Rajasthan High Court - Jaipur
Mangi Lal And Ors vs State Of Raj on 22 November, 2019
Bench: Sabina, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 1721/2017
In
S. B. Civil Writ Petition No. 11298/2015
1. Mangi Lal S/o Late Shri Mool Chand, aged about 63 years,
R/o Village and Post Booj, Tehsil Post Jamwaramgarh,
Distt. Jaipur
2. Shiv Sahay S/o Late Shri Mool Chand, aged about 58
years, R/o Village and Post Booj, Tehsil Post
Jamwaramgarh, Distt. Jaipur
3. Suresh Kumar S/o Late Shri Mool Chand, aged about 47
years, R/o Village and Post Booj, Tehsil Post
Jamwaramgarh, Distt. Jaipur
----Appellants/Petitioners
Versus
The State of Rajasthan through Tehsildar, Jamwaramgarh Distt.
Jaipur
----Respondent
For Appellant(s) : Ms. Manjeet Kaur For Respondent(s) : Ms. Archana on behalf of Mr. Anil
Mehta, Additional Advocate General.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 22/11/2019 Appellants have filed this appeal challenging order dated 05.10.2015 passed by learned Single Judge in S. B. Civil Writ Petition No. 11298/2015.
Learned counsel for the appellants has submitted that the appellants were bona fide purchasers. They had purchased the property in question after verifying the revenue record. The (Downloaded on 07/06/2021 at 04:19:22 AM) (2 of 7) [SAW-1721/2017] seller had been granted khatedari rights as per Annexure-5 placed on record with the writ petition. The allotment made in favour of the original allottee (Kalyan), has been wrongly set aside by the Board of Revenue. In support of her arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Jt. Collector Ranga Reddy Vs. D. Narsing Rao, (2015) 3 SCC 695, wherein it has been held as under:
"24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
25. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the Respondents. The attempt of the Appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was (Downloaded on 07/06/2021 at 04:19:22 AM) (3 of 7) [SAW-1721/2017] issued as late as on 31 st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
Learned counsel has next placed reliance on the Division Bench judgment of this Court in Pat Ram & Others Vs. State of Rajasthan & Others, 1995 DNJ 592, wherein it has been held as under:
"11. The next question, which requires consideration, is : whether the Collector has powers under rule 14(4) of the Rules, 1970 to cancel the allotment of the land made in favour of the petitioners after the conferment of the Khatedari rights in their favour ? The khatedari rights conferred upon the tenant can be withdrawn only in accordance with the provisions of the Rajasthan Tenancy Act, 1955 and the Collector has no power under rule 14(4) of the Act to cancel the allotment made in favour of the petitioners with respect to the land in which the Khatedari rights have already been conferred upon them because after the conferment of the Khatedari rights, the applicability of the Rules comes to an end. The powers under Sub-rule (4) of Rule 14 of the Rules, 1970 can be exercised by the Collector before conferment of the Khatedari rights and after the conferment of the Khatedari rights, the petitioners acquired all the rights for which they are entitled under the Rajasthan Tenancy Act and thereafter the provisions of Sub- rule (4) of Rule 14 of the Rules, 1970 has no application. The order, passed by the Collector, Bikaner, exercising its powers under Rule 14(4) of the Rules, 1970, is, therefore, without jurisdiction. The order passed by the learned Collector and the orders passed by the Revenue Appellate Authority and the Board of Revenue confirming the order passed by the Collector, therefore, deserve to be quashed and set-aside."
Learned counsel for the respondent has opposed the appeal.
It is the case of the appellants that the land in question was described in the revenue record as 'Gair Mumkin Nala' in the (Downloaded on 07/06/2021 at 04:19:22 AM) (4 of 7) [SAW-1721/2017] settlement proceedings. After settlement, new khasra numbers were carved out. Land-in-question measuring 4 bighas was allotted to Kalyan son of Heera Lal on 21.08.1978 and mutation was sanctioned in his favour. The land was, however, described as 'Barani'. Although, the land-in-question was described in the revenue record as 'Gair Mumkin Nala' but no nala was in existence at the spot and the land was under cultivation of the landless cultivators. Mutation of inheritance was sanctioned in favour of the sons of Kalyan and in the year 1990, khatedari rights were conferred on the sons of Kalyan. Appellants purchased the land- in-question vide registered sale deed and mutation was sanctioned in favour of the appellants.
Division Bench of this Court at Principal Seat at Jodhpur in Abdul Rahman Vs. State of Rajasthan & Others, 2004 (4) WLC (Raj.) 435 while considering a public interest litigation held that there was need to adopt regulatory measures with a view to maintain proper balance between the conservation of natural resources and protection of ecological environment on one hand and the need for development and of industrial growth of the country on the other hand. Some suggestions were made by the Expert Committee for restoring the catchment areas to their original shape and use. Relevant para of the judgment is reproduced herein below:
"15. The Committee has made suggestions for restoring the catchment areas to their original shape and use:
"(3) Suggestions for restoring the catchment areas to their original shape and use:
Looking to the site visit by the State Level Expert Committee in September 2003 and General Survey Reports received from the District Collectors and Chairmen, District Expert Committee, following suggestion are made:(Downloaded on 07/06/2021 at 04:19:22 AM)
(5 of 7) [SAW-1721/2017]
1. All land shown as drainage channels like nalla, rivers, tributaries etc. as on 15.8.1947 should be declared as Govt. land. Any conversions made after 15.8.1947 should be declared illegal. The relevant act and rules must be amended accordingly.
2. Demarcation of catchment areas should be done by construction pillars at suitable spacing depending upon size of the catechment area with the help of GT sheet of scale 1:25000 or 1:50000 and/or "Water Shed Atlas of Rajasthan" prepared by the State Remote Sensing Application Centre, Jodhpur.
3. Demarcation of drainage channels-
(i) In unhabited areas this can be done by installing pillars at suitable spacing or by constructing side wall depending upon size of drainage channel and its importance.
(ii) In urban and rural areas, the demarcation of drainage channels must essentially be done by constructing side walls of appropriate height and thickness.
4. In the government owned lakes and other water bodies, the Khatedari rights of private persons in their submergence area should be brought under the ownership of the government.
5. The drainage channels in the catchment areas should be got inspected by engineering professionals and Patwaris. Wherever there are obstructions in nalla, it should be suitably removed by constructing culverts, deepening and widening of nallas etc.
6. Wherever there are any construction activities, which may interfere with the flow of water in drainage channels, no objection certificate must be obtained from the irrigation department.
7. The Anicuts more than 2m height above deepest nalla bed should be identified. The height more than 2m should be dismantled.
8. Wherever residential colonies have been constructed obstructing flow in drainage channels, the obstruction must be removed and nallas may be deepened/constructed.
9. On the periphery of lakes, ponds, water bodies in urban and rural areas, a pucca drain should be constructed on periphery of the water body to prevent entry of domestic, industrial and other waste in the water body.
10. For soil conservation work, suitable guidelines must be issued by the "Watershed & Soil Conservation Department" so that these works make minimum possible interference with the flow of water.
11. The district administration should specify places for dumping various types of waste (Downloaded on 07/06/2021 at 04:19:22 AM) (6 of 7) [SAW-1721/2017] material. If any body is found to dump the waste material in other places, particularly drainage channels, then suitable punishment should be provided in the law.
12. The government should use television, radio and newspapers to create awareness in this matter.
13. Possibility should be explored to use marble slurry as construction material, for filling depressions etc. as has been done for disposal of fly ash from Thermal Power Houses.
14. The water quality of water bodies should regularly be monitored.
15. Wherever over-burden or waste materials generated from mines and processing units, have been dumped obstructing flow of water in drainage channels; diversion drains and check walls must be constructed. For that purpose, special condition should be incorporated in the lease/license agreement."
After considering the issues involved in that case, the State Government was directed by the Division Bench to consider the recommendations of the Committee as reproduced above and chalk out a plan to take effective steps for restoring the catchment areas to their original shape. It was also clarified that the order would not prevent State authorities from drawing up or taking further steps more effectively to fulfill the objects and the directions issued by the Court.
In pursuance to the above Division Bench decision, reference was made by the Tehsildar after noticing that in-fact 'Nala' was still in existence. The Board of Revenue accepted the reference made by the Tehsildar and quashed the allotment made in favour of Kalyan. Consequently, the sale made in favour of the appellants was held to be void and entries in the revenue record were set aside.
The learned Single Judge, after noticing the entire factual scenario, held that since in the present case reference had been made by the Tehsildar in view of the decision given by the (Downloaded on 07/06/2021 at 04:19:22 AM) (7 of 7) [SAW-1721/2017] Division Bench of this Court in Abdul Rahman's case (supra), the delay in exercising revisional power could not be interpreted in favour of the appellants. We have also gone through Division Bench judgment of this Court in Pat Ram & Others (supra) but the same fails to advance the case of the appellants in view of the peculiar facts and circumstances of the present case.
The learned Single Judge rightly held that the decision of the Hon'ble Supreme Court in Jt. Collector Ranga Reddy (supra) failed to advance the case of the appellants as in the said case, the allotment had been made on the basis of fraud, whereas, in the present case, the allotment had been cancelled with a view to give effect to the directions issued by Division Bench of this Court in the case of Abdul Rahman (supra). Moreover, the order passed by the Board of Revenue dated 01.08.02012 had been challenged by filing writ petition on 10.08.2015. Thus, writ petition also suffered from delay and latches.
The reasons given by the learned Single Judge, while dismissing writ petition filed by the appellants, are sound reasons and call for no interference.
Dismissed.
(NARENDRA SINGH DHADDHA),J (SABINA),J MANOJ NARWANI /46 (Downloaded on 07/06/2021 at 04:19:22 AM) Powered by TCPDF (www.tcpdf.org)