Surta Singh Vs The Board of Revenue Rajasthan Ajmer and Others

@JUDGMENTTAG-ORDER

Alok Sharma

1. This petition has been filed against th order dated 21-5-2008 passed by the Board of Revenue Ajmer (herein after `the Board'') dismissing petitioner''s appeal u/s 76 of the Rajasthan Land Revenue Act, 1956 (herein after `the 1956 Act'') and upholding the order dated 31-10-2006 passed by the Revenue Appellate Authority Ajmer. A further challenge in the writ petition is to the dismissal order dated 4-11-2011 passed by the Board on review petition filed by the petitioner against the order dated 21-5-2008 passed by the Board. Before dealing with the facts of the case and grounds agitated in the present writ petition, this court cannot restrain itself from noticing the fact that an allotment made to a landless agriculturist on 30-6-1995 one Mangla, now deceased and represented by his legal heirs, has been put to challenge through seven innings at the instance of the petitioner in the cynical expectation that any judicial aberration in a crowded docket of the courts would facilitate the petitioner unlawfully obtaining 10 bighas agricultural land. It is difficult to conceive as to how a landless agriculturist to whom allotment of 10 bighas land was made has been able to sustain about seventeen years in litigation before various tiers of the courts. This case is symptomatic of the gross misuse of judicial process and the salutary purpose because of low court fees to allow access to justice to poorest of the citizens.

2. Rule 20 of the Rajasthan Land Revenue (Allotment of land for Agricultural Purposes) Rules, 1970 (herein after the `1970 Rules'') makes a provision for allotment of land to trespassers on government agricultural land. Rule 20 of the 1970 Rules paraphrased states that instead of ejecting a trespasser from any agricultural land (Siwai Chak) in the name of the government occupied by him without any lawful authority, the Sub Divisional Officer can, subject to specific or general direction of the State Government, on the advice of the Advisory Committee, allow such trespasser to retain such land through regularisation if such a person is a landless agriculturist and the total area of land held by him, including the land so regularised/ allotted does not exceed 15 bighas of irrigated land. In terms of powers under Rule 20 aforesaid, with reference to State Government''s circular dated 24-11-1992, the Sub Divisional Officer Ajmer vide order dated 30-6-1995 along with 32 others to whom allotment was also made, allotted to Mangla 10 bighas of land in Khasra No. 1420 in village Kishanpura Govalia. Following the allotment by way of regularisation, the land was mutated in the revenue records in the name of Mangla on 13-7- 1995. Mangla continued with possession of the land-now lawfully.

3. The petitioner Surta Singh laid a challenge to allotment/ regularisation of land on 30-6-1995 to Mangla before the Collector Ajmer, after a delay of about three and a half years. A separate challenge to mutation dated 13-7-1995 was also made by the petitioner. Vide order dated 23-6-2000, the Collector Ajmer held that the delay in filing an application under Rule 20 (2) of the allotment Rules 1970 was being over-looked, but on the merits thereof the challenge was not sustainable both in respect of allotment dated 30-6-1995 and the consequent mutation dated 13- 7-1995. It was held that a challenge to allotment by way regularisation under Rule 20 of the 1970 Rules could be made under the proviso to Rule 20 (2) of the 1970 Rules only where the regularisation had been obtained through fraud or misrepresentation or had been against the Rules and in the case set up by Surta Singh he had been unable to make out any case either on the basis of any oral or documentary evidence.

4. The order of the dismissal of the application under Rule 20(2) of the 1970 Rules on 23-6-2000 by the Collector Ajmer was put to challenge by way of an appeal before the Revenue Appellate Authority Ajmer. The Revenue Appellate Authority found that the challenge apart from not falling within the parameters of the proviso to Sub-rule 2 of Rule 20 of the 1970 Rules, was even otherwise factually unsustainable on the ground that the land allotted to Mangla in new Khasra No. 1420 to the extent of 10 bighas (albeit a part of old khasra No. 985 measuring 193 Bighas) was never in the Khatedari and possession of the petitioner Surta Singh. The Revenue Appellate Authority Ajmer came to a finding from the record that old khasra 985 admeasuring 193 Bighas had been broken up into multiple kharas subsequent to settlement proceedings and sub divided inter alia into khasras such as 1417, 1406, 1407, 1415 and 1420 and others. It was found that 38 bighas of land in old khasra No. 985 in the khatedari of Surta Singh was fully accounted in his khatedari over new khasra No. 1417, 1406, 1407, 1415 admeasuring 38 Bighas 17 Biswas, and that khasra No. 1420 was located at a distance and away from khasra No. 1417, 1406, 1407 and 1415 with various agricultural fields in between. It was held that Surta Singh had neither khatedari rights nor cultivatory possession over Khasra (New) 1420. It was also noted by the Revenue Appellate Authority that land of khasra No. 1420 was registered as Sivai chak, prior to allotment/ regularisation in favour of Mangla, a landless agriculturist, under Rule 20 of the 1970 Rules as he had earlier encroached upon it. The Revenue Appellate Authority held that the regularisation also related to State Government''s Circular dated 24-11-1992 in this regard. The Revenue Appellate Authority further held that in the facts of the case the appellant Surta Singh could not even be treated an aggrieved person to challenge allotment of land recorded in revenue records as Siwai Chak to a landless agriculturist. Consequently, the appeal was dismissed vide order dated 8-1-2001.

5. Surta Singh however did not rest with dismissal of application under Rule 20 (2) of the 1970 Rules by the Collector Ajmer and then of the appeal by the Revenue Appellate Authority Ajmer. He invoked the provisions of Section 76 of the 1956 Act by filing second appeal before the Board. The Board in its wisdom vide order dated 10-2- 2003, finding purported gaps in the evidence relied upon by the first appellate court, remanded the matter to Revenue Appellate Authority Ajmer for reconsideration with a direction to properly evaluate the evidence before it, including the question as to how Surta Singh was not an aggrieved person.

6. On remand of the matter vide order dated 10-2-2003, the judicial aberration in a crowded docket which the petitioner Surta Singh was looking for happened and the Revenue Appellate Authority Ajmer mistaking that old khasra No. 985 admeasured only 38 bighas and all of the new khasra carved out thereof including khasra No. 1420 measured 38 bighas only (not 193 bigha as the fact they did) allowed the appeal filed by Surta Singh. Consequently it held that it was Surta Singh and not Mangla who was in possession of Khasra No. 1420 (10 Bighas). A review petition was filed against the order dated 2-7-2003 before the Revenue Appellate Authority Ajmer. Mangla in the meantime appears to have expired and personally lost the baffle of attrition waged by Surta Singh. On hearing on review petition, it was found by the Revenue Appellate Authority that an application under Order 41 Rule 27 filed by Mangla in the earlier innings before the Revenue Appellate Authority had not been considered and it had also not been taken into consideration as to whether allotment/ regularisation of land in favour of Mangla under Rule 20 of the 1970 Rules could at all be cancelled de hors the conditions set out in the proviso to Sub-rule 2 of Rule 20 of the 1970 Rules. It was also noted that the order dated 2-7-2003 was exfacie factually erroneous being based as it was on the premise that old khasra No. 985 was only 38 bighas, and all the new khasras carved out of old Khasra No. 985 would logically be in the khatedari of Surta Singh, when in fact it was evident from the record that old khasra No. 985 admeasured 193 bighas and subsequently the said khasra No. 985 was sub divided into multiple khasra including 1417, 1406, 1407, 1415 as also 1420 and others. It was also found that the evidence on record exfacie indicated that khasras No. 1417, 1406, 1407, 1415 by themselves admeasured 38 Bighas 17 Biswas, which kharas were in the khatedari of Surta Singh, equivalent to his old holding and claim of Khatedari of 38 Bighas of land. The Revenue Appellate Authority found that land of khasra No. 1420 was in fact situated at a distance away from the khasras in the khatedari of Surta Singh i.e.1417, 1406, 1407 and 1415 and there was no contiguity between the said parcels of land. Consequently there was no question of khasra No. 1420 recorded at the relevant time as Siwai Chak falling in the khatedari of Surta Singh. The Revenue Appellate Authority further found that the allotment/ regularisation of 10 bighas of land in Khasra No. 1420 in favour of Mangla had been fully in compliance of Rule 20 of the 1970 Rules and in consonance with circular dated 24-11-1992 as Mangla was in possession at the relevant time albeit as a trespasser. Consequently, vide order dated 31-10-2006 the Revenue Appellate Authority Ajmer dismissed the appeal of the petitioner Surta Singh.

7. Aggrieved of the order dated 31-10-2006, passed by the Revenue Appellate Authority Ajmer, Surta Singh filed a second appeal u/s 76 of the 1956 Act before the Board, which was dismissed on 21-5-2008. A further review against the dismissal of appeal was filed before the Board u/s 86 of the 1956 Act, which was dismissed on 4-11-2011. As stated above, the said orders dated 21-5-2008 and 4-11-2011 are under challenge before this court.

8. Heard learned Senior Counsel Mr.K.K. Mehrishi appearing with Mr. Timan Singh on behalf of the petitioner Surta Singh and perused the material available on record.

9. The case at hand has been through seven stages of consideration of the legality of the allotment/ regularisation in favour of Mangla under Rule 20 of the 1970 Rules. Conclusions of the Collector Ajmer, Revenue Appellate Authority Ajmer (three occasions) as also the Board in second appeal and review are conclusions of fact holding that:

(i) Khasra No. 985 (old) admeasured 193 Bighas.

(ii) Surta Singh had khatedari rights over 38 Bighas out of 193 Bighas.

(iii) Old Khasra 985 in settlement proceedings was divided into many khasras such as 1417, 1406, 1407, 1415, and 1420.

(iv) Khasras No. 1417, 1406, 1407 and 1415 measuring 38 Bighas and 17 Biswas remained in the khatedari of Surta Singh and equaled his khatedri of 38 Bighas in old khasra 985.

(v) New Khasra No. 1420 carved out of old khasra 985 was 10 Bighas and recorded as Siwai Chak land.

(vi) Mangla was in possession as a trespasser thereon-but as a landless agriculturist was given benefit of regularisation under Rule 20 of the 1970 Rules on 30-6-1995.

(vii) Mutation was opened in the name of Mangla for 10 Bighas in Khasra No. 1420 on 13-7-1995.

10. The Hon''ble Supreme Court in case of Management of Madurantakam, Co-operative Sugar Mills Ltd. Vs. S. Viswanathan, has held that when finding of facts are not perverse, or otherwise based on no evidence, a writ court should not interfere with such findings in the exercise of powers under Articles 226 and 227 of the Constitution of India.

11. Similarly in case of Shamshad Ahmad and Others Vs. Tilak Raj Bajaj (Deceased) through LRs. and Others, the Hon''ble Supreme Court has held that though powers of a High Court over all courts and tribunals under Articles 226 and 227 are very wide and extensive, yet they can be exercised only within the limits of law. It has been held that High Courts under Articles 226 and 227 of the Constitution of India can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court is based and the writ court cannot without good reason substitute its own decision for that of the courts below. The Apex Court has held that such power of writ courts is to be exercised only sparingly in order to keep the subordinate courts within the limits of law.

12. In case of Mahavir Singh Vs. Khiali Ram and Others, the Hon''ble Supreme Court has held that while exercising its jurisdiction under Article 226 of the Constitution the High Court is basically concerned with the correctness of the decision-making process and not the merit of the decision and whether natural justice has been adhered to while making determination of legal rights and whether court below has taken into consideration the relevant factors or based its decision on extraneous consideration or was swayed by irrelevant consideration. And the sequitor is that absent the above infirmities by the courts below, a writ court should eschew exercising its jurisdiction under Articles 226/ 227 of the Constitution of India.

13. The Hon''ble Apex Court in the case of Jai Singh and Others Vs. Municipal Corporation of Delhi and Another, , has held that challenges to concurrent findings of facts in writ petition under Article 227 of the Constitution of India are liable to be rejected, except in cases of perversity where orders impugned have been passed in grave dereliction of the duty of the courts or in flagrant abuse of fundamentals of law and justice.

14. In the context of the enunciation of law by the Hon''ble Supreme Court I have considered the impugned orders passed by the subordinate courts. It is evident that the said orders would brook no interference by this court. The case at hand is a fairly simple one where the petitioner Surta Singh was not a person aggrieved to put a challenge to allotment/ regularisation of Sivai Chak land to Mangla in terms of Rule 20 of the 1970 Rules. The subordinate courts have found that Surta Singh was in possession of 38 bighas of land of khasra No. 985 (which comprised of 193 Bighas), and subsequent to sub-division of khasra No. 985 the land of new khasras 1417, 1406, 1407, 1415 admeasuring 38 bighas 17 biswas has been entered in the revenue records in the name of Surta Singh. It has also been found that khasra No. 1420 was situated at a distance away from the land of the petitioner in 1417, 1406, 1407 and 1415, and there was no contiguity between khasra No. 1420 with the khasras of Surta Singh. It was also found that khasra No. 1420 was recorded at the relevant time of allotment in revenue records as Sivai Chak, over which Mangla had been in possession first albeit as a trespasser but subsequently owing to Rule 20 of the 1970 Rules and the circular dated 24-11-1992 was allotted the said land by way of regularisation on 30-6-1995. Mutation subsequently and consequently was opened on 13-7-1995 in the name of Mangla. It has been found by the subordinate courts that apart from not being an aggrieved person, the petitioner Surta Singh had also not been able to make out any case for cancellation of allotment/ regularisation in favour of Mangla with reference to proviso to Sub-rule 2 of Rule 20 of the 1970 Rules i.e. fraud, mis-representation or contravention of provisions of 1970 Rules. Consequently in absence of any legal injury to petitioner Surta Singh in the facts of the case (regularisation of government land in favour of Mangla) and the allotment/ regularisation to Mangla not being vitiated by situations set out in proviso to Sub-rule 2 of Rule 20 of the 1970 Rules, the subordinate courts have rightly negatived the challenge made by the petitioner Surta Singh. The case of the petitioner is nothing except a gross misuse of the process of this court in dragging a landless agriculturist, and subsequent to his death, his legal heirs for over seventeen years through various tiers of the judicial process.

15. This court is of the considered view that Surta Singh at no point of time sought khatedari rights over Khasra No. 1420 which was recorded as Siwai Chak land following the break up of old Khasra No. 985. He filed no proceedings before the competent revenue courts to claim khatedari over khasra No. 1420 aforesaid as he could have by filing a suit for declaration and/ or correction of entries or any other proceeding permissible in law. He did not even claim regularisation/ allotment if he was allegedly in possession without any claim to khatedari rights. Surta Singh''s misguided litigation over 17 years is evidently based on his vacuous and unsubstantiated claim as being in possession-negatived by courts below. And the courts below have categorically recorded a finding of fact that the petitioner Surta Singh''s khatedari of 38 Bighas in old khasra 985 was fully accounted for and established this khatedari of 38 bighas and 17 biswas in new khasra No. 1417, 1406, 1407 and 1415 in village Kishanpura Govalia, Tehsil Pushkar, District Ajmer.

16. Consequently, I would dismiss the writ petition. And with costs, why costs? The Apex Court in Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., has held that:

81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.

82. This court in a recent judgment in Rameshwari Devi and Others Vs. Nirmala Devi and Others, aptly observed at p.266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts, have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the court''s otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267- 68, para 58 that imposition of actual, realistic or proper costs and/ or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

17. Hence in this case, exemplary cost of Rs. 20,000/- is imposed to be paid by the petitioner to Rajasthan State Legal Services Authority, Jaipur within a period of three months from the pronouncement of this order. Stay application also stands dismissed.

18. In the event the amount of cost Rs. 20,000/- is not paid within a period of three months, the Rajasthan State Legal Services Authority, Jaipur shall be free to recover the said amount of cost as arrears of land revenue under the Public Demand Recovery Act. This is the mode adopted for recovery of costs by the Hon''ble Apex Court in the case of M. Nagabhushana Vs. State of Karnataka and Others, A copy of this order be sent to Rajasthan Legal Services Authority, Jaipur.