Satyaveer and Others vs The Board of Revenue and Others

Alok Sharma, J.—This petition has been filed impugning the order dated 28-2-1983 passed by the Board of Revenue Ajmer (hereinafter ''the Board'') as also the order dated 19-10-2004 passed by the Nayab Tehsildar Neemrana Tehsil Behror District Alwar.

At the outset counsel for the petitioner was required to satisfy this court as to why the writ petition filed in the year 2005 challenging the order dated 28-2-1983 passed by the Board ought to be entertained and not be dismissed on the ground of laches. Counsel for the petitioner has submitted that in the first instance a challenge was made by the petitioner to order dated 19-10-2004 passed by the Nayab Tehsildar Neemrana (wrongly recorded in caption of the writ petition No. 2080/2005 as 25-9-2003). However permission for the writ petition being withdrawn with liberty to challenge the order dated 20-2-2003 (wrongly recorded for 28-2-1983) passed by the Board was allowed. The said order dated 30-3-2005 was in the circumstances subsequently modified on 8-7-2005, wherein it was clarified that in the earlier order reference to the order dated 20-2-2003 be read as 28-2-1983. Counsel for the petitioner submits that in view of liberty granted by this court, this writ petition ought not to be dismissed on ground of laches as it has been filed immediately following the liberty granted.

On merits, Counsel further submitted that in any event the Assistant Collector Behror vide judgment and decree dated 6-8-2003 in a suit for declaration and permanent injunction directed the Nayab Tehsildar Neemrana to make entries in revenue record inter alia in the name of petitioners and/or their predecessor in interest. But the said judgment and decree dated 6-8-2003 was not treated as enforceable and mutation No. 574 was cancelled by the Tehsildar, Neemrana Tehsil Behror District Alwar vide order dated 19-10-2004 without legal sanction for reasons of a purportedly contrary judgment of the Board of Revenue qua the land in question rendered on 28-2-1983 where under the purchase of the land by the predecessors in interest of the petitioners was declared to be null and void and not recognized for reason of being made by one Bhanidas in the contravention of Section 6 of the Rajasthan (Imposition of Ceiling on Agricultural Holdings) Act, 1973 (hereinafter the Act of 1973''). It has been submitted that the petitioners are entitled to the benefits of the judgment and decree dated 6-8-2003 passed by the Assistant Collector Behror and the judgment of the Board rendered on 28-2-1983 under the Act of 1973 and the consequential order dated 19-10-2004 based thereon are liable to be set aside or in any event held not affecting the petitioners'' rights as declared by a competent revenue court.

Reply to the writ petition has been filed. It has been submitted that the order dated 19/-10-2004 passed by the Nayab Tehsildar Neemrana is an appealable one before the Assistant Collector, and therefore the writ petition there against is not maintainable as the petitioner has an alternative remedy. It has been further submitted that in any event in the writ petition a challenge made to an order dated 28-2-1983 passed by the Board, is grossly belated having been made after about 23 years. No plausible cause for the delayed challenge has been set out, and therefore the writ petition is liable to be dismissed on ground of laches alone.

On the merits of the case, it has been submitted that the land in issue earlier bore khasra No. 630 measuring 2 bigha 12 biswa, 631 measuring 2 bigha 3 biswa, 632 measuring 3 bigha, 633 measuring 5 biswa, 634 measuring 6 bigha 14 biswa total aggregating to 14 bighas 14 biswas situate in village Kanhawas and was recorded in records of rights in the name of temple Mafi Murti Sri Bihariji Maharaj Village Biranwas in Samvat 2017 (1960 AD). And despite the aforesaid revenue record, in the subsequent settlement of Svt.2020 the Settlement Officer without any legal authority or a judicial order introduced one Bhanidas Chela Narayan Das in the column of "Krashak" even while the name of temple Mafi Murti Shri Bihariji Maharaj village Biranwas continued to be shown as khatedar of land in issue. It has been submitted that before settled of Svt. 2020 the land, the land in issue were khasra No. 567 before settlement of ensuring 2 bigha 12 biswa, 568 measuring 2 bigha 3 biswa, 569 measuring 3 bigha, 570 measuring 1 bigha, 571 measuring 1 bigha 19 biswa, 572 measuring 4 bigha 15 biswa total aggregating to 14 bighas 14 biswas. The land having been recorded in the khatedari of the deity, a perpetual minor the name of its Pujari Bhanidas could not have been entered in his personal capacity in the revenue record as a "Krashak" as he was merely a caretaker of temple Mafi Murti Shri Bihariji Maharaj and only obliged to undertake seva puja as per custom and had no authority to sell/transfer or otherwise convey the land in issue. This however appears to have mischievously done, utilising the accidental or deliberate recording of Bhanidas''s name as "Krashak" in the revenue record in Samvat 2020. And vide registered sale-deed the land was thereafter unauthorisedly conveyed to the predecessors of the petitioners, but to no effect as--one cannot transfer a title better than one''s own. It is submitted that the vendees on their part were also actively engaged in the void transaction for even otherwise not entitled to any benefits therefrom even if the land was innocently purchased, for lack of "due diligence" which they failed to carry out. "Due diligence" which would have shown that the land in issue was recorded in Samvat 2017 in the name of Mandir Shri Bihari Ji Maharaj, but in the subsequent settlement proceedings the name of the pujari "Bhandias" had unauthorisedly been shown as Krashak (tenant) without any underlying legal foundation and in the circumstances could not have authorised him in law to alienate land in issue.

It has been further submitted that the provisions of Imposition of Ceiling Act, 1973 came into effect from 1-1-1973. proceedings were taken by the Sub Divisional Officer thereunder in respect of the holding of Bhanidas. Vide order dated 16-11-1977 the jurisdictional SDO found Bhanidas holding surplus land as of 1-1-1973 in his khatedari and held that the registered sale deed dated 13-9-1973 executed by Bhanidas in respect of the land in issue being subsequent to the cut off date of 1-1-1970 was void and consequently not a legally recognisable transaction. The land was treated as on the recorded date in the name of Bhanidas and surplus. Thus under the Act of 1973 it vested in the State. It has been submitted that appeal against the SDO''s order dated 16-11-1977 was dismissed on 11-9-1980. A further challenge by the predecessors in interest of the petitioners before the Board in second appeal failed on 28-2-1983, and their appeal was dismissed.

It has been further submitted that the land in issue belonged to the temple Mafi Murti Shri Bihariji Maharaj village Biranwas as early as in Svt.2017 and even prior thereto. As the land was thereafter illegally recorded in the name of the pujari Bhanidas, on this coming to notice of the competent authority during the subsequent settlement in the year 1981-82, necessary corrections were then recorded and the land again recorded in the khatedari of temple Mafi Murti Shri Bihariji Maharaj village Biranwas. It presently so stands and bears khasra No. 1153 measuring 0.59, 1154 measuring 0.08, 1155 measuring 0.57, 1156 measuring 0.31, 1157 measuring 0.02 and 1158 measuring 1 hectare and 0.02 acr. total aggregating to 14.05 bighas. It has been submitted that in the facts as they obtain the writ petition be dismissed for laches and even otherwise the petitioners have no merit in their case either as successors in interest of Bhanidas who had no khatedari rights or even as of unlawful transferees of the mandir mafi land in the khatedari of a deity, a perpetual minor.

Heard. Considered.

Invoking the equitable extraordinary jurisdiction of this court under Article 226 and 227 of the Constitution of India to challenge the order dated 28-2-1983 after a delay of 23 years on the face of it hit by laches. I am not impressed with the submission of counsel for the petitioner that merely because this court vide order dated 30-3-2005, as modified on 8-7-2005, allowed the petitioner to challenge the order dated 28-2-1983, the writ petition has to be addressed by this court on merits without the issue of its maintainability and the doctrine of laches being raised. A reading of aforesaid orders i.e. 30-3-2005 and 8-7-2005 indicates that while granting liberty to the petitioner to lay a challenge to the order dated 28-2-1983 passed by the Board, the court did not and could not have addressed the issue of laches or condone it for the obvious reason that the order dated 28-2-1983 was not even before it. In the said writ petition, also filed in 2005, only the consequential order dated 19-10-2004 passed by the Nayab Tehsildar cancelling the mutation No. 574 was challenged. The foundational judgment dated 28-2-1983 by the Board was not challenged. Without so doing the writ earlier filed was unsustainable. Therefore it was withdrawn with liberty to challenge the judgment dated 28-2-1983 by the Board. In my considered opinion, there is no justifiable ground to hold that laches do not attract to the petition at hand filed 23 years after 28-2- 1983. It is not in dispute that the predecessors in interest of the petitioners dated 28-2-1983. They or their successors in interest ought to have challenged the order dated 28-2-1983 within reasonable time. Delay of 22 years is not reasonable delay. The petition is thus liable be dismissed for laches.

On the issue of laches in invoking the jurisdiction of the High Court under Article 226 of the Constitution of India, the Hon''ble Supreme Court in State of Maharashtra Vs. Digambar, AIR 1995 SC 1991 : (1995) 9 JT 310 : (1995) 4 SCALE 98 : (1995) 4 SCC 683 : (1995) 1 SCR 492 Supp has held that as the power of the High Court under Article 226 of the Constitution of India is discretionary and not a matter of course, its exercise must be judicious and reasonable and for this reason a person entitlement for the relief, be it against the State or its instrumentalities, even if alleging infringement of legal rights, has to seek relief within reasonable time of the cause of action arising and the Court will refuse to grant its discretionary relief to a person if he approaches the Court with laches or undue delay. It has been held in the aforesaid judgment, relying upon the dictum of Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd [(1874) 5 PC 221] that laches by themselves would disentitle a petitioner from the grant of relief at the hands of the High Court in the exercise of powers under Article 226 of the Constitution of India. The same view also taken by a Constitution Bench of the Hon''ble Apex Court in the case of The Moon Mills, Ltd. Vs. M.R. Meher, President, Industrial Court, Bombay and Others, AIR 1967 SC 1450 has also refused to. The Hon''ble Apex Court preceded thereupon to hold that where the High Court in the exercise of its powers vested under Article 226 of the Constitution of India issues a direction, order or writ for grant of relief to a person without considering his disentitlement to such relief inter-alia for reasons of undue delay or laches, such a direction, order or writ would be unsustainable for reason of not having been made judiciously and reasonably in the exercise of the courts sound judicial discretion.

Aside of aforesaid, the name of pujari Bhanidas was wrongly recorded as Krashak (cultivator/tenant) over the land in issue during the settlement of Svt. 2020, without statutory authority or order of a competent court as prior thereto the land in issue was recorded in the name of deity Murti Shri Bihariji Maharaj in Samvat 2017. The pujari was mere a caretaker of the temple engaged in the seva puja of the deity and maintenance of the temple from its funds and was without any proprietary or statutory right to alienate the land in issue by way of a registered sale deed dated 13-9-1973 or otherwise. This court is informed that in any event the judgment/decree dated 6-8-2003 passed by the Assistant Collector Behror is under appeal on various counts.

A petition both under Articles 226 and 227 of the Constitution of India is a discretionary remedy. In the overall facts of the case, I find no force in the writ petition. In fact to do so would not only entail wrongful exercise of this court''s jurisdiction overlooking patent laches but also the revival of an apparent illegality of land belonging to the deity Shri Bihariji Maharaj, a perpetual minor being alienated contrary to law.

The writ petition is dismissed.