Rajasthan High Court - Jaipur
Bajranglal Agarwal S/O Shri Chhajuram ... vs Board Of Revenue on 25 September, 2019
Bench: Mohammad Rafiq, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 1154/2019
In
S.B. Civil Writ Petition No.2102/2007
Bajranglal Agarwal S/o Shri Chhajuram Choudhary, Aged About
69 Years, aged 69 years, R/o Samod, Presently R/o C-10,
Choudhary House, Sawai Jai Singh Highway, Banipark, Jaipur
----Appellant-Petitioner
Versus
1. Board Of Revenue, Ajmer
2. The Settlement Commissioner, Jaipur
3. The Settlement Officer, Jaipur
4. The Assistant Settlement Officer, Chomu
5. Shyam Sunder Bhatra S/o Shri Nathmal Bhatra, R/o
Chomu District Jaipur Since Deceased Through His Legal
Heirs
5/1 Kamal Sharma S/o Late Shyam Sunder Bhatra,
Resident Of Near Bandha Ringus Road, Chomu District
Jaipur
5/2 Samptti D/o Late Shri Shyam Sunder Bhatra W/o Shri
Pawan Kumar Sharma, Resident Of Near Bandha Ringus
Road, Chomu District Jaipur
5/3 Snehlata D/o Shri Shyam Sunder Bhatra W/o Shri
Harihar, Resident Of Near Bandha Ringus Road, Chomu
District Jaipur
5/4 Ansu @ Meena D/o Late Shri Shyam Sunder Bhatra,
Resident Of Near Bandha Ringus Road, Chomu District
Jaipur
5/5 Vijay Kumar Sharma S/o Late Shri Shyam Sunder
Bhatra,
All residents of Near Bandha Ringus Road, Chomu District
Jaipur
6. Kabbu Lal S/o Shri Raghuvar Dayal, By Caste Nai (Since
Deceased) Through His Legal Heir
6/1 Smt. Vimla Devi W/o Kabbulal,
6/2 Kiram Devi W/o Vikram D/o Kabbulal,
(Downloaded on 30/09/2019 at 09:11:13 PM)
(2 of 18) [SAW-1154/2019]
6/3 Jyoti D/o Kabbulal,
6/4 Kamal D/o Kabbu Lal,
All residents of Village Chomu District Ajitpura @ Baseda
Tehsil Niwai District Tonk
Respondents/Non-petitioners
7. Prakash Chand S/o Ram Chandra, By Caste Jangid R/o Chomu Tehsil Chomu District Jaipur
8. Ramesh Chand S/o Ram Chandra, (Since Deceased) Through His Legal Heirs 8/1 Smt. Lalita W/o Late Ramesh Chand, 8/2 Gajanand S/o Late Ramesh Chand, 8/3 Himanshu S/o Late Ramesh Chand, 8/4 Rohit Kumar S/o Late Ramesh Chand, 8/5 Seema D/o Late Ramesh Chand,
9. Rameshwar S/o Ramchandra,
10. Rajendra S/o Ram Chandra, (Since Deceased) through His Legal Heirs 10/1 Rajiv S/o Late Rajendra, 10/2 Ajay S/o Late Rajendra, 10/3 Renu D/o Late Rajendra, 10/4 Madhu D/o Late Rajendra, 10/5 Sonu D/o Late Rajendra, All By Caste Jangid R/o Chomu Tehsil Chomu District Jaipur
11. Smt. Anju Devi W/o Shri Puran, By Caste Jangid Brahmin, R/o Chomu Tehsil Chomu District Jaipur
12. Nicky,
13. Vicky,
14. Guddu, All minor through natural guardian and mother Smt. Anju Devi W/o Shri Puran R/o Chomu Tehsil Chomu District Jaipur
15. State Of Rajasthan Through Tehsildar, Chomu District Jaipur Proforma Respondent
16. Dwarkia Prasad Sharma S/o Shri Damodar Prasad Sharma, By Caste Bagra Brahmin, R/o Village Daulatpura Kota Tehsil Ajmer District Jaipur (Downloaded on 30/09/2019 at 09:11:13 PM) (3 of 18) [SAW-1154/2019]
----Respondent/Non Petitioner For Appellant(s) : Shri Satya Narayan Kumawat For Respondent(s) : Shri Rajendra Prasad, Sr. Advocate assisted by Shri Pawan Pareek, Shri Raghvendra Singh, Shri Karan Tiberwal and Shri Deepak Sharma HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 25/09/2019 (PER HON'BLE MOHAMMAD RAFIQ, J.) The present appeal has been filed by the appellant assailing the judgement of the learned Single Judge dated 12.7.2019, by which the writ petition filed by him has been dismissed.
The appellant in the aforesaid writ petition has challenged the judgement of the Board of Revenue dated 28.2.2006 by which the revision petition filed by respondent no.5-Shyam Sunder Bhatra was allowed and he was declared khatedar of the land comprising in khasra no.1919/1/2 measuring 1 bigha 3 biswa situated in village Chomu, District Jaipur.
Facts giving rise to this appeal are that one Kanhaiyalal S/o Balu was recorded as khatedar of the land bearing old khasra no.1919/1 measuring 1 bigha 2 biswa situated in village Chomu, District Jaipur. The State Government issued a notification u/s.4 of the Land Acquisition Act, 1953 for acquiring 32 bigha 11 biswa land including land of khasra no.1919/1 to install 132 KV gird sub- station at Chomu. While the acquisition proceedings under process, the said khatedar Kanhaiyalal died leaving behind his widow Smt. Narayani Devi and son Kabbulal. The land was (Downloaded on 30/09/2019 at 09:11:13 PM) (4 of 18) [SAW-1154/2019] therefore mutated in their name. In the meantime, Smt. Narayan Devi sold the said land to Shyam Sunder Bhatra by registered sale deed dated 12.9.1973. The Land Acquisition Officer awarded compensation to the tune of Rs.1039.50 for acquiring land of khasra no.1919/1 and issued notice to Smt. Narayani Devi to receive the same, who filed an application before him stating that she has sold the land to Shyam Sunder Bhatra, it should be paid to him. In the meantime, an application was moved before the Assistant Settlement Officer, Chomu on 21.3.1990 for correction of entries in respect of khasra no.1919/1 by the appellant-Bajrang Lal Agarwal and Meena Lal Agarwal on the premise that the boundaries of previous khasra no.1912/2 was touching the road from Chomu to Morija. They purchased the land from Rudalal Jogi by registered sale deed. The present khasra numbers of that land was 3849, 3851, 3852 and 3853. This land had wrongly been entered in the khata of Ram Chandra and Mohan Lal and in fact belonged to them. It was also mentioned that Ram Chandra and others have filed a civil suit in this regard in the Court of Additional Chief Judicial Magistrate, Chomu, which is pending. The Assistant Settlement Officer allowed the application by order dated 28.4.1990 and directed that aforesaid land of present khasra no.3849 area 0.11 hectares, 3851 area 0.02 hectares, 3852 area 0.08 hectares and 3856 area 0.08 hectares, total area 0.29 hectares be recorded in the name of Government and also directed that the land of khasra no.3849, 3851 and 3852, total area 0.6 hectares be reduced and entered in the khatedari of aforesaid applicants.
Aggrieved by the aforesaid order of the Assistant Settlement Officer dated 28.4.1990, Shri Shyam Sunder Bhatra-respondent (Downloaded on 30/09/2019 at 09:11:13 PM) (5 of 18) [SAW-1154/2019] no.5, filed appeal before the Settlement Officer, Jaipur on the premise that Assistant Settlement Officer neither issued any notice, nor gave opportunity of hearing to him before passing the aforesaid order. It was also stated in the application that some part of the Chomu to Morija road falling in northern side in khasra no.1919/1 and some part in southern side was left free. This land was never acquired, nor surrendered in favour of the government. Another part of the disputed land on the southern side of the road was comprising in khasra nos.6756, 6761, 6764, 6765, 6766, 6767, 6783 and 6761/7355. These lands were entered in favour of the appellant-Bajrang Lal Agarwal and others and lands of northern side of the road were comprising in new khasra nos.3849, 3851, 3852, 3853, which were covered by the road and were ordered to be recorded in the name of the government. The prayer was made that the order dated 28.4.1990 be set aside and a parcha be issued in favour of Shyam Sunder Bhatra. The Settlement Officer by order dated 30.01.1991 allowed the appeal and remanded the matter to Assistant Settlement Officer, Chomu.
The Assistant Settlement Officer, Chomu after remand, examined the record and directed the Tehsildar to inspect the site and submit the inspection report. On examination of report of inspection, statement of neighbours and other records, the Tehsildar found that land of old khasra no.1919/1/2 belongs to Shyam Sunder and other neighbours. He also held that present khasra nos.3849, 3851, 3852 and 3856, total area 0.29 hectares were not in road boundary and therefore should be restored back in the khatedari of Shyam Sunder Bhatra and accordingly corrections be made in the jamabandi. Aggrieved by that order of the Assistant Settlement Officer dated 27.02.1991, Prakash (Downloaded on 30/09/2019 at 09:11:13 PM) (6 of 18) [SAW-1154/2019] Chandra son of Ram Chandra filed appeal before the Settlement Officer, Jaipur. The Settlement Officer heard the arguments and decided the appeal ex-parte in favour of Prakash Chandra and others thereby setting aside the order of Assistant Settlement Officer, Chomu dated 27.2.1991 and directed that the lands of khasra nos.3849, 3851, 3852 and 3856 total measuring 0.29 hectares should be restored back to the khata of Prakash Chandra etc. It may be significant to note at this stage that the appellant- Bajrang Lal and others did not file any appeal or revision petition against the order of the Assistant Settlement Officer dated 28.04.1990 and appeal was filed only by Prakash Chandra and others. Shyam Sunder Bhatra aggrieved by the order dated 13.11.1995 filed further appeal before the Settlement Commissioner, Jaipur, which was dismissed by order dated 24.3.2003. During the pendency of the aforesaid appeal, Bajrang Lal, the present appellant, filed an application under Order 1 Rule 10 CPC for his impleadment as party. The Settlement Commissioner vide order dated 24.3.2003 dismissed the appeal. Aggrieved thereby, the respondent-Shyam Sunder Bhatra filed revision petition before the Board of Revenue, which was also dismissed by order dated 7.12.2004. It was thereafter that the respondent no.2-Shyam Sunder Bhatra filed review petition before the Board of Revenue. The Board by order dated 28.2.2006 allowed the review petition. Aggrieved thereby, the appellant Bajrang Lal Agarwal filed special appeal with an application under Section 10 of the Land Revenue Act seeking leave to file appeal before the Board of Revenue. The Board of Revenue, Ajmer by order dated 7.2.2007 dismissed the application on the ground that (Downloaded on 30/09/2019 at 09:11:13 PM) (7 of 18) [SAW-1154/2019] no appeal lies under Section 10 of the Land Revenue Act against the decision of the Single Bench of the Board in the review petition. It is thereafter that he filed the writ petition, which was dismissed by the impugned order.
Shri Satya Narayan Kumawat, learned counsel for the appellant has argued that the learned Single Judge has failed to appreciate that the impugned judgment dated 28.2.2006 and 7.2.2007 passed in Review Petition No.92/2005 and application for leave to special appeal under Section 10 of Land Revenue Act against the judgement of learned Single Member of the Board of Revenue Ajmer are perse illegal, arbitrary, perverse, contrary to the provisions of Order 47 Rule 1 CPC read with Section 86 of the Land Revenue Act 1956. They have been passed against the material available on record and are not sustainable in the eye of law. They are therefore liable to be quashed and set aside and consequent thereto, the judgment passed by the Board of Revenue in Revision Petition No.30/2003, dated 7.12.2004 and dated 24.3.2003 passed by the Settlement Commissioner and dated 23.11.95 passed by the S.O Jaipur are liable to be upheld.
Learned counsel for the appellant further argued that the learned Single Judge has most seriously erred in having failed to consider that against the judgment dated 7.12.2004 passed by Shri Rajeev Swaroop, the Member of Board of Revenue, the respondent No.5 preferred a review petition before the Board, as Mr. Rajeev Swaroop was transferred, the sitting Member Mr. N.K. Jain after hearing the Review Petition allowed the same and set aside the order passed by the Board in revision petition. The Board committed gross error of law in not re-hearing the original revision on its merits. The Division Bench of the Hon'ble High (Downloaded on 30/09/2019 at 09:11:13 PM) (8 of 18) [SAW-1154/2019] Court in the case of Maji Mohan Kanwar and others versus the State of Rajasthan and Ors.AIR 1967 Raj 264 has held that Scheme of Order 47 CPC provides three stages for hearing after a review application is placed before the Judge or Judges under sub-Rule (1) of Rule 4. At that stage, if the Court is satisfied that one or more of the grounds detailed in Rule 1 is prima facie made out, it should order that notice to be issued to the opposite party to enable him to appear and be heard in support of judgment or order whose review is applied for. At that stage, if the Court comes to the conclusion that the application for review should be granted, then the third stage is reached under Rule 8 after the original case is registered and the court re-hears it on merits. After re-hearing the original case, it may either result in reversal or variation in the former judgment, decree or order.
Learned counsel for the appellant submitted that the learned Single Judge has failed to consider that the learned Board of Revenue further grossly erred in setting up entirely a new case at the stage of Review Petition and observing that from the revenue record, Khatedari of Shyam Sunder Bhatra in respect of Khasra No.1919/1/2 is proved and the same was not acquired by the RSEB for installation of 132 KV Grid Sub-Station at Chomu vide Gazette Notification dated 28.11.1970. Since no such ground is available for assuming that Khasra No.1919/1/2 has been wrongly recorded instead of Khasra No.1919/1 and the fact in dispute is proved from the entries of Mutation No.1296, the learned Single Member of Board grossly erred in placing reliance on entries made in Mutation No.1296. Since the mutation is a fiscal proceeding and does not confer any right, title or interest in favour of person (Downloaded on 30/09/2019 at 09:11:13 PM) (9 of 18) [SAW-1154/2019] whose name is shown in the mutation, this practice and approach so adopted by the learned Board is perse illegal, arbitrary and therefore is liable to be quashed and set aside in supervisory jurisdiction of this Court under Article 226 of the Constitution of India.
Learned counsel for the appellant contended that the learned Single Judge has failed to consider that the Board of Revenue further grossly erred in not taking into consideration that the Settlement Commissioner, Jaipur in its detailed judgment dated 24.3.2003 while dismissing the second appeal observed that the land bearing Khasra No.1919/1/2 did not exist on the date of its acquisition in the year 1970-71. Therefore, the purported sale deed dated 12.9.1973 (i.e. sale made after issuance of notification under Section 4 of the Land Acquisition Act) is ab-initio void and the delineation of separate Khasra No.1919/1/2 measuring 1 Bigha 3 Biswa was cancelled with the direction that this land be merged with the old Khasra No.1919/1 and also directed to cancel the mutation No.641 dated 28.2.1974 sanctioned on the basis of ab-initio void sale deed dated 12.9.1973 and accordingly the Settlement Commissioner Jaipur has quashed the orders of the Lower Courts dated 27.2.1991, 30.1.1991 and 13.11.1995.
Learned counsel for the appellant argued that learned Single Judge as well as learned Board of Revenue has ignored this vital aspect of the case that the Settlement Commissioner Jaipur has while exercising its appellate jurisdiction has on the basis of pleading and evidence held that the appellant Shyam Sunder Bhatra could not prove that the deceased Kanhiaylalal S/o Balu held more than 1 Bigha 3 Biswa land. This land stands acquired (Downloaded on 30/09/2019 at 09:11:13 PM) (10 of 18) [SAW-1154/2019] but the appellant under collusion with the revenue department wrongly got the said land recorded in the name of Kanhaiyalal S/o Balu in Khasra No.1919/1/2. The boundaries of the land as mentioned in the registered sale deed dated 12.9.1973 do not tally. The Court in para No.6 to 12 of the judgment in detail has held that the sale deed is in respect of the land, which is not in existence, therefore, it is ab-initio void.
Shri Rajendra Prasad, learned senior counsel for the respondents has opposed the appeal and submitted that the notification under Section 4 of the Land Acquisition Act, 1983 for acquiring the land of khasra no.1919/1 measuring 1 bigha and 3 biswas was issued on 24.2.1970. Possession of the land was taken over on 13.1.1971 by Municipal Board. The award for payment of compensation was passed by the Land Acquisition Officer on 31.1.1974. The appellant-Bajrang Lal Agarwal purchased the land measuring 32 bighas and 11 biswas much thereafter on 11.1.1982. The Settlement Officer therefore did not have any power to amend the notification of acquisition. The respondent no.5-Shyam Sundar Bhatra purchased the land measuring 1 bigha and 3 biswas of khasra no.1919/1/2. Khasra nos.1919/1, of which land was acquired and the land of khasra no.1919/1/2, which was purchased by respondent no.3 were both different lands and therefore were separately numbered, much prior to the acquisition proceedings. As per the Milan Khasra prepared at the time of subsequent survey by the Settlement Department, the new khasra nos.3849, 3851, 3852 and 3856 were given to the land of khasra no.1919/1/2, which is placed on record as Annexure-R-5/1. Shri Rajeev Swaroop, learned the then Member of the Board of (Downloaded on 30/09/2019 at 09:11:13 PM) (11 of 18) [SAW-1154/2019] Revenue by its judgement dated 7.12.2004 incorrectly held that khasra no.1919/1 was mentioned in the notification instead of khasra no.1919/1/2 by mistake. When original khasra no.1919/1 was mentioned in the notification under Section 4 of the Land Acquisition Act, no correction of that number could be made at the level of settlement authority. The notification for acquisition under Section 4 was issued on 24.2.1970, possession of the land was taken over on 13.1.1971 and the award was passed on 31.1.1974. If any mistake had actually crept in the notification issued by the State, it could be corrected by the State Government only and that too during acquisition proceedings. Reliance is placed on the judgement of the Supreme Court in Ram Kishan Jaiswal vs. Indian Institute of Technology-(2004) 13 SCC 412 and D.D.A. vs. Samay Singh-(2005) 13 SCC 682.
Shri Rajendra Prasad, learned senior counsel has argued that Settlement Commissioner as well as Single Member of the Board of Revenue Shri Rajeev Swaroop incorrectly and without jurisdiction interfered with acquisition notification after it became final. Since the judgement passed by the learned Single Member of the Board suffers from error apparent on the face of the record, the review petition was filed by respondent no.5 emphatically agitating the issue that khasra no.1919/1/2 was not subject matter of acquisition. Learned Member of the Board of Revenue in the review petition required Tehsildar, Chomu to submit complete report with regard to khasra no.1919/1/2. The Tehsildar, Chomu vide his letter dated 5.7.2002 submitted the report dated 9.7.2002 stating that the land of khasra no.1919/1/2 measuring 1 bigha 3 biswas was in the jamabandi of Svt. 2039-42 recorded in (Downloaded on 30/09/2019 at 09:11:13 PM) (12 of 18) [SAW-1154/2019] the khata of Shyam Sundar S/o Nathmal Bhagra and that the present khasra number of this land was 3849/0.11, 3851/0.02, 3852/0.08 and 3856/0.08, total measuring 4 rakba 0.29 hectares. The learned Board of Revenue has rightly allowed the review petition so as to correct the aforesaid error apparent on the face of record by learned Single Member vide order dated 7.12.2004.
Shri Rajendra Prasad, learned senior counsel submits that the appellant started interfering with the peaceful possession of respondent no.5. He filed a suit for permanent injunction in the Court of SDO, Chomu, which was decided vide judgement dated 27.10.2005, but the appellant was still interfering with the peaceful possession of respondent no.5. The suit was decreed in favour of respondent no.5 by issue of permanent injunction. In fact, he filed an application for treating khasra no.1919/1/2 in place of khasra no.1919/1. The finding recorded by the learned Member of the Board Shri Rajeev Swaroop that the land of khasra no.1919/1 could be treated as the land of khasra no.1919/1, had no basis. It is contended that once the land is acquired and possession is taken, it absolutely vests with the State Government from all encumbrances as provided under Section 16 of the Act. After passing of the award and taking over of possession, the land was recorded in the name of RSEB, much before the proceedings before Assistant Settlement Officer or Settlement Commissioner or Board of Revenue. The learned Member Shri Rajeev Swaroop was wholly unjustified in holding that the khasra no.1919/1/2 was by typing mistake written as 1919/1. Another Member of the Board Shri N.K. Jain, therefore, rightly held that on perusal of jamabandi of Svt.2019, the land of khasra no.1919/1/2 measuring 1 bigha (Downloaded on 30/09/2019 at 09:11:13 PM) (13 of 18) [SAW-1154/2019] and 3 biswas was recorded in the name of Kanhaiyalal S/o Balu. The corresponding year of Svt.2019 is 1961-62, which was much prior to starting acquisition proceedings. It cannot therefore be said to be a case of clerical mistake. After acquisition proceedings and the acquisition having attained finality, description of the land cannot be changed in the name of so-called typing mistake. The proceedings before the Land Acquisition Officer for correction of mistake, being summary in nature, the appellant had remedy of suit under Section 125 of the Land Revenue Act, which he did not avail. In fact, a suit filed at the instance of Ram Chandra and others is pending before the Additional Chief Judicial Magistrate. The order passed by the learned Board of Revenue in review petition is therefore perfectly just and legal and does not require any interference.
It is argued that the land of khasra no.1919/1/2 was existing even prior to enforcement of the Rajasthan Tenancy Act and much prior to the acquisition proceedings, which is evident from jamabandi khatauni of Svt. 2010 to 2023 and entry in khasra girdawari of Svt. 2016 to 2018 and 2029-2031. The copy of khasra milan kshetraphal of the land of old khasra no.1912/2 indicates that now after settlement, the new khasra nos.3855, 3854, 3848, 3850, 3853 and 3849/7487, 3852/7489 and 3851/7488 belongs to appellant. The jamabandi of Svt. 2057 to 2060 indicates that the land of khasra no.3849, 3851, 3852 and 3856 are recorded in the name of Shyam Sunder Bhatra. The report of Tehsildar indicates that land of old khasra no.1919/1/2 was never acquired in the name of acquisition proceedings for RSEB. The disputed land is situated near the boundary of RSEB (Downloaded on 30/09/2019 at 09:11:13 PM) (14 of 18) [SAW-1154/2019] from north side and as per the revenue records and witnesses, this land belongs to Shyam Sunder Bhatra. It is therefore that the impugned order is perfectly just and legal and does not call for interference by this Court, therefore, the appeal be dismissed.
We have given our anxious consideration to the rival submissions and perused the material on record.
The learned Single Member of the Revenue Board in the review petition examined the question whether the land of khasra no.1919/1/2 was independently entered in the revenue records or it was part of the land of khasra no.1919/1. On perusal of the jamabandi of Svt.2019, the Board concluded that the khasra no.1919/1/2 measuring 1 bigha and 3 biswas was recorded in the name of Kanhaiyalal S/o Balu. Thereafter, the land was purchased by the review petitioners from the legal heirs of Kanhaiyalal by registered sale deed dated 12.9.1973 and mutated in their favour vide mutation no.641 from 28.2.1974. The jamabandi of Svt.2039 to 2042 recorded this land in favour of Shyam Sunder Bhatra. The report of the Tehsildar dated 18.5.2000 also confirmed that the land of khasra no.1919/1/2 measuring 1 bigha and 3 biswas was recorded in the name of review petitioners and the new khasra numbers thereof were 3849 area 0.11 hectares, 3851 area 0.02 hectares, 3852 area 0.08 hectares and 3856 area 0.08 hectares. It is proved that the former khasra no.1919/1/2 was now entered as khasra nos.3849, 3851, 3852 and 3856 and that the former khasra no.1919/1 was separately in existence and was shown in different 10 numbers. The learned Board of Revenue therefore concluded that it is clear from the revenue records that khasra no.1919/1/2 min and khasra no.1919/1 min were two separate (Downloaded on 30/09/2019 at 09:11:13 PM) (15 of 18) [SAW-1154/2019] and independent khasra numbers. The fact that in revenue map, land of khasra no.1919/1/2 was not separately indicated, does not mean that this was not an independent khasra and was part of land of khasra no.1919/1. The learned Board of Revenue referred to the `girdavari' of Svt.2024 to 2026 and `jamabandi' of Svt.2019, in which khasra no.1919/1/2 measuring 1 bigha and 3 biswas was separately shown in the name of khatedar Kanhaiyalal S/o Balu and khasra no.1919/1 measuring 8 bighas and 8 biswas in the name of Ram Kishore, Anandi Lal Jodha, Balabux Vidhyadhar, Jagdish, Gheesa Lal B/c Brahmin as his khatedars. The notification u/s. 4 of the Land Acquisition Act was issued on 27.11.1970 to acquire land of khasra no.1919/1, measuring 1 bigha and 3 biswas for setting up 132 KV grid Sub-station, Chomu in favour of the RSEB, whereas the land of khasra no.1919/1/2 recorded in the name of review petitioners was of different number. Mutation no.1296 indicated that the total rakba of khasra no.1919 was 8 bighas and 8 biswas, out of which, 1 bigha and 3 biswas was mutated in favour of RSEB for 132 KV grid Sub-station and remaining 7 bighas and 5 biswas continued to be recorded in the name of Mohanlal etc. On this basis, the learned Board of Revenue has concluded that the stand of the appellant herein that land of khasra no.1919/1/2 was acquired for setting up of 132 KV grid Sub-station, was not proved.
The learned Board of Revenue in the order accepting the review petition has further held that there was no basis of the finding recorded by the Settlement Officer in his order dated 24.3.2003 that khasra no.1919/1 was mentioned in the notification of acquisition of RSEB due to typographical error and, (Downloaded on 30/09/2019 at 09:11:13 PM) (16 of 18) [SAW-1154/2019] in fact, it should have been 1919/1/2. The Board concluded that the Settlement Officer assumed this on the basis of the fact that in the revenue map, land of khasra no.1919/1/2 was not separately indicated, whereas in the revenue records and the report of the Tehsildar, it was clearly indicated separately and also that the land of khasra no.1919/1 measuring 1 bigha and 3 biswas was acquired for setting up of 132 KV grid Sub-station of RSEB and that the land of khasra no.1919/1/2 was never acquired and it was in existence independently. The Board therefore concluded that the Settlement Commissioner without any basis merely on assumption or inference that the acquisition of the land of khasra no.1919/1 was result of typographical error and, in fact, the land of khasra no.1919/1/2 should have been indicated which by mistake was indicated as khasra no.1919/1 and the learned Single Member of the Revenue Board Shri Rajeev Swaroop accepted that assumption as correct and wrongly rejected the revision petition, which amounted to error apparent on the face of record because the land of khasra no.1919/1/2 was neither acquired, nor was there any basis for arriving at the conclusion that the acquisition of the land of khasra no.1919/1 was result of typographical error. In fact, the land of khasra no.1919/1/2 was expected to be acquired. This was substantiated from the fact that while total rakba of the land measuring 1919 was 8 bighas and 8 biswas, out of which after acquisition of 1 bigha and 3 biswas for 132 KV grid Sub-station, the remaining rakba of 7 bighas and 5 biswas was continued to be recorded in the name of khatedars as evident from mutation number 1296.
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(17 of 18) [SAW-1154/2019] In our considered view, the learned Single Judge in the impugned order relying on various judgements of the Supreme Court viz. Waryam Singh vs. Amarnath-AIR 1954 SC 215, Bathutmal Raichand Oswal vs. Laxmibai R. Tarta-(1975) 1 SCC 858 and Nagendra Nath Bora vs. Commissioner of Hills Divisions- AIR 1958 SC 398, has rightly held that the power of superintendence conferred on this Court under Article 227 of the Constitution of India being extraordinary was to be exercised most sparingly and only in appropriate cases. This Court while exercising jurisdiction under Article 227 interfere with the findings of fact recorded by the subordinate court or Tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or re-appreciating it.
Powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.
On perusal of the order of the Board of Revenue passed in the review petition, we are inclined to uphold the contention that the learned Board of Revenue, when originally dismissed the revision petition, merely upheld the order of Settlement Commissioner considering the reasoning given by him that the inclusion of the land of khasra no.1919/1 in the notification of acquisition and the award of land acquisition was result of (Downloaded on 30/09/2019 at 09:11:13 PM) (18 of 18) [SAW-1154/2019] typographical error, but later the Board of Revenue in review petition found it to be an error apparent on the face of record as he called for a detailed report from Tehsildar and reached at the truth. In any case, the correction in the number of khasra in the notice for acquisition issued under Section 4 and 6 of the Act could have been made only by State Government, which had acquired the land and not subsequently after many years thereafter in this manner by the Settlement Officer or the Settlement Commissioner. The Board in our view, in the review petition has rightly overturned its earlier judgement. Rather than reviving the revision petition for duplication of the proceedings to re-hear the same and then pass the same order again, the Board cannot be said to have committed any such error as may warrant interference by this Court.
We are not inclined to uphold the argument that the appeal against the judgement of the Board passed in revision petition should have been entertained by the division bench of the Board. It is only if the Board in the Single Bench has decided an appeal that subsequent appeal before the division bench of Board could have been entertained and therefore the revision petition was rightly entertained and allowed.
In view of above discussion, we do not find any merit in this appeal, which is accordingly dismissed.
(PRAKASH GUPTA),J (MOHAMMAD RAFIQ), Acting CJ RAVI SHARMA /31 (Downloaded on 30/09/2019 at 09:11:13 PM) Powered by TCPDF (www.tcpdf.org)