High Court Rajasthan High Court - Jodhpur

Vaibdakash vs State & Ors on 12 June, 2009

Rajasthan High Court – Jodhpur
Vaibdakash vs State & Ors on 12 June, 2009


VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)

Dated :- 12th June,2009

HON’BLE MR.JUSTICE SANGEET LODHA

Mr.J.L.Purohit, for the petitioner.

Mr. Hemant Choudhary, Government Counsel.

Reportable

1. This writ petition is directed against order dated 6.8.93 of

the Board of Revenue( in short “the Board”) , Rajasthan whereby

a revision petition preferred by the respondent no. 5 herein,

assailing the validity of order dated 28.4.86 passed by the

Additional Colonisation Commissioner-cum-Revenue Appellate

Authority, Indira Gandhi Nahar Project Area( in short “IGNP”),

Bikaner, rejecting the appeal preferred by him against the

allotment of the land made in favour of the petitioner by the

Allotting Authority-cum-Assistant Commissioner Colonisation,

IGNP, Gharsana, has been allowed and accordingly, the

allotment of land made in favour of the petitioner, stands

cancelled.

2. The petitioner holding the agriculture land in Square No.

46/2 and 46/10 in Chak No. 5 GD made two applications dated

6.11.84 and 9.11.84 for allotment of small patches of land

adjacent to his land falling in Square No. 46/2 and 46/10,

measuring 4 bighas and 3 bighas respectively. Since the lands
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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were shown in the revenue record as Gair Mumkin , the Allotting

Authority who is also a Collector under the Rajasthan

Colonisation Act, 1954( in short “the Act of 1954” hereinafter)

passed an order dated 4.12.84 converting the nature of the

lands in the revenue records as agriculture lands. By the self

same order the applications preferred by the petitioner for

allotment as aforesaid were accepted and the aforesaid small

patches were allotted to him.

3. The respondent no. 5 preferred an appeal against the said

order dated 4.12.84 before the Revenue Appellate Authority( in

short “RAA”), Bikaner which was dismissed vide order dated

28.4.86.

4. Aggrieved by order dated 28.4.86, the respondent no. 5

preferred an appeal before the Board. It was contended on

behalf of respondent no. 5 before the Board that the land in

question being Gair Mumkin land reserved for allotment for

brick-kiln was not available for allotment. That apart, it was

contended that the petitioner herein already possesses the land

in excess of the ceiling limit and the Additional Commissioner

without holding any inquiry, while deciding the appeal has

wrongly held that the petitioner herein had two major sons and 9

members in his family and therefore, the land held by him does

not exceed the ceiling limit.

VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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On the other hand, on behalf of the petitioner it was

contended that the respondent no. 5 has no locus standi to file

the appeal before the RAA or the revision before the Board.

5. After due consideration, the Board found that the lands in

question do not fall within the definition of “small patch” and

thus, were not allottable as small patches under Rule 14 of

Rajasthan Colonisation (Allotment & Sale of Government Land in

Rajasthan Canal Colony Area) Rules 1975 ( in short “the Rules of

1975” hereinafter). In view of the finding arrived at as aforesaid

that the lands were not allottable as small patches under Rule 14

of the Rules of 1975, the Board did not decide the question

whether the petitioner was holding land in excess of the ceiling

limit and was not eligible for allotment under Rule 14 of the

Rules of 1975. The objection raised on behalf of the petitioner

regarding the locus standi of the respondent no. 5 to maintain

the appeal and revision , the Board held that the allotment was

made by the Assistant Colonisation Commissioner in flagrant

violation of the Rules of 1975 therefore, the applicant,

respondent no.5 herein, was entitled to challenge the allotment.

That apart, the Board observed that the illegality in making

allotment having come to the notice of the Board, it cannot shut

its eyes to such an illegal and without jurisdiction act, which was

upheld by the Appellate Authority in a most circumvent manner.

VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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Accordingly, by the order impugned in this writ petition, while

accepting the revision petition, the Board has set aside the

orders of the Appellate Authority and Allotting Authority and

consequently, the allotment made in favour of the petitioner of

the disputed small patches of land stands cancelled.

6. It is contended by the learned counsel for the petitioner

that the petitioner being khatedar tenant of the lands adjacent to

the small patches of land, was eligible for allotment under the

Rules of 1975. The learned counsel submitted that admittedly

while making the allotment, the lands were converted from Gair

Mumkin to agriculture lands by the Allotting Authority who is also

a Collector and therefore, there was no jurisdictional defect in

the order of allotment. The learned counsel submitted that the

land was cultivable land and the nature of the lands was declared

by the Allotting Authority before the allotment as agriculture

lands, therefore, the Board has seriously erred in holding that

the lands in question were not allottable as small patches of land

under Rule 14 of the Rules of 1975. The learned counsel

submitted that petitioner is in cultivatory possession of the land

till date and he was granted the khatedari rights by the Collector,

Sri Ganganagar vide order dated 18.1.91 therefore, in absence

of any fraud, manipulation or collusion on the part of the

petitioner the allotment cannot be cancelled. In this regard, the
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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learned counsel has relied upon a decision of this court in the

matter of “Mithu Singh vs. The State of Rajasthan”, 2007( 5)

WLC, 265. The learned counsel has reiterated the contentions

raised before the Board regarding the locus standi of the

respondent no. 5 to maintain the appeal against the allotment

order and so also the revision petition before the Board.

7. On the other hand, the learned Government Counsel

submitted that the lands being neither irrigated nor un-irrigated

agriculture lands were not available for allotment as small

patches, therefore, the finding arrived at by the Board cannot be

faulted with. The learned Government Counsel further submitted

that the availability of the small patches of land was not notified

by the Allotting Authority before the allotment therefore, the

other concerned land holders of the adjacent lands could not

make application for allotment and thus, the allotment made in

favour of the petitioner is de hors the provisions of Rules of

1975. The learned Counsel submitted that admittedly the lands

were classified as “Gair Mumkin” and the Allotting Authority had

no jurisdiction to convert the nature of the said lands from “Gair

Mumkin” to “agriculture land”.The learned Government Counsel

urged that the Allotting Authority had no jurisdiction to convert

the land for agriculture purpose, which has been shown in the

revenue record as “Abadi”.The learned Counsel submitted that in
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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view of the illegalities committed by the Allotting Authority in

making the allotment the respondent no. 5 who was allotted the

land in Murabba no.46/2 had a locus standi to maintain the

appeal before the RAA so also the revision petition before the

Board. It is submitted that the Board has rightly held that

illegalities committed having come to its notice, it cannot shut its

eyes to such an illegal and without jurisdiction act of the Allotting

Authority upheld by the Appellate Authority.

8. I have considered the rival submissions and perused the

material on record.

9. Admittedly, the allotment and sale of Government land in

IGNP area are governed by the Rules of 1975 which have been

framed by the State Government in exercise of its powers

conferred by Section 7 read with Section 28 of the Act of 1954.

The small patch has been defined under Rule 2(xvi) of the Rules

of 1975 as a piece of land measuring 5 bighas of irrigated land

and 10 bighas of un-irrigated land . As per second proviso to

Rule 5 of the Rules of 1975, amongst the persons eligible for

allotment of Government land for agriculture purpose , if a

person is eligible for allotment of a small patch, such small patch

shall be allotted to him only if it is available adjacent to his

existing holding. The procedure for allotment of small patches of

land in IGNP area is governed by Rule 14 of the Rules of 1975
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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which is an exception carved out to the general allotment. The

Rule 14 as it was existing at the relevant time when the

allotment was made in favour of the petitioner reads as under:-

“14. Allotment of small patch.-(1) Notwithstanding
anything to the contrary contained in these rules, small
patch of Government land may be allotted to a tenure
tenant whose tenure land adjoins such patch, subject to
the ceiling area at the highest prevailing market price for
land of a similar soil class in the neighbourhood.
(2) In cases there are more than one such tenant applying
for allotment of the same small patch, allotment shall be
made by drawal of lots amongst them.

(3) The price of such small patch shall be payable by the
allottee in five annual instalments, the first instalment
being payable within a fortnight of the order of allotment.
The due date in respect of the second and subsequent
instalments shall be the date of the year corresponding to
the date on which the allotment was made. Interest at the
rate of 9 per cent per annum shall be charged in default of
payment of an instalment on the due date:

Provided that if such, small patch is allotted to a
landless person to raise his holding to 25 bighas, the price
and mode of payment shall be as prescribed in rule 17.”

10. Rule 14 has been amended time to time . Vide notification

dated 22.9.88, which was published in the official gazette on

13.7.99, following proviso was added:

“Provided if the tenant of the adjoining land falls to apply
for the allotment of small patch, the allotting authority
shall make arrangement for making allotment of such
small patch to the tenure tenant of the same chak or of
the adjoining chak.”

11. The present controversy relates to the allotment made in

favour of the petitioner vide allotment letter dated 4.12.84
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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therefore, the proviso added as aforesaid w.e.f. 13.7.89 has no

applicability in the instant case. Therefore, as per the provisions

of Rule 14 read with Rule 5 of the Rules of 1975 existing at the

relevant time, the small patch of land i.e. measuring 5 bighas of

irrigated or 10 bighas of un-irrigated land could have been

allotted only to tenure tenants of the tenure land adjoining to

such small patches of Government land. However, as per sub-

rule(2) , if there were more than one such tenant applying for

allotment of such small patch, the allotment was required to be

made by drawal of lots amongst them. Therefore, it goes without

saying that before the allotment of small patches of land, the

availability of the land for allotment has to be notified and the

applications for allotment have to be invited even for allotment

of small patches of land in terms of the provisions of Rule 9 of

the Rules of 1975. Obviously, before the conversion of the land

from “Gair Mumkin abadi” and “Gair Mumkin Brick-kiln” if

permissible under the law, the other tenure tenants could not

have any knowledge about the availability of the land for

allotment as small patches,therefore, in absence of any proper

notice notifying the availability of the land for allotment , they

could not have applied for allotment of the land. Thus, the

procedure adopted by the Allotting Authority in allotting the

small patches of land taking straight away the applications from
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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the petitioner ignoring the possible claim for allotment of other

tenure tenants of tenure land adjoining to the small patches of

land is ex facie de hors the Rules of 1975.

12. As noticed above, only small patch of land as defined under

Rule 2 (xvi) of the Rules of 1975 could be allotted to the tenure

tenants of tenure land adjoining to such small patch of land

therefore, the Allotting Authority had no jurisdiction whatsoever

to allot the lands in question which as per the revenue record

were categorised as “Gair Mumkin Abadi” and “Gair Mumkin

Brick-Kiln”. Moreover, the “land” as defined by Section 5 (24) of

the Rajasthan Tenancy Act, 1955( in short “the Act of 1955”

hereinafter) specifically excludes abadi land from the category of

the land to be dealt with under the provisions of Act of 1955.

Further, Section 16 (vi) of the Act of 1955 specifically prohibits

the accrual of khatedari rights in the land acquired or held for

public purpose or a work of public utility. The land set apart for

abadi is a land for public purpose and not available for allotment

A fortiori, there was absolutely no proposal mooted for

conversion of the land from “Gair Mumkin Abadi” and “Gair

Mumkin Brick-kiln” to agriculture purpose. The learned counsel

for the petitioner has not been able to point out any provision

which enables the Allotting Authority to convert the land from

abadi to agriculture purpose. It is really strange that while
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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converting the land set apart for “abadi” and “brick-kiln” to

agriculture purpose, no finding is recorded by the Allotting

Authority that the lands in question are culturable lands. To the

contrary, it has come on record that the buildings are existing on

the land in question but the same are not used for last two

years. Further, it has been categorically mentioned in the order

that the land is situated nearer to abadi then, there was

absolutely no occasion for the Allotting Authority to convert the

land for agriculture purpose ignoring its beneficial use for abadi

purpose. To say the least, the conversion of the land use by the

Allotting Authority in perfunctory manner while considering the

applications of the petitioners for allotment of the land as small

patches smacks mala fide and favoritism which cannot be

countenanced by this court.

13. In Mithu Singh’s case (supra), relied upon by the learned

counsel for the petitioner , this court has taken the view that

where a “Gair Mumkin land” was converted into “barani” and

allotted to the petitioner therein in absence of fraud,

manipulation or collusion in allotment, the cancellation of

allotment by way of reference after a lapse of more than 25

years would be illegal and void.

In the instant case, the validity of the allotment made in

favour of the petitioner vide order dated 4.12.84 was assailed by
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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the respondent no. 5 by way of appeal in the year 1985 and the

appeal was rejected by the Appellate Authority vide order dated

28.4.86 and immediately thereafter, a revision petition was

preferred by the respondent no. 5 before the Board which has

been allowed by the order impugned dated 6.8.93. Therefore, by

no stretch of imagination , the challenge to the allotment made

in favour of the petitioner in the instant case can be said to be

belated. Thus, the ratio of the decision relied upon by the

learned counsel for the petitioner has no applicability whatsoever

to the facts of the present case.

14. It has come on record that the respondent had preferred

the appeal against the allotment order stating that he has

purchased the land comprising Murabba No. 46/2 and therefore,

they are entitled for allotment of the disputed land of Kila No. 6

and 14 to 16 . In this view of the matter, it cannot be said that

the respondent no. 2 had no locus standi to maintain the appeal

or revision. Moreover, this court is in agreement with the view

taken by the Board that the gross illegality committed in making

allotment having come to the notice , the Board cannot shut its

eyes to illegal and without jurisdiction act of the Allotting

Authority which was upheld by the Appellate Authority in

circumvent manner. Thus, the revisional power exercised by the

Board in setting aside the allotment made by the Allotting
VAIDBAKASH VS. STATE OF RAJASTHAN & ORS.

(S.B.CIVIL WRIT PETITION NO. 3528/96)
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Authority acting without jurisdiction cannot be faulted with and

does not warrant any interference by this court in exercise of its

supervisory jurisdiction under Article 227 of the Constitution of

India.

15. In the result, the writ petition fails, it is hereby dismissed.

No order as to costs.

(SANGEET LODHA),J.

Aditya/-