Sunil Kumar Garg, J.
1. This writ petition has been filed by the petitioners under Article 226 and puporting to be under Article 227 of the Constitution of India on 10.1.1991 against the respondents with the prayer that by an appropriate writ, direction or order, the judgment of the Board of Revenue dated 31.8.1990 (Annex. 6) be quashed and the order of the Assistant Settlement Officer, Jaisalmer dated 29.10.1971 (Annex. 3) be restored.
2. It arises in the following circumstances:
The Mandir Shri Mahadeoji was tenant of 230 bighas of the agricultural lands known as Dariyanathji-ki-Baori. During settlement operations, that land was entered as tenancy of the Mandir in Samvat year 2014. A copy of the Khatoni prepared by the Assistant Settlement Officer, Jaisalmer during settlement operations is marked as Annex. 1. Subsequently, at the time of the final settlement, Parcha Lagan (Annex. 2) was issued to Mandir Shri Mahadeoji through Kalyan Nath for only 19 bighas and 7 biswas.
On 12.5.1971, one Mohan Nath, father of petitioners No. 2 to 4 and husband of petitioner No. 1 submitted an application before the Assistant Settlement Officer, Jaisalmer requesting him to record 230 bighas of land in favour of Mandir Shri Mahadeoji. After enqiry, the Assistant Settlement Officer, Jaisalmer passed an order on 29.10.1971 and by that order, he recorded 229 bighas of land as Khatedari land of Mandir Mahadeoji. The copy of the order dated 29.10.1971 passed by the Assistant Settlement Officer, Jaisalmer is marked as Annex. 3.
The Collector, Jaisalmer being aggrieved of the order dated 29.10.1971 (Annex. 3) requested the Director of Land Records, Rajasthan, Ajmer to make a referrence under Section 82 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the Act of 1956') lor cancellation of the order dated 29.10.1071 (Annex. 3) passed by the Assistant Settlement Officer, Jaisalmer.
The Collector, Jaisalmer allotted 100 acres of land to the Border Security Force through order dated 26.1.1969 (Annex. 5) and the possession of that land was handed over to the Border Security Force on 4.2.1969, but it has been submitted by the petitioners that in the order dated 26.1.1969 (Annex. 5), there was no mention of any of the Khasras.
During the pendency of the proceedings, Kalyan Nath and Mohan Nath died and the petitioners are their legal representatives.
Pursuant to the request of the Collector, Jaisalmer, reference was made under Section 82 of the Act of 1956 to the Board of Revenue, Ajmer and the Board of Revenue, Ajmer through judgment dated 31.8.1990 (Annex. 6) accepted the reference and set aside the order of the Assistant Settlement Officer, Jaisalmer dated 29.10.1971 (Annex. 3).
In this petition, mainly the judgment of the Board of Revenue dated 31.8.1990 (Annex. 6) has been challenged by the petitioners on various grounds and some of them are as follows:
(1) That the Board of Revenue has no jurisdiction to set aside the order dated 29.10.1971 (Annex. 3) passed by the Assistant Settlement Officer, Jaisalmer and furthermore, since an appeal was filed against the order of the Assistant Settlement Officer dated 29.10.1971 (Annex. 3), therefore, the Board of Revenue had no jurisdiction to set aside that order after 19 years of passing that order.
(2) That no doubt there is no limitation period prescribed for exercising jurisdiction under Section 82 of the Act of 1956, but the same has to be exercised within a reasonable time and exercise of jurisdiction after a lapse of 19 years is malafide.
(3) That the findings recorded by the Board of Revenue in its judgment dated 31.8.1990 (Annex. 6) are erroneous one, as they are not based on correct appreciation of facts and law.
Thus, it was prayed by the petitioners that this writ petition be allowed and the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex.6) be set aside and the order of the Assistant Settlement Officer, Jaisalmer dated 29.10.1971 (Annex. 3) be restored.
A reply to the writ petition was filed on behalf of the respondents on 24.8.1995 and in the reply, it was submitted by the respondents that the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex. 6) does not suffer from any infirmity and illegality and the reasoning given in that judgment are based on correct appreciation of facts and law and thus, no interference is called for by this Court in writ jurisdiction with the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex. 6). Hence, the writ petition be dismissed.
3. I have heard the learned Counsel appearing for the petitioners and the learned Counsel for the respondents and perused the materials available on record.
4. From the order of the Assistant Settlement Officer, Jaisalmer dated 29.10.1971 (Annex. 3), it appears that the Assistant Settlement Officer came to the conclusion that Khasras No. 218, 226, 227, 228 and 229 belonged to the petitioners and for Khasra No. 222, it was stated in that order that it had gone to Railways for which compensation had already been received by the petitioners and, therefore, the Assistant Settlement Officer ordered that Khasras No. 218, 226, 227, 228 and 229 be recorded in the name of Kalyan Nath.
5. The said order of the Assistant Settlement Officer dated 29.10.1971 (Annex. 3) was challenged before the Board of Revenue through reference under Section 82 of the Act of 1956. After hearing both the parties, Board of Revenue through judgment dated 31.8.1990 (Annex. 6) accepted that reference and set aside the order of the Assistant Settlement Officer, Jaisalmer dated 29.10.1971 (Annex. 3) holding inter-alia:
(1) That Khasra No. 10 area 230 bighas of land of village Jaisalmer was recorded in the summary settlement record in the khatedari of doli banam mandir Shri Mahadevji through its pujari.
(2) That after enquiry, land in the name of temple was recorded for Khasra No. 224 and 225 area 41 bighas 14 biswas and not 230 bighas.
(3) That on an application filed by the petitioners, the Assistant Settlement Officer, Jaisalmer through order dated 29.10.1971 (Annex. 3) held that Khasras No. 218, 222, 226, 227, 228 and 229 belonged to the petitioners, but the record presented before the Assistant Settlement Officer nowhere indicated that the disputed land was recorded in the name of the petitioners and even in the summary settlement, disputed land was in the khatedari of the temple.
(4) That the Collector, Jaisalmer vide order dated 26.1.1969 (Annx. 5) allotted 100 acres of sewai chak land to BSF and the possession of that land was taken by the BSF on 4.2.1969. The khasra numbers of these lands after settlement were 226, 227, 228 and 229 and as the possession of the land was taken by the BSF in 1969 itself, therefore, the conclusion of the Assistant Settlement Officer on the application of the petitioners dated 12.5.1971 that the disputed land of Khasras No. 226, 227, 228 and 229 was in possession of the petitioners and it belonged to them, was incorrect and that was found against the record.
(5) That no reliance was placed on the photograph of the 'Shilalekh', which mentions that in Samvat 1820 some land was purchased for the purpose of construction of temple.
(6) That on the basis of the documents, it was not possible to ascertain the khatedari rights of the petitioners over the land. Even during the settlement operations, only 41 bighas 14 biswas of land was found in the name of temple and, therefore, entries made by the Assistant Settlement Officer over 287 bighas of land in the name of the petitioners, which included the khasra numbers allotted to BSF, were patently wrong.
(7) That it is proved from the available record that Khasras No. 226, 227, 228 and 229 measuring 157 bighas of the disputed land was given to BSF. Furthermore, on the remaining land, the khatedari rights of the temple could be recorded and not of the petitioners.
(8) That there was no earlier revenue record to substantiate that the petitioners were the Khatedar tenants of the land.
6. Before proceeding further, it may be stated here that Article 227 of the Constitution of India confers on every High Court, a special power and responsibility over all subordinate courts and Tribunals within its territorial jurisdiction, with the object of securing that all such institutions exercise their powers and discharge their duties properly and in accordance with law.
7. The powers of superintendence under Article 227 of the Constitution of India extends over all the subordinate courts and Tribunals and the Board of Revenue is one of the authorities which can be classified as Revenue Tribunal within the meaning of Article 227 of the Constitution of India.
8. It is well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution.
9. It is respectfully submitted that the following observations of Bhagwati, J (as he then was) in Babutmal v. Laxmibai : AIR1975SC1297 lay down correct proposition of law regarding ambit and scope of the supervisory jurisdiction of High Court under Article 227:
It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or Tribunal. Its function is limited to seeing that the subordinate court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiorari that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or Tribunal final on facts.
10. In the present case, a bare perusal of the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex.6) reveals that the Board of Revenue has given not only cogent reasons for setting aside the order of the Assistant Settlement Officer dated 29.10.1971 (Annex.3), but has also taken into consideration all aspects of the matter and, thereafter, it came to the conclusion that the claim of the petitioners over the disputed land cannot be accepted and that is why, the reference was accepted and order of the Assistant Settlement Officer dated 29.10.1971 (Annex.3) was set aside by the Board of Revenue. The Board of Revenue in the impugned judgment Annex.6 at the bottom has given the chart of the various Khasras showing the past and present entries of land and this description gives a very vivid picture to whom the land in question belonged and thus, there remains no doubt on the point to whom the disputed land belonged. The impugned judgment of the Board of Revenue dated 31.8.1990 (Annex.6) does not suffer from any infirmity or illegality and the findings recorded by the Board of Revenue are based on correct appreciation of facts and law. Apart from this, it cannot be said that the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex.6) is without jurisdiction or against the principles of natural justice or involves flagrant violation of the law. It also cannot be said that the findings of the Board of Revenue are perverse, being founded on no material whatsoever. Furthermore, in the impugned judgment Annex.6, there is no patent irregularity in procedure or an error of law apparent on the face of the record. In these circumstances, no interference with the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex.6) is called for by this Court under Article 227 of the Constitution of India.
11. So far as the argument that deity land cannot be alienated by any one is concerned, in my considered opinion, it carries no weight because of the simple reason that the land nearabout 41 bighas was found in the name of the Deity and the remaining land was not found in the name of the Deity. Therefore, to say that through order dated 26.1.1969 (Annex.5), land of Khasras No. 226, 227, 228 and 229 could have not been allotted to BSF is wrong. Apart from that, order Annex.5 dated 26.1.1969 clearly speaks that the Government land was allotted to the BSF. Therefore, if in the order dated 26.1.1969 (Annex.5) no khasra numbers were mentioned, it would not make that order invalid because from the judgment of the Board of Revenue Annex.6 dated 31.8.1990 it is very much clear that the land which was allotted to BSF in the year 1969 comprising of Khasras No. 226, 227, 228 and 229 did not belong to the petitioners.
12. The learned Counsel for the petitioners has made much stress on the point that the land of the deity could have not been transferred, therefore, the transfer made even to BSF through order Annex.5 is without jurisdiction and illegal. In my considered opinion, this argument would not be helpful, as discussed above, as the land of Khasras No. 226, 227, 228 and 229, which was transferred to BSF, was not found belonging to deity and the land belonging to deity was found to be only 41 bighas 14 biswas. Therefore, the judgment of this Court in Mangila and Ors. v. State of Rajasthan 1998(1) WLC (Raj.) 625 would not be helpful to the learned Counsel for the petitioners.
13. It may be stated here that the bar of period of limitation does not apply to references made under Section 82 of the Act of 1956 for the simple reason that Section 87 of the Act of 1956 provides that the provisions of the Indian Limitation Act apply to all appeals and applications for review under the said Act, meaning thereby provisions of the Indian Limitation Act, do not apply to references and revisions. Thus, revisions and references are deliberately and purposely saved from the law of Limitation. Hence, no doubt there was delay in making reference, but looking to the peculiar facts and circumstances of the case, that delay cannot be said to be fatal and thus, the argument on point of delay stands rejected.
14. Apart from this, the writ jurisdiction of the High Court can be exercised only in the interest of equity and justice and cannot be invoked for obtaining an unfair advantage and the High Court should not exercise its jurisdiction for issuing a writ for setting aside an equitable order and restoring a position which was not fair to the parties. Taking this aspect into consideration also, the impugned judgment of the Board of Revenue dated 31.8.1990 (Annex.6), which is based on correct appreciation of facts and law, should not be set aside by issuing writ in any manner.
For the reasons stated above, this writ petition is devoid of any force and the same is dismissed.