N. C. SHARMA, J. - (1.) PETITIONER Nanagi, through her civil writ petition No. 4846/1991, is invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India by asserting that Ganesh had three sons named Bholu, Chhotu and Panna who were in cultivatory possession of 120 bighas 2 biswas land forming a part of the total land comprised in Khasra No. 6 and situated in village Mahapura alias Kookarkhera and that she is one of the two daughters of Bholu deceased and is holder of a general power of attorney from all the other heirs of said Bholu.
(2.) SHE refers to a letter bearing No. F. 7 (603) Rev-ka/88 dated July 30, 1970 alleged to have been sent by the Deputy Secretary to the Government in Revenue Department to the Cheif Conservator of Forests, Rajasthan Jaipur conveying sanction of the State Government for transferring forest land measuring 106 bighas 3 biswas of bir Mugana Mahapura situated in village Kookarkhera to the Revenue Department for the purpose of allotting the same for agricultural purpose in accordance with Rules. In the said letter, this much extent of forest land was to be in cultivatory possession of (1) Bhura son of Chhotu, (2) Deva son of Dhanna, (3) Chhotu son of Ganesh etc. The letter closed its contents by stating that now it was not necessary to await the decision of the case pending in the Court for conferment of Khatedari rights on the applicants over this land. In pursuance of the order this Court dated 5. 9. 91, the petitioner produced certified copies of entries is Khasra Girdawari from Samvat year 2012 to 2045 as Annexure 9 to 14. Khasra Girdawari entries from 2012 to 2015 (Annexure 9) records the total area of the land under Khasra No. 2/1 as over 500 bighas. This land is recorded as 'forest land' under the Forest Department. In various Samvat years, about 60 bighas land is shown in the cultivatory possession of Panna, Bholu, Chhotu, Soojya Gujars and Ganesh Mali. In Samvat 2016, the total cultivated area is shown as 79 bighas 19 biswas and cultivation is shown as that of three sons of Ganesh Gujar, Bhoora s/o Chhotu Gujar and Ganesh Mali. In Khasra Girdawari entry of Samvat 2018 (Annx. 10), total area cultivated is mentioned as 78 bighas 19 biswas, it is further mentioned that 17 bighas 10 biswas was cultivated by Panna, 18 bighas 14 biswas by Chhotu and 18 bighas by Bholu, all sons of Ganesh. An area of 9 bighas 15 biswas as cultivated by Bhura s/o Chhotu Gujar and 15 bighas by Ganesh Mali. Same reflection is made in the entry of Samvat 2019. It will appear from the contents of notice dated 5. 8. 75 (Annx. 3) issued by the Additional District Magistrate, Jaipur District that relying on the letter of the Deputy Secretary, Revenue Department dated 30. 7. 70, the Forest Officer, Jaipur had transferred possession of 106 bighas 2 biswas land out of the total land comprised in Khasra No. 6 to Tehsil Jaipur on 8. 12. 70. On 30. 11. 71 Tehsildar, Jaipur proposed that in view of the Government order referred to above, Khatedari rights may be recognised in favour of Bhura s/o Chhotu, Deva s/o Dhanna and Chhotu s/o Ganesh over 106 bighas 2 biswas land and the proposal was approved by the Sub-Divisional Officer, Jaipur on 6-12-71. Consequently, Tehsildar, Jaipur opened mutation No. 67 and recorded Khatedari rights in respect of Sawai Chak (Revenue Department) land bearing Khasra No. 6/3 measuring 106 bighas 2 biswas (Banjar I) in favour of Bhura s/o Chhotu, Deva s/o Dhanna and Chhotu s/o Ganesh in equal shares and converted the classification of land as "barani Soyam" = 103 bighas 18 biswas and Ghair mumkin 2 bighas 4 biswas and rent was fixed as Rs. 62. 34. The Additional Collector, Jaipur was of the view that according to the orders of the Government dated 30. 7. 73 land was to be allotted to above named three persons in accordance with rules but the Tehsildar, Jaipur without making any enquiry as to how many persons were in cultivatory possession of the above land, submitted his proposals to the Sub-Divisional Officer, Jaipur also unauthorisedly and irregularly accorded incorrect approval leading the Tehsildar to open mutation No. 67. The Additional Collector, after perusing the Khasra Girdawari entire from Samvat 2003 to 2015 and records of Forest Department noted that apart from Bhura, Deva and Chhotu, the above land was also in possession of Panna, Bhoriya, Suja and Ganesh etc. The Additional Collector, Jaipur, therefore issued notice to Bhura, Deva and Chhotu to show cause as to why he should not make a reference under section 82 of the Rajasthan Land Revenue Act, 1956 and section 232 of the Rajasthan Tenancy Act, 1955 to the Board of Revenue for Rajasthan for cancellation of mutation No. 67 approved by the Sub-Divisional Officer. It appears that Bholu son of Ganesh had also made a grievance before the Additional Collector, Jaipur that apart from Bhura, Deva and Chhotu, he was-also in cultivatory possession of the land but he was not allottedlhe land and the Tehsildar and Sub-Divisional Officer had illegally conferred Khatedari rights in favour of above named three persons only. After hearing the matter, the Additional Collector, Jaipur by his order dated Dec. 24, 1981 made the reference to the Board of Revenue for Rajasthan for cancellation of mutation No. 67. The Board of Revenue decided the reference by its order dated 8. 08. 1989 (Annx. 5 ). The Board of Revenue held that the Tehsildar and the Sub-Divisional Officer, Jaipur did not proceed in the matter correctly. They should have first, in accordance with the orders of the State Government, declared the land as land held for agricultural purposes. Mutation should have been recorded changing the land from "forest land" to Sawai chak land. Thereafter allotment of- land should have been made after following the procedure and in accordance with the provisions of the Rajasthan Allotment of Land for Agricultural Purpose Rules, 1970 but all this procedure was not followed. The Board of Revenue, therefore, set aside mutation No. 67 approved by the Sub-Divisional Officer on 6. 12. 1971. Reference may next be made to acquisition proceedings relating to land bearing Khasra No. 6 measuring 120 bighas 2 biswas land held by the State Government. The State Government issued notification No. 3 (6) Industry/71 dated 12-6-1972 under section 4 of the Rajasthan Land Acquisition Act, 1953 showing its intention of acquiring the above land for setting up industries by the RIMDC. Survey of the land was conducted by Tehsildar Jaipur and he submitted his reports on 22-11-73 and 11-1-74. After consideration the report submitted to the State Government the Government issued a declaration u/s. 6 of the Rajasthan Land Acquisition Act, 1953 notifying that the above land was required for a public purpose of setting up of industries by Rajasthan Industrial & Mineral Development Corporation (RIMDC ). The Land Acquisition Officer, Jaipur gave his award Annexure R-2/5 on 27th Aug. 1974 with respect to the compensation to be awarded to the persons interested in the land. It appears from the award Annexure R-2/5 that claims for compensation were filed by (1) Deva s/o Panna, (2) Chhotu s/o Ganesh, (3) Bhura s/o Chhotu, (4) Kamruddin s/o Munir Mohammad, (5) Faiquddin s/o Kamruddin, (6) Durga Shanker Bhawan s/o Ganga Shanker, (7) Bholu s/o Ganesh, (8) Prabhu and Narga Ram s/o Ram Chandra and (9) the President of Pratap Nagar Housing Co-operative Society Ltd. Jaipur.
(3.) SO far as Bholu s/o Ganesh is concerned, he submitted in his claim that notice pertaining to only 14 bighas of land had been given to him while he had been in continuous possession over 35 bighas of land and his house existed over two bighas of land. The Land Acquisition Officer examined the Patwari Ishwar Singh who inter-alia stated that khasra No. 6/4 measuring 14 bighas was recorded forest land and was under cultivatory possession of Bholu s/o Ganesh. He also said that Bholu was also in possession of six or seven bighas. Ved Pal Madan, Overseer, PWD had made the valuation estimates. Ex. C. 12 in land acquisition proceedings was valuation of Kaccha houses of Bholu and Ex. C. 13 was their rough plan. SOme observations made in relation to the claim of Bholu s/o Ganesh made by the Land Acquisition Officer in his award may be extracted: "over the recorded as forest land, objector Bholu is in possession. He has built seven "kaccha" that had houses for his and family's use. Shri Madan has prepared estimate vide Ex. C. 12 and valued all the seven at Rs. 1669/- in case Bholu ever get any compensation he could be allowed Rs. 1669/- for his seven "kham houses for trees, I allowed Rs. 270/- to Bholu, of allowed. " One of the land acquired, a portion known as Khasra No. 6/4 measuring 14 bighas is recorded as forest. But it has come in evidence that this portion has been in continuous cultivatory possession and also was in possession on the date of acquisition of objector Bholu and that he and his family members have built about 7 Kham house on it. Objector Bholu asserted that besides this portion, on other substantial portion of this land he has been in possession and that because of mischeif of revenue officials, his name could not be recorded in revenue records and that the Tehsildar Jaipur has submitted a report to Collector, Jaipur for granting him Khatedari right. I have considered this matter. Though it seems correct that objector Bholu has been in continuous possession over 14 bighas of land recorded as forest land and has been cultivating it but the Land Acquisition Officer cannot go into the title of the individual and as to depend on the record. Objector Bholu must have moved a competent court long back to vindicate his right and get the entries corrected. It is settled law that the compensation has to be awarded in accordance with the title of each land holds in the joint land acquired irrespective of the fact whether they were in actual possession of more or less area on the date of acquisition. As for possession of objector Bholu Ex. 3 prepared by Shri Sant Kumar is clear, which says that he was found in possession over 14 bighas of land whch is recorded as forest land. In case Khatedari rights are conferred on objector Bholu with retrospective effect by the Collector or by some competent court, he would be entitled to get compensation at the rate decided by me for 14 bighas of land otherwise it being the forest land it could be transferred to RIMDC without any payment. If by competent order, Bholu would be found eligible to get compensation for this land, he would be entitled to get Rs. 370/- for trees. He has built seven Kham houses over this land. At present his status is that of a trespasser, yet it will be very hard on him to disallow the cost of his thatched houses that comes to Rs. 1669/- In case he is not found entitled to this land, he will be allowed to remove the 'malba' of these Kachha houses. Objector Bholu is an old and illiterate person. It seems readily heart rending to deprive him of his livelihood and house in view of the record. I am unable to allow any compensation to him. It would be better if the decision on the report of Tehsildar, Jaipur for conferring of Khatedari rights to him was considered early. In case of Bholu, if Khatedari is given to him on 14 bighas of land recorded as 'forest' retrospectively or he get to its title from a competent court, then he will get compensation of land @ Rs. 3750/- per bigha and would be entitled for compensation of his Kachha houses, dala, trees etc. as described above, otherwise he is entitled to remove 'malba' etc. of his house. In this case, Government may be requested to transfer 14 bighas of this land to RIMDC it being forest land on terms and conditions to be decided by it. The objector have requested that for their settlement plots in Industrial area may be allotted to them. There is no doubt that the claimants have been dislocated because of this acquisition and they shall have to seek new vocations and shift to other places. On humanitarian grounds, it shall be proper for RIMDC to allot industrial plots in their estate to some of them as would like to set up the industrial. This was the award of the Land Acquisition Officer, Jaipur in relation to Bholu s/o Ganesh. Bholu made an application on 8-10-74 (Annex. R. 2/6) to the Collector, Jaipur to make a reference to the Civil Court u/s. 18 of the Acquisition Act. The reference case No. 2 of 1975 came before the Civil Judge-cum-Additional Chief Judicial Magistrate, Jaipur District. The Land Acquisition Officer and RIMDC filed reply Annexure R-2/7 before the Civil Judge. However, it appears from the order of the Civil Judge, Jaipur District dated 16-11-78 that reference u/s. 18 of the Rajasthan Land Acquisition Act, 1953 was dismissed in default of appearance from the side of Bholu s/o Ganesh on that date. It may be mentioned here that Bholu had expired on 16-5-77 and an application Annexure R-2/9 was made on behalf of the legal representatives of Bholu (including the present petitioner) for substitution before the Civil Judge. That is one aspect of the matter. The other litigation was that sons and grandsons of Bholu filed a revenue suit against Deva, Bhura, Ram Sahai, Kalu, RIMDC and State of Rajasthan u/ss. 88 and 188 of the Rajasthan Tenancy Act, 1955 for a declaration that they are Khatedari tenants in land comprised in Khasra No. 6/5 (measuring 15 bighas), No. 6/7 (measuring 2 bighas 10 bigswas), 6/3 (measuring 2 biswas) and No. 7/7 (measuring 14 bighas) out of the total land comprised in Khasra No. 5 and for a permanent injunction against RIMDC restraining it from dispossessing the said plaintiffs from the said agricultural land till the plaintiffs were paid acquisition compensation by it. Prior to the aforesaid revenue suit, Bholu had also filed a civil suit against RIMDC on 8-7-75. In that civil suit Bholu had filed an application for temporary injunction under Order 39 Rules 1 and 2 for restraining RIMDC from dispossessing him from land measuring 32 bighas 10 biswas in his possession. The civil suit filed by Bholu was dismissed in default on 8. 10. 82. ;