Rajasthan High Court - Jodhpur

Mota Ram vs State And Ors on 6 January, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3474/2002

Mota Ram through LRs

----Petitioner Versus State of Rajasthan & Ors.

                                                                ----Respondent


For Petitioner(s)        :     Mr. J.L. Purohit, Senior Advocate
                               assisted by
                               Mr. N.R. Budania - on VC
For Respondent(s)        :     Mr. L.K. Purohit
                               Mr. C.R. Choudhary - on VC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

06/01/2022

1. In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, lawyers have been advised to

refrain from coming to the Courts.

2. This writ petition has been preferred claiming the following

reliefs:

"In view of the aforementioned facts and grounds, it is humbly prayed that this writ petition may kindly be allowed. An appropriate writ direction or order in the nature of certiorari may kindly be issued and the judgment of the Board of Revenue dated 03.06.2002 (Annex.5) may kindly be quashed."

3. Mr. J.L. Purohit, learned Senior Counsel assisted by Mr. N.R.

Budania, appearing on behalf of the petitioner submits that the

petitioner being an agriculturist, claimed to be in possession of the

(2 of 11) [CW-3474/2002]

land in question, at Khasra No.69 admeasuring 100 bighas in

Village Tidiyasar, Tehsil Nohar, District Hanumangarh, for a period

of about 100 years. Learned Senior Counsel also submits that the

petitioner claimed to be an allottee of the land since when the

Bikaner Tenancy Act, 1945 came into force.

4. Learned Senior Counsel for the petitioner further submits

that the petitioner acquired the right of cultivation and continued

to cultivate the said land in question, under Section 24 of the

Bikaner Act, and that the petitioner was recorded as the tenant of

the lands in Khatoni of Samvat Years 2011 to 2014.

5. Learned Senior Counsel for the petitioner also submits that

the petitioner was conferred khatedari rights by a deeming

provision, under Section 15AAA (2-A) by the Rajasthan State

Legislature vide amendment in November, 1992 to the Rajasthan

Tenancy Act, 1955 (hereinafter referred to as 'Act of 1955').

6. Learned Senior Counsel for the petitioner further submits

that the petitioner's name from the Khatoni, with respect to the

said land in question, was removed and the same land in question

was declared as 'gochar' land.

7. Learned Senior Counsel for the petitioner also submits that

the petitioner then filed a suit for declaration as khatedar under

Section 88 of the Act of 1955, but the Sub Divisional Officer

(Revenue), Nohar (henceforth referred to as 'Trial Court')

dismissed the said suit vide its judgment dated 30.03.1992 finding

the land to be 'gochar land'.

Section 88 of the Act of 1955 reads as follows-

"88. Suits for declaration of right.-- (1) Any person claiming to be a tenant or a co-tenant may sue for a

(3 of 11) [CW-3474/2002]

declaration that he is a tenant or for a declaration of his share in such joint tenancy.

(2) A tenant of Khudkasht may sue for a declaration that he is such a tenant.

(3) A sub-tenant may sue the person from whom he holds for declaration that he is a sub-tenant. (4) A landholder other than a State Government may sue a person claiming to be a tenant or co-tenant of a holding or a tenant of Khudkasht or a sub-tenant for a declaration of the right of such person."

8. Learned Senior Counsel for the petitioner further submits

that the petitioner preferred an appeal against the aforementioned

judgment passed by the Trial Court before the Revenue Appellate

Authority, Hanumangarh.

9. Learned Senior Counsel for the petitioner also submits that

the Revenue Appellate Authority, vide its judgment dated

05.06.1995, ruled in favour the petitioner, while relying upon the

statements of the defendants in their written statements to the

effect that the Khasra No. 69 was old Khasra and that two new

khasras were carved out from the same land, being khasra no.

147 admeasuring 14 bighas and khasra no. 213 admeasuring 86

bighas, and declared the petitioner as the khatedar of the land in

question in new khasras no. 213 and 147.

10. Learned Senior Counsel for the petitioner further submits

that against the aforementioned judgment of the Revenue

Appellate Authority, the respondents No. 2 to 29 preferred an

appeal before the learned Board of Revenue for Rajasthan at

Ajmer, along with an application under Section 5 of the Limitation

Act; simultaneously, the State Government filed a review

(4 of 11) [CW-3474/2002]

application before the Revenue Appellate Authority against its

aforementioned judgment dated 05.06.1995.

11. Learned Senior Counsel for the petitioner also submits that

the Revenue Appellate Authority, vide its order dated 01.10.1996,

partly allowed the aforementioned review application preferred by

the State Government.

12. Learned Senior Counsel for the petitioner further submits

that again the respondents No.2 to 29 filed an appeal, along with

an application under Section 5 of the Limitation Act, before the

learned Board of Revenue against the aforesaid order dated

01.10.1996 passed by the Revenue Appellate Authority in the

review application.

13. Learned Senior Counsel for the petitioner also submits that

the learned Board of Revenue allowed both the appeals and set

aside the judgment dated 05.06.1995 and order dated 01.10.1996

passed by the Revenue Appellate Authority, vide its judgment

dated 03.06.2002, while upholding the judgment dated

30.03.1992 passed by the Trial Court.

14. Learned Senior Counsel for the petitioner further submits

that as the per Milan report (Annex.6), the petitioner's old Khasra

No.69 has taken shape of New Khasra No.147 & 213 and due to

prolonged possession in revenue record the petitioner's right has

accrued.

15. In support of his submissions, learned Senior Counsel relied

upon the judgment rendered by this Hon'ble Court in Jeewan

Ram & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ

Petition No.4741/1999, decided on 07.12.2000), relevant

portion of which reads as under:

(5 of 11) [CW-3474/2002]

"8. Sec. 17 of the Rajasthan Tenancy Act defines 'Ghair Khatedar tenant' as every tenant of land in every part of the State other than a Khatedar tenant, a tenant of Khudkasht or sub-tenant shall be a Ghair Khatedar tenant. If that be statutorily recognised status of a person liable to pay rent in respect of the agricultural land in the State, it cannot be said that under no provision of Tenancy Act a person can be declared as a Ghair Khatedar tenant. The Ghair Khatedar Status of the occupant of the land denotes that he is not a trespasser and is in lawful possession so that he may be protected against the summary procedure adopted for eviction of trespassers. The suit for declaration to that effect, in my opinion, was clearly maintainable, and therefore, the Board of Revenue has erred patently in holding that under no provision a declaration of Ghair Khatedari tenancy rights can be made if that is so, the further discussion for the purpose of setting aside the order dated 7.8.98 that in view of the provisions of Sec.15-AAA the petitioners cannot be conferred upon Khatedari rights is of no relevance. That question would have arisen only if the petitioners would have claimed Khatedari rights under Sec.15-AAA so as to hold an enquiry whether they fulfil the condition for acquiring Khatedari rights under that provision. That matter was never subject matter of any proceedings. Therefore, the Board of Revenue was apparently in error in diverting its attention to the question which was neither subject matter of the question decided by the Assistant Colonisation Commissioner in its order dated 9.7.86 nor the subject matter of reference. In this connection, it may be pertinent to notice that notwithstanding the provisions mentioned in substantive provisions of 15-AAA sub-sec.(2A) was inserted with effect from 11.11.92 which recognises the rights of a tenant of a land without any adjective,

(6 of 11) [CW-3474/2002]

to be entitled to all the rights and all the liabilities of a Khatedari under this Act with respect to the whole or such part of the land held as does not exceed the maximum area of land which he is entitled to hold in accordance with the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. This question also would have required attention to the provisions of Sec.15-AAA and Act of 1973. It appears that the Board has totally ignored the amended provisions of Sec.15-AAA so as to negative the enquiry into the rights of the petitioners under the provisions of Sec.15-AAA in a summary and casual manner."

16. On the other hand, learned counsel for the respondents

opposes the petition on the ground that the land in-question has

been declared as 'Gochar' land and if at all petitioner's claim fails,

then he has to go by way of remedy under Section 15AAA (2-A) of

the Act of 1955.

Section 15AAA of the Act of 1955 reads as follows -

"15AAA. Accrual of Khatedari Rights in the Indira Gandhi Canal area.--

(1) Notwithstanding anything contained in Section 15- A, any person who, at the commencement of this Act--

(a) was a holder of Khudkasht or an occupancy tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights and was recorded as such in the annual registers then current, or

(b) was not so recorded, but was a holder of Khudkasht or an occupancy tenant or a Maurusidar or a Khatedar tenant or a tenant with transferable and heritable rights, shall, as from the date of the commencement of this Act, be entitled to all the rights, and subject to all the liabilities, of a Khatedar tenant under this Act.

(7 of 11) [CW-3474/2002]

(2) Every person claiming that the rights mentioned in clause (b) of sub-section (1) accrued to him shall, within one year of the commencement of the Rajasthan Tenancy (Amendment) Act 1979 and on the payment of a court fee of fifty paisa, apply to the Assistant Collector having jurisdiction, or to any other authority as may be prescribed by the State Government from time to time, for a declaration that he acquired Khatedari rights under clause (b) of sub-section (1) in the land held by him and the provisions of sub-section (5) section 15 shall apply to such application. (2-A) Notwithstanding anything contained in Section 15-A, any person who was a holder of Khudkasht or a tenant of land otherwise than as a sub-tenant or a tenant of Khudkasht within the Indira Gandhi Canal area, whether recorded as such at the commencement of this Act or subsequently in the record of rights, prepared during the survey or resurvey and record operations conducted under sections 106 and 107 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956), shall be entitled to all the rights, and be subject to all the liabilities, of a Khatedar tenant under this Act, with respect to the whole or such part of the land held as does not exceed the maximum area of land which he is entitled to hold in accordance with the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act No. 11 of 1973).

(3) Notwithstanding anything contained in sub-section (1) of section 15-A and save or otherwise provided in sub-section (1) any person who, at the commencement of this Act,--

(a) was a tenant of land or otherwise than as a sub- tenant or a tenant of Khudkasht and was recorded as such in the annual registers then current, or

(b) was not so recorded, but was a tenant of land otherwise than as a sub tenant or tenant of Khudkasht,

(8 of 11) [CW-3474/2002]

and was in continuous possession of the land as such tenant upto the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983, shall, on an application being made in such form and in such manner as may be prescribed to the Assistant Collector having jurisdiction or to any other officer or authority authorised by the State Government in this behalf, within 1426 days of the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983 i.e. upto 30th June 1987 and be granted Khatedari rights in respect of the land in his tenancy upto the limit of the area which can be held by him under the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act 11 of 1973), provided he pays to the State Government the reserve price for the land held by him in excess of 25 bighas of irrigated or 50 bighas of un-irrigated land and upto the said limit at the rate prescribed under section 7 read with section 28 of the Rajasthan Colonisation Act, 1954 (Rajasthan Act 27 of 1954) and in force on the date of commencement of Rajasthan Tenancy (Amendment) Act, 1983.

Provided that the State Government may, on being satisfied that it is necessary or expedient to do so, extend by notification the period beyond 30th June, 1987, not exceeding six months, upto the day as deemed fit.

Explanation I-- For the purpose of grant of Khatedari rights under this sub-section, the expression 'tenant' shall include his successor-in-interest but shall not include his transferee.

Explanation II-- where there are two or more co- tenants in a holding on the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983, all such co-tenants shall, for the purpose of grant of Khatedari rights with respect to the area of land for

(9 of 11) [CW-3474/2002]

which no reserve price is to be charged, be deemed to be the sole tenant in that area of the holding. (4) subject to such rules as may be made by the State Government, the reserve price payable under sub- section (3) may be paid by the tenant in sixteen equal instalments of which the first instalment shall be paid along with the application under the said sub-section and the remaining instalments shall, thereafter, be payable on the 1st day of January and 1st day of July of each succeeding year until the entire amount of reserve price is paid of:

Provided that where water from the Indira Gandhi Canal is released for irrigation for the first time, after the commencement of the Rajasthan Tenancy (Amendment) Ordinance, 1984, to the land in which Khatedari rights are granted under sub-section (3), the first instalment of Rs. 500/- shall be paid along with the application under the said sub-section, and the remaining amount shall be payable in sixteen equal instalments on the 1st day of January and 1st day of July of each succeeding year after the expiry of two years from the date of release of water to such land for irrigation:

Provided further that nothing in this sub-section shall preclude the tenant from making payment of the whole or part reserve price earlier than that provided in this sub-section.

(5) Notwithstanding anything contained in sub-section (3), where a tenant pays to the State Government the entire reserve price in one lump sum within the period allowed for making an application under that sub- section, the amount of reserve price payable by him shall be deemed to be 25% less than that provided therein.

(6) tenant who fails to pay the reserve price in accordance with subsection (4) or sub-section (5) shall

(10 of 11) [CW-3474/2002]

not be entitled to the grant of Khatedari right under sub-section (3);

(7) All applications made by persons, other than those referred to in sub-section (2) but falling within the preview of sub-section (3), before the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1983 for declaration of accrual of or for grant of Khatedari rights in the land held by them at the commencement of this Act and pending before the Assistant Collector or before any other authority prescribed by the State Government under sub-section (2) on such date, shall be treated as applications for the grant of Khatedari rights and be deemed to have been made under sub-section (3) and shall be decided by the officer or authority mentioned in that sub- section in accordance with the provisions contained in sub-section (3) and sub-section (8).

(8) Where a person claims himself to be a tenant of land as is referred to in sub-section (3) but was not so recorded in the annual registers current at the commencement of this Act, the question whether he was such a tenant or not shall be decided on the basis of available evidence including the consensus opinion of the Gram Sabha, comprising of all adult persons residing in the village where the land is situated, reduced into writing by the Assistant Collector or any other officer or authority competent under the said sub-section to grant Khatedari rights."

17. After hearing counsel for the parties as well as perusing the

record of the case, alongwith the judgment cited at the Bar, this

Court finds that the petitioner has not been able to sustain his

case regarding allotment before the Revenue Appellate Authority.

At best, he can establish his presence in the revenue record, for

which, if he has to claim prolonged possession and right, then he

(11 of 11) [CW-3474/2002]

has to go before the revenue authorities as per Section 15AAA (2-

A) of the Act of 1955.

18. This Court also observes that the Revenue Appellate

Authority in its order dated 01.10.1996, while partly modifying its

earlier judgment dated 05.06.1995, made an observation that the