1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 2347 of 1996 GURU CHARAN SINGH V/S BOARD OF REVENUE,AJMER & ORS Mr. SUDHIR SHARMA, for the appellant / petitioner Mr. BL BHATI, A.G.A., for the respondent Date of Order : 4.1.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- The petitioner by this petition seeks to challenge the order, Annex.6 passed by the Board of Revenue. The facts as alleged in the writ petition are that one Munshi Ram was a Pong Dam oustee and was allotted one murraba of land on 30.4.71. Then he deposited all the leviable charges and Sanad was issued on 28.7.87, copy of which has been produced as Annex.1. While issuing Sanad, khatedari rights were conferred upon the allottee. It is then alleged that on 14.8.87 agreement for sale was executed in favour of the petitioner by one Labh Singh as power of attorney by Munshi Ram under a registered power of attorney dated 7.6.85. After the agreement, the petitioner moved application under Section 13-A for regularisation and compounding fees was deposited by the petitioner on 5.9.89 vide Challan, Annex.2. Thereupon the order was passed by 2 the Collector for regularisation of the transfer on 16.1.90 being Annex.3. Before passing this order, the Additional Collector had already written a letter to the petitioner to submit the sale deed after getting it registered. It is alleged that the petitioner is in continuous possession, however, on 14.7.94, the State Government filed an application under Section 9 of the Land Revenue Act, read with Section 221 of the Rajasthan Tenancy Act, before the Board of Revenue, and the Board of Revenue was of the opinion, that when the matter of transfer is clearly covered under Rule 6 of the Rajasthan Colonisation (Allotment and Sale of Government Land to Pong Dam Oustees and their Transferees in the Indira Gandhi Canal Colony) Rules, 1952, hereafter to be referred to as the 'Rules', the Additional Collector had no right to proceed under Rule 13-A of the Colonisation Act. The order of the Board of Revenue is assailed on the ground inter-alia that the Board of Revenue has erroneously observed that the action of the Collector in passing the order dated 16.1.90, under the provisions of Section 13-A, was bad, in view of the provisions in the Rules. It is contended that the provisions and the Rules cannot override the Act. Then a ground has been raised about delay in moving the application before the Board of Revenue as well. Arguing the writ petition, these very submissions were made by the learned counsel for the petitioner. 3 I have heard learned counsel for the parties and have perused the impugned orders and have also gone through the provisions of the Act and the Rules. So far as the first contention about the Rules being subordinate legislation not capable of overriding the parent legislation is concerned, I may straightway gainfully quote the provisions of Section 7 and Section 28 exercising these powers, Rules 1972 have been framed. The two Sections read as under:- “Sec. 7. Issue of statement of conditions of tenancy.-(1) The State Government may grant land in a colony to any person on such conditions as may be prescribed. (2) The State Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to any person. (3) Where such statements of conditions have been issued, the Collector may, subject to the control of the State Government, allot land to any person, to be held subject to such conditions contained in the statement issued under sub-section (2) of this section as the Collector may, by written order, declare to be applicable to the case. (4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector, and after possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto.” 4 “Sec.28. Power to make rules.-The State Government may, by notification in the Official Gazette make rules generally for carrying into effect the provisions and purposes of this Act and in particular for all matters which are required by this Act to be prescribed or which may be prescribed thereunder.” From perusal of the above provision, it is clear that Section 28 is provision conferring rule making power. However, Section 7 clearly authorises the State Government to specifically lay down conditions on which it is willing to grant land in the colony, and it also prescribes that no person could be deemed to be tenant, or to have any right or title in the land allotted to him, until such a written order has been passed, and he has taken possession of the land with the permission of the Collector, and after possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. Thus, this provision does very much authorises framing of the conditions subject to which the allottee is to have rights or title in the land and subject to which he is to hold the land. So far Section 13 and 13-A are concerned, they are general provisions, and are not intended to override the conditions that may be laid down for allotment with respect to each colony, or to take away the right of the State to lay down such conditions. In that view of the matter, on the face of the special provisions contained in the conditions given the nomenclature of the Rules, general 5 provisions of Section 13-A cannot confer any right on the petitioner to take benefit of right of alienation prior to the period of prohibition prescribed under the Rules. In that view of the matter, the right of the allottee to alienate is to be considered on the anvil of the provisions of the Rules; and a look at Rule 6(3) does clearly show, that the proviso appended thereto clearly restricts accrual of right to sale to the allottee for a specified period of time. It is not in dispute that in the present case, the land has been sold before expiry of the prevalent stipulated period of prohibition period. Coming to second contention about delay, the impugned order of the Collector is 16.1.90 and the application has been moved in July 1994, which cannot be said to be so grossly belated, apart from the fact, that if this objection would have been raised, appropriate explanation would have come from the side of the State explaining the delay. Then in any case, now if interference is made in the order, on the ground of delay either, then it will have the effect of restoring the violation of the Rules, and for that purpose, interference under Article 226 jurisdiction cannot be made. Thus, considering from any standpoint, I do not find any force in the writ petition. The same is, therefore, dismissed. ( N P GUPTA ),J.