1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR CIVIL WRIT No. 295 of 1995 MRS.BHAGWATI & ORS V/S BOARD OF REVENUE & ORS Mr. MS SINGHVI, for the appellant / petitioner Mr. KC SAMDARIYA, for the respondent Date of Order : 14.9.2009 HON'BLE SHRI N P GUPTA,J. ORDER This writ petition has been filed by six petitioners who were commonly aggrieved by the orders dt. 24.12.1992 Annexure-13 passed by the learned Collector, Churu, making a reference under Section 82 of the Rajasthan Land Revenue Act, order dt. 16.2.1994 Annexure-15 passed by the Board of Revenue, accepting the five appeals of the private respondent, and also accepting Reference No. 124 of 1993, and thereby setting aside the allotments made in favour of the petitioners on 2.5.78, with giving some further directions in favour of the petitioners. The petitioners are also aggrieved of the order Annexure- 17 dt. 25.11.1994, passed by the Board of Revenue, whereby the review petition against Annexure-15 was dismissed. The necessary facts are, that the Advisory Committee, vide order dt. 2.5.1978, made allotments of the lands in question comprised in Khasra No. 275 and 2 507 in favour of the petitioners, to the extent mentioned in the proceedings. The petitioner Sardari was allotted 15 bighas of land out of Khasra No. 507, whereas all other petitioners were allotted specified portions of land from out of Khasra No. 275. This allotment was made under Antyodaya Yojana, and the allottees being found to be persons selected to be below poverty line. Thereafter after ten years of the allotment, Khatedari rights were conferred on them. It is in this background that on 15.8.1988 the private respondent made a complaint, to the effect, that in Rohi of village Thukariyasar Paythan land of water hut Kalanatal in Khasra No. 275 and 507 has been irregularly allotted, for which he had made complaints time and again, and it was prayed, that the matter be enquired, and allotment be cancelled, as some persons in a planned way want to grab the Paythan land. On this, the S.D.O. obtained report from Tehsildar, and it was reported, that Khasra No. 275 measures 70 bigha 6 biswa and is Barani Doyam, while Khasra No. 507 measures 15 bighas and is also Barani Doyam, which has been allotted, and the allottees some times cultivate the land otherwise it remains fellow. It was also reported, that in the southern side of Khasra No. 275 main road from Delhi-Bikaner exists, while towards the east there is Kacha way leading from Udrasar to Likhmidesar, and that, the water of Khasra No. 275 goes to Kund of Khasra No. 272, and in Khasra 3 No. 271 there is a water hut, being used by the public. It was also reported, that the soil quality of land of Khasra No. 275 is black, and slippery, and therefore, cannot be cultivated in the event of scarcity of rain, and was also reported to be not cultivable by poor persons. Thereupon notices were issued by the Collector, under Rule 14(3) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules 1970 to the allottees, to which some replies were filed, and evidence was also led before the Collector. Ultimately it was found, that the land was not cultivated as required by Rule 14(3), and on the other hand on 25.5.1992 in a revenue campaign Khatedari rights have been conferred on the allottees, which is illegal, and therefore, a reference was ordered to be made to the Board, for cancellation of the Khatedari rights, so also the allotment, by exercising powers under Section 82 of the Rajasthan Land Revenue Act. This is the order Annexure-13. It appears that against the order dt. 25.5.1992 conferring Khatedari rights, the present private respondent filed appeal before the Revenue Appellate Authority. However, those appeals were dismissed, on the ground that the appellant therein had no locus-standi. This is order Annexure-14 dt. 9.3.1993. Against this order the private respondent filed separate second appeal, and the reference was also received, which all were decided together vide 4 order Annexure-15 dt. 16.2.1994, by the Board of Revenue. The learned Board of Revenue in para-6, interalia found, that the land was catchment area land, and thus was a Paythan land, being used by the public, and on account of scarcity of rainfall, this was not a cultivable land, and in other words allotment was contrary to Rule 4 of the Allotment Rules, and Section 16 of the Rajasthan Tenancy Act. Likewise it was also found, that the provisions of Rule 14(3) have not been complied with, as the land had not been cultivated, and therefore, Khatedari rights could not be conferred. With these findings reference was accepted, the allotment and conferment of Khatedari rights were set aside. However it was directed, that since the allottees are selected Antyodayees, if there be any land available in Antyodaya Yojana, or in any other scheme, capable of being allotted in accordance with the Rules, then the cases of allottees should be considered sympathetically. As noticed above, review against this order was also dismissed vide order Annexure-17 dt. 25.11.1994. Arguing the writ petition, in the first place it was submitted, that if the Collector had found the violation of Rule 14(3), then under Rule 14 Collector himself had the power to cancel the allotment. This 5 power obviously vests discretion in the learned Collector, as to whether to cancel the allotment, or not, and therefore, he himself was supposed to exercise the power, as he would have liked to cancel the allotment or not, even if he were to find the provisions of Rule 14(3) to have been violated, but instead the learned Collector has abdicated his discretion, by making reference, which is bad, and consequently the order of the Board of Revenue is required to be set aside. Next submission made is, that even in Annexure-13 the only ground for making reference was about there being violation of Rule 14(3), but then the learned Board of Revenue had gone beyond the scope of reference, and has gone to embark on the validity of the allotment itself, and has come to the conclusion, that the allotment is contrary to the provisions of Rule 4 of the Rules and Section 16 of the Tenancy Act, while it was nobody's case at any point of time, apart from the fact, that the petitioners had no adequate opportunity of hearing to meet with that aspect, which also vitiates the impugned order. Thirdly it was submitted, that since it is clearly established on record, that looking to the soil quality the land could not be cultivated in absence of adequate rains, and since it is clearly established on record that there was complete continued drought, the land could not be cultivated. 6 It is not the case that despite requisite rains the petitioner did not cultivate. Thus, it is submitted that there is no violation of requirement of Rule 14 (3), and therefore, also the impugned order is bad. Nobody has appeared on behalf of the State. I have considered the submissions, and have gone through the record. Taking the first contention first, true it is that under Rule 14 Collector has the power, but then, what is significant to note is, that in the present case even during pendency of the proceeding for reference Khatedari rights had been conferred on 25.5.1992. Secondly the report of S.D.O. to the Collector against the petitioner is dated 9.3.1989, and notwithstanding that, the S.D.O. himself conferred Khatedari rights on 25.5.1992. It is a different story, that vide Annexure-11 dated. 18.12.1990 the S.D.O. had again written to the Collector for cancellation of allotment. In such circumstances, since pursuant to conferment of Khatedari rights mutation has already been sanctioned, which mutation was required to be got cancelled only by way of reference, and therefore, reference was required to be made. So far as the exercise of discretion by the Collector is concerned, in Annexure-13 the Collector had clearly given out his mind to cancel the allotment, and in view of the fact that Khatedari rights have been conferred, reference was made. 7 Therefore, the first submission does not have force. So far as second contention is concerned, of course it is true that in Annexure-13 it was not made a ground of reference, that allotment was in violation of Rule 4 of the Rules, and Section 16 of the Rajasthan Tenancy Act, but then a look at the order Annexure-15 shows, that that is not the sole ground given for accepting reference. That is an additional ground. The ground on which reference was made has been gone into threadbare, and has been decided against the petitioners. In that view of the matter, even if the additional finding is ignored, that hardly affects the merits of the matter. Then, I take up the third contention. In this regard a look at the provisions of Rule 14(3), specially its proviso, shows that it visualises the contingency, and authorises the allottee to move application to Tehsildar for extension of time. True, it is that under the proviso only one year's extension is permissible, but then, present is a case where no such request has at all ever been made, which shows, that this is a ground only projected as a ruse. It is significant to note, that the original record of the courts below was requisitioned, and a perusal of that record shows, that applications were moved by each of the allottees in the prescribed proforma for conferment of Khatedari rights, on the ground of being in cultivatory possession for ten years, whereupon the report of Patwari is purportedly obtained, and in case 8 of all the allottees except Mst. Sardari, it is reported, that the allottee has not cultivated the land since 2035 to 2045, and is not even in possession, nor land revenue has been paid, and on that application order had been passed for issuance of notice for cancellation of Gair Khatedari rights, thereupon replies are submitted to the S.D.O., mainly taking the stand, that allottee had been regularly paying land revenue from Samvat Year 2035 to 2045 , and except Samvat Year 2036, 2039, 2042 and 2045 allottee has been regularly cultivating the land, but the Patwari has deliberately not entered the factum of cultivation. Significantly in support of this reply, Girdawari of 2046 only is produced, and receipt for payment of land revenue have also not been produced for any period Samvat Year between 2035 to 2045. These proceedings before the S.D.O. have also been produced on record before the learned Collector. In this background, even before the learned Collector, two witnesses have been examined on the side of the allottees, being the allottees Bhanwarlal and Sardari, and significantly in the affidavits of Deda Ram, Malu Singh, Ramu Ram, Mallu Nath, Smt. Gora, Tulsi which also have been filed on the side of allottees, things have been deposed far beyond, and contrary to the oral statements of Bhanwarlal and Sardari. It is a different story, that these affidavits are not affidavits in accordance with the requirement of law, as they do not contain verification, nor do they verify contents of affidavits to be true, apart from the fact, that affidavits are wholly stereo typed, and 9 has nothing to do with truth of contents thereof. In such circumstances, so far the petitioners except petitioner no. 6 are concerned, the findings of the learned Board of Revenue and the Collector, about there being breach of Rule 14(3) are perfectly in order, and do not require any interference. However, so far petitioner no. 6 is concerned, it was submitted by learned counsel for the petitioner, that during pendency of the matter before the Board of Revenue, Sardari had already died, and that the legal representatives were not brought on record, with the result, that the reference, and the revision, filed against her stood abated, and no order could be passed adverse to them. This was pointed out to the Board of Revenue also, but the matter was taken lightly, by simply observing that the legal representatives have been heard. According to learned counsel, without legal representatives being brought on record, to hear the legal representatives, was not a procedure known to law. In my view, this submission has force. That apart, from perusal of the record it is significant to note, that on the application of the petitioner Sardari, submitted for conferment of Khatedari rights, in the report of Patwari, she has been shown to have cultivated the land regularly from 10 Samvat Year 2038 to 2045 except Samvat Year 2044, and is reported to have deposited the land revenue regularly. May be that in Samvat Year 2035, 2036 and 2037 she is not reported to have cultivated, but then, since she is shown to be cultivating the land since 2038 except 2044, and had been conferred Khatedari rights, cancellation of allotment in her case cannot be said to be proper exercise of powers under Rule 14 (3). Consequently, the writ petition is partly allowed. The impugned orders of the Board of Revenue, cancelling the allotment, and cancelling conferment of khatedari rights of the allottee Sardari (petitioner No.6) in Khasra No.507 is set aside, allotment made in her favour, and conferment of khatedari rights to her shall stand. Rest of the part of the order of the Board of Revenue, with respect to other allottees, and observations made by the Board of Revenue, regarding allotment of alternative land to other allottees in Antyodaya Yojana or any other scheme, capable of being allotted, according to the Rules being considered sympathetically, are maintained. ( N P GUPTA ),J. /Sushil/