1. The instant writ petition has been filed against the Judgment and order dated 10-6-94 in Appeal No. 6/89 by which the Board of Revenue has reversed the order of the Revenue Appellate Authority dated 15-12-88 in Appeal No. 251/88.
2. The facts of the case as revealed by the record of the case are that in the Revenue Record particularly, relating to settlement of Samwat 2009 the land in dispute measuring 256 bighas and 15 biswas was shown in the name of Temple Shri Thakurji, the present petitioner, and one Shri Mangha Ram son of Nand Ram, predecessor-in-interest of respondents No. 4 to 7, was shown as the Pujari and caretaker of petitioner-temple and was looking after the land in dispute, as is evident from Ex. 1 issued on 21 st June 1945. It is also revealed from the said Ex. 1 that Shri Mangha Ram had made a statement before the Competent Authority on 24th Feb. 1945, that the said Temple of Shri Thakurji was very old and the land in dispute was the property of the petitioner-temple and being Pujari of the temple he was looking after the said land. It appears that Mangha Ram, Pujari had manipulated Revenue Record and was shown subsequently as Khatedar of the land in dispute. After his death, respondents Nos. 4 to 7, inherited the land and they executed the sale deed of the said land in favour of the respondents Nos. 2 and 3 on 19-6-1967 and 5-6-72. On behalf of the petitioner, a case was filed before the Additional Collector, Sri Ganganagar, Respondent No. 10, being Case No. 75/83 which was decided vide order dated 16th August, 1988 contained in Ex. 2 to this writ petition. Relying upon the order dated 27th May, 1967 passed by Addl. Collector treated the land in dispute as personal land of said Shri Mangha Ram. However, it is also relevant to mention that respondent No. 10 has observed in the aforesaid order that in the settlement record of Samwat 2001 i.e. 1954 the land was shown in the name of the temple and it was cultivated by Shri Mangha Ram being pujari of the temple and it was also shown in Samwat 2030-2033 in the name of the temple. However, the learned Additional Collector held that the transfer rnade in favour of the petitioners (respondents) Nos. 2 and 3 by the respondents Nos. 4 to 7 was valid as respondents 4 to 7, being successors of Mangha Ram inherited Khatedari rights, which had been acquired by Sri Mangha Ram Pujari.
3. Being aggrieved and dissatisfied, the present petitioner filed the Appeal No. 251/88 before the Revenue Appellate Authority which was allowed vide order dated 15-12-88 contained in Ex. 3 holding that there could have been no justification for passing impugned order dated 16-8-88 for the reason that the land Settlement Officer, Bikaner, vide his order dated 21-6-73 recorded the petitioner temple as Khatedar of the land in dispute. There had been dispute regarding settlement in Samwat 2043 in respect of the said land and it was decided in favour of the petitioner-temple and if Khatedari right was recorded in the name of the petitioner-temple in 1945 and it was continuing, Mangha Ram, being pujari of the temple could not have acquired Khatedari rights at all. For giving such a decision, the Revenue Appellate Authority held that deity being perpetual minor was incapable to look after its property and the pujari was looking after the same and being a caretaker he could not have acquired any right or interest in the said property. Therefore, acquisition of Khatedari rights in the land in dispute by Mangha Ram Pujari and transfer of the same subsequently, in favour of respondents Nos. 2 and 3 by respondents Nos. 4 to 7 could not be justified by any means. Transfer in favour of respondents Nos. 2 and 3 was contrary to law and thus, the appeal of the present petitioner was allowed.
4. Being aggrieved and dissatisfied the respondent No. 2 filed the appeal before the Board of Revenue which has been allowed by the Board vide order dated 10-6-94 contained in Ex. 4. Board of Revenue held that the case before the Asstt. Collector had not been filed under any particular provisions of law and being merely an application for taking administrative action, the order was not appealable before the Revenue Appellate Authority and, thus, th order dated 15-12-88 was liable to be quashed and accordingly it was set aside.
5. Being aggrieved and dissatisfied, the present writ petition has been filed.
6. Heard Shri D. K. Parihar for the petitioner and Shri S. G. Ojha, for the respondents.
7. Shri Parihar has canvassed that the learned Board failed to appreciate that the acquisition of Khatedari rights in favour of Mangha Ram Pujari was in flagrant violation of the mandatory provisions of Sees. 16 and 46 of the Rajasthan Tenancy Act, 1955, hereinafter called the 'Act 1955' and the entry of Khatedari rights in the name of Mangha Ram Pujari was nothing but a fraudulent activity. The deity being perpetual minor cannot take care of its property. However, nobody looking after the property of the perpetual minor or disabled person, has the right to get the Khatedari rights.
8. Section 46 of the Act 1955, provides exemption in exceptional cases in case of a minor and a person incapable of cultivating his holding by reason of physical disability or infirmity. An idol/deity can fall to both the classes i.e. a minor as well as a physically disabled or infirm person and the manageror the State is under an obligation to protect the interest of such a minor or disabled person. No person can acquire Khatedari rights in the land belonging to a minor. The object is laudable and based on public policy and, therefore, the deity cannot be deprived of his property by such a transaction, which has fraudulently been entered upon by the Pujari himself. It is the obligation/function of the State to look after the welfare of the deity being a person, may be juristic, may be a person on account of fiction of law but incapable to protect its interest being a perpetual minor and disabled physically. (Vide Ramlalv. Board of Revenue, 1990(1)RLR 161 (DB)).
9. In Bishwanath v. Sri Thakur Radha Ballabhji, AIR 1967 SC 1044, the Hon'ble Apex Court has observed as under :
"When such an alienation has been effected by the shebait acting adversely to the interests of the idol even a worshipper can file the suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest."
10. In the instant case, there is no doubt that by fiction, the deity/idol is to be treated as minor or physically disabled person. It has been recognised by the Court from time and again by drawing the logical inference under Section 46 of the Act 1955, that such a benefit is attracted to the deity. Thus, in a case where the worshipper himself has played a fraud upon the deity the transaction shall be deemed to be illegal. The deity is a Khatedar of the land and the Pujari can never acquire the Khatedari rights because the provisions of Section 46 of the Act 1955, put an embargo on it. (Vide Ram Kishandass v. Devilal, 1974 RRD 290.
11. A Division Bench of this Court vide its order dated 12-9-97 passed in D. B. Civil Special Appeal (Writ) No. 892/97 "Madanlal v. State of Rajasthan" and D. B. Civil Special Appeal (Writ) No. 893/97 "Colonel Girdhari v. State of Rajasthan" has taken the view that if any person has acquired the Khatedari rights in the land belonging to the deity, the said transaction is to be ignored being illegal and the dei ty was entitled to retain the possession as well as the Khatedari rights in such lands. Moreover, the present petitioner-temple is a public temple and a particular cultivator can hold such land only at a specifically willed instance of the trustees and strictly on terms and conditions and for a particular period determined between them and any person, who claims any rights or interest on such property, has to show prima facie authority on behalf of and bona fides vis-a-vis the public trust, i.e. the temple. Thus, in such circumstances, the revenue as well as the administrative authorities have a legal obligation to protect interest prejudicial to the effective exercise of a permanent domain and right of property by the temples on their lands. In fact, the concession to the effect that a person cultivating the land of the temple can acquire Khatedari rights runs counter to the public policy and the basic concept that a deity is a perpelual minor and physically disabled person and his interests are to be protected. At the most, a cultivator can act as a guardian of the diety (minor) but he cannot be permitted to usurp over the rights and interests of such minor and disabled person. In the instant case, Mangha Ram being the next friend of the deity, a perpetual minor, was supposed to protect its interest. The Court failed to understand that once the present petitioner i.e. the temple has been shown as a Khatedar of the land in 1945 and the revenue record itself has shown the statement of Mangha Ram that land belonged to the temple and he was looking after it as a pujari, there can be no justification in recognising any entry or transaction to the contrary. The Board of Revenue observed that the case was not filed before the Assistant Collector under any particular provision of law but failed to appreciate that the Assistant Collector as well as the Revenue Appellate Authority, being the competent authorities under the law, were not lacking inherent jurisdiction to decide the issues involved and, thus, the Board of Revenue has erred in setting aside the well reasoned judgment of the Revenue Appellate Authority without giving any reason whatsoever. In the instant case, respondents Nos. 2 and 3 cannot have a title better than respondents Nos. 4 to 7 could have. As the respondents Nos. 4 to 7 got the interest in the property being successorof Mangha Ram Pujari, who obtained the Khatedari rights in his favour in contravention of the statutory provisions of Section 46 of the Act, the same is of no consequence whatsoever. Thus, there can be no justification for the Board of Revenue for setting aside the judgment and order of the Revenue Appellate Authority contained in Ex. 3.
12. While deciding the instant case, the Board of Revenue has taken a very hypertechnical view. It is settled law that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 and M/S Ganesh Trading Co. v. Moji Ram ., AIR 1978 SC 484. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353, the Apex Court observed as under:
"When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done.
13. Similarly in Noorduddin v. Dr. K. L. Anand, 1995 (1) SCC 242 : (1994 AIR SCW 5093) the Apex Court observed as under (at page 5099 of AIR SCW):
The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice.
14. It is a plain and simple case of subotage of public policy and legal philosophy
"Tribunal should be astute in the declaration of law or in its solemn judicial review or dispensation of justice to issue directions or mandamus against the law, constitutional comments or public policy."
(
State of Punjab v. G.S. Gill,
1997(6) SCC 129 : 1997 AIR SCW 2209.
15. Thus, it was a fit case, where, in the interest of justice. Board of Revenue ought not to have disturbed the order of the Appellate Authority which was based on sound principles of law and had served the cause of justice.
16. At the time of hearing, Shri S. G. Ojha referred to and relied upon the judgment of the Revenue Appellate Authority dated 3-10-96 passed in Civil Appeal No. 302/95, delivered in favour of respondents Nos. 1 to 3 in respect of the same land. Petitioner-temple is not a party in the said appeal. Thus, any decision which has been given by any Court or authority behind the back of a person, cannot be binding upon him being violative of the principles of natural justice and a person, who has been put in such a disadvantageous position by the judgment or order passed behind his back, has a right to ignore the same. [Vide (nearly) Constitution Bench judgment of the Supreme Court in Udit Narain Singh Malpanariya v. Member, Board of Revenue, AIR 1963 SC 786J. Thus, no reliance can be placed on such a document. Moreover, the genuineness of other parties can also not be ascertained as all the persons, who were parties in the said appeal, are not before this Court.
17. There is another aspect of the matter. As the Khatedari rights had been acquired by Mangha Ram Pujari by playing fraud, the same cannot be recognised to have any sanctity under the law.
18. Chief Justice Edward Coke of England observed three centuries ago that "fraud avoids all judicial acts, ecclesiastical or temporal," quoted in S.P.Chengalvaraya Naidu v. Jagannath, 1994 (1) SCC 1 : (AIR 1994 SC 853) where the Supreme Court further observed as under (at page 855 of AIR):
"The Courts of Law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehoold, has no right to approach the Court."
19. Similarly, Lord Denning in Lazarvs Estate Limited v. Beasley, (1956) All ER 341 (345) observed as under:
"No judgment of a Court, no order of ministers can be allowed to stand if it has been obtained by fraud. Fraud unravels every thing."
20. In Andhra Estate Financial Corporation v. Gar Re - Rolling Mills, 1994 (2) SCC 647 : (AIR 1994 SC 2151) the Supreme Court has observed as under:
"A Court of equity when exercising its equitable jurisdiction under
Article 226 of the Constitution of India, must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to prevent the law from crafty evasions and subtleties invented to evade law."
21. Similarly in the case of State of Maharashtra v. Prabhu, 1994 (2) SCC 481, the Supreme Court has observed as under :
"It is responsibility of the High Court as custodian of the Constitution to maintain the Social balance by interfering where necessary for the sake of justice and refusing to interfering where it is against the social interest.
22. In view of the above, I reach the following unescapable conclusions :
I. The petitioner-temple was shown as Khatedar of the land in dispute and the Khatedari rights accrued in favour of Sri Mangha Ram Pujari would not be legal because of the application of the provisions of Section 46 of the 1955 Act.
II. The provisions of Section 46 of the 1955 Act are based on public policy and have been enacted to secure a laudable object. The provisions of any other act cannot override the special protection accorded to the class of persons mentioned therein. Thus, the protection/ exemption granted to deity a perpetual minor/ permanently disabled/infirm person cannot be taken away by the provisions of any other Act.
III. It is the solemn duty of and legal obligation on the State Administrative Authorities and Courts to protect the interest of minor, disabled person and the deity being perpetual minor, physically disabled and infirm, is entitled to special protection of law.
IV. The entry recorded in favour of Mangha Ram Pujari as Khatedar, was an outcome of fraud played by him on the statute as well as on petitioner-deity and thus, has to be treated as null and void.
V. Respondents Nos. 2 and 3, being purchaser from respondents Nos. 4 to 7, cannot claim to have better title than respondents Nos. 4 to 7 could have, being successors of Mangha Ram Pujari, who had no title, right or interest in the land in dispute in the eye of law as acquisition of Khatedari right by him was contrary to law and thus illegal, was obtatined by fraud, thus void. Respondents Nos. 2 and 3 are merely trespassers and liable to be evicted forthwith.
VI. It has never been the case of Mangha Ram Pujari or his successors that Sri Mangha Ram was the tenant of the land in dispute and, therefore, he could acquire the Khatedari rights under the law. On the contrary, the record proved that in settlement made in 1973, the petitioner-temple was shown as Khatedar and the Board did not take note of this important factor, which is sufficient to tilt the balance in favour of the petitioner.
VII. The course of substantial justice cannot be defeated on technicalities. The order passed by the Revenue Appellate Authority had achieved the ends of justice, thus the Board committed a gross error setting aside the same on mere technicalities without appreciating that the revenue authorities were not lacking inherent jurisdiction to decide the issue involved, even if reference had not been made to any statutory provision, VIII. Any judgment/order to which petitioner-temple was not a party cannot be binding on it even if the case was filed to help the present petitioner as the genuineness of the persons, who were claiming to be worshippers etc. cannot be examined as the said persons are not before this Court. It may be a collusive affair with other interested persons.
IX. The Board of Revenue has been clothed with special powers under the provisions of Section 232 of the Act of 1955 to examine a case, where the reference is made by the Collector and fraud etc. has been played by a party. There is no period of limitation to make such a reference. This provision is to provide "substantial justice" to the party, which has been cheated. Thus, Board failed to appreciate the issues involved in its correct perspective.
23. For the aforesaid reasons, I set aside the judgment and order of the Board of Revenue Ex. 4 and uphold the judgment of the Revenue Appellate Authority contained in Ex. 3. Therefore, writ petition succeeds and is accordingly allowed with costs.