HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 1154/2019
In
S.B. Civil Writ Petition No.2102/2007
Bajranglal Agarwal S/o Shri Chhajuram Choudhary, Aged About
69 Years, aged 69 years, R/o Samod, Presently R/o C-10,
Choudhary House, Sawai Jai Singh Highway, Banipark, Jaipur
—-Appellant-Petitioner
Versus
1. Board Of Revenue, Ajmer
2. The Settlement Commissioner, Jaipur
3. The Settlement Officer, Jaipur
4. The Assistant Settlement Officer, Chomu
5. Shyam Sunder Bhatra S/o Shri Nathmal Bhatra, R/o
Chomu District Jaipur Since Deceased Through His Legal
Heirs
5/1 Kamal Sharma S/o Late Shyam Sunder Bhatra,
Resident Of Near Bandha Ringus Road, Chomu District
Jaipur
5/2 Samptti D/o Late Shri Shyam Sunder Bhatra W/o Shri
Pawan Kumar Sharma, Resident Of Near Bandha Ringus
Road, Chomu District Jaipur
5/3 Snehlata D/o Shri Shyam Sunder Bhatra W/o Shri
Harihar, Resident Of Near Bandha Ringus Road, Chomu
District Jaipur
5/4 Ansu @ Meena D/o Late Shri Shyam Sunder Bhatra,
Resident Of Near Bandha Ringus Road, Chomu District
Jaipur
5/5 Vijay Kumar Sharma S/o Late Shri Shyam Sunder
Bhatra,
All residents of Near Bandha Ringus Road, Chomu District
Jaipur
6. Kabbu Lal S/o Shri Raghuvar Dayal, By Caste Nai (Since
Deceased) Through His Legal Heir
6/1 Smt. Vimla Devi W/o Kabbulal,
6/2 Kiram Devi W/o Vikram D/o Kabbulal,
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6/3 Jyoti D/o Kabbulal,
6/4 Kamal D/o Kabbu Lal,
All residents of Village Chomu District Ajitpura @ Baseda
Tehsil Niwai District Tonk
Respondents/Non-petitioners
7. Prakash Chand S/o Ram Chandra, By Caste Jangid R/o
Chomu Tehsil Chomu District Jaipur
8. Ramesh Chand S/o Ram Chandra, (Since Deceased)
Through His Legal Heirs
8/1 Smt. Lalita W/o Late Ramesh Chand,
8/2 Gajanand S/o Late Ramesh Chand,
8/3 Himanshu S/o Late Ramesh Chand,
8/4 Rohit Kumar S/o Late Ramesh Chand,
8/5 Seema D/o Late Ramesh Chand,
9. Rameshwar S/o Ramchandra,
10. Rajendra S/o Ram Chandra, (Since Deceased) through His
Legal Heirs
10/1 Rajiv S/o Late Rajendra,
10/2 Ajay S/o Late Rajendra,
10/3 Renu D/o Late Rajendra,
10/4 Madhu D/o Late Rajendra,
10/5 Sonu D/o Late Rajendra,
All By Caste Jangid R/o Chomu Tehsil Chomu District
Jaipur
11. Smt. Anju Devi W/o Shri Puran, By Caste Jangid Brahmin,
R/o Chomu Tehsil Chomu District Jaipur
12. Nicky,
13. Vicky,
14. Guddu,
All minor through natural guardian and mother Smt. Anju
Devi W/o Shri Puran R/o Chomu Tehsil Chomu District
Jaipur
15. State Of Rajasthan Through Tehsildar, Chomu District
Jaipur
Proforma Respondent
16. Dwarkia Prasad Sharma S/o Shri Damodar Prasad
Sharma, By Caste Bagra Brahmin, R/o Village Daulatpura
Kota Tehsil Ajmer District Jaipur
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—-Respondent/Non Petitioner
For Appellant(s) : Shri Satya Narayan Kumawat
For Respondent(s) : Shri Rajendra Prasad, Sr. Advocate
assisted by Shri Pawan Pareek, Shri
Raghvendra Singh, Shri Karan
Tiberwal and Shri Deepak Sharma
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE PRAKASH GUPTA
Judgment
25/09/2019
(PER HON’BLE MOHAMMAD RAFIQ, J.)
The present appeal has been filed by the appellant assailing
the judgement of the learned Single Judge dated 12.7.2019, by
which the writ petition filed by him has been dismissed.
The appellant in the aforesaid writ petition has challenged
the judgement of the Board of Revenue dated 28.2.2006 by which
the revision petition filed by respondent no.5-Shyam Sunder
Bhatra was allowed and he was declared khatedar of the land
comprising in khasra no.1919/1/2 measuring 1 bigha 3 biswa
situated in village Chomu, District Jaipur.
Facts giving rise to this appeal are that one Kanhaiyalal S/o
Balu was recorded as khatedar of the land bearing old khasra
no.1919/1 measuring 1 bigha 2 biswa situated in village Chomu,
District Jaipur. The State Government issued a notification u/s.4 of
the SectionLand Acquisition Act, 1953 for acquiring 32 bigha 11 biswa
land including land of khasra no.1919/1 to install 132 KV gird sub-
station at Chomu. While the acquisition proceedings under
process, the said khatedar Kanhaiyalal died leaving behind his
widow Smt. Narayani Devi and son Kabbulal. The land was
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therefore mutated in their name. In the meantime, Smt. Narayan
Devi sold the said land to Shyam Sunder Bhatra by registered sale
deed dated 12.9.1973. The Land Acquisition Officer awarded
compensation to the tune of Rs.1039.50 for acquiring land of
khasra no.1919/1 and issued notice to Smt. Narayani Devi to
receive the same, who filed an application before him stating that
she has sold the land to Shyam Sunder Bhatra, it should be paid
to him. In the meantime, an application was moved before the
Assistant Settlement Officer, Chomu on 21.3.1990 for correction of
entries in respect of khasra no.1919/1 by the appellant-Bajrang
Lal Agarwal and Meena Lal Agarwal on the premise that the
boundaries of previous khasra no.1912/2 was touching the road
from Chomu to Morija. They purchased the land from Rudalal Jogi
by registered sale deed. The present khasra numbers of that land
was 3849, 3851, 3852 and 3853. This land had wrongly been
entered in the khata of Ram Chandra and Mohan Lal and in fact
belonged to them. It was also mentioned that Ram Chandra and
others have filed a civil suit in this regard in the Court of
Additional Chief Judicial Magistrate, Chomu, which is pending. The
Assistant Settlement Officer allowed the application by order dated
28.4.1990 and directed that aforesaid land of present khasra
no.3849 area 0.11 hectares, 3851 area 0.02 hectares, 3852 area
0.08 hectares and 3856 area 0.08 hectares, total area 0.29
hectares be recorded in the name of Government and also
directed that the land of khasra no.3849, 3851 and 3852, total
area 0.6 hectares be reduced and entered in the khatedari of
aforesaid applicants.
Aggrieved by the aforesaid order of the Assistant Settlement
Officer dated 28.4.1990, Shri Shyam Sunder Bhatra-respondent
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no.5, filed appeal before the Settlement Officer, Jaipur on the
premise that Assistant Settlement Officer neither issued any
notice, nor gave opportunity of hearing to him before passing the
aforesaid order. It was also stated in the application that some
part of the Chomu to Morija road falling in northern side in khasra
no.1919/1 and some part in southern side was left free. This land
was never acquired, nor surrendered in favour of the government.
Another part of the disputed land on the southern side of the road
was comprising in khasra nos.6756, 6761, 6764, 6765, 6766,
6767, 6783 and 6761/7355. These lands were entered in favour of
the appellant-Bajrang Lal Agarwal and others and lands of
northern side of the road were comprising in new khasra
nos.3849, 3851, 3852, 3853, which were covered by the road and
were ordered to be recorded in the name of the government. The
prayer was made that the order dated 28.4.1990 be set aside and
a parcha be issued in favour of Shyam Sunder Bhatra. The
Settlement Officer by order dated 30.01.1991 allowed the appeal
and remanded the matter to Assistant Settlement Officer, Chomu.
The Assistant Settlement Officer, Chomu after remand,
examined the record and directed the Tehsildar to inspect the site
and submit the inspection report. On examination of report of
inspection, statement of neighbours and other records, the
Tehsildar found that land of old khasra no.1919/1/2 belongs to
Shyam Sunder and other neighbours. He also held that present
khasra nos.3849, 3851, 3852 and 3856, total area 0.29 hectares
were not in road boundary and therefore should be restored back
in the khatedari of Shyam Sunder Bhatra and accordingly
corrections be made in the jamabandi. Aggrieved by that order
of the Assistant Settlement Officer dated 27.02.1991, Prakash
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Chandra son of Ram Chandra filed appeal before the Settlement
Officer, Jaipur. The Settlement Officer heard the arguments and
decided the appeal ex-parte in favour of Prakash Chandra and
others thereby setting aside the order of Assistant Settlement
Officer, Chomu dated 27.2.1991 and directed that the lands of
khasra nos.3849, 3851, 3852 and 3856 total measuring 0.29
hectares should be restored back to the khata of Prakash Chandra
etc.
It may be significant to note at this stage that the appellant-
Bajrang Lal and others did not file any appeal or revision petition
against the order of the Assistant Settlement Officer dated
28.04.1990 and appeal was filed only by Prakash Chandra and
others. Shyam Sunder Bhatra aggrieved by the order dated
13.11.1995 filed further appeal before the Settlement
Commissioner, Jaipur, which was dismissed by order dated
24.3.2003. During the pendency of the aforesaid appeal, Bajrang
Lal, the present appellant, filed an application under Order 1 Rule
10 CPC for his impleadment as party. The Settlement
Commissioner vide order dated 24.3.2003 dismissed the appeal.
Aggrieved thereby, the respondent-Shyam Sunder Bhatra filed
revision petition before the Board of Revenue, which was also
dismissed by order dated 7.12.2004. It was thereafter that the
respondent no.2-Shyam Sunder Bhatra filed review petition before
the Board of Revenue. The Board by order dated 28.2.2006
allowed the review petition. Aggrieved thereby, the appellant
Bajrang Lal Agarwal filed special appeal with an application under
Section 10 of the Land Revenue Act seeking leave to file appeal
before the Board of Revenue. The Board of Revenue, Ajmer by
order dated 7.2.2007 dismissed the application on the ground that
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no appeal lies under Section 10 of the Land Revenue Act against
the decision of the Single Bench of the Board in the review
petition. It is thereafter that he filed the writ petition, which was
dismissed by the impugned order.
Shri Satya Narayan Kumawat, learned counsel for the
appellant has argued that the learned Single Judge has failed to
appreciate that the impugned judgment dated 28.2.2006 and
7.2.2007 passed in Review Petition No.92/2005 and application for
leave to special appeal under Section 10 of Land Revenue Act
against the judgement of learned Single Member of the Board of
Revenue Ajmer are perse illegal, arbitrary, perverse, contrary to
the provisions of Order 47 Rule 1 CPC read with Section 86 of the
Land Revenue Act 1956. They have been passed against the
material available on record and are not sustainable in the eye of
law. They are therefore liable to be quashed and set aside and
consequent thereto, the judgment passed by the Board of
Revenue in Revision Petition No.30/2003, dated 7.12.2004 and
dated 24.3.2003 passed by the Settlement Commissioner and
dated 23.11.95 passed by the S.O Jaipur are liable to be upheld.
Learned counsel for the appellant further argued that the
learned Single Judge has most seriously erred in having failed to
consider that against the judgment dated 7.12.2004 passed by
Shri Rajeev Swaroop, the Member of Board of Revenue, the
respondent No.5 preferred a review petition before the Board, as
Mr. Rajeev Swaroop was transferred, the sitting Member Mr. N.K.
Jain after hearing the Review Petition allowed the same and set
aside the order passed by the Board in revision petition. The
Board committed gross error of law in not re-hearing the original
revision on its merits. The Division Bench of the Hon’ble High
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Court in the case of Maji Mohan Kanwar and others versus the
State of Rajasthan and Ors.AIR 1967 Raj 264 has held that Scheme
of Order 47 CPC provides three stages for hearing after a review
application is placed before the Judge or Judges under sub-Rule
(1) of Rule 4. At that stage, if the Court is satisfied that one or
more of the grounds detailed in Rule 1 is prima facie made out, it
should order that notice to be issued to the opposite party to
enable him to appear and be heard in support of judgment or
order whose review is applied for. At that stage, if the Court
comes to the conclusion that the application for review should be
granted, then the third stage is reached under Rule 8 after the
original case is registered and the court re-hears it on merits.
After re-hearing the original case, it may either result in reversal
or variation in the former judgment, decree or order.
Learned counsel for the appellant submitted that the learned
Single Judge has failed to consider that the learned Board of
Revenue further grossly erred in setting up entirely a new case at
the stage of Review Petition and observing that from the revenue
record, Khatedari of Shyam Sunder Bhatra in respect of Khasra
No.1919/1/2 is proved and the same was not acquired by the
RSEB for installation of 132 KV Grid Sub-Station at Chomu vide
Gazette Notification dated 28.11.1970. Since no such ground is
available for assuming that Khasra No.1919/1/2 has been wrongly
recorded instead of Khasra No.1919/1 and the fact in dispute is
proved from the entries of Mutation No.1296, the learned Single
Member of Board grossly erred in placing reliance on entries made
in Mutation No.1296. Since the mutation is a fiscal proceeding and
does not confer any right, title or interest in favour of person
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whose name is shown in the mutation, this practice and approach
so adopted by the learned Board is perse illegal, arbitrary and
therefore is liable to be quashed and set aside in supervisory
jurisdiction of this Court under SectionArticle 226 of the Constitution of
India.
Learned counsel for the appellant contended that the learned
Single Judge has failed to consider that the Board of Revenue
further grossly erred in not taking into consideration that the
Settlement Commissioner, Jaipur in its detailed judgment dated
24.3.2003 while dismissing the second appeal observed that the
land bearing Khasra No.1919/1/2 did not exist on the date of its
acquisition in the year 1970-71. Therefore, the purported sale
deed dated 12.9.1973 (i.e. sale made after issuance of notification
under Section 4 of the Land Acquisition Act) is ab-initio void and
the delineation of separate Khasra No.1919/1/2 measuring 1
Bigha 3 Biswa was cancelled with the direction that this land be
merged with the old Khasra No.1919/1 and also directed to cancel
the mutation No.641 dated 28.2.1974 sanctioned on the basis of
ab-initio void sale deed dated 12.9.1973 and accordingly the
Settlement Commissioner Jaipur has quashed the orders of the
Lower Courts dated 27.2.1991, 30.1.1991 and 13.11.1995.
Learned counsel for the appellant argued that learned Single
Judge as well as learned Board of Revenue has ignored this vital
aspect of the case that the Settlement Commissioner Jaipur has
while exercising its appellate jurisdiction has on the basis of
pleading and evidence held that the appellant Shyam Sunder
Bhatra could not prove that the deceased Kanhiaylalal S/o Balu
held more than 1 Bigha 3 Biswa land. This land stands acquired
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but the appellant under collusion with the revenue department
wrongly got the said land recorded in the name of Kanhaiyalal S/o
Balu in Khasra No.1919/1/2. The boundaries of the land as
mentioned in the registered sale deed dated 12.9.1973 do not
tally. The Court in para No.6 to 12 of the judgment in detail has
held that the sale deed is in respect of the land, which is not in
existence, therefore, it is ab-initio void.
Shri Rajendra Prasad, learned senior counsel for the
respondents has opposed the appeal and submitted that the
notification under Section 4 of the Land Acquisition Act, 1983 for
acquiring the land of khasra no.1919/1 measuring 1 bigha and 3
biswas was issued on 24.2.1970. Possession of the land was taken
over on 13.1.1971 by Municipal Board. The award for payment of
compensation was passed by the Land Acquisition Officer on
31.1.1974. The appellant-Bajrang Lal Agarwal purchased the land
measuring 32 bighas and 11 biswas much thereafter on
11.1.1982. The Settlement Officer therefore did not have any
power to amend the notification of acquisition. The respondent
no.5-Shyam Sundar Bhatra purchased the land measuring 1 bigha
and 3 biswas of khasra no.1919/1/2. Khasra nos.1919/1, of which
land was acquired and the land of khasra no.1919/1/2, which was
purchased by respondent no.3 were both different lands and
therefore were separately numbered, much prior to the acquisition
proceedings. As per the Milan Khasra prepared at the time of
subsequent survey by the Settlement Department, the new khasra
nos.3849, 3851, 3852 and 3856 were given to the land of khasra
no.1919/1/2, which is placed on record as Annexure-R-5/1. Shri
Rajeev Swaroop, learned the then Member of the Board of
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Revenue by its judgement dated 7.12.2004 incorrectly held that
khasra no.1919/1 was mentioned in the notification instead of
khasra no.1919/1/2 by mistake. When original khasra no.1919/1
was mentioned in the notification under Section 4 of the Land
Acquisition Act, no correction of that number could be made at the
level of settlement authority. The notification for acquisition under
Section 4 was issued on 24.2.1970, possession of the land was
taken over on 13.1.1971 and the award was passed on 31.1.1974.
If any mistake had actually crept in the notification issued by the
State, it could be corrected by the State Government only and
that too during acquisition proceedings. Reliance is placed on the
judgement of the Supreme Court in Ram Kishan Jaiswal vs. Indian
Institute of Technology-(2004) 13 SCC 412 and SectionD.D.A. vs. Samay
Singh-(2005) 13 SCC 682.
Shri Rajendra Prasad, learned senior counsel has argued that
Settlement Commissioner as well as Single Member of the Board
of Revenue Shri Rajeev Swaroop incorrectly and without
jurisdiction interfered with acquisition notification after it became
final. Since the judgement passed by the learned Single Member
of the Board suffers from error apparent on the face of the record,
the review petition was filed by respondent no.5 emphatically
agitating the issue that khasra no.1919/1/2 was not subject
matter of acquisition. Learned Member of the Board of Revenue in
the review petition required Tehsildar, Chomu to submit complete
report with regard to khasra no.1919/1/2. The Tehsildar, Chomu
vide his letter dated 5.7.2002 submitted the report dated
9.7.2002 stating that the land of khasra no.1919/1/2 measuring 1
bigha 3 biswas was in the jamabandi of Svt. 2039-42 recorded in
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the khata of Shyam Sundar S/o Nathmal Bhagra and that the
present khasra number of this land was 3849/0.11, 3851/0.02,
3852/0.08 and 3856/0.08, total measuring 4 rakba 0.29 hectares.
The learned Board of Revenue has rightly allowed the review
petition so as to correct the aforesaid error apparent on the face
of record by learned Single Member vide order dated 7.12.2004.
Shri Rajendra Prasad, learned senior counsel submits that
the appellant started interfering with the peaceful possession of
respondent no.5. He filed a suit for permanent injunction in the
Court of SDO, Chomu, which was decided vide judgement dated
27.10.2005, but the appellant was still interfering with the
peaceful possession of respondent no.5. The suit was decreed in
favour of respondent no.5 by issue of permanent injunction. In
fact, he filed an application for treating khasra no.1919/1/2 in
place of khasra no.1919/1. The finding recorded by the learned
Member of the Board Shri Rajeev Swaroop that the land of khasra
no.1919/1 could be treated as the land of khasra no.1919/1, had
no basis. It is contended that once the land is acquired and
possession is taken, it absolutely vests with the State Government
from all encumbrances as provided under Section 16 of the Act.
After passing of the award and taking over of possession, the land
was recorded in the name of RSEB, much before the proceedings
before Assistant Settlement Officer or Settlement Commissioner or
Board of Revenue. The learned Member Shri Rajeev Swaroop was
wholly unjustified in holding that the khasra no.1919/1/2 was by
typing mistake written as 1919/1. Another Member of the Board
Shri N.K. Jain, therefore, rightly held that on perusal of jamabandi
of Svt.2019, the land of khasra no.1919/1/2 measuring 1 bigha
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and 3 biswas was recorded in the name of Kanhaiyalal S/o Balu.
The corresponding year of Svt.2019 is 1961-62, which was much
prior to starting acquisition proceedings. It cannot therefore be
said to be a case of clerical mistake. After acquisition proceedings
and the acquisition having attained finality, description of the land
cannot be changed in the name of so-called typing mistake. The
proceedings before the Land Acquisition Officer for correction of
mistake, being summary in nature, the appellant had remedy of
suit under Section 125 of the Land Revenue Act, which he did not
avail. In fact, a suit filed at the instance of Ram Chandra and
others is pending before the Additional Chief Judicial Magistrate.
The order passed by the learned Board of Revenue in review
petition is therefore perfectly just and legal and does not require
any interference.
It is argued that the land of khasra no.1919/1/2 was existing
even prior to enforcement of the Rajasthan Tenancy Act and much
prior to the acquisition proceedings, which is evident from
jamabandi khatauni of Svt. 2010 to 2023 and entry in khasra
girdawari of Svt. 2016 to 2018 and 2029-2031. The copy of
khasra milan kshetraphal of the land of old khasra no.1912/2
indicates that now after settlement, the new khasra nos.3855,
3854, 3848, 3850, 3853 and 3849/7487, 3852/7489 and
3851/7488 belongs to appellant. The jamabandi of Svt. 2057 to
2060 indicates that the land of khasra no.3849, 3851, 3852 and
3856 are recorded in the name of Shyam Sunder Bhatra. The
report of Tehsildar indicates that land of old khasra no.1919/1/2
was never acquired in the name of acquisition proceedings for
RSEB. The disputed land is situated near the boundary of RSEB
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from north side and as per the revenue records and witnesses,
this land belongs to Shyam Sunder Bhatra. It is therefore that the
impugned order is perfectly just and legal and does not call for
interference by this Court, therefore, the appeal be dismissed.
We have given our anxious consideration to the rival
submissions and perused the material on record.
The learned Single Member of the Revenue Board in the
review petition examined the question whether the land of khasra
no.1919/1/2 was independently entered in the revenue records or
it was part of the land of khasra no.1919/1. On perusal of the
jamabandi of Svt.2019, the Board concluded that the khasra
no.1919/1/2 measuring 1 bigha and 3 biswas was recorded in the
name of Kanhaiyalal S/o Balu. Thereafter, the land was purchased
by the review petitioners from the legal heirs of Kanhaiyalal by
registered sale deed dated 12.9.1973 and mutated in their favour
vide mutation no.641 from 28.2.1974. The jamabandi of Svt.2039
to 2042 recorded this land in favour of Shyam Sunder Bhatra. The
report of the Tehsildar dated 18.5.2000 also confirmed that the
land of khasra no.1919/1/2 measuring 1 bigha and 3 biswas was
recorded in the name of review petitioners and the new khasra
numbers thereof were 3849 area 0.11 hectares, 3851 area 0.02
hectares, 3852 area 0.08 hectares and 3856 area 0.08 hectares.
It is proved that the former khasra no.1919/1/2 was now entered
as khasra nos.3849, 3851, 3852 and 3856 and that the former
khasra no.1919/1 was separately in existence and was shown in
different 10 numbers. The learned Board of Revenue therefore
concluded that it is clear from the revenue records that khasra
no.1919/1/2 min and khasra no.1919/1 min were two separate
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and independent khasra numbers. The fact that in revenue map,
land of khasra no.1919/1/2 was not separately indicated, does not
mean that this was not an independent khasra and was part of
land of khasra no.1919/1. The learned Board of Revenue referred
to the `girdavari’ of Svt.2024 to 2026 and `jamabandi’ of
Svt.2019, in which khasra no.1919/1/2 measuring 1 bigha and 3
biswas was separately shown in the name of khatedar Kanhaiyalal
S/o Balu and khasra no.1919/1 measuring 8 bighas and 8 biswas
in the name of Ram Kishore, Anandi Lal Jodha, Balabux
Vidhyadhar, Jagdish, Gheesa Lal B/c Brahmin as his khatedars.
The notification u/s. 4 of the SectionLand Acquisition Act was issued on
27.11.1970 to acquire land of khasra no.1919/1, measuring 1
bigha and 3 biswas for setting up 132 KV grid Sub-station, Chomu
in favour of the RSEB, whereas the land of khasra no.1919/1/2
recorded in the name of review petitioners was of different
number. Mutation no.1296 indicated that the total rakba of khasra
no.1919 was 8 bighas and 8 biswas, out of which, 1 bigha and 3
biswas was mutated in favour of RSEB for 132 KV grid Sub-station
and remaining 7 bighas and 5 biswas continued to be recorded in
the name of Mohanlal etc. On this basis, the learned Board of
Revenue has concluded that the stand of the appellant herein that
land of khasra no.1919/1/2 was acquired for setting up of 132 KV
grid Sub-station, was not proved.
The learned Board of Revenue in the order accepting the
review petition has further held that there was no basis of the
finding recorded by the Settlement Officer in his order dated
24.3.2003 that khasra no.1919/1 was mentioned in the
notification of acquisition of RSEB due to typographical error and,
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in fact, it should have been 1919/1/2. The Board concluded that
the Settlement Officer assumed this on the basis of the fact that in
the revenue map, land of khasra no.1919/1/2 was not separately
indicated, whereas in the revenue records and the report of the
Tehsildar, it was clearly indicated separately and also that the land
of khasra no.1919/1 measuring 1 bigha and 3 biswas was
acquired for setting up of 132 KV grid Sub-station of RSEB and
that the land of khasra no.1919/1/2 was never acquired and it
was in existence independently. The Board therefore concluded
that the Settlement Commissioner without any basis merely on
assumption or inference that the acquisition of the land of khasra
no.1919/1 was result of typographical error and, in fact, the land
of khasra no.1919/1/2 should have been indicated which by
mistake was indicated as khasra no.1919/1 and the learned Single
Member of the Revenue Board Shri Rajeev Swaroop accepted that
assumption as correct and wrongly rejected the revision petition,
which amounted to error apparent on the face of record because
the land of khasra no.1919/1/2 was neither acquired, nor was
there any basis for arriving at the conclusion that the acquisition
of the land of khasra no.1919/1 was result of typographical error.
In fact, the land of khasra no.1919/1/2 was expected to be
acquired. This was substantiated from the fact that while total
rakba of the land measuring 1919 was 8 bighas and 8 biswas, out
of which after acquisition of 1 bigha and 3 biswas for 132 KV grid
Sub-station, the remaining rakba of 7 bighas and 5 biswas was
continued to be recorded in the name of khatedars as evident
from mutation number 1296.
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(17 of 18) [SAW-1154/2019]
In our considered view, the learned Single Judge in the
impugned order relying on various judgements of the Supreme
Court viz. SectionWaryam Singh vs. Amarnath-AIR 1954 SC 215,
SectionBathutmal Raichand Oswal vs. Laxmibai R. Tarta-(1975) 1 SCC
858 and SectionNagendra Nath Bora vs. Commissioner of Hills Divisions-
AIR 1958 SC 398, has rightly held that the power of
superintendence conferred on this Court under SectionArticle 227 of the
Constitution of India being extraordinary was to be exercised most
sparingly and only in appropriate cases. This Court while
exercising jurisdiction under Article 227 interfere with the findings
of fact recorded by the subordinate court or Tribunal functioned
within the limits of its authority and that it could not correct mere
errors of fact by examining the evidence or re-appreciating it.
Powers of judicial interference under SectionArticle 227 of the
Constitution with orders of judicial or quasi-judicial nature, are not
greater than the powers under SectionArticle 226 of the Constitution.
Under SectionArticle 226, the power of interference may extend to
quashing an impugned order on the ground of a mistake apparent
on the face of record. But under SectionArticle 227 of the Constitution,
the power of interference is limited to seeing that the Tribunal
functions within the limits of its authority.
On perusal of the order of the Board of Revenue passed in
the review petition, we are inclined to uphold the contention that
the learned Board of Revenue, when originally dismissed the
revision petition, merely upheld the order of Settlement
Commissioner considering the reasoning given by him that the
inclusion of the land of khasra no.1919/1 in the notification of
acquisition and the award of land acquisition was result of
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(18 of 18) [SAW-1154/2019]
typographical error, but later the Board of Revenue in review
petition found it to be an error apparent on the face of record as
he called for a detailed report from Tehsildar and reached at the
truth. In any case, the correction in the number of khasra in the
notice for acquisition issued under Section 4 and Section6 of the Act could
have been made only by State Government, which had acquired
the land and not subsequently after many years thereafter in this
manner by the Settlement Officer or the Settlement
Commissioner. The Board in our view, in the review petition has
rightly overturned its earlier judgement. Rather than reviving the
revision petition for duplication of the proceedings to re-hear the
same and then pass the same order again, the Board cannot be
said to have committed any such error as may warrant
interference by this Court.
We are not inclined to uphold the argument that the appeal
against the judgement of the Board passed in revision petition
should have been entertained by the division bench of the Board.
It is only if the Board in the Single Bench has decided an appeal
that subsequent appeal before the division bench of Board could
have been entertained and therefore the revision petition was
rightly entertained and allowed.
In view of above discussion, we do not find any merit in this
appeal, which is accordingly dismissed.
(PRAKASH GUPTA),J (MOHAMMAD RAFIQ), Acting CJ
RAVI SHARMA /31
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