no application to the
present case whatsoever.
The basic facts of the present case make it absolutely
clear that the learned Collector proceeded merely on the
assumption that the questioned mutation No.314 was
sanctioned in favour of the non-applicants only on the basis of
dropping of the proceedings under Section 91 of the Act of
1956. Such observations have been found not in accord with
the record; and it has been noticed that the directions were
issued by the Assistant Collector on the basis of the earlier
orders, patta, and other pieces of evidence that were placed
before him and were referred in his communication dated
28.12.1978. There does not appear any reason to consider
any interference in the writ jurisdiction of this Court in such
findings on essential facts by the Board of Revenue.
Apart from the aforesaid, it is but apparent that the
disputed mutation was effected as back as in the year 1978.
The proceedings in reference were taken up by the Collector
concerned only in the year 1994; and significantly, in the year
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1995, the reference application as moved on behalf of the
Urban Improvement Trust in relation to the same mutation was
withdrawn. Thereafter, the reference in question was made in
this case only in the year 2001. The reference proceedings
cannot be adopted as a matter of course and as a matter of
right at any time as chosen by the authorities concerned.
The reference having been made after an inordinate
delay with nothing on substance; and no case of any
fundamental illegality or manifest error having been made out,
the Board of Revenue cannot be faulted in having rejected the
same.
There appears no ground in this case to consider any
interference in the extraordinary writ jurisdiction.
In view of the aforesaid, the writ petition does not merit
admission; and stands rejected.
(DINESH MAHESHWARI), J.
Mohan/