1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> JUDGMENT LRs of KARTAR SINGH VS. BOARD OF REVENUE & ORS. D.B. CIVIL SPECIAL APPEAL (W) NO.1074/2000. Date of Judgment :: 10th August 2007. PRESENT HON'BLE MR. JUSTICE P.B. MAJMUDAR HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. J.L. Purohit, for the appellants. Mr. B.L. Bhati, Additional G.A., for State. Mr. Sudhir Sharma, for the respondents. .... Reportable BY THE COURT: (Per Hon'ble Mr. Maheshwari, J.) This intra-court appeal is directed against the order dated 01.09.2000 passed by the learned Single Judge whereby the writ petition filed by the petitioner Kartar Singh (since deceased and represented by his legal representatives) challenging the order dated 24.07.1990 (Annexure 3) passed by the Board of Revenue for Rajasthan, Ajmer (‘the Board’) has been dismissed. The dispute concerns 12 bighas and 10 biswas of agricultural land comprised in square No. 46 at Chack 6 LC, Tehsil Raisinghnagar, District Sriganganagar. The land in 2 question was temporarily allotted to the petitioner on 18.05.1963 under the Rajasthan Colonisation (Temporary Leases) Conditions, 1955; and was continued to be allotted temporarily until the month of April 1968. The petitioner got some land in permanent allotment too; other than the one in dispute. The petitioner and the respondent No.5 Nand Lal (he too since deceased and represented by his legal representatives) were the applicants for permanent allotment of the land in question when the respondent authorities invited such applications. The application made by the petitioner was rejected by the Sub- Divisional Officer (SDO) with the finding that he was already holding more than 15 bighas of land on permanent basis and, therefore, could not be considered eligible for allotment of further land under the Gang Canal Allotment Rules, 1955. On the other hand, permanent allotment of the land was made in favour of the respondent No. 5 Nand Lal on 22.08.1976 treating him a landless agriculturist. The petitioner Kartar Singh raised objection against such allotment made in favour of Nand Lal, inter alia, on the grounds that he was not an agriculturist but was a shopkeeper and his son was working as conductor on a bus; and it appears that on 19.04.1977, in an appeal filed by the petitioner Kartar Singh, the matter was remanded for decision afresh. It further appears that even after remand, the SDO maintained the order earlier made; found the petitioner Kartar Singh disentitled for permanent allotment of land in question with 3 reference to his other holdings; rejected the complaint against the respondent No.5 Nand Lal; and found that the complainant has failed to substantiate his allegations that Nand Lal was a shopkeeper and his son was working as a conductor on a bus. The petitioner Kartar Singh took an appeal before the Revenue Appellate Authority, Bikaner, Camp Sriganganagar (‘RAA’), being appeal No.21/1980, that was heard and decided on 18.05.1981 (Annex.1). The learned RAA held that Kartar Singh was not entitled for allotment being not falling in the category of a landless person but at the same time found that the allottee Nand Lal has failed to establish himself being an agricultural labourer and held that he was also not entitled for allotment. The RAA, thus, held that neither the petitioner Kartar Singh nor the respondent Nand Lal were entitled for allotment and proceeded to cancel the allotment made in favour of Nand Lal. Against the aforesaid order dated 18.05.1981 passed by the RAA, the petitioner Kartar Singh and the respondent Nand Lal filed separate revision petitions before the Board, numbered 99/1981 and 152/1981 respectively. It may be pointed out that in the respective revision petitions, the other contesting party was arrayed as non-petitioner in the manner that Nand Lal was the non-petitioner No.2 in revision petition No.99/1981 whereas Kartar Singh was the non-petitioner No.1 in revision petition No.152/1981. By the common order dated 14.07.1987 (Annex.2), 4 while considering both the revision petitions together, the learned Member of the Board endorsed the view taken by the learned RAA and affirmed the findings that the petitioner Kartar Singh was not a landless person and that the respondent Nand Lal was not a landless agriculturist; and hence dismissed both the revision petitions. Thereafter, the present respondent No. 4 Nand Lal filed a review application that was allowed on 24.07.1990; and on the same date, the learned Member of the Board proceeded to re- hear and decide his revision petition No.152/1981 wherein the present writ petitioner Kartar Singh appeared through his Advocate, in his capacity as non-petitioner No.1. The learned Member of the Board, after examining the material on record, observed that at the most the complainant Kartar Singh had been able to show that Nand Lal was casually selling something once in a month on every “Amawasya” day in the village “Hat”; and held that such casual selling cannot make a person a regular shopkeeper. In relation to the allegations about engagement of his son as driver/conductor, the learned Member observed that the business or profession of the son of allottee was not at all relevant. The learned Member also noticed the report made by the Tehsildar stating that “at present” Nand Lal was not carrying on with any shop; and observed that the learned RAA placed undue emphasis on the words “at present” to conclude that at the time of allotment Nand Lal was having a shop. Learned 5 Member was of opinion that the allotment should not be cancelled on such meagre evidence. Accordingly, the revision petition filed by Nand Lal was allowed, the order passed by RAA was set aside and the allotment made in his favour was upheld. In the writ petition filed by the petitioner Kartar Singh against the aforesaid order dated 24.07.1990 (Annex.3) passed in revision petition No. 152/1981, the learned Single Judge observed that the finding that Nand Lal cannot be termed as non- agriculturist nor could be taken as a shopkeeper merely for his participating occasionally in village ‘Hat’ is a finding of fact which is not ordinarily liable to be interfered in the writ proceedings; and no case for interfering with such finding of fact has been made out. The learned Single Judge noted the other part of the prayer made by the petitioner for mandamus to the respondents to make allotment of land to him and observed that such prayer must fail for two reasons. One, that the land has already been allotted to the respondent Nand Lal by the order dated 22.08.1976 that has been upheld by the Board of Revenue and, thus, the said land cannot be made available to the petitioner; and second, that the petitioner Kartar Singh’s application for allotment of land stood finally rejected by the Board of Revenue in its order dated 14.07.1987 and no attempt was made to challenge that order of the Board whereby rejection of his application for allotment was upheld until filing of the writ petition only after revision petition of Nand Lal challenging cancellation of 6 allotment made in his favour was allowed. The learned Single Judge found that no attempt having been made by the petitioner to pursue any remedy against the order dated 14.07.1987, no interference was called for in relation to the order passed in revision petition No.99/1981. The learned single Judge, therefore, dismissed the writ petition by the impugned order dated 01.09.2000. Arguing for the appellants, learned counsel Mr. J.L. Purohit strenuously contended that the learned Single Judge has erred in observing that the petitioner's application for allotment of land in question stood finally rejected by Board of Revenue by the order dated 14.07.1987 and no attempt was made to put such part of the order of the Board to challenge. Learned counsel submitted that when the two revision petitions numbered 99/1981 and 152/1981 filed respectively by the petitioner Kartar Singh and the respondent Nand Lal were decided by a common order dated 14.07.1987; and when the review application made against the order dated 14.07.1987 was allowed on 24.07.1990, the impugned order dated 14.07.1987 stood recalled in its entirety and the revision petitions stood restored for consideration by Board. Learned counsel contended that the learned Member of Board has committed illegality in not deciding the revision petition submitted by the petitioner Kartar Singh and the learned Single Judge has been in error in not issuing appropriate writ or order against such fundamental illegality. Learned counsel relied on 7 the decision of the Hon'ble Supreme Court in Sushil Kumar Sen Vs. State of Bihar: AIR 1975 SC 1185. Learned counsel further submitted that on merits, entitlement of the petitioner for allotment of land in question has not been appreciated by the learned Member of Board, nor by learned Single Judge, that the petitioner being a temporary cultivation (TC) leaseholder of the said land ever since 18.05.1963, had the preferential right for permanent allotment. Learned counsel further contended that even going by the observation made by the authorities, at the most 12 bighas of land was available with the petitioner; and he was nevertheless a landless person and a bonafide agriculturist holding less than 25 bighas of irrigated land and his entitlement to the land in question cannot be denied. Learned counsel submitted with reference to the decision of the Hon'ble Supreme Court in Brijlal Vs. Board of Revenue: AIR 1994 SC 1128 that the petitioner has been in cultivatory possession of the land in question since the year 1963 and equity clearly stands in his favour for allotment of the land that has been nourished and developed by him. Learned counsel also contended that the petitioner has specifically put the provisions of Rule 2(2) Proviso and Rule 3 of Gang Canal Rules to challenge being ultra vires the Constitution of India and the learned Single Judge has erred in not considering such challenge at all. Learned counsel also made a reference to the decision of the Hon'ble Supreme Court in M/s Ghaio Mal & Sons Vs. State of Delhi & Ors. : AIR 1959 SC 8 65 for the submission that the learned authorities ought to have sent the record to this Court and the learned Single Judge has been in error in not examining the record of case and deciding the writ petition only on the assumption that the petitioner has not challenged the order rejecting his application for allotment. Learned counsel for the respondents on the other hand duly supported the order impugned and submitted that it was the respondent Nand Lal alone who submitted the review application being aggrieved of dismissal of his revision petition by the order dated 14.07.1987; and the Board of Revenue allowed the review application submitted by the respondent Nand Lal only and thereafter heard his revision petition and allowed the same. Learned counsel contended that so far the petitioner Kartar Singh is concerned, he never challenged the order dismissing his revision petition and rejection of his application for allotment having become final, the petitioner had no right to challenge the entitlement of the respondent Nand Lal for allotment of the land in question. Learned counsel also submitted that TC allotment of the petitioner Kartar Singh was never renewed after the year 1965 and the land was allotted to the respondent Nand Lal on 27.08.1976; and thus, even if the petitioner has thereafter been able to maintain possession during the pendency of litigation, he was not invested with any legal right qua the land in question nor the decision of the Hon'ble Supreme Court in Brijlal's case (supra) has any application to the facts of the present case. 9 We have given our anxious consideration to the rival submissions and have examined the record with reference to law applicable. The chronology of facts and sequence of events makes it clear that though the petitioner Kartar Singh was allotted the land in question temporarily on 18.05.1963 and he continued as TC lease holder for some time; but, admittedly, applications for permanent allotment of the land in question were invited and the petitioner and so also the respondent No.4 Nand Lal were the applicants thereto. The petitioner's application was rejected on the ground that he was holding more than 15 bighas of land on permanent basis and he was not eligible for allotment of further land. On the other hand, the application of respondent Nand Lal was allowed and the land in question was allotted to him on 22.08.1976 taking him a landless agriculturist. The complaint of the petitioner against such allotment made in favour of Nand Lal on the allegation that the allottee was not a bona fide agriculturist was rejected by the allotting authority. The learned RAA in its order dated 18.05.1981 held both the petitioner Kartar Singh and the respondent Nand Lal disentitled for allotment and set aside the allotment made in favour of Nand Lal. As noticed above, both of them preferred separate revision petitions before the Board. Though copies of such revision petitions have not been placed on record but it is obvious that even while the subject land in both the revision petitions was the same yet the two 10 revision petitions were distinct in their foundation and discrete in their effect. Nand Lal was obviously aggrieved against the order dated 18.05.1981 made by RAA insofar it related to cancellation of his allotment; but the question of entitlement of Kartar Singh was not and could not have been the issue involved in his revision petition. On the other hand, Kartar Singh's revision petition could be construed involving two issues: one, about his complaint against allotment of Nand Lal; and second, about grievance against denial of allotment to himself. Noteworthy it is that in the order dated 18.05.1981, the learned RAA did not order cancellation of allotment of Nand Lal on the ground of any right or entitlement of Kartar Singh; but only on the ground that Nand Lal was not to be treated as landless agriculturist. Thus, entitlement or otherwise of the petitioner Kartar Singh was not and could not be the subject of revision petition filed by Nand Lal. By the order dated 14.07.1987, learned Member of the Board rejected both the revision petitions. Thus, in effect, the order dated 18.05.1981 as made by RAA stood affirmed. It is at once clear that if the petitioner Kartar Singh was aggrieved of the order dated 14.07.1987 insofar it related to rejection of his revision petition, he was required to take appropriate proceedings at appropriate time against the said order. He did not. As a necessary consequence, the finding against Kartar Singh, that he was not entitled for allotment, became final. 11 It is an admitted position that the review application was filed only by the respondent Nand Lal; and upon his review application, the order dated 14.07.1987 was recalled and his revision petition (No.152/1981) was re-heard and decided by the impugned order dated 24.07.1990. As noticed above, the only issue involved in this revision petition was about cancellation of allotment made in favour of Nand Lal on the ground that he was not a landless agriculturist. Entitlement or otherwise of Kartar Singh was not the subject of this revision petition. Then, Kartar Singh was not oblivious of the proceedings and it is noticed that he did appear even in re-hearing of the said revision petition No.152/1981 (in his capacity as non-petitioner No.1); yet never made any effort to assert his case about his entitlement to the land in question nor questioned the finding recorded against his entitlement. We are totally in agreement with the learned Single Judge that the petitioner in the writ petition only attempted to take advantage of the fact that the respondent Nand Lal pursued his remedy by filing review application for being aggrieved with cancellation of his allotment. In the garb of challenge to the order dated 24.07.1990 made in the revision petition filed by Nand Lal, the petitioner cannot be permitted to seek reopening of other part of the order dated 14.07.1987, i.e., rejection of his revision petition No.99/1981. 12 The submission that once the order dated 14.07.1987 was recalled, both the revision petitions ought to have been heard and entitlement of the petitioner ought also to have been considered remains meritless and cannot accepted. As noticed, the order dated 14.07.1987 was recalled only upon the review application of the respondent Nand Lal, obviously for re- hearing of his revision petition (No.152/1981). It has not been shown nor could be assumed by any stretch of imagination that by way of review application Nand Lal sought revival of revision petition of Kartar Singh too; or that he ever suggested re- consideration of the question of entitlement of Kartar Singh. So far the decision in Sushil Kumar Sen's case (supra) is concerned, the Hon'ble Apex Court has observed that upon allowing an application for review of a decree, the decree so passed stands vacated; and the decree that is subsequently passed on review is a new decree superseding the original one. The principle would apply to the facts of the present case in the manner that with allowing of the review application filed by the respondent Nand Lal, the earlier order made by the Board of Revenue rejecting his revision petition stood recalled and the subsequent order dated 24.07.1990 shall govern the said revision petition (No.152/1981). However, it cannot be said that merely for the reason that the revision petition filed by Kartar Singh (No.99/1981) and that filed by Nand Lal (No.152/1981) were decided by common order dated 14.07.1987, therefore, if 13 the review application of Nand Lal was allowed and the order dated 14.07.1987 was recalled that would enure to the benefit of petitioner Kartar Singh to the extent that his revision petition concerning his claim for allotment could also be taken as revived. The order passed by the Board of Revenue on 24.07.1990 of course supersedes the order dated 14.07.1987 but only to the extent it concerns revision petition No.152/1981; and so far dismissal of revision petition No.99/1981 is concerned, the same stood final and remained unaffected for having not been challenged by Kartar Singh at the appropriate time in appropriate proceedings. On facts, the decision in Sushil Kumar Sen's case has no co-relation with the present matter. In the said case, on a Land Acquisition Reference, on 18-08-1961 the District Judge awarded compensation for land at the rate of Rs.200/- per katha. But, on an application for review made by the State, the District Judge by a fresh judgment dated 26-09-1961 reduced the compensation to Rs.75/- per katha. Thereafter, the State filed an appeal before the High Court. Though the memo of appeal stated that the appeal was being preferred against the decree dated 18-08-1961/26-09-1961 but it was clear from the grounds taken in the memo of appeal and the court fee paid that the appeal was only against the decree dated 26-09-1961 and not against the decree dated 18-08-1961. The claimant filed a cross appeal challenging the maintainability of the review petition and 14 also the order passed thereon. The High Court though found that the District Judge was wrong in entertaining the review and vacating the judgment dated 18-08-1961 yet considered the appeal on merits and dismissed the appeal and cross-appeal thereby maintaining the compensation awarded at the rate of Rs.75/- per Katha. The Hon'ble Supreme Court held that once the High Court has found the proceedings in review incompetent, the cross- appeal ought to have been allowed and the appeal filed by the State, that was and could only have been against the decree dated 26.09.1961 passed after the review, ought to have been dismissed. The fact situation of Sushil Kumar's case is materially different than that of the present case. The finding that respondent Nand Lal was a landless agriculturist and could not be taken as a shopkeeper merely for his participating occasionally in village 'Hat', being essentially a finding of fact, has rightly not been interfered with by the learned Single Judge; and we see no reason to take any different view of the matter in that regard. As a necessary consequence of affirmance of allotment in favour of the respondent Nand Lal, the land cannot be made available to the petitioner and his claim is required to be rejected on this count alone. Moreover, as noticed, rejection of the petitioner Kartar Singh's application for allotment has become final with the finding of the Board of Revenue in its order dated 14.07.1987 in 15 relation to his revision petition No.99/1981; and for the petitioner Kartar Singh not challenging the order made in relation to his revision petition No.99/1981. The review application was made by the respondent Nand Lal in relation to revision petition No.152/1981; and for any order therein, it cannot be said that Kartar Singh's revision petition No.99/1981 was also required to be re-heard. In fact, when the order made against Kartar Singh in his revision petition No.99/1981 remained intact, as a natural corollary, the attempted challenge by him to the order dated 24.07.1990 made in favour of respondent Nand Lal was fundamentally redundant. Further, we are clearly of the view that in the garb of challenge to the order dated 24.07.1990 made in revision petition No.152/1981, the petitioner cannot seek reopening of the matter in his revision petition No.99/1981. In view of the above, the other limb of submissions on behalf of the petitioner that he being a TC lease holder had a preferential right for permanent allotment becomes redundant and is of no avail. So far the submission on equity with reference to the decision of the Hon'ble Supreme Court in Brijlal's case (supra) is concerned, we are clearly of opinion that neither the ratio of Brijlal applies to the present case nor the appellant has any equity in his favour. 16 In the said case, Brijlal was allotted the land in the year 1970 on temporary basis and in the year 1974, he applied for permanent allotment but his application was rejected on the ground that from the photo affixed on the application form, it appeared that he was a minor. His appeal was dismissed but the Board of Revenue in revision remanded the case for fresh enquiry and for decision in accordance with the Rules of 1975 which had been enforced in the meantime. On remand, the Assistant Colonisation Commissioner rejected his application on 19.01.1976 on the ground that he was a minor at the time of temporary allotment. The appellant had produced certain pieces of evidence like date of birth certificate from the school and a certificate from the doctor to show that on the date of temporary allotment, he had attained majority but the same were rejected. The appeal was also dismissed by the Addl. Colonisation Commissioner on the ground that even if his date of birth was taken to be 18.03.1952, he was a minor at the time of temporary allotment in the year 1969. The revision petition was rejected by the Board of Revenue and the writ petition was also dismissed by this Court and hence, Brij Lal was in appeal before the Hon'ble Supreme Court wherein his dispossession had been stayed while granting leave to appeal. In the backdrop of the aforesaid facts, the Hon'ble Supreme Court considered that earlier the Board had remanded the case for consideration afresh in accordance with the Rules 17 and the appellant was indisputably a landless person and was a TC lease holder; and as such, he was eligible and entitled to permanent allotment on priority basis under the Rules. As noticed above, the claim for permanent allotment of the said appellant was sought to be rejected by the authorities only on the ground that he was a minor at the time of temporary allotment. In those circumstances, the Hon'ble Supreme Court observed that if he had obtained temporary allotment by giving false declaration, then such temporary allotment should have been cancelled but it was not. The Hon'ble Supreme Court held that the onus to show the applicant to be a minor at the