1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPL. APPL. WRIT No. 332 of 2001 MUKHTIAR V/S STATE & ORS. Date of Judgment : 5.11.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr. SL JAIN, for the appellant / petitioner Mr. DALIP SINGH RAJVI, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) This appeal has been filed by the unsuccessful writ petitioner, seeking to challenge the judgment of the learned Single Judge dated 19.3.2001, whereby the writ petition was dismissed, and the orders of the Board of Revenue dated 30.11.1999, Annex.6, and dated 18.4.2000, Annex.8, whereby the reference made under Section 232 of the Rajasthan Tenancy Act was accepted, and review petition was dismissed, have been upheld. The facts of the case are, that the petitioner Mukhtiar filed the writ petition, alleging inter-alia that one Santa Singh was allotted lands in Kila No.6 to 10 measuring 5 bighas in Murabba No.36 Chak No.21 PS, which lands were mutated in the name of Santa Singh vide mutation dated 30.10.74. Copy of the passbook has been submitted as Annex.1. 2 Santa Singh was recorded as Khatedar, who transferred the land in the name of the petitioner vide registered sale deed dated 1.5.73, copy whereof has been produced as Annex.2. The petitioner claims to be in cultivatory possession of the land since 1973 as Khatedar. According to the petitioner, the Tehsildar Raisinghnagar submitted an application before the Collector Sriganganagar for setting aside the allotment dated 15.5.67 made in favour of Santa Singh, and consequent mutation and sale, copy of this application has been produced as Annex.3. The petitioner submitted reply on 11.9.1997, Annex.4, and Additional Collector vide order dated 28.8.98, Annex.5, made a reference to the Board of Revenue for setting aside the allotment, mutation and subsequent sale. The petitioner in para 7 has alleged, that this reference was in relation to lands, bearing Kila No. 21 to 25 of Chak No.21 PS of Murabba No.36, while the lands belonging to the petitioner, are comprised in Kila No.6 to 10. The petitioner has further alleged, that Board of Revenue set aside the allotment by accepting reference, without considering the question that the land allotted to Santa Singh was not the land of Gurudwara, referred to by the learned Member of the Board of Revenue in his order, i.e. Kila No.21 to 25. The lands belonging to petitioner and Santa Singh are in Kila No.6 to 10, and not in Kila No.21 to 25. Lands in Kila No.6 to 10 were never in the name of Gurudwara. Thus, the order was claimed to be without jurisdiction, void and perverse. This is produced as Annex.6. The petitioner then filed a review petition, bringing to the notice of the Board of Revenue, that the lands belonging to Gurudwara were in Kila No.21 to 25, whereas lands allotted to 3 Santa Singh were in Kila No.6 to 10, which was not Gurudwara's land. Copy of review petition has been produced as Annex.7, and it is contended, that the Board of Revenue refused to consider the submissions made in the review application, and has dismissed the same on the ground, that points raised in the review petition are the same, which were argued at the time of decision of the reference, and therefore, the review application does not lie. Copy of this order has been produced as Annex.8. With giving these facts, the orders are challenged only on two grounds, first being, that the Board of Revenue specifically mentioned in the orders that the lands belonging to Gurudwara are situated in Kila No.21 to 25, but lands belonging to Santa Singh are situated in Kila No.6 to 10, thus, lands allotted to Santa Singh could not be said to be Gurudwara land, and the lands allotted to Santa Singh were recorded as Sivay Chak in the revenue record. Thus, the Board of Revenue had no jurisdiction to cancel the allotment made in favour of Santa Singh on 15.5.67, on the ground of the land being belonging to Gurudwara. The other ground given is, that the order passed by the Board of Revenue purports to deprive the petitioner from his property without authority of law, and offends Article 300A of the Constitution. To put it tersely, the whole challenge to the orders of the Board of Revenue, was only on the ground, that the lands belonging to Gurudwara were comprised in Kila No. 21 to 25, while the land allotted to Santa Singh was comprised in Kila No.6 to 10, which was sold to the petitioner, and that allotment could not be canceled, on the ground of the land being belonging to Gurudwara. Then a look at the order-sheets of the file of S.B. shows, that the matter was listed on 4 12.5.2000 for admission, on which day the learned Single Judge expressed the view, that the case is worth remanding, for the reason, that the only question involved in the case is the dispute of identity of land and nothing else. Thus, Shri Dinesh Maheshwari (now an Hon'ble Judge of this Court) was directed to accept notice on behalf of the respondents. Originally in the writ petition, four persons were impleaded as respondents, being State, Board of Revenue, Additional Collector, and Santa Singh, however, subsequently, vide order dated 14.12.2000, on the application of Guru Nanak Prabandhak Committee, the said committee was impleaded as party respondent, and vide order dated 12.2.2001 Santa Singh was deleted from array of respondents, as he had died, leaving no legal representatives. Then the matter was argued, and ultimately was decided by the same learned Bench, vide judgment dated 19.3.2001, as noticed above. A reply to the writ petition was filed on behalf of respondent No.1 on 14.9.2000. The stand taken therein was, that it is incorrect to contend that Santa Singh was allotted land. It was pleaded that Santa Singh was Granthi in the Gurudwara, and no allotment could have been made in his name. The stand taken was, that Santa Singh was recorded only as Gair Khatedar, and that too wrongly. Santa Singh was having no transferable right in him, and sale deed dated 1.5.73 is wholly inconsequential, void and non-est. In reply to para 5 it was pleaded, that it seems that the petitioner, although aware of the correct facts is simply seeking to take advantage of some typographical error. In reply to para 6 it was pleaded, that it is pertinent to mention that the petitioner 5 also could not deny the basic facts. Then in para 7 the mention of Kila No. 21 to 25 was pleaded to be typographical and clerical error, instead of mentioning Kila No.6 to 10, however mere technical error cannot over take the substance of the matter. It was pleaded that the petitioner was aware of the fact that the reference was made on account of Santa Singh having procured allotment of the land of Gurudwara, which could not have been allotted. Then in para 8 it was again reiterated that the petitioner is only seeking to take advantage of typographical error. Then while replying the ground again it was pleaded that land of Kila no.6 to 10 was of Gurudwara, Santa Singh has no right over the same, and in Murabba No.36 there were 25 bighas of land, and after enforcement of Rajasthan Tenancy Act, Gram Sevak Mafidars were made the allotment of land in their possession, free of cost, and Gair Khatedari mutations were made in their favour. However the land of Kila No.6 to 10 in this Murabba was Gurudwara land, the same was not allotted to anybody, however an allotment has been made of this land to Santa Singh on 15.5.67, which could not have been done, and thus, the reference has rightly been made, and has rightly been allowed. A rejoinder was filed by the petitioner, to this reply, contending, that after execution of sale deed by Santa Singh in favour of petitioner, the allotment of land in favour of Santa Singh was canceled by order of the Addl. Collector dated 25.5.87, for violation of Section 13 of the Colonization Act. An appeal was filed by the petitioner, which was allowed, and the case was remanded to the Addl. Collector, for deciding the matter in the light of Section 13A of the Colonization Act. The petitioner deposited an amount of Rs.7500/- under 6 Section 13A on 28.12.89 vide challan Annex.10. However, the Addl. Collector vide order dated 19.4.95, Annex.11, held that the allotment in favour of Santa Singh was made under Section 193 of the Rajasthan Tenancy Act, and therefore, Colonization Act did not apply, he therefore, dropped the proceedings of cancellation of allotment in favour of Santa Singh. Thus, Santa Singh was allotted land as Khatedar vide Annex.11. It was then pleaded, that since allotment was made under Section 193 of Rajasthan Tenancy Act, there was no question of Gair Khatedari; rather it was of Khatedari. It was also pleaded that it is wrong to contend that petitioner is simply seeking to take advantage of typographical error, rather there is no typographical error. The application filed by the Tehsildar was in relation to lands, which were shown in revenue records as Mandir Mafi lands. The kilas shown as Mandir Mafi land were Kila No.21 to 25, and in support of this stand, the petitioner has produced a copy of the Khatoni of Samvat 2012 to 2015 as Annex.12. Then it is pleaded that it is wrong to contend that instead of Kila No.6 to 10, Kila No.21 to 25 were wrongly mentioned. It was maintained that Mandir Mafi land are recorded in Kila No.21 to 25, and there is no question of any typographical error. It was also maintained that it is wrong to contend that land comprised in Kilas No.6 to 10 is Gurudwara land. It is not so recorded. Another set of reply has been filed on behalf of newly added respondent, being Nanak Gurudwara Prabandhak Committee, and in this reply it is contended, that in Murabba No.36 in Chak No.21 PS the allotments were made by State of Bikaner as Mafidars in Samvat 1992, and Kila No.1 to 8 was allotted to Roda son of Kharga, by caste Chamar. Then Kila 7 No.9 to 15 was allotted as Mafi Nai (Barber). Then Kila No.16 to 20 was allotted as Khati (Carpenter) and Kila No.21 to 25 were allotted as temple. It is then pleaded that since no temple was existing there, but a Gurudwara was there in the said Chak, the name was transferred in the name of Gurudwara, vide order dated 13.4.50, and Shri Jaimel Singh was Granthi on behalf of Gurudwara, to look-after the Gurudwara as well as land. Copy of the Jamabandi has been produced as Annex.R/1. The stand is, that after Jaimel Singh, Santa Singh was appointed as Granthi somewhere in 1956. It is then pleaded that in the year 1959, Kilas No.6 to 10 were shown as land of Mafi Gurudwara. Annex.R/2 has been produced in this regard, which showed that Kila No.1 to 5 were shown to have been allotted to Harnam Singh (Mafi carpenter). Then Kila No.6 to 10 were shown to be Mafi Gurudwara, temporarily cultivated by Wazir Singh. Then Kila No.11 to 17 were in the name of Jamna, temporarily cultivated by Banta. Then Kila No.18 to 25 were recorded in the name of Mafi Kotwal (Chowkidar), temporarily cultivated by Het Ram son of Kashi Ram. It is then pleaded that in the year 1965, on 30.7.65 Santa Singh moved an application before the SDO, submitting that he is the granthi of Gurudwara and Kilas no.6 to 10 command land was of Mafi Gurudwara, and since the government was then abolishing village grams mafi, Khatedari should be given to him. Copy of this application has been produced as Annex.R/3. Then on 4.12.67 the SDO allotted 5 bighas of land to Granthi Santa Singh, copy of order is produced as Annex.R/4. It is submitted that significantly in this Annex.R/4 there is no description of bigha scheme having been mentioned, i.e. only 5 bighas and Murabba number and chak number have been mentioned. Then it is pleaded that Santa Singh moved an application before the SDO 8 Raisinghnagar that for Mafi Gurudwara land he was ready to pay the market value of the land, and even in this application the details of Kila numbers were not given. The case of the answering respondent further is, that the file was pending before the SDO for depositing the remaining amount as per market value, but then Santa Singh never disclosed to have sold the land to the present petitioner. The copies of the order-sheets have been produced as Annex.R/6. It is contended that Santa Singh was never given Khatedari rights of the land comprised in Kila No.6 to 10, Jamabandies have been produced as Annex.R/7 and 8. However, it is then pleaded that the answering respondent was constituted as Committee, and was registered on 28.11.90 vide Annex.R/9, and the answering respondent filed a complaint before the Tehsildar Raisinghnagar, contending that the land on which the present petitioner is having illegal possession and title, which is void-ab-initio, as the land was of deity and could not be transferred. The Tehsildar submitted an application before the Collector for making reference under Section 232 being Annex.3, and accordingly reference was made, and has rightly been allowed. Then certain preliminary objections have been raised by the answering respondent, viz. that the answering respondent was not impleaded as party despite being a necessary party, the other objection raised was, that the petitioner has concealed the material facts from this Court, the petitioner has not averred, that he is not recorded as Khatedar, and thus, he has suppressed the material facts from this Court. Then para-wise reply has also been submitted, contending inter-alia that the land was of Mafi Gurudwara. Santa Singh moved application in which it was clearly stated that the land was in the name of Mafi Gurudwara, and should be 9 allotted to him vide Annex.R/3. Even in the allotment letter, description of the land has not been given, and the respondent has produced Jamabandi right from 1967 to 1990, in which the petitioner as well as Santa Singh was shown as Gair Khatedar. It was also pleaded that the petitioner is in illegal possession. Then the details of the various Kilas, being allotted to different persons were given, and it is pleaded that though initially Kila No.21 to 25 was in the name of the temple, but subsequently at the relevant time it was the mafi grant, under village grant, as defined in Section 5(45) of the Rajasthan Tenancy Act. In the year 1935 most of the land was though reserved for village grant, but the name of the Khatedar was not shown, but in Jamabandi of 1959 the description of the whole land was given, which is produced as Annex.R/10. The details as cataloged in the earlier part of the reply were reiterated. Then it was pleaded, that this is the only land being comprising in Kila No.6 to 10, which was shown as Mafi Gurudwara, which was allotted to Santa Singh, and Santa Singh himself in his application has also shown the land as Mafi Gurudwara land. It was maintained that petitioner never raised this question before the Collector, and before the Board of Revenue, and that, it is only for the first time that the petitioner has raised this question in the revision (review) petition, which has been dismissed. There is no dispute about identity of the land. Parties are ad idem about identity of the land. Then it is pleaded that the learned Member of the Board of Revenue has rightly set aside the allotment made in favour of Santa Singh, and sale deed in favour of petitioner, after considering that the land is of deity, and could not be transferred, Santa Singh was not even a Khatedar when he transferred the land, and mere mentioning 10 of Kila No.21 to 25 hardly makes any difference. The allotment was made without mentioning of Kila numbers, and in Murabba No.36 there was only 5 bighas of land, which was recorded as Mafi Gurudwara made in 1935, and this was so mentioned by Santa Singh in his application, and that, the petitioner is raising unnecessary dispute. Inter-alia with this it was prayed that the writ petition be dismissed. The petitioner has also then filed an additional affidavit, inter-alia deposing, that the land had been a subject matter of reference before the Addl. Collector in case No.11/83 “State Vs. Santa Singh” under Section 232. This was decided in favour of Santa Singh, copy of the order dated 6.10.94 has been produced as Annex. A. It was alleged that land allotted to Santa Singh was in Kila No.6 to 10, Jamabandi in this regard has been produced as Annex. B and C, for the Samvat Year 2020 to 2023, and 2024 to 2027, respectively. It is then deposed that during settlement operations also the land of Kila No.6 to 10 was shown in slip dated 20.2.77 in name of petitioner, who stepped in the shoes of Santa Singh, having purchased the land, this has been produced as Annex. D. Then latest Jamabandi of 2056 to 2059 was also produced as Annex. E. This is the entire pleading and material available on record. A look at the order of the Collector, making reference, being Annex.5 shows, that Khatedari rights were given to village workers, Gram Sevaks, according to Section 193, but then, the land which was in the name of temple or 11 Gurudwara, in that land Khatedari was not granted to pujaris or granthis. Those lands continued in the name of temple or Gurudwara. It was found by the learned Collector, that the land was in the name of Gurudwara, and could be allotted in the name of Gurudwara, but not in the name of any individual person. Before arriving at this conclusion the learned Collector considered the submissions made on behalf of Gurudwara, including the contention that the land of Gurudwara, Masjid or Mandir could not be allotted to anybody, while the contention raised on behalf of the petitioner were also considered, wherein it was contended that land was never Mafi or Mandir or Gurudwara, rather it was a government land and the allotting authority undertook complete inquiry as contemplated by the Rules, and allotments were made on 9.5.67. Sanad has been granted, and mutations have been effected in the revenue records, then the land has been sold by registered sale deed. Then that being found to be violative of the provisions of Colonization Act, action was taken under Section 13A, the petitioner paid the amount and the land was regularized. Thus the present petitioner is continuing as Khatedar, in possession, which cannot be canceled, nor this reference, nor can such allotment be challenged. The other contention raised was, against the allotment made in favour of Santa Singh, no institution and state ever initiated any proceedings, and the allotment order has become final. Still other contention raised was, that proceedings for making reference were earlier initiated, which were dropped vide order dated 6.10.94, therefore, reference should not been made. It is after considering all these submissions that the reference was ordered to be made, vide order Annex.5. 12 The learned Board of Revenue found, that if the land had been recorded in the name of deity, idol or Gurudwara, then no one can acquire Khatedari rights, while in the present case though the land in question was mafi land, and though Santa Singh was a Granthi, but then it was not a personal grant, rather it was religious and charitable grant, Khatedari rights could not be given to him, nor could the land be allotted to him. Likewise, Santa Singh was not entitled to alienate the land to Mukhtiar (the present petitioner). Consequently the reference was accepted, allotment made in favour of the Santa Singh, and subsequent sale made in favour of present petitioner, were found to be non-est, and entries in the record of right's entries were ordered to be corrected. It is significant to note, that in the reply submitted on behalf of the petitioner to the reference application of the Tehsildar, before the learned Collector being Annex.4 also, no dispute was raised about identity of the land, on the anvil, as sought to be raised before this Court, being that the land of Gurudwara was Kila No.6 to 10, and the reference application has been made to land comprising of Kila No.21 to 25. That apart it is still more significant to note, that the positive stand was, that the land in question (आरज जर बहस) was no manner a mafi land of Gurudwara, rather it was a land allotted to Santa Singh. Then in para 5 of the reply it was categorically contended, that the land in question was allotted after completing all necessary proceedings for allotment, and after considering the eligibility of Santa Singh to be allotted land, and revenue record was accordingly mutated. It was also pleaded, that Sanad with respect to land in question has been issued on 13 11.6.93 in name of Santa Singh. Thus, Santa Singh became Khatedar. Of course in this reply, in additional pleas, it was pleaded, that it is wrong to contend that matter did not come to the notice earlier, as, earlier also application for making reference was filed, which was registered as Case No.11/83 “State Vs. Santa Singh” and was dismissed on 6.10.94. Thus the present proceedings are hit by the bar of Section 11 CPC; but concealing these facts, Tehsildar filed this application, which was required to be dismissed. A look at the order of the learned Single Judge shows, that the only contention raised before him was, that the land in dispute, which was in possession of the petitioner had never been allotted to temple or Gurudwara, as the land purchased from Santa Singh was in comprised in Kila No.6 to 10, likewise the land allotted to the temple or the Gurudwara was compromised in Kila no.21 to 25, thus the entire proceedings stand vitiated. The next contention raised was, that the petitioner had never been served with the show cause notice in the reference, in respect of the land comprising Kila No.6 to 10, purchased from Santa Singh, and the reference was made with respect to land comprising in Kila No.21 to 25, which is entirely a different land, and the petitioner has no concern with the said land. The other objection raised is, that earlier also the Tehsildar had filed an application before the District Collector to make a reference with respect to the same land, which was rejected in 1994, and as that order acquired finality, the second application is not maintainable. The next contention raised was, that the petitioner had deposited a sum of Rs.7300/- to get regularization of the land in view of the amendment made in 14 1984 in the Colonization Act, providing that if the land had been alienated in violation of the provisions of Rajasthan Tenancy Act, the same could be regularized after making certain payment. On the other hand, the contention raised on behalf of the State was, about mention of Kila No.21 to 25 to be typographical mistake, rather the petitioner knew it very well, and never raised this objection, either before the Collector, or before the Board of Revenue, and after meeting his waterloo before the Board, for the first time in the review petition the ground was taken, which was rejected. Significantly in the review petition also it was not contended that he had raised this issue earlier, nor is it so contended before this Court, that the petitioner had argued it before the Board even at the stage of review. The next contention raised was, that