1 S.B.CIVIL WRIT PETITION NO.7886/2008. State of Rajasthan Vs. Bhikha Ram & Ors. Date of Order :: 15th April 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr. Sandeep Bhandawat, GC, for the petitioner. Mr. S.D.N.Bhatt, for the respondents Nos.1,2 and 3. .... BY THE COURT: Mr. S.D.N.Bhatt appears for the respondents Nos.1,2 and 3 and points out that respondent No.4 has since expired and the respondents Nos.1,2 and 3 are her legal representatives. Having regard to the circumstances, name of respondent No.4 is ordered to be deleted from the array of parties. Learned counsel for the parties are ad idem that subject matter of this writ petition practically stands concluded against the petitioner in view of decision of this Court in the similar case, being S.B.Civil Writ Petition No.4948/2006 : State of Rajasthan Vs. Kana Ram & Ors., decided on 24.03.2009. In this view of the matter, while dispensing the service on the proforma respondents Nos. 5 and 6, the petition is taken up for disposal at this stage itself. It is noticed that by the order dated 03.04.2001 as drawn in Reference Application No.17/1994 , the Collector, Jodhpur 2 proceeded to make a reference to the Board of Revenue for setting aside Mutation No. 312 as effected in relation to the land comprised in khasra No. 909/747 at Khema-ka-kua, Jodhpur. On the basis of a complaint made to him, the learned Collector noticed that the father of the non-applicants (contesting respondents herein) had been trespasser over the said land comprised in khasra No. 909/747 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 the said proceedings under Section 91 of the Act of 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 khatedari 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.312. The learned Collector opined that such a communication from the Assistant Collector was not authorised by law; and the 3 disputed mutation No.312 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. 574/2001. 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. 747/21 and in its relation, the Sub Divisional Officer, Jodhpur, while allowing an application 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 24.10.1956. 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 4 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 and upon the demise of Deepa Ram, further mutation was made in favour of his heirs. 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 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 5 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. 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 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 (UIT) for abadi extension and the disputed mutation was set aside for the UIT 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 UIT in relation to the land in question stood terminated way back in the year 1995. 6 It is noticed that the reference as made in the present case has been rejected practically on the same grounds as were available in the aforesaid case of Kana Ram. It is noticed that in the present case too, a suggestion was made about the land in question having been given to the Urban Improvement Trust (now Jodhpur Development Authority) for abadi extension but the fact has come on record that the said Urban Improvement Trust did file an application for reference and withdrew the same in the year 1994. In the said caseof Kana Ram, this Court even issued notices to the Jodhpur Development Authority who had categorically pointed out that the land in question was never set apart for the Urban Improvement Trust and they had nothing to do with the matter. While dismissing the said writ petition, this Court has pointed out,- ''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 7 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 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.'' The position in the present case remains practically the same. The learned Collector herein too proceeded on the assumption that the questioned mutation was sanctioned only on the basis of dropping of the proceedings under Section 91 of the Act of 1956. Such observations have been found to be not in accord with the record; and it has been noticed that the 8 directions were issued by the Assistant Collector on the basis of earlier orders, patta and other pieces of evidence that were placed before him and were referred to in his communication dated 28.12.1978. The suggestion about the land having been set apart for UIT does not appear correct either particularly when it is noticed that in this case too, the UIT though moved an application seeking reference but then, withdrew the same. There appears no reason wherefor reference was attempted to be made in this case after 22 years of the disputed mutation. Following the said decision in Kana Ram's case (supra) and for the same reasons, this writ petition is required to be, and is, hereby dismissed. No costs. (DINESH MAHESHWARI), J. MK