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IN THE HIGH COURT OF RAJASTHAN
Arun Bhansali, J.
LRs of Kalu - Petitioner
Versus
State of Rajasthan & Ors. - Respondents
Civil Writ Petition No. 1779 of 1987
Decided On : 28-01-2016
Constitution of India - Article 14 - Article 226 - Rajasthan Land Revenue Act, 1956 - Sections 9 , 131 , 132 , 136 , 123 , 124 and 123 Rajasthan Land Revenue Rules, 1957 - Rule 13 - Rule 4 - Rajasthan Tenancy Act, 1955 - Sections 212 , Section 75 - Section 82 - Section 84 – Section 16 - Land for Agricultural - Land admeasuring 21 Bigha 16 Biswa comprised in Khasra of Pali was recorded as Gair Mumkin Rasta at recommendation of Tehsildar, Pali, Sub Divisional Officer, Pali by order ordered for recording 11 Bigha land as cultivable changing its nature from Gair Mumkin Rasta and same was then allotted to petitioner by order and since then petitioner was in possession of land in question - It is claimed that pursuant to allotment, petitioner deposited fee of Rs. 5/- for grant of Sanad vide Annex.-2 - Allotment was questioned and Collector, Pali by his order noticed that though petitioner is in service, however, he was a cultivator as well and does not have any land and, therefore, allotment made to him be maintained - Even prior to that, proceedings appears to have been initiated and by order proceedings were dropped on account of Sanad and rent receipts issued in favour of petitioner – Held , Court are not impressed by this argument as non-petitioner in whose favour allotment of land was made initially, has throughout been fighting litigation and matter was sub-judice - therefore, after declaration that provision regarding bona fide resident is bad, non-petitioner was entitled to get allotment back in his favour, and learned Member of Board of Revenue vide order has rightly set aside order cancelling allotment - In view of above, it cannot be said that Board was powerless in setting aside wrong allotment, which was made in favour of petitioner dehors provisions - Fact that petitioner has been in possession of land in question and has developed same over a period of time, also cannot be of much consequence as since apparently when allotment was made to petitioner, there has been some litigation or other which petitioner has been facing and various orders from time to time have been made and presently despite orders passed by Board under terms of interim order passed by this Court, petitioner is in possession - Last issue raised by learned counsel regarding fact that as has allegedly already sold land in question is also of no consequence - It is submitted that, who had filed appeal before RAA and application before Board, had allegedly sold his land before order was passed by Board and, therefore, matter at his instance could not have been examined - Said submission has been noticed only to be rejected, as already noticed for exercise of powers by Board and in circumstances, in which, power has been exercised, it is apparent that Board did not require presence of even and, therefore, fact that he had transferred land during pendency of proceedings would have no implication - Writ petition dismissed.
Arun Bhansali, J.
This writ petition has been filed by the petitioner aggrieved against order dated 16.12.1986 passed by the Board of Revenue ('the Board'), whereby while exercising powers under Section 9 of the Rajasthan Land Revenue Act, 1956 ('the Act'), the allotment of land admeasuring 11 Bigha comprised in Khasra No.862 at Pali has been set aside and it has been directed that the land in question shall remain recorded as Gair Mumkin Rasta and the appeal filed by the petitioner against the order dated 19.10.1984 passed by the Revenue Appellate Authority ('the RAA') has been rejected, order dated 18.02.1987, whereby the review petition filed by the petitioner has been rejected and order dated 02.04.1987, whereby leave to file appeal against the orders dated 16.12.1986 and 18.02.1987 has been rejected.
2. The land admeasuring 21 Bigha 16 Biswa comprised in Khasra No.862 of Pali was recorded as Gair Mumkin Rasta; at the recommendation of Tehsildar, Pali, the Sub Divisional Officer, Pali by order dated 15.07.1966 ordered for recording 11 Bigha land as cultivable changing its nature from Gair Mumkin Rasta and the same was then allotted to the petitioner by order dated 10.11.1966 and since then the petitioner was in possession of the land in question. It is claimed that pursuant to the allotment, the petitioner deposited fee of Rs. 5/- for grant of Sanad vide Annex.-2. The allotment was questioned and the Collector, Pali by his order dated 29.08.1970 (Annex.-3), noticed that though the petitioner is in service, however, he was a cultivator as well and does not have any land and, therefore, the allotment made to him be maintained. Even prior to that, proceedings under Section 212 of the Rajasthan Tenancy Act, 1955 ('the Tenancy Act') appears to have been initiated and by order dated 21.06.1968 (Annex.-4), the proceedings were dropped on account of the Sanad and the rent receipts issued in favour of the petitioner.
3. The issue of allotment made to the petitioner was examined and the Additional Collector, Pali vide his communication dated 30.01.1979 (Annex.-4A) on an application made by Girdhari Singh etc. reported to the Collector - (i) that the allotment is governed by the Allotment Rules, 1957, no restrictions have been placed in the Rules for allotment except that allotment within 5 Kms. of Jaipur city has been prohibited and the allotment having taken place before Rules of 1970 came into force, there are no restrictions; (ii) the SDO has power to convert the land; (iii) the passerbys on the road will not have any inconvenience and (iv) that there was no restriction under the Rules of 1957 and the restrictions have come in Rules of 1970 only. The issue regarding allotment of the land in petitioner's favour despite he being in service was also justified.
4. The Collector by order dated 21.07.1975 (Annex.-5) informed the Tehsildar that the allotment has been upheld and further by order dated 20.04.1976, the Tehsildar required from the Patwari to report after recording the name of the petitioner.
5. Where after, a reference was made to the Board under Section 84 of the Act, which reference was rejected by the Board vide order dated 09.07.1980 (Annex.-7) holding that reference under Section 82 of the Act only was maintainable. Where after again, Misc. Revenue Proceedings No.40/1981 were initiated before the Additional Collector, Pali and the Additional Collector by his order dated 03.09.1982 (Annex.-8), came to the conclusion that qua the land in question twice orders have been passed on 05.08.1968 and 29.08.1970 and, therefore, res judicata would apply and the matter cannot be reopened.
6. Against the order dated 03.09.1982 (Annex.-8), though the State did not file appeal, one Mukan Chand filed an appeal under Section 75 of the Act and the RAA by its order dated 19.10.1984 (Annex.-9), came to the conclusion that the allotment is patently illegal, cannot stand and set aside the order of the Additional Collector and directed e
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