1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: JUDGMENT Madho Singh vs State of Rajasthan & Ors. D.B. CIVIL SPECIAL APPEAL NO.409/2001 AGAINST THE ORDER DATED 12.3.2001 PASSED IN S.B. CIVIL WRIT PETITION NO.9605/2001 DATE OF ORDER :: 1.10.2009 PRESENT HON'BLE MR. PRAKASH TATIA,J. HON'BLE MRS. MEENA V. GOMBER, J. Mr.BL Purohit, Rajeev Purohit, for the appellant. Mr.LD Khatri ] Mr.Sunil Mehta ], for the respondents. <><><> BY THE COURT: Heard learned counsel for the parties. The appellant Madho Singh is aggrieved against the dismissal of his writ petition vide order/judgment dated 12th March,2001 by which the learned Single Judge of this Court in appellant's-petitioner's writ petition held that since the Board of Revenue had decided the pure question of fact after appreciation of fact and law, therefore, there is no reason to interfere in such finding of facts by the High Court 2 obviously while exercising jurisdiction under Article 227 of the Constitution of India. The facts in brief will be sufficient as it is a matter relating of cancellation of allotment made in favour of one Jagannath in the year 1967 of agricultural land under the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957 (hereinafter referred to as the Rules of 1957) as well as under the Rules of 1970. According to the appellant one Jagnu Das got allotment of land under the rules referred above in village Mawa in the year 1966. The appellant has no concern with this land. One Jagannath got the land in the village Agarsar in the year 1967. Jagannath sold his land to the petitioner-appellant in the year 1997 i.e., after about 30 years from the time of allotment of land in favour of Jagannath then an application was submitted under Section 82 of the Rajasthan Land Revenue Act, 1956 by the Tehsildar Pokaran before the court of District Collector, Jaisalmer to challenge the original order of allotment of 1967 made in favour of Jagannath. Jagannath died and his daughter Smt. Suwa Devi was taken on record as party-legal representative of Jagannath. In this petition, the appellant-writ petitioner-purchaser of the land from Smt. Suwa Devi was not made party. Be it as it may be, the learned District Collector vide order dated 3rd June, 3 1997 reached to the conclusion that same Jagannath obtained land by way of allotment under Rules of 1970, the then Rules for allotment of agricultural land, in the village Mawa and suppressing that fact, obtained another allotment of land in village Agarsar in the year 1967. The said subsequent allotment dated 9th June, 1967 of 75 bighas of land in the village Agarsar was, therefore, obtained illegally and by suppressing the relevant facts. The order of the learned Addl. District Collector dated 3rd June, 1997 was challenged by Smt. Suwa Devi before the Revenue Appellate Authority, which was allowed by the Revenue Appellate Authority vide order dated 10th Sept., 1997 after taking note of the plea taken by Smt. Suwa Devi that her father never applied for the land in village Mawa in the year 1966 and remanded the matter to the District Court, Jaisalmer for holding a fresh inquiry and for giving an opportunity of hearing to both the parties and to decide the matter afresh whether it is a fit case for making reference under Section 85 of the Rajasthan Land Revenue Act or not. The respondent-State being aggrieved against the order of remand dated 3rd July, 1997 submitted reference before the Board of Revenue, Ajmer. The Board of Revenue while examining the legality and validity of order of remand dated 3rd June, 1997 observed that since it is admitted 4 position after inquiry that Jagannath got two allotments, one in village Mawa on 8th July, 1966 and another in village Agarsar on 9th June, 1997 measuring 75 bighas respectively. Subsequent allotment in village Agarsar had been obtained concealing the facts of allotment of village Mawa, therefore, he was not landless person when the allotment of village Agarsar was made to him. The Board of Revenue also took note of the fact that this land had been sold by him to the present non-petitioners from time to time. Consequential, the reference was allowed by the Board of Revenue and allotment of land made on 9th June, 1967 measuring 75 biahs of land of village Agarsar was set aside. Against the said order of the Board of Revenue dated 6th July, 1999 a review petition was filed which was dismissed by the Board of Revenue vide order dated 18th May, 2000. Aggrieved against these orders, the petitioner- purchaser from Smt. Suwa Devi preferred writ petition and said writ petition was dismissed by the learned Single Judge of this court merely on the ground that Board of Revenue has decided pure question of facts and, therefore, in writ jurisdiction this finding of fact cannot be interfered with. Learned counsel for the appellant-petitioner vehemently submitted that there was two persons, one Jagnu Das and another Jagannath. Jagnu Das obtained 5 land in the village Mawa in the year 1966, whereas Jagannath allotted land in the year 1967 in village Agarsar. The appellant-petitioner purchased land after 30 years of the allotment and i.e., in the year 1997 from Smt. Suwa Devi D/o Jagannath and till then there was no objection with regard to allotment in favour of father of the seller of the land to the petitioner. It is submitted that the appellate authority passed the order of remand only so as to hold an inquiry whether there was two persons; namely, Jagannath and Jagnu Das or not. Learned counsel for the appellant also submitted ground of delay by which the allotment is sought to be cancelled etc, but since the order which was under challenge before the Board of Revenue was of remand order, therefore, we need not to go into all these aspects of the matter. It appears that Board of Revenue was convinced that Jagannath himself has obtained the land in the year 1966 and by suppressing that fact with regard to allotment of land which was sold to the petitioner. Learned counsel for the State vehemently submitted that it was never the case of the petitioner that he had no knowledge of the proceedings taken and when the petitioner-appellant had full knowledge of all proceedings taken before the authorities below then the petitioner has 6 no right to submit that he was not given full opportunity of hearing or he was not made party. It was also submitted that since the petitioner was not party, therefore, there was no plea of the petitioner that Jagnu Das and Jagannath were two different persons and even Smt. Suwa Deve merely stated that her father would apply for the land of village Mawa. In view of the above reasons, the learned Single Judge rightly held that the disputed questions of facts decided by the Board of Revenue cannot be interfered by this Court while exercising extra ordinary jurisdiction under Article 227 of the Constitution of India. We considered the submissions of learned counsel for the parties and perused the impugned orders. It appears that Smt. Suwa Devi herself challenged the order of the District Collector on the ground that her father never applied for the allotment of land of village Mawa. This fact has two facet; one that her father did not apply and someone may have got the allotment in the name of her father or second may be that the person who was given land in allotment of village Mawa was a different person. That plea is inherent in first plea also. The appellate authority found that without holding any proper inquiry, the matter cannot be decided. However, the learned District Collector, Jaisalmer reached to the conclusion that 7 Jagannath got the land allotted in village Mawa. The appellate authority remanded the matter to the learned District Collector for holding an inquiry after giving an opportunity of hearing to the parties. Therefore, subject matter before the Board of Revenue was whether the order of remand was illegal or not so as to entertain revision and to set aside the order of remand by the Board of Revenue. We do not find any reason in the order passed by the Board of Revenue dated 6th July, 1999 whether it has been considered whether the order of remand was illegal on any count. It appears from the order, portion of which has been quoted above, that the Board of Revenue proceeded assuming that the Jagannath obtained the land in the year 1966 in village Mawa and, thereafter, again obtained land by allotment in village Agarsar in the year 1967. The Board of Revenue even observed that there was inquiry, whereas the appellate authority found that there was no inquiry. In such situation, the Board of Revenue should not have interfered in the order of remand as by order of remand, only opportunity was given to the parties to prove the fact position. The order of the Board of Revenue impugned dated 6th July, 1999 since has been passed on assumption, rather than on facts, therefore, the learned Single Judge was wrong in holding that such finding of fact which has 8 been recorded without holding inquiry cannot be interfered in writ jurisdiction may be under Article 227 of the Constitution of India. Consequential, the appeal is allowed. The order of the learned Single Judge dated 12.3.2001 as well as order of the Board of Revenue dated 6th July, 1999 are set aside. The order of the Revenue Appellate Authority dated 10th Sept., 1996 is upheld. Now, the learned District Collector, Jaisalmer may proceed in accordance with the directions given in the remand order dated 10th Sept., 1997 in accordance with law. (MEENA V. GOMBER), J. (PRAKASH TATIA),J. cpgoyal/-