RAM BHAROSE SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE 3 Special Appeals filed under Section 18 of the Rajasthan High Court Ordinance arise out of the same order of the learned Single. Judge dated February 17, 1986, therefore, all the 3 appeals are disposed of by ibis one judgment.

(2.) THE subject matter of the dispute is the property known as Chota Ramdwara, situated near Diggi House, Jaipur. There are other two gfants also in village Bhawani Shuckerpura aisd Aakodiya. The State Government issued a Notification under Section 21 of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (hereinafter called as 'the Act') and appointed 01 -07 -1963 as the date of resumption of all Jagir lands with an annual income below Rs. 1,000/ - according to the original grant and the income of which is utilized for maintenance of any place of worship. When the possession of the grant Chbota Ramdwara was not delivered to the State Government, steps for taking over possession were taken by the Government in the year 1966, which was challenged by the respondent Mahant Ram Swaroopin D.B. Civil Writ Petition No. 958/66, before this court. This writ petition of Mahant Ram Swaroop was accepted on 10 -07 -1967 on the ground that before taking possession of the property resumed, the State Government has not followed the procedure prescribed under the Act and the rules It was further observed by this Court that the State Government will be at liberty to take any action according to law, but the property cannot be resumed by administrative action. In view of the Judgment of this Court, the Collector, Jaipur appointed Tebsildar. Jaipur to take charge of the disputed property and did not refer the question to the Jagir Commissioner. Respondent Mahant Ram Swaroop claimed the property as his personal property and filed an application on 28 -09 -1967, under Section 23 of the Act for declaration of the disputed -: property as his personal property. The Jagir Commissioner sent his application to the Collector for enquiry and report. The Collector Jagir sent his report and recommended for declaration as personal property on the ground that 'Matmi' has been sanctioned in the past as Nihang Pujari of Ramdwara (ten?ple of Mahadeoji) in favour of respondent Ram Swaroop as such it may be declared as personal property in the same capacity. Tehsildar. Jaipur also, after enquiry, sent his report on 09 -01 -1968. How ever, the Jagir Commissioner after perual of the entire documents and evidence produced by the parties, was of the view that the entire grant belongs to the temple of Mahadeoji including Ramdwara and the status of the Mahant is found only that of a 'Pujari' and as such he is not entitled to get the disputed property declared as his personal property. The Jagir Commissioner while rejecting the application of Mahant Ram Swaroop on 29 01 -1977, did not make any enquiry regarding the fact that who is jagirdar and whether the property liable to be resumed by the State nor any findings on these questions were given by him. The State Government and Mahant Ram Swaroop both filed separate appeals against the said order of Jagir Commissioner before the Board of Revenue. The State Government contended that the Jagir Commissioned' should have held that the property vested in the State after resumption and is Government -property rather than holding it to be the temple property. Mahant Ram Swaroop, on the other hand contended that the nature of the property in dispute is covered under Section 23 of the Act and therefore, he as entitled of get it declared as his personal property. The Board of Revenue heard the appeals and vide its judgment dated 2105 -1981 rejected the appeal filed by the State as not maintainable since no order had been pasted by the Jagir Commissioner regarding the disputed property under Rule 21. The appeal of Mahant Ram Swaroop was allowed and the order of Jagir Commissioner dated 29 -01 -1977 was set -aside and the Board of Revenue gave a direction to the Jagir Commissioner to strictly comply with the order of this Court for taking action under Rule 21 so that no settlement is created in view of the observations of this Court in the wait petition. It was further directed that it would be desirable for him to give notice to the Devsthan Department as well as the plaintiffs in the civil suit pending before the Additional District Judge No. 1, Jaipur City and pass a fresh order not only under Section 23 of the Act, but also under Rule 21 as well, It was further directed that if the Jagir Commissioner feels that Mahant Rem Swaroop who had got married and is having children and has ceased to be 'Nihang Pujari' and therefore, cannot safeguard the interest of the Idol Mahadeoji, the appropriate steps may be taken under the provisions of law for proper representation of the Idol in these proceedings, Mahant Ram Swaroop filed a write petition before this Court against the order of remand passed by the Board of Revenue Another writ petition No. 780/86 against the order of Devsthan Commissioner pertaining to the same property was also filed by Ram Swaroop Both these wit petition were consolidated and decided by the judgment under appeals.

(3.) THE contention of learned Counsel for the appellants is that the learned Single Judge while setting aside the orders of Board of Revenue dt. May 21, 1981 as well as the order of Jagir Commissioner dated January 29, 1977 erred in declaring that the property in question, namely 6 bighas of land granted in 'Udak' known as 'Chhota Ramdwara' in the town of Sawai Jaipur (Kishanpole) to be the private property under Section 23 of the Act. It is contended that similarly the learned Single Judge also erred in allowing writ petition No. 780/85 and set -aside the order of Commissioner, Devasthan dated June 24, 1982 and directed that no further enquiry shall be made under the provisions of Rajasthan Public Trust Act, 1959. It is pointed out that none of the courts below or the Board of Revenue gave any declaration that the property in dispute is the personal property of Mahant Ram Swaroop. The writ petition had been filed against the order of Board of Revenue, by which the order of the Jagir Commissioner was set -aside and the matter was remanded for fresh enquiry as directed in the order. Therefore, no relief by way of declaration that the property in dispute Chhota Ramdwara along with the house and open land etc. were the personal properties of Mahant Ram Swaroop could have been granted in the writ petition. The Board of Revenue only desired that the order of this Court dated 10 -7 -1967 be strictly complied with before deciding the matter in dispute. In the said order, the Court observed that 'the question whether the property is the absolute property of the petitioner 'Mahant' (respondent No. 4) so as to fall outside the scope of the Act is essentially one of the fact and in its extraordinary jurisdiction under Articles 226 of the Constitution, we find ourselves unable to deal with it'.