Rajasthan High Court - Jodhpur
Bhuria vs Board Of Revenue,Ajmer & Ors on 30 August, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
CIVIL WRIT (CW) No.954 of 1995
LRS OF BHURIA
VS.
BOARD OF REVENUE, AJMER & ORS.
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
Date of Order: 30.8.2016 HON'BLE MR.SANGEET LODHA,J.
Mr.Sudheer Sharma, for the petitioners. Mr.O.P.Boob, Government Counsel. Mr.S.M.Parihar, for the respondent no.4.
1. This petition is directed against order dated 26.12.94 of Board of Revenue Rajasthan, Ajmer, whereby while accepting the reference made by the Additional Collector, Jalore, under Section 82 of Rajasthan Land Revenue Act, 1956 (for short "the Act"), the khatedari rights over the land measuring 27.09 bighas comprising Khasra No.76 situated at Revenue Village-Sayla, District-Jalore, stands restored in the name of 'Doli Banam Mandir Shri Mahadeoji'.
2. The relevant facts are that Asha Bharti, Chela CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
2 Alka Bharti, Mandir Math, made an application under Section 82 of the Act, stating that the land comprising Kharsa No.176, which was entered in the name of 'Doli Banam Mahadeoji Mandir Math Ba- Etmam Pujari' has wrongly been recorded in the name of Bhuria s/o Dharma Bhambhi, the petitioner herein as khatedar, whereas, he was cultivating the land as Hali. It was contended that the deity being perpetual minor, no khatedari rights can be granted to any person over the land belonging to deity. The application was allowed by the Additional Collector, Jalore, vide order dated 20.3.93 and the matter was referred to the Board of Revenue for directions to make necessary correction in the revenue record.
3. After due consideration of the rival submissions, the Board opined that even though the land in question was in doli of deity, since the idol is a perpetual minor, khatedari right cannot be granted to any person over such land. Accordingly, accepting CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
3 the reference, the Board ordered that land should be restored back into the khatedari of deity. Hence, this petition.
4. Learned counsel appearing for the petitioners contended that the petitioners were entered as khatedar in the record pertaining to Samvat 2009 to 2028 and therefore, the khatedari right having accrued to them prior to resumption of Jagir, the same cannot be taken away after so many years. Learned counsel submitted that the reference was made by the Additional Collector after lapse of more than 35 years and therefore, the Board has seriously erred in entertaining the reference so as to disturb the settled khatedari rights of the petitioners over the disputed land. Learned counsel submitted that the controversy involved in the present writ petition stands squarely covered by a Full Bench decision of this Court in 'Tara & Ors. Vs. State of Rajasthan & Anr.' (2015) WLN 193.
CIVIL WRIT (CW) No.954 of 1995
LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
4
5. On the other hand, learned Government Counsel reiterating the stand taken before the Board of Revenue submitted that in respect of the land belonging to deity, a perpetual minor, no khatedari rights accrues in favour of anybody and therefore, the petitioners have been wrongly recorded as khatedar of the disputed land. However, it is not disputed by the learned Government Counsel that the land was in doli of deity and the petitioners were recorded as khatedar tenant of the land in question from Samvat 2009 to 2028.
6. I have considered the rival submissions and perused the material on record.
7. Indisputably, the land in question was held by the deity Shri Mahadeoji as Doli, which as per the provisions of Schedule-I of the Rajasthan Land Reforms & Resumption of Jagirs Act, 1952 (for short 'the Act of 1952') is included in the land held in jagir.
8. A perusal of the order impugned passed by the CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
5 Board of Revenue reveals that the deity is restored as khatedar tenant of the land in question, observing that being perpetual minor, no khatedari right accrues in favour of anybody else, ignoring that the land held by deity in doli stands resumed after coming into force of the Act of 1952 and the land stood vested in the State.
9. The factum of resumption of jagir of deity is not disputed before this court. The documents available on record shows that in Samvat 2009 to 2028, the petitioners were recorded as khatedar tenant of the land. It is not even the case set out by the respondents that the land was being cultivated by the deity as khudkhast and thus, after resumption of jagir of deity, the land stood vested in the State and the petitioners who were cultivating the land not as Pujari/Mahant/Shebait of the deity even otherwise became the khatedar tenant of the land held by the State.
CIVIL WRIT (CW) No.954 of 1995
LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
6
10. In Tara's case (supra), a Full Bench of this Court while considering the issue with regard to the land held by deity as jagir in terms of provisions of Schedule I of the Act of 1952, held :
"20. The legislature by enacting Jagirs Act of 1952 included the Doli and Muafi lands of the deity as jagirs. Schedule I of the Jagirs Act of 1952 included the land held in Jagirs as Doli and Maufi. All the lands were resumed by the State vide Notification issued under section 21 of the Jagirs Act of 1952. No Jagir of any deity was resumed prior to coming into force of the Rajasthan Tenancy Act, 1955 on 15.10.1955. The consequences of resumption, which was held to be acquisition by the Supreme Court in Thakur Amar Singhji & ors. V/s State of Rajasthan & ors.(supra) are given in Section 22 of the Jagirs Act of 1952. Section 22(1)(a) provides that the right, title and interest of the Jagirdar and every other person claiming through him shall stand resumed to the Government free from all encumbrances, The deity, therefore, even if it is to be treated as perpetual minor, ceased to have any interest or right in the jagir lands in which deity was recorded as Dolidar or Muafidar. Section 23 of the Jagirs Act of 1952 permitted the Jagirdar to continue in possession of the lands, which were khudkasht on the date of resumption of jagir. It was necessary for all Jagirdars including Hindu Idol (deity) that they had khudkasht lands before claiming khatedari rights in the area of lands held as khudkasht. The right and title of the persons claiming through the Deity were CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.7
not different than that of deity. Their rights were also resumed under Section 22(1) of the Jagirs Act of 1952. They did not have any independent right other than rights of Hindu Idol (deity). Section 9 of the Jagirs Act of 1952 allowed the khatedari rights of the tenant on which they had direct relations with the State Government. Section 22(1) of the Jagirs Act of 1952 provided that the right and title of the person claiming through Hindu Idol (deity) also stood resumed to the State. (Emphasis supplied) xxxx
25. In our opinion, on the aforesaid settled principles of law, the Hindu idol (deity) could only hold such lands in Jagir, which Shebait/Pujari was cultivating for such deity, having direct nexus with agricultural operations either themselves or through hired labour or servant engaged by them as to claim to be khudkasht and to be protected from resumption/acquisition under the Jagirs Act of 1952. If the land was given for cultivation to a tenant or was cultivated through a tenant, such land became khatedari of the tenant and on which the tenant had direct relations with the State. The Jagirs Act of 1952 took away all the rights of the Jagirdars including Hindu Idol (deity) as Dolidar or Muafidar on the land cultivated by the tenants. They ceased to have any right on such land. The Shebait/Pujari could not have any independent status to have claimed any right over such land cultivated by tenants. Such tenancy could also not be regarded as sub-tenant of Hindu Idol (deity) to confer any right on the Hindu Idol (deity).
26. In view of the above discussion, we decide CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
8 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 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/Purjari 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. (Emphasis supplied)
11. Keeping in view the law laid down by the Full Bench in Tara's case, this Court is firmly of the opinion that after resumption of jagir of deity, the petitioners herein who were cultivating the land, acquired khatedari right and thus, the Board of CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
9 Revenue has erred in cancelling the khatedari of the petitioners and restoring back the deity as khatedar tenant of the land in question.
12. There is yet another aspect of the matter. In the instant case, admittedly the petitioners were recorded as khatedar tenant of the land and the mutations in their land were effected in the year 1957 and the reference for cancellation of the khatedari rights of the petitioners was made by the Additional Collector on 20.3.93 i.e. after a lapse of about 35 years. In Tara's case (supra), while dealing with the question regarding the reference being made with inordinate delay, the Full Bench held :
"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 CIVIL WRIT (CW) No.954 of 1995 LRS OF BHURIA VS.
BOARD OF REVENUE, AJMER & ORS.
10 exercised after unreasonable period, such as, after several decades claiming rights over the land."
13. On the facts and in the circumstances of the case, where the petitioners were cultivating the land for all these years and they were entered as khatedar tenant of the land in the year 1957 in absence of any allegation of fraud, the reference made after inordinate delay of 35 years does not appear to be justified.
14. In view of the discussion above, the order impugned passed by the Board of Revenue is not sustainable in the eyes of law.
15. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 26.12.94 of Board of Revenue Rajasthan, Ajmer in Reference No.168/93/LR/Jalore is set aside. No order as to costs.
(SANGEET LODHA), J.
aditya/