1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.8906/2008. (Jagdish & Others Vs. State of Rajasthan & Others) DATE OF ORDER : November 24th, 2008 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. J.L. Purohit for the petitioner. Mr. Hemant Choudhary for the respondents. Reportable BY THE COURT : In this writ petition, the petitioner has prayed for quashing order dated 06.10.2008 passed by the Board of Revenue and allotment made in favour of respondents No.5 to 9. Further it is prayed that the respondents may be restrained from dispossessing the petitioners from the land in dispute. As per brief facts of the case, land was allotted in the year 1969 to respondents No.5 to 9 situated in various khasra of village Singrasar, Tehsil Suratgarh (District Sriganganagar). The petitioners made a complaint in the year 1984 to the S.D.O., Hanumangarh that allotment was made in gross violation of rules and knowing it well that respondents are not agriculturists and they have made misrepresentation for allotment of the land. Upon complaint so made by the petitioners the allotment made in favour of respondents No.5 to 2 9 was cancelled by the S.D.O., Hanumangarh vide order dated 01.02.1984. Against said cancellation order dated 01.02.1984 appeal was preferred by respondents No.5 to 9 before the Revenue Appellate Authority, Bikaner (Camp Sriganganagar). The said appellate authority, vide its judgment dated 13.12.1984 remitted six appeals to the S.D.O., Hanumangarh for deciding the matters afresh. According to the petitioners, they made complaint on 17.09.1983 in which various grounds were taken including the ground that no possession was taken after allotment by the respondents and the allotment was made on the basis of misrepresentation made by respondents No.5 to 9. Upon remand by the Revenue Appellate Authority, the matter was to be adjudicated on merit by the S.D.O.-cum- Allotting Authority, Suratgarh; but, vide judgment dated 22.07.1994, the learned S.D.O.-cum-Allotting Authority decided the matters while observing that if khatedari rights have been granted after allotment, then, on the basis of complaint allotment cannot be cancelled because cancellation will affect the khatedari rights also. Therefore, the S.D.O.-cum-Allotting Authority directed the Tehsildar to take appropriate action for reference for cancellation of allotment so made upon which khatedari rights were granted in favour of respondents No.5 to 9. After judgment dated 22.07.1997, a reference application was made under Section 232 of the Rajasthan Tenancy Act, 3 read with Section 82 of the Rajasthan Land Revenue Act before the Addl. Collector (Admn.), Sriganganagar for making a reference to the Board of Revenue. Upon the reference application so filed by the Tehsildar (Revenue), Suratgarh the Addl. Collector made a reference vide order dated 06.07.2002 to the Board of Revenue, in which, it was observed that allotment has been made in contravention of the allotment rules, therefore, the allotment so made in favour of respondents No.5 to 9 is illegal because it is in contravention of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970. In the reference so made before the learned Board of Revenue, petitioners filed application under Order 1 Rule 10, C.P.C., in which, prayer was made for impleading them as party because after cancellation of allotment of land of the respondents No.5 to 9, the said land in question was allotted to the petitioners on 22.02.1984, therefore, they are necessary party in the proceedings. Upon the said application, the petitioners were impleaded as party in the proceedings vide order dated 28.05.2006 by the Board of Revenue. The said order was never challenged by the respondents, therefore, it attained finality. It is further submitted in the writ petition by the petitioner that finally the Revenue Board has decided the reference so made by the Addl. District Collector (Admn.), Sriganganagar and rejected the prayer of the Addl. District Collector for cancelling 4 the allotment so made in favour of respondents No.5 to 9, that too, solely on the ground that allotment made in the year 1965 cannot be cancelled after 30 years. So also, it is observed in the impugned judgment/order by the learned Board of Revenue that khatedari rights were given after allotment to respondents No.5 to 9 and it is also obvious from the record that the land has been further transferred in the names of subsequent purchasers. In the present writ petition, the petitioners seek to challenge the validity of the said order on various grounds. Learned counsel for the petitioners vehemently argued that allotment was made in contravention of the Rules of 1970 and, at the time of allotment, the respondents misrepresented their claim before the allotting authority that they are landless persons and agriculturists, therefore, it was a fraud committed by them and, so also, with connivance with the revenue authorities they got the allotment made in their favour. It is contended by learned counsel for the petitioners that when this fact came to the knowledge of the petitioners, then, a complaint was filed by them in the year 1983 before the allotting authority and, upon their complain, the allotment was cancelled vide order dated 01.02.1984. Thereafter, the land was allotted in favour of the petitioners on 22.02.1984 and their allotment is still in existence. It is submitted by learned counsel for the petitioners that the cancellation order was although challenged by way of filing appeal before the Revenue Appellate Authority; but, after 5 remand, according to the rules, the S.D.O. did not have jurisdiction to cancel the allotment so made because they were conferred khatedari rights, therefore, he gave instruction to the Tehsildar (Revenue), Suratgarh to take appropriate action for cancellation of allotment so made. Upon cogent finding given by the S.D.O. that allotment was made in contravention of the rules at the misrepresentation made by respondents No.5 to 9. Therefore, the Tehsildar (Revenue), Suratgarh filed an application before the Addl. District Collector for making reference in accordance with Section 232 of the Land Revenue Act and the said authority after elaborate order made reference to the Revenue Board for cancellation of allotment made in favour of respondents No.5 to 9 and, in the said order dated 06.07.2002, cogent reasons were given and finding was given by the Addl. Collector that allotment made in the year 1965 was not in accordance with rules, therefore, it was prayed that the learned Revenue Board may cancel the allotment and khatedari rights granted to respondents No.5 to 9. But, the learned Revenue Board has committed error while not accepting the request of the Addl. Collector and wrongly rejected the reference so made by the learned Addl. Collector, Sriganganagar. As per learned counsel for the petitioners, the judgment impugned passed by the learned Board of Revenue is patently illegal order because it is based on the ground that after 30 years no khatedari rights can be cancelled and, so also, no 6 allotment can be cancelled after 30 years in view of the fact that allotment was made in the year 1965 in favour of respondents No.5 to 9. As per learned counsel for the petitioners, the Revenue Board has failed to consider the cogent finding given by the Addl. District Collector and so also finding given by the S.D.O. while instructing the Tehsildar to take recourse to law for cancelling the khatedari rights vide order dated 22.07.1997. Therefore, the order of the Revenue Board suffers from illegality and, so also, passed without application of mind. It is contended by learned counsel for the petitioners that the impugned order deserves to be quashed and the matter is required to be remitted for a decision afresh. Learned counsel for the petitioners invited attention of the Court towards the judgment reported in 2001 (2) RRT 1358, in which, it has been held by a Division Bench of this Court that if an allotment is obtained on misrepresentation, then, it can be cancelled. It is argued by learned counsel for the petitioners that according to the proposition of law laid down by the Full Bench of this Court in the judgment reported in 2000 DNJ 438, Chiman Lal Vs. State of Rajasthan & Others, revisional power can be exercised at any time in the cases of fraud, misrepresentation, collusion or otherwise void orders, therefore, the Revenue Board ought to have considered this aspect of the matter and was under obligation to consider the facts and finding recorded by both the revenue authorities below, in which, it is observed that the allotment was contrary to rules 7 and obtained by misrepresentation. Learned counsel for the petitioners vehemently urged that the Board of Revenue was under obligation to allow the reference on the basis of the finding given by both Addl. Collector and S.D.O.; but, the learned Revenue Board rejected the reference solely on the ground of delay, therefore, the impugned order deserves to be quashed. In this case, although notices were not issued but, on behalf of respondent No.5, Advocate Shri Hemand Choudhary entered caveat and submitted that the order of reference cannot be challenged by the subsequent allottee, so also, by the person upon whose complaint the allotment was cancelled on 01.02.1984; and, subsequent allotment was made on 22.02.1984 in favour of the complainants. It is contended by Mr. Hemant Choudhary that bona fides of the petitioners is questionable. Moreover, according to him, it is also obvious that the State Government has not chosen to challenge the order passed by the Revenue Board and, in the absence of any challenge by the State Government, no interference can be made upon the petition filed by the subsequent allottees who were not even born in the dispute on the date of allotment made in favour of respondents No.5 to 9. Learned counsel for respondent No.5 while protecting the order impugned vehemently argued that all aspects of the matter were considered by the Revenue Board and after giving cogent finding that allotment was to be cancelled prior to grant 8 of khatedari rights; meaning thereby, the learned Revenue Board after considering the important aspect of the matter that the said reference has been made after 30 years, therefore, it was found necessary to reject the reference so made by the Addl. Collector, therefore, the facts of the present case are altogether different than the facts of the cited judgments. Learned counsel Mr. Hemant Choudhary further argued that the allegation of misrepresentation or fraud by a private person is totally baseless and so also on vague assertion made before the subordinate authority which is not tenable. He vehemently urged that in this case conduct of the petitioners is to be seen inasmuch as the petitioners are claiming right on the basis of subsequent allotment made by the S.D.O., that too, on the basis of their complaint; meaning thereby, somehow the petitioner want to grab the land and for the same purpose they even filed a false complaint in the year 1983 and the prayer was accepted by the S.D.O.-cum-Allotting Authority and, straight away, on 01.02.1984 allotment was cancelled, however, against the cancellation, appeal was filed by respondents No.5 to 9 and the Revenue Appellate Authority remitted the case to the S.D.O. for deciding the same afresh because, after allotment, khatedari rights were granted to respondents No.5 to 9. It is, therefore, vehemently argued by learned counsel for the respondents that the S.D.O.-cum-Allotting Authority exceeded its jurisdiction. Upon remand, however, the S.D.O. gave instruction to the Tehsildar to file application for reference to the District 9 Collector; and, thereafter, the Tehsildar (Revenue) filed application for making reference to the Revenue Board; meaning thereby, behind the curtain, the petitioners are playing the game for cancellation of allotment. Therefore, such type of persons are not entitled to invoke extraordinary jurisdiction and, so also, invoke the jurisdiction for a writ of certiorari because the State Government has not chosen to challenge the said order, therefore, the writ petition filed by the petitioners deserves to be dismissed. I have considered the rival submissions made by both the parties and perused the pleadings of the case. Admittedly, following allotment of land was made in favour of respondents No.5 to 9 in various khasra of village Singrasar, Tehsil Suratgarh in the year 1969 : S.No. Name of Allottee Khasra No. Rakaba 1. Kundan Lal 341 3.402 343 2.276 346 1.467 345 2.326 372 1.214 376 0.405 377 5.121 379 2.908 2. Mool Chand 838 1.896 847 1.846 849 2.124 877 8.852 873 4.123 3. Mool Chand s/o Nathu Ram 837 18.968 4. Mohan Ram 257 6.298 258 3.946 261 1.988 266 6.678 10 5. Ram Chandra 819 15.216 820 1.442 822 2.529 The petitioners made a complaint for cancellation of the said allotment in the year 1983. The reason for cancellation of the said allotment was that allotment made in favour of respondents No.5 to 9 was totally in contravention of the allotment rules. It was stated in the complaint that respondents No.5 to 9 were not eligible for allotment of land being not landless persons and, in fact, they were businessmen carrying on business at Gajsinghpur, so also, the allotment was made without any consultation with the advisory committee as required under the rules. Upon their complaint, the Sub Divisional Officer, Hanumangarh passed order dated 01.02.1984 whereby the allotment made in favour of respondents No.5 to 9 was cancelled and the same land was allotted to the complainant-petitioners just after 20 days of the cancellation of allotment. Meaning thereby, the petitioners are subsequent allottees after cancellation of allotment of land made in favour of respondents No.5 to 9 in the year 1969 in accordance with rules. This fact clearly reveals that the intention of the petitioners for filing the complaint was obvious that they were interested in the land so allotted to respondents No.5 to 9 which is evident from the fact that subsequently, just after 20 days of cancellation on 01.02.1984, the said land was allotted in favour of the petitioners on 22.02.1984. 11 Respondents No.5 to 9 preferred appeal to the Revenue Appellate Authority against the so called cancellation order and the Revenue Appellate Authority, after considering the entire facts of the case, remitted the matter to the Sub Divisional Officer for re-consideration after cancelling the order of cancellation of allotment so made by the S.D.O. on 01.02.1984. Upon remand, the S.D.O. was to adjudicate upon the matter on merit; but, it is found by the S.D.O.-cum-Allotting Authority, Suratgarh that allotment so made in favour of respondents No.5 to 9 cannot be cancelled in view of the provisions of Rule 14(4) of the Rules because, after allotment, khatedari rights have been granted to the allottees. Therefore, allotment and khatedari rights can be cancelled by the Revenue Board upon reference being made by the competent authority. Therefore, the Sub Divisional Officer-cum-Allotting Authority, Suratgarh instead of adjudicating upon the matter, made a direction to the Tehsildar to file an application before the competent authority to make a reference to the Revenue Board for cancellation of allotment and khatedari rights created in favour of respondents No.5 to 9. In my considered opinion, the Sub Divisional Officer-cum- Allotting Authority, Suratgarh exceeded his jurisdiction while directing the Tehsildar (Revenue) to make reference application for cancellation at the behest of the petitioners. The petitioners are admittedly subsequent allottees of the land and allotment initially made in favour of respondents No.5 to 9 was 12 illegally cancelled by the Sub Divisional Officer-cum-Allotting Authority on 01.02.1984. Thereafter, while the Revenue Appellate Authority set aside the order of cancellation and remitted the case to him, then, it was to be adjudicated upon within the scope of the complaint so made in accordance with the direction issued by the Revenue Appellate Authority; but, the Sub Divisional Officer-cum-Allotting Authority, Suratgarh exceeded its jurisdiction and made order to the Tehsildar (Revenue) to file application for reference. This action of the Sub Divisional Officer-cum-Allotting Authority, Suratgarh is also not free from unfair play because the decision for reference is to be made independently by the competent revenue authority. But, here in this case, the Sub Divisional Officer-cum-Allotting Authority directed the Tehsildar (Revenue) for filing an application for reference at the behest of the petitioners which is not proper because the petitioners were very much interested in the land which was allotted to respondents No.5 to 9 in the year 1969 which is obvious from the fact that after cancellation on 01.02.1984 the land in question was allotted to the petitioners in the month of February 1984 itself, just after 20 days of cancellation of allotment. In this view of the matter, the Sub Divisional Officer-cum-Allotting Authority committed a clear breach and acted as desired by the petitioners. Further, the Tehsildar (Revenue) filed application before the Addl. District Collector (Admn.), Sriganganagar under Section 232 of the Rajasthan Tenancy Act, read with Section 82 13 of the Land Revenue Act and the said application was filed in pursuance of the direction issued by the Sub Divisional Officer- cum-Allotting Authority vide order dated 22.02.1997. In the said application, the Tehsildar (Revenue), Suratgarh averred that allotment made in favour of respondents No.5 to 9 was in contravention of allot ment rules of 1970 because, at the relevant time of allotment of land, they were not agriculturists but they were pursuing business at Gajsinghpur which is evident from the certificate issued by the Nagar Palika, Gajsinghpur and, so also, the allotment was made in the year 1969 without consultation with the advisory committee, therefore, the allotment was made in connivance with the officers working in the department at the relevant time, therefore, the said allotment may be cancelled. It was prayed that as per Rule 14 (4) of the allotment rules, the allotment will be cancelled and the land may be ordered to be acquired in favour of the State. Upon the said reference application made by the Tehsildar (Revenue), Suratgarh, the Addl. District Collector vide Annex.-4 made a reference to the Revenue Board where the application under Order 1 Rule 10, C.P.C. was filed by the petitioners because they are the subsequent allottees of the land in question after cancellation of allotment made in favour of respondents No.5 to 9 on 01.02.1984. The learned Revenue Board allowed the petitioners to be impleaded as party respondents vide order dated 28.05.2006 and, thereafter, the matter was finally decided by the Board of 14 Revenue. I have carefully gone through the order passed by the Board of Revenue. In my opinion, the learned Revenue Board has committed no wrong or illegality while rejecting the application for making reference by the Addl. District Collector, Suratgarh because, admittedly, the land was allotted to respondents No.5 to 9 in the year 1969 and there is no ground for cancellation of allotment after 30 years. It is also observed by the Board of Revenue that plea of the respondents cannot be accepted that allotment was made in contravention of the rules in the year 1969. Further, it is observed that after 30 years of allotment, it is not proper to cancel the allotment so made because there is no reason or ground to cancel the allotment made before 30 years. In this view of the matter, when there is no finding in the order of reference with regard to any fraud or misrepresentation by the respondents No.5 to 9, then, only on the basis of one document which is said to be a certificate issued by the Nagar Palika, Gajsinghpur, the said allotment cannot be cancelled. Having considered the entire matter, I find in this case that the entire litigation emerged at the behest of the petitioners because they were having an eye upon the land allotted to respondents No.5 to 9 in the year 1969 and they succeeded to get the allotment made in their favour after cancellation of the allotment made in favour of respondents No.5 to 9 upon a false complaint so made by them; meaning thereby, all litigation 15 occurred at the behest of the petitioners because somehow they wanted to grab the land which was already allotted to respondents No.5 to 9 in the year 1969 and, for the said purpose, they went to the extent of filing complaint for cancellation of allotment in the year 1983 and, upon their complaint, first of all, the allotment made in favour of respondents No.5 to 9 was cancelled on 01.02.1984 and, only few days thereafter, allotment was made by the revenue authority in favour of the petitioner knowing it well they are the complainants; meaning thereby, all the revenue authorities up to Addl. District Collector became tools in the hands of the petitioners and it resulted into the litigation as well as agony to the respondents No.5 to 9. The Board of Revenue, however, perceived the matter in correct perspective and thereby rightly came to the rescue of the respondents and rejected the reference application so made by the Addl. Collector. In this view of the matter, there is no force in the submission of learned counsel for the petitioner so as to warrant any interference. The order passed by the Board of revenue is just and proper in the facts and circumstances of the case. In view of the aforesaid, there is no force in this writ petition and the same is accordingly dismissed. There shall, however, be no order as to costs. (Gopal Krishan Vyas) J. Ojha, a.