Rajasthan High Court - Jaipur
Smt Asha Devi Agarwal vs B O R Ajmer And Ors on 11 April, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9521/2013
Smt. Asha Devi Agarwal Wife of Om Prakash Agarwal, Aged
about 63 years, Resident of Near Bus Stand, Madanganj-
Kishangarh Tehsil Kishangarh, District Ajmer (Rajasthan)
----Petitioner
Versus
1. Board of Revenue for Rajasthan at Ajmer through its
Registrar.
2. Ratna @ Ratan Lal Son of Late Shri Nathu Mina, Resident of
Farasiya, Tehsil Kishangarh, District Ajmer.
3. Ramgopal Son of Bhagirath, Residents of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil Kishangarh,
District Ajmer.
4. Ganpat (since deceased) through legal representative-
4/1. Indra Mohan Son of Shri Ganpat, aged about 52 years,
Resident of Infront of Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4/2. Murli Manohar Son of Shri Ganpat, Resident of Infront of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (since deceased) through legal representatives:-
5/1. Hari Om S/o Satya Narayan, aged about 55 years, Resident
of Near Ravindra Theatre Oswal Mohhala, Madanganj,
Kishangarh, District Ajmer.
5/2. Radha Kishan Son of Satya Narayan, Aged about 52 years,
Resident of Near Ganesh Mandir, Krishanpuri, Madanganj,
Kishangarh, District Ajmer.
5/3. Vishnu Son of Satya Narayan, aged about 42 years,
Resident of infornt of Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
6. Hanuman Son of Bhagirath, Residents of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil Kishangarh,
District Ajmer.
7. Jagdish (Since deceased) through legal representative:-
7/1. Nand Kishore Son of Jagdish, Aged about 52 years,
Resident of Near Ravindra Theatre, Oswal Mohhala, Madanganj,
Kishangarh, District Ajmer.
7/2. Girraj Son of Jagdish, aged about 41 years, Resident of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh, District
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/04/2022 at 09:04:31 PM)
(2 of 22) [CW-9521/2013]
Ajmer.
8. Shyam Sunder Sharma,
9. Suresh Sharma,
Both Sons of Nityanand Sharma, Resident of Madanganj,
Kishangarh, District Ajmer.
10. State of Rajasthan through Tehsildar, Kishangarh.
11. Kisturi Devi Widow of Dhanna Lal.
12. Sunil Kumar Son of Dhanna Lal.
13. Vinod Son of Dhanna Lal.
All Residents of Village Farasia, Tehsil Kishangarh, District Ajmer.
14. Additional Divisional Commissioner, Ajmer.
15. District Collector, Ajmer.
----Respondents
Connected With
S.B. Civil Writ Petition No. 11851/2013
Smt. Asha Devi Agarwal Wife of Om Prakash Agarwal, Aged
about 63 years, Resident of Near Bus Stand, Madanganj-
Kishangarh Tehsil Kishangarh, District Ajmer (Rajasthan)
----Petitioner
Versus
1. Board of Revenue for Rajasthan at Ajmer through its
Registrar.
2. Ratna @ Ratan Lal Son of Late Shri Nathu Mina, Resident of
Farasiya, Tehsil Kishangarh, District Ajmer.
3. Ramgopal Son of Bhagirath, Residents of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil Kishangarh,
District Ajmer.
4. Ganpat (since deceased) through legal representative-
4/1. Indra Mohan Son of Shri Ganpat, aged about 52 years,
Resident of Infront of Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4/2. Murli Manohar Son of Shri Ganpat, Resident of Infront of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (since deceased) through legal representatives:-
5/1. Hari Om S/o Satya Narayan, aged about 55 years, Resident
of Near Ravindra Theatre Oswal Mohhala, Madanganj,
Kishangarh, District Ajmer.
5/2. Radha Kishan Son of Satya Narayan, Aged about 52 years,
Resident of Near Ganesh Mandir, Krishanpuri, Madanganj,
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/04/2022 at 09:04:31 PM)
(3 of 22) [CW-9521/2013]
Kishangarh, District Ajmer.
5/3. Vishnu Son of Satya Narayan, aged about 42 years,
Resident of infornt of Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
6. Hanuman Son of Bhagirath, Residents of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil Kishangarh,
District Ajmer.
7. Jagdish (Since deceased) through legal representative:-
7/1. Nand Kishore Son of Jagdish, Aged about 52 years,
Resident of Near Ravindra Theatre, Oswal Mohhala, Madanganj,
Kishangarh, District Ajmer.
7/2. Girraj Son of Jagdish, aged about 41 years, Resident of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh, District
Ajmer.
8. Shyam Sunder Sharma,
9. Suresh Sharma,
Both Sons of Nityanand Sharma, Resident of Madanganj,
Kishangarh, District Ajmer.
10. State of Rajasthan through Tehsildar, Kishangarh.
11. Kisturi Devi Widow of Dhanna Lal.
12. Sunil Kumar Son of Dhanna Lal.
13. Vinod Son of Dhanna Lal.
All Residents of Village Farasia, Tehsil Kishangarh, District Ajmer.
14. Additional Divisional Commissioner, Ajmer.
15. District Collector, Ajmer.
----Respondent
S.B. Civil Writ Petition No. 11852/2013
Smt. Asha Devi Agarwal Wife of Om Prakash Agarwal, Aged
about 63 years, Resident of Near Bus Stand, Madanganj-
Kishangarh Tehsil Kishangarh, District Ajmer (Rajasthan)
----Petitioner
Versus
1. Board of Revenue for Rajasthan at Ajmer through its
Registrar.
2. Ratna @ Ratan Lal Son of Late Shri Nathu Mina, Resident of
Farasiya, Tehsil Kishangarh, District Ajmer.
3. Ramgopal Son of Bhagirath, Residents of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil Kishangarh,
District Ajmer.
4. Ganpat (since deceased) through legal representative-
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/04/2022 at 09:04:31 PM)
(4 of 22) [CW-9521/2013]
4/1. Indra Mohan Son of Shri Ganpat, aged about 52 years,
Resident of Infront of Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
4/2. Murli Manohar Son of Shri Ganpat, Resident of Infront of
Maszid, Madanganj Kishangarh, Tehsil Kishangarh, District
Ajmer.
5. Satyanarain (since deceased) through legal representatives:-
5/1. Hari Om S/o Satya Narayan, aged about 55 years, Resident
of Near Ravindra Theatre Oswal Mohhala, Madanganj,
Kishangarh, District Ajmer.
5/2. Radha Kishan Son of Satya Narayan, Aged about 52 years,
Resident of Near Ganesh Mandir, Krishanpuri, Madanganj,
Kishangarh, District Ajmer.
5/3. Vishnu Son of Satya Narayan, aged about 42 years,
Resident of infornt of Maszid, Madanganj Kishangarh, Tehsil
Kishangarh, District Ajmer.
6. Hanuman Son of Bhagirath, Residents of Sabzi Mandi,
Opposite Maszid, Madanganj Kishangarh, Tehsil Kishangarh,
District Ajmer.
7. Jagdish (Since deceased) through legal representative:-
7/1. Nand Kishore Son of Jagdish, Aged about 52 years,
Resident of Near Ravindra Theatre, Oswal Mohhala, Madanganj,
Kishangarh, District Ajmer.
7/2. Girraj Son of Jagdish, aged about 41 years, Resident of
Near Ganesh Mandir, Krisanpuri, Madanganj, Kishangarh, District
Ajmer.
8. Shyam Sunder Sharma,
9. Suresh Sharma,
Both Sons of Nityanand Sharma, Resident of Madanganj,
Kishangarh, District Ajmer.
10. State of Rajasthan through Tehsildar, Kishangarh.
11. Kisturi Devi Widow of Dhanna Lal.
12. Sunil Kumar Son of Dhanna Lal.
13. Vinod Son of Dhanna Lal.
All Residents of Village Farasia, Tehsil Kishangarh, District Ajmer.
14. Additional Divisional Commissioner, Ajmer.
15. District Collector, Ajmer.
----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Senior Advocate
assisted by Mr. Karan Tibrewal, Adv.
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/04/2022 at 09:04:31 PM)
(5 of 22) [CW-9521/2013]
For Respondent(s) : Mr. Sudhir Gupta, Senior Advocate
assisted by Mr. Deen Dayal Sharma,
Adv., Ms. Shweta Chauhan, Adv.
Ms. Sejal Harneja, Adv.
Mr. Akshay Sharma, Additional
Government Counsel.
Mr. Vijay Choudhary, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
ORDER
Order Reserved on : 14th March, 2022
REPORTABLE
Date of Order : 11th April, 2022
By the Court:
These three writ petitions are decided by this common order as the petitioner has challenged the order dated 10.05.2013 passed by the Board of Revenue deciding three revision petitions filed by the petitioner. The petitioner has also challenged common judgment of the Additional Divisional Commissioner, Ajmer dated 16.06.2005 rejecting three appeals, which arose from a common order passed by the District Collector, Ajmer dated 06.06.2003, preferred by the respondent No.2 against mutation Nos.325 dated 25.11.1967, 344 dated 25.05.1968 & 338 dated 29.11.1984.
2. The facts, as pleaded by the petitioner, in brief, in the writ petitions are that one Deepa S/o Manphool Meena, was recorded Khatedar tenant of the land pertaining to Khasra No.255/2 (Old No.682) measuring 14 Bighas and 5 Biswas in Village Farasiya, Tehsil Kishangarh, District Ajmer. The aforesaid land was sold by Ghasiram and Dhanna both sons of Deepa through a registered sale deed dated 06.02.1962 to one Bhagirath S/o Ramprasad Mahajan and possession was also transferred to him.
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (6 of 22) [CW-9521/2013]
3. In Samvat Year 2020 in the settlement operations, the new Khasra No.255/2 was carved out from the old Khasra Number and the land was recorded in favour of Ghasiram and Dhanna both sons of Deepa and additionally name of Ratna S/o Nathu was also entered showing his equal share in the land. The petitioners alleged that the Settlement Authorities had no right to insert the name of Ratna S/o Nathu, who was never a co-tenant of the land before the entry in jamabandi in the Samvat Year 2020.
4. The petitioner has pleaded that on the basis of the sale deed dated 06.02.1962, a writing was executed by Ratna on 25.10.1963 and mutation proceedings were initiated but on an objection with regard to registration of document and prohibited caste, the mutation No.209 was rejected and when the matter was further pursued, it was clarified that Meena in Ajmer District was not a prohibited caste at that time and the mutation No.325 was sanctioned vide order dated 23.11.1967.
5. On 12.06.1968 Bhagirath sold the land to Nityanand S/o Gangadutt vide registered sale deed and mutation No.344 dated 12.06.1968 was sanctioned in this regard by the Tehsildar. The said Nityanand sold the land to the present petitioner vide registered sale deed dated 06.07.1974 and handed over the possession of the land to the petitioner.
6. On the basis of the aforesaid sale deed, the Tehsildar passed order dated 16.07.1974 for recording the land in favour of the petitioner. On 29.11.1984, the mutation No.338 was sanctioned in favour of the petitioner. The petitioner after purchasing the land vide registered sale deed dated 06.07.1974 had applied for (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (7 of 22) [CW-9521/2013] conversion of the land of 500 Sq.Mtrs. out of the aforesaid 14 Bighas and 5 Biswas of the land for industrial purposes and the District Collector, Ajmer passed the order dated 04.01.1980 for conversion of 500 Sq.Mtrs. of land for industrial purposes.
7. The respondent No.2-Ratna on 11.12.1992 filed an application under Section 82 of the Rajasthan Land Revenue Act, 1956 before Tehsildar for making reference with regard to the three mutations alleging them to be illegal. The petitioner had received notice of the said application and reply was filed and as such the matter was dropped there only as no reference was made by the Tehsildar.
8. In the year 2001, the respondent No.2 filed three appeals before the District Collector, Ajmer being appeals No.25/2001, 26/2001 and 27/2001 questioning the mutations Nos.325 dated 25.11.1967, 344 dated 25.05.1968 & 338 dated 29.11.1984. The respondent No.2 also filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeals. The petitioner filed replies to the applications for condonation of delay and the District Collector vide order dated 06.06.2003 dismissed the application of the respondent No.2 for condonation of delay and by the common order dated 06.06.2003, all the appeals of the respondent No.2 came to be dismissed. The operative portion of the order dated 06.06.2003 is reproduced hereunder:-
"geus mHk; i{k }kjk izLrqr cgl ij /;ku iwoZd euu fd;k o i=koyh dk voyksdu fd;kA i=koyh ds voyksdu ls Li"V gS fd izkFkhZ dks vf/kuLFk U;k;ky; }kjk ikfjr rhuksa ukekarjdj.kksa ds vkns'kkas dh tkudkjh iwoZ es gh Fkh tks muds }kjk dysDVj vtesj ds le{k izLrqr vkS?kkSfxd iz;kstukFkZ :ikUrj.k izkFkZuk i= ij dk;Zokgh ds nkSjku vkifRr izLrqr djus rFkk (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (8 of 22) [CW-9521/2013] Rkglhynkj] fd'kux< ds le{k o"kZ 1922 es rhuksa ukekarjdj.kksa dks jSQjsUl djus gsrq izLrqr izkFkZuk i= ls Li"V gSA izkFkhZ }kjk vf/kuLFk U;k;ky; ds vk{ksih; vkns'kksa ds fo:) 34 o"kZ] 33 o"kZ rFkk yxHkx 17 o"kZ i'pkr vihys izLrqr dh xbZ gS muds }kjk brus o"kZ i'pkr vihr izLrqr djus dk dksbZ Bksl ,oa lUrks"kizn dkj.k fe;kn izkFkZuk i= es ugha n'kkZ;k x;k gSA vr% izLrqr vihys brus vUrjky ds i'pkr fcuk fdlh Bksl ,oa lUrks"kizn dkj.kksa ds fe;kn vf/kfu;e dh /kkjk 5 ds lkFk izLrqr dh xbZ gS tks nsjh ds dj.kksa dks {kek djus gsrq i;kZIr vk/kkj ds vHkko esa izkFkZuk i= [kkfjt fd;k tkrk gSA vr% vihy vihykFkhZ fe;kn ckgj gksus ls fujLr dh tkrh gSA "
9. The respondent No.2 filed appeals before the Additional Divisional Commissioner, Ajmer, who allowed the appeals vide order dated 16.06.2005 and remanded the matter to be heard by the District Collector after examining the validity of the mutations. The operative portion of the order dated 16.06.2005 is reproduced hereunder:-
"i=koyh dk voyksdu fd;k x;k o cgl ij xkSj fd;k x;kA fo}ku vfHkHkk"kd vihykaV dk dFku gS fd ukekrjdj.k ds laca/k esa tks vkns'k tkjh fd;s gA oks ,Cuhf'k;ks oksbZM gS ,oa ,Cuhf'k;ks oksbZM vkMZj ds fy;s dksbZ le; lhek ugh gSA bl laca/k esa muds }kjk cgl ds nkSjku :fyXl izLrqr dh gSA fo}ku vfHkHkk"kd vizkFkhZ us tokc dh cgl es tkfgj fd;k fd vihykaV }kjk eheks vkQ vihr ds f[kykQ cgl dh gS rFkk jruk fodz; gqbZ ml le; eh.kk tkfr vuq0 tutkfr esa ntZ ugha Fkh rFkk vf/kuLFk U;k;ky; us fe;kn ds fcUnw ij vihykaV dh vihy fujLr dh gS tks mfpr gSA vf/kuLFk U;k;ky; ds fu.kZ; ls ;g Li"V gksrk gS fd vf/kuLFk U;k;ky; us rLnhd fd;s x;s ukaekarjdj.k dh oS/kkfudrk ds laca/k esa vius vkns'k es dksbZ foospu ugh fd;k gS fd *vk;k rLnhd fd;s x;s ukekarjdj.k ds vkns'k ,Cuhf'k;ksa oksbZM gS vFkok ugh^A vihykaV }kjk izLrqr uthjka ls ;g Li"V gS fd vxj vkns'k ,Cuhf'k;ks oksbZM gS rks fe;kn dk fcUnww blesa ek;us ugha j[krk gSA izdj.k ds rF;ksa dks ns[krs gq, vf/kuLFk U;k;ky; }kjk ukekarjdj.k ds vkns'k dh oS/kkfudrk dk foospu djuk Hkh vko';d FkkA vr% mDr foospu ds vk/kkj ij vf/kuLFk U;k;ky; dk fu.kZ; mfpr izrhr ugh gksrk gSA fygktk vf/kuLFk U;k;ky; ¼ftyk dyDVj] vtesj½ dk fu.kZ; fnukad 6-6- 2003 fujLr fd;k tkrk gS ,oa izdj.k vf/kuLFk U;k;ky; ¼ftyk dyDVj] vtesj½ dks izfrizsf"kr dj funsZf'kr fd;k tkrk gS fd os fe;kn ds fcUnw ds lkFk lkFk ukekarjdj.k la[;k 325] 344 ,oa 338 fnukad dze'k% 23-11-67] 12- 6-68 o 29-11-84 dh oS/kkfudrk ds laca/k esa Hkh foospu djrs gq, fu;ekuqlkj fu.kZ; ikfjr djsA"
10. The petitioner challenged the order dated 16.06.2005 by filing three Revision Petition Nos.3763/2005, 3764/2005 & (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (9 of 22) [CW-9521/2013] 3765/2005 before the Board of Revenue. The Board of Revenue while deciding the Revision Petitions filed under Section 84 of the Rajasthan Land Revenue Act, 1956 (hereinafter shall be referred to as "the Act of 1956") framed six issues after considering the controversy, terming them important legal issues. The six issues framed by the Board of Revenue are reproduced hereunder:-
"(1) When the mutation No. 209 of village Farasia once 37 rejected by Tehsildar on merits, mutation No. 325 could not have been sanctioned as Tehsildar became functus officio to act on mutation No. 325 based on the same sale deed. (2) Whether the Mina community was in the list of scheduled tribes in Ajmer district as on 6.2.1962 and the sale executed by Ghasi was forbidden under the law and was void ab-initio? (3) At the time of first sale i.e. 6.2.1962, the disputed land was entered in co-tenancy of three persons, namely, Ghasi and Dhanna sons of Deepa and Ratna son of Nathu Mina, whereas the sale deed was executed only by Ghasi. Therefore, the sale was void.
(4) Whether Dhanna was minor at the time of first sale i.e. 6.2.1962 and Ghasi could sell Dhanna's share as his guardian ?
(5) Whether name of Ratna son of Nathu was erroneously entered in the land records and without getting the land records corrected such a sale could not be given effect? (6). Whether under the revision jurisdiction of this court the validity of mutation No. 325, 344 and 338 of village Farasia can be examined by this court?"
11. For ready reference, operative portion of the order passed by the Board of Revenue dated 10.05.2013 is reproduced hereunder:-
"14. As discussed above, this Court holds that the judgments passed by both lowers courts suffer from grave legal and jurisdictional errors. Therefore, the impugned judgments passed by learned Collector and Additional Divisional Commissioner are quashed and set aside. The mutation No.325 sanctioned by Tehsildar, Kishangarh is also quashed and set aside. The Tehsildar is directed to restore the disputed land in the name of the persons whose names it existed before the first sale i.e. on 06.02.1962. Since the first sale was void and the mutation No.325 has already been quashed. Subsequently, sale to Nityanand and to the (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (10 of 22) [CW-9521/2013] petitioner cannot be hold good. Consequently subsequent mutations numbering 344 and 338 of Village Farasia also fall automatically. The revision petitions preferred by the petitioner are disposed of accordingly."
12. The petitioner has pleaded and has also brought on record the fact of filing S.B.Civil Writ Petition No.17671/2012 filed by the respondent No.2 titled as Ratna @ Ratanlal Vs. Board of Revenue Ajmer and Ors. challenging the order dated 20.06.2012 passed by the Board of Revenue, whereby the reference made by the Board of Revenue was declined holding that the caste Meena in District Ajmer was not a Scheduled Tribe and there was no violation of Section 42 of the Rajasthan Tenancy Act, 1955 (hereinafter shall be referred to as "the Act of 1955"). The said writ petition was dismissed by this Court vide order dated 25.01.2016.
13. The petitioner has also brought on record the fact of filing writ petition by the respondent Nos.11, 12 & 13 being S.B.Civil Writ Petition No.222/2013 titled as Vinod Kumar and Ors. Vs. Board of Revenue and Ors. challenging the same order dated 20.06.2012 passed by the Board of Revenue and the said writ petition was also dismissed by this Court vide order dated 09.02.2015.
14. D.B.Special Appeal (Writs) No.279/2016, preferred against the order dated 09.02.2015, passed by the co-ordinate Bench of this Court, was dismissed vide order dated 18.11.2016.
15. The petitioner has mainly raised following grounds in the writ petitions for assailing the order of the Board of Revenue:-
15A. The Board of Revenue has passed the impugned order suffering from legal errors apparent on the face of (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (11 of 22) [CW-9521/2013] record and the same amounts to gross abuse of revisional power vested in the Board of Revenue.
15B. The Board of Revenue has passed the order not as a revisional authority but as a first Court having jurisdiction to decide the suit for declaration and possession.
15C. The Board of Revenue was only concerned to see as whether the Additional Divisional Commissioner had committed any jurisdictional error while remanding the appeals to the First Appellate Authority for decision afresh and instead of doing so, the Board of Revenue framed six issues and decided the issue which never arose in the Revision Petitions.
15D. The Board of Revenue has completely misread the constitutional notification and the material available on record.
15E. The Board of Revenue has committed serious error by misquoting the notification dated 25.09.1956 and completely ignored the Scheduled Castes and Scheduled Tribes List (Modification) Order, 1956. It is pleaded that 'Meena' throughout the State of Rajasthan have been included in the list of Scheduled Tribes only by the Act of 1956 and prior to this in District Ajmer, only 'Bhil Meena' was included and 'Meena' community was not included in the Scheduled Tribes and in the relevant year i.e. in the year 1962 when the transaction (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (12 of 22) [CW-9521/2013] had taken place, 'Meena' community in District Ajmer was not included in Scheduled Tribes.
16. Mr. Rajendra Prasad, learned Senior Counsel, appearing on behalf of the petitioner made following submissions:-
16A. The power of Revision under Section 84 of the Act of 1956, is not conferred to convert a revision petition into original suit proceedings and power of revision is confined to see, as whether such power has been exercised properly or not by revenue court or subordinate officer.
16B. The suit filed by the respondent No.2 was barred by limitation.
16C. The tenancy rights of the respondent No.2 were extinguished, as per Section 63(1)(iv) of the Act of 1955 as the respondent No.2 did not have the right to recover possession being barred by limitation and recovery of possession can be claimed only within 12 years from the date of dispossession.
16D. The State Government failed to exercise its power conferred under Section 175(4-a) of the Act of 1955, if at all the transaction in favour of non Scheduled Caste by transferring the land by Scheduled Castes, was thought to be in contravention of Section 42 of the Act of 1955.
17. Learned Senior Counsel for the petitioner has placed reliance in support of his contention on the following judgments:-
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (13 of 22) [CW-9521/2013]
(i) Babu Singh Vs.State of Rajasthan and Ors. reported in AIR 2002(Raj.) 92.
(ii) Devi Singh and Ors. Vs.Board of Revenue and Ors.
reported in (1994) 1 SCC 215.
(iii) Nathu Ram (Dead) by LRs and Ors. Vs.State of Rajasthan and Ors. reported in (2004) 13 SCC 585.
(iv) Ram Karan Vs. State of Rajasthan reported in (2014) 8 SCC 282.
18. Learned Senior Counsel appearing for the respondent No.2 Mr.Sudhir Gupta, at the outset, submitted that as far as finding of the Board of Revenue on issue No.2 with regard to sale executed by the Scheduled Caste forbidden under the law and void ab initio, is concerned, the same is not supported by him.
19. Mr.Sudhir Gupta submitted that other issues which have been decided by the Board of Revenue, do not require any inference by this Court.
20. Mr.Sudhir Gupta, has first raised the objection with regard to maintainability of the writ petition before this Court under Article 226 & 227 of the Constitution of India as the Revenue Court is covered under the definition of Articles 375 of the Constitution of India and as such only writ petition can lie against the Board of Revenue under Article 227 of the Constitution of India. In support of his contention Mr.Sudhir Gupta placed reliance on the judgment passed by the Apex Court in the case of Radhey Shyam and Anr. Vs. Chhabi Nath and Ors. reported in (2015) 5 SCC 423.
21. Mr.Gupta has submitted that certain important facts have not been narrated before this Court, as the petitioner has pleaded that late Deepa had only two sons i.e. Ghasi and Dhanna, while the fact remains that Nathu was third son of late Deepa and the present respondent No.2 Ratna @ Ratan Lal is son of Nathu.
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:31 PM) (14 of 22) [CW-9521/2013]
22. Mr.Sudhir Gupta further submitted that the respondent No.2 was born on 04.01.1954 and his father died in October, 1954. He submitted that in Samvat Year 2020 i.e. year 1963, the respondent No.2 Ratna son of Nathu, Ghasiram and Dhanna both sons of Deepa, were recorded as Khatedar of Khasra No.207 admeasuring 28 Bighas of land, held in equal shares. Counsel submitted that on the date of sale i.e. 06.02.1962, when sale- deed was entered into between Ghasiram son of Deepa, Dhanna (minor) son of Deepa and Bhagirath son of Ram Prasad Agarwal for sale of 14 Bighas and 15 Biswas, the respondent No.2 Ratna was a minor of 9 years of age and Laadi Devi wife of Deepa and mother of Ghasiram, Dhanna and Nathu was alive at the time of execution of the sale-deed.
23. The mutation application which was filed before the Tehsildar, Kishangarh for change of name of Khatedar, after sale-deed dated 06.02.1962, was rejected by the Tehsildar vide order dated 20.12.1963 on the ground that the alleged sale by Ratna dated 25.10.1963 was not registered and the sale was barred under Section 42 of the Act of 1955.
24. Counsel for the respondent No.2 submitted that the Board of Revenue has correctly given findings on all the issues except on the issue of sale being barred under Section 42 of the Act of 1955 and as such, no interference is required by this Court.
25. Counsel for the respondent No.2 submitted that as per the provisions contained under Sections 10, 11 & 23 of the Contract Act, a sale by minor was not valid at all and any right which has (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (15 of 22) [CW-9521/2013] been created in favour of the petitioner by virtue of the said sale, will have no sanctity in law.
26. Mr.Sudhir Gupta, Senior Advocate appearing of the respondent No.2 has placed reliance on the following judgments:-
(a) State of Maharashtra Vs. Rattanlal reported in (1993) 3 SCC 326 - para Nos.4 and 5.
(b) Collector and Ors. Vs. P. Mangamma reported in (2003) 4 SCC 488 - para Nos.1, 5, 6 to 8.
(c) State of Orissa Vs. Brundaban Sharma reported in (1995) Supp.3 SCC 249 - para No.18.
(d) Balvant N. Viswamitra Vs. Yadav Sadashiv Mule reported in (2004) 8 SCC 706 - para No.9.
(e) Sarup Singh Vs. Union of India reported in (2011) 11 SCC 198 - para Nos.20, 23 & 24.
(f) Chiranjilal Shrilal Goenka Vs. Jasjit Singh reported in (1993) 2 SCC 507 - para No.18.
(g) Waryam Singh Vs. Amarnath reported in AIR 1954 SC 215 - para No.14.
(h) Ouseph Mathai Vs. M.Abdul Khadir reported in (2002) 1 SCC 319 - para Nos. 4 to 7.
(i) Sadhana Lodh Vs. National Insurance Co.Ltd. reported in (2003) 3 SCC 524 - para No.7.
(j) Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 - para No.49.
(k) Mangi Lal & Ors. Vs. State of Rajasthan & Ors. reported in (1997) 2 RLR 755.
(l) Recent judgment dated 23.02.2022 passed by the Apex Court in M/s.Puri Investments Vs. M/s.Young Friends & Co. & Ors. [Civil Appeal No.1609/2022].
27. I have heard learned counsel for the parties and with their assistance perused the material on record.
28. This Court will first decide the question of maintainability of this writ petition before this Court, filed by the petitioner under Articles 226 & 227 of the Constitution of India, as preliminary objection has been raised by counsel for the respondent No.2 that (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (16 of 22) [CW-9521/2013] the present writ petition, against order of the Board of Revenue, can only lie under Article 227 of the Constitution of India.
29. This Court finds that the writ petition has been filed by the petitioner challenging the order passed the Board of Revenue in revision petition. The order of the Board of Revenue can be challenged in the High Court in writ jurisdiction and if the subject matter of the writ petition mentions both the Articles i.e. 226 and 227 of the Constitution of India, then the same would not mean that the writ petition cannot be entertained by this Court. This Court has to consider the legality of the order passed by the Board of Revenue and writ of certiorari lies against any order passed by the authorities exercising judicial or quasi-judicial powers.
30. This Court finds that not only the writ petition under Article 226 of the Constitution of India can be filed by any person aggrieved against order of the Board of Revenue, the writ petition can also be preferred under Article 227 of the Constitution of India.
31. The objection raised by counsel for the respondent No.2 that as per judgment passed by the Apex Court in the case of Radhey Shyam (supra), the present writ petition is not maintainable, suffice it to say by this Court that the issue before the Apex Court in that case was with respect to the scope of filing writ petitions under Articles 226 and 227 of the Constitution of India. This Court accordingly rejects the preliminary objection raised by counsel for the respondent No.2 with respect to maintainability of the writ petition.
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (17 of 22) [CW-9521/2013]
32. This Court, in view of the statement made by counsel for the respondent No.2, does not require to adjudicate on the issue with respect to violation of Section 42 of the Act of 1955 of selling the land by a Scheduled Tribe person to non-Scheduled Tribe person.
33. The main issue to be decided by this Court is in respect of power exercised by the Board of Revenue while deciding the revision petitions filed under Section 84 of the Act of 1956.
34. The respondent No.2 had filed three appeals before the District Collector, Ajmer questioning the mutations opened in the year 1967, 1968 and 1984 and also filed an application under Section 5 of the Limitation Act. The District Collector while considering the application filed under Section 5 of the Limitation Act found that the respondent No.2 had wrongly taken the plea that he had come to know about opening of mutations on 15.04.2001 while the respondent No.2 himself had filed reference application under Section 82 of the Act of 1956 on 11.02.1992 before the Tehsildar, Kishangarh and had sought correction in the revenue record. The District Collector found that the application for conversion of land was also filed before him and there also the objection raised by the respondent No.2 was rejected and land was converted vide order dated 04.01.1980. The District Collector found that the application filed by the respondent No.2 made incorrect statement and he had filed a wrong affidavit and as such, the appeals were filed belatedly and no satisfactory explanation was given to condone the delay.
35. The respondent No.2 felt aggrieved against the order dated 06.06.2003 and filed appeal before the Additional - Commissioner, (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (18 of 22) [CW-9521/2013] Ajmer and appellate authority vide its order dated 16.06.2005, came to the conclusion that the Court below did not consider the merits of the matter and also did not see the validity of opening of mutations in favour of the petitioner and had not recorded a finding as whether the mutations opened in favour of the petitioner or his predecessors were ab initio void or not.
36. The Additional Divisional Commissioner found that if any order is ab initio void then the issue of limitation did not have any meaning and accordingly, he set aside the order passed by the District Collector and remanded the matter back to not only consider the issue of limitation but also to consider the validity of mutations opened in the year 1967, 1968 & 1984 and he was to pass a fresh order. The order dated 16.06.2005 passed by the Additional Divisional Commissioner was put to challenge by the petitioner before the Board of Revenue by filing revision petition.
37. This Court finds that the Board of Revenue before framing of issues recorded a finding that the disputed land was entered in the name of Ghasi and Dhanna both sons of Deepa and Ratna son of Nathu in the 1992 and it was prima facie found that the disputed land belonged to 'Meena' Community and the first sale-deed executed was solely by Ghasi in the year 1962 in favour of Bhagirath son of Ram Prasad Agarwal, who was a non-Scheduled Tribe person and on that basis initially the mutation was rejected as the sale was said to be in contravention of Section 42(b) of the Act of 1955. The Board of Revenue after recording these facts framed six issues by terming them as legal issues and then decided the same.
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (19 of 22) [CW-9521/2013]
38. This Court finds that the Board of Revenue while deciding the issues has exercised its power like deciding original suit of declaration, injunction and possession. This Court further finds that the Board of Revenue not only quashed the judgment passed by the District Collector and the Additional Divisional Commissioner but also quashed the mutation No.325 dated 25.11.1967 and further directed to restore the possession to the persons in whose names the disputed land existed before the first sale deed was executed on 06.02.1962 as the first sale was held to be void and as such the subsequent mutation Nos.344 dated 25.05.1968 and 338 dated 29.11.1984, also have been cancelled automatically.
39. This Court finds that the Board of Revenue was primarily concerned to see whether the order passed by the Additional Divisional Commissioner was legal or not. The Board of Revenue was to consider as whether the Additional Divisional Commissioner was justified in remanding the matter back to the District Collector to decide the issue of limitation with regard to filing of appeal at a belated stage challenging the opening of mutations.
40. This Court finds that the Board of Revenue by terming the orders passed by the Additional Divisional Commissioner and the District Collector as suffering from grave illegality and jurisdictional error, could not have directed to restore the possession in favour of the respondent No.2 and further could not have cancelled the mutation by giving further declaration that the land will stand restored in favour of those persons in whose names (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (20 of 22) [CW-9521/2013] the land stood recorded prior to sale-deed being executed in the year 1962.
41. This Court finds that there is usurpation of power by the Board of Revenue by treating the revision petition as the original suit of injunction, declaration and possession and no such sweeping power could have been exercised and the same is beyond the power conferred under Section 84 of the Act of 1956.
42. This Court finds substance in the submission made by counsel for the petitioner that suit filed by the respondent No.2 was barred by limitation and no sufficient cause was shown by the respondent No.2 for not filing the suit within the limitation prescribed. This Court finds that the District Collector had rightly dismissed the appeal filed by the respondent No.2 as the respondent No.2 was in full knowledge of all the sale-deeds which were executed and part of the land converted in the year 1980 itself after objection of the respondent No.2 was rejected.
43. This Court finds substance in the submission of counsel for the petitioner that reference application was filed by the respondent No.2 himself alleging the transfer of land in favour of a non-Scheduled Tribe person and the explanation which was furnished for condonation of delay, was rightly not found satisfactory by the District Collector.
44. This Court further finds substance in the submission made by counsel for the petitioner that right of respondent No.2 was extinguished as per the provisions contained in the Section 63(1)
(iv) of the Act of 1955 as the respondent No.2 had lost the right to recover the possession as the same was barred by limitation.
(D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (21 of 22) [CW-9521/2013]
45. The submission of counsel for the respondent No.2 that respondent No.2 was minor at the time of execution of registered sale-deed in the year 1962, suffice it to say by this Court that the respondent No.2 did not challenge the sale-deed at any point of time and only mutation proceedings were challenged by him belatedly.
46. The submission of counsel for the respondent No.2 that revenue record at one point of time had reflected the name of respondent No.2 in the samvat year 2020 i.e. in the year 1963 and as such subsequent opening of mutation was nonest in the eyes of law, this Court is not inclined to accept this submission of the counsel for the respondent No.2 as the respondent No.2 had never sought any declaration of setting aside the registered sale- deed or he claimed his possession or direction to be declared as Khatedar/title holder of the land.
47. The submission of counsel for the respondent No.2 that this Court while exercising supervisory jurisdiction under Article 227 of the Constitution of India will be loath in interfering with the finding of fact, this Court, after considering the powers exercised by the Board of Revenue by assuming the entire jurisdiction to decide all the issues which were not raised in the original proceedings initiated by the respondent No.2, will be required to exercise its power to set aside the order passed by the Board of Revenue by usurping the power which has not been conferred in the Board of Revenue under Section 84 of the Act of 1956.
48. This Court further finds that very foundation of opening of wrong mutations, as alleged by the respondent No.2, was based (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) (22 of 22) [CW-9521/2013] on the alleged violation of Section 42(b) of the Act, 1955. This Court finds that the Board of Revenue has totally misread the notification issued in respect of declaring Meena Community of Ajmer District as Scheduled Tribe and as per the admission of the respondents and said issue not being pressed before this Court and the entire foundation on which the case was built by the respondent No.2, falls and no other right can be claimed by him.
49. This Court according finds that the Board of Revenue has committed error in exercising the revisional jurisdiction and has wrongly given directions. This Court further finds that the Additional Divisional Commissioner has also committed illegality in remanding the matter back by not consider that the condonation of delay, as sought by the respondent No.2, in filing the appeals was based absolutely on incorrect facts and further the Additional Divisional Commissioner could not have treated the mutation as void ab initio holding that no law of limitation applies on such transaction.
50. Accordingly, the instant writ petitions succeed and the order passed by the Board of Revenue dated 10.05.2013 so also the order passed by the Additional Divisional Commissioner dated 16.06.2005, are quashed and set aside. No costs.
(ASHOK KUMAR GAUR),J Solanki DS, PS (D.B. SAW/1050/2013 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/04/2022 at 09:04:32 PM) Powered by TCPDF (www.tcpdf.org)