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.
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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.
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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.
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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/-