IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- 1. SPL. APPL. WRIT No. 1242 of 1999 STATE OF RAJ.THRO.TEHSILDAR, SIROHI V/S MADAN SINGH & ORS 2. SPL. APPL. WRIT No. 1166 of 1999 SHRI DEVASTHAN BOARD, SIROHI V/S STATE & ORS Mr. BL PUROHIT & Mr. SANDEEP BHANDAWAT, A.G.C., for the appellants. Mr. LR MEHTA, Mr. RAMIT MEHTA & Mr. JP JOSHI, for the respondents. Date of Judgment : 12.5.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. J U D G M E N T These two appeals arise out of two different orders passed by the learned Single Judge on the same day, in two writ petitions, being S.B. Civil Writ Petition No. 1603/99 and 2533/99, having been filed by Devasthan Board and State of Rajasthan respectively. The order under challenge in both the writ petitions was the order passed by the learned Board of Revenue on 9.10.1998, dismissing the reference made to it under Section 82 of the Rajasthan Land Revenue Act, 1952. That order was produced in Writ Petition No. 1603 as Annexure-7, while in Writ Petition No. 2533 it was produced as Annexure-3. The leading order has been passed by the learned Single Judge, in Civil Writ Petition No. 1603. The facts of the case, bereft of unnecessary details are, that there exists a parcel of agricultural land, bearing Khasra No. 2112 and 2113, 2114, total ad- measuring 6 bigha 4 biswa, which was recorded in the Jamabandi of Samvat Year 2000 in the name of temple Sarneshwarji, and one Chaina s/o Ota was recorded as sub tenant. Likewise, in the subsequent Jamabandi, which was prepared for Samvat Year 2010 to 2013 also Chaina was shown to be sub tenant. It is with this factual background, that one Lala s/o Sankala Mali applied for mutation of land in his name, on the ground of his having acquired Khatedari rights by operation of Section 19 of the Rajasthan Tenancy Act, before Tehsildar, claiming himself to be sub tenant, and Tehsildar sanctioned the mutation no. 14 dated 19.6.1962 and conferred Khatedari rights on Lala. Thereafter Lala sold the land to the private respondent Madan Singh, vide sale deed, and consequently mutation no. 560 dt. 7.2.1968 was sanctioned in favour of Madan Singh. It appears, that State Government were feeling that the land in question was of temple Sarneshwarji, and has wrongly been mutated in the name of Lala, and consequently in the name of Madan Singh, with the result that in the year 1987, an application was filed before Collector, Sirohi, under Section 82 of the Rajasthan Land Revenue Act, for making a reference to the Board of Revenue, whereon vide order dt. 27.12.1989, finding both the mutations to be contrary to law, reference was made to the Board of Revenue, which was registered as Reference No. 2 L.R./1/90/Sirohi, and was decided on 4.5.1992. Since in that reference Devasthan Board was not a party, Board of Revenue directed Devasthan Board to be impleaded as party, and the matter was remanded for re-examining the question, as to what continued to be status of the land, after resumption of the Muafi, and then to decide the matter afresh, or to make reference, if necessary. After the matter was remanded, the matter was again registered by the Collector, and notices were issued. During these proceedings Lala expired, and his legal representatives were taken on record. On the aspect, on which the matter was remanded, the matter was gone into, relevant record was requisitioned, and the record keeper was also directed to remain present, his statements were recorded as P.W.1 Chiman Lal, who deposed, that Jamabandi of Samvat Year 2008 was not available in record. Then, it was requisitioned from Tehsildar, who informed, that in village Sirohi, Jamabandi was prepared after Samvat Year 2010, as such Jamabandi of Samvat Year 2008 cannot be produced. Then, programme for preparation of Jamabandi was called, which was also produced, and after the things became clear, that no Jamabandi was prepared in 2008, the matter was heard by the learned Collector. The learned Collector found, that in Jamabandi of Samvat Year 2010 to 2013 Chena s/o Ota Bhoi has been recorded as sub-tenant, and from Jamabandi of Samvat Year 2010 to 2013 it is clear, that land continued to be in the name of Sarneshwarji, as Khudkasht. It was found, that since there is no other endorsement of any alteration in 3 the entries, the land continues to be in the name of Khatedari of temple Sarneshwarji. Then it was found, that so far the validity of mutation no. 14 is concerned, i.e. the question of conferment of Khatedari right of Lala under Section 19(1), the application was required to be moved before Assistant Collector, under Section 19(2), but without such order of Assistant Collector, the Tehsildar has sanctioned mutation, which is fundamentally void. It was also found, that according to Jamabandi, it is Chena, who is recorded as sub tenant, and not Lala, and in view of the fact that Lala was not recorded as sub tenant, he does not become entitled to acquire Khatedari rights. With the above discussions, the conclusions were recorded, that the land in question continued to remain in Khatedari of temple Sarneshwarji, and the mutation no. 14, sanctioned in favour of Lala, was in violation of provisions of Section 19, and was thus beyond jurisdiction. Contention regarding the effect of resumption of Muafi was also considered, and it was found, that since mutation no. 14 in favour of Lala is without jurisdiction and void ab-initio, with the result that purchaser Madan Singh also does not get any right, and mutation in his favour is also bad. With recording these findings, the reference was made to the Board of Revenue. The learned Board of Revenue, vide order dt. 9.10.1998 recapitulated the facts, i.e. the ground on which the reference was made. However, it proceeded to consider the preliminary objection raised, to the effect, that the land in question does not belong to temple Sarneshwarji, as land in question which was known as 'Bawari Suwag” and another set of holding in Khasra No. 2195 to 2197 ad- 4 measuring 16 bighas 1 biswa, which was commonly known as 'Nathuji Wala Jav' belonged to temple Sarneshwarji, however, during the period of erstwhile state of Sirohi, an application was made on 31.12.1948, by the then Revenue Member, whereupon the Chief Minister of the State ordered to resume these lands as Khalsa and instead lands of Khasra No. 1793 to 1799, and 1800 to 1804 and 1810 measuring 42 bighas 6 biswas, was given to the temple Sarneshwarji, and was accordingly entered in the name of Sarneshwarji, instead of aforesaid two lands being 'Bawari Suwag' and 'Nathuji Wala Jav'. Consequently, 'Nathuji Wala Jav' and 'Bawari Suwag' were entered as Khalsa land. With giving out these facts, it was contended, that unless and until that order is cancelled by the competent authority, the reference is not maintainable, as the order of the then Chief Minister of Sirohi, cannot be termed as order passed by and officer subordinate to collector, and as such this reference is not tenable. Another limb of this very argument, that was raised was, that consequent upon that order of the then Chief Minister, the land in question no more continues to be in the name of deity, so as to attract any disability against acquisition of Khatedari rights by individual. The learned Board of Revenue found, that the land no more remain land of Sarneshwarji, in view of the exchange, and thus preliminary objection was sustained. We are told, that both the set of writ petitioners filed review petitions, before the Board of Revenue, but both of them were dismissed. Challenging the aforesaid order of the Board of 5 Revenue, as noticed above, two sets of writ petitions were filed, and the leading judgment was rendered by the learned single Judge in Writ No. 1603 of 1999 filed by Devasthan Board. The learned Single Judge after cataloging the facts, simply concluded, that in view of the clear findings arrived at by the Board of Revenue, when the land no more remained to be of Sarneshwarji, in view of the order of the then Chief Minister of Sirohi State, it cannot be said, that the Board of Revenue committed any error, much less error on law or jurisdictional error, in passing the order, and holding that the reference made under Section 82 of the Act was not maintainable, and thus the writ petition was dismissed. Arguing the appeal, it was argued by Mr. Purohit on behalf of Devasthan Board, that though in view of the findings of the Board of Revenue, he does not mean to contend, that the land continued to be land of Sarneshwarji, but then, since the reference was made of two aspects, the other aspect being, that since Lala was not recorded as Khatedar tenant at the time of commencement of the Act (Rajasthan Tenancy Act, 1955) his case was covered by Section 19(1)(b), and in the cases covered by that eventuality, the Khatedari rights could be conferred/ acquired, only by undergoing procedure prescribed under Section 19(2) of the Act, and that having not been done, the Tehsildar has no jurisdiction to confer Khatedari rights and to sanction mutation. It was submitted, that despite noticing this ground of reference by the Board of Revenue, it has not been decided by the Board of Revenue, which vitiates the order. According to the learned counsel, 6 may be, that the land did not continue to remain in the name of Sarneshwarji, but then, that by itself does not have the effect of validating the mutation in favour of Lala, if it is beyond jurisdiction of Tehsildar, on the face of provisions of Section 19(1)(b), read with Section 19(2) of the Act, and therefore, the reference could not have been rejected on preliminary objections. Arguing the appeal of the State, it was contended by Mr. Bhandawat, that even if it were to be assumed, that the land did not remain that of temple Sarneshwarji, even then, in view of exchange ordered by the then Chief Minister of the Sirohi State, the land became the land of the State, wherein the Khatedari rights could not be acquired by Lala, and therefore, also the mutation no. 14 is required to be set aside, and the Board of Revenue, and the learned Single Judge, has erred in dismissing the reference and writ petitions. Mr. Mehta, learned counsel for the private respondent Madan Singh, tried to support the impugned order, by contending, firstly, that the contention about the land having become the land of the State, whereunder Khatedari rights could not be acquired, was never agitated before the courts below, i.e. in the reference application, or arguing reference, or arguing review before the Board of Revenue, or even in the writ petition, or even in the appeal. In that view of the matter, on the authority of judgment of this Court, in State Vs. Lahar Kanwar reported in 1974 R.L.W.-85, it was contended, that this contention cannot be allowed to be raised for the first time. Then, 7 regarding validity of mutation no. 14, on the anvil of Section 19(2), it was submitted, that as a matter of fact, the matter was considered by the Assistant Collector, and he sanctioned some 20 mutations, and Tehsildar passed order, only in compliance of the order of the S.D.O., and therefore, it cannot be said that the order is bad. For the reasons argued by Mr. Mehta, on the authority of Lahar Kanwar's case, since this aspect has also not been agitated before the courts below, i.e. before the Collector, Board of Revenue, or the learned Single Judge, we are not in a position to allow this contention to be raised, more particularly in absence of any material produced before this Court. In rejoinder Mr. Bhandawat submitted that after the judgment of the Board of Revenue, a review petition was filed, wherein a contention was raised, that the land became the land of the State, wherein Khatedari right could not be given. We have considered this submission, and find, firstly, that the submission about the land having become land of the State is concerned, a look at the order passed by the Board of Revenue, dismissing the review petition, also shows, that may be, that in a round about way contention was raised in the review petition, but then, it was not argued before the Board of Revenue, and admittedly it has not been raised either in the writ petition, or in the appeal, thus we do not find any force to entertain this contention. 8 Thus, the only controversy, that survives is, as to whether Lala was rightly conferred Khatedari rights by mutation no. 14, or the mutation is void, in view of bar under Section 19(2), read with Section 19(1)(b) of the Act? As the things have it, the learned Collector had made it a specific ground for making reference, finding the mutation to be bad, and this fact was also noticed by the learned Board of Revenue, however, what we find from the order of the Board of Revenue is, that since the learned Board of Revenue dismissed the reference, by upholding the preliminary objection, it did not go into this aspect of the matter. May be, that we would have undertaken exercise to go into this aspect ourselves, but as the matter has been argued, we do not find ourselves to be sufficiently assisted, to be able to decide the controversy appropriately. Likewise learned counsel on both the side submitted, that the matter may be remitted back to the Board of Revenue, to examine this aspect of the matter afresh. Accordingly, the appeals are allowed. The order of the learned Single Judge is set aside, and the order of the learned Board of Revenue dt. 9.10.1998 is also set aside, and the matter is sent back to the learned Board of Revenue, for deciding the reference on merits, only on the aspect, as to whether the conferment of Khatedari right on Lala, by mutation no. 14, was in accordance with law, or is 9 invalid, in view of the provisions of Section 19 i.e. 19(2) read with Section 19(1)(b) of the Act, or it can be sustained on any other provisions of Section 19. The parties are directed to appear before the Board of Revenue on 6.7.2009. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/ 10