ORDER
Rajendra Saxena, J.
1. The petitioner by filing this writ petition has prayed that by an appropriate writ, order or direction, the impugned order dt. 28-2-1983 (Annex. 6) passed by the learned Land Acquisition Officer cum Assistant Commissioner, Colonisation, Rajasthan Canal Project, Suratgarh be quashed and the respondents be restrained from interfering with their cultiva-tory possession over the disputed land.
2. The admitted facts of this case are that petitioners purchased agricultural land bearing Khasra No. 65 measuring thirty six bighas and sixteen biswas situated in village Telhar from khatedars Sultan and Bhagirath. That land was acquired by the State Govt. for Ghaghar Canal. The petitioners applied for compensation for the land so acquired. The Slate Govt. vide its notification No. F. 4 (2) RCPD 61-11 dt. 7-2-1962 published in Rajasthan Gazette Part 1V-C dt. 26-4-1962 appointed all the Assistant Colonisation Commissioners, Rajasthan Canal Project to perform the functions of Collector order the Land Acquisition Act within the districts of Ganga Nagar, Bikaner and Jaisalmer in connection with the working of the Rajasthan Canal Project. Therefore, the Assistant Commissioner. Colonisation, Rajasthan Canal Project, Suratgarh, in the capacity of the Land Acquisition Officer under the Rajasthan Land Acquisition Act by his order dt. 11-6-1982 (Ex. 1) allowed thirty seven bighas and ten biswas of land in exchange for their acquired land and ordered that possession thereof be given to them. The land so exchanged in favour of the petitioners also included the land of kilas Nos. 6 to 25 measuring 19 bighas and twelve biswas of square No. 265.472 in Chak 2 L.M.A. A communication dt. 17-6-1982 (Annex. 2) was also sent by the said Land Acquisition Officer to the petitioners informing them:of the exchange of the land allowed in their i’avour. In compliance of orders Annexs. 1 and 2, the petitioners were handed over the actual physical possession of the said land on 20-7-1982 vide certificates Annexs. 3 and 3A. The certificate Annex. 3A pertains to the disputed
land comprising of square No. 265/472 of Chak No. 2 L.M.A.
3. It appears [hat on 7-9-1982, Bakta Ram, who is father of respondent No. 3 Mala Ram. filed an application Annex. 5 alleging that the lands in square No. 265/472 of Chak 2 L.M.A. were previously allotted to him on temporary cultivation basis along with other lands; that out of the total land so allotted to him, some land was allotted to him on parmanent basis; that the land falling in square No. 265, 472, was a surplus land with him. which could not be permanently allotted to him as per Rules and that for that surplus land, his major sons were entitled for allotment under the provisions of Rule 13(5) of the Rajasthan Colonisation (Allotment and Sale of Govt. Land in Rajasthan Canal Colony Area) Rules, 1975. He, therefore, prayed that the disputed land of square No. 265. 472 of Chak 2 L.M.A., which was allowed in exchange to the petitioners, be cancelled on the ground that the application of his son for allotment of the said land was pending. Respondent No. 2 issued notice of the application Annex. 5 to petitioners, who opposed the same. However, the respondent No. 2 by his impugned order dt. 28-2-1983 (Annex. 6) reviewed his previous order Annex. 1 and cancelled the exchange of 15 bighas of land in square No. 265/472 in Chak 2 L.M.A. on the ground that respondent No. 3 Mala Ram was entitled under Rule 13(5) of the Rules 1975 for allotment of the said land, being the surplus land of his father. He further directed the Tehsildar to submit proposal for another land, which could be allotted to the petitioners in exchange.
4. The respondents Nos. 1 and 2 in their reply have admitted this factual position but submitted that the respondent No. 2 Land Acquisition Officer-cum-Assistant Commissioner, Colonisation, Suratgarhdid not make an award as provided under Section 11 of the Rajasthan Land Acquisition Act and, as such, no award was filed under Section 12. However, they have admitted that respondent No. 2 had allotted 37 bighas and ten biswas of land to the petitioner in lieu of petitioner’s land, which was acquired for construction of
Ghaghar flood channel. They have asserted that by the impugned order Annex. 6, the respondent No. 2 did not review his earlier order Annex, 1 but has simply corrected the mistake which had crept in due to oversight, because the land of another person could not be given in exchange. They further asserted that it was a bona fide mistake in allotting the land of square No. 265 472 in favour of petitioners; that Bakta Ram, father of respondent No. 3 Mala Ram, who had already been allotted 24 bighas and ten biswas of land permanently and that his adult son Mala Ram respondent No. 3’s application for allotment of surplus land under Rule 13(5) of the aforesaid Rules of 1975 was pending; that he was shown as trespasser in the Girdawari and that by mistake, the possession of the said land was delivered to the petitioners. They have also averred that the Land Acquisition Officer, respondent No. 2. has not cancelled the claim of petitioners and rather sent-for the proposals of Tehsildar for allotting another land to them and, therefore, this writ petition is premature.
5. 1 have heard Mr. N. S. Acharya. learned counsel appearing for the petitioners and Mr. Hemant Choudhary, Dy. Govt. Advocate for respondents Nos. I and 2 at length and perused the relevant record.
6. The parties are at common ground that 36 bighas and 16 biswas of land of Khasra No. 65. which was recorded in the khatedari of the petitioners was acquired by the State Govt. for consiruction of Ghaghar Canal Channel and that the respondent No. 2 in exercise of his powers as Collector by his order dt. 1 l-6-82(Annex. l) after perusing the report of the Tehsildar and making necessary enquiry, had given his specific findings that the proposed 37 bighas and 16 biswas of land was unoccupied Govt. land; that the same was not in cultivatory possession of any person and was not a Mohad Payatan’ land and not situated within the radius of eight miles, He, therefore, gave the said land an compensation in exchange to the petitioners in lieu of their land, which had been acquired. There is also no dispute that on 20-7-1982, the actual physical possession of the land in dispute
comprising of Kila Nos. 6 to 25 measuring 19 bighas and 12 biswas of Murabba No. 265/ 472 situated in Chak 2 L.M.A. vide certificate Annex. 3 A was handed over to the petitioners and that since then, they have been in the continuous cultivatory possession thereon. Section 31(3) of the Land Acquisition Act specifically lays down that notwithstanding anyhing in this section, the Collector may, with the sanction of the appropriate Govt., instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned.
7. It is also not in dispute that the order Annex. I was passed by the respondent No. 2 jn the capacity of Land Acquisition Officer. Therefore, it stands firmly established that the respondent No. 2 had allowed the said exchange of the land under Section 31 of the Land Acquisition Act in favour of the petitioners. On the other hand, Bakta, the father of respondent No. 3 Mala Ram, was only a temporary cultivation lease holder. He was permanently allotted 24 bighas and ten biswas of land in the some other square and the surplus land which was earlier given on cultivation, was unoccupied and recorded, as Govt. land in revenue record and the same was available for allotment. Bakta filed an appliction on 7-9-1982 i.e. after the order dt. 11-6-1986 Annex. 1 was passed, wherein he alleged that his adult son was also entitled for allotment under Section 13(5) of the Rules of 1975. But prior to that, the disputed land had already been allowed in exchange in favour of the petitioners and actual physical possession thereof was given to petitioners vide Certificate Annex. 3 A. By that time, the eligibility of respondent No. 3 for permanent allotment of the surplus land, had also not been decided by the Allotting Authority. As per entries of Khasra Girdawari Annexs. 4/1 and 4/2 in Samvat year 2037 corresponding to the year 1980-81 AD, Bakta has been shown as trespasser on the land of Kilas Nos. 1, 2 and 3
and rest of the Kilas of square No. 265/472 of Chak 2 L.M.A. were uncultivated and shown as ‘kabja-raj’.
8. Now, the pertinent question arises as to whether the respondent No. 2, while acting as Land Acquisition Officer had the power to review his own order and whether the impugned order Annex. 6 was passed under Section 13A of the Land Acquisition Act rectifying or correcting any clerical or arithmetical mistake in the award. A careful. perusal of the impugned order Annex. 6. reveals that the Land Acquisition Officer has held that since the application of respondent No. 2 for allotment of land under Section 13(5) of the Rules of 1975 was pending, the disputed land could not be given in exchange to petitioners. It may be mentioned here that. the order dt. 11-6-1982 Annex. 1 was passed by respondent No. 2 as a Land Acquisition Officer under the Land Acquisition Act and by that time, the eligibility of respondent No. 3, as to whether he was an adult son of Bakta, whether he was entitled for allotment of any surplus land and whether all the kila numbers of square No. 265/472 were under cultivation by Bakta or not, were not decided. On the other hand, on 11-6-1982 all the kila numbers of the said square were recorded as ‘kabja raj’ and kila Nos. 6 to 25 of the said square were shown as uncultivated. Therefore, the impugned order Annex. 6 did not suffer from any arithmetical mistake. It is, thus, abun-. dantly apparent that the respondent No. 2 has reviewed his order dt. 11-6-1982 Annex. I by. the impugned order dt. 28-2-1983 Annex. 6, which, in my considered opinion, is not permitted by any provision of the Land Acquisition Act. It is needless to mention here that review is a creature of Statute and the Land Acquisition Act does not authorise the Land Acquisition Officer to review his order except correcting the clerical or arithmetical mistakes under Section 13A. In such circumstances, the impugned order Annex. 6 is clearly without jurisdiction and the respondent No. 2, the Land Acquisition Officer had no authority to cancel the exchange of the disputed land which was granted in favour of-the petitioners. Therefore, the impugned order cannot be sustained.
9. The result of the above discussion is that this writ petition is allowed and the Order dt. 28-2-1983 Annex. 6 passed by the Land Acquisition Officer (respondent No. 2) is hereby set aside. No order as to costs.