Rajasthan High Court - Jaipur
State Of Raj. vs Mohan Singh And Ors., Etc. Etc. on 9 August, 2001
Equivalent citations: 2002(4)WLN238
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT Rajesh Balia, J.
1. These nine (sic ten ?) appeals arise out of the proceedings which have a chequered history. All the respondents in these appeals claim to be admitted as tenants on the agricultural land situated in the erstwhile Jagir of Chhatargarh in the erstwhile State of Bikaner, now in the Bikaner district. The lands-fall within the area irrigated by the Rajasthan Canal (now known as Indira Gandhi Canal). The Jagir of Chhatargarh was resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, on 23rd of August, 1954. It was the case of the respondents that they were regularly paying the rent to the erstwhile Jagirdars and, thereafter, they have paid the rent to the State Government. According to them, after the resumption of Chhatargarh Jagir, they became tenants of the State Government by operation of the provisions of Section 9 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as 'the Act, 1952') and consequently the Rajasthan Tenancy Act, 1955 (for Short, 'the Act, 1955') came into force from 15th October, 1955 and they became Khatedar tenants under the Rajasthan Tenancy Act, 1955. It was further the case of the respondents that prior the the commencement of the Rajasthan Tenancy Act, they were governed by the Tenenacy Act of the Bikaner State concerning the tenancy rights in the land in question and which according to them, were heritable and transferable. In 1958, the Rajasthan Tenancy Act, 1955 was amended and Section 15-A was inserted envisaging that notwithstanding anything contained in Section 13 or Sub-section (1) of Section 15 of the Act, 1955 or any other law for the time being in force, or in any lease, patta or other document, land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso to the said sub-section of Section 15 of the Act and no Khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid.
2. In the first instance, on challenge to validity of Section 15-A by a number of persons, it was held to be ultra vires by this Court in (1) Jassuram and others v. State of Rajasthan and Others AIR 1963 Rajasthan 72). Thereafter the Rajasthan Tenancy Act was included in Schedule IX of the Constitution and the Revenue Authorities refused to recognise the Khatedari rights of the persons in land or the area falling within the territory of Rajasthan Canal and treated those occupants as trespassers, as a result of which proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956 or Section 22 of the Rajasthan Colonisation Act were initiated against some of the persons and standing crops of some of the tenants were attached.
3. In the back-drop, 492 writ petitions were filed before this Court between 1969 and 1972 which included the petitions fifed by the respondents in these appeals respectively, challenging the validity of Section 15-A of the Act of 1955 on various grounds and for quashing the proceedings taken for their eviction as unauthorised occupants under the Rajasthan Land Revenue Act/Rajasthan Colonisation Act, by holding them to be Khatedar tenants under the Rajasthan Tenancy Act. These petitions, in the first instance, came to be decided by a learned Single Judge (Hon'ble V.F Tyagi. J.) by a common order dated 18th April, 1972. The learned Single Judge upheld the validity of Section 15A of the Rajasthan Tenancy Act, 1955. The learned Single judge further directed all the petitioners to hand over the land to the State Government, soon after the then standing crop is harvested by them and left the State Government free to take action in respect of those lands in accordance with the provisions of the law, for that purpose. These directions were issued on the premise that the petitioners, while obtaining the interim orders, who were in possession of the land in question had given a definite undertaking that if their petitions were dismissed by this Court, they will hand over the lands to the State Government with the standing crops.
4. Aggrieved with this order, as many as 285 appeals were preferred before the Division Bench which came to be decided on 20th January, 1973. Said judgment is reported in (2) Jugal Kishore and Ors. v. State of Rajasthan & OOrs. (1973 RLW 250). While affirming the judgment of the learned Single Judge about the validity of Section 15A, that part of the order by which the petitioners were directed to hand over the possession to the State Government on dismissal of the writ petitions, after harvesting the standing crops, was modified by directing that that part of the learned Single Judge which proceeds on the basis of the assumed undertaking given by the appellants is set aside, because there appears to be some factual error. At no point of time, the appellants gave any undertaking to hand over the possession of the land'. Along with that the Court also ordered that the proceedings under Section 22 of the Rajasthan Colonisation Act in the 14 appeals detailed in Schedule 'B' of the judgment be set aside and quashed and allowed the appeals, in part, by further directing that if the appellants are to be evicted from the land in question, they shall be evicted in accordance with law. No interference was made in proceedings pending under Section 91 of the Land Revenue Act by holding that it requires number of questions of fact including of nature of rights and continued possession which may be decided in appropriate proceedings under law for determining such issues. Total number of cases in which proceedings under Section 22 of Colonisation Act were pending were 14 and in which proceedings under Section 91 of the Land Revenue Act were pending were 13. Thus, out of 285 appeals, proceedings for eviction were only in respect of 27 cases. Aggrieved with the judgment passed by the Division Bench, the appellants preferred appeals before Supreme Court.
5. During the pendency of the appeals and special leave petitions, the Rajasthan Tenancy Act, 1955 was further amended and Section 15-AAA was enacted with effect from 29th December, 1979, making the provision for conferring Khatedari rights in cases covered by Section 15-A of the Act. In view of changed circumstances, the appeals and special appeals pending before the Supreme Court were dismissed as having become infructuous on 31st July, 1986. The Court observed that -
"we do not think and valid reason exists for differing from the reasoning and conclusion reached by the High Court in upholding the constitutional validity of Section 15A of the Act."
The Court further observed that -
"the appellants and petitioners shall, however, be at liberty to move the Prescribed Authority under the Act for grant of such relief under Section 15AAA of the Act to which they may be entitled within four weeks from today."
6. Pursuant to these observations, the application under Section 15AAA of the Act of 1955 were filed by a number of persons including the respondents non-petitioners in respect of the area situated in Chhattargarh (erstwhile Jagir of Chhattargarh and Sattasar).
7. The case of the applicants was that they were tenants of erstwhile Jagirdar and paying rent to him. In support of their claim, they have produced a photocopy of certified copy of Dhalbach and 'Khatauni Darmiyani' for the relevant period. It was also urged that in the proceedings to which reference has been made hereinabove, this Court has recorded a categorical finding that the applicants are to be treated as 'Ghair Khatedars' and not trespassers. These findings bind the State and Revenue Authorities as a finding recorded between the parties. It was also claimed that the right of applicants are transferable and heritable and that they are in continuous possession of the land in question since the commencement of Act of 1955 until making of the applications. A certificate of Gram Panchayat was also produced in support of the applicants' claim as tenant and continuous possession of the said land.
8. The State denied all the claim. It was stated that records relied on by the applicants were prepared falsely by the erstwhile Jagirdar and cannot be relied on to sustain their claims. It was urged that most of the applicants were trespassers and have encroached upon the land later on during the pendency of petitions challenging the validity of Section 15A to said (sic ?) along with those petitioners who had come to the Court on the basis of their entire possession. The State also urged that no such issue as for existence of rights of the applicants at the commencement of the Rajasthan Tenancy Act, 1955 was raised and determined by the High Court in earlier proceedings. Therefore, no benefit can be derived there from by the applicants, to claim their status as tenant of erstwhile Jagirdar at the commencement of Act of 1955. One fact also needs to be noticed here that it is the case of the State from beginning that an investigation is going with the alleged fabrication or interpolation in the record of erstwhile Jagirdar by C.I.D./C.B.I. It is also not in dispute that no result of such investigation has been placed on record despite requests made in this behalf or that whether any conclusion has been reached by the investigating agency against the genuineness or otherwise of the originals in question, which is alleged to have been seized from the custody of the Colonisation Department.
9. These applications were disposed of by the Assistant Collector through different set of orders. Some applications were dismissed by order dated 5.12.87, which was affirmed by the Board of Revenue by its order dated 13.7.96. Out of the said order, one writ petition, filed by Basant Kumar as Writ Petition No. 2535/96, has been admitted and is pending consideration before this Court. The present group of petitions does not fall in that category. Another set of applications were dismissed by order dated 18.1.88 by the Assistant Collector. That order of the Assistant Collector was affirmed by the Board of Revenue by its order dated 28.9.89. No challenge was made to that order. The third set of applications were rejected by the Assistant Collector vide his order dated 14.1.86, with which we are concerned.
10. The Assistant Collector, after recording the contentions raised by the respective parties, rejected the claim of the applicants to be treated as Gair Khatedars at the commencement of the Rajasthan Tenancy Act, on the basis of the finding recorded by the learned Single Judge of this Court in (3) S.B. Civil Writ Petition No. 1474/69 and 491 other connected matters, on 18th April, 1972, as approved by the Division Bench in Jugal Kishore's case, referred to above, on the ground that the finding has been recorded by the High Court about the Gair Khatedari status of the applicants without considering the merits of their claim and it is, therefore, not binding. On the basis of the report submitted by the Tehsildar he refused the request of the applicants to call for the original Tehsildar's report, there is no need to summon the original record. While refusing to summon original record of which the documents filed by the applicant purported to be copies, he also refused to admit the copies in evidence about their status as tenant vis-a-vis Jagirdar on the basis of that record. However, it may be noticed here that as a fact, it has never been disputed that these entries so exist in those records. What has been the case of the present appellants is that the records in which the entries exist appear to be fabricated and tampered with and, therefore, documents emanating therefrom cannot be relied on. He also found that continuous possession of the applicants since the commencement of the Act has not been established and the possession of the applicants under interim orders passed by the courts cannot be considered to be in juridical possession which can be taken note of. That erstwhile Jagirdar has manipulated and constructed unwarranted and irrelevant record in order to secure better compensation of the land situated in Rajasthan Canal area. He also held against heritable and transferable nature of rights claimed by the applicant. With these conclusions, he rejected all the applications.
11. Appeals against this order was preferred before the Revenue Appellate Authority, who by his order dated 5.8.89, accepted the appeals by upholding the claim of the applicants that they were tenants of the erstwhile Jagirdar at the time of commencement of the Act of 1955 within the meaning of Section 15AAA of the Act and were entitled to be conferred with the Khatedari rights. For coming to this conclusion, reliance was placed on certain findings recorded by this Court in its judgment of the learned Single Judge as well as judgment given by the Division Bench refereed to above.
12. Aggrieved with the order of the Revenue Appellate Authority, revisions were preferred by the State before the Board of Revenue. The Board of Revenue by its judgment dated 12th June, 1998, upheld the order of the Revenue Appellate Authority. For reaching its finding that the applicants were tenants or the erstwhile Jagirdar of Chhattargarh at the commencement of the Act of 1955 and fulfil other conditions as envisaged therein, it heavily relied on the judgment of the learned Single Judge as well as Division Bench, referred to above, to which we shall presently refer to. The Board of Revenue, while considering the question whether the documents filed by the applicants in support of their claim could be admitted in evidence, categorically recorded that the Assistant Collector was not justified in refusing to call the record on the ground that the report of the Tehsildar has been received and noticed that the State Government was repeatedly asked whether any report has been submitted about the result of investigation in question of fabrication or falsity of the record in question or any report has been submitted by the investigating agency of the State Government. However, this was not responded. No such report or material was produced before the Board of Revenue to suggest that the original record has been found to be of suspicious character. The Board also required specifically from the learned counsel for the State that they produce the seizure memo of the record and Supurdgi memo of return of the record. It was stated by the State counsel that the C.B.I. has seized the record from the custody of the Colonisation Department and the seizure memo shall be produced after obtaining the same from the Colonisation Department, but the same was not produced before the Board until the decision was rendered. It was also noticed by the Board that certified copies of the record, photostat copies of which have been produced in these proceedings, it is in custody of the C.B.I. and that in spite of repeated requests for issuing certified copies, the same are not issued to the applicants. In these circumstances, the Board held the photostat copies produced by the present respondents are admissible in evidence as secondary evidence, and refused to draw any inference that the original record is of suspicious character, for want of any evidence disagreeing with the finding recorded by the Assistant Collector in that regard.
13. Aggrieved with the orders passed by the Board of Revenue, affirming the order of the Revenue Appellate Authority, the State has preferred the writ petitions which were dismissed by the learned Single Judge [Judgment dt. 2.8.99 reported in 2000(1) RLR 300]. Hence, these appeals.
14. A great deal of controversy is centered around as to what finding has been recorded in the earlier proceedings between the parties by the learned Single Judge in S.B. Civil Writ Petition No. 1747/69 (sic 1474/69 ?), along with 491 other similar writ petitions and the Division Bench of this Court in Special Appeals arising therefrom, referred to above.
15. The Assistant Collector has refused to look into the finding recorded by the High Court on the ground that finding does not appear to have been recorded, after considering the matter on merit.
16. Such comments, in our opinion, were inaptly expressed, to say the least. It conveys that though such finding exists but does not bind him. It is not open for any Authority, except the Authority reviewing such order having jurisdiction to do so in appropriate proceedings, to sit over the judgments of the judicial courts by side-lining it on the ground that the Court has not given its finding, after considering the same on merit. Whether the Court has arrived at the finding rightly or wrongly, if it has attained the finality, it is binding on the parties, and the parties cannot resile from it; and in the subsequent proceedings, the authorities before whom any proceedings take place have also to treat those findings as binding on the parties and give effect to it. It is not for the Court/Tribunal, in any subsequent proceedings between the same parties to deviate from it and reach its own conclusion differently by holding earlier decision to be erroneous. Permitting that would be negating the rule of law.
17. However, that would not detract from considering what finding actually has been recorded by the Court on earlier occasion which can be held binding.
18. The Revenue Appellate Authority as well as the Board of Revenue has primarily based their findings about the rights of the applicants as tenants at the time of commencement of the Rajasthan Tenancy Act, 1955, because it is the foundation for proceeding further in the enquiry in the application under Section 15-AAA for recognising the applicant as Khatedar tenant that applicant must be a tenant under the relevant law at the time of commencement of the Rajasthan Tenancy Act, 1955, along with other conditions, which we shall refer to at the appropriate stage. The findings on which the core of contention rests was recorded by the learned Single Judge of this Court in his judgment, which reads as under :--
"That the Khatedari rights which the petitioners claim to have acquired after 1955 were extinguished and the petitioners held the land by virtue of the provisions of Section 15A as temporary lessee in the capacity of the Ghair Khatedar tenants."
19. It is on the aforesaid finding the applicants have claimed that since their claim as Gair Khatedar tenants under the Rajasthan Tenancy Act, 1955 has been accepted by the High Court, they are entitled to be declared as holding Khatedari rights under Section 15-AAA as they were in continuous possession of the land in question since the commencement of the Act of 1955. According to the applicants, this finding has been affirmed by the Division Bench of this Court in the following terms as under:--
The learned Single Judge has treated the petitioners as persons to whom the lands had been leased out temporarily. In our opinion, that conclusion is correct because that precisely is the language of Section 15A or any other law for the time being in force or any lease, patta or other document, land in Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso to the said sub-section of the said Section 15 of the Tenancy Act".
20. Then the Division Bench further stated that the question is whether the appellants could be treated as trespassers.
The petitioners claim to have been admitted to tenancy by the former Jagirdars and in many cases land revenue was collected by the State from them. The learned Single Judge has given them the label of Ghair Khatedar tenants. We are unable to call the appellants as trespassers nor did the learned Single Judge considered them to be so. The law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. The possession of the trespasser is never judicial and never protected by law while the possession of the erstwhile tenant is judicial and he can only be ejected in accordance with the process of law."
21. The learned Advocate General has contended that these findings cannot be read out of context and nowhere either the learned Single Judge or the Division Bench has decided the controversy raised on facts by the present petitioners appellants before us, that the petitioners in the earlier litigation, as well as the respondents in the present litigation were tenants with transferable and heritable rights at the commencement of the Rajasthan Tenancy Act, necessary precondition for recognising or declaring the petitioners as having acquired Khatedari rights in the land in question in Rajasthan Canal by operation of Section 15-AAA of the Rajasthan Tenancy Act.
22. This is apart from the controversy raised about the admissibility of the documents produced by the applicants along with their applications before the Assistant Collector to support their claim to the existing Tenancy Act on the date the Rajasthan Tenancy Act came into force.
23. On the other hand, Mr. L.R. Mehta and Mr. B.L. Purohit has contended that after considering the entire material and context in the earlier petitions, in which precisely the same issue was raised whether the petitioners were Khatedar tenants and entitled to hold Khatedari rights in the land in question even after insertion of Section 15-A in the Rajasthan Tenancy Act by an amending Act in 1958. The learned Single Judge has categorically held all the petitioners before the Court to be Ghair Khatedar tenants and, therefore, the status of the respondents applicants as Ghair Khatedar tenants at the commencement of the Act of 1955 must be taken to be binding between the parties and not liable to be investigated by the Revenue Appellate Authorities.
24. As stated earlier, there will be need to look into the question raised and decided in those proceedings. However, before we do that, it will be necessary to look into the relevant provisions of the Tenancy Act for the present purposes to understand the issues always in former proceedings and proceedings at hand in proper perspective.
25. When the Rajasthan Tenancy Act, 1955, was brought into force on 15.10.1955 as a step forward towards agrarian reform by recognising the right of tiller to cultivate the land, it was provided under Section 15 of the Act that every such person shall be a Khatedar Who at the commencement of the Act is--
(i) a tenant of land otherwise than as a sub-tenant; or
(ii) a tenant of Khudkasht; or
(iii) who thereafter is admitted
(a) as a tenant otherwise than a sub-tenant, or
(b) tenant of Khudkasht or
(c) an allottee of land in accordance with Rules framed under Rajasthan Land Revenue Act, 1956 or
(d) who acquires Khatedari Rights in land according to the provisions of Act of 1955 or
(e) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 or
(f) any other law for the time being in force.
26. However, no Khatedari rights were to accrue under Section 15 to any person to whom land is or has been allotted in Gang Canal, Bhakra, Chambal or Jawai Project areas notified in this behalf by the State Government.
27. There was no inhibition against recognising/acquiring Khatedari rights in land in Rajasthan Canal now Known as Indira Gandhi Canal area.
28. However, inhibiting the acquisition of Khatedari rights in Indira Gandhi Canal Area, special provisions were made in Tenancy Act by inserting Section 15-A vide Rajasthan Act No. 6 of 1958 as amended from time to time. Section 15A was made operative retrospectively with effect from the date of the Rajasthan Tenancy Act. Sub-section (1) envisaged that notwithstanding provisions of Section 13 or 15 of the Act or any other law for the time being in force of any terms in any lease Patta or other document, such lands shall be deemed to have been let out temporarily as in the case of areas of Gang Canal, Bhakra Chambal or Jawai Project notified in this behalf under proviso to Section 15 (1) of the Act. It further envisaged that no Khatedari rights to accrue in the Indira Gandhi Canal area. Said provision was in the first instance declared to be ultra vires the Constitution and void. However, the Tenancy Act was placed in IX Schedule of Constitution and it fell beyond the judicial review on the touch stone of violation of Part III of the Constitution.
29. At the same time under Sub-section (2) of Section 15A it was provided that a person who claimed to be in possession of, and in enjoyment of Khatedari rights if any/and falling in Sub-section (1) because it has been let out of his permanently before commencement could apply for declaration to that effect in accordance with Section 15 (5) of the Act. Thus, rights of permanent allottees prior to the date of commencement of Act of 1955 were excepted from the operation of Section 15A, subject to a declaration made under Section 15 (5) of the Act of 1955. However, any other rights which could have been Otherwise considered good for recognition as Khatedar tenant under Section 15(1) were relegated to position of holding temporary lease, loosing their status as Khatedar.
30. By inserting proviso to Sub-section (1) of Section 15A vide Act No. 65 of 1962 w.e.f. 31.12.61, the acquisition of Khatedari rights accruing under Colonisation (General Colony) Conditions 1955 or in accordance with other statement of conditions or rules of allotment and sale of Government land made under Section 7 of the Rajasthan Colonisation Act, 1954 or in accordance with Rules for allotment of land for Khudkasht in the Indira Gandhi Canal area under the Rajasthan Land Reforms & Resumption of Jagir Act, 1952 were saved from the operation of Section 15A (1).
31. It is in the aforesaid scenario the persons claiming as tenant of erstwhile Jagirdar of Chhatargarh and Sattasar had first approached this Court under Article 226 for declaring Section 15A to be ultra vires and declaration that they are Khatedars, because they were tenants of erstwhile Jagirdar at the commencement of the Act of 1955 and became Khatedar tenant under Section 15 of the Act of 1955 on commencement of said Act, of which status they are deprived of because of impugned provisions.
32. While said proceedings were pending, Section 15-AAA had been inserted w.e.f. 19.12.79, which was a non-obstante clause to operate notwithstanding any provision contained in Section 15A about recognition/declaration of Khatedari rights in Rajasthan Canal area which were not to accrue in terms of Section 15A, though could so accrue or had accrued in terms of Sections 13 and 15 of the Act of 1955. It may here be noticed that Sub-section (2) of Section 15A had already carved out as exception to Sub-section (1) of that Section by permitting the permanent lessees prior to commencement of Act, were still permitted to make an application for declaration of their status under Section 15(5) of the Act.
33. Supreme Court having noted said provisions, had dismissed the claimant's appeals as having become infructuous in view of said provision but permitted the appellants to approach appropriate authority by moving applications under Section 15-AAA for recognition of rights claimed by them. However, the Court upheld the judgment of Rajasthan High Court declaring Section 15A to be a valid piece of Legislation.
34. With the above background of controversy and existing provisions under the Tenancy Act, it becomes relevant that Scheme of Section 15-AAA be examined.
35. At this juncture it would be appropriate to refer the provisions of Section 15AAA of the Act of 1955. It reads as under :--
"15-AAA. Accrual of Khatedari Rights in Indra Gandhi Canal Area -
(1) Notwithstanding anything contained in Section 15A, any person who, at the commencement of this Act, -
(a) was a holder of Khudkasht or any occupany tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights and was recorded as such in the Annual Register then current, or
(b) was not so recorded, but was a holder of Khudkasht or an occupancy tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights, shall, as from the date of the commencement of this Act, be entitled to the rights, and subject to all the liabilities of a Khatedar tenant under this Act.
(2) Every person claiming that the rights mentioned in Clause (b) of Sub-section (1) accrued to him shall within one year of the commencement of the Rajasthan Tenancy (Amendment) Act, 1979 and on the payment of a Court fee of Fifty paise, apply to the Assistant Collector having jurisdiction, or to any other authority as may be prescribed by the State Government from time to time, for declaration that he acquired Khatedari rights under Clause (b) of Sub-section (1) in the land held by him as the provisions of Sub-section (5) of Section 15 shall apply to such application.
(2-A) Notwithstanding anything contained in Section 15-A, any person who was a holder of Khudkasht or a tenant of land otherwise than as a sub-tenant or tenant of Khudkasht within the Indira Gandhi Canal area, whether recorded as such at the commencement of this Act or subsequently in the record or rights prepared during the survey or re-survey and record operations conducted under Sections 106 and 107 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), shall be entitled to all the rights and be subject to all the liabilities, of a Khatedar tenant under this Act, with respect to the whole or such part of the land held as does not exceed the maximum in area of land which he is entitled to hold in accordance with the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act No. 11 of 1973).
(3) Notwithstanding anything contained in Sub-section (1), any person who, at the commencement of this Act -
(a) was a tenant of land otherwise than as a sub-tenant or tenant of Khudkasht and was recorded as such in the annual registers then current, or
(b) was not so recorded, but was tenant of land otherwise than as a sub-tenant or tenant of Khudkasht, and was in continuous possession of the land as such tenant upto the date of commencement of the Rajasthan Tenancy (Amendment) Ordinance, 1983, shall on an application being made in such form and in such manner as may be prescribed to the Assistant Collector having jurisdiction or to any other officer or authority authorised by the State Government in this behalf within 1426 days of the commencement of the Rajasthan Tenancy (Amendment) Ordinance, 1983 i.e. upto 30th June, 1987 and be granted Khatedari rights in respect of the land in the tenancy upto the limit of the area which can be held by him under the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act 11 of 1973), provided he pays to the State Government the reserve price for the land held by him in excess of 25 bighas or irrigated or 50 Bighas of unirrigated land and upto the said limit at the rate prescribed under Section 7 read with Section 28 of the Rajasthan Colonisation Act, 1954 (Rajasthan Act 27 of 1954) and in force on the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983 :
Provided that State Government may, on being satisfied that it is necessary or expedient to do so, extend by notification the period beyond 30th June, 1987, not exceeding six months upto the day as deemed fit.
Explanation I. For the purpose of grant of Khatedari rights under this sub-section, the expression 'tenant' shall include his successor in interest but shall not include his transferee.
Explanation n. Where there are two or more co-tenants in a holding on the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983 all such co-tenants shall, for the purpose of grant of Khatedari rights with respect to the area of land for which no reserve price is to be charged, be deemed to be the sole tenant in that area of the holding.
(4).... ................
(5) .... .... .... .... ....
(6).... .... .... .... ....
(7) All applications made by persons, other than those referred to in Sub-section (2) but falling within the purview of Sub-section (3), before the date of commencement of the Rajasthan Tenancy (Amendment) Ordinance, 1983 for declaration of accrual of or for grant of Khatedari rights in the land held by them at the commencement of this Act and pending before the Assistant Collector or before any other authority prescribed by the State Government under Sub-section (2) on such date, shall be treated as applications for the grant of Khatedari rights, and be deemed to have been made under Sub-section (3) and shall be decided by the officer or authority mentioned in that sub-section in accordance with provisions contained in Sub-section (3) and Sub-section (5).
(8) Where a person claims himself to be a tenant of land as is referred to in Sub-section (3), but was not so recorded in the annual registers current at the commencement of this Act, the question whether he was such a tenant or not shall be decided on the basis of available evidence including the consensus opinion of the Gram Sabha, comprising of all adult persons residing in the village where the land is situate, reduced into writing by the Assistant Collector or any other officer or authority competent under the said sub-section to grant Khatedari rights."
36. The Legislative history of aforesaid provision unfolds the object and scheme of aforesaid provision. When the provision was introduced for the first time on 29.12.79, it had only Sub-sections (1) and (2), which envisaged recognition of Khatedari rights of certain persons holding land in Rajasthan Canal area, notwithstanding anything contained in Section 15A of the Act.
37. Sub-section (1) provides the persons who were held to be entitled to the rights of Khatedar or Tenant under the Act of 1955, subject to all the liabilities or a Khatedar tenant. Such class of persons were named under Sub-section (1)(b) are that any person who at the commencement of Act of 1955 is either-
(i) holder of Khudkasht or
(ii) an occupancy or
(iii) a Maurusidar or
(iv) a Khatedar Tenant or
(v) a Tenant with transferable/heritable right and was so recorded in annual Register then current as per Clause (a) of Sub-section (1) and were so recorded in annual register than current.
38. Secondly, any of the above class of persons who was not so recorded in Annual Register then current at the time of commencement of the Act of 1955 were also made subject of Section 15AAA under Clause (1) (b). This will be clear if one reads Section 15AAA (1) (b) it conveys. Notwithstanding anything contained in this Section, any person who, at the commencement of this Act, was not so recorded, but was a holder of Khudkasht or an occupancy tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights, shall, as from the commencement of this Act, be entitled to all the rights and subject to all the liabilities of Khatedar tenant under this Act'.
39. A bare look at the provision goes to show that person whose Khatedari right were recognised under Section 15-AAA, whether in Clause (a) or Clause (b) of Sub-section (1), whether they were recorded or not recorded in annual register. As will be seen presently the only difference was in the procedure to the followed.
40. While persons whose names were entered in annual register as per Clause (a), were to be recognised as Khatedar tenant in respect of land held by him; but a person falling in Clause (b) was required to make an appropriate application within time allowed under Sub-section (2) for getting such declaration by establishing his status as a candidate for recognition of his rights as Khatedar. Thus, entry in annual registers was considered as primary evidence of the fact about required status at the commencement of the Act, but in the absence of such entries, it could still be proved by other evidence like any other fact.
41. Sub-section (2) of this Act required an application to made for a declaration that he has acquired Khatedari rights only in case falling under Clause (b) of Sub-section (1). This makes abundantly clear that provision as originally introduced on 29.12.79 recognised the rights of person falling in Clause (a) of Sub-section (1) of Section-15-AAA on the basis of entries in annual registers and recognising khatedari rights of those whose names were not mentioned in the annual register current at the commencement of Act of 1955 depended on making of an application for declaration of Khatedari rights under Section 15-AAA. This postulates an enquiry for determination of question of right of applicant to his claim to Khatedari rights by finding whether he falls within any one category of person falling in Sub-section (1). The enquiring of such fact whether a person is a holder of Khudkasht, or an occupancy tenant or a maurusidar or a Khatedar tenant or tenant with transferable and heritable rights is not precluded, independent of entry with tenants. Rights conferred on any class of persons mentioned in Sub-section (1) were not to be defeated merely because of absence of entry in annual register at the commencement of the Act of 1955. Significantly in the provisions as originally introduced and in force until amendments were brought in the provisions in 1983, 1987 and 1992. It may also be noted that in the provision as enacted originally recognising rights of Khatedar in respect of land held at the commencement of the Act of 1955 and limiting such rights were not made subject of Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. Said question was left to be determined independent of recognition of rights under Section 15-AAA.
42. Thereafter, Sub-section (3) was inserted vide Ordinance No. 4/83 replaced by Act No. 11 of 1983 w.e.f. 14.9.1983. This provision was made applicable in contrast to Sub-section (1) only to (i) a tenant of land, otherwise than sub-tenant or (ii) a tenant of Khudkasht. This was made applicable whether recorded in the annual registers or was not recorded, was to be recognised and declared a Khatedar tenant. According to Sub-section (3) (b), any person who, at the commencement of this Act, was not so recorded, but was a tenant of land otherwise than as a sub-tenant or tenant of Khudkasht, and was in continuous possession of the land as such tenant upto the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983, shall, on an application being made in such form and in such manner as may be prescribed to the Assistant Collector having jurisdiction or to any other officer or authority authorised by the State Government in this behalf, from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983, be granted Khatedari rights in respect of the land in his tenancy, provided he was in continuous possession of land as such upto the date of commencement of the Rajasthan Tenancy (Amendment) Ordinance, 1983 and makes an application in such form and such manner as may be prescribed to the concerned authority having jurisdiction within time specified in that provisions which have been extended from time to time.
43. However, this envisaged grant of Khatedari rights in respect of the land comprised in his tenancy only upto the limit of the area which he can hold under the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. It also requires that the applicant pays to the State Government reserve price of the land held by him in excess of 25 Bighas irrigated and 50 Bighas unirrigated land upto the ceiling limit applicable to his case at the rate prescribed under the relevant provisions of the Rajasthan Colonisation Act and in force on the date of the commencement of the Rajasthan Tenancy (Amendment) Act, 1983. Explanation I excluded the transferees of such tenant from the purview of its operation, Explanation II extended the benefit to all the co-tenants, individually entitling them to grant of Khatedari rights. Provisions of Sub-section (4), (5) and (6) dealt with the payment part of the consideration required to be paid in conferment of Khatedari rights under Sub-section (3) with which we are not presently concerned. Significantly, Sub-section (7) provided that all the applications other than those referred to in Sub-section (4) falling within the purview of Sub-section (3) which have been made before the insertion of Sub-section (3) for declaration or accrual or for grant of Khatedari rights and were pending before the Assistant Collector or any other authority prescribed under Sub-section (2) were to be treated as application for grant of Khatedari rights only under Sub-section (3).
44. Thus, having made provisions for recognising or conferring Khatedari rights in respect of the persons holding any kind of rights as mentioned in Sub-section (1) or Sub-section (3) whether they were so recorded as such in the annual registers current at the time of commencement of the Act or not so recorded and further envisaging making of applications by those for declaration or their status as Khatedar tenants whose names were not recorded in the annual registers current at the time of commencement of the Act, made a provision under Sub-section (8) that a question whether such applicant was a tenant or not, shall be decided on the basis of available evidence, including consensus opinion of Gram Sabha reduced in writing by the concerned officer considering the applications for grant of Khatedari rights under Sub-section (3).
45. Thereafter, with effect from 11.11.92, Sub-section (2A) was inserted in Section 15AAA of the Act, further widening and liberalising the area of recognising/conferring khatedari rights in Indira Gandhi Canal Project area. This provision now permits even the Khudkasht, or tenant of Khudkasht or a tenant otherwise than sub-tenant, whether so recorded at the commencement of the Act or has been so recorded thereafter was to be admitted as Khatedar to the extent permissible under Imposition of Ceiling on Agricultural Holdings Act, 1973.
46. To recall, as noticed by us in brief resume of the chequered history of the case, the earlier petitions have not been filed for the purpose of declaration of the rights of the petitioners as Khatedar on the commencement of the Rajasthan Tenancy Act, 1955, but were filed in the wake of insertion of Section 15-A in the Rajasthan Tenancy Act, 1955 in 1958, declaring that no tenancy right shall accrue or shall be deemed ever to have accrued in any land in Indira Gandhi Canal Area, erstwhile known as Rajasthan Canal Area and that the land leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of proviso to Section 15 of the Act. Thus, the petitioners claiming themselves to have acquired Khatedari rights on the commencement of the Rajasthan Tenancy Act came before this court against the apprehended extinguishment of their Khatedari right which, they alleged, were vesting in them, as a result of insertion of Section 15A of the Rajasthan Tenancy Act, challenging its validity. Said litigation was started anew after in the first bout of litigation, Section 15A has been declared to be void, but, later on, Rajasthan Tenancy Act has been put in the 9th Schedule, taking the provisions beyond the purview of challenge for violation of any provisions of Part III of the Constitution and pursuant to that, certain notices have been issued to some of the petitioners either under Section 22 of the Colonisation Act, 1954 or under Section 91 of the Rajasthan Land Revenue Act for their eviction by treating them to be in unauthorised occupation as a result of non-recognition of Khatedari rights in Indira Gandhi Canal area. As is apparent from the judgment of the Division Bench, out of 292 appeals, such notices were issued only in 27 cases, to be precise 14 under the Colonisation Act and 13 under the Land Revenue Act. In rest of the cases, no notices have been issued. However, the petitions have been filed against the apprehended action of eviction by treating the petitioners to be trespassers, in the wake of Section 15A of the Act of 1955. It is in this background of the controversy without asking for the specific relief for declaring Section 15A to be ultra vires, by ignoring the provisions of Section 15A, a declaration was sought that the petitioners be held to be continuing as Khatedars and the proceedings for their dispossession from the land by treating them trespassers should be quashed or prohibited. Therefore, in the very nature of things in the petitions, filed by the petitioners, on their part, no claim could have been made for deciding the question as to what was their right or the nature of holding, if any, immediately before the commencement of the Act of 1955 at its commencement.
47. However, it appears from the judgment of learned Single Judge two-fold contentions have been raised on behalf of the State. Firstly, that the provisions of Section 15-A are intra-vires and must take their legitimate course of operation, resulting in divesting the holders of Khatedari rights in the Rajasthan Canal Area but admitting them to be only having temporary cultivatory lease.
48. Secondly, and relevant for the present purposes, it was contended that most of the petitioners who claim themselves to be Khatedar, were never Khatedars, but were trespassers. The precise contention, which has been noticed by the learned Single Judge in those cases is best projected by reproducing the same which reads as under :--
"A detailed reply has been filed in each case by the State Government denying the rights of the petitioners to hold the land as 'Khatedars'. These petitioners who claim to be 'Khatedars' are the trespassers that after the Rajasthan Canal Project was finalised by the Government of India and when it became known to the people that the lands in the villages of Chhattargarh Jagir are likely to get water for irrigation from the Rajasthan Canal, many of the persons, including the petitioners, in collusion with the ex-Jagirdar of Chhattargarh unauthonsedly occupied the land and got their names surreptitiously entered in the revenue records of the 'Thikana'. It is denied that these petitioners even if they occupied lands in Samvat Year 2008 enjoyed heritable or transferable rights. According to the State Government, they were all tenants at will."
49. Thus, on the factual aspect of the case, two alternative contentions were raised by the State, firstly that most of the petitioners were never Khatedar tenants, but they have unauthorisedly occupied the land after having come to know that the Rajasthan Canal Project has been finalised by the Government of India, and for that, the revenue records of Thikana has surreptitiously been manipulated and that has been done by them with the collusion of Ex-Jagirdars. Alternatively, it has been urged by the State that even if they occupied the land in Samvat Year 2008, it is denied that they enjoy heritable an a transferable rights. It is on this alternative premise, it was the case of the State that if the occupancy of the petitioners even if 2008 is accepted, then such occupancy as a tenant at will was not heritable or transferable and even if they acquired tenancy rights under Section 15 of the Act on commencement of Section 15A, the lands in Rajasthan Canal Area were placed at par with the lands of Gang Canal Bhakhra Chambal Jawai-bandh area and those persons could only cultivate land as if the same was let out to them temporarily. This part of the controversy, was refused to be gone into by the learned Single Judge, for the reasons given in the following excerpts :--
"On facts a controversy has been raised by the State Government and it has been denied emphatically that the petitioners have been cultivating these lands since the Samvat Year 2008. It has also been urged that after Samvat Year 2017 not a single petitioner's name finds place in the revenue records and excepting a very few, these petitioners did not pay the rent to the State Government since the Samvat Year 2013. The State Government has also levelled a charge against the Jagirdar for preparing false revenue records of the jagir and it is contended that the record had been manipulated by the erstwhile Jagirdar to show that the petitioners were admitted as tenants before the jagir was resumed under the Act of 1952."
50. Thus, noticing the controversy in detail, the learned Single Judge said-- "I feel that this Court while exercising its jurisdiction under Article 226 of the Constitution cannot go into highly controversial matters which have been raised by the State Government because it would require an elaborate inquiry into these allegations which have been made by the Government against the Jagirdar who was said to be in collusion with the petitioners to create evidence in favour of the petitioners to establish their rights as tenants of this Jagirdar. Prima facie the jagir records produced by the Government before this Court appear to be a very doubtful nature, but unless a thorough inquiry is made by the court in the allegations made by the State Government, it is difficult for the Court to record its definite finding that the record is actually fabricated by the Jagirdar."
51. Apparently, to us it appears that issue about occupancy of the petitioners since Samvat 2008 though raised by the respondents State, was not enquired into and specifically refused to be decided by the learned Single Judge.
52. While refusing to decide the controversial issue of fact the Court further said that 'these petitions can be disposed of by deciding the question of validity of Section 15A of the Act. If this question is answered in favour of the State Government, then these petitions snail stand dismissed as no Khatedari rights could arise.
53. In considering the issue of validity of Section 15A, one of the grounds raised by the petitioners was that Section 15A results in acquisition of Khatedari rights without providing for compensation, resulting in violating Article 31, then in force. Setting out this controversy, the learned Judge observed that in the instant case, the Court has to see whether the effect of Section 15A is to acquire the Khatedari rights of the tenant or it is a case of extinguishment or modification of certain rights of the tenants in the land.
54. The finding which has been recorded by the learned Single Judge in the above context need to be looked into only in that context. The learned Judge did not accept it to be a case of acquisition by accepting the contention of the Advocate General, that it cannot be said that the State acquired the Khatedari rights of the petitioners by enacting Section 15A of the Rajasthan Tenancy Act:--
"The Khatedari rights which the petitioners claimed to have acquired after 1955 were extinguished and the petitioners held the land by virtue of the provisions of Section 15A as a temporary lessee in the capacity of the Ghair Khatedar tenants."
55. Thus, it is apparent that the learned Single Judge made above observations only by assuming that the Khatedari rights which the petitioners claim to have acquired in respect of them, they may be treated as Ghair Khatedar, because of Section 15A under which they are to be treated only as holding temporary lease, resulting from extinguishment of Khatedari rights. It will be relevant to notice that under Section 14, tenants are classified in different classes and Section 17 envisages that a tenant other than a Khatedar tenant or tenant of Khudkasht or a sub-tenant shall be a Ghair Khatedar. No finding has been recorded that Khatedari rights were acquired at all by the petitioners, in first instance. Aforesaid excerpt is only in the context of stating legal effect of insertion of Section 15A on the existing Khatedari rights, which were claimed to exist, without deciding whether the Khatedari rights actually ever existed in favour of the petitioners.
56. We are, therefore, of the opinion that the facts which need to be enquired for the purpose of considering the application of any applicant for conferring Khatedari right in terms of Section 15-AAA, which came on the scene only during the pendency of said petition, these findings in earlier proceedings cannot be of any assistance.
57. It is only the context of the claim that was made by the petitioners that they were tenants at the time of commencement of the Rajasthan Tenancy Act in Rajasthan Canal area and, thereafter, they continued to be in possession, until the application was made and the notices issued by the Revenue Authorities treating them to be a trespasser because of rum- recognition of any Khatedari rights in Rajasthan Canal area under Section 15A of the Act of 1955 that above conclusion was recorded that effect of Section 15A would not make such tenants as trespassers but they will remain Ghair Khatedar. Same position was accepted by the Division Bench by noticing the provision itself that such tenants will be considered as temporary lessees. There cannot be any dispute or doubt about these propositions. As a result of which such persons could not have been subjected to proceedings under Section 91 of the Land Revenue Act or Colonisation Act as an unauthorised occupants. That is apparent from final directions issued by the Division Bench whereunder while setting aside the directions of the learned Single Judge to hand over the possession, the Court left it to the concerned authority to determine nature of their possession and make necessary orders in accordance with law. Findings recorded by the courts below about petitioner's right principally relying on the above conclusions of law, in our opinion, suffers from mistake apparent on the face of the order and cannot be sustained and bind this Court.
58. In this connection, we may also notice the observations, which have been relied on by the learned counsel for the respondents, as containing admissions of present petitioners, admitting rights of applicants as tenants. The Court has observed at one place that all petitioners are admitted to continue to possess their holdings and possess the same as temporary tenants. It was urged with great stress that this amounts to admission by the State as status of the petitioners as temporary tenants. This, inference, in our opinion, is out of context. As noticed from the full context of the contention raised by the State before the learned Single Judge, in which, the State has categorically denied the claim of the petitioners as Khatedars since Samvat 2008 but also averred that most of the petitioners have encroached upon the land after finalisation of Rajasthan Canal Project with the collusion of ex-Jagirdars. In the alternative only, it was stated that even if the petitioners occupied the land in Samvat 2008, they shall be temporary tenants and it was denied that they are enjoying heritable and transferable rights. It was also the case of the present petitioners that even if the applicants were to be treated as in occupation since 2008, as a result of Section 15A they will not be Khatedar tenants but only as temporary tenants. It was only assuming the alternative plea that issue of validity of Section 15A was examined and observation about admission of the State, and conclusion about effect of Section 15A in making Khatedar as Ghair Khatedar on extinguishment of Khatedari rights were recorded.
59. Thus, the referred admissions of the State counsel that the petitioners were temporary tenants, were only as to the effect of Section 15A, that rights of existing Khatedar tenants would extinguish but not acquired, and the position of such Khatedar will become of a temporary tenant or Ghair Khatedar tenant.
60. These were the conclusions which have been affirmed by the Division Bench which need not detain us because the Division Bench has not reached finding different from that has been reached by the learned Single Judge, nor has adopted different reasons while dismissing the writ petitions.
61. In this connection, it would be apposite to notice here that had the learned Single Judge's finding is to be read as recognising the petitioners as Ghair Khatedar tenants, the final directions directing the petitioner to hand over the possession to State given by the learned Single Judge would not have found its place.
62. Thus, by holding provisions of Section 15A of the Act to be valid and that the petitioners cannot secure the Khatedari rights in the lands in question. the learned Single Judge directed the each of the petitioners to hand over the possession of the land to the State Government, because they are not entitled to retain it. This direction had been given by the learned Single Judge on assuming that each of the petitioners has given an undertaking to hand over the possession to the State Government, without deciding the issue whether they were tenants at the commencement of the Act of 1955 and could be conferred rights as Khatedar under Section 13 or 15 of the Act of 1955, obviating the necessity of taking proceedings necessary for their eviction under law.
63. The Division Bench also, while setting aside this direction on the ground that there was no undertaking given by the petitioners, noticed that in only 27 cases, notices for eviction have been issued, out of which 14 cases enlisted in Schedule 'B' related to notices issued under Section 22 of the Colonisation Act, 1954 which were held to be invalid and notices issued thereunder were quashed, but the State Government was left free to take action in respect of the cases in accordance with the provisions of the law. So far as the question of issuance of notice under Section 91 of the Rajasthan Land Revenue Act, which has been issued in 13 cases scheduled in Schedule 'C' was concerned, the Court declined to interfere with those proceedings by holding that they shall be decided in accordance with law, and the question of the rights claimed by these petitioners were to be decided in said proceedings.
64. Another contention, which has been raised before us by the learned Advocate General that the finding recorded by the Assistant Collector, about the fraudulent and fabricated character of the documents in question, is concerned, should be affirmed in view of the suspicious nature of the documents. The learned Advocate General produced before us the same record which has been produced before the learned Single Judge who decided 492 writ etitions in question, which include the petitions filed by the respondents also. Suffice it to say, notwithstanding noticing certain factors which may cause doubt about its character, the learned Judge was categoric in his finding that the same were not sufficient material on which a definite finding could be reached whether the record has been fabricated by the Jagirdars. So also, it is not possible for us to reach a different conclusion on the basis of those documents which have been produced before us.
65. In this connection, we cannot fail to draw attention to the fact that the learned Assistant Collector, while refusing to admit the photostat copies of the certified copies produced by the applicants in support of their claim, has refused to look into the original record before recording this finding. He has refused to summon the original record, in spite of the request having been made to him, on the ground that "since the report of the Tehsildar has been received, it is not required to call for the original record".
66. It is difficult to understand how without examining the original record at all, a finding about its falsity, or fabricated nature could be reached by any one. The report of the Tehsildar cannot take place of primary evidence which existed in the form of original record. The report of the Tehsildar cannot be an evidence to this effect, which derives its credibility or reliability, only from the original records. If its veracity is questioned, it needs to be verified from original records only. A derivative report cannot take place of the original itself, and cannot be held to be beyond the scrutiny like any other evidence.
67. The original document was not called for by the Presiding Officer, in spite of the petitioner-applicants having requested for summoning the record. The petitioners though consistently asking the Department as well as the Superintendent of Police, C.I.D., in whose custody the relevant record was alleged to be, after the same was handed over to that Department for further investigation, were not supplied with the certified copies of the original. In that situation, the Board of Revenue, in our opinion, rightly admitted the photostat copies and the certified copies produced by the petitioner to prove his case. A party cannot sit tight by holding the original documents in its possession and refuse to furnish requisite information called by the Board of Revenue. It is the duty of the State Government to keep the original record in its safe custody. In this respect, it is relevant to read paras 31, 35 and 36 of the judgment of the Board of Revenue, which run as under :--
^^31- ,-lh-,e% vuwix<+ ds tkudkjh esa izekf.kr izfrfyfi vizkFkhZx.kksa dks tkjh ugha djus ds rF; dh tkudkjh gksrs gq, Hkh ;g fy[krs gq, fd ^^rglhy dh fjiksVZ vk xbZ gS A fjdkMZ eaxkus dh vko';drk ugha gS A ekSf[kd lk{; ysdj fu.kZ; djsa** vkSj fu.kZ; esa ;g ekuk fd vizkFkhZx.kksa us jktLo vfHkys[k tekcUnh bR;kfn dh udysa is'k ugha dh rFkk tks udysa is'k dh gSa] os vizekf.kr gSa A vizkFkhZx.kkas dks mDr jktLo vfHkys[k ds ckjs esa tk¡p pkyw gksus dh ckr dgh vkSj QksVks izfr;ksa esa ntZ bUnzktkr dks lansgkLin izrhr gkrs gq, ekudj vizkFkhZx.kksaa dk izkFkZuk i= [kkfjt dj fn;k A** ^^35- fo}ku ,-lh-,e-] vuwix<+ us vius fu.kZ; esa vizkfFkZ;ksa }kjk izLrqr fd;s x;s jktLo fjdkMZ ds QksVks izfr;ksa ds ckjs esa QtZdkjh lEcU/kh vkjksi ds ckcr lh-ch-vkbZ- vFkok jkT; ljdkj dh ,slh dksbZ fjiksVZ vFkok funsZ'k ds ckjs esa iwNus ij fo}ku jktdh;
vfHkHkk"kd us ,slh dksbZ fjiksVZ izLrqr ugha dh gS vkSj u gh vc rd dksbZ ,slh fjiksVZ fo}ku jktdh; vfHkHkk"kd us vnkyr esa izLrqr dh gS blfy, bl rdZ dks ughaa ekuk tk ldrk fd jktLo fjdkMZ lansgkLin gS A blds foijhr bl vnkyr }kjk jktdh; vfHkHkk"kd egksn; ls Li"Vr% iwNk x;k fd lh-ch-vkbZ- }kjk tks fjdkMZ jktLo foHkkx ls ys yk;k x;k mldh QtZ tCrh dh udy is'k dh tkos vkSj tks fjdkMZ okfil fHktok;k x;k mldh QnZ lqiqnZxh dh udy is'k dh tkos A fo}ku jktdh;
vfHkHkk"kd us QnZ lqiqnZxh dh udy is'k dh gS A QnZ tCrh dh udy ds ckjs esa ekSf[kd :i ls dgk fd lh-ch-vkbZ- us lacaf/kr jktLo fjdkMZ dks mifuos'ku foHkkx dh dLVMh esa ls tCr fd;k Fkk] ogha ls QnZ tCrh ykdj is'k dh tk,xh fdUrq mUgksaus ,slh dksbZ QnZ tCrh vHkh rd is'k ugha dh gS blfy, jkT; ljdkj dh ;g nyhy ekuus ;ksX; ugha gS fd vizkFkhZx.k lacaf/kr jktLo fjdkMZ dh izekf.kr izfr;ka ftudh QksVks izfr;ka mUgksaus vnkyr esa is'k dh gSaa og tekcanh lacaf/kr fjdkMZ lh-ch-vkbZ- dh dLVMh esa gS A vnkyr /kkjk 75 ,oa 76 Hkkjrh; lk{; vf/kfu;e ds vUrxZr QksVks izfr;ksa dks crkSj lcwr lSd.Mjh ,ohMsal ns[kus dks l{ke gS A izLrqr jktLo fjdkMZ dh QksVks izfr;ksa dks ns[kus ls Li"V gS fd izkFkhZx.kksa dk theu tSj cgl ij la- 2008 ls [kljk fxjnkojh esa uke vafdr gS A njfe;kuh [krkSuh esa mudk uke vafdr gS A bl vk/kkj ij jktLo fjdkMZ esa vizkFkhZx.kksa dk pwafd uke vafdr gS fo}ku jktLo vihy izkf/kdkjh us mi;qDr fo'ys"k.k djus ds mijkUr vkns'k fn;k gS ftlesa bu fuxjkfu;ksa ds ek/;e ls dksbZ gLr{ksi djuk ge equkflc ugha le>rs A gekjs fopkj ls vkj-vkj-Mh-
1991&i`"B&82 dh uthj bl izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa dks e?;utj j[krs gq, bu fuxjkfu;ksa ij pLik ugha gksrh gS A fo}ku odhy vizkFkhZx.k }kjk izLrqr mifuos'ku foHkkx ,oa jkT; ljdkj }kjk tkjh fd;s x;s ifji= Øe'k% fnukad 23]12]92 ,oa 26-4-93 dks i<+us ls Li"V gksrk gS fd jktLFkku ugj ifj;kstuk {ks= esa jkT; ljdkj us dCts;kch ds v/kkj ij lacaf/kr dk'rdkjksa dks [kkrsnkjh vf/kdkj nsus dh vkKk izlkfjr dh gS ,oa vk;qDr mifuos'ku chdkusj us bl vkKk dh ikyuk gsrq vius ekrgr vf/kdkfj;kaas dks foLr`r funsZ'k nsrs gq, dgk fd tekcafn;ka cukus dk dke mifuos'ku foHkkx dk ugha gS fygktk la- 2011 ds ckn dh tekcanh gh mifuos'ku {ks= esa ugha cukbZ xbZ Fkh blhfy, tekcanh jktLo fjdkMZ dh udy dSls izkIr gks ldrh gS A jktLo fjdkMZ dh dLVMh dk ftEek Hkw jktLo foHkkx ,oa mifuos'ku foHkkx dk Fkk A jktLo fjdkMZ esa gsjk&Qsjh dk vkjksi jktLo foHkkx ,oa mifuos'ku foHkkx ds deZpkfj;ksa ij yxk;k tkuk rks LokHkkfod gks ldrk gS fdUrq vizkFkhZx.kksa ij ,slk vkjksi yxkuk LokHkkfod izrhu ugha gksrk gSaA fo}ku jktdh; vfHkHkkod us vnkyr gkt+k ds le{k ,slk Hkh dksbZ fjdkbZ izLrqr ugha fd;k ftlls ;g lkfcr gks lds fd bu izdj.kksa ls lacaf/kr iqjkus fjdkMZ esa gsjk&Qsjh djus dk nqjkpj.k ,oa mu jktLo deZpkfj;ksa ,oa vf/kdkfj;ksa dks jkT;
ljdkj }kjk fu;ekuqlkj dk;Zokgh djds nf.Mr fd;k x;k gksA** ^^36- blfy, vnkyr gktk fo}ku jktdh; vfHkHkkod ds bl rdZ ls lger ugha gS fd fo}ku ,-lh-,e- us fjdkMZ dks lansgkLin ,oa QtZ+dkjh ls iw.kZ lgh rkSj ij ekuk gSA ge fo}ku ,-lh-,e- ds mijksDr lkjka'k ls vlger gksrs gq, vizkFkhZx.k }kjk izLrqr jktLo fjdkMZ ds lEcfU/kr izekf.kr izfr;ksa dh QksVks izfr;ksa dks /kkjk 75 ,oa 76 ds vUrxZr xzg.k fd;s tkus ;ksX;
l{ke lcwr ekurs gSaA**
68. From the aforesaid discussion, we have no hesitation in reaching the conclusion, (i) that the basic findings about rights, if any, held by the petitioners in the land in question at the time of commencement of the Rajasthan Tenancy Act, as required under Section 15-AAA, has not, at all, been considered in true perspectives, (ii) That Revenue Appellate Authority and the Board have been influenced by the observations made by the learned Single Judge in the earlier proceedings and affirmed by the Division Bench apparently without considering the context in which such observations have been made and without noticing the controversy which has been refused to be decided specifically by the Court and have acted erroneously in treating it to be a finding reached by the Court.
69. So also the Assistant Collector has acted in wholly arbitrary manner by adopting a procedure not warranted by law. He failed to notice that even after looking at the original record admitted to be in existence, and noticing some suspicious circumstance the learned Single Judge in earlier proceedings held that such doubt alone is not sufficient to hold the record to be forged or fabricated. He then even without looking at the record and without recording any evidence in that regard, which was felt necessary by this Court before coming to any such conclusion held the originals to be fabricated solely on the basis of report of Tehsildar as if the opinion of Tehsildar is not the opinion of person making the report but is to be conclusive proof of what is states. He also ignored while rejecting the copies of document that notwithstanding consistent pleaded by the State Officials that matter is being investigated by C.I.D./C.B.I. in whose custody the record is still alleged to be there, even after 20 years no report or conclusion by the investigating agency adverse to petitioners has been produced by the State. He also ignored their request for summoning the original record in possession of the State, and did not consider that in spite of making request of issue of certified copies of such documents in question, the certified copies of such record is not given to the party. In such circumstances, the photo copies of certified copies could be admitted as secondary evidence, as has rightly been held by the Board.
70. He also appears to have been labouring under an impression that is was a necessary condition that a person seeking declaration of his status as Khatedar under Section 15AAA, must necessarily be one who is recorded in annual registers then current as such, while premise on plain reading of the provision itself is incorrect as discussed above, the new provision envisaged recognition of Khatedari rights, irrespective of claimant's name is so entered or not in the records. If the name is so recorded, he has to be so recognised as Khatedar. If not, he needs to make an application and prove that he fulfills necessary conditions for claiming right under Section 15AAA, like any other fact. In that process, Sub-section (8) is clear. One of the modes which the Assistant Collector is to adopt is to verify such fact by recording statement of adult villagers present in a Gram Sabha convened for that purpose. Obviously, an applicant has no authority to convene such Gram Sabha. It is the Assistant Collector to resort to such method for verifying the claim made before him. In the present case, even if it is found that entries claimed by the applicants do not exist in relevant records, still be can prove that he held one of the status as mentioned in Sub-section (1) or (3) of Section 15AAA or that his case is governed under Sub-section (2A) inserted on 11.11.92. In that connection, certificate of Gram Panchayat was produced about long possession and cultivation by the applicants. The holding of Gram Sabha is only a mode by which not only the facts could be proved but could also be used for corroboration of other material, that has come on record. Thus, drawing of adverse inference against the applicants, without making necessary enquiry into the issues laid before it, the Assistant Collector has apparently erred.
71. In view of the aforesaid, the other contention raised by the learned counsel for the parties about the findings in respect of nature of rights enjoyed by the petitioners, would not call for consideration, at this stage, unless a definite finding is recorded about the rights acquired by them in Samvat 2008 or thereafter. We may also make it clear that in view of provisions made in Section 15-AAA (1) (b) and Sub-section (3) (b) of Section 15-AAA of the Act, non-existence of record, does not automatically lead to rejection of applications.
72. Learned counsel for the parties have requested this Court to look into the record and reach at the correct finding. We would be refraining from taking that exercise, inasmuch as, since the fact finding authorities had not considered the material, and have not allowed the relevant material to come on record in the first instance, and they had no occasion to look into the original record which is now sought to be produced before us.
73. We deem it appropriate that the appeals be allowed, the judgment under appeal in each case be set aside, so also the orders of the Board of Revenue, the Revenue Appellate Authority as well as the Assistant Collector be also set aside in each case and the matter be remanded back to the Assistant Collector for deciding the applications filed by the respective petitioners de-novo in accordance with law. Since we have come to the conclusion that no definite finding can be reached on the basis of the material produced before us and the petitioners cannot be denied the right to lead evidence in absence of non-supply of certified copy and non-production of documents, the findings reached by the Assistant Collector, at earliest stage, on the basis of certain premise, shall not come in the way of accepting the evidence led by the petitioners which may be verified from the original record, if produced by the State before the Assistant Collector. In case the original record is produced and any objection is raised in that behalf, it would be open to the applicants to lead the evidence in regard thereof. Since we have remanded the case to the Assistant Collector, it will be open for the parties to lead fresh evidence, if they so choose and it will be open for the Assistant Collector to reach his conclusion in the light of the material produced before him, keeping in view the observations made in the earlier judgment and this judgment about the necessary requirements and consequences of the provisions of Section 15AAA regarding conferring Khatedari rights under Section 15-AAA, as it is an independent consideration. Until the decision is made by the Assistant Collector, the petitioners' possession shall not be disturbed.
In the facts and circumstances of the case, there will be no order as to costs.