Rajasthan High Court - Jaipur
Kailash Sharma And Anr vs State Of Raj And Ors on 21 January, 2019
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 17953/2016
The State Of Rajasthan Through Tehsildar, Jaipur, District Jaipur
----Petitioner
Versus
1. Gulab Widow Of Nanga
2. Shankar Lal Son Of Nanga, Through Natural Guardian
Mother Gulab
3. Rakesh Kumar Son Of Nanga, Through Natural Guardian
Mother Gulab
4. Murli Son Of Nathya Balai
5. Kalu Ram Son Of Narayan
6. Sharwan Kumar Son Of Narayan
7. Birdhichand Son Of Narayan
8. Manoj Kumar Son Of Narayan
9. Mst. Gulab Widow Of Narayan
10. Lada Devi Widow Of Hari Narayan
11. Dinesh Son Of Hari Narayan
12. Reena D/o Hari Narayan Minor Through Natural Guardian
Mother Lada Devi, All By Caste Balai, Bhambhori, Tehsil
Jaipur
----Respondents
AND
S.B. Civil Writs No. 4885/2017
1. Kailash Sharma S/o Shri Radhey Shyam Sharma, aged
about 32 years, Resident of Indra Awas Colony,
Bhambhori, District Jaipur Patron / Bhaktgan Maphi
Mandir Shri Khojaji, Situated At Village Bhambhori District
Jaipur.
2. Jai Kumar S/o Shri Mool Chand Sharma, aged about 43
years, Resident of Village Bhambhori, District Jaipur. At
Present Resident Of 71, Ganesh Nagar, Kalwar Road,
Jhotwara, Jaipur. Patron/bhaktgan Maphi Mandir Shri
Khojaji, Situated At Village Bhambhori District Jaipur.
----Petitioners
Versus
1. The State Of Rajasthan Through Tehsildar, Jaipur, District
Jaipur
2. Gulab Widow Of Nanga,
3. Shankar Lal Son Of Nanga, Through Natural Guardian
Mother Gulab.
4. Rakesh Kumar Son Of Nanga, Through Natural Guardian
Mother Gulab.
5. Murli Son Of Nathya Balai
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6. Kalu Ram Son Of Narayan
7. Sharwan Kumar Son Of Narayan
8. Birdichand Son Of Narayan
9. Manoj Kumar Son Of Narayan
10. Mst. Gulab Widow Of Narayan
11. Lada Devi Widow Of Hari Narayan
12. Dinesh Son Of Hari Narayan
13. Reena D/o Hari Narayan Minor Through Natural Guardian
Mother Lada Devi. All By Caste Balai, Bhambhori, Patwar
Area, Bhambhori, Distt. Jaipur (Raj.)
14. Vivekanand Grha Nirman Sahkari Samiti Through
President/ Secretary, C-22, Vaishali Marg, Vaishali Nagar,
Jaipur Raj.
----Respondents
For Petitioner(s) : Mr. Dharmendra Pareek, Addl. Govt.
Counsel (CWP-17953/2016)
Mr. S.N. Kumawat (CWP-4885/2017)
For Respondent(s) : Mr. R.K. Mathur, Sr. Counsel assisted
by Mr. Aditya Mathur
Mr. Narendra Pareek & Mr. Harsh
Sahu
HON'BLE MR. JUSTICE INDERJEET SINGH
JUDGMENT
21/01/2019
Since the questions raised for consideration in both these
writ petitions pertain to the common order passed by the learned
Board of Revenue dated 21.07.2015 dismissing the reference
made by the Tehsildar through State Government, hence both the
writ petitions, as agreed by counsel for the parties, have been
heard together & are being decided by the present order.
The facts being common in brief are that the State of
Rajasthan through Tehsildar filed a reference u/s.82 of the
Rajasthan Land Revenue Act, 1956 (hereinafter to be referred to
as " Act, 1956") stating therein that the land of khasra Nos.208,
209, 210, 211/12, 213 & 211/843, measuring 10.13 bighas
situated in village Bhambhori, Tehsil & District Jaipur belongs to
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Mandir Mafi Shri Khoja Ji from Samwat 2015-2034. It was further
stated that in Samwat 2019-2022, the said land was recorded in
the name of Khatedars namely Nathya & Manna, both sons of Lala
Balai without any valid order and lastly prayed that the land in
dispute be recorded in the name of Mandir Mafi Shri Khoja Ji.
The learned District Collector, Jaipur after hearing the parties
vide order dated 09.01.2006 sent the reference to the learned
Board of Revenue, Raj., Ajmer.
In turn, the said reference was received & registered with
the learned Board of Revenue as bearing No. Reference/LR/2395/
2006/Jaipur, in which an application under Order 1 Rule 10 C.P.C.
was also filed by the applicants Madan Lal & Ors. seeking their
impleadment as party to the proceedings being Pujaris of the
Mandir Shri Khojaji.
The State Government opposed the application filed on
behalf of the applicants-Madan Lal & Ors. and submitted that the
applicants were never the Pujaris of the said Mandir.
The learned Board of Revenue vide impugned order dated
21.07.2015 rejected the application filed by the applicants-Madan
Lal & Ors. under Order 1 Rule 10 C.P.C. for impleading them as
party to the proceedings.
The learned Board of Revenue on merits held that after
coming into force the Rajasthan Land Reforms & Resumption of
Jagir Act, 1952 (hereinafter to be referred as the "Act, 1952"),
the land in dispute vested in the State Government and the
persons who were actually cultivating the land in dispute were
rightly recorded as Khatedars. The learned Board of Revenue also
considered the circular of the State Government dated 24.05.2007
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and rejected the reference vide impugned order dated
21.07.2015.
Hence, the writ petition (CWP-17953/2016) has been filed by
the State being aggrieved by the rejection of the reference and
the connected writ petition (CWP-4885/2017) on behalf of
residents of village Bhambhori, Tehsil & District Jaipur namely
Kailash Sharma & Jai Kumar, challenging the order passed by the
learned Board of Revenue dated 21.07.2015.
CWP No. 17953/2016:-
Counsel for the petitioner-State submitted that the order
passed by the learned Board of Revenue is against the facts & law
involved in the matter and the learned Board of Revenue has
committed serious illegality in dismissing the reference as it failed
to consider this aspect of the matter that no formal order was
passed entering names of ancestors of the present respondents in
the revenue records. Counsel further submits that the Tehsildar
was competent to make reference to the Collector even after 44
years since no period of limitation has been prescribed for making
reference u/s.82 of the Act, 1956.
On the other hand, counsel for the respondents supported
the order passed by the Board of Revenue and submitted that the
present reference has been made by the Tehsildar after a delay of
44 years in the year 2005. Counsel further submits that after
coming into force the Act, 1952, the land in dispute was rightly
recorded in the names of ancestors of the respondents namely
Nathya and Manna, both sons of Lala Balai. Counsel further
submits that the learned Board of Revenue has rightly considered
the circular dated 24.05.2007 issued by the State Government
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and after coming into force the Act, 1952 the land of Mandir Mafi
automatically stood vested in the State Government, as a legal
consequence thereof the persons cultivating the said land, namely
Nathya & Manna became Khatedars of the land and their names
were rightly recorded in the revenue records and the persons
aforesaid being ancestors, the present respondents are in rightful
possession of the land in dispute as the land in dispute was not
recorded as Khudkhast of Mandir Mafi.
In support of the contentions, counsel for the respondents
relied upon the Larger Bench Judgment of this court in the matter of Tara & 35 Ors. Vs. State of Rajasthan & Anr, reported in 2015(3) WLC (Raj.) 548 wherein it has been held as under:-
"Question:- (i) Whether land held in Jagir by Idol cultivated by
(a) person other than the Shebait/Pujari, or
(b) hired labour or servants engaged by Shebait/Pujari as tenant of deity (a perpetual minor) will be regarded as held in tenancy by person cultivating same as tenant of deity;
will still be held as land held in personal cultivation of deity or it would be treated as land in tenancy of person cultivating it as tenant of deity;
Answer:- (Para 26):-
26. In view of the above discussion, we decide the question No. (i) in favour of the State and against the Shebait/Pujari claiming the land to be saved by the Jagirs Act of 1952. The land held in Jagir by Hindu idol (deity) as Dolidar or Muafidar cultivated by a person other than the Shebait/Pujari of the deity personally or by hired labour or servants engaged by (Downloaded on 05/06/2021 at 10:08:14 PM) (6 of 12) [CW-17953/2016] its Shebait/Pujari as a tenant of the deity, shall vest in the State, after the Jagirs Act of 1952. The Hindu idol (deity), even if it is treated to be a perpetual minor, could not continue to hold such land. Such land cannot be treated to be in its personal cultivation. A tenant of such land cultivating the land acquired the rights of khatedar of the State. Such land under the tenancy of a person other than Shebait/Pujari of Hindu Idol (deity) became khatedari land of such tenant. The name of Hindu Idol (deity) from such land had to be expunged from the revenue records with Shebait/Pujuri having no right to claim the land as Khatedar. Consequently, they had no right to transfer such lands, and all such transfers have to be treated as null and void, in contravention of the Jagirs Act 1952, and the land under such transfers to be resumed by the State.
Question (ii). What are rights of the Hindu (deity) in lands held by it in name of Shebait/Pujari on date of resumption of such Jagir, under provisions of Rajasthan Land Reforms & Resumption of Jagir Act, 1952;
Answer:- (Para No.30) In view of the above, we answer the question No. (ii) in favour of the State and against the persons claiming land for Hindu idol (deity) as Dolidar or Muafidar. The Hindu Idol (deity) in the lands held by them in the name of its Shebait/Pujari on the date of resumption of such Jagir under the provisions of the Jagirs Act of 1952 did not have any rights except in khudkasht land cultivated by Shebait/Pujari either by themselves or by hired labour or servant engaged by them for the benefit of the expenses of the temple including sewa puja.
(Downloaded on 05/06/2021 at 10:08:14 PM)(7 of 12) [CW-17953/2016] All those lands let out by them to the tenants or sub-tenants were resumed by the Jagirs Act of 1952 and that the Hindu idol (deity) lost all the rights in such jagir lands.
Question (v) -Whether any time limit can be fixed for reference u/s. 82 of Land Revenue Act or u/s. 232 of Rajasthan Tenancy Act, 1955 in respect of land held by Hindu deity? If so, to what extent?"
Answer:- (Para 42) On the aforesaid discussion and in the light of the judgments of the Supreme Court referred to above, we decide the question No. (v) in the manner that even if no time limit has been fixed for reference under Section 82 of the Rajasthan Land Revenue Act, 1956 and under section 232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by a Hindu Idol (deity), a reference can be made within a reasonable time, which will depend upon the facts and circumstances of each case. Even if the fraud is alleged, the power must not be exercised after unreasonable period, such as, after several decades claiming rights over the land.
Counsel further relied upon the Division Bench Judgment of this court in the matter of Anandi Lal Vs. State of Rajasthan & Ors. reported in 1996(2) WLC 36 where in paras-23 & 28 it has been held as under:-
23. The contention that the land was a Muafi Murti Mandir Land, therefore, the power could be exercised after any length of time, cannot be accepted. The question is not with regard to the nature of the land. The question which is required to (Downloaded on 05/06/2021 at 10:08:14 PM) (8 of 12) [CW-17953/2016] be examined is as to whether the revisional power conferred upon the authority concerned under the provisions of Section 82 of the Act of 1956 and under the provisions of Section 232 of the Act of 1955, could be exercised after unreasonable period of time. As held by the Supreme Court in the aforesaid decisions, the power could be exercised within reasonable time whenever the statute does not provide for the period of limitation. What would be the reasonable period, would depend upon the facts of the case and the nature of the order sought to be revised.
28. In our opinion, in this case there is no material, whatsoever, to indicate that the exercise of power after a period of about 25 years is in any way justified. Thus, the order of reference made by the Additional Collector, Baran and the power exercised by the Board of Revenue, being unreasonable, unjust and unfair, the decision rendered by them in exercise of such powers, cannot be sustained in law.
In facts of the case, we do not think it proper that it is just and proper to remit the matter to Board of Revenue and permit the State to exercise its power after such an inordinate delay. For these reasons the judgment and order passed by the Board of Revenue is required to be quashed and set aside and the order passed by the Assistant Collector, Baran in Revenue Case No. 50/1956 decided on October 12, 1957, is required to be restored.
Counsel further submits that earlier the respondents approached this court by filing S.B. Civil Writ Petition No.14863/2016 (Gulab Bewa Nanga & Ors. Vs. State of Rajasthan & Ors.) with the prayer to pass an order for making compliance of (Downloaded on 05/06/2021 at 10:08:15 PM) (9 of 12) [CW-17953/2016] the order passed by the Board of Revenue, the said writ petition was decided on 25.10.2016 and it has been held as under:-
"This petition has been filed by the petitioners with the grievance that petitioners along with performa respondents are khatedar of land Khasra No. 208, 209, 210, 211/12, 213 and 211/843 total area 10.13 bigha situated at village Bambori, Patwar Halka Machwa, tehsil & District Jaipur. In the year of 1952, the Rajasthan resumption of Jagir Act came in to force and thereafter the Jagir of Jagirdar/Mafidar were resumed and after resumption of Jagir, the ancestral of petitioners were become khatedar tenant of aforesaid land in question and since then petitioners along with the performa respondents are khatedar tenant of the aforesaid land in question. The respondent-Tehsildar made a reference in the year of 2005 to District Collector Jaipur pleading therein that land in question belongs to the land of mandir muafi and in the revenue record the name of the tenants was wrongly mentioned. On the basis of the recommendation made by the Tehsildar, the District Collector registered a case no.51/2005 and vide its order dated 09.01.2006 made the reference to Board of Revenue. The Board of Revenue vide its order dated 21.07.2015 has dismissed the reference made by the District Collector, Jaipur. The aforesaid order was passed by the Board of Revenue in presence of the both the parties. In spite of that petitioners along with other co-tenant had submitted a certified copy of the aforesaid order to respondent, but still respondents did not make compliance of the aforesaid order of Board of Revenue. It is contended that the Government of Rajasthan vide its notification dated 24.05.2007 has (Downloaded on 05/06/2021 at 10:08:15 PM) (10 of 12) [CW-17953/2016] settled the controversy. According to aforesaid circular the reference made by the Collector is not maintainable and while considering the aforesaid Circular, the Board of Revenue dismissed the reference made by the district collector Jaipur.
It is contended Larger Bench of this Court also decided the controversy on 15.07.2015 which is reported in RRD 2015 page 556 in case of Tara & 35 ors. Versus State of Rajasthan & Anr. and from bare perusal of the aforesaid judgment of the Rajasthan High Court, no controversy has remained with regard to the land of mandir mafi and petitioners along with the other cotenant are the khatedars of the aforesaid land in question, but respondents did not make compliance of the judgment passed by the Board of Revenue and not expunge the note of reference which was put by respondent in Jamabandi in compliance of the order aforesaid, whereas in entire district as well as in the State of Rajasthan in compliance of the different judgments of Board of Revenue in same manner, the Tehsildar concerned made the compliance. Thus the act of respondent is against the principal of natural justice as well as violation of Circular dated 24.05.2007. Petitioners also sent a legal notice for demand of justice dated 07.10.2016, but no suitable action has been taken by the respondents.
Having regard to the facts aforesaid, instead of directly entertaining the writ petition, petitioners is set at liberty to approach the Tehsildar, Jaipur district Jaipur who shall consider the grievance of the petitioners and decide the representation by a reasoned and speaking order within two months from the date of approaching him along with copy of this order.
The writ petition is disposed off. Stay application also stands disposed off."(Downloaded on 05/06/2021 at 10:08:15 PM)
(11 of 12) [CW-17953/2016] Heard counsel for the parties and perused the record.
The argument raised by counsel for the petitioner-State regarding non-consideration of the facts and law involved in the matter by the learned Board of Revenue is not acceptable as in my considered view the learned Board of Revenue rightly dismissed the reference considering the legal and factual aspect of the matter including the circular issued by the State Government dated 24.05.2007.
The next argument raised by counsel for the petitioner-State that no limitation has been prescribed under Section 82 of the Act, 1956 for making reference to the Collector is also not acceptable in view of the judgment passed by the Larger Bench of this court in the matter of Tara & 35 Ors. (supra) wherein the Larger Bench of this court has held that although there is no limitation prescribed in making reference but the delay should be reasonable and in my considered view the delay of 44 years in making reference in this matter without assigning justifiable reasons cannot be said to be reasonable in any manner.
In that view of the matter, the present writ petition (CWP-
17953/2016) filed by the petitioner-State deserves to be dismissed for the reasons; firstly after coming into force the Act of 1952 the land shall vest in the State and the ancestors of the respondents, namely Nathya & Manna, being in cultivatory possession, the land in dispute was rightly recorded in their names in the revenue records; secondly, in Samwat 2015-2034 the land in dispute was recorded in the name of Murti Mandir Shri Khojaji in column no.3 of the relevant khatoni bandobast of the revenue (Downloaded on 05/06/2021 at 10:08:15 PM) (12 of 12) [CW-17953/2016] records and the names of ancestors of the respondents namely Nathya & Manna, both sons of Lala Balai, were recorded in column no.5 as cultivators; thirdly, in view of the judgment passed by the Larger Bench of this Court in the matter of Tara & 35 Ors., (supra) more particularly the observations made in respect to answer to questions No.(i) & (ii) the ancestors of the respondents namely Nathya & Manna were rightly recorded as Khatedars in the revenue records. Lastly, admittedly the reference has been made after a delay of 44 years for which no reasonable justification has come forward in support thereof.
C.W.P. No.4885/2017 :-
Heard counsel for the parties and perused the record.
The writ petition (CWP-4885/2017) filed by the petitioners deserves to be dismissed for the reasons; firstly, the petitioners were not party either before the Collector or before the Board of Revenue; secondly, the petitioners have not been the Pujaris of Mandir Shri Khoja Ji and thirdly, the learned Board of Revenue has dismissed the application filed on behalf of the Pujaris under Order 1 Rule 10 C.P.C. therefore, even in my considered view, the petitioners have no locus standi to file the present writ petition questioning the order passed by the Board of Revenue as they are neither necessary nor proper party to the present dispute.
In that view of the matter, both the writ petitions stand dismissed. Copy of the present order be separately placed in the connected file.
(INDERJEET SINGH),J VS SHEKHAWAT, PS/-103-104 (Downloaded on 05/06/2021 at 10:08:15 PM) Powered by TCPDF (www.tcpdf.org)