Sukhdev and Others vs State of Rajasthan and Others

M.N. Bhandari, J.�These writ petitions involve common question of facts and law thus were heard and have been decided by this order. A challenge is made to the order of the Board of Revenue so as the order of Additional Collector.

Learned counsel submits that the petitioners had purchased a land through registered sale deed in the year 1964. The mutation was opened in favour of the petitioners. The Additional Collector sent a reference to the Board of Revenue under Section 82 of the Land Revenue Act ignoring the delay and limitation for reference as it was after 38 years of mutation in the name of the petitioners. The Board of Revenue accepted the reference which was then challenged by maintaining special appeal before the Board of Revenue, but it was also dismissed.

The order of the Additional Collector to make a reference was incompetent as it was after long delay of 38 years. The reference under Section 82 can be made within reasonable time and not with the delay of 38 years. Thus on the aforesaid ground itself, the reference should have been decided holding it to be incompetent but the Board of Revenue answered the reference against the petitioners in ignorance of the aforesaid.

The Additional Collector as well as Board of Revenue even failed to consider that one Govind Lal Dev was having khatedari before Rajasthan Tenancy Act, 1955 came in effect. He became khatedar in view of Section 15 of the Act, 1955. In the background, the purchase of land by the petitioners from said Govind Lal Dev through registered sale deed could not have been nullified so as the mutation. Govind Lal Dev was recorded as khatedar even before the Act of 1955 i.e. on 10.07.1953. A challenge to the aforesaid was made but the Board of Revenue affirmed the order followed by challenge through a writ petition but was dismissed. Once an order was passed favourable to Govind Lal Dev and was upheld upto High Court, the Additional Collector was incompetent to make a reference so as to nullify the earlier judgment of the Board of Revenue, upheld by the High Court. The aforesaid aspect was also ignored by the competent authority not only for making reference but while answering it. The acceptance of the reference under Section 82 resulted in nullifying the earlier order of the Board of Revenue so as the High Court. The right and possession in the land was under Jaipur State Revenue Laws and having adjudicated the dispute by the competent authority, should not have been nullified by the Board of Revenue.

It is lastly contended that the State has already filed a regular suit before the SDO court thus for the aforesaid reason also, reference was incompetent and otherwise consequence of cancellation of mutation in favour of petitioners would not result in recording of the land in the name of the State Government but reverted back to the position as was obtaining before purchase of land by the petitioners. In that eventuality, the land would revert back to Govind Lal Dev who has no objection if it stands in the name of petitioners.

It is also stated that the Board of Revenue did not exercise its jurisdiction properly. It has endorsed the reference by quoting the paras of the reference order as if it is answer to it. The Board of Revenue was required to apply its mind but it failed to do so hence for the reason also, the impugned orders deserve to be set aside.

Learned counsel for respondents submitted that the petitioners have not narrated true and correct facts to this court. The reference was sought by the Tehsildar in regard to four applications on which mutation was accepted. The land belonging to Revenue Village Baori Gopinath, Tehsil Chomu was wrongly sold under registered sale deed followed by mutation. Since all the applications were of the same village and on the same issue thus a common order of reference was passed.

The land in question was belonging to the Government thus review petition was filed by the State Government before the Collector, Jaipur and case was registered as State v. Murli & Ors. decided on 17.11.1992. It was held that the land in dispute belongs to the Government as it was shown to be of Thikana Khalsa and was of Temple Shree Gopinathji thus it was mafi land of State of Jaipur, which vest in the State. It is to grab the land with forgery, the name of Govind Lal Dev was tried to be entered in the revenue record, but due to vigilance of the revenue officer, he remained unsuccessful till 08.06.1964 but thereafter on the basis of earlier order of the SDO court dated 04.01.1958, the land was again tried to be entered in the name of Govind Lal Dev. Therein also, he remained unsuccessful. At that stage, a Joint Agriculture Cooperative Society was constituted followed by a registered sale deed and in connivance with the Sarpanch, the land was mutated on 11.10.1964. The mutation was opened at the instance of Sarpanch having no competence for the aforesaid.

The wrong entry came in the knowledge of the officers when Settlement Commissioner sent a letter on 15.06.1989 finding difference of the entries in the record. It was indicated that some forgery has been committed therein thus matter needs to be addressed by making reference to the Revenue Board.

The competent authority then made a reference on an application by Tehsildar. It was after notice and considering the arguments made by the petitioners herein. The issue of delay was also considered and taking into consideration the peculiarity of the facts and forgery committed therein, the reference was made to the Board of Revenue.

It is stated that a case was registered at No. 114/976, ASO, Amer on submission of objection against the order dated 10.07.1953. It was found that the land was existing in the name of Temple Gopinathji Thikana. The Revenue Officer of Sikar passed an order on 22.02.1955 for remand of case under Jaipur State Grants Land Tenure Act as manipulation was found in the map also. Govind Lal Dev was Power of Attorney holder of Temple Gopinathji which was given by one Dule Singh Rathore. After considering the case, a direction was given to record the land in the name of Temple Gopinathji as it was wrongly recorded in the name of Govind Lal Dev. A direction was also given that after correction of the entries, report be submitted on 19.07.1957. Govind Lal Dev then raised objection to correct the entries thus he was called for hearing. A writ petition then filed by Govind Lal Dev was dismissed on 15.04.1957. Thereafter on litigation, order was passed on 24.09.1998 in favour of Thikana. A writ petition was also filed by the State but it was also dismissed without determination of rights but due to delay. In view of the above, reference and its answer has rightly been made by the Board of Revenue.

The Board of Revenue found that land belonging to Temple Gopinathji was got entered in the name of Govind Lal Dev though it was not permissible thus for correction in the revenue record, the proceedings were initiated in the year 1959. Khasra No. 305 of 44 bighas and 6 biswas was recorded as pasture land vide mutation No. 13, but based on the order dated 25.01.1957, Govind Lal Dev tried to enter his name. On an inquiry by RO, he remained unsuccessful but name of the Agriculture Cooperative Society was entered at the instance of the Sarpanch, who was not competent to do so. The Board of Revenue accordingly answered the reference. The appeal preferred by the petitioners was dismissed though reference of the order of the Additional Collector has been given and even paras of the order are quoted but the Division Bench decided the issues after discussing it on its merit thus no interference may be caused in the impugned order.

I have considered the rival submissions made by the parties and perused the record.

Before adverting to the arguments, it would be relevant to refer chequered history of the case. It will not only clarify the facts but legal position involved therein also. The history of the case is as follows:

"Goswami Govind Lal Dev moved an application to enter the land of Khasra Nos. 332 to 336 in his name after showing his possession. The land was existing in the name of Rambaksh Jat. The application was allowed vide order dated 10.07.1953 as no objection was raised by the counsel appeared on behalf of "Thikana" rather Khasra Nos. 300 to 304 were also ordered to be recorded in the name of Goswami Govind Lal Dev though no prayer was made. An objection was then raised before ASO, Amer to enter Khasra Nos. 300 to 304 in favour of Govind Lal Dev. In pursuance of order dated 10.07.1953, objections were considered and vide the order dated 22.02.1955, direction was given to correct the entries as per Section 56 of Jaipur State Grants Land Tenure Act. An order was thereafter passed on 30.04.1957 to record the land in the name of Temple Shri Gopinathji by removing the name of Govind Lal Dev with the compliance report on 19.07.1957."

An application was also move by Surendra S/o Bhairu against Govind Lal Dev alleging that he is in possession of the land of various khasra numbers of Mozi Baori, Tehsil Amer, which is erroneously recorded in the name of Govind Lal Dev. The notice was given to Govind Lal Dev and by order dated 04.01.1958, land measuring 721 bighas and 14 biswas recorded in the name of Govind Lal Dev was ordered to be recorded in the name of Surendra S/o Bhairu. The entries were accordingly made on 17.02.1958. The land measuring 54 bighas and 19 biswas was recorded in the name of Surendra S/o Bhairu by reducing the aforesaid from the name of Govind Lal Dev. However, 666 bighas and 15 biswas of land was maintained in the name of Govind Lal Dev out of which 63 bighas and 17 biswas were found to be in cultivation and remaining was found to be land of Gair Mumkin Kharda, River, public way, abadi, cremation grounds, nala, etc. The Khasra No. 305 consisting of 44 bighas and 6 biswas was recorded to be "charagah land".

A writ petition was thereafter filed by Govind Lal Dev in the year 1957, which was dismissed vide order dated 15.04.1957. Therein, order of the Board of Revenue was found to be based on admissions thus while dismissing the petition, Govind Lal Dev was given liberty to institute a suit. A case was then registered and decided on 24.09.1958 in favour of Thikana. A writ petition was also filed by the State though it was not party to the earlier litigation. Khasra Nos. 300 to 304 were recorded in the name of Govind Lal Dev vide entries dated 13.11.1962 but was found to be out of manipulation at the level of Patwari. The then Revenue Officer made an inquiry and on 08.04.1964 recorded the land in the name of the State as earlier entry was without an order in favour of Govind Lal Dev. An FIR was also registered. The land was then remained in the name of State.

The aforesaid is one part of the litigation and in between on 7th July, 1962 an agreement was executed by Govind Lal Dev for sale of the land followed by sale deed on 25.05.1964 & 26.05.1964 though prior to the aforesaid, revenue officer had directed to open Namantaran in the name of State vide order dated 08.04.1964. The effort was yet made to record the land in the name of Govind Lal Dev but he remained unsuccessful. The then Sarpanch yet entered the name of the purchaser in the revenue record on 11.10.1964 in ignorance of the earlier order of revenue officer dated 08.04.1964. The Sarpanch was not even competent to open Namantaran. The then Sarpanch even became instrument to record land in the name of Samiti on 11.09.1965 in an illegal manner. The issue was even raised in the Assembly after lapse of few years where it was found that writ petition preferred by the State Government was dismissed on the ground of delay. In view of facts given above, it becomes clear that if initial application of Govind Lal Dev is taken into consideration that it was to record his name for Khasra Nos. 322 to 336 and not for 302 to 304 but due to connivance of the Advocate of Thikana, an order was passed to record the name of Govind Lal Dev. The order of the authority was beyond the pleading and prayer made therein. The land of Khasra Nos. 300 to 304 was of Temple Gopinathji and finally it was ordered to be recorded in the name of State vide order dated 08.04.1964. The Namantaran thereupon opened by the Sarpanch, was without competence rather acting in connivance and fraudulent manner. The history of the case is given to show as to in what manner land was tried to be grabbed by Govind Lal Dev in connivance with the officers of the Government and for that purpose, even a Joint Agriculture Cooperative Society was also constituted to record the name of Society in place of Govind Lal Dev.

Learned counsel for petitioners challenged the reference so as order of the Board of Revenue as it is to nullify the earlier judicial orders. It is moreso when writ petition preferred by the State was also dismissed by the High Court.

I have considered the submission aforesaid and find that an order passed by the Board of Revenue in Revision Petition No. 173/56 was challenged by Govind Lal Dev before the Division Bench of High Court. D.B. Civil Writ Petition No. 49/1957 therein was dismissed by the Division Bench vide its order dated 15.04.1957 with liberty to file a suit for correction of entries. Thus judgment aforesaid was not favourable to Govind Lal Dev. The writ petition in the hands of State Government bearing No. 403/1997 was dismissed on 29.01.1997 on the ground of delay. I find that Revision Petition No. 173/56 decided by the Revenue Board vide its order dated 25.01.1957 was against the order of Settlement Commissioner dated 03.09.1956 where direction for correction of entry in the revenue record was made on a litigation between two private parties. Therein, the State was not party at any stage, yet and surprisingly, belated writ petition was filed in the year 1997, though in between various other orders were passed by the Revenue Authorities which includes the order by the Revenue Officer on 08.04.1964. A direction was given to enter the land in the name of State as it was not subject matter of the revision petition before the Board of Revenue in the year 1957. If the judgment of the Division Bench dated 15.04.1957 in Writ Petition No. 49/1957 at Annexure-4 is also perused then observation exist that majority of land is part of ''Khar", whereas as per Jaipur Tenancy Act, the definition of "land" means cultivable land only.

The Division Bench of this court in its judgment dated 15.04.1957 further observed that correction of entries in the revenue record can be sought by Govind Lal Dev by invoking Section 125 of the Land Revenue Act, 1956 as the order of the Board of Revenue was based on admissions. The litigation therein was between two parties hence was not binding on the State Government. It is however true that writ petition was preferred by the State Government but it was dismissed on the ground of delay and not on merit. The reference of dispute by the competent authority was thus not barred as it was not in regard to dispute between two parties which was agitated and finally decided by the Division Bench of High Court vide its judgment dated 15.04.1957 and subsequent order in the year 1997. If the facts of this case are looked into, the reference is after taking subsequent events into consideration. The subsequent orders passed by different revenue authorities were taken into consideration, which includes the order of Revenue Officer dated 08.04.1964 and thereupon the entry of the name of Govind Lal Dev at the instance of Sarpanch. All those events and facts were not part of the earlier litigation before the Revenue Court as well as before the High Court. In view of the above, reference was made after taking into consideration the orders passed subsequently.

The record and past history of the case show that land in dispute was originally belonging and recorded in the name of Temple Gopinathji and part of land was thereupon recorded as "Charagah" land. Govind Lal Dev remained unsuccessful to get his name recorded till the year 1964 though an agreement to sale was executed in the year 1962 but sale deed was executed thereupon in May, 1964 and onwards in the name of a Joint Agriculture Cooperative Society in ignorance to the earlier order passed by the Revenue Officer on 08.04.1964. It was nothing but a fraudulent act of the then Sarpanch in doing so. In the background aforesaid, reference was competent. The order of the Revenue Board is elaborate and covers all the issues raised therein and otherwise facts have been detailed out in this judgment.

I find that issue of delay and laches in making reference was not argued or pressed by the petitioners before the Board of Revenue though it was raised before the Additional Collector at the time of making reference. The issue aforesaid has been taken again now in the writ petition and reference of judgment of this court in the case of Mahendra Singh & Anr. v. State of Rajasthan & Ors., reported in RLR 1989 (1) 221 has been given. I find that no limitation is provided for reference though it has to be made within reasonable time. The judgment of the court in the case (supra) clarifies that no limitation for reference has been prescribed thus reference cannot be set aside on the aforesaid ground.

So far as delay is concerned, I find that mutation entered in the year 1964 was not in the knowledge of the State Government as land was used for grazing cattle and it came in the knowledge for the first time when discrepancy in the record was found by Settlement Commissioner. The matter was immediately taken up to address the issue and thereupon reference was made. Taking note of the facts aforesaid, I do not find it to be a case of unexplained delay in making reference rather facts of this case are alarming as to how the record was manipulated. Taking note of the aforesaid and also the fact that issue of delay of reference was not before the Division Bench, it cannot be accepted.

I further find that there is concurrent finding of facts by three revenue courts. It is no doubt that Division Bench of Revenue Board largely referred the order of the Additional Collector for making reference but thereupon specific issues argued before the Division Bench were decided by a detailed order leaving those grounds which were not pressed. Accordingly, I find that well considered order has been passed by the Division Bench of the Board of Revenue. The jurisdiction of this court under Article 226 of the Constitution of India is not akin to the jurisdiction of the appellate court rather it is quite limited as upheld by Hon''ble Apex Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, . Relevant Paras 7 and 8 of the aforesaid judgment are quoted hereunder for ready reference:

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Articles 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer file an appeal if it is permissible under the law."

In view of judgment referred to above and taking note of concurrent finding of facts by three revenue courts, I do not find it appropriate to interfere therein moreso when finding cannot even be said to be perverse what to say about any error therein. The Division Bench of the Board of Revenue has considered all the issues raised by the petitioners. Hence, no justification remains to interfere in the impugned orders.

The writ petitions so as stay applications are accordingly dismissed.