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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:::
JUDGMENT
Madho Singh
vs
State of Rajasthan & Ors.
D.B. CIVIL SPECIAL APPEAL NO.409/2001
AGAINST THE ORDER DATED 12.3.2001
PASSED IN S.B. CIVIL WRIT PETITION
NO.9605/2001
DATE OF ORDER :: 1.10.2009
PRESENT
HON'BLE MR. PRAKASH TATIA,J.
HON'BLE MRS. MEENA V. GOMBER, J.
Mr.BL Purohit, Rajeev Purohit, for the appellant.
Mr.LD Khatri ]
Mr.Sunil Mehta ], for the respondents.
BY THE COURT:
Heard learned counsel for the parties.
The appellant Madho Singh is aggrieved against the
dismissal of his writ petition vide order/judgment dated 12th
March,2001 by which the learned Single Judge of this Court
in appellant’s-petitioner’s writ petition held that since the
Board of Revenue had decided the pure question of fact
after appreciation of fact and law, therefore, there is no
reason to interfere in such finding of facts by the High Court
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obviously while exercising jurisdiction under Article 227 of
the Constitution of India.
The facts in brief will be sufficient as it is a matter
relating of cancellation of allotment made in favour of one
Jagannath in the year 1967 of agricultural land under the
Rajasthan Land Revenue (Allotment of Land for Agricultural
Purposes) Rules, 1957 (hereinafter referred to as the Rules
of 1957) as well as under the Rules of 1970. According to
the appellant one Jagnu Das got allotment of land under the
rules referred above in village Mawa in the year 1966. The
appellant has no concern with this land. One Jagannath got
the land in the village Agarsar in the year 1967. Jagannath
sold his land to the petitioner-appellant in the year 1997
i.e., after about 30 years from the time of allotment of land
in favour of Jagannath then an application was submitted
under Section 82 of the Rajasthan Land Revenue Act, 1956
by the Tehsildar Pokaran before the court of District
Collector, Jaisalmer to challenge the original order of
allotment of 1967 made in favour of Jagannath. Jagannath
died and his daughter Smt. Suwa Devi was taken on record
as party-legal representative of Jagannath. In this petition,
the appellant-writ petitioner-purchaser of the land from
Smt. Suwa Devi was not made party. Be it as it may be,
the learned District Collector vide order dated 3rd June,
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1997 reached to the conclusion that same Jagannath
obtained land by way of allotment under Rules of 1970, the
then Rules for allotment of agricultural land, in the village
Mawa and suppressing that fact, obtained another allotment
of land in village Agarsar in the year 1967. The said
subsequent allotment dated 9th June, 1967 of 75 bighas of
land in the village Agarsar was, therefore, obtained illegally
and by suppressing the relevant facts. The order of the
learned Addl. District Collector dated 3rd June, 1997 was
challenged by Smt. Suwa Devi before the Revenue
Appellate Authority, which was allowed by the Revenue
Appellate Authority vide order dated 10th Sept., 1997 after
taking note of the plea taken by Smt. Suwa Devi that her
father never applied for the land in village Mawa in the year
1966 and remanded the matter to the District Court,
Jaisalmer for holding a fresh inquiry and for giving an
opportunity of hearing to both the parties and to decide the
matter afresh whether it is a fit case for making reference
under Section 85 of the Rajasthan Land Revenue Act or not.
The respondent-State being aggrieved against the
order of remand dated 3rd July, 1997 submitted reference
before the Board of Revenue, Ajmer. The Board of Revenue
while examining the legality and validity of order of remand
dated 3rd June, 1997 observed that since it is admitted
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position after inquiry that Jagannath got two allotments,
one in village Mawa on 8th July, 1966 and another in village
Agarsar on 9th June, 1997 measuring 75 bighas
respectively. Subsequent allotment in village Agarsar had
been obtained concealing the facts of allotment of village
Mawa, therefore, he was not landless person when the
allotment of village Agarsar was made to him. The Board of
Revenue also took note of the fact that this land had been
sold by him to the present non-petitioners from time to
time. Consequential, the reference was allowed by the
Board of Revenue and allotment of land made on 9th June,
1967 measuring 75 biahs of land of village Agarsar was set
aside. Against the said order of the Board of Revenue dated
6th July, 1999 a review petition was filed which was
dismissed by the Board of Revenue vide order dated 18th
May, 2000. Aggrieved against these orders, the petitioner-
purchaser from Smt. Suwa Devi preferred writ petition and
said writ petition was dismissed by the learned Single Judge
of this court merely on the ground that Board of Revenue
has decided pure question of facts and, therefore, in writ
jurisdiction this finding of fact cannot be interfered with.
Learned counsel for the appellant-petitioner
vehemently submitted that there was two persons, one
Jagnu Das and another Jagannath. Jagnu Das obtained
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land in the village Mawa in the year 1966, whereas
Jagannath allotted land in the year 1967 in village Agarsar.
The appellant-petitioner purchased land after 30 years of
the allotment and i.e., in the year 1997 from Smt. Suwa
Devi D/o Jagannath and till then there was no objection
with regard to allotment in favour of father of the seller of
the land to the petitioner. It is submitted that the appellate
authority passed the order of remand only so as to hold an
inquiry whether there was two persons; namely, Jagannath
and Jagnu Das or not. Learned counsel for the appellant
also submitted ground of delay by which the allotment is
sought to be cancelled etc, but since the order which was
under challenge before the Board of Revenue was of
remand order, therefore, we need not to go into all these
aspects of the matter.
It appears that Board of Revenue was convinced that
Jagannath himself has obtained the land in the year 1966
and by suppressing that fact with regard to allotment of
land which was sold to the petitioner.
Learned counsel for the State vehemently submitted
that it was never the case of the petitioner that he had no
knowledge of the proceedings taken and when the
petitioner-appellant had full knowledge of all proceedings
taken before the authorities below then the petitioner has
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no right to submit that he was not given full opportunity of
hearing or he was not made party. It was also submitted
that since the petitioner was not party, therefore, there was
no plea of the petitioner that Jagnu Das and Jagannath
were two different persons and even Smt. Suwa Deve
merely stated that her father would apply for the land of
village Mawa. In view of the above reasons, the learned
Single Judge rightly held that the disputed questions of
facts decided by the Board of Revenue cannot be interfered
by this Court while exercising extra ordinary jurisdiction
under Article 227 of the Constitution of India.
We considered the submissions of learned counsel for
the parties and perused the impugned orders.
It appears that Smt. Suwa Devi herself challenged the
order of the District Collector on the ground that her father
never applied for the allotment of land of village Mawa.
This fact has two facet; one that her father did not apply
and someone may have got the allotment in the name of
her father or second may be that the person who was given
land in allotment of village Mawa was a different person.
That plea is inherent in first plea also. The appellate
authority found that without holding any proper inquiry, the
matter cannot be decided. However, the learned District
Collector, Jaisalmer reached to the conclusion that
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Jagannath got the land allotted in village Mawa. The
appellate authority remanded the matter to the learned
District Collector for holding an inquiry after giving an
opportunity of hearing to the parties. Therefore, subject
matter before the Board of Revenue was whether the order
of remand was illegal or not so as to entertain revision and
to set aside the order of remand by the Board of Revenue.
We do not find any reason in the order passed by the Board
of Revenue dated 6th July, 1999 whether it has been
considered whether the order of remand was illegal on any
count. It appears from the order, portion of which has been
quoted above, that the Board of Revenue proceeded
assuming that the Jagannath obtained the land in the year
1966 in village Mawa and, thereafter, again obtained land
by allotment in village Agarsar in the year 1967. The Board
of Revenue even observed that there was inquiry, whereas
the appellate authority found that there was no inquiry. In
such situation, the Board of Revenue should not have
interfered in the order of remand as by order of remand,
only opportunity was given to the parties to prove the fact
position. The order of the Board of Revenue impugned
dated 6th July, 1999 since has been passed on assumption,
rather than on facts, therefore, the learned Single Judge
was wrong in holding that such finding of fact which has
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been recorded without holding inquiry cannot be interfered
in writ jurisdiction may be under Article 227 of the
Constitution of India.
Consequential, the appeal is allowed. The order of the
learned Single Judge dated 12.3.2001 as well as order of
the Board of Revenue dated 6th July, 1999 are set aside.
The order of the Revenue Appellate Authority dated 10th
Sept., 1996 is upheld. Now, the learned District Collector,
Jaisalmer may proceed in accordance with the directions
given in the remand order dated 10th Sept., 1997 in
accordance with law.
(MEENA V. GOMBER), J. (PRAKASH TATIA),J. cpgoyal/-