IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Pali Ram Charitable Trust Surajgarh Vs. State of Raj. & Others (S. B. Civil Writ Petition No.6759/2003) S.B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: August 20th, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Paras Kuhad with Mr. Sunil Nath, Mr.Ghanshyam S. Sisodia, and Mr. Achintya Kaushik, for the Petitioner. Mr. Dinesh Yadav, Addl. Advocate General for the State. Reportable Per Court: Before entering into the battlefield of Kurukshetra, the Pandavs had pleaded for grant of only five villages in their favour. The plea was contemptuously dismissed by the blind King of Hastinapur, Dhritrastra. Similarly in this case, the petitioner and its predecessor- in-interest have been running from pillar to post pleading that the land which was bought by Seth Pali Ram and Brij Lal, respondents No.4 and 5, in 1942 and which was subsequently transferred to the petitioner Trust, should be registered in the revenue records in favour of the Trust. Despite a labyrinth of litigations, inspite of its chequered history, the petitioner is hopelessly hoping that justice would be done to it. Like a voice in the wilderness, the petitioner has floated in the corridors and courtrooms with a glimmer of hope that someone some day would hear its pleas. Like the Pandavs, the petitioner is still out in the legal wilderness. 2. The petitioner has challenged the order dated 25-4-2003 passed by the Board of Revenue (`the Board' for short), whereby a reference made by the Additional Collector, Jhunjhunu has been accepted. The learned Board has cancelled the mutation made in favour of the petitioner, and has directed that the land in question be declared as Gochar (pasture land). The petitioner has also prayed that the land in question should be recorded in its name in view of two favourable orders passed earlier, namely order dated 1-11-1954, passed by the Sub Divisional Officer, Jhunjhunu (`the SDO' for short) and order dated 7-11-1983, an order passed by the Settlement Commissioner. 3. This case has gone through a roller coaster ride for more than five decades. The journey begins in 1942: in order to earn pious deeds, Seth Pali Ram wanted to establish a pasture land for cows, who are considered holy by the Hindus. In order to establish a pasture land, he bought land situated in village Jakhod, Tehsil Chirawa, District Jhunjhunu, from the then Thikanedar of Bissau, Thakur Raghuvir Singh. He paid Rs.17,683/- for the said land. While the old khasra Numbers were 72, 140, 141, 143/2, 144, 145, 146, 147, 148, 149, 150, 181, 140/60 total kita 13 measuring 216 Bighas 13 Biswas, the new Khasra numbers are 52, 183, 199, 208, 202, 367, 494/202 total 7 kita measuring 53.59 hectares. According to the Patta (title-deed) issued by the then Thikanedar of Bissau, the land was to be used only as a pasture land for the cattle of the village. Even if part of the land were to be used for agricultural purpose, even then the income earned from the agricultural activities was to be plied back for the benefit of the pasture land. Moreover though a house could be built, but it was to be used only for the purpose of housing such persons who would look after the pasture land; the land could not be used for the personal usage of Seth Pali Ram. 4. Despite the patta issued by Thakur Raghuvir Singh in favour of Seth Pali Ram, the land was not mutated in his name. Till 1954 the land was shown in revenue record as Shamlat Deh (common land). Therefore, in 1954 Seth Pali Ram, and Brij Lal moved an application before the SDO, Jhunjhunu for correcting the revenue record. Before correcting the said record, the SDO called for a report from the Numberdar of the area. On 27-8-1954, the Numberdar submitted his report, to the SDO. In his report, he clearly stated that Seth Pali Ram ji and Brij Lal ji had bought the land mentioned in the report from Thikana Bissau. They were in possession of the land for the last twelve years. They have constructed a boundary wall around the said land. They have left the land as “Gochar-bhoomi”, i.e. as pasture land. Although camels and goats are not permitted to graze in the said land, other cattle is permitted to graze. Out of the total land, 16 Bighas of land has been kept for agricultural purpose. The said land is in possession of Seth Pali Ram and Brij Lal. 5. Similarly, the SDO had called for the report of the Tehsildar. On 18-9-1954, the Tehsildar submitted his report. The Tehsildar also stated that although the land is being shown as Shamlat (common land), the land was sold by Thikana Bissau after taking a consideration. According to Tehsildar, he visited the said land and discovered that Seth Pali Ram had constructed a wall around the land. The land was in his possession. Cattle belonging to the villagers graze in the land without the villagers paying any taxes. Moreover, he noted that according to the Patta granted by Thikanedar Bissau, the said land could be used for agriculture purpose, and not for the purpose of construction of a house or for any personal usage. He further noted that he had taken the statement of Numberdar. The Numberdar had informed him that the land was in possession of Seth Pali Ram for the last twelve years. The Tehsildar also got a site plan prepared of the area by the Patwari, which formed part of his report. According to the Patwari, the land, in fact, should have been recorded in the name of Seth Pali Ram and Brij Lal. The Tehsildar also recommended that the revenue record be corrected and the land should be shown in the name of Seth Pali Ram and Brij Lal. Having considered these two reports, vide order dated 1-11-1954, the SDO directed that revenue record be corrected and the land be entered in the name of Seth Pali Ram and Brij Lal. It is pertinent to note that no one has challenged the said order. It has, therefore, achieved finality. However, despite the clear direction of the SDO, the necessary correction was not carried out in the revenue record. 6. The Rajasthan Tenancy Act, 1955 (`the Act' for short) came into force on 15-10-1955. However, even after coming into force of the Act, even after the direction contained in the order dated 1-11-1954, unfortunately the land continued to be shown as “Shamlat Gochar” (common pasture land) till 1980. Therefore, on 16-6-1980 an application was moved before the Settlement department for correcting the revenue record. According to the order dated 28-6- 1980 passed by the Assistant Land Settlement Officer-cum- Assistant Land Record Officer (`the Settlement Officer' for short), the land in question was being shown as Sivai-chak (government land). Moreover, the learned Settlement Officer noted the fact that according to the order dated 1-11-1954 passed by the then SDO, it was directed that the said land be entered in the name of Seth Pali Ram and Brij Lal. He also noted that the necessary correction had not been carried out. Therefore, vide order dated 28-6-1980, he directed that the necessary correction be carried out and the said land should be entered in the name of Seth Pali Ram and Brij Lal. 7. On 12-9-1980, the villagers of village Jakhod submitted an application, under Section 82 of the Rajasthan Land Revenue Act (`The Revenue Act', for short), praying that the order dated 28-6- 1980 be quashed and set aside. The said application was transferred to the Settlement Commissioner-and-Land Consolidation Officer. Vide order dated 7-11-1983, the learned Settlement Commissioner dismissed the said reference. He dismissed the reference on the ground that the order dated 28-6-1980 should have been either appealed against, or a review petition should have been filed against the said order. Since, neither a review, nor an appeal had been filed, the reference was not maintainable. 8. Aggrieved by the order dated 7-11-1983, the Gram Panchayat Jakhod filed an appeal under Section 75 of the Revenue Act before the Board. However, vide order dated 26-8-1988, the learned Board dismissed the said appeal on the ground that once the Land Settlement Commissioner has declined to make a reference, then no appeal lies to the Board. Moreover, in case the Gram Panchayat were aggrieved by the order dated 28-6-1980, passed by the Settlement Officer, it should have filed an appeal or a revision or it should have requested the State Government to refer the matter. Since neither an appeal nor a revision was filed by the Gram Panchayat, therefore, the appeal was dismissed. The Gram Panchayat never challenged the order of the learned Board dated 26- 8-1988. Therefore, the order passed by the learned Settlement Officer directing that the revenue record be corrected, that the land be entered in the name of Pali Ram and Brij Lal, achieved finality. Thus, the controversy should have rested with the order dated 26-8- 1988 passed by the learned Board. 9. But that was not to be. After a silence of five years, suddenly in 1993, the Tehsildar, Chirawa submitted an application under Section 82 of the Revenue Act before the Additional Collector, Jhunjhunu requesting him to make a reference against the order dated 28-6- 1980. Interestingly, the said application was filed against Seth Pali Ram, Brij Lal and the present petitioner Trust. While passing an ex- parte order, dated 17-7-1993, the learned Additional Collector made a reference to the learned Board. 10. After receiving the said reference from Additional Collector, but without issuing any notice to the petitioner or to Pali Ram and Brij Lal, vide order dated 6-5-1998, the Board accepted the reference and set aside the Khatedari rights of the petitioner. It ordered that the land be recorded again as Shamlat Gocharai (common pasture land). Since the said order was passed ex-parte, the petitioner moved an application before the Board for setting aside the ex-parte order. Vide order dated 20-5-1999, the said ex-parte order was recalled and the reference was directed to be placed before the Board. 11. Vide order dated 25-4-2003, the learned Board accepted the reference and again directed that the name of the petitioner and Seth Pali Ram and Brij Lal should be removed from the record. And the land should be shown as common government pasture land. Since the petitioner is aggrieved by the said order, it has knocked at the doors of this Court. 12. With regard to the maintainability of the writ petition, Mr. Dinesh Yadav, the learned Additional Advocate General, has raised preliminary objections. According to him, the petitioner Trust cannot file the writ petition. For, the land was allegedly sold to Seth Pali Ram and the land was directed to be mutated in the name of Seth Pali Ram and Brij Lal. There is no averment in the petition as to when the Trust was created, or when the land was transferred to the Trust. Moreover, when the land was gifted to the Trust, the gift deed was impounded. When the gift deed was impounded, the Trust asked that the gift deed be cancelled. In fact, the gift deed was cancelled; the cancellation deed was registered on 27-5-1993. Thus, the Trust is now pre-empted from raising any grievance about the land. Secondly, the Trust nowhere states that it would continue to use the land for the purpose of pasture. Considering the phenomenal rise in land prices in the State, there is a strong possibility that the land would be sold of to private builders. 13. On the other hand, Mr. Paras Kuhad, the learned counsel for the petitioner Trust, has countered that vide order dated 29-10-1993, the Collector (Stamps) had directed the petitioner Trust to pay stamp duty on the gift deed. Subsequently, the Trust paid the said stamp duty. Hence, the cancellation deed was impliedly set aside by the Collector (Stamps). Thus, the land belongs to the Trust. But despite this fact, the land is continuously being shown as “government land”. Hence, the grievance of the petitioner Trust before this court. Secondly, the Trust gives an undertaking before this court that in case the land were mutated in its name, the Trust would continue to use the land only as a pasture land. The Trust will abide by the conditions contained in the Patta. Thirdly, since the Trust was arrayed as party-respondent before the Board, the Trust is competent to file the present writ petition before this Court. 14. Heard the learned counsel on the preliminary objections. Admittedly, the reference was made against the petitioner Trust, and the Trust was arrayed as party-respondent before the Board. Moreover, a copy of the Trust deed has been submitted before this court. According to the said deed, the Trust is engaged in propagation of Hindu religion. One of the deeds of a pious Hindu, one of the functions of a Hindu organization is to feed the cows which are considered holy by the Hindus. The Trust has also given an undertaking that it would continue to utilize the land as a pasture land. It has further given the undertaking that it would not use the land for any other purpose, but for the specific purpose for which the land was bought. The Trust is, thus, bound by its undertaking. Further, the order dated 29-10-93 clearly shows that the Collector (Stamps) had noted the fact that the gift deed of the land was impounded and was cancelled by the Trust. However, he was of the opinion that the Trust had agreed to have the gift deed cancelled in order to escape the liability of paying the stamp duty. Although the learned Collector has not specifically set aside the cancellation deed, but he did direct the Trust to deposit Rs. 1,47,965/- as stamp duty and as penalty. Thus, impliedly he has set aside the cancellation deed. Subsequently, the Trust did deposit the said amount with the Stamp department. Therefore, the land stood duly gifted to the Trust. Hence, the Trust is competent to file the present writ petition challenging the order of the learned Board. Thus, the preliminary objections are without force. 15. Mr. Kuhad, learned counsel for the petitioner, has raised plethora of contentions before this Court: 16. Firstly, a bare perusal of the patta issued by Thakur Raghuvir Singh clearly reveals that to earn pious deeds, Seth Pali Ram had bought land for a consideration of Rs.17,683/- in order to establish pasture land for the cattle of the village. Since the land was bought, obviously, the title passed from Thakur Raghuvir Singh to Seth Pali Ram. Although the purpose of buying the land was to create pasture land for the benefit of villagers, but nonetheless, the title of the land vested with Seth Pali Ram. However, the land continued to be shown as “common land” in the revenue record. Therefore, Seth Pali Ram was justified in seeking correction in the revenue records. 17. Secondly, according to Para 398 of the Khetri Revenue Manual (`the Manual' for short) “a Revenue Court is a Revenue Officer acting in a judicial instead of in an executive capacity”. Moreover, Para 400 of the Manual enumerates different kinds of Revenue cases. According to Para 400 (1), “suits regarding corrections in records of rights” are to be filed before the Revenue Officer. Thus, the Revenue Officer acts as the Revenue Court; he has ample power to correct the revenue records. 18. Since the Rajasthan Tenancy Act did not come into operation till 1955, the field was held by the Manual. It is under this Manual and especially under Para 400 (1) that an application was filed by Seth Pali Ram for correction of the revenue records before the learned SDO. The learned SDO called for the reports of the Numberdar and the Tehsildar. After considering both the reports, which were in favour of Seth Pali Ram, vide order dated 1-11-1954 the SDO directed that the revenue record be corrected and the name of Seth Pali Ram and Brij Lal be shown in the revenue record. According to the learned counsel, this order has been passed by the SDO as a judicial officer and not as an executive officer. Thus, it is a judicial order. The said judicial order was never challenged either by the State or by the Gram Panchayat. Hence, it has achieved finality. 19. Thirdly, since the said judicial order was not implemented, in 1980 Seth Pali Ram again moved an application for correction of revenue record before the Assistant Land Settlement Officer-cum- Assistant Land Record Officer. Relying on the order dated 1-11-1954 and in order to give effect to the said order, vide order dated 28-6- 1980, the learned Settlement Officer directed that necessary correction be made in the revenue record. Even this order was not challenged by way of review, revision or appeal by anyone. Therefore, even this order has achieved finality. 20. Although the Gram Panchayat had tried to have a reference made against the order dated 28-6-1980, but vide order dated 7-11- 1983 the Settlement Commissioner had refused to make the reference. Of course, the Gram Panchayat had filed an appeal against the said order before the Board. But vide order dated 26-8- 1988, the learned Board had also dismissed the said appeal. Therefore, Mr. Kuhad has contended that there are four orders which are in favour of the petitioner, namely order dated 1-11-1954 passed by the SDO, order dated 28-6-1980 passed by the learned Settlement Officer, order dated 7-11-1983, passed by the Settlement Commissioner, and order dated 28-6-1988 passed by the Board. Hence, the controversy should have rested then and there. 21. While attacking the order dated 7-11-1983 passed by the Additional Collector, the learned counsel has raised the following contentions: 22. Firstly, the order dated 7-11-1983 was passed under Section 82 of the Land Revenue Act. Once a competent authority has refused to make a reference, once the Board has upheld the said order, then a second reference could not be made by the Additional Collector. For, there has to be an end to litigation. 23. Secondly, the Additional Collector has not set aside the order dated 7-11-1983, whereby the Settlement Commissioner had refused to make the reference. Thus, two contradictory orders exist simultaneously namely, one refusing to make the reference, and the other making the reference. 24. Thirdly, the Additional Collector does not have the power to review the earlier order dated 7-11-1983, specially when the said order was upheld by the Board vide order dated 26-8-1988. 25. Fourthly, by making a reference, in fact, the Additional Collector has set aside the order dated 26-8-1988 passed by the Board. However, under Section 82 of the Land Revenue Act, the Additional Collector does not have the power to do so. Therefore, he has overstepped his jurisdiction. 26. Fifthly, the Additional Collector has made the reference after a lapse of thirteen years. The power of making reference should be exercised within a reasonable time. The power certainly cannot be exercised after an inordinate delay of thirteen years. In order to buttress this contention, the learned counsel has relied upon the case of Anandi Lal Vs. State of Rajasthan [1995 (1) R.L.R. 555]. 27. While challenging the order dated 25-4-2003, Mr. Kuhad has raised the following contentions: 28. Firstly, that the said order suffers from non-application of mind. For, the Board has totally ignored the previous history, narrated above, while considering the facts of the case. 29. Secondly, the learned Board has ignored the fact that the land was bought by Seth Pali Ram. Merely because the land was being used as a pasture land, for a public purpose, it does not denude the ownership of land vested in Seth Pali Ram. Once the title of the land passed to Seth Pali Ram, the land could not be shown as “government land”. For, in order to show it as a “government land”, obviously, the land would have to be acquired by the government. But there is no evidence to show that the land was ever acquired. Hence, the Board should have examined the ownership of the land, rather than be swayed by the usage of the land. This aspect has been ignored totally by the learned Board. 30. Thirdly, the learned Board has given two reasons for accepting the reference: firstly that for a long period the land was shown as “a public land”. According to Section 16 (1) of the Revenue Act, a pasture land cannot be transferred to a private person. However, as stated above, this reasoning overlooks the fact that the land vested in a private person and the said land was never acquired by the government. Therefore, merely because the land was used as a pasture land, the title of the land does not change. Secondly, the learned Board was of the opinion that the Settlement Officer has limited power. He could not have conferred khatedari right without any finding of a competent court. According to the learned counsel, even this reasoning is flawed, as the learned Board has overlooked the fact that the order dated 1-11-1954 was passed by a Revenue Court, and the order dated 28-6-1980 was passed on the basis of the order passed by the Revenue Court. Moreover, the Settlement Officer has merely corrected the revenue record and has not conferred a khatedari right. 31. Lastly, the Board has ignored the fact that the reference has been made after inordinate delay of thirteen years. Thus, clearly the reference was hit by limitation. 32. Mr. Dinesh Yadav has raised the following counter-contentions: 33. Firstly, that the land could not have been sold by Thakur Raghuvir Singh to Seth Pali Ram under the Manual. For, Para 5 of the said Manual clearly states that Biswedar has a right to sell biswedari land but under certain restrictions. According to para 5 (a) “no biswadari land shall be sold or mortgaged to any Mahajan or money lender without the special sanction of the Ijlas”. Since Pali Ram belonged to the Mahajan community, and since Thakur Raghuvir Singh was a biswedar, he could not have sold the land to a Mahajan without the special sanction of the Ijlas. Moreover, according to Para 6 of the Manual, if Biswedari land is sold in contravention of the law, the purchaser or mortgagee shall have no right in the land. Since the land was sold in contravention, therefore, Seth Pali Ram did not have any interest in the land. Furthermore, according to Para 34 of the Manual, a Jagirdar does not have any power to mortgage or sell the Jagir in any circumstances. Thus, Thakur Raghuvir Singh could not have sold part of his Jagir to Seth Pali Ram. Thus, according to Mr. Yadav, Thakur Raghuvir Singh was not competent to sell the land; Seth Pali Ram was equally incompetent to buy the land. Therefore, the Patta issued by Thakur Raghuvir Singh is hit by Section 23 of the Contract Act. 34. Secondly, the conduct of Seth Pali Ram and Brij Lal creates a doubt about the genuineness of the entire transaction. According to the petitioner, the patta was issued in 1942, yet the first application for correction of revenue record was not filed till twelve years later, i.e. in 1954. The petitioner has not offered any explanation for the inordinate delay of twelve years. Moreover, the Rajasthan Tenancy Act came into operation in 1955, which created the office of SDO, yet curiously the order dated 1-11-1954 has been passed by a SDO. Interestingly, the order has been passed by the SDO, even when the office of SDO did not exist. According to Mr. Yadav, the sale of land was back dated in order to escape the rigors of Section 52 of the Jagir Resumption Act. Further, the sale was also back dated in order to escape the rigors of Section 16