Rajasthan High Court - Jodhpur

Sultan Ali vs State Of Rajasthan And Ors. ... on 15 September, 2023

Bench: Nupur Bhati

[2023:RJ-JD:29868]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 232/2018

Sultan Ali S/o Shri Sheikh Mohammed, By Caste- Musalman, Resident Of Surewala, Tehsil- Tibbi, District- Hanumangarh Rajasthan.

----Petitioner Versus

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

2. District Collector, Hanumangarh.

3. Tehsildar Revenue, Tibbi, Hanumangarh.

4. Board Of Revenue, Rajasthan, Ajmer.

                                                                      ----Respondents


For Petitioner(s)               :    Mr. Vijay Jain
For Respondent(s)               :    Mr. R.D. Bhadu



                 HON'BLE DR. JUSTICE NUPUR BHATI

                                          Order

15/09/2023

1. The instant writ petition has been filed by the petitioner-

under Article 226 and 227 of the Constitution of India with the

following prayers:-

"1. The judgment/order dated 05.07.2017 (Annexure-3) passed by the Board of Revenue, Ajmer in reference No.LR4629/2016 as well as order dated 17.08.2015 (Annexure-2), passed by the Additional District Collector, Hanumangarh may kindly be quashed and set aside and the land in question may be entered in the name of the petitioner in the revenue record.

2. Or alternatively, the petitioner may be allotted other land having same type and same measurement at the area concerned.

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3. Any other appropriate relief which this Hon'ble High Court deems just and proper may kindly be granted in favour of the petitioner.

4. The cost of the writ petition may kindly be awarded to the petitioner."

2. Briefly stated facts of the case are that the land admeasuring

0.506 hectare of Kila No.1.10 Stone No.215/270 and Chak 5 SRW

was entered as Johad Paytan (catchment area) before the year

1955. The land in question was allotted to Chate Singh S/o Kaser

Singh and Laxman Singh S/o Isar Singh, residents of Surewala,

Tehsil-Tibbi, vide order dated 25.05.1967 in lieu of their land,

which was mutated as No.8 in revenue record in Samvat 2069-72.

The land in question was purchased by the petitioner from Gyan

Singh through a registered sale deed dated 20.11.1993

(Annexure-1).

3. The respondent No.2 submitted a reference to the Court of

Additional District Collector, Hanumangarh, under Section 232 of

the Rajasthan Tenancy Act, 1955 read with Section 82 and 88(2)

of the Rajasthan Land Revenue Act, 1956, mentioning in it that

the land in question was entered as Johad Paytan (catchment

area) in the revenue record on 20.11.1967 and thus, without

proper appreciation of the same, the land was allotted to the

petitioner and thus, it was further said in the reference that the

Khatedari in favour of the petitioner may be cancelled and the

land may be re-entered as Johad Paytan land.

4. The Additional District Collector, hanumangarh under Section

82 of the Rajasthan Land Revenue Act, 1956, made a

recommendation dated 15.08.2015, which was submitted before

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the learned Board of Revenue, Ajmer, which was allowed vide

judgment dated 05.07.2017 (Annexure-3) on the basis of the

judgment dated 02.08.2004 passed in PIL No.1536/2003 and

cancelled the mutation entry of the aforementioned land from the

revenue record as entered in the name of the petitioner and

ordered to make the entry of the land as Johad Paytan (catchment

area).

The petitioner being aggrieved of the order dated

17.08.2015 (Annexure-2), passed by Additional District Collector,

Hanumangarh and the order dated 05.07.2017 (Annexure-3),

passed by the Board of Revenue, Ajmer, preferred the present writ

petition.

5. Learned counsel Mr. Vijay Jain, representing the petitioner,

submits that the petitioner is having a lawful title of the land in

question since time immemorial and thus, now, at this juncture,

his Khatediari rights cannot be cancelled in such an arbitrary

manner and thus, the impugned order dated 05.07.2017 passed

by the Board of Revenue and the order dated 05.07.2017, passed

by the Additional District Collector, Hanumangarh, deserves to be

quashed and set aside. He further submits that the land was duly

purchased on 20.11.1993 and a valid sale deed was also

registered by the Sub-Registrar, Tehsildar, Tibbi and at that point

of time, the authority did not raise any question in regard to the

land that the said land is falling as a catchment area and after

passage of such huge time, the respondents have now raised the

said objection.

6. Learned counsel for the petitioner also submits that the

Rajasthan Tenancy Act, 1955 has come into effect in the year

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1955, however, the land in question had already been entered as

Johad Paytan in revenue records, way back before 1955 and thus,

the provisions of the Act of 1955 cannot be made applicable by

giving them a retrospective effect.

7. Learned counsel for the petitioner also submits that the

respondents are estopped by the Doctrine of Estoppel and the

land in question was duly allotted by the respondent authority in

the name of Chate Singh on 28.11.1967, which was subsequently

purchased by the petitioner in the year 1993 for which, mutation

entry was also duly made by the respondents and thus, now, the

respondents cannot change their own stand and take adverse

action against the petitioner.

8. Learned counsel for the petitioner, in support of his

contentions, places reliance upon the judgments passed by this

Court in the case of Gopi Ram Vs. The State of Rajasthan &

Ors. decided on 27.08.1997 (SBCWP No.1327/1991) and the

judgment rendered by Hon'ble the Supreme Court in the case of

Brij Lal Vs. Board of Revenue & Ors. reported in AIR 1994 SC

1128.

9. Per contra, learned counsel Mr. R.D. Bhadu, representing the

respondents, submits that the Board of Revenue after going

through all the material available with them and while duly

examining the record, arrived at a conclusion that the said land

fell in the catchment area and thus, in light of the decision passed

by the Division Bench of this Court in the case of Abdul Rahman

Vs. Board of Revenue & Ors. [(DBCWP (PIL)

No.1536/2003) decided on 21.07.2008)] the Board of Revenue

has rightly passed the order dated 05.07.2017.

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10. Learned counsel for the respondents also submits that after

the decision was passed in the case of Abdul Rahman (supra),

the respondents, as and when, have come into the knowledge of

the fact that the land which was originally falling in the catchment

area, had been erroneously granted to a private person, then,

accordingly, action has been taken and the land has been restored

to its original i.e catchment area. Thus, when it came to the

knowledge of the respondents that the land in question was

wrongly allotted in favour of the petitioner, appropriate action was

taken and the nature of the land was restored to its original i.e.

catchment area.

11. Learned counsel for the respondents, in support of his

contentions, places reliance upon the judgment passed by this

Court in SBCWP No.5108/2020 titled as Balu Ram Vs. State

of Rajasthan & Ors. with other connected matter.

12. After hearing both the parties and after perusing the material

available on record and the judgment cited at Bar, this court finds

that in similar issue vide judgment dated 06.04.2021 passed in

SBCWP No.5108/2020 titled as Balu Ram Vs. State of

Rajasthan, a Coordinate Bench has dismissed the writ petition

and the relevant paras are reproduced hereinbelow:-

"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, forwhich even no allotment can be made. No limitation can defeat the status of the prohibited land being allotted, and such a precious natural

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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 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."

13. Consequently, the present writ petition is also dismissed in

light of the fact that once, the respondents have found the land in

question to be belonging to Johad Paytan, which is not only a

common land, but is a prescribed land for which, no allotment can

be made and thus, no limitation can defeat the status of the

prohibited land being allotted. 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 Johad

Paytan land, which is barred to be allotted or owned by anyone, in

light of the conjoint reading of the precedent law laid down in the

cases of Abdul Rahman (supra) and Balu Ram (supra).

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