SBCWP NO.4735/96. SBCWP NO.4740/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.4735/1996. Mahendra Singh Versus State of Rajasthan 2) S.B. CIVIL WRIT PETITION NO.4740/1997. Smt.Sharbati and others Versus State of Rajasthan and others **** Date of Order :- 30 May, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri K.K. Mehrishi for the petitioner. Shri Ankur Rastogi, Government Counsel. Shri G.K. Garg and Shri Saransh Saini for respondents. (in SBCWP No.4735/96). Shri G.K. Garg and Shri Saransh Saini for petitioners. Shri Ankur Rastogi, Government Counsel. Shri K.K. Mehrishi for respondents. (in SBCWP No.4740/97). **** BY THE COURT:- Reportable These two writ petitions seek to challenge different orders passed by the Board of Revenue but since they relate to the identical lands and similar proceedings, petitions were clubbed together and are being decided by this common judgment. SBCWP NO.4735/96. SBCWP NO.4740/97. 2 2) Challenge has been made to the judgment of the Board of Revenue dated 3/7/1996 vide which allotment made to the petitioners by way of regularization of their possession of the lands of Khasra No.1431 of revenue Village Dudhwa, Tehsil Khetri was held to be illegal and mutation thereabout was ordered to be cancelled with a further direction to Collector, Jhunjhunu to examine the legality of other allotments/ mutations in the lands of that khasra number. Subsequently, the Board of Revenue in the review petition vide its order dated 18/7/1996 directed that the allottees with respect to the original order dated 3/7/1996 shall not be dispossessed from the from the disputed land till all other cases of similar allotments in this khasra number have been examined and finally adjudicated by the Collector. This order has been challenged in SBCWP No.4735/96. 3) Shri K.K. Mehrishi, the learned Senior Counsel for the petitioners-Mahendra Singh and anr. in SBCWP No.4735/96 has placed on record copies of the orders passed in reference proceedings by the Board of Revenue respectively on 17/1/2005 in Reference Case No.456/2000, State Vs. Sriram and 17/3/2005 in Reference Case No.715/2000, State Vs. Chetram. While Shri K.K. Mehrishi, the learned senior counsel asserts that there are no other allotments in this khasra number and in this connection he refers SBCWP NO.4735/96. SBCWP NO.4740/97. 3 to the report of the Tehsildar dated 29/8/2005, on the other hand, Shri G.K. Garg, the learned counsel for the petitioners in SBCWP No.4740/97 submits that several more allotments in that khasra numbers have been made absolute in camps and it is with this grievance that he claims parity with such case for the petitioners in his writ petition. 4) When the matters were heard by this court on 23/7/2007, learned Government Counsel was directed to ascertain whether the orders dated 17/1/2005 and 17/3/2005 passed by the Board of Revenue in the aforesaid two reference proceedings have been implemented or not and it was further directed to verify the fact whether any other allotment has been made in Khasra No.1431, which is stated to be land of the ‘gair mumkin nadi, kind of which was later changed to ‘barani doyam’ for making the disputed allotments. 5) Learned Government Counsel in compliance of the order of this Court dated 23/7/2007 has produced report of the Tehsildar dated 22/9/2007 for perusal of the court but this report mainly states that land of Khasra No.2184 rakba 0.05, Khasra No.2185 rakba 0.07 and Khasra No.2186 rakba 0.06 hectares thus, total 3 rakba 0.18 hectares of land has been again recorded as ‘gair mumkin nadi’ vide Mutation No.901 on 24/6/2005 and the land of Khasra Nos.2188 and 2189 measuring 0.21 and 0.07 rakbas respectively, total 2 SBCWP NO.4735/96. SBCWP NO.4740/97. 4 rakba 0.28 hectares of land has also been recorded as ‘gair mumkin nadi’ pursuant to the judgment of the Board of Revenue dated 17/1/2005. All the aforesaid khasras were carved out from old Khasra No.1431. Report also reveals that the land of Khasra No.2141 bearing 0.31 hectare was already in the khatedari of Prasada Ram Gujar. Apart from this, no other land has been allotted / regularized in favour of any party. 6) Thus, the dispute between the parties is about the agriculture land comprising of old Khasra No.1437 measuring 7 bigha and 2 biswa which was originally entered as ‘gair mumkin nadi’ in the revenue record of Village Dudhwa, Tehsil Khetri. The petitioner in SBCWP No.4740/97 made a claim that this land remains under water during rainy season and would then be used by villagers for grazing of their cattle. Khatedari rights over a part of this land were conferred on one Ishwar Singh under Section 15 of the Rajasthan Tenancy Act, 1955. When the petitioners came to know about this fact, they submitted an application to the District Collector Jhunjhunu that the land was ‘gair mumkin nadi’ and khatedari rights of such land could not be conferred on any one. Collector thereupon made a reference to the Board of Revenue vide order dated 5/11/1990. The Board of Revenue vide its order dated 27/8/1991 accepted the Reference and directed cancellation of mutation decided in favour of Ishwar Singh by SBCWP NO.4735/96. SBCWP NO.4740/97. 5 Tehsildar Khetri on 31/1/1971. Subsequently, however, on the writ petition filed by respondents No.4 to 8, Division Bench of this Court vide judgment dated 17/2/1992 remanded the matter to the Board of Revenue for deciding it afresh. Board of Revenue, summoned record from Tehsildar Khetri and thereafter decided reference vide judgment dated 24/2/1993 and further remanded the matter to the District Collector Jhunjhunu on consideration of fact that mutations of khasra numbers 427, 442 and 525 were also carved out of the land of old khasra No.1431 and, therefore, Collector Jhunjhunu should consider making consolidated reference of all such cases. 7) Petitioner-Mahendra Singh in SBCWP No.4735/96 feeling aggrieved thereby, filed a review petition before the Board of Revenue. The Board of Revenue accepted that review petition vide its order dated 11/3/1996 recalled the order dated 24/2/1994 and the matter was thereafter heard afresh. The Board of Revenue thereafter again passed a fresh order on 18/7/1996 accepting the reference and directing cancellation of mutation attested in favour of Ishwar Singh by Tehsildar Khetri on 31/1/1971. At that stage, respondents No.4 and 5 filed review petition before the Board of Revenue which was dismissed vide judgment dated 18/7/1996 with however the direction that petitioner in SBCWP No.4740/97, Smt.Sharbati will not be dispossessed from the land in dispute SBCWP NO.4735/96. SBCWP NO.4740/97. 6 till all other similar cases of this khasra number have been examined and finally adjudicated upon by the Board of Revenue. It was clarified that during this period, petitioners-Smt.Sharbati and Meghraj would not hold proprietary rights and would remain in possession of the land in dispute on the condition of payment of 10 times of the land revenue per annum. The judgment dated 18/7/1996 is subject-matter of challenge in both the writ petitions. 8) While petitioner-Smt.Sharbati has challenged this judgment dated 18/7/1996 on merits, petitioner- Mahendra Singh has prayed for setting aside that part and direction contained in judgment whereby respondents No.4 to 8 were allowed to continue in possession till fresh order was passed by the Collector on other similar cases. 9) On the facts, therefore, it is clear that though the Board of Revenue in its original order dated 3/7/1996 directed cancellation of mutation attested in favour of petitioners-Smt.Sharbati and others but at the same time, directed the Collector to examine legality of other mutations of old Khasra No.1431 to ensure that those mutations were also brought in conformity with the provisions of law. But the judgment passed in the review petition by the Board of Revenue on 18/7/1996 did not recall that direction but merely protected petitioner- Smt.Sharbati and others till a final view was taken SBCWP NO.4735/96. SBCWP NO.4740/97. 7 by the Collector in regard to other khasra numbers. Subsequently, when Collector made another Reference to the Board of Revenue dated 18/7/1996 with regard to Mutation No.442, the Board of Revenue vide its order dated 17/1/2005 cancelled the said mutation with direction that the land in dispute should be again entered as ‘gair mumkin nadi’. In yet another reference made by Collector dated 24/8/2000, also Board of Revenue dated 17/3/2005 directed cancellation of mutation in Khasra No.2184 rakba 0.05, Khasra No.2185 rakba 0.07 and further directed that the said land be again recorded as ‘gair mumkin nadi’. 10) Shri G.K. Garg, learned counsel appearing for petitioners-Smt.Sharbati & Ors. has argued that there are still many other persons whose possession over the lands of old Khasra No.1485 have been regularized and since first direction of the Board of Revenue in its order dated 3/7/1996 was to the effect that Collector Jhunjhunu should examine legality of the mutation of Khasra No.1431 and till that is not done, petitioner Smt.Sharbati cannot be dispossessed. It was argued that there are many other mutations attested in favour of different persons over the land of old Khasra No.1431. Collector therefore be directed to pass effective and final order in respect of such mutations and till then the direction of the Board of Revenue in its order dated 18/7/1996 to SBCWP NO.4735/96. SBCWP NO.4740/97. 8 permit the petitioners in possession of the land on payment of 10 times of the land revenue should be continued. 11) As would be evident from the facts aforementioned that in three different reference proceedings, the Board of Revenue directed cancellation of mutation attested in as many as 50 cases. No other specific instance has been cited. Report of the Tehsildar dated 22/9/2007 categorically states that no other person has been allotted any land out of Khasra No.1431. Report also states that only land which is in the khatedari out of the said khasra measuring 0.3 hectare in the name of Prasada Ram S/o Ladu Ram, was recorded in the khatedari of Ladu Ram long before. It is not ascertainable that Ladu Ram was allotted land by any award of regularization. Moreover, direction of the Board of Revenue is that till khatedari rights conferred by way of regularization on individuals in Khasra No.1431 are not cancelled on appropriate reference proceedings finally by the Board, petitioner- Smt.Sharbati should be allowed to continue in possession. 12) It is trite law that land of river bed cannot be allotted by way of regularization and no khatedari rights as per Section 16(ii) and 27A of the Rajasthan Tenancy Act can be conferred in favour of any person over the land of the river bed. Such SBCWP NO.4735/96. SBCWP NO.4740/97. 9 category of land is excluded for being allotted by way of regularization or otherwise even as per Rule 5 of Rajasthan Land Revenue (Allotment of Land for Agriculture Purpose) Rules, 1970. There are separate set of rules for allotment of lands in the river bed i.e. Rajasthan Land Revenue (Allotment of Tank-bed Land for Cultivation) Rules, 1961 only after issuing a proclamation and after following the procedure of land revenue laws. The relevant Jamabandis of Samwat Years 2012-15, 2015-18 & 2031-34 are placed on record to prove that when Rajasthan Tenancy Act, 1955 came into force w.e.f. 15/10/1955, lands in dispute were recorded as ‘gair mumkin nadi’. Such a land therefore could not be regularized in favour of any party. 13) Division Bench of this Court in the case of Abdul Rahman Vs. State of Rajasthan & Ors. : 2004 (4) WLC (Raj.) 435, has directed that status of any land of river bed cannot be changed and directed that all such lands be restored to their original position as was existing on 15th August 1947. 14) In view of the aforesaid, I do not find that the Board of Revenue has committed any error in passing the impugned-judgment. Although, the direction of the Board of Revenue with regard to continuation of the petitioner-Smt.Sharbati in SBCWP No.4740/1997 in possession of the land in dispute is concerned, same has been complied with. But since that direction was passed on consideration of equity SBCWP NO.4735/96. SBCWP NO.4740/97. 10 and to ensure that there was similar application of law in respect of identically situated parties, that direction also need not be interfered with by this Court. At the same time, liberty is given to petitioner-Smt.Sharbati to approach the District Collector by filing appropriate representation inviting attention to any such case as may be left out where allotment of land by way of regularization of possession out of old Khasra No.1431 recorded as Gair Mumkin Nadi has been made. Such representation be made within a period of two months and if any such isolated case is still found by the Collector, Collector shall consider the same for making a reference to the Board of Revenue within three months thereafter. By virtue of the protection extended to petitioner-Smt.Sharbati by the Board in its order dated 18/7/1996 she may continue to remain in possession till appropriate order by the Collector in regard to others on any such application is passed. Such protection shall remain operative only for a period of four months and not thereafter and petitioner-Smt.Sharbati would then be liable to be evicted from such land even if in any such isolated case reference is made by the Collector without awaiting final adjudication though by the Board of Revenue since already in all major cases such adjudication has been made. SBCWP NO.4735/96. SBCWP NO.4740/97. 11 Both these writ petitions are therefore dismissed in the terms as indicated above though with the aforesaid directions. There shall be no order as to costs. (MOHAMMAD RAFIQ), J. anil