IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: O R D E R :: LRs of Gulab & Ors. Vs. State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO. 4283/1990. Date of Order :: 13th October 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.J.L.Purohit for the petitioners. Mr. M.S.Singhvi ) for the respondents. Mr. R.K.Mehta ) Mr. O.P.Boob, G.C. ) ... BY THE COURT: The Background: The dispute in this matter relates to the allotment of 2 bighas of land comprised in Khasra No. 53 at Sumerpur, said to have been made on 09.08.1975 in favour of the respondent No. 5 Ishaq Mohammed. The petitioners Gulab and Nathu Ram (both since deceased and represented by their legal representatives), moved an application in the year 1978 under Rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 ['the Rules of 1970'] read with Rule 18 of the Rajasthan Colonisation (Jawai Project Government 1 Lands Allotment and Sale) Rules, 1978 ['the Rules of 1978'] while questioning the said allotment with the submissions, inter alia, that the land comprised in the said Khasra No. 53 was in abadi area and a piece admeasuring 2688 square yards therein had been in their possession, as let out by the Gram Panchayat, Sumerpur on 01.02.1960 at a rent of Re. 1/- per month; and that the questioned allotment to the respondent No.5 was entirely illegal and unauthorised and no allotment could have been made under the Rules of 1970 and the Sub- Divisional Officer [‘the SDO’] making such allotment had no authority to do so because Sumerpur was declared a colony area under the Rajasthan Colonisation Act, 1954 [‘the Act of 1954’]; and further that the allotment had been made against the Rules and contrary to the requirements of the law. The aforesaid allotment as made in favour of the respondent No.5 was also questioned on behalf of the State Government by the Officer-in-charge of Revenue Branch in the office of the Collector, Pali by filing a separate application with the submissions that the allottee was not the resident of Sumerpur and was not a bona fide agriculturist. Both the applications aforesaid were rejected by the learned Additional Collector, Pali by the common order dated 05.11.1982 (Annex.13). The appeal taken by the petitioners was dismissed by the Revenue Appellate Authority, Jodhpur 2 [‘the RAA’] by the judgment dated 20.06.1986 (Annex.14); and the second appeal taken by the petitioners was also dismissed by the Board of Revenue [‘the Board’] by its judgment dated 20.07.1990 (Annex.15). Assailing the aforesaid orders and judgments, Annexures 13, 14 and 15, the petitioners preferred this writ petition; and, after the matter was initially considered by the Division Bench of this Court on 09.10.1990, the petitioners prayed for and were granted time to apply for amendment of the writ petition; the amendment prayed for was allowed on 26.11.1991; and by way of the amended writ petition, apart from assailing the aforesaid orders passed by the revenue authorities and apart from questioning the alleged allotment made in favour of the respondent No.5, the petitioners also put a challenge to Rule 2 of the Rules of 1978. This writ petition was admitted for consideration on 02.12.1991 and later on, when it was alleged that the respondent No.5 had transferred the disputed land in favour of four persons during the pendency of the writ petition, by the order dated 24.08.1993, such transferees were permitted to be joined as respondents Nos. 7 to 10 in this writ petition; and by way of interim order, the respondents were directed to maintain status quo. During the pendency of this writ petition, the original petitioners expired and on applications, their respective legal 3 representatives were ordered to be substituted as petitioners. The impugned Orders/Judgments as passed by revenue authorities: While dealing with the aforesaid applications as moved by the petitioners under Rule 14(4) of the Rules of 1970 read with Rule 18 of the Rules of 1978 (earlier numbered as Revenue Misc. Case No. 50/1978 and later on numbered as Case No. 17/1981) and as moved by the State Government (Case No. 11/1981), the learned Additional Collector, Pali noticed the contentions on behalf of the petitioners that 2688 square yards of land of Khasra No. 53 was in their possession for having been let out by the Gram Panchayat, Sumerpur as abadi land on a rent of Re. 1/- per month w.e.f. 01.02.1960 and, thus, was not available for allotment; that the land was falling in municipal area and so also that the area in question had been declared a command area and, therefore, neither was it available for allotment under the Rules of 1970 nor could have been allotted thereunder. The learned Additional Collector also noted the counter contentions on behalf of the present respondent No.5 that the land of Khasra No. 53 being situated outside the command area, the Rules of 1978 did not apply; that for a stay order granted by this Court, change of Gram Panchayat, Sumerpur to a Municipal Board had been stayed and, therefore, as on 09.08.1975, the land was not falling in municipal area; that the Municipal Board had 4 admitted the fact that the land in question was a revenue land; that having been delivered possession of the land in question, the contesting respondent had been cultivating the same; that the allegations of the petitioners being in possession of the land stood contradicted by their own assertion in another case, Appeal No. 55/1974, wherein they moved an application on 05.07.1974 and positively stated that the land of Khasra No. 53 was a vacant land; that the petitioner Nathu had been trespassing over other pieces of land and the application moved by him questioning the allotment after about three years was not bona fide; and that the proceedings under Section 91 of the Land Revenue Act against the contesting respondent would show that he was a resident of Sumerpur and was an agriculturist. The learned Additional Collector, Pali considered the rival submissions and observed that the petitioners had not been able to produce any document to establish if the land in question was given on rent in the year 1960 and any rent was paid; that only a certified copy issued on 25.01.1973 of the so- called rent note was filed alongwith the reply submitted by the Municipal Board on 09.01.1979 but the same was bereft of various particulars like the serial number of the document, valuation, and date etc. and it was difficult to co-relate the same with the land in question. The learned Additional 5 Collector also referred to the application moved by the petitioners in Appeal No. 55/1974 and observed that if they were in possession, such assertion of the land being vacant would not have been made. The learned Additional Collector further referred to the certification from the Assistant Engineer, Jawai Nahar Division, Sumerpur that Khasra No. 53 was not falling in command area and so also to the assertion of the Municipal Board that the land in question was an agricultural land. The learned Additional Collector also referred to the fact that the petitioner Nathu Ram had encroached over various other pieces of land and applied for regularisation, and found that he was habitual of encroaching over the Government land. With further reference to the notices under Section 91 and the entries in Khasra Girdawari, the learned Additional Collector found that the respondent No.5 was a resident of Sumerpur and had been cultivating the land in question. With these findings and observations, the learned Additional Collector found both the applications, as moved by the petitioner and by the State Government, lacking in substance and rejected the same by the common order dated 05.11.1982 (Annex.13). The petitioners took the matter in appeal before the RAA but no appeal was preferred in relation to the other application as moved by the State Government. The learned 6 RAA observed in its judgment dated 20.06.1986 (Annex.14) that the challenge was put by the petitioners-appellants on three grounds, namely, that the land was situated in Sumerpur municipal area and it was under Jawai Project area and as such, allotment was not permissible under the Rules of 1978; that the allotment under the aforesaid Rules was not made by the competent authority and only the Collector was competent authority to do so; and that the land was not an unoccupied land at the time of allotment. The learned RAA observed with reference to the certificate issued by the Municipal Board, Sumerpur on 18.10.1982 that at the time of the allotment in question, the order passed by this Court was in operation whereby conversion of Gram Panchayat to a Municipality was stayed. The learned RAA further referred to the said certificate issued by the Assistant Engineer of the Irrigation Department and concluded on its basis that the land of Khasra No. 53 was out of the command area. According to the learned RAA, once it was accepted that the provisions of the Rules of 1978 were inapplicable, ‘the other contention of the appellants, that the allotment in question should have only been made under Rules of 1978 by the Collector, automatically falls down’. On the question that it were not an unoccupied land, the learned RAA observed that the total area of Khasra No. 53 had been 7 16 bighas and 15 biswas and there was nothing on record to co-relate the alleged piece of 2688 square yards of the land in Khasra No. 53 to the land that was allotted to the respondent Ishaq. The learned RAA also considered the admission of the Municipal Board that the land of Khasra No. 53 was a revenue land and, therefore, held that Gram Panchayat was not competent to lease out the same as alleged. The learned RAA further observed that no cogent documentary evidence was available in proof of the fact that the land was let out to the appellants; and, while indicating various loopholes and shortcomings in the alleged rent note, pointed out that there was nothing to co-relate the same with the land of Khasra No. 53. The learned RAA further wondered as to where the original of the said rent note was; as to why the same was not produced; and how, if at all, the Gram Panchayat gave on rent about 2688 square yards of land only at Re. 1/- per month? The learned RAA observed that the disputed allotment was made in the year 1975 and as per the record, possession was delivered by the Patwari concerned without any indication of the land being not an unoccupied one. The learned RAA further observed that had the appellants been in possession of the said portion of the land, they would have raised immediate protest but, on the contrary, they came to the Court questioning the allotment for the first 8 time only in the year 1978; and further referred to the petition dated 05.07.1974 as filed by the appellants in the case pertaining to Khasras Nos. 52 and 53 wherein it was nowhere mentioned that they had obtained 2688 square yards of land from Gram Panchayat, Sumerpur on lease in the year 1960 and that they were in possession. The learned RAA yet further referred to the fact of the appellant Nathu having made different applications for regularisation of the land encroached over by him at three different places. The learned RAA also proceeded to confirm the finding of the learned Additional Collector that the allottee Ishaq was a resident of Sumerpur and an agriculturist. Consequently, the appeal filed by the petitioners was dismissed by the learned RAA by the impugned judgment dated 20.06.1986 (Annex. 14). In the second appeal preferred by the petitioners, the learned Member of the Board agreed with the finding that conversion of Gram Panchayat into a Municipality remained stayed for the order passed to that effect by this Court. The learned Member of the Board also observed that Khasra No. 53 comprised of 16 bighas and 15 biswas of land and the petitioners allegedly had with them 2688 square yards of land thereof and another piece of 3 bighas and 5 biswas was allotted to Anand Singh (though the allotment made to Anand Singh was later on cancelled) and it was not borne out from 9 the record if the land allotted under the questioned allotment was a part of any such pieces of land and, thus, it could not be concluded that it were not an unoccupied land. The learned Member of the Board also made an observation, while agreeing with the arguments advanced on behalf of the respondent, that the petitioners had no right to take an appeal in the matter after having filed the application under Rule 14(4) of the Rules of 1970. Further, the learned Member of the Board reiterated that there was no proof of the fact that the allotted one was the very same land that was allegedly in possession of the appellants. Accordingly, the appeal taken by the petitioners came to be dismissed by the impugned judgment dated 20.07.1990 (Annex. 15). The petition and documents of the petitioners: Assailing the orders aforesaid, the petitioners preferred this writ petition; and the petition averments with the documents relied upon could be summarized thus: The petitioners have averred that prior to 01.04.1975, Sumerpur town was a Panchayat and was thereafter constituted as Municipality; that the aforesaid Khasra No. 53 was in abadi area of Gram Panchayat, Sumerpur, it was treated as an abadi area, and ceased to be an agricultural land; and, thus, according to the petitioners, a part of the said land was let out for non-agricultural purposes to M/s Indian Oil Company and 10 M/s Kapoor Chand Jawahar Mal etc. as stated in Khasra Parivartansheel for Svt. Year 2023 (Annex.1). The petitioners have reiterated their case that 2688 square yards of land in the said Khasra No. 53 had been let out to the petitioner No. 1 Gulab and one Chelaji son of Bhaggaji on a monthly rent of Re. 1/- and a rent note was executed in that regard on 01.02.1960 (Annex. 2). The petitioners have alleged making payment of rent from time to time and have placed on record the copies of the alleged notice-cum-receipt dated 24.06.1964 (Annex.3) and the alleged rent payment receipts dated 06.07.1967, 21.08.1969, and 30.08.1974 (Annexs. 4 to 6 respectively). Under the last receipt dated 30.08.1974 (Annex.6), allegedly an amount of Rs. 64/- was deposited towards rent for five years from 01.04.1970 to 31.03.1975. The petitioners have further averred that one Anand Singh tried to encroach over the said land and upon the complaint, he was convicted ultimately for offence under Section 447 of the Indian Penal Code; and in that regard, a copy of the judgment dated 19.08.1974 as passed by the Munsif & Judicial Magistrate, Pali in Case No. 1/1970 has been placed on record as Annexure-7. According to the petitioners, it was in the month of November 1978 that the respondent No.5 wanted to dispossess the petitioner No.1 from the said land let out by the 11 Gram Panchayat in Khasra No. 53; that an FIR was filed but prosecution was not launched on the ground that the said respondent had an order of allotment of 2 bighas of land from the Sub-Divisional Officer, Bali. It is stated that the petitioner applied for the copy of the order of allotment made in favour of respondent No.5 but the same was not supplied and, instead, were supplied the copies of the report of Patwari dated 07.10.1975, of the application of the respondent No.5 dated 27.10.1975, and of the order of Sub-Divisional Officer dated 27.10.1975; and the petitioners have placed such copies on record as Annexures 8, 9 and 10 respectively. According to the petitioners, for the said document revealing an allotment having been made by the Advisory Committee in favour of the respondent No.5 on a price of Rs. 150/-, as advised, they submitted the application (Annex.11) under Rule 14(4) of the Rules of 1970 read with Rule 18 of the Rules of 1978. The petitioners have further averred that on the said application, the Additional Collector made inquiries from the Municipal Board, Sumerpur as well as the respondent No.5; and in response to the notices, the administrator of the Municipal Board accepted the fact that the part of the land in dispute was allotted to the petitioner No.1 and Chelaji on a monthly rent of Re. 1/- and the rent was paid by the tenants upto 31.03.1975; and a copy of the reply dated 09.01.1979 as 12 sent by the Municipal Board has been placed on record as Annexure-12. It has further been pointed out that the State Government also filed the application for cancellation of allotment as made in favour of the respondent No.5 and both the applications were decided by the common order dated 05.11.1982 (Annex.13). The petitioners, after referring to the facts regarding dismissal of the application and of their appeals as noticed hereinbefore, have taken the grounds in the writ petition that the judgment of the learned Additional Collector, Pali on the question as to whether Sumerpur was a colony and whether 1978 Rules applied for the allotment of agricultural land thereat stood vitiated for his failing to consider the Notification dated 24.06.1958 (appended to the writ petition as Schedule-I) whereby, in exercise of powers under Section 2 of the Act of 1954, the said Act was applied to the village Sumerpur. The petitioners maintain that as a necessary effect of the said Notification, Sumerpur became a colony; and have urged that the Rules of 1970 did not apply to the area or the villages that were declared a colony and, therefore, the alleged allotment under the Rules of 1970 was without authority of law and void. According to the petitioners, unnecessary stress has been laid by the Additional Collector as well as RAA that the Rules of 1978 did not apply though, as a matter of fact, on the date of 13 allotment, as allegedly made in the year 1975, the Rules of 1978 were not in force at all. According to the petitioners, the net legal position had been that no permanent allotment could have been made in Sumerpur village until promulgation of the Rules of 1978; that only temporary allotment could have been made under the General Colony Conditions, 1955 framed under the Act of 1954; that the authority competent for such temporary allotment was the Tehsildar and not the Sub-Divisional Officer and, thus, the order of allotment said to have been passed by the Sub-Divisional Officer or by the Advisory Committee was absolutely without jurisdiction and void. The petitioners have further contended that the authorities were not right in observing that the Rules of 1978 do not apply to the uncommand land in Jawai area because, according to the petitioners, the Rules were applicable to the whole of the colony area including uncommand land. The petitioners have pointed out that Rule 17 of the Rules of 1978 also provides for the price of uncommand land to be allotted under the said Rules. It has further been contended that the allotment order in favour of the respondent No.5 had been passed without following any of the Rules because in all the Rules there remains the provision for inviting applications and no such 14 allotment could have been made simply on the basis of application made by a person. The petitioners have also averred that the Revenue Authorities have failed to consider the reply submitted by the Municipal Board, Sumerpur on 01.09.1979 admitting the fact that the land in dispute was given on rent by the Panchayat, Sumerpur in the year 1960 and the rent upto 31.03.1975 was received by the Panchayat. The petitioners have also suggested that there was a misplaced reliance on the so-called admission on the part of the petitioners about the land being vacant, without considering their case as set up against Anand Singh. The petitioners have further submitted that the Board of Revenue has been in error in refusing to exercise jurisdiction on the ground that the appeal was not maintainable against the order passed by the Additional Collector. The petitioners have proceeded to submit that even if no such appeal lay against the order made under Rule 14(4) of the Rules of 1970, they were entitled to challenge the order of allotment in the writ petition on the grounds that the said order was a nullity and could not have been passed by the Sub-Divisional Officer under any of the statutory provisions; that allotment of 2 bighas of land was less than a fragment as defined in Section 5 of the Rajasthan Holdings (Consolidation and Prevention of Fragmentation) Act, 1954 [‘the Prevention of Fragmentation 15 Act’]; that the allotment order does not even specify the boundaries of the alleged 2 bighas of land from out of more than 16 bighas land in Khasra No. 53; and that, if the petitioners' contentions about it being an abadi area were accepted, the allotment made for agricultural purposes was void. The petitioners have further submitted that they were entitled to file an application for cancellation of the allotment even on the ground that they were the residents of Sumerpur and were entitled to apply for allotment, if applications were invited therefor. It may be pointed out that the petitioners have also placed on record as Annexure-16 a report of the Tehsildar bearing date 08.01.1979. The said report seems to have been addressed to the Collector, Pali with reference to the communication dated 06.12.1978 in relation to this case. As per the said report, the Tehsildar had inspected the site on 31.12.1978 with the Patwari concerned and pointed out that the land was an unarable one and even when Patwari had shown some cultivation in the Girdawaries of Svt. Years 2033, 2034 and 2035, as per the situation at site, the land appeared not to have been cultivated and there had been tractoring in about half a bigha portion by Ishaq Mohammed to claim possession. The Tehsildar had also stated that the same land was earlier regularised to Anand Singh and the record entries 16 were also made but then, there had been a stay from the Collector and in compliance thereof, by the letter dated 24.04.1974, the Patwari concerned was asked not to alter the record; that the appeal was pending before the Collector but the Patwari concerned stated it to be Siwai chak arable land that was allotted by the Allotting Committee on 09.08.1975 contrary to the Rules and even when the land was subject to the stay order passed by the Collector. It may also be pointed out that though by way of amendment, the petitioners also put a challenge to Rule 2 of the Rules of 1978 in this writ petition but the learned counsel for the petitioners has not pressed on such grounds, and this aspect of the matter is, therefore, not required to be dilated upon. It may, however, in the passing be observed that the said Rule 2 of the Rules of 1978 merely provides that all allotments of Government land made in the Jawai Project area before the commencement of those Rules shall be deemed to have been made under those Rules. Such a provision does not appear suffering from any vice and the learned counsel has rightly not argued on this ground, rather unnecessarily inserted in this writ petition by way of amendment. The reply submissions and documents of the respondent No. 5: The respondent No.5 has filed the reply with several documents while contesting this writ petition. According to the 17 contesting respondent, Sumerpur was a commercial town even prior to 24.06.1958 but was not governed by the Act of 1954 that was applied only to specific Khasras of Sumerpur village and the disputed Khasra No.53 admeasuring 16 bighas 15 biswas was not included therein. The