Balu Ram vs Board Of Revenue Ajmer And Ors
2021 Latest Caselaw 8868 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5108/2020

Balu Ram S/o Shri Goru Ram, Aged About 76 Years, B/c Jat, R/o Village Sandan, Tehsil Sujangarh, District Churu (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Revenue, Government Of Rajasthan, Jaipur.

2. District Collector, Churu.

3. Tehsildar (Revenue), Sujangarh, District Churu.

----Respondents Connected With S.B. Civil Writ Petition No. 3539/2014 Balu Ram

----Petitioner Versus Board Of Revenue Ajmer And Ors

----Respondent

For Petitioner(s) : Mr. Moti Singh For Respondent(s) : Mr. Ram Dayal Choudhary, Dy.Govt.

Counsel

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Reportable

Reserved on 23/03/2021 Pronounced on 06/04/2021

1. In wake of onslaught of COVID-19, abundant caution is being

taken while hearing the matters in Court.

2. Learned counsel for the parties have jointly pleaded for final

disposal of these petitions at this stage. Accordingly, the matters

were heard finally at this stage itself.

3. These writ petitions under Article 226 of the Constitution of

India have been preferred claiming the following reliefs:

(2 of 15) [CW-5108/2020]

S.B. Civil Writ Petition No. 5108/2020:

"1. By an appropriate writ, order or direction may issued and, quash the Order dated 24.08.2018 (Annexure-4) passed by learned Tehsildar, Sujangarh and the order dated 03.01.2020 (Annexure-7) passed by the Sub Tehsildar, Salasar, may also quashed and set aside.

2. Any other appropriate writ, order or direction, which this Hon'ble Court may deem it just and proper in the facts and circumstances of the case may kindly be issued.

3. Costs of this writ petition may kindly be may kindly be awarded in favour of the petitioner."

S.B. Civil Writ Petition No. 3539/2014 "1. Court may be pleased to issue appropriate writ, order or direction, quash the order dated 13.02.2014 (Annexure-

3) passed by learned learned Board of Revenue, Ajmer in Reference Number 4234/2007 Churu may kindly be quashed and set aside.

2. By an appropriate writ, order, direction, the application u/s 82 of the L.R. Act dated 14.06.2006 preferred by Tehsildar (Annexure 1) may kindly be dismissed.

3. Any other writ, direction or order necessary for ends of justice be issued.

4. Cost of writ petition be awarded."

4. At the outset, learned counsel for the petitioner submitted

that during pendency of the above-numbered WP No.3539/2014,

the Tehsildar, Sujangarh, District Churu passed an order dated

24.08.2018 and directed to dispossess the petitioner from the land

in question and also initiated the proceeding against him, followed

by an order dated 03.01.2020 in regard to ejectment of the

petitioner from the land in question, and therefore, another

above-numbered WP No.5108/2020 has also been preferred by

the same petitioner-Balu Ram s/o Shri Goru Ram.

5. Learned counsel for the petitioner thereafter, submitted that

the petitioner is a khatedar cultivator of the land in khasra

Nos.553 (Rakba 05 bigha), 561 (Rakba 01 bigha 05 biswa), and

562 (Rakba 10 bighas) - total 16 bigha 05 biswa - situated at

Village Khudi, Tehsil Sujangarh, District Churu.

(3 of 15) [CW-5108/2020]

6. Learned counsel for the petitioner further submitted that the

land in question was purchased by the petitioner through a

registered sale deed dated 14.06.1976 from one Narendra Singh

s/o Shri Devi Singh, the erstwhile khatedar of the land.

7. Learned counsel for the petitioner also submitted that the

controversy arose when Tehsildar, Sujangarh, District Churu filed a

reference application under Section 82 of the Rajasthan Land

Revenue Act, 1956 before the District Collector, Churu, requesting

to send the reference to the learned Board of Revenue, Rajasthan,

Ajmer, on the ground that the land in question belonged to Gair

Mumkin Johad, at the time of settlement. The Tehsildar, Sujangarh

also stated in the said application that since the land was reserved

as Johad Refaey Aam, therefore, the entry in the name of

Narendra Singh as Khatedar was illegal, and thus, the land

deserved to be recorded as Johad, while cancelling the Khatedari,

as subsequently held by the petitioner, pursuant to execution of

the aforementioned registered sale deed.

8. Learned counsel for the petitioner further submitted that

thereafter, the aforementioned reference application, upon being

transferred from the District Collector, Churu to the Additional

Collector, Churu, was registered, and thereafter, an ex parte order

dated 30.03.2007 was passed by the Additional Collector, Churu,

and accordingly, the reference was sent to the learned Board of

Revenue, Rajasthan, Ajmer. As per the learned counsel, the said

order was passed, even without effecting service of notice of the

said proceeding upon the petitioner.

9. Learned counsel for the petitioner also submitted that

thereafter, upon hearing the parties, reference case was allowed

by the learned Board of Revenue vide its order dated 13.02.2014,

(4 of 15) [CW-5108/2020]

while directing the Tehsildar that the mutation entry, in respect of

the land bearing khasra Nos.553 (rakba 5 bigha), 561 (rakba 1

bigha 5 biswa) and 562 (rakba 10 bigha), be cancelled i.e.

cancellation of khatedari of the petitioner in respect of the land,

and accordingly, the land in question was directed to be re-

entered in the revenue records as Gair Mumkin Johad Refaey

Aam.

10. Learned counsel for the petitioner further submitted that

from a bare perusal of Jamabandi Samwat 2002 and 2011 to

2013, it is clear that the land in Khasra No.257 was entered in two

parts; one part with regard to 16 biswa i.e. Gair Mumkin Johad,

and the remaining 16.4 bigha of land was classified and recorded

as Banjar land. Learned counsel also submitted that in Samwat

2002, the land was not recorded as Government land, and at that

time, the land was recorded in the name of Thakur Devi Singh and

others as Khata No.1. As per learned counsel, in such Jamabandi,

the Gair Mumkin land was entered only to the extent of 16 biswa,

while the remaining 16.4 bigha of land was entered as Banjar

Mumkin land, and thus, it is clear that the 16.4 bigha of land was

neither Johad, nor restricted in nature.

11. Learned counsel for the petitioner further submitted that the

aforementioned order of the learned Board of Revenue is unlawful,

because the settlement operation was conducted in Vikram

Samwat 2011 to 2013, and a Jamabandi was prepared according

to survey of land, and khasra No.257 was not a part of Johar Rifah

Aam of Village Khudi, which is clear from the Jamabandi of

Samwat 2011. Learned counsel also submitted that only khasra

No.267 (rakba 16 biswa) was part of Johad, while the remaining

khasras were not part thereof.

(5 of 15) [CW-5108/2020]

12. Learned counsel for the petitioner further submitted that in

Samwat 2028, the Settlement Department issued a notification

with regard to survey and settlement under the provisions of

Chapter-8 of the Rajasthan Land Revenue Act as well as Rajasthan

Land Revenue (Survey, Record & Settlement) (Government) Rules,

1957. Learned counsel also submitted that thereafter, in

pursuance of the settlement operation so conducted, old khasra

No.257 was given a new identity through Milan Kshetrafal, and

according to which, 17 bigha of land of the old khasra No.257 was

given a new identity as khasra No.553 (rakba 5 bigha), 560 (rakba

15 biswa), 561 (rakba 1 bigha) and 552 (rakba 10 bigha).

13. Learned counsel for the petitioner also submitted that khasra

No.560, which was part of the Johad, was recorded as a

Government Sivayachak Public Utility Land, which is clear Missal

Bandobast of Samwat 2028-47, and thus, the land pertains to

Johad was already set apart as a Government land being new

khasra No.560, and at present, such land was recorded as khasra

No.560 (rakba 2.8 bigha), which is clear from concerned Missal

Bandobast.

14. Learned counsel for the petitioner further submitted that

after completion of the settlement operation, the Jamabandi was

prepared by the Revenue Department and the aforementioned 16

bigha of land was given in Khatedari to Narendra Singh.

15. Learned counsel for the petitioner also submitted that from a

bare perusal of Missal Bandobast, it is clear that 16 biswa of land,

which was recorded as Johad Refayaam in Samwat 2002 and

2011, remained intact, and the nature thereof was also not

changed. Learned counsel also submitted that the said 16 biswa of

land was entered in khasra No.560, which is existing till today, as

(6 of 15) [CW-5108/2020]

government public utility land, and thus, the learned court below

has committed an error while treating the entire land as Johad

Refaey Aam, and even the Additional Collector in its order dated

30.03.2007 clearly indicated that only 16 biswa of land was

recorded as Gair Mumkin, and remaining 16.4 bigha as Banjar.

16. Learned counsel for the petitioner also submitted that Rule

39 of the Rajasthan Land Revenue (Survey, Record & Settlement)

Rules, 1957, makes it clear that though the Banjar land is an

uncultivated land, but the same is not restricted in nature.

Learned counsel however, submitted that the land entered as Gair

Mumkin is given under clause D of the Table of Rule 39, and such

Gair Mumkin land was classified as uncultivable land.

17. Learned counsel for the petitioner further submitted that the

resettlement operation in Village Khudi was conducted in Samwat

2028, whereupon khasra No.257 (Rakba 17 bigha) was divided

into khasra Nos.553 560, 561 and 562. Learned counsel also

submitted that the land in khasra No.553, 561 and 562 was

entered in the name of Narendra Singh, while the land in khasra

No.560 (Rakba 2 bigha 8 biswa) was entered as Gair Mumkin

Raasta, in the name of Government of Rajasthan, which is clear

from khatauni Bandobast Samvat 2028-2047.

18. Learned counsel for the petitioner further submitted that

Narendra Singh, at the relevant time, was khatedar of the land,

and thus, was legally entitled to transfer the land, and accordingly,

the said land was transferred by him to the petitioner, by way of

the aforementioned sale deed, whereupon necessary mutation

was also entered on 12.05.1981 in the name of the petitioner, in

accordance with the said sale deed.

(7 of 15) [CW-5108/2020]

19. Learned counsel for the petitioner also submitted that the

land in khasra No.257 was neither recorded as Gair Mumkin Johad

at the time of settlement, nor it was a part of the government

land.

20. Learned counsel for the petitioner further submitted that the

learned Board of Revenue has failed to consider the revenue

record, and even the Tehsildar has not submitted any record

before the learned Board of Revenue. Learned counsel also

submitted that the learned Board of Revenue, while passing the

impugned order, relied upon the Jamabandi of Bikaner State

Samwat 2002, whereas such document was not a valid document.

Learned counsel also submitted that after a delay of 31 years,

such reference application ought not to have been entertained,

but as a consequence of allowing such an application, the status of

the land in question has been reversed.

21. Learned counsel for the petitioner further submitted that the

learned Board of Revenue has also relied upon the Jamabandi of

Samwat 2011, whereas on a bare perusal of the record, it is clear

that khasra No.267 was a part of Gair Mumkin Johad, while khasra

No.257 was divided into new khasras i.e. khasra No.553, 560, 561

and 562, and thus, khasra No.257 was not a part of Gair Mumkin

Johad.

22. Learned counsel for the petitioner relied upon the judgment

rendered by a Division Bench of this Hon'ble Court at Jaipur Bench

in Anandi Lal Vs. State of Rajasthan & Ors., reported in

(1996) 0 AIR (Raj.) 154 to contend that the power of reference

under Section 82 of the Rajasthan Land Revenue Act cannot be

exercised after an unreasonably long period of time, and thus,

mutation entry made, pursuant to the registered sale deed, in

(8 of 15) [CW-5108/2020]

favour of the present petitioner, way back in the year 1981,

cannot be cancelled, more so, when he is having possession of the

land, and at the same time, acquired necessary khatedari rights.

23. Reliance has also been placed by learned counsel for the

petitioner on the judgment rendered by this Hon'ble Court at

Jaipur Bench in Babu Singh Vs. Board of Revenue & Ors.,

reported in RLW 2009 (2) RJ 969 (HC) and submitted that in

the said case, the reference was made after 35 years, while

khatedari rights were conferred way back in the year 1958. In the

said case, it was held that after an inordinate delay of 35 years,

neither the title nor possession of the said land can be disturbed.

24. Learned counsel for the petitioner has further placed reliance

on the judgment rendered by this Hon'ble Court at Jaipur Bench in

Kali Charan & Anr. Vs. Board of Revenue & Anr., reported in

2005 RRD Nov. 713, wherein, while allowing the said petition, it

was held that the Additional Collector and Board of Revenue, in

the said case, had exercised the powers under Section 82 of the

Rajasthan Land Revenue Act after about 30 years, and therefore,

such exercise of power is unjust.

25. Learned counsel for the petitioner has also relied upon the

judgment rendered by this Hon'ble Court at Jaipur Bench in

Somoti Devi Vs. State of Rajasthan & Ors., reported in 2005

RRD Oct. 669, wherein it was held that once the khatedari rights

having been acquired by the petitioner therein without playing any

fraud, then such khatedari rights cannot be cancelled by way of

exercising the power of reference, that too, after an unreasonable

delay of 35 years.

26. Reliance has also been placed by learned counsel for the

petitioner on the judgment rendered by a Division Bench of this

(9 of 15) [CW-5108/2020]

Hon'ble Court at Jaipur Bench in Bharat Ram & Anr. Vs. Board

of Revenue & Ors., reported in RLW 2006 (1) RJ (Raj.) 66,

wherein it was held that only in those cases, where an order has

been obtained by fraud, the power of reference can be exercised,

even after an unreasonable delay, and not otherwise.

27. Learned counsel for the petitioner has also relied upon the

judgment rendered by a Division Bench of this Hon'ble Court in

State of Raj. Vs. Teja & Ors., reported in 2005 RRD June

365, wherein it was held that the since respondent therein had

acquired the khatedari rights and continued in possession of the

land for a number of years, therefore, his rights cannot be called

in question after an unreasonable delay, in absence of a positive

case of fraud on account of collusion between the public officer

and the private party.

28. On the other hand, learned Deputy Government Counsel

appearing on behalf of the respondents has drawn the attention of

this Court towards Section 16 of the Rajasthan Tenancy Act, 1955,

which reads as under:

"16. Land in which Khatedari rights shall not accrue-- Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in-

(i) pasture land;

(ii) land used for casual or occasional cultivation in the bed of river or tank;

(iii) land covered by water and used for the purpose of growing Singhara or other like produce;

(iv) land under shifting or unstable cultivation;

(v) land comprised in gardens owned and maintained by the State Governments;

(vi) land acquired or held for a public purpose or a work of public utility;

(10 of 15) [CW-5108/2020]

(vii) land which, at the commencement of this Act or at any time thereafter, is set apart for military encamping grounds;

(viii) land situated within the limits of cantonment;

(ix) land included within railway or canal boundaries;

(x) land within the boundaries of any Government forest;

(xi) municipal trenching grounds;

(xii) land held or acquired by educational institutions for purposes of instruction in agriculture or for play- ground; and

(xiii) land within the boundaries of a Government agricultural or grass farm;

(xiv) land which has been set apart or is, in the opinion of the Collector, necessary for flow of water thereon in to any reservoir or tanka for drinking water for a village or for surrounding villages: Provided that the State Government may, by notification in the Official Gazette declare that any land which is under shifting or unstable cultivation, shall cease to be a land for such cultivation and thereupon such land shall be available for the grant of Khatedari rights and the State Government may by a like notification, declare that any land which was not at the commencement of this Act under shifting or unstable cultivation shall at any time after such commencement be under such cultivation from such date as may be specified in the notification and thereupon such land shall be available for such cultivation."

Learned Deputy Government Counsel thus submitted that the land

in question was recorded as Johad Paytan and the same is a

catchment area, over which tenancy right cannot accrue; however,

the petitioner, under the garb of his allotment, has encroached

upon such land recorded as Johad Paytan.

29. Learned Deputy Government Counsel also submitted that in

the matter of Jagpal Singh & Ors. Vs. State of Punjab & Ors.

(SLP No.3109/2011) decided on 28.01.2011, the Hon'ble Apex

(11 of 15) [CW-5108/2020]

Court directed all the States for preparation of schemes for

eviction of illegal/unauthorized occupants of such lands, which are

for common use of villagers of the concerned village(s), and also,

restoration thereof for such usage.

30. Learned Deputy Government Counsel further submitted that

so far as the land in question is concerned, the same was recorded

as Johad Payatan in the records of right. He has also referred to

the judgment rendered by a Division Bench of this Hon'ble Court

in Abdul Rahman Vs. Board of Revenue & Ors. (D.B. Civil

Writ Petition (PIL) No.1536/2003, decided on 21.07.2008),

and submitted that in the said judgment, certain directions were

issued to the State Government to remove encroachment from the

catchment area of the water bodies.

The observations made in the aforesaid judgment (as

reproduced in the reply filed on behalf of the respondents

in WP No.3539/2014) is quoted hereinbelow:

"Constitution of India, 1950- Article 226 - P.I.L.- Healthy environment - Gair mumkin nadi - Construction in catchment area - Nadi land cannot be used for construction purposes - Direction issued to restore the catchment areas to its original shape.

- - - -utilization of the catchment areas for construction and mining purposes which has prevented lakes, reservoirs, rivers, ponds etc. from receiving water during the rainy season.

- - - -All land shown as drainage channels like nalla, rivers, tributaries etc. as on 15-08-1947 should be declared as Govt. land. Any conversions made after 15-08-1947 should be declared illegal. The relevant Act and Rules must be amended accordingly.

- - - - Having given thoughtful consideration to the issue involved and the suggestions made, we direct the state government to consider the recommendations of the committee referred to above and chalk out a plan to take the effective steps for restoring the catchment areas to their original shape.

(12 of 15) [CW-5108/2020]

It is made clear that this order will not prevent the State Authorities from drawing up or taking further steps more effectively to fulfill the objects of the directions issued by this Court. Three month's time is granted for giving positive shape to the suggestion. The interim order dated 09-04-2003 granted by this Court is made absolute."

31. Learned Deputy Government Counsel has also referred to the

judgment rendered by this Hon'ble Court at Jaipur Bench in Suo

Moto Vs. State of Rajasthan (S.B. Civil Writ Petition

No.11153/2011 decided on 29.05.2012) and submitted that in

the said order, specific directions were issued, restraining

allotment of the land falling in catchment areas of water reservoirs

like Johar, Nala, Tank, River Pond etc., with the further direction

that the appropriate action shall be taken for cancellation of the

allotment made in defiance of Section 16 of the Rajasthan Tenancy

Act.

32. Learned Deputy Government Counsel has further referred to

the judgment rendered by this Hon'ble Court in Gulab Kothari

Vs. State of Rajasthan, reported in (2017) 2 RLW 1178, in

particular, the following portion of the said judgment:

"205. In the result, having regard to the aforesaid conclusions arrived at, we issue the following directions:

(xxxi) The State Authorities shall take effective steps for conservation and preservation of natural resources i.e. hills, forests, rivers, other water bodies and catchment area. Further, the State Authorities shall undertake a drive to remove all encroachments made over the natural resources noticed hereinabove and the unauthorized activities operating thereon and shall restore such natural resources by taking appropriate action including the cancellation of allotment made in defiance of provisions of Section 16 of the Act of 1955."

(13 of 15) [CW-5108/2020]

Learned Deputy Government Counsel thus, submitted that the

encroachment made by the petitioner over the land recorded as

Johad Paytan is liable to be removed.

33. Learned Deputy Government Counsel has also relied upon

the judgment rendered in Kanti Lal Vs. State of Rajasthan &

Anr., reported in 2019 (1) CJ (Civ.) (Raj.) 153, relevant

portion of which reads as under:-

"16. Under the law if the tank, nadi or talab is required to be protected, then obviously, its boundary and catchment area are also required to be protected and thus, nothing turns on the question that according to the private respondents earlier in the revenue record the land alleged to have been regularised in their favour, comprising Khasra No.407 was shown in the revenue record as 'Talab Ki Pal' and not 'gair mumkin nadi' as such. As a matter of fact in the order dated 31.7.85 passed by the Tehsildar, Aburoad, regularising possession of father of the private respondents over the land measuring 755 sq. Yard comprising Khasra No.529, it is specifically observed that land sought to be regularised forms part of 'gair mumkin nadi'."

34. Learned Deputy Government Counsel also submitted that the

land in question i.e. land comprised in Khasra Nos.553 (05 bigha),

561 (1.05 bigha) and 562 (10 bigha), which was earlier recorded

as Khasra No.257 measuring 17 bigha, was recorded as Johad

Paytan land. Learned Deputy Government Counsel further

submitted that during the settlement proceedings, the Settlement

Department had allotted new Khasra numbers, and Johad Paytan

was recorded as Gair Khatedari land of the private respondents,

whereas there was no allotment order available on record to show

(14 of 15) [CW-5108/2020]

the land in question as Gair Khatedari land, nor the land in

question could have been allotted under the provisions of the

Rajasthan Tenancy Act.

35. Learned Deputy Government Counsel further submitted that

neither the private respondents were eligible and entitled for

allotment and regularization of the land in question, nor such land

can be allotted/regularized in favour of any person, as the same is

being recorded as Johad Paytan land in the records of right, which

is also amply clear from a bare perusal of the record of the case.

36. Learned Deputy Government Counsel thus, submitted that

the action of the respondents is perfectly legal, valid and justified,

as they have acted well within their jurisdiction and in accordance

with law, which is governing the field.

37. After hearing learned counsel for the parties as well as

perusing the record, alongwith the precedent laws cited at Bar by

both the sides, this Court is of the firm opinion that once the State

has found the land in question to be belonging to Johad Paytan,

which is not only a common land, but is a prohibited land, for

which even no allotment can be made. No limitation can defeat

the status of the prohibited land being allotted, and such a

precious natural resource has to be protected even after passage

of a long time.

38. Moreover, the record, as entered earlier, does not create any

right in favour of the petitioner, because it was wrongly entered,

and the land in question is undisputedly a Joyad Paytan land,

which is barred to be allotted or owned by anyone, in light of a

conjoint reading of the precedent law laid down in Jagpal Singh

& Ors. (supra), Abdul Rahman (supra), Suo Moto Vs. State

(15 of 15) [CW-5108/2020]

of Rajasthan (supra), Gulab Kothari (supra) and Kanti Lal

(supra).

39. The judgments cited by learned counsel for the petitioner do

not substantiate the case of the petitioner, as the aforementioned

precedent laws cited by the learned Deputy Government Counsel

appearing on behalf of the respondents are directly applicable.

40. Thus, for the foregoing discussion and on a careful

examination of the record, this Court does not find any error in

the impugned orders, so as to make any interference in the

present petitions.

41. Consequently, the present petitions are dismissed. The stay

applications also stand dismissed. All pending applications stand

disposed of accordingly.

(DR. PUSHPENDRA SINGH BHATI),J.

SKant/-

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