SBCWP NO.1692/01. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.1692/2001. Jagdish and ors. Vs. State of Rajasthan and ors. Date of order :- 30 June, 2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Suresh Pareek and Shri P.S. Sharma for the petitioners. Shri Sanjay Srivastava, Deputy Government Counsel for the State. **** BY THE COURT:- Reportable This writ petition has been filed by the petitioners challenging the judgment of the Board of Revenue dated 18/10/1999 which while accepting the reference made to it by the District Collector Sawai Madhopur vide order dated 23/12/1993, set-aside the Mutation No.11 dated 8/3/1977 attested in favour of petitioners with regard to land in dispute. A further prayer has been made that the order dated 20/5/1992 passed by the Sub Divisional Officer Sawai Madhopur (for short, the “SDO”) may also be quashed and set- aside and the land may be recorded as sawai chak. SBCWP NO.1692/01. 2 2) I have heard Shri Suresh Pareek and Shri P.S. Sharma, learned counsel for the petitioners and Shri Sanjay Srivastava, learned Deputy Government Counsel. 3) Shri Suresh Pareek and Shri P.S. Sharma, learned counsel for the petitioners have argued that the Board of Revenue erred in law in accepting the reference and setting aside the Mutation dated 8/3/1977 mainly on the ground that this land was earlier recorded in the khatedari of Jagannath and objection thereagainst filed by the petitioners was rejected by the SDO vide order dated 31/12/1976 which order was later upheld by the Revenue Appellate Authority Kota and, thereafter, by the Board of Revenue vide its judgment dated 19/3/1985. It was argued that the Board of Revenue failed to correctly appreciate the matter when it held that mutation dated 8/3/1977 was attested in favour of petitioners only on the basis of the earlier judgment of the Board of Revenue dated 30/7/1971 and there was no direction to that effect in that judgment. Learned counsel argued that the land in dispute was admittedly entered in the khatedari of the petitioners even much before the commencement of the Rajasthan Tenancy Act, 1955 and that it was wrongly entered in the khatedari of Jagannath pursuant to an order passed by Tehsildar Sawai Madhopur dated 21/11/1952. Learned counsel referred to the judgment of the Board of Revenue dated 25/9/1957 and submitted that the Board of Revenue vide that judgment allowed revision petition filed by the petitioners’ predecessors-in-title and categorically SBCWP NO.1692/01. 3 held that order dated 28/5/1956 by which the SDO allowed the application filed by Jagannath against the petitioners on the ground that petitioners, as khatedars of the land in dispute, failed to construct the well in the land and thus violated the conditions of the khatedari. The said order was passed by the Tehsildar Sawai Madhopur and upheld by the S.D.O. without any opportunity of hearing to the petitioners/their predecessor-in-title in utter violation of the principles of natural justice. The aforesaid two orders were therefore set-aside by the Board of Revenue. The writ petition filed by Jagannath against the said order, being DBCWP No.213/1968, was allowed by the Division Bench of this Court vide order dated 18/12/1961. Learned counsel therefore submitted that it was in this back ground that judgment of the Board of Revenue dated 30/7/1977 was required to be appreciated. In that judgment, it was categorically held that while the dispute was pending before the Board of Revenue in earlier litigation, Jagannath was in possession of the land as on 27/1/1956 and 28/5/1955 and he requested the Settlement Officer Kota to correct the record accordingly. Ultimately, order putting Jagannath in possession was again passed by the SDO on 8/3/1963 which when challenged at the instance of the petitioners' predecessor-in-title which was quashed by the Board of Revenue vide its order dated 1/6/1966. Jagannath then initiated proceedings under Section 145 Cr.P.C. and the disputed land was attached. Board of Revenue in judgment dated SBCWP NO.1692/01. 4 30/7/1971 held that this attachment of the property was merely meant to determine the question of present possession for the purpose of law and order but the possession of Jagannath at the material time even for the purpose of 145 Cr.P.C. was result of the execution of the order of SDO which already stood reversed and, therefore, the Board held that the revenue courts had in exercise of powers under Section 144 C.P.C. could direct restitution of possession to the petitioners and accordingly the Board of Revenue directed so. This judgment dated 30/7/1971 was again subjected to challenge by Jagannath before this Court in S.B. Civil Writ Petition No.1175/75, which too was dismissed by the judgment of this Court vide order dated 24/2/1984. Learned counsel therefore submitted that the land at that point of time was illegally recorded in the name of Jagannath owing to the orders of the Tehsildar and SDO which were eventually quashed and set-aside and, therefore, the ceiling proceedings initiated against Jagannath in regard to such land could not bind the petitioners. Mere fact that the judgment of the Board of Revenue dated 19/7/1985 was not challenged by the petitioners upholding rejection of their objections would not make any difference as to the correctness of the judgment passed by the Board of Revenue on 25/9/1957 which was later reiterated vice subsequent judgment dated 30/7/1971, both of which were subjected to challenge before this Court and upheld by this Court with dismissal of writ petitions filed by Jagannath. Learned counsel therefore submitted that SBCWP NO.1692/01. 5 the order dated 20/5/1992 recording land as sawai chak is wholly illegal as being in conflict with the judgment of this Court and for the same reason, judgment of the Board of Revenue dated 18/10/1999 accepting the reference deserves to be set-aside. 4) Shri Sanjay Srivastava, learned Deputy Government Counsel opposed the writ petition and submitted that land in dispute measuring 27 acres of land was recorded in the khatedari of Jagannath. As per the law applicable at the relevant time, he could retain only 30 acres of land, thus, he was having 49 acres of surplus land which was rightly acquired by the government. The petitioners were strangers to the proceedings. Yet, their objections were entertained and rejected by the SDO vide order dated 31/12/1976. Appeal filed by them thereagainst was also rejected by the Revenue Appellate Authority vide order dated 31/10/1977 and, thereafter, by the Board of Revenue vide judgment dated 29/9/1985. The Board of Revenue was therefore justified in accepting the reference vide the impugned-order. Petitioners were precluded from challenging the judgment of the Board of Revenue. It was argued that mutation was wrongly attested in favour of the petitioners on the basis of judgment of the Board of Revenue dated 30/7/1971 inasmuch as, the Board of Revenue in the aforesaid judgment did not make any such direction. There was no case for interference by this Court because the impugned judgment of the Board of Revenue dated 18/10/1999 accepting the reference does not suffer from any error SBCWP NO.1692/01. 6 apparent on the face of record. Learned Deputy Government counsel therefore submitted that the writ petition seeking to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India be dismissed. 5) Shri Suresh Pareek, learned counsel for petitioners replied citing the judgment of Division Bench of this Court in Anandi Lal Vs. State of Rajasthan : 1995(1) RLR 555 and argued that the reference in the present case, which was made with enormous delay of 17 years, could not be even otherwise maintained and allowed by the Board of Revenue because even if no limitation is prescribed for making of reference under Section 82 of the Rajasthan Land Revenue Act, 1956, reference was yet required to be made within reasonable time. The order accepting reference is therefore liable to be set- aside. 6) I have given my anxious consideration to the arguments raised by the learned counsel for the parties and perused the impugned judgment forming part of the record. 7) The Board of Revenue in the present matter has accepted the reference primarily on the ground that there was no direction in the earlier judgment of the Board of Revenue dated 30/7/1971 that the land should be entered in the khatedari of the petitioners and mutation ostensibly attested in purported compliance of that judgment could not be held to be justified. The Board of Revenue also referred to the judgment of SBCWP NO.1692/01. 7 this Court dated 19/10/1994 and held that in that judgment too, all that was directed by this Court was that status-quo with regard to the land in dispute be maintained till petition was finally decided and it was held that cancellation of the mutation in favour of petitioners would not make any change in the status of the land. The Board of Revenue held that since the land was earlier recorded in the khatedari of Jagannath against whom proceedings under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 were initiated in which 49 acres of surplus land including the land in dispute was acquired, mutation of the said land could not be attested in favour of the petitioners. 8) Dispassionate reading of the judgment of the Board of Revenue dated 18/10/1999 accepting reference makes it clear that it has considered its earlier judgment dated 30/7/1971 in isolation and ignorance of the still earlier judgments passed by the Board of Revenue. First of the judgment that was passed by the Board of Revenue is 25/9/1957 gives the complete picture of the controversy. This judgment makes it clear that petitioners were khatedars of the disputed land even before 1952. Judgment makes a reference to the order passed by the Tehsildar on 21/11/1952 whereby ejectment proceedings were directed to be carried against the petitioners. It also refers to the order of the SDO which also directed ejectment proceedings to be carried against the petitioners. The Inspector Land Records examined the site of the land SBCWP NO.1692/01. 8 on 4/7/1954 and submitted following report to the Tehsildar:- “1) Khasra numbers 95 to 131 had a total area of 267 bighas 17 biswa. Out of this area 180 bighas 9 biswa stood entered in the khatedari of certain tenants. The residuary area 27 bighas 8 biswa was entered as Sawai Chak. 2) Out of this Sawai Chak area Birds, Laxmi Narain, Rup Narain and Narain were cultivating about 27 bighas and the rest was parat. 3) 180 bighas and 9 biswa was entered in the khatedari of Laxmi Narai, Jugga Birdha, Baijnath Bhoma, Narain, Lala, Bajranga, Balya and Narain. 4) The recorded khatedars refused to comply with the order of ejectment and defied the order of the Tehsildar. They carried out agricultural operations in the fields themselves and did not allow the Inspector to recover possession.” 9) It was in this background that the Board of Revenue noted that petitioners/their predecessors-in- title objected to their ejectment on the premise that they were recorded khatedars of the land since long and were in continuous possession even from the time of previous settlement when the records of right were prepared in their name. The Board of Revenue held that order of Tehsildar was issued on 21/11/1952 behind their back and case was wrongly transferred by Tehsildar without hearing them to SDO on 21/9/1954 for initiating ejectment proceedings against petitioners. The SDO without giving opportunity to them to put up their respective claim, illegally passed an order on 28/5/1956 directing allotment of the disputed land of SBCWP NO.1692/01. 9 Khasra No.95-131 to be made in favour of plaintiff Jagannath and ejectment of the petitioners/their predecessor-in-title with a further direction that the names of the tenants (petitioners) that may have appeared in revised statement should be cancelled. In para 3 of its judgment dated 25/09/1957, the Board of Revenue observed as under:- “3. As regards the merits of the case we feel constrained to observe that the learned S.D.O. Betrayed utter disregarded for the elementary principles of justice and fair play. He ought to have examined carefully the ejectment order alleged to have been passed by the Tehsildear on 21.11.1952. This examination should have included within its scope a scrutiny regarding the law under which it was passed, the manner in which it could be executed, the persons who ere to be bound by it, capacity occupied by Jagannath and the extent to which he could be considered to be entitled to see execution of that order. Surprisingly enough, the learned S.D.O. Did not consider it necessary to go into any of these questions and passed an order on the application which we have referred to above. The difficulties attending the execution of this order were eventually pointed out to the S.D.O. By the Tehsildar in his report referred to above. Yet the learned S.D.O. Refused to go into the matter deeply which he ought to have done. He however satisfied himself by merely observing that the report of the Girdawar corroborated the arguments put forth before him. In what manner and to what extent this process of mental reasoning was done is not to be gathered from the order. Nor does it appear that the learned S.D.O. Ever took any serious trouble to apply his mind to the facts of the case with a view to appreciate them in the right perspective and to give guidance to the Tehsildar on the points specifically pointed out by him. Such an order can hardly be deemed to be a valid order in the eye of law. In fact it suffered from more than one defect. The parties who should have been heard and given a chance to present their case were completely ignored. The material which should have been examined before arriving at the decision was similarly considered irrelevant. In fact any attempt to study the case was not regarded necessary and SBCWP NO.1692/01. 10 a superficial scratching was considered adequate for deciding the case. No wonder, therefore, that we have an order which provides a glaring illustration of a complete flouting of the prescribed procedure. Any on of the reasons cited above is potent enough to vitiate the order. The fact that none of the applicants was a party to the 1952 proceedings is enough to sugge4st that the 1952 decision can have no binding force against anyone of them. Similarly the fact that the land in dispute stood in the khatedari of certain persons in the previous settlement,that in the revised settlement also certain persons were recorded as khatedars of the land in dispute should have provided a ground to the S.D.O. to ponder as to how and under what law he could order cancellation of these important rights. It appears that in his anxiety right. It appears that in his anxiety to provide land to Jagannath the learned S.D.O. discarded all considerations of justice and fair play. If Jagannath had been allotted a reasonable area for purpose of personal cultivation as a landless tenant it may have provide an extenuating factor. But the fact that the entire area of 267 bighas 17 biswas was entered in the khatedari of Jagannath, on the contrary, provides an aggravating circumstance. We purposely refrain from expressing any opinion upon the validity or propriety of the 1952 decision, for it is possible that any proceeding may come up before the Board in which this point may be involved directly and substantially for determination. Besides for purposes of deciding this case, we do not consider it necessary to undertake any examinations of the proceedings. It will of course be done as and when necessary. For purposes of the present case, we find that the learned S.D.O. did not apply his mind at all to the facts of the case, allowed himself to be motivated by factors which cannot be regarded proper, followed a procedure which had no sanction in the eye of law and cancelled vested rights of certain persons without even putting up a semblance of a fair inquiry. We accordingly allow this revision, set aside the orders dated 21.5.1954 and 28.5.1956 of the S.D.O. Sawai Madhopur and direct that all proceedings carried out in pursuance of these orders be quashed.” 10) It would thus be evident from the above fact that originally when petitioners/their predecessor-in- SBCWP NO.1692/01. 11 title were already khatedars of the land, there was absolutely no basis on which the said land could be allotted to Jagannath and it was this observation of the Board of Revenue that was upheld by the Division Bench of this Court vide order dated 18/12/1961 while dismissing the writ petition of Jagannath. The judgment of the Board of Revenue dated 30/7/1971 was therefore, required to be read in the context of these facts. The Board of Revenue in this judgment rightly held that attachment of the property in proceedings under Section 145 Cr.P.C. started at the instance of Jagannath when he lost in two regular litigations, was limited for determination of question of law and order and once that was withdrawn, revenue authorities were obliged to restore the possession of the land to the petitioners in the spirit of Section 144 C.P.C. Merely because the judgment of the Board of Revenue dated 30/7/1971 directed restitution of possession to the petitioners in its operative part, does not render the earlier judgment of the Board of Revenue dated 25/9/1957 which was upheld by the Division Bench of this Court as otiose and redundant. In fact, the subsequent judgment dated 30/7/1971 is merely reiteration of the view earlier taken by the Board of Revenue. The Board of Revenue in its judgment dated 30/7/1971 has also categorically held that the fact that Jagannath was illegally put in possession of the land in dispute by the SDO on 8/3/1963 in disregard of its earlier judgment dated 25/9/1957 and, therefore, that order of the SDO was rightly quashed by the Board SBCWP NO.1692/01. 12 of Revenue vide its yet another order dated 1/6/1966. In fact, judgment of the Board of Revenue dated 30/7/1971 was again unsuccessfully challenged by Jagannath by way of writ petition before the Division Bench of this Court which again was dismissed by the Division Bench vide judgment dated 24/2/1984. 11) Although, the scope for interference of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is very limited but when it is evident from the facts of the case that judgment of the Board of Revenue suffers from glaring infirmities in ignoring its earlier the binding judgments which merged subsequently with two judgments of this Court upholding the validity thereof, rights crystallized thereby in favour of the petitioners cannot be allowed to be frustrated just because for some time during interregnum period land was wrongly recorded in the name of Jagannath and was acquired in ceiling proceedings against him. When it is evident that recording of such land in the khatedari of Jagganath itself was held to be illegal consecutively by two different orders of the Board of Revenue, the Board of Revenue could not have refused to give effect to those judgments, muchless, in the face of clear finding in the judgment dated 30/7/1971 that revenue courts are obliged to give effect to those judgments by restituting possession of the disputed land in compliance of the provisions of Section 144 C.P.C. Mere rejection of objections raised by the petitioners in ceiling proceedings by the board SBCWP NO.1692/01. 13 would not render its earlier two judgments un- enforceable against Jagannath or those claiming under him, which got merged with the judgments of this Court. Misreading and misconstruing such binding judgments between the same parties with regard to same disputed land clearly amounts to manifest error of law. In fact, attestation of mutation No.11 dated 8/3/1977 in favour of petitioners was not a newly granted khatedari rights to them but was merely reflection of the old position which was existing prior to 1952. Impugned-judgment of the Board of Revenue accepting reference thus, in my considered view, suffers from glaring infirmity and errors of law and facts both, apparent on the face of record necessitating interference by this Court. This judgment is therefore liable to be set-aside. In the result, this writ petition is allowed and the order of the S.D.O. dated 20/5/1992 and the judgment of the Board of Revenue dated 18/10/1999 are set-aside and mutation No.11 dated 8/3/1977 is restored. (MOHAMMAD RAFIQ), J. anil SBCWP NO.1692/01. 14 S.B. CIVIL WRIT PETITION NO.1692/2001. Jagdish and ors. Vs. State of Rajasthan and ors. Date of order :- 30 June, 2008. HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Suresh Pareek and Shri P.S. Sharma for the petitioners. Shri Sanjay Srivastava, Deputy Government Counsel for the State. **** The order has been pronounced today. As per order, the writ petition has been allowed. (see separate order). BY ORDER COURT MASTER