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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
SPL. APPL. WRIT No. 332 of 2001
MUKHTIAR
V/S
STATE & ORS.
Date of Judgment : 5.11.2009
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI GOVIND MATHUR,J.
Mr. SL JAIN, for the appellant / petitioner
Mr. DALIP SINGH RAJVI, for the respondent
BY THE COURT : (PER HON'BLE GUPTA,J.)
This appeal has been filed by the unsuccessful writ
petitioner, seeking to challenge the judgment of the learned
Single Judge dated 19.3.2001, whereby the writ petition was
dismissed, and the orders of the Board of Revenue dated
30.11.1999, Annex.6, and dated 18.4.2000, Annex.8, whereby the
reference made under Section 232 of the Rajasthan Tenancy Act
was accepted, and review petition was dismissed, have been
upheld.
The facts of the case are, that the petitioner
Mukhtiar filed the writ petition, alleging inter-alia that one
Santa Singh was allotted lands in Kila No.6 to 10 measuring 5
bighas in Murabba No.36 Chak No.21 PS, which lands were
mutated in the name of Santa Singh vide mutation dated
30.10.74. Copy of the passbook has been submitted as Annex.1.
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Santa Singh was recorded as Khatedar, who transferred the land
in the name of the petitioner vide registered sale deed dated
1.5.73, copy whereof has been produced as Annex.2. The
petitioner claims to be in cultivatory possession of the land
since 1973 as Khatedar.
According to the petitioner, the Tehsildar
Raisinghnagar submitted an application before the Collector
Sriganganagar for setting aside the allotment dated 15.5.67
made in favour of Santa Singh, and consequent mutation and
sale, copy of this application has been produced as Annex.3.
The petitioner submitted reply on 11.9.1997, Annex.4, and
Additional Collector vide order dated 28.8.98, Annex.5, made a
reference to the Board of Revenue for setting aside the
allotment, mutation and subsequent sale. The petitioner in
para 7 has alleged, that this reference was in relation to
lands, bearing Kila No. 21 to 25 of Chak No.21 PS of Murabba
No.36, while the lands belonging to the petitioner, are
comprised in Kila No.6 to 10. The petitioner has further
alleged, that Board of Revenue set aside the allotment by
accepting reference, without considering the question that the
land allotted to Santa Singh was not the land of Gurudwara,
referred to by the learned Member of the Board of Revenue in
his order, i.e. Kila No.21 to 25. The lands belonging to
petitioner and Santa Singh are in Kila No.6 to 10, and not in
Kila No.21 to 25. Lands in Kila No.6 to 10 were never in the
name of Gurudwara. Thus, the order was claimed to be without
jurisdiction, void and perverse. This is produced as Annex.6.
The petitioner then filed a review petition, bringing to the
notice of the Board of Revenue, that the lands belonging to
Gurudwara were in Kila No.21 to 25, whereas lands allotted to
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Santa Singh were in Kila No.6 to 10, which was not Gurudwara’s
land. Copy of review petition has been produced as Annex.7,
and it is contended, that the Board of Revenue refused to
consider the submissions made in the review application, and
has dismissed the same on the ground, that points raised in
the review petition are the same, which were argued at the
time of decision of the reference, and therefore, the review
application does not lie. Copy of this order has been produced
as Annex.8. With giving these facts, the orders are challenged
only on two grounds, first being, that the Board of Revenue
specifically mentioned in the orders that the lands belonging
to Gurudwara are situated in Kila No.21 to 25, but lands
belonging to Santa Singh are situated in Kila No.6 to 10,
thus, lands allotted to Santa Singh could not be said to be
Gurudwara land, and the lands allotted to Santa Singh were
recorded as Sivay Chak in the revenue record. Thus, the Board
of Revenue had no jurisdiction to cancel the allotment made in
favour of Santa Singh on 15.5.67, on the ground of the land
being belonging to Gurudwara. The other ground given is, that
the order passed by the Board of Revenue purports to deprive
the petitioner from his property without authority of law, and
offends Article 300A of the Constitution.
To put it tersely, the whole challenge to the orders
of the Board of Revenue, was only on the ground, that the
lands belonging to Gurudwara were comprised in Kila No. 21 to
25, while the land allotted to Santa Singh was comprised in
Kila No.6 to 10, which was sold to the petitioner, and that
allotment could not be canceled, on the ground of the land
being belonging to Gurudwara. Then a look at the order-sheets
of the file of S.B. shows, that the matter was listed on
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12.5.2000 for admission, on which day the learned Single Judge
expressed the view, that the case is worth remanding, for the
reason, that the only question involved in the case is the
dispute of identity of land and nothing else. Thus, Shri
Dinesh Maheshwari (now an Hon’ble Judge of this Court) was
directed to accept notice on behalf of the respondents.
Originally in the writ petition, four persons were
impleaded as respondents, being State, Board of Revenue,
Additional Collector, and Santa Singh, however, subsequently,
vide order dated 14.12.2000, on the application of Guru Nanak
Prabandhak Committee, the said committee was impleaded as
party respondent, and vide order dated 12.2.2001 Santa Singh
was deleted from array of respondents, as he had died, leaving
no legal representatives. Then the matter was argued, and
ultimately was decided by the same learned Bench, vide
judgment dated 19.3.2001, as noticed above.
A reply to the writ petition was filed on behalf of
respondent No.1 on 14.9.2000. The stand taken therein was,
that it is incorrect to contend that Santa Singh was allotted
land. It was pleaded that Santa Singh was Granthi in the
Gurudwara, and no allotment could have been made in his name.
The stand taken was, that Santa Singh was recorded only as
Gair Khatedar, and that too wrongly. Santa Singh was having no
transferable right in him, and sale deed dated 1.5.73 is
wholly inconsequential, void and non-est. In reply to para 5
it was pleaded, that it seems that the petitioner, although
aware of the correct facts is simply seeking to take advantage
of some typographical error. In reply to para 6 it was
pleaded, that it is pertinent to mention that the petitioner
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also could not deny the basic facts. Then in para 7 the
mention of Kila No. 21 to 25 was pleaded to be typographical
and clerical error, instead of mentioning Kila No.6 to 10,
however mere technical error cannot over take the substance of
the matter. It was pleaded that the petitioner was aware of
the fact that the reference was made on account of Santa Singh
having procured allotment of the land of Gurudwara, which
could not have been allotted. Then in para 8 it was again
reiterated that the petitioner is only seeking to take
advantage of typographical error. Then while replying the
ground again it was pleaded that land of Kila no.6 to 10 was
of Gurudwara, Santa Singh has no right over the same, and in
Murabba No.36 there were 25 bighas of land, and after
enforcement of Rajasthan Tenancy Act, Gram Sevak Mafidars were
made the allotment of land in their possession, free of cost,
and Gair Khatedari mutations were made in their favour.
However the land of Kila No.6 to 10 in this Murabba was
Gurudwara land, the same was not allotted to anybody, however
an allotment has been made of this land to Santa Singh on
15.5.67, which could not have been done, and thus, the
reference has rightly been made, and has rightly been allowed.
A rejoinder was filed by the petitioner, to this
reply, contending, that after execution of sale deed by Santa
Singh in favour of petitioner, the allotment of land in favour
of Santa Singh was canceled by order of the Addl. Collector
dated 25.5.87, for violation of Section 13 of the Colonization
Act. An appeal was filed by the petitioner, which was allowed,
and the case was remanded to the Addl. Collector, for deciding
the matter in the light of Section 13A of the Colonization
Act. The petitioner deposited an amount of Rs.7500/- under
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Section 13A on 28.12.89 vide challan Annex.10. However, the
Addl. Collector vide order dated 19.4.95, Annex.11, held that
the allotment in favour of Santa Singh was made under Section
193 of the Rajasthan Tenancy Act, and therefore, Colonization
Act did not apply, he therefore, dropped the proceedings of
cancellation of allotment in favour of Santa Singh. Thus,
Santa Singh was allotted land as Khatedar vide Annex.11. It
was then pleaded, that since allotment was made under Section
193 of Rajasthan Tenancy Act, there was no question of Gair
Khatedari; rather it was of Khatedari. It was also pleaded
that it is wrong to contend that petitioner is simply seeking
to take advantage of typographical error, rather there is no
typographical error. The application filed by the Tehsildar
was in relation to lands, which were shown in revenue records
as Mandir Mafi lands. The kilas shown as Mandir Mafi land were
Kila No.21 to 25, and in support of this stand, the petitioner
has produced a copy of the Khatoni of Samvat 2012 to 2015 as
Annex.12. Then it is pleaded that it is wrong to contend that
instead of Kila No.6 to 10, Kila No.21 to 25 were wrongly
mentioned. It was maintained that Mandir Mafi land are
recorded in Kila No.21 to 25, and there is no question of any
typographical error. It was also maintained that it is wrong
to contend that land comprised in Kilas No.6 to 10 is
Gurudwara land. It is not so recorded.
Another set of reply has been filed on behalf of
newly added respondent, being Nanak Gurudwara Prabandhak
Committee, and in this reply it is contended, that in Murabba
No.36 in Chak No.21 PS the allotments were made by State of
Bikaner as Mafidars in Samvat 1992, and Kila No.1 to 8 was
allotted to Roda son of Kharga, by caste Chamar. Then Kila
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No.9 to 15 was allotted as Mafi Nai (Barber). Then Kila No.16
to 20 was allotted as Khati (Carpenter) and Kila No.21 to 25
were allotted as temple. It is then pleaded that since no
temple was existing there, but a Gurudwara was there in the
said Chak, the name was transferred in the name of Gurudwara,
vide order dated 13.4.50, and Shri Jaimel Singh was Granthi on
behalf of Gurudwara, to look-after the Gurudwara as well as
land. Copy of the Jamabandi has been produced as Annex.R/1.
The stand is, that after Jaimel Singh, Santa Singh was
appointed as Granthi somewhere in 1956. It is then pleaded
that in the year 1959, Kilas No.6 to 10 were shown as land of
Mafi Gurudwara. Annex.R/2 has been produced in this regard,
which showed that Kila No.1 to 5 were shown to have been
allotted to Harnam Singh (Mafi carpenter). Then Kila No.6 to
10 were shown to be Mafi Gurudwara, temporarily cultivated by
Wazir Singh. Then Kila No.11 to 17 were in the name of Jamna,
temporarily cultivated by Banta. Then Kila No.18 to 25 were
recorded in the name of Mafi Kotwal (Chowkidar), temporarily
cultivated by Het Ram son of Kashi Ram. It is then pleaded
that in the year 1965, on 30.7.65 Santa Singh moved an
application before the SDO, submitting that he is the granthi
of Gurudwara and Kilas no.6 to 10 command land was of Mafi
Gurudwara, and since the government was then abolishing
village grams mafi, Khatedari should be given to him. Copy of
this application has been produced as Annex.R/3. Then on
4.12.67 the SDO allotted 5 bighas of land to Granthi Santa
Singh, copy of order is produced as Annex.R/4. It is submitted
that significantly in this Annex.R/4 there is no description
of bigha scheme having been mentioned, i.e. only 5 bighas and
Murabba number and chak number have been mentioned. Then it is
pleaded that Santa Singh moved an application before the SDO
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Raisinghnagar that for Mafi Gurudwara land he was ready to pay
the market value of the land, and even in this application the
details of Kila numbers were not given. The case of the
answering respondent further is, that the file was pending
before the SDO for depositing the remaining amount as per
market value, but then Santa Singh never disclosed to have
sold the land to the present petitioner. The copies of the
order-sheets have been produced as Annex.R/6. It is contended
that Santa Singh was never given Khatedari rights of the land
comprised in Kila No.6 to 10, Jamabandies have been produced
as Annex.R/7 and 8. However, it is then pleaded that the
answering respondent was constituted as Committee, and was
registered on 28.11.90 vide Annex.R/9, and the answering
respondent filed a complaint before the Tehsildar
Raisinghnagar, contending that the land on which the present
petitioner is having illegal possession and title, which is
void-ab-initio, as the land was of deity and could not be
transferred. The Tehsildar submitted an application before the
Collector for making reference under Section 232 being
Annex.3, and accordingly reference was made, and has rightly
been allowed. Then certain preliminary objections have been
raised by the answering respondent, viz. that the answering
respondent was not impleaded as party despite being a
necessary party, the other objection raised was, that the
petitioner has concealed the material facts from this Court,
the petitioner has not averred, that he is not recorded as
Khatedar, and thus, he has suppressed the material facts from
this Court. Then para-wise reply has also been submitted,
contending inter-alia that the land was of Mafi Gurudwara.
Santa Singh moved application in which it was clearly stated
that the land was in the name of Mafi Gurudwara, and should be
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allotted to him vide Annex.R/3. Even in the allotment letter,
description of the land has not been given, and the respondent
has produced Jamabandi right from 1967 to 1990, in which the
petitioner as well as Santa Singh was shown as Gair Khatedar.
It was also pleaded that the petitioner is in illegal
possession. Then the details of the various Kilas, being
allotted to different persons were given, and it is pleaded
that though initially Kila No.21 to 25 was in the name of the
temple, but subsequently at the relevant time it was the mafi
grant, under village grant, as defined in Section 5(45) of the
Rajasthan Tenancy Act. In the year 1935 most of the land was
though reserved for village grant, but the name of the
Khatedar was not shown, but in Jamabandi of 1959 the
description of the whole land was given, which is produced as
Annex.R/10. The details as cataloged in the earlier part of
the reply were reiterated. Then it was pleaded, that this is
the only land being comprising in Kila No.6 to 10, which was
shown as Mafi Gurudwara, which was allotted to Santa Singh,
and Santa Singh himself in his application has also shown the
land as Mafi Gurudwara land. It was maintained that petitioner
never raised this question before the Collector, and before
the Board of Revenue, and that, it is only for the first time
that the petitioner has raised this question in the revision
(review) petition, which has been dismissed. There is no
dispute about identity of the land. Parties are ad idem about
identity of the land. Then it is pleaded that the learned
Member of the Board of Revenue has rightly set aside the
allotment made in favour of Santa Singh, and sale deed in
favour of petitioner, after considering that the land is of
deity, and could not be transferred, Santa Singh was not even
a Khatedar when he transferred the land, and mere mentioning
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of Kila No.21 to 25 hardly makes any difference. The allotment
was made without mentioning of Kila numbers, and in Murabba
No.36 there was only 5 bighas of land, which was recorded as
Mafi Gurudwara made in 1935, and this was so mentioned by
Santa Singh in his application, and that, the petitioner is
raising unnecessary dispute. Inter-alia with this it was
prayed that the writ petition be dismissed.
The petitioner has also then filed an additional
affidavit, inter-alia deposing, that the land had been a
subject matter of reference before the Addl. Collector in case
No.11/83 “State Vs. Santa Singh” under Section 232. This was
decided in favour of Santa Singh, copy of the order dated
6.10.94 has been produced as Annex. A. It was alleged that
land allotted to Santa Singh was in Kila No.6 to 10, Jamabandi
in this regard has been produced as Annex. B and C, for the
Samvat Year 2020 to 2023, and 2024 to 2027, respectively. It
is then deposed that during settlement operations also the
land of Kila No.6 to 10 was shown in slip dated 20.2.77 in
name of petitioner, who stepped in the shoes of Santa Singh,
having purchased the land, this has been produced as Annex. D.
Then latest Jamabandi of 2056 to 2059 was also produced as
Annex. E.
This is the entire pleading and material available
on record.
A look at the order of the Collector, making reference, being Annex.5 shows, that Khatedari rights were
given to village workers, Gram Sevaks, according to Section
193, but then, the land which was in the name of temple or
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Gurudwara, in that land Khatedari was not granted to pujaris
or granthis. Those lands continued in the name of temple or
Gurudwara. It was found by the learned Collector, that the
land was in the name of Gurudwara, and could be allotted in
the name of Gurudwara, but not in the name of any individual
person. Before arriving at this conclusion the learned
Collector considered the submissions made on behalf of
Gurudwara, including the contention that the land of
Gurudwara, Masjid or Mandir could not be allotted to anybody,
while the contention raised on behalf of the petitioner were
also considered, wherein it was contended that land was never
Mafi or Mandir or Gurudwara, rather it was a government land
and the allotting authority undertook complete inquiry as
contemplated by the Rules, and allotments were made on 9.5.67.
Sanad has been granted, and mutations have been effected in
the revenue records, then the land has been sold by registered
sale deed. Then that being found to be violative of the
provisions of Colonization Act, action was taken under Section
13A, the petitioner paid the amount and the land was
regularized. Thus the present petitioner is continuing as
Khatedar, in possession, which cannot be canceled, nor this
reference, nor can such allotment be challenged. The other
contention raised was, against the allotment made in favour of
Santa Singh, no institution and state ever initiated any
proceedings, and the allotment order has become final. Still
other contention raised was, that proceedings for making
reference were earlier initiated, which were dropped vide
order dated 6.10.94, therefore, reference should not been
made. It is after considering all these submissions that the
reference was ordered to be made, vide order Annex.5.
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The learned Board of Revenue found, that if the land
had been recorded in the name of deity, idol or Gurudwara,
then no one can acquire Khatedari rights, while in the present
case though the land in question was mafi land, and though
Santa Singh was a Granthi, but then it was not a personal
grant, rather it was religious and charitable grant, Khatedari
rights could not be given to him, nor could the land be
allotted to him. Likewise, Santa Singh was not entitled to
alienate the land to Mukhtiar (the present petitioner).
Consequently the reference was accepted, allotment made in
favour of the Santa Singh, and subsequent sale made in favour
of present petitioner, were found to be non-est, and entries
in the record of right’s entries were ordered to be corrected.
It is significant to note, that in the reply submitted on behalf of the petitioner to the reference application of the Tehsildar, before the learned Collector
being Annex.4 also, no dispute was raised about identity of
the land, on the anvil, as sought to be raised before this
Court, being that the land of Gurudwara was Kila No.6 to 10,
and the reference application has been made to land comprising
of Kila No.21 to 25. That apart it is still more significant
to note, that the positive stand was, that the land in
question (आर ज जर बहस) was no manner a mafi land of Gurudwara,
rather it was a land allotted to Santa Singh. Then in para 5
of the reply it was categorically contended, that the land in
question was allotted after completing all necessary
proceedings for allotment, and after considering the
eligibility of Santa Singh to be allotted land, and revenue
record was accordingly mutated. It was also pleaded, that
Sanad with respect to land in question has been issued on
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11.6.93 in name of Santa Singh. Thus, Santa Singh became
Khatedar. Of course in this reply, in additional pleas, it was
pleaded, that it is wrong to contend that matter did not come
to the notice earlier, as, earlier also application for making
reference was filed, which was registered as Case No.11/83
“State Vs. Santa Singh” and was dismissed on 6.10.94. Thus the
present proceedings are hit by the bar of Section 11 CPC; but
concealing these facts, Tehsildar filed this application,
which was required to be dismissed.
A look at the order of the learned Single Judge
shows, that the only contention raised before him was, that
the land in dispute, which was in possession of the petitioner
had never been allotted to temple or Gurudwara, as the land
purchased from Santa Singh was in comprised in Kila No.6 to
10, likewise the land allotted to the temple or the Gurudwara
was compromised in Kila no.21 to 25, thus the entire
proceedings stand vitiated. The next contention raised was,
that the petitioner had never been served with the show cause
notice in the reference, in respect of the land comprising
Kila No.6 to 10, purchased from Santa Singh, and the reference
was made with respect to land comprising in Kila No.21 to 25,
which is entirely a different land, and the petitioner has no
concern with the said land. The other objection raised is,
that earlier also the Tehsildar had filed an application
before the District Collector to make a reference with respect
to the same land, which was rejected in 1994, and as that
order acquired finality, the second application is not
maintainable. The next contention raised was, that the
petitioner had deposited a sum of Rs.7300/- to get
regularization of the land in view of the amendment made in
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1984 in the Colonization Act, providing that if the land had
been alienated in violation of the provisions of Rajasthan
Tenancy Act, the same could be regularized after making
certain payment.
On the other hand, the contention raised on behalf
of the State was, about mention of Kila No.21 to 25 to be
typographical mistake, rather the petitioner knew it very
well, and never raised this objection, either before the
Collector, or before the Board of Revenue, and after meeting
his waterloo before the Board, for the first time in the
review petition the ground was taken, which was rejected.
Significantly in the review petition also it was not contended
that he had raised this issue earlier, nor is it so contended
before this Court, that the petitioner had argued it before
the Board even at the stage of review. The next contention
raised was, that in para 13 of the rejoinder affidavit, the
petitioner himself has described the land of temple to be
comprised in Chak No.PH 29 Square No.36, though there is no
such land. Thus it was demonstrated, that it was only a
typographical mistake, and the parties were fully aware of the
identification of the land in dispute, and then have gone to
trial knowing the actual controversy very well, as such, the
petitioner cannot be permitted to succeed on such
technicalities, as the matter is required to be decided on the
touchstone of doctrine of prejudice. The transaction of
allotment of land in favour of Santa Singh, which land
belonged to Gurudwara, is void, and the order of Board of
Revenue does not require any interference.
The contention raised on behalf of Gurudwara
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Prabandhak Committee also was, that the Committee has placed
reliance on large number of documents, to show that it was the
land of Gurudwara, which stood transferred to the petitioner,
and that Santa Singh had no land other than the land in
dispute, and that the land allotted to Gurudwara was
comprising in Kila No. 6 to 10, which had been transferred to
the petitioner, and therefore, the transaction itself was
unenforceable, and in-executable.
The learned Single Judge has found, that undoubtedly
there has been typographical error in the notice given to the
petitioner by mentioning Kila No.21 to 25 and not Kila No. 6
to 10. Then it was observed, that the documents on record,
including Jamabandies of Samvat Year 2012 to 2015 clearly
show, that Kila No. 6, 7 and 8 had been given under Section
193 to one Harnam Singh as a village Kotwal, similarly, Kila
No. 9 and 10 had been given to one Madu Barber, and Kila No.
21 to 25 had been shown in the name of temple. Santa Singh
filed application on 30.7.65 (Annex.R/4) clearly stating, that
Kila No. 6 to 10 was existing in the name of Gurudwara, and
Khatedari rights should be granted therein. Similar
application was filed by him on 25.6.65, patta was issued on
25.11.67 in the name of Santa Singh, which does not give any
description, and simply provides that Khatedari rights were
given in the land measuring 5 bighas in Chak No.21 PS, rather
it does not speak of Kila numbers at all. It has also been
observed, that as the applications had been filed by Santa
Singh, as granthi, there had been a case of creating khatedari
rights in favour of Gurudwara. This view has been found to be
stood fortified by the application of Santa Singh dated
17.7.71 Annex.R/4/5, wherein without making reference to any
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Kila number, he referred to land of Gurudwara measuirng 5
bigha, and expressed his willingness to deposit the dues etc.
He also filed an application on 30.8.72 for the same purpose,
wherein again it was clearly stated, that the land belonged to
Gurudwara, and on his application, appropriate orders were
passed, and the SDO Raisinghnagar ordered recovery of amount
as per law in respect of the land measuring 5 bigha situated
in Chak No.21 PS Murabba N.36, and in this also there was no
mention of Kila numbers at all. It was then considered, that
there is a detailed order of competent authority regarding
deposit of revenue etc., wherein again no Kila numbers have
been given. Then in Jamabandies of year 1966 to 1970 Santa
Singh was shown as a tenant of Kila No. 6 to 10, and
subsequently name of present petitioner.
With concluding this the learned Single Judge
summarized the undisputed position, which emerged, by
cataloging in 10 paras, being, that Kila No.6 to 10 had
initially been allotted to the Village Kotwal and the Barber,
and stood in their names, while Kila No. 21 to 25 had been
shown initially in the name of temple. Then after sometime,
Kila No. 6 to 10 had been shown in the name of temple, and at
subsequent stage the same was ultimately entered in the name
of Gurudwara, and applications had persistently been made by
Santa Singh for grant of Khatedari rights, wherein he has
shown to be Granthi of the Gurudwara, and the revenue record
clearly spelled that he was acting for and on behalf of
Gurudwara, and not in his individual capacity. It was also
found, that while making reference notice was served on the
petitioner in respect of the Kila No. 21 to 25 and not Kila
No.6 to 10, however, in reply the petitioner did not take a
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specific stand, that he had nothing to do with Kila No.21 to
25 and had purchased the land of Kila No. 6 to 10 from Santa
Singh, this shows, that the petitioner understood the
controversy, and filed the reply in respect of the land in
dispute. It was also found, that issue of misidentification of
the land, has never been raised by the petitioner; and for the
fist time it was taken in the review petition, without stating
that at the time of hearing the reference, the issue had been
raised, and it had never been the case of the petitioner, that
Santa Singh had land other than the land in dispute. With this
it was noticed, that Santa Singh had already died when notice
was issued by the District Collector for making the reference,
but still petitioner impleaded him before this Court, without
any explanation. Then in review petition, Gurudwara Prabandhak
Committee was impleaded as respondent, while Santa Singh was
not impleaded; but then while filing the present writ
petition, Gurudwara Prabandhak Committee was not impleaded,
and Santa Singh was impleaded, though the committee got itself
impleaded. Then it was noticed, that the petitioner has not
raised the ground of misidentification of the land, and it was
for the first time while filing review application, and that
too without mentioning in the review application, that such an
averment had been agitated before the Board, and that it was
never mentioned anywhere in the petition, that the counsel had
argued the issue of misidentification. Then regarding
rejection of earlier application, it was held, that though
this fact was pleaded, but the petitioner had not produced any
document before the Courts below, to show that such an order
had been passed, nor could he submit, that it was a part of
record before the Courts below. It was also noticed, that
pleadings in this case had been complete before this Court
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much earlier, as the rejoinder affidavit was filed on
11.10.2000, and petitioner did not argue this issue before the
Board of Revenue at all, and it is on the date of judgment
rendered by learned Single Judge, that at the time of hearing,
the petitioner filed the copy of the order, and that the only
ground raised in the writ petition deals with the question of
misidentification of the land. With this, after discussing
various case-laws, the learned Single Judge, for reasons given
in the order, did not find any merit in the writ petition. It
was noticed, that it was argued on behalf of the petitioner,
that the land has been allotted to Santa Singh individually
under Section 193 of the Tenancy Act, for rendering services
as Granthi and therefore, it cannot be treated as that of
Gurudwara, but then it was found, that this issue has been
agitated for the first time before this Court, as no such
averments had been made before the Court below.
Then aggrieved of this order the present appeal has
been filed. This appeal came up for admission on 25.4.2001, on
which day it was admitted and interim stay was granted, on the
condition of depositing of mesne profits, and making the order
peremptory. Thereafter the order was modified, however the
time for depositing the mesne profits was extended. Be that as
it may.
The appeal came up for hearing before us on
28.7.2009, which hearing continued on 30.7.2009 and on that
day learned counsel for the appellant prayed for some time to
obtain and produce before this Court some more record, to
satisfy this Court, that as on the date of the appellant’s
moving application for allotment, Santa Singh was holding the
19
land of Kila No.6 to 10 or Kila No.21 to 25 in the capacity of
Granthi Mafidar. The matter was adjourned for two weeks.
Then the matter came up on 3.11.2009, on which day
the arguments were concluded, and judgment was reserved.
However, when the judgment was started to be dictated, it was
felt, that it would be appropriate that the matter should be
heard again on some aspects, therefore, the matter was got
listed in the Court today in the category of “TO BE
MENTIONED”, but then today, at the request of learned counsel
for the parties, the matter was reheard at length.
Arguing the appeal, learned counsel for the
appellant read to us the documents Annex.1 to 8 as filed by
the appellant in the Single Bench. It may be observed, that in
the review petition, Annex.7, a specific ground was taken,
that in the reply to the application for making reference it
was pleaded by the appellant, that land comprised in Kila No.6
to 10 was allotted to Santa Singh in accordance with law on
account of land being recorded as Siyav Chak, and that land
has been sold by Santa Singh to the petitioner. Thereupon we
called upon the learned counsel for the appellant, to kindly
point out this stand to be available in the reply Annex.4, and
after reading the entire reply, the learned counsel only
submitted, that it was pleaded, that land was allotted after
completing all proceedings for allotment, and after finding
eligibility of Santa Singh. It appears that, that was the only
ground raised in course of argument before the learned Board
of Revenue while arguing the review petition, and probably the
learned counsel for the petitioner may have been snapped like
this only. Be that as it may.
20
Then arguing the appeal learned counsel for the
appellant made various submissions, (i) that the land was
allotted to Santa Singh after following the due process of
law, finding Santa Singh to be eligible, Sanad has been issued
and Khatedari has been conferred way-back in 1993, as such it
was not open to the learned Collector to make a reference.
The second ground taken was, that Santa Singh was a
Granthi and allotment was made to him under Section 193 of the
Rajasthan Tenancy Act. The third submission made is, that the
application for reference is too much belated, as the present
application has been filed on 29.11.95 only, whereas the
allotment was of 1967. Learned counsel placed reliance on
Division Bench judgment of this Court, in State of Rajasthan
Vs. Teja & Ors., reported in 2005 (2) WLC 53.
The fourth submission made is, that in view of
earlier application filed by Tehsildar for making reference
having been rejected vide order dated 6.10.94, on the
principle of res-judicata, the present application filed by
the Tehsildar could not be entertained, and reference could
not be made, much less could it be accepted. Learned counsel
in this regard placed reliance on the judgments of Hon’ble
Supreme Court, in Vijaybai & Ors. Vs. Shriram Tukaram & Ors.,
reported in AIR 1999 SC 431 specially para 8, Hope Plantations
Ltd. Vs. Taluk Land Board, and in Peermade & Anr. reported in
1999 (5) SCC 590.
Regarding delay, the learned counsel also referred
to one Division Bench Judgment of this Court in Chail Singh &
21
Ors. Vs. State of Rajasthan & Ors., decided on 17.4.2008. Then
regarding permissibility of allotment of land to granthi under
Section 193 of the Rajasthan Tenancy Act, learned counsel
relied upon few unreported judgments of this Court, including
those in S.B. C.W.P. No.1053/69 Lal Singh Vs. State, decided
on 25.11.71, then a photostat copy of the judgment,
particulars whereof are not decipherable. The judgment dated
7.9.73 rendered in bunch of 13 writ petitions led by S.B.
C.W.P. No.1603/71 Surya Mal Vs. State, the Division Bench
judgment dated 15.10.74, in the appeals filed to challenge the
aforesaid judgment dated 7.9.73, dismissing the appeals, the
judgment dated 26.11.90, rendered in S.B. C.W.P. No.1924/80
Smt.Shila Vs. State, the judgment dated 22.10.91 rendered in
S.B. C.W.P. No.1341/82 Ramprakash Vs. State, another judgment
in Ratan Singh Vs. State of Raj., reported in 1983 WLN (UC)-1.
Yet another judgment in Sawarn Jeet Singh Vs. State of
Rajasthan, reported in 2005(10) RDD 4574 was also relied upon.
Learned counsel for the committee relied upon the
judgment of this Court in Savda & 6 Ors. Vs. State of
Rajasthan & Ors., reported in 1993(2) WLC (Raj.) 122, and
submitted, that provisions of Section 11 CPC are not
applicable to these proceedings, and therefore, the bar of
res-judicata could not be pressed into service.
We have heard learned counsel appearing, and have
perused the record. It may be observed that nobody appeared on
behalf of the State, as usual. This Court has often come
across such incidents, where despite service, the government
counsels do not choose to appear, and at times when sum one is
called, he chooses to disown the matter, on the ground of it
22
being not related to his department, some times we felt
constrained to even call the Addl. Advocate General, but then
that only resulted into simply adjournment of the matter,
obviously because of the ground, that even Addl. Advocate
General is not aware of the matter. Be that as it may.
At the outset we are constrained to observe, that
the way in which the matter has been contested, and the way in
which contentions were raised at different stages, project a
very strange picture.
To start with, we deal with first two contentions
together, and would straightway like to observe, that though
contentions are purportedly raised to be in the alternative,
but a proper comprehension of the two contentions shows, that
they are mutually destructive to each other. To elaborate, it
is one thing to say, that the allotment was made to Santa
Singh after following the due and prescribed procedure, the
land being recorded as Siyav chak and finding Santa Singh to
be the eligible person to be allotted the land. Then it is
entirely contrary thing to say, that Santa Singh was holding
the land as a village servant grant Granthi, and on
discontinuance of such village services, by virtue of the
provisions of Section 193 of the Rajasthan Tenancy Act, Santa
Singh was conferred Khatedari rights. The matter does not end
here, inasmuch as, a look at Annex.4 shows, that therein a
positive stand was taken about the land having been allotted
to Santa Singh after following the due process and finding him
to be eligible. Then we asked the learned counsel to show the
allotment order, and learned counsel made available for our
perusal the original of communication dated 15.5.67, addressed
23
by the SDO to Santa Singh, informing that vide order dated
15.5.67, 5 bighas of land in Murabba No.36 Chak No.21 PS has
been allotted to him on permanent basis. It is not clear from
this, as to which particular Kilas were allotted, and it is
also not clear, as to on what basis, and under what provisions
of law, the allotment was made, i.e. whether in accordance
with the allotment Rules, or under Section 193. Then a look at
the documents filed by the Committee-respondent along with its
reply, specially Annex.R4/3, 4 and 5 do make it clear, that
even according to Santa Singh, the land was of mafi Gurudwara,
and he wanted to be conferred Khatedari rights with respect to
that land. It is a different story, that in the application
also Kila numbers were not given, but then these applications
clearly negative the theory of allotment having been made in
accordance with rules for allotment, the land being earlier
SIVAY CHAK RAKBA RAJ, and after Santa Singh having been found
eligible to be allotted the land. Thus, in our view there is
no basis for our coming to the conclusion, that allotment was
made to Santa Singh as a regular allotment, in accordance with
the rules, after following the prescribed procedure, much less
after finding Santa Singh to be eligible, and on the ground of
the land being available for allotment as SIVAY CHAK RAKBA
RAJ. It is again a different story, that this submission has
not been made before the Board of Revenue, or in the writ
petition, nor even at the time of hearing before the learned
Single Judge. Be that as it may.
So far the contention about the land having been
allotted under Section 193 is concerned, we may gainfully
reproduce the provisions of Section 193 of the Rajasthan
Tenancy Act, which read as under:-
24
“193. Disposal of land when services are no longer
required- If the Collector declares that the services
rendered by a village servant are no longer required
such village servant shall become a ‘Khatedar tenant’
of his village service grant and shall be liable to
pay rent accordingly.”
In the above background we may observe, that Section
5(45) defines village service grant. Then Section 190, 191 and
192 make provision for rights of such persons, holding village
service grant, and consequences of termination of such village
services, and in this sequence the above referred Section 193
finds place. The words used in Section 193 being “of his
village servant grant” are of great significance, inasmuch as,
under Section 193 Khatedari rights can be conferred only with
respect to the land, which was the village service grant of
the person, who claims to conferment of Khatedari rights,
whose services have been terminated, and should be belonging
to a specified category of village servants, which may include
Ganthi. It is in this view of the matter, that on 30.7.2009
the learned counsel, sensing the queries of the Court, prayed
for time to produce before the Court some more record to
satisfy this Court, that as on the date of moving application
for allotment, Santa Singh was holding the land in the
capacity of Granthi mafidar, obviously as the village service
grant, but then no such document has been produced, rather the
documents produced by the respondents, and referred to above,
project an otherwise picture. The matter does not end here,
inasmuch as, even the petitioner himself has produced million
dollar document against him, being Annex.12, produced by him
along with his rejoinder, which is Jamabandi of Samvat Year
2012 to 2015, and therein it is clearly shown, that the land
25of Kila No.1 to 5 was recorded as Mafi Kotwal, then Kila no. 6
to 10 was recorded as Mafi Nai (Barber), then Kila No.20 was
recorded as Mafi Tarkhan (Carpenter) and Kila No.21 to 25 was
recorded as Mafi Mandir Bila Kabja i.e. without possession.
This clearly shows, that out of Chak No.21, whichever Kilas
were standing as village service grant, they were so recorded
in name of different persons, but Kila No.21 to 25 was not
recorded as Mafi Granthi, but was recorded as Mafi Mandir.
This clearly negatives the contention of the appellant, about
his being a village service grant holder of the land in
question, as Granthi, so as to entitle him to lay any claim
for conferment of Khatedari rights under Section 193. In that
view of the matter, we are not inclined to accept these two
contentions.
Coming to the question of delay, the judgment in
Chail Singh’s case does clearly lay down parameters, after
discussing entire case-law, as to what would be the reasonable
time for making reference, and in our view, in the totality of
circumstances, it cannot be said, that the reference is
belated. It is a different story, that before the Board of
Revenue, or in the writ petition, or even while arguing before
the learned Single Judge, this contention was not raised on
the side of the appellant at all.
Then we come to the last contention about res-
judicata. At the outset, it may be observed, firstly that for
taking a plea of res-judicata, a proper foundation is required
to be laid, which in the present case did comprise of
production of the application for reference, its reply, and
order passed thereon, which should have been produced by the
26
petitioner along with Annex.4, which could have enabled the
Collector to find out, as to whether the principles or bar of
res-judicata are applicable or not. We at this very stage
clarify, that the judgment in Savda’s case relied upon by Mr.
Rajvi is not applicable, as that case deals with a different
situation altogether, and does not cover the controversy
involved in the present case, about improper or illegal
allotment having been made, which is sought to be got
corrected by reference. The broad principles of res-judicata,
being based on the Maxim of Roman Jurisprudence being,
“interest reipublicae ut sit finis litium”, the principles
have to be applied, even in the present proceedings.
Then we proceed to examine, as to whether even
without proper foundation having been laid, the bar of res-
judicata is attracted or not. In this regard, a look at
Annex.A, the order dated 6.10.94, produced by the petitioner
shows, that in that case, the learned Collector mainly
recapitulated the facts and noticed, that the stock argument
of various lawyers, appearing on behalf of various persons is,
that the land was not of mafi, but since the land revenue was
excused, the land was of service of Gurudwara, and in
consideration of such services, and since services were
discontinued, the Khatedari has been conferred in accordance
with Rules, and therefore, no proceedings can be taken. Then
it was noticed, that various Khatedars have assailed the
justification of demand of price, on the ground of land being
given as village servants. After noticing this contention, all
that has been found is, that in accordance with the circulars
issued on 5.6.1965 and 10.5.1966, the services of village
servants were discontinued, and direction were given for
27
moving applications within 30 days before the SDO for
obtaining Khatedari rights, but in absence of any provision
being made about the price of the land, steps were taken for
recovering the complete price, whereupon the demand was
assailed, and the High Court ultimately ordered not to recover
the price in case of conferment of Khatedari rights under
Section 193, rather the only recovery of land revenue should
be made, and therefore, it was found, that the matter does not
fall within Section 232 of the Rajasthan Tenancy Act or
Section 82 of the Land Revenue Act, as Khatedari rights had
been conferred free of cost under Section 193, as services of
the village servants were no more required, and therefore,
reference was not made. In our view, this judgment cannot be
said to be operating as res-judicata, because, firstly that
the case of the appellant was not about allotment having been
made under Section 193, rather in Annex.4 the positive stand
was taken to the effect, that the land was recorded as SIVAY
CHAK RAKBA RAJ, and was allotted in accordance with the
procedure prescribed for allotment, and after finding Santa
Singh to be entitled to be allotted land. In that view of the
matter, the question requiring to be gone into was as to
whether the allotment was made in accordance with allotment
rules or not. The finding recorded is, that the land was
recorded in the name of Gurudwara, which obviously could not
be allotted. On the other hand from the order Annex. A it
appears that the question of permissibility of allotment of
Gurudwara land to its Granthi was not at all involved before
the authority. Likewise from perusal of the order Annex. A is
not clear, as to whether the authority has seen the record
about land being of Gurudwara, or land being held as village
service grant. From the perusal of Annex. A it further
28
transpires, that by passing similar order, a spate of cases
has been decided, inasmuch as, it is cyclostyle proforma,
wherein columns had been filled in.
Then another aspect is that the application for
making reference and the reply has not been placed before any
of the authorities below, or even before the learned Single
Judge, or before this Court, so as to enable us to comprehend,
as to what was the controversy involved, and what had been
decided, so as to probably attract the bar of res-judicata.
Then still another aspect of the matter again is,
that this was not the stand taken by the appellant, either
before the Board of Revenue, or before the learned Single
Judge, that the land was a village service grant, which
question has been decided, and therefore, the allotment could
not be canceled.
Rather as noticed above, in the entire writ petition
the sole case made out, or the ground raised for assailing the
orders was, that the notice for reference was given with
respect to the land comprised in Kila No.21 to 25, and that
has been set aside, whereas the land allotted to Santa Singh
comprised of Kila No. 1 to 6, which has been purchased by the
petitioner, and the petitioner has nothing to do with the land
comprising Kila No.21 to 25. That controversy also had been
raised for the first time in the writ petition only, and in
our view, has rightly been turned down by the learned Single
Judge. From a collective reading of the entire record, as
available, would show, that the petitioner has contested the
litigation consciously knowing well, as to with respect to
29
which land the proceedings had been initiated, and with
respect to which land the orders had been passed. Suffice it
to say, that if the things were as simple as projected by the
petitioner, that since he has purchased Kila No.1 to 6, while
in reference, allotment and mutation and sale of Kila No.21 to
25 has been set aside, in which appellant has nothing to do,
the appellant would not have even bothered to file a writ
petition before this Court, much less the present appeal.
Over and above all this, all said and done, there is
yet another aspect of the matter, viz. though not argued, yet
even if it were to be assumed, for the sake of argument, that
the doctrine of res-judicata was attracted, still in our view,
after going through the entire material on record, as
available with us, we have no manner of doubt, that the land
in question was not held by the appellant as “his village
service grant”, rather it was a land recorded as land of
Gurudwara, and it could possibly not be allotted to the
petitioner under Section 193, and it is not shown to have been
allotted to him in accordance with the otherwise regular
process of allotment, as contended by the appellant in
Annex.4. Thus, even without going into the question, as to
whether the land of Gurudwara being of deity could be
alienated or not, Santa Singh cannot be said to have acquired
any right in the land in question, capable of being alienated
in favour of the appellant. Obviously therefore, if any
interference were to be made in favour of the appellant, on
the ground of res-judicata, as sought to be contended, it
would result into restoration of another illegality, i.e.
illegal allotment of land in favour of Santa Singh, and its
alienation to appellant. In our view, as held by learned
30
Single Judge also, and as consistently held by Hon’ble Supreme
Court, that where interference under Article 226 jurisdiction
results into bringing about such a situation of restoration of
another illegality, then interference is required to be
declined. In that view of the matter, we do not feel inclined
to interfere with the order of the learned Single Judge,
declining to interfere under Article 226 jurisdiction.
Then we come to the bunch of cases relied upon be
the learned counsel for the appellant, starting from Lal
Singh’s case to Sarvan Jeet Singh’s case. It would suffice to
say, that in Lal Singh’s case it was not disputed, that the
person concerned was holding the land as a mafi, in view of
the services rendered to the general public. Then in other
cases also various facets have been considered, and in none of
the judgments it has been held, that the land standing in the
name of Gurudwara, having been either allotted to, or recorded
in the name of Gurudwara, could be a subject matter of
conferment of Khatedari rights to Granthi, or in favour of
Granthi under Section 193 of the Rajasthan Tenancy Act. In
that view of the matter, these judgments also do not help the
appellant.
Thus taking from any stand point, we do not find any
sufficient ground to interfere in favour of the appellant in
this appeal. The appeal thus has no force and is dismissed.
The parties shall bear their own costs. The amount of mesne
profits as deposited pursuant to the order of this Court dated
25.4.2001, as modified on 21.5.2002, shall be paid to the
person, who may be entitled to the land in question,
consequent upon the dismissal of the present appeal of
31
Mukhtiar, with the finding of allotment in favour of Santa
Singh being bad. If the appellant has not deposited the amount
of mesne profits for any interregnum period, the same shall be
recovered from the appellant by way of attachment, and
executing our this order, by the principal civil court of
concerned District, and after recovering, the amount be
disbursed to the person, as ordered above.
( GOVIND MATHUR ),J. ( N P GUPTA ),J. /tarun/