Rajasthan High Court - Jaipur
Om Prakash And Ors vs B O R Ajemr And Ors on 3 January, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
(1) D.B. CIVIL SPECIAL APPEAL NO.2430/2011
IN
S.B. CIVIL WRIT PETITION NO.16253/2011
OM PRAKASH & ORS. Vs. BOARD OF REVENUE RAJASTHAN AJMER & ORS.
with
(2) D.B. CIVIL WRIT PETITION NO.595/2012
MADAN LAL (SINCE DECEASED) THROUGH HIS LEGAL HEIRS
Vs.
BOARD OF REVENUE RAJASTHAN AJMER & ORS.
DATE:03.01.2014
HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Mr. K.K. Mehrishi, Senior Counsel assisted by
Mr. Anil Sharma, for the appellants.
Mr. Anand Sharma, for the respondent Nos.3 to 5.
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BY THE COURT (PER HON'BLE THE CHIEF JUSTICE):
The instant appeal arises out of the judgment and order dated 28.11.2011 passed in S.B. Civil Writ Petition No.16253/2011, assailing the order dated 04.11.2011 passed by the learned Board of Revenue, Rajasthan, Ajmer (for short, hereafter referred to as 'the Board') passed on an application of even date, filed by the respondent Nos.3, 4 and 5 herein, before it.
We have heard Mr. K.K. Mehrishi, the learned Senior Counsel assisted by Mr. Anil Sharma, Advocate for the appellant and Mr. Anand Sharma, the learned counsel for the respondent Nos.3, 4 and 5.
Briefly stated the facts relevant to be noted, are that late Shri Dhanna, the grand father of the respondent Nos.3, 4 and 5, who was the recorded Khatedar of the land measuring 11 Bighas 11 Biswas included in Khasra No.2358, situated in Village Mundru, Tehsil Shrimadhopur, District Sikar, had verbally sold the same to Shri Madanlal, the father of the appellants, the predecessor in interest of the appellants, on a consideration of Rs.700/- and had handed over the possession thereof to him. Thereafter, Gram Panchayat Mundru recorded the said land in the name of Madanlal by order dated 11.01.1961, passed in Mutation Case No.24/65. After his demise, the appellants continued to be in Khatedari possession of the land.
A reference was made before the Board of Revenue under Section 82 of the Rajasthan Land Revenue Act, 1956 (for short, hereafter referred to as 'the Act 1956') against such mutation on the ground that the sale on the basis of which the name of predecessor in interest of the appellants was mutated in respect of the land involved, was void in the face of Section 42 of the Rajasthan Tenancy Act, 1955 (for short, hereafter referred to as 'the Act 1955'). The learned Board of Revenue by its judgment and order dated 20.06.1974, accepted the reference being Reference No.92/1972, made by the State of Rajasthan and cancelled the order of mutation dated 11.01.1961 rendered in Mutation Case no.24/65 by the Gram Panchayat Mundru and directed that the disputed land be restored to Dhanna and Kishna Balai, the original Khatedars. This determination made by the learned Board remained unassailed and it was eventually on 16.09.2011 when the respondent Nos.3 to 5 filed an application before the District Collector, Sikar for compliance of the judgment and order dated 20.06.1974 that the District Collector, Sikar forwarded the said application to Tehsildar Shrimadhopur for conducting an enquiry, who in turn, by order dated 30.11.2011, required the concerned Patwari to submit the enquiry report. While the matter set at rest, the respondent Nos.3 to 5 also under Section 9 of the Act 1956 filed an application before the learned Board on 04.11.2011 for mutating the land involved in the revenue records in their favour being heirs of deceased Dhanna, in compliance of the verdict dated 20.06.1974. The learned Board, on this application, registered Case No.7436/2011 and by its order also dated 04.11.2011, directed compliance of the decision dated 20.06.1974 and also ordered against any mortgage, sale or transfer of the disputed land. Being aggrieved, the appellants invoked writ jurisdiction of this Court to set at naught the order dated 04.11.2011.
The learned Single Judge, by the judgment and order impugned in the instant appeal, negated the impugnment, inter alia, on the ground that the adjudication made by the Board culminating in the judgment and order 20.06.1974, had remained unassailed and in that view of the matter as it was the failure of the concerned authorities to act in compliance thereof, it was permissible for the Board, in exercise of its power of superintendence under Section 9 of the Act 1956, to issue the directions, as contained in its order dated 04.11.2011. Vis-a-vis the submission made that even assuming that the sale of the land involved in the face of Section 42 of the Act 1955 was void, in absence of any proceeding being initiated for recovery of the possession thereof within 12 years by the respondent Nos.3 to 5, the relief of restoration of possession was barred in law, the learned Single Judge concluded that the application under Section 9 of the Act 1956 having been filed to enforce compliance of the judgment and order dated 20.06.1974, such plea was untenable. The decision of this Court rendered in Babu Singh Vs. State of Rajasthan and others, AIR 2002 Rajasthan 92, was distinguished on this line of reasoning.
Mr. Mehrishi has assiduously urged, with reference of Section 63 of the Act 1955, that as the respondent Nos.3 to 5 had not initiated a proceeding for recovery of the possession, the judgment and order dated 20.06.1974 of the Board, notwithstanding, the learned Single Judge ought to have interfered with the order dated 04.11.2011. According to the learned Senior Counsel, having regard to the reliefs prayed for by the respondent Nos.3, 4 and 5 in their application dated 04.11.2011 before the Board, the learned Single Judge had travelled beyond the scope thereof directing restoration of the possession of the land in their favour, which was otherwise impermissible in law. To reinforce his arguments, Mr. Mehrishi has mainly relied on the decision rendered in Babu Singh (supra).
In refutation of the above, Mr. Sharma has urged that Section 63 of the Act 1955 has no application to the facts involved in the teeth of the judicial determination made by the Board vide its judgment and order dated 20.06.1974. He further argued that as the order dated 04.11.2011 is interlocutory in nature and the learned Single Judge had refused to interfere therewith in exercise of powers under Article 227 of the Constitution of India, the present appeal is also not maintainable in law.
Upon hearing the learned counsel for the parties and on a consideration of the materials on record, we are inclined to sustain the contentions raised on behalf of the respondent Nos.3 to 5. Admittedly, the judgment and order dated 20.06.1974 had remained unassailed by the appellants or their predecessor in interest for all these years. It is, however, submitted at the Bar that in the accompanying S.B. Civil Writ Petition No.595/2012, such an impugnment has been made.
Be that as it may, on the date of filing of the application dated 04.11.2011 before the Board under Section 9 of the Act 1956, the judgment and order dated 20.06.1974 had been in force. As adverted to hereinabove, thereby mutation of the land involved in favour of the predecessor in interest of the appellants had been cancelled and a direction had been issued for restoration thereof in favour of Dhanna (predecessor in interest of respondent Nos.3 to 5) and Kishana Balai. On a perusal of Section 63 of the Act 1955, we are of the unhesitant opinion that the same does not have any application, in the attendant facts and circumstances, to render the adjudication made by the Board in its judgment and order dated 20.06.1974 otiose by sheer lapse of time. Our attention has not been drawn to any provision of law impelling such a consequence. As rightly observed by the learned Single Judge, the Board was within its jurisdiction to entertain the application dated 04.11.2011 under Section 9 of the Act 1956 and to pass appropriate orders in exercise of its power of superintendence. The judgment and order dated 20.06.1974 having remained unimpeached for over three decades, in our view, the learned Board was fully justified in passing the order dated 04.11.2011 for its implementation, as prayed for. We are in respectful agreement with the conclusions recorded by the learned Single Judge and do not find any persuasive reason to interfere with the impugned judgment and order dated 28.11.2011.
The appeal lacks in merit and is dismissed. The stay application also stands rejected.
In D.B. Civil Writ Petition No.595/2012:
In the above factual backdrop and in the face of the enormous inexplicable delay on the part of the writ-petitioners (appellants) in D.B. Civil Special Appeal No.2430/2011, we are not inclined, at this distinct point of time, to entertain the assailment of the judgment and order dated 20.06.1974. As is apparent, the order dated 04.11.2011 for implementation of the judgment and order has actuated this inordinately belated endeavour. The writ-petitioners having accepted this verdict for over three decades, challenge thereto, at this distinct point of time, is liable to be rejected on the ground of inaction, laches and negligence, thus, disentitling them to any relief in exercise of this Court's extraordinary and equitable powers under Article 226 of the Constitution of India.
The writ petition also stands dismissed.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J.
/KKC/
Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A.