All Panchas Kumawatan Samaj vs Board Of Reveneue Rajasthan
2022 Latest Caselaw 2075 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16521/2019 All Panchas Kumawatan Samaj, Through Representatives 1. Kishan Lal S/o Shri Panna La Kumawat, Aged About 60 Years, 2. Khem Raj S/o Shri Srilal Kumawat, Aged About 7O Years, Both By Caste Kumawat, Residents Of Sanwad, Tehsil And District - Rajsamand (Rajasthan). (Two Of The Representatives, Bhanwar Lal And Bholi Ram Expired Hence Not Arrayed As Party In The Present Case)

----Petitioner Versus

1. Board Of Reveneue Rajasthan, Ajmer.

2. Lrs Of Late Narayan Das, Guru Mahant Basudev Ji

3. Shri Muni Ramdas, Resident Of Rokadiya Hanuman Ji, Charbhuja (Gadbore), Tehsil - Kumabhalgarh, District - Rajsamand (Rajasthan).

4. Gram Panchayat Boraj, Through Its Sarpanch, Gram Panchat Boraj, Tehsil And District - Rajsamand (Rajasthan).

5. Amba Lal S/o Shri Gordhan Lal Kumawat, Resident Of Village Sanwad, Tehsil And District - Rajsamand (Rajasthan).

6. Ramchandra S/o Shri Gordhan Lal Kumawat, Resident Of Village Sanwad, Tehsil And District - Rajsamand (Rajasthan).

7. Jagdish S/o Shri Gordhan Lal Kumawat, Resident Of Village Sanwad, Tehsil And District - Rajsamand (Rajasthan).

8. Shankar Lal S/o Shri Gordhan Lal Kumawat,, Resident Of Village Sanwad, Tehsil And District - Rajsamand (Rajasthan).

9. Smt. Heerki W/o Gordhan Lal, (Since Died)

----Respondents

For Petitioner(s) : Mr. Deelip Kawadia, through VC For Respondent(s) : Mr. Rajesh Choudhary, through VC

JUSTICE DINESH MEHTA

(2 of 7) [CW-16521/2019]

Order

07/02/2022

1. The present writ petition has been directed against the order

dated 01.07.2019 passed by the learned member of Board of

Revenue, Rajsamand.

2. Briefly stated, the relevant facts are that against the

mutation entry made in favour of petitioner way back in the year

1958, the respondent No.2 filed a mutation appeal before the

SDO(hereinafter referred to as the Trial Court) on 21.11.1997,

along with an application under Section 5 of the Limitation Act.

3. Learned Trial Court vide its order dated 29.07.2005, allowed

the appeal without considering the application under Section 5 of

the Limitation Act, though the mutation appeal came to be filed

after 40 years.

4. The abovesaid order was reversed by the Additional

Divisional Commissioner vide its order dated 14.02.2007 and the

same was affirmed by the Board of Revenue vide its order dated

07.02.2008, whereagainst the present petitioner preferred the writ

petition being SBCWP No.1938/2008.

5. The said writ petition filed by the petitioner came to be

allowed by this Court vide its order dated 12.05.2008. While

relying upon two judgments passed by Hon'ble the Supreme

Court, the Court held that learned SDO was required to first

decide the application under Section 5 of the Limitation Act, and

then enter into the merits of the case. However, in the concluding

para, instead of giving categorical finding, an observation

regarding deciding the case on merit too was given.

(3 of 7) [CW-16521/2019]

6. The operative part of the above referred judgment dated

12.05.2008, is reproduced thus:

"Consequently, the writ petition is allowed. The orders impugned are set aside and the respondent No.4 is directed to first hear and decide the application seeking condonation of delay under Section 5 of the Limitation Act filed by the respondents keeping in view the merit of the case, within a month from the date of production of certified copy of this order and thereafter if the delay is condoned to hear and decide the appeal itself within one month therefrom. There shall be no order as to costs."

7. The matter, therefore, stood restored before the SDO, who

vide its order dated 31.05.2011 found that the appeal was highly

belated and there was no reason for condoning the delay. The

application under Section 5 was, therefore, dismissed and

consequently the mutation appeal too was dismissed.

8. Against the order aforesaid dated 31.05.2011, the

respondents preferred an appeal, which was allowed by learned

Additional Divisional Commissioner vide its order dated

29.11.2012.

9. The Additional Divisional Commissioner, however, did not

delve upon application under Section 5 of the Limitation Act and

went on to observe that since the matter is strong on merit, the

same should be decided on merit instead of going into the

technical aspect of limitation. The appeal came to be partly

(4 of 7) [CW-16521/2019]

allowed and the matter was remanded back to the SDO for

decision afresh on merits of the case.

10. The present petitioner preferred a revision petition before

the Board of Revenue against the order dated 29.11.2012 which

was rejected by the learned member of the Board of Revenue vide

its order dated 01.07.2019.

11. Mr. Kawadia, learned counsel for the petitioner while

assailing orders dated 29.11.2012 and 01.07.2019, invited Court's

attention towards the above reproduced operative part of the

judgment dated 12.05.2008, passed by this Court and submitted

that the SDO had rightly rejected application under Section 5 of

the Limitation Act and thereafter, since the application under

Section 5 of the Limitation Act was dismissed, the appeal too was

dismissed.

12. According to him, learned Additional Divisional Commissioner

has erred in remanding back the matter to the SDO for decision of

the mutation appeal on merit, while not giving any finding on the

application under Section 5 of the Limitation Act. He added that

the Board of Revenue has also fallen into the same error and has

upheld an illegal order passed by the Additional Divisional

Commissioner dated 29.11.2012.

13. Learned counsel argued that the orders passed by Additional

Divisional Commissioner (second appellate authority) so also by

the Board of Revenue are clearly contrary to facts and against the

settled procedure and deserve to be quashed and set aside.

14. Mr. Rajesh Choudhary, learned counsel appearing for

respondents also referred to the directions contained in the

judgment dated 12.05.2008 and submitted that this Court had

(5 of 7) [CW-16521/2019]

clearly directed the Trial Court to consider not only the aspect of

delay but also the merit of the case and then take a decision in

accordance with law. He argued that the learned Additional

Divisional Commissioner has committed no error in remanding the

matter back to the SDO, with a direction to decide the mutation

appeal on merit of the case.

15. According to Mr. Choudhary, unless the merit of the case is

examined, right of an appellant cannot be determined solely on

the basis of delay.

16. Heard learned counsel for the parties and perused the

record.

17. Having regard to the fact that the parties have been

litigating for almost about 25 years in relation to mutation entry

that too was made in 1958, instead of admitting the petition and

deferring the hearing for another decade, with the consent of the

parties, the matter was finally heard, also because the controversy

lies in a very narrow compass.

18. This Court is of the considered view that the rights of the

parties are to be governed by the order dated 12.05.2008, passed

by this Court in the petitioner's earlier writ petition (SBCWP

N0.1938/2008) which has attained finality.

19. The intention of the High Court while deciding the earlier writ

petition appears to be that the SDO would first consider the

application under Section 5 of the Limitation Act and then enter

into the merit of the case. But, in the operative portion, an

observation has been made that the Trial Court will decide the

application under Section 5 of the Limitation Act, while keeping in

view the merit of the case.

(6 of 7) [CW-16521/2019]

20. The effect of the order dated 12.05.2008 is, that the SDO

would consider application under Section 5 of Limitation Act, so

also the merit of the case. The SDO found the condonation

application to be lacking merit and hence, proceeded to dismiss

the application and the appeal both. But then, as per the

mandate of the High Court contained in its order dated

12.05.2008, he was required to consider the case on merit as

well.

21. The Additional Divisional Commissioner (the second appellate

authority) has also gone wrong in recording findings on merit of

the case without even setting aside the order of the SDO dated

31.05.2011, vide which respondents' mutation appeal had been

rejected on the ground of delay. Then in that case, the Additional

Divisional Commissioner was required to record its finding about

acceptance of application seeking condonation of delay in filing the

appeal. He could either allow the application or reject the same.

Unless delay in filing the appeal was condoned by the Additional

Divisional Commissioner, he could not have remanded the matter

back to the Trial Court.

22. Learned member of the Board of Revenue has erroneously

affirmed such an order passed by the Additional Divisional

Commissioner.

23. In view of the aforesaid, the writ petition is partly allowed.

24. Order passed by the Additional Divisional Commissioner

dated 29.11.2012 so also the order of Revenue Board dated

01.07.2019 are hereby quashed and set aside.

25. In light of the order passed by this Court on 12.05.2008, the

matter stands remanded back to the SDO, who shall first decide

(7 of 7) [CW-16521/2019]

the application under Section 5 of the Limitation Act and even if

he is of the view that the application for condonation of delay

deserves to be rejected, then also, he shall record a finding on the

merit of the case so that, if any of the higher authorities deem it

appropriate to condone the delay or otherwise, the matter can

thereafter be examined on merit, instead of remanding the matter

back again for considering it on merit.

26. The learned SDO is directed to decide mutation appeal, as

early as possible, preferably before 30.06.2022.

27. The aforesaid order has been passed while keeping in view

the dispute regarding enforcement of the order dated 12.05.2008

passed by this Court in petitioner's earlier writ petition. The same

therefore, shall not be a precedent to be followed in any other

case, as the basic law on the subject is, that if the application

under Section 5 of the Limitation Act is rejected, then the

authority is not required to go into the merit of the case.

28. Stay application also stands disposed of accordingly.

(DINESH MEHTA),J 5-pooja/-

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