1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::JUDGMENT: State of Rajasthan & Ors. Vs. M/s Classic Merchants Pvt. Ltd. & Ors. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.68/2010 ..... The Urban Improvement Trust, Udaipur Vs. M/s Classic Merchants Pvt. Ltd. & Ors. D.B. CIVIL SPECIAL APPEAL (WRIT) NO.69/2010 .... Date of Judgment :: 6th April 2010. PRESENT HON'BLE THE CHIEF JUSTICE MR. JAGDISH BHALLA HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Sandeep Bhandawat for the appellants in SAW No.68/2010 Mr.M.R.Singhvi for the appellant in SAW No.69/2010 Mr.M.S.Singhvi, for the respondent (writ petitioner) ..... BY THE COURT: These two intra-court appeals, preferred against the same order dated 03.03.2008 as passed by the learned Single Judge of this Court in CWP No. 5444/2005, have been considered together; and are taken up disposal by this common judgment. The writ petition aforesaid was filed by the respondent M/s Classic Merchants Pvt. Ltd. (the writ petitioner) questioning the show cause notices (Annexures 14 & 15) 2 issued by the Collector, Udaipur in the proceedings for reference initiated under Section 82 of the Rajasthan Land Revenue Act, 1956 (‘the Act of 1956’) in Reference Application Nos. 2/2005 and 3/2005; and seeking declaration that the application for sub-division of the land in question as made to the Urban Improvement Trust, Udaipur (‘UIT’) was deemed to be granted or in the alternative, for direction to the UIT to decide the same forthwith. By the impugned order dated 03.03.2008, the learned Single Judge has allowed the writ petition while holding that initiation of proceedings under Section 82 of the Act of 1956 and issuance of notices by the District Collector, Udaipur had been wholly without jurisdiction; and has directed the UIT to proceed with and decide the writ petitioner's application for sub-division of the land in question. Shorn of unnecessary details, the relevant facts and background aspects of the matter are that by way of the reference applications dated 17.06.2005, the Tehsildar, Girwa made the request to the Collector, Udaipur to make reference to the Board of Revenue for setting aside certain mutation entries dated 08.01.2003, 18.07.2003, 17.08.2004 and 22.09.2004, particularly those relating to the land in question, comprised in Khasra Nos. 118 and 188 of village Goverdhan Vilas, Udaipur admeasuring about 79.7100 hectares, essentially on the ground that such mutation entries in alteration of the revenue record had been effected without orders from the competent authority. 3 The land in question together with other parcels of land, said to be in the ownership of late Maharna Bhagwat Singh of Mewar, was the subject matter of proceedings under Chapter III-B of the Rajasthan Tenancy Act, 1955 (‘the Act of 1955’) as the same was treated to be the agricultural land. In ceiling Case No. 1/1970, the competent authority, by the order dated 11.02.1972, ordered its acquisition as surplus land in the hands of the assessee late Maharana Bhagwat Singh; and the appeal preferred by the assessee was dismissed by the Revenue Appellate Authority, Udaipur on 14.03.1975. Pursuant to the order of the competent authority dated 11.02.1972 as upheld in appeal, the land in question came to be recorded in the revenue records as “Bilanam” on 13.03.1976. The revision petition preferred by the assessee bearing number 587/1976 was dealt with by the Board of Revenue at various ladders and stages. Leaving the details on the rounds of proceedings in the Board of Revenue aside, suffice is to notice for the present purpose that the said revision petition was dismissed by the Board but then, was remanded by this Court while allowing the writ petition preferred by the assessee on 25.11.1989; and, ultimately, the Board of Revenue allowed the said revision petition on 18.12.1995, and remanded the matter to the Sub-Divisional Officer for decision afresh. After remand, on 30.06.1999, the Sub-Divisional Officer, Girwa held the land in question to be the ‘abadi land’ and, therefore, not covered by the provisions of Chapter III-B of the 4 Act of 1955; and, after excluding the land in question, directed acquisition of surplus from the agriculture land in the hands of the assessee late Maharana Bhagwat Singh. Aggrieved against the order dated 30.06.1999, the State and so also the legal representative of the assessee preferred separate appeals that were decided by the Revenue Appellate Authority, Udaipur by the common order dated 02.12.1999; while the appeal preferred by the legal representatives of the assessee (No.102/1999) was partly allowed, the appeal preferred by the State (No.144/1999) was dismissed. Thus, the order passed by the Sub-Divisional Officer on 30.06.1999 holding the land in question to be the abadi land stood affirmed by the appellate authority on 02.12.1999; and attained finality for the State Government not challenging the judgment of the appellate authority any further. There had also been other proceedings in relation to the land in question inasmuch as the same was sought to be assessed for land revenue under the provisions of the Rajasthan Land Reforms & Acquisition of Land Owners Estates Act, 1963 (‘the Act of 1963’) and the said action of the State was challenged by late Maharana Bhagwat Singh in CWP No. 1391/1976, which was partly allowed by the Single Judge of this Court on 26.04.1984; and then, the Division Bench of this Court, by the common judgment dated 01.08.1994, while dismissed the appeal preferred by the State but allowed the appeal preferred by the legal representatives of late Maharana Bhagwat Singh. Another proceeding with 5 respect to the same land was taken up before the Compensation Commissioner under the Act of 1963 wherein also the Compensation Commissioner, Udaipur, by the judgment dated 16.05.1995 held that the land in question was not the estate as defined in the Act of 1963; and the appeal preferred by the State against the said judgment of the Compensation Commissioner was dismissed by the Board of Revenue on 15.01.2003. It appears that on 08.03.2000, the Tehsildar, Girwa directed necessary corrections to be made in the revenue record by recording the land in question as abadi land with reference to the aforesaid orders passed by the Sub-Divisional Officer on 30.06.1999, by the Revenue Appellate Authority on 02.12.1999, and by this Court on 01.08.1994. Accordingly, mutation entries were made in the revenue records on 28.03.2000. Further, on 04.01.2003, an order was passed by the Tehsildar, Girwa on the correction application moved on behalf of the Maharana Mewar Manav Dhara Trust because the land had continued to be recorded in the name of the Government; and pursuant to the order dated 04.01.2003, the corrections were carried out in the revenue records on 08.01.2003. The writ petitioner is alleged to have purchased the land in question as comprised in the said Khasra Nos. 118 and 188 on 10.02.2000 from Maharana Mewar Manav Dhara Trust. On 19.02.2003, the writ petitioner moved an application to the UIT seeking permission for sub-division of the land comprised in 6 Khasra No. 188 with deposit of necessary fees/charges. The writ petitioner alleged that the Tehsildar, Girwa informed about the land in question having been recorded as abadi land and no case regarding title, classification or possession being pending in any Court. According to the writ petitioner, the Senior Town Planner approved the proposal for sub-division with necessary modification and the concerned committee of the UIT also found the proposal worth approval. The writ petitioner further alleged that a notice was served on its behalf to the UIT on 05.07.2004 to the effect that the application for sub-division had been submitted after completing all the formalities and in case sanction would not be issued within 30 days, that shall be deemed to have been granted; and, for no order either granting or refusing sub-division having been received within 30 days from the date of delivery of notice, sanction was presumed and the writ petitioner started carrying out improvement at the land in question. The writ petitioner pointed out that a letter was received from the UIT on 08.05.2005 stating that the application for sub-division had been rejected and an amount of Rs.17,23,500/- was being returned after deducting 10%. According to the writ petitioner, the said communication was responded on 17.06.2005 while returning the cheque and informing that it has already acted upon the sub-division deemed to have been granted. The writ petitioner submitted that in the backdrop of such proceeding, the applications were got moved from the Tehsildar, Girwa under Section 82 of the Act of 1956 for 7 making reference to the Board of Revenue against the entries made in correction of the record; and on these applications, the notices were received by the writ petitioner from the office of the Collector, Udaipur. The writ petitioner questioned the said proceedings as being wholly without jurisdiction for the land in question having conclusively been held to be the abadi land; and the mutation having been effected only to correct the record as per the concluded decisions. It was alleged that only when the writ petitioner pressed for sub-division of the land by moving application before the UIT that such proceeding were sought to be adopted at the behest of the Collector, Udaipur who was also functioning as the Chairman of the UIT. The learned Single Judge upheld the contentions of the writ-petitioner and found the proceedings seeking reference wholly baseless while observing,- “It is clear from the pleadings of the parties and further fact that neither the counsel for the State nor the counsel for the UIT, Udaipur could dispute the orders passed by the various authorities and the courts referred above and they rightly did not dispute the above orders. In this writ petition then in view of the fact that the land which was made subject matter under Chapter IIIB of the Act of 1955 treating that land to be agricultural land and in that proceedings because of the order passed by the SDO dated 11.2.1972 and appellate order dated 14.3.1975, the land in question was recorded as “Bilanam” if has been corrected by the Tehsildar of the concerned area on the request made by the affected party when those orders were reversed and specific finding of the SDO, Girwa dated 30.6.1999 that land in question is abadi land, as upheld by the order of the Revenue Appellate Authority dated 2.12.1999, then how that action of the Tehsildar could have been condemned and can be challenged by the Tehsildar and can be made subject matter of reference under Section 82 of the Act of 1956? The decision of holding the land in question to be Abadi became final has not been disputed by the respondents. The only objection is that the correction in the revenue record regarding land to be Abadi land was effected without order of the competent authority. This argument is based on misinterpretation of law that an existing entry made in the 8 revenue record can be changed only by order passed by the competent authority ignoring the fact that if any entry is made in pursuance of the order passed by any court and that order is reversed then the entry in the revenue record is required to be made in consonance with the order by which the earlier order in pursuance of which, changes were effected have been reversed.” (Underlining supplied) The learned Single further found the proceedings incompetent while pointing out that the State never challenged the order passed by the Revenue Appellate Authority who being not an authority subordinate to the Collector, no reference could be made under Section 82 ibid while observing,- “Learned counsel for the petitioner was further right in contending that all disputes cropped up immediately when the petitioner purchased the property in dispute by registered sale deed and before that the State never disputed about the nature of the land, which is clear from the fact that State did not challenge the order/judgment of the Revenue Appellate Authority dated 2.12.1999 affirming the finding of the SDO, Girwa holding the land in question as Abadi land. At this juncture, it will be relevant to mention here that Revenue Appellate Authority is not subordinate to the Collector and, therefore, no reference under Section 82 can be made by the District Collector against the judgment passed by the Revenue Appellate Authority and the Collector is competent to make reference with respect to the order passed by the officers subordinate to him only.” (Underlining supplied) The learned Single Judge found all the propositions stated in the application seeking reference untenable and the proceedings without jurisdiction when related to the abadi land while saying,- “.......Apart from above facts, if we look into the reasons given in the application submitted under Section 82 of the Act of 1956 then it appears that reference has been sought when it is not disputed that land was earlier belonging to Late Maharaja Bhagwat Singh and was subject matter in the 9 agricultural land ceiling proceedings under Chapter IIIB of the Act of 1955 and land has already been declared to be Abadi land. The objection is with respect to the correction made by the Tehsildar which is in consonance with the order passed by the SDO and Revenue Appellate Authority holding the land to be Abadi. Not only this, even the objections have been raised with respect to the legality of the registered sale deeds and that too on the grounds that Tehsildar did not inquire into the title to the property when in the reference under Section 82 the legality and validity of the sale deed neither can be questioned nor sales can be declared illegal. In the reference application even it has been questioned how the two mutations were effected in one day. The one plea is that the property was sold by the trust before it acquire the title and i.e.,legally, which is factually absolutely wrong because the Tehsildar proceeded to assume that the title can be acquired only if the entires are made in the revenue record and not by operation of law when the legal transfer deeds are executed. Otherwise also, the land in question is Abadi land then initiation of proceedings under the provisions of Land Revenue Act governing the agricultural lands is wholly without jurisdiction and, therefore, on the basis of above application, the District Collector, Udaipur could not have issued the notice Annex.14.” (Underlining supplied) Assailing the order dated 03.03.2008 as passed by the learned Single Judge, it is contended on behalf of the appellants that the learned Single Judge has failed to consider that the jurisdiction to declare the land into abadi does not vest in the Tehsildar; and the Tehsildar, Girwa acted wholly without jurisdiction in declaring the land as abadi and making mutations without any order of the competent authority. It is further submitted that the respondent preferred the writ petition only against the show cause notice; and the learned Single Judge was not justified in entertaining such petition without final adjudication of the matter under the notice. It is submitted that the proceedings as taken up by the Collector cannot be considered totally without jurisdiction inasmuch as the Collector has the jurisdiction to deal with the proceedings for 10 reference under Section 82 of the Act of 1956; and the learned Single Judge has been in error in interfering in the writ jurisdiction in a show cause notice even while entering into the disputed questions of fact. Learned counsel for the appellant State has relied upon a Division Bench decision of this Court in the case of M/s Choksi Platinum Pvt. Ltd. Vs. Union of India & Ors.: 2002 WLC (UC) 729 and that of the Hon'ble Supreme Court in the case of Dr. Shashank Bhalchandra Subhedar Vs. Commissioner of Customs: 2001 (132) ELT 268. Having given a thoughtful consideration to the submissions made on behalf of the appellants and having examined the impugned order dated 03.03.2008 with reference to the material placed on record, we are unable to find any reason to show interference in these intra-court appeals. True it is that the writ petition was preferred by the respondent (writ petitioner) in challenge to the notices issued by the Collector for the proceedings under Section 82 of the Act of 1956 but then, it is not an absolute proposition of law that every writ petition filed in challenge to a show cause notice is required to be rejected outright. The decisions in M/s Choksi Platinum and Dr.Shashank Bhalchandra Subhedar, as relied upon by the learned counsel for the appellant, essentially proceeding on their own facts relating to the show cause notices issued under the Central Excise Act and the Customs Act, have no application to the fact situation of the 11 present case. The notices as issued in this matter were questioned on the fundamental ground of want of jurisdiction; and the learned Single Judge cannot be said to have erred in entertaining and dealing with the petition on merits. So far as the factual aspects are concerned, the appellants do not appear correct in suggesting that the matter involved disputed questions of fact. As noticed by the learned Single Judge in the passages reproduced above, it remains rather indisputable a position that the land in question was conclusively declared to be the abadi land in the order dated 30.06.1999 as passed by the Sub-Divisional Officer that was upheld by the Revenue Appellate Authority on 02.12.1999; and the orders so passed became final for having not been challenged further. There were no such disputed questions of facts wherefor writ jurisdiction was required to be declined in this matter. On the substance of the matter, the very proposition for making reference appears to be without jurisdiction and the proceedings to be either an eyewash or an exercise attempted at the harassment of the writ petitioner. As noticed by the learned Single Judge, ‘the decision of holding the land in question to be Abadi became final has not been disputed’ by the present appellants. The only objection suggested against the disputed mutation entries was that the same were effected without orders of the competent authority. Contrary to what has been suggested in the application seeking reference, in fact, such entries were required to be effected as a necessary 12 consequence of the orders conclusively made that the land in question was not the agriculture land but was an abadi land. In fact, the land in question came to be recorded as Government land on 13.03.1976 only because at the relevant time, the finding had been recorded against the assessee. However, as noticed, the very basis of such entries was knocked out with the conclusive orders of the competent authorities on 30.06.1999 and 02.12.1999. The error, if any, on the part of the revenue authorities was of not carrying out correction of record pursuant to such orders. It sounds rather preposterous that when carried out, such corrections would be sought to be questioned in the name of the baseless objection of want of a formal order of the competent authority. Any attempt in questioning the mutation entries, when standing in conformity with the concluded orders as passed against the State, could only be said to be without jurisdiction and an exercise wanting in bonafide, apart from being in futility. The learned Single Judge has further rightly held that the Collector was not even competent to make a reference under Section 82 of the Act of 1956 in relation to a judgment passed by the learned Revenue Appellate Authority who was not an authority subordinate to him. As aforesaid, the mutation entries are essentially a consequence of the order finally passed by the Revenue Appellate Authority. Moreover, when the finding remains final and conclusive that the land in question is abadi land, any proposition of the dealing with the same under the Act of 1956 could only be said 13 to be fundamentally without jurisdiction; and the learned Single Judge cannot be said to have erred in quashing the same. In the given set of facts and circumstances, the other directions to the UIT to deal with the application for sub-division in accordance with law remain unexceptionable being rather of necessary consequence. Having examined the record, we are satisfied that the learned Single Judge has dealt with the matter in accordance with law and there does not appear any valid reason to show interference in these appeals. Accordingly and as a result of the aforesaid, there is no merit in these appeals and the same stand dismissed. No costs. (DINESH MAHESHWARI),J. (JAGDISH BHALLA),CJ. MK