RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 1 RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) Dated: 21.4.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr.J.L.Purohit, for the petitioner. Mr. Hemant Choudhary, Government Counsel, for the respondent nos. 1 , 3 and 4. None present for the respondent no. 5. 1. This writ petition is directed against order dated 31.12.96 passed by the Board of Revenue, Rajasthan, Ajmer, whereby revision petition preferred by the petitioner against the order dated 10.12.96 passed by the appellate authority i.e. Additional Collector(Administration), Sri Ganganagar affirming the order dated 29.6.93 passed by the Tehsildar (Revenue), Raisinghnagar directing to hand over the possession of land in question to respondent no. 5 and to recover the rent and penalty from the petitioner for alleged illegal possession over the land belonging to the member of Scheduled Caste , stands dismissed. 2. The petitioner's father late Shri Tara Singh was the khatedar tenant of 23 bighas of land comprising Old Square No. 35 (New Square No.27) in Chak 24 PS(B). The lands ad measuring 1 bigha and 15 biswas in Killa Nos. 8 and 14 lying vacant adjacent to the aforesaid khatedari land of late Shri Tara Singh, were being allotted to him on temporary cultivation basis RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 2 for last so many years and he was in possession of the said land till his death. Late Shri Tara Singh applied for allotment of the said lands as small patch vide application dated 15.10.80 before the Collector, Sri Ganganagar. After the death of the petitioner's father, the petitioner also applied for the allotment of the aforesaid lands as small patch vide application dated 22.11.93. The application preferred by the petitioner as aforesaid remains pending consideration. 3. The father of respondent no. 5 Late Shri Buta Singh applied for the allotment of the land in Square No. 34 . However, while making allotment to him, the aforesaid 1 bigha and 14 biswas of land in Killa No. 8 and 14 in Square No. 35 was also allotted to him. On the representation being made by the petitioner's father, the allotment made in favour of the father of the respondent no. 5 to the extent of aforesaid land was ordered to be cancelled vide order dated 21.5.70. However, despite the cancellation of the allotment of the land in question as aforesaid the father of the respondent no. 5 preferred a suit u/s 183 and 42 of Act of 1955 before the Sub Divisional Officer, Raisinghnagar for ejectment of the petitioner's father from the land in question alleging him to be tress passer over the land in question . The suit preferred by the father of the respondent no. 5 was dismissed by the Sub Divisional Officer, Raisinghnagar RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 3 vide judgment and decree dated 13.6.79 keeping in view the fact that the allotment of the land in question made in his favour already stands cancelled. 4. In the year 1993 , the respondent no. 5 preferred an application u/s 183 B of the Act of 1955 before the Tehsildar (Revenue), Raisinghnagar for ejectment of the petitioner from the land in question on the ground that the land held by him belongs to a member of the Scheduled Caste . The application was allowed by the Tehsildar (Revenue), Raisinghnagar vide order dated 29.6.93 and the petitioner was directed to hand over the possession of the land to the respondent no. 5 . That apart, for alleged illegal possession over the land in question for more than 35 years, the recovery of the rent and penalty was also directed to be made from the petitioner. An appeal preferred by the petitioner was dismissed by the Appellate Authority vide order dated 10.12.96 on the ground that the land in question was allotted in the name of late Shri Buta Singh and as per revenue record, he continues to be khatedar of the land. A revision petition by the petitioner against the order dated 10.12.96 passed by the Revenue Appellate Authority also stands dismissed by the order impugned in this writ petition. 5. It is submitted by the learned counsel for the petitioner that the allotment of land in question made in favour of the RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 4 petitioner having been cancelled vide order dated 21.5.70 which has attained finality , the father of respondent no. 5 cannot be treated to be khatedar of the said land. That apart, it is submitted by the learned counsel that the suit preferred by late Shri Buta Singh u/s 183 and 42 of the Act of 1955 against the petitioner's father having been dismissed by the court of competent jurisdiction , the subsequent application preferred by the respondent no. 5 for ejectment of the petitioner alleging him to be tress passer over the land held by a member of Scheduled Caste was not maintainable. It is submitted by the learned counsel that after the cancellation of the allotment of land made in favour of late Shri Buta Singh, it cannot be said that the land in question is held by a member of Scheduled Caste whereas admittedly, for all these years, the land remained in possession of the petitioner and his father . The learned counsel submitted that the learned courts below have seriously erred in treating the land to be khatedari land of the father of the respondent no. 5 solely on the ground that notwithstanding the order dated 21.5.70 cancelling the allotment made in his favour necessary corrections were not made in the revenue record. Accordingly, it is submitted by the learned counsel that the orders impugned deserves to be quashed and set aside. 6. Per contra, learned Government Counsel submitted that RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 5 even after cancellation of the allotment made in favour of late Shri Buta Singh and dismissal of the suit preferred by him u/s 183 and 42 of the Act of 1955 the petitioner's father did not take any steps for allotment of the land in his favour therefore, the petitioner cannot be permitted to retain the possession of the land, khatedari rights whereof as per the revenue record exists in the name of late Shri Buta Singh, a member of Scheduled Caste. On being pointedly asked by this court, that if the petitioner is continuing in possession of the land in question for all these years and the allotment made in favour of late Shri Buta Singh already stands cancelled by the competent authority then on what basis, the land is treated to be held by a tenant belonging to Scheduled Caste, he had no answer. 7. I have considered the rival submissions and perused the material on record. 8. It is not in dispute that the lands in question in small patches are adjacent to the petitioner's khatedari land comprising Old Square No.35 in Chak 24 PS(B) and the same were being alloted for temporary cultivation to petitioner's father and the petitioner and his father are in possession of the land for more than 50 years by now. It is not in dispute that the allotment made in favour of father of the respondent no. 5 of the land in question was cancelled solely on the ground that the RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 6 petitioner's father was in possession of the land since Samvat 2004 and therefore,it will not be appropriate to dispossess him at this stage. While cancelling the allotment made in favour of the father of respondent no. 5 , it was also specifically noticed that the land in question is adjacent to the existing khatedari land of the petitioner and an application preferred by the petitioner's father for allotment of the land as small patches was pending before the competent authority. Thus, after the cancellation of the allotment of the land made in favour of the father of the respondent no. 5 Shri Buta Singh as aforesaid, by no stretch of imagination, it can be said that the said land is held by the respondent no. 5, a member of Scheduled Caste on the pretext that even after the cancellation, the consequential correction of entries in the revenue record was not carried out by the authority concerned on account of the lapses on his part. Moreover, the suit of the father of the respondent no. 5 for ejectment of the petitioner having been dismissed by the competent authority holding that in view of the cancellation of the allotment, the petitioner cannot be said to be khatedar of the land, the subsequent application preferred by the respondent no. 5 u/s 183 B of the Act of 1955 for ejectment of the petitioner could not have been entertained by the Tehsildar (Revenue) , Raisinghanagar. RICHHPAL SINGH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 247/1997) 7 9. In view of the discussion above, in the considered opinion of this court, the learned courts below have seriously erred in holding that the land in question is held by a member of Scheduled Caste therefore, the petitioner being a tress passer over the land is liable to ejected. 10. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 31.12.96 passed by the Board of Revenue, Rajasthan, Ajmer ,the order dated 10.12.96 passed by the Additional Collector(Administration), Sri Ganganagar and the order dated 29.6.93 passed by the Tehsildar (Revenue), Raisinghnagar are quashed and set aside. No order as to costs. (SANGEET LODHA),J. Aditya/-