Sanga Builders Pvt. Ltd. and Others vs Jaipur Development Authority and Others

M.N. Bhandari, J.—These two writ petitions have been filed to challenge two different orders of the Board of Revenue (for short ''the Board'') though pertains to the dispute of one and same land and between the same parties. The Board has given conflicting judgments as two appeals were not heard together. To avoid the same, both the writ petitions were heard and decided by this common order.

In CW 9730/2012, a challenge is made to the order dated 13.6.2012, wherein, conflicting decision has been given to the earlier judgment dated 30.9.2010 in regard to the same property and that too when Jaipur Development Authority (for short ''the JDA'') was party in both the litigations.

Brief facts of the case -

It is stated that late Shri Imdad Ali Khan was Jagirdar of Village - Galwania, District - Tonk. He was allotted 115.5 bighas of land in lieu of his Khudkast land vide order dated 14.5.1970 under the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (for short ''the Act of 1952''). On allotment of the land, 90 bigha 8 biswa was entered in his name, whereas, remaining 25 bigha 5 biswa land allotted in khasra No. 37 of Village - Hardhyanpura, Tehsil - Sanganer, District - Jaipur did not enter in his name. After the death of Imdad Ali Khan, his son Ejaj Ali, being the only legal heir and having possession of the land so allotted, applied for correction of entry in the revenue records. The first court dismissed the petition for correction of entry thus an appeal was preferred before the Divisional Commissioner, wherein, JDA as well as other allottees of khasra No. 37 were made parties.

The Divisional Commissioner, after hearing the parties, allowed the appeal preferred by the petitioner with a direction to enter his name in khasra No. 37 and directions were given to the Tehsildar to carry out the order. Against the order of the Divisional Commissioner, an appeal was preferred by other allottees of khasra No. 37 and subsequent purchaser where JDA was also a party. The said appeal of the private respondents was partly allowed by the Board vide its order dated 30.9.2010. It was found that out of total land of 43 bigha 5 biswa of khasra No. 37, 15 bigha of land was allotted to Smt. Sarju Devi apart from allotment of 10 bigha of land to other persons leaving 18 bigha 8 biswa of land. Accordingly, petitioner-Ejaj Ali was made entitled to the remaining land thus corrections were directed to be made in the record by entering the name of Ejaj Ali. A further direction was given for allotment of remaining land of 6 bigha 17 biswa in khasra No. 38/1. In compliance of the order of the Divisional Commissioner dated 11.5.2010 and the order of the Board of Revenue dated 30.9.2010, 18 bigha 8 biswa of land was entered in the name of Ejaj Ali in khasra No. 37 and remaining 6 bigha 17 biswa of land in khasra No. 38/1.

Ejaj Ali sold the land to the petitioner No. 1 - M/s. Sanga Builders Pvt. Ltd. vide sale deed dated 22.10.2010 thus petitioner company is a bona fide purchaser of the land. The purchase of the land was made after making enquiry as to whether judgment of the Board has further been challenged by any of the parties.

It was then noticed that the review petition was preferred against the order dated 30.9.2010 by the JDA, however, same was dismissed. The JDA preferred a writ petition in the year 2012 to challenge the order of the Board dated 30.9.2010 in the connected writ petition.

The JDA prior to filing of the connected writ petition, preferred an appeal to challenge the order of the Divisional Commissioner and the said appeal was later on decided vide the impugned order dated 13.6.2012 with conflicting order and has been challenged in first writ petition.

Grounds of challenge to the order dated 13.6.2012 in CW 9730/2012 -

Learned Senior Counsel Mr. Ashok Mehta submits that the Board of Revenue has passed conflicting order dated 13.6.2012. It is in regard to the same subject matter and between the same parties where earlier order was passed on 30.9.2010. The impugned order dated 13.6.2012 was passed by the Board mainly on the ground that even after allotment of land in the year 1970, name of allottee did not enter in the revenue records in past 38 years and application for correction of entries was not maintainable under section 136 of the Rajasthan Tenancy Act as the land in dispute never entered in the name of Ejaj Ali. It can be filed for correction of entries occurred due to clerical error or when parties interested admit to have been made in the record of rights or register which Revenue Officer may notice during course of inspection. The case in hand was not covered by the aforesaid provision yet the Divisional Commissioner passed the order as prayed by the petitioner.

It is submitted that the impugned order was passed in conflict to the order dated 30.9.2010 of the Board of Revenue itself. The Board was more concerned to the provisions of section 136 of the Rajasthan Tenancy Act though even reference of a wrong provision cannot defeat the relief. The Board of Revenue should have decided the petition after considering the fact as to whether Ejaj Ali has any right in the land in question so as to enter his name in the revenue record. It is for the reason that allotment made under the Act of 1952 was never cancelled. The order of Khudkast Commissioner dated 14.5.1970 has been referred by learned counsel for the JDA in ignorance of the fact that the allotment was not challenged therein and nature of the land was also considered ignoring the fact that out of the same land of khasra No. 37, 25 bigha 5 biswa of land still exist in the name of other allottees thus how an order causing discrimination can be passed.

Learned counsel appearing for the JDA has contested the writ petition and supported the order of the Board of Revenue dated 13.6.2012. A further prayer has been made to accept the writ petition filed by the JDA i.e. CW 14026/2012 and set aside the order dated 30.9.2010. Common arguments have been made for the aforesaid.

It is stated by learned Senior Counsel Mr. R.N. Mathur that land in dispute was entered in the name of JDA thus an application under section 136 of the Act was not maintainable as it never entered in the name of Ejaj Ali son of late Shri Imdad Ali Khan. An application for correction of entry is maintainable only to correct clerical or any other error which is not the case in hand. The SDO thus rightly dismissed the application for correction of entry, however, Divisional Commissioner so as the Board of Revenue erroneously passed the order dater 13.9.2010 in favour of Ejaj Ali. It was even in ignorance of the order passed by the Commissioner, Khudkast dated 13.1.1993. Therein, an application moved by Ejaj Ali was dismissed. It was found that the land of khasra No. 37 is possessed by other allottees thus possession of the said land cannot be given to Ejaj Ali and khasra No. 38 is not available for allotment. After dismissal of the application, Board of Revenue should not have passed the impugned order dated 30.9.2010 challenged by the JDA. The dismissal of the application was under section 19(2) of the Resumption of Jagir Act, 1952. The said order was not earlier in the knowledge of the JDA but it was then came to the notice while filing present writ petition. It was found that allotment of land cannot be made beyond the ceiling limit. Those orders are not part of the order of the Board of Revenue dated 30.9.2010 and subsequent order dated 13.6.2012 but then it can be considered by this court to maintain the order dated 13.6.2012 while setting aside the earlier order dated 30.9.2010. The prayer is accordingly to dismiss the writ petition preferred by the petitioner M/s. Sanga Builders Pvt. Ltd. and allow the writ petition preferred by the JDA.

Consideration of the arguments in both the writ petitions with conclusions -

The brief facts narrated above show no dispute regarding allotment of 115 bigha 13 biswa of land in favour of late Shri Imdad Ali Khan under the Act of 1952. It is also not in dispute that land measuring 90 bigha 8 biswa was recorded in the name of the said allottee leaving 25 bigha 5 biswa of land. The dispute in the instant case is regarding 25 bigha 5 biswa land only. The Board of Revenue has passed two conflicting orders in respect of the land of khasra No. 37 and 38/1 of Village - Hardhyanpura, Tehsil - Sanganer, which is quite surprising. It was expected of the Board of Revenue to maintain judicial discipline and to avoid conflicting orders, more so when review petition of the JDA against the first order dated 30.9.2010 was dismissed. The Board of Revenue was not prevented to take a proper view while hearing and deciding the appeal vide the order dated 30.9.2010 but then conflicting view on some dispute is not justified. The way second order dated 13.6.2012 has been passed by the Board even after knowing about the first order, between the same parties, needs to be deprecated.

Coming to the merit of the case in reference to both the writ petitions, it is not disputed that allotment of land was made in favour of late Shri Imdad Ali Khan in pursuance of the provisions of the Act of 1952. The said allotment has not been cancelled as yet. The question would be as to whether claim made by the son of late Shri Imdad Ali Khan can be frustrated on one or the other grounds taken by the Board of Revenue in its order dated 13.6.2012 which is in conflict to the earlier order dated 30.9.2010.

The first ground to accept the appeal preferred by the JDA is in reference to section 136 of the Rajasthan Land Revenue Act. It is true that section 136 is applicable for correction of clerical error or any error which parties interested admit to have been made in the record of rights. It is no doubt true that controversy herein cannot be said to be for correction of error simplicitor, however, it is settled law that mere making reference of incorrect provision, the court should not frustrate the claim as otherwise made out from the pleadings.

If the order of the Sub Divisional Officer is looked into, reference of the prayer in the application is given. It shows to be for opening of ''namantaran'' in the revenue records based on the allotment made in favour of late Shri Imdad Ali Khan. Hence, the Board of Revenue should have referred the controversy raised in the application and the relief prayed therein instead of guiding itself by the provisions referred in the application because reference of a wrong provision would not frustrate the claim, if made out.

In the instant case, Board of Revenue has decided the issue by taking hyper technical approach. It should have been avoided. The fact, however, remains as to whether petitioner Ejaj Ali is having a right for seeking endorsement of the allotment made in favour of his father and get his name entered in the revenue record.

Mr. R.N. Mathur, Sr. Advocate, appearing for the JDA has referred two orders of the Jagir Commissioner to show that the claim made by Ejaj Ali has already been rejected thus Divisional Commissioner should not have passed favourable order so as the Board of Revenue vide its order dated 30.9.2010.

I have gone through the orders. The orders of Jagir Commissioner were in reference to application under section 19 (2) of the Act of 1952. It was for possession of the land so allotted. The Jagir Commissioner, after holding enquiry, found possession of others on the land so allotted to the petitioner''s father and neighbouring land of 38 bigha was not available for allotment. It also took note of the Land Ceiling Act. The two orders referred to above, however, do not cancel the allotment made in favour of the petitioner. The question would be as to whether allotment of land beyond the ceiling limit can be entertained. If two orders at annexure-6 and 7 are seen, it does not show as to what was the ceiling limit at the relevant time and how much excess land has been allotted. The perusal of the order shows nothing but a superficial observation of allotment of land beyond ceiling limit and otherwise the Jagir Commissioner has no authority to comment on the issue pertaining to ceiling as it can be decided by the competent authority under Agriculture Ceiling law. The denial of possession of 25 bigha 5 biswa of land was on that count however it does not cancel the allotment rather it cannot be done without adopting the procedure. Thus, two orders referred to above are not coming in the way of the claimant Ejaj Ali. It was only on the application to seek possession of the land.

The consideration on the aforesaid issue has been made for the first time by this court as two orders at annexure-6 and 7 were not before the Board of Revenue and are not part of discussion thus argument could have been rejected by this court as the JDA cannot be allowed to make out a new case altogether before this court and that too based on the documents which were not part of the proceedings before the courts below. In any case, argument in reference to those documents have been considered by this court.

Mr. R.N. Mathur, learned Senior Advocate for the JDA was asked to state as to whether the allotment of the land made in favour of late Shri Imdad Ali Khan was ever been cancelled. He fairly conceded that the allotment made in favour of Imdad Ali Khan was not cancelled at any point of time. The two orders at annexure-6 and 7 in the connected writ petition of the JDA does not show cancellation of allotment of land but dismissal of the application and review petition under section 19(2) of the Act of 1952, which was for taking possession of the land.

It has been admitted by learned counsel appearing for respective parties that even if the application under section 136 of Rajasthan Land Revenue Act was not maintainable, then also Imdad Ali Khan and now his successor-in-title can make a claim pursuant to the allotment of land by the Jagir Commissioner. If the aforesaid is permitted, then it would be nothing but multiplicity of litigation which has already travelled to three revenue courts thus, instead of sending the matter for afresh inning, all the issues have been considered by this court itself. It is in reference to contents and prayer of the application moved by the SDO court and to do complete justice without hyper technical approach.

It is, no doubt, true that khasra No. 37 and 38/1 were entered in the name of JDA but first order dated 30.9.2010 was passed by the Board of Revenue in the presence of the JDA itself where Ejaj Ali was ordered to be given equivalent land in khasra No. 37 and 38. The challenge to the order dated 30.9.2010 by the JDA is on the grounds discussed above.

Learned senior counsel for the JDA failed to give justification as to why the Board of Revenue was not requested to take up even their appeal for hearing while hearing other appeal. The JDA itself allowed the Board of Revenue to take a view while hearing the appeal filed at the first instance by other allottees of khasra No. 37 and after loosing the battle therein, they even preferred a review petition which was also dismissed. It was expected of the Board of Revenue not change its view in regard to same land and between the same parties. The Board of Revenue failed to maintain judicial discipline. The Member, Board of Revenue should be cautious and adhere to the judicial discipline, thereby, order dated 13.6.2012 cannot be allowed to be maintained which has been passed in conflict to the earlier order dated 30.9.2010.

The nature of the land is another issue taken up by the Board of Revenue showing it to be posture land but it is again surprising that while doing so, other allottees of khasra No. 37 have not been disturbed whereas adverse order has been passed against Ejaj Ali in contradiction to the order dated 30.9.2010 where allotment of land in khasra No. 37 has been maintained for other allottees. In the said order, Board of Revenue itself allowed allotment in khasra No. 37. Such an approach of the Board of Revenue cannot be accepted and appreciated. The Board of Revenue, while passing the impugned order dated 13.6.2012 should not have taken conflicting view. The Board of Revenue should have taken one decision in regard to same dispute and between the same parties. It is more so when review petition against the first order dated 30.9.2010 was filed by the JDA. It was dismissed vide the order dated 30.12.2010 and has not been challenged by the JDA thus it attained finality.

Accordingly, impugned order dated 13.6.2012 is set aside. The writ petition No. 9730/2012 is allowed, while dismissing the writ petition preferred by the JDA i.e. CW 14026/2012.