STATE OF RAJASTHAN Vs. BOARD OF REVENUE

JUDGEMENT

(1.) SANWAL Dan was formerly the Jagirdar of Thikana Dandusar in District Bikaner and his jagir lands were resumed in accordance with the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and were vested in the State of Rajasthan. Settlement and record operations in village Dandusar started on October 21, 1947 and were completed on May 9, 1948. Khasra No. 133, measuring 81 Bighas and 13 Biswas, was entered in the settlement records in the name of Sanwal Dan, who was then the jagirdar of Dandusar, as 'khudkast', A note was appended that the land in question was held by Sanwal Dan free of rent, as he was the jagirdar. By a sale -deed dated July 7, 1970 Sanwal Dan, the ex -jagirdar, sold his rights in Khasra No. 133 to respondents No. 4 and 5, Bansbidan and Motidan. After the sale -deed was duly registered respondents No. 4 and 5 made an application before the Tehsildar Colonisation, Rajasthan Canal Project, Bikaner for mutation of their names in the record of rights in place of Sanwaldan. As the land in question was included in a colony, within the meaning of the Rajasthan Colonisation Act, the Tehsildar Colonisation forwarded the application of respondents No. 4 and 5 with his report to the Assistant Colonisation Commissioner, Rajasthan Canal Project, Bikaner, who also held the powers of the Additional Land Records Officer under the Rajasthan Land Revenue Act 19 6. The Assistant Colonisation Commissioner found that the land was recorded as 'Muafi' in the revenue records and held that Sanwaldan was a temporary cultivation lease holder and as such he could not have transferred his tenancy rights to the respondents No. 4 and 5. The application for mutation was dismissed by the Assistant Colonisation Commissioner by his order dated December 16, 1961. Banshidan and Motidan respondents No. 4 and 5 prefeired an appeal, against the aforesaid order, before the Additional Colonisation Commissioner, Rajasthan Canal Project, who is also the Revenue Appellate Authority for the Rajasthan Canal Project area. The Additional Colonisation Commissioner, following two decisions of the Board of Revenue in State of Rajasthan v. Mohansingh 1970 RRD 23 and State of Rajasthan v. Padamsingh 1970 RRD 58 decided that as the land in question was formerly held by the then jagirdar Sanwaldan so 'khudkasht', the ex -jagirdar Sanwaldan became a khatedar tenant thereof, by virtue of the provisions of Section 13 of the Rajasthan Tenancy Act, 1955. It was observed that as Sanwaldan himself was the owner of the land before the date of resumption, he could not be held to have let out the land to himself before the resumption thereof and as much the land in question could not be considered to have been 'leased out'. Thus, according to the Additional Colonisation Commissioner, Section 15 -A of the Rajasthan Tenancy Act, 1955 (here in after referred to as 'the Act') was not applicable to the land of the former jagirdar, which was entered as 'khudkasht' and as such khatedari rights accrued therein by virtue of the provisions of Section P of the Rajasthan Tenancy Act, which could be lawfully transferred by him The appeal preferred by the respondents No. 4 and 5 was consequently allowed and the Additional Colonisation Commissioner, by his order dated 15th February, 1973, directed that the said respondents No. 4 and 5 be entered as kharedar tenants in respect of the land comprised in Khasra No. 133. A 'revision petition preferred by the Mate of Rajasthan before the Board of Revenue was dismissed by the order of the Board of Revenue dated April 22, 1974. The Board of Revenue took the same view as was taken by the Additional Colonisation Commissioner, following the earlier two decisions of the Board referred to above and held that a land holder who held land in his 'khudkasht' could not be said to have 'leased out' the land to himself, and as such the provisions of Section 15 -A of the Act could not be made applicable to such land, which was held by the jagirdar as khudkasht land, before the resumption of his jagir.

(2.) IN this writ petition, learned Deputy Government Advocate, appearing for the State of Rajasthan, submitted that the provisions of Section 15 -A were clearly applicable to the land in question and khatedari rights could not accrue to the former jagirdar upon the resumption of his jagir, because the application of the provisions of Section 13 were clearly excluded by Section 15 -A of the Act. It was submitted that the decision of the Board of Revenue was erroneous on the very face and deserves to be set aside by this Court.

(3.) IF the land in question would not have been situated in the Rajasthan Canal area, the ex -jagirdar Sanwal Dan on resumption of his jagir under the Tagir Resumption Act would have become Pkhatedar tenant of such land which was held by him as khudkasht prior to the date of resumption, in accordance with the provisions of Section 13 of the Act. But as the land in dispute was situated in the Rajasthan Canal area, the application of the provisions of Section 13 of the Act to the land in dispute was excluded because of the provisions of Section 15 -A. ft may be pointed out that Section 15 -A begins with a non -obstente clause and the provisions of Section 13 or of any other law for the time being in force are excluded from operation, in respect of lands situated in the Rajasthan Canal area. The Board of Revenue in its decisions in the cases of Mohansingh and Padamsingh, referred to above, as also in the present case, has said emphasis on the expression 'leased out', occurring in Section 15 -A and has emphasised that a landholder who held land in his khudkasht could not be said to have leased out the land to himself and as such Section 15 A of the Act has no application. To was also observed by the Board of Revenue that the holder of the khudkasht land, who was formerly the jagirdar, automatically became a khatedar tenant on the resumption of his jagir lands or the abolition of jagir under the provisions of Jagir Resumption Act. In Padamsingh's case 1970 RRD 58 the learned Member of the Board of Revenue observed as under: It is clear from a perusal of the above that the lands covered by this section are the lands underlease Now the non -petitioners in this case are entered as khudkasht holder in the Misal Bandobast for St 2006. As stated above, Khudkasht lands cannot be deemed to be under lease. No doubt, Section 15 -A mentions the phrase 'notwithstanding anything contained in Section 13, yet its operative part applies only to cases of lease and as a land holder who holds land in his khudkasht cannot be said to have leased it out to himself, this section will not govern his case. The same reasoning was applied in Mohansingh's case 1970 RRD 23 & was adopted by the learned Member of the Board of Revenue in the present case as well. However, another Member of the Board of Revenue, in a subsequent case in State of Rajasthan v. Suraj Kumar 1977 RRD 576 took a different view from that taken earlier in the aforesaid two cases and observed that the earlier decisions did not consider the proper implications of the non -obstente clause.