cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ratan Lal Vs. The State of Rajasthan & ors. S.B. CIVIL WRIT PETITION NO.1364/2005 under Article 226 and 227 of the Constitution of India. Date of order : 29th February, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Manish Shishodia for the petitioner. Mr. O.P. Boob, Addl. Government Advocate. --------- BY THE COURT:- 1. This writ petition has been filed by the petitioner, a member of Scheduled Caste with the following prayers:- (i) So as to quash the impugned orders dated 8.1.2002 (Annexure-15) and 15.12.2004 (Annexure-18) passed by the learned Collector and the learned Board of Revenue respectively and the respondents may be directed to regularize and allot the land as prayed by the petitioner. cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 2/10 (ii) It may be declared that the petitioner is entitled to allotment of land in Khasra No.960/Min to the extent prayed by the petitioner and any other order including that of Gram Panchayat, if that were to come in the way, be quashed and set aside. (iii) any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (iv) Exemplary costs of the writ petition may kindly be awarded to the petitioner in view of the peculiar facts of the case.” 2. The Board of Revenue by its impugned order dated 15.12.2004 allowing the appeal filed by the State Government against the order of the Revenue Appellate Authority dated 17.12.2002 under Section 76 of the Rajasthan Land Revenue Act, 1956 who held that the petitioner was entitled to be given Gair-Khatedari rights under Rule 12 A of the Rajasthan Land Revenue (Allotment of Land for Digging of Wells and Installing of Pumping Sets for Irrigation Purposes) Rules, 1979 (hereinafter referred to as the Rules of 1979). 3. Since the petitioner had constructed a tube-well on the cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 3/10 pasture land of one biswa situated in khasra No.960 in village Beerdhol, he applied for regularisation under Rule 12A of the aforesaid 1979 Rules which was however rejected by the District Collector, Bhilwara by his order dated 8.1.2002 Annex.15 on record. The appeal filed by the petitioner against the said order before the Revenue Appellate Authority was however allowed by the order dated 17.10.2002, the the second appeal preferred by the State Government against the said order of the Revenue Appellate Authority came to be allowed by the Board of Revenue by its order dated 15.12.2004. Hence, this writ petition has been filed by the petitioner in this Court. 4. Mr. Manish Shishodia, learned counsel for the petitioner submitted that the Board of Revenue has erred in allowing the appeal of the State and rejecting the claim of the petitioner for regularisation under Rule 12A of the aforesaid 1979 Rules because the said Rules clearly permitted regularisation of such well of pumping sets including the tubewells by any person and initially only Gair Khatedari rights were conferred and is only after expiry of 10 years if the land in question is bonafide used for such irrigation purpose only, even khatedari rights can be conferred upon the person concerned, cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 4/10 subject to payment of annual lease money. He submitted that the Board of Revenue has not only held wrongly that no regularisation could be done in this case but has gone to the extent of directing initiation of disciplinary proceedings against the petitioner, who was a Government servant also. 5. The contention raised by the learned counsel for the petitioner is opposed opposed by the learned Government Advocate, who submits that no such regularisation could be made under Rule 12A of the 1979 Rules in favour of the petitioner in view of the same being a pasture land and Rule 4 prohibited such regularization. He, however, submits that by the notification dated 30.6.2003 under 1974 Rules “Tubewells” are also included besides wells and pumping sets. 6. I have heard learned counsel and perused the record. 7. Rule 12A of 1979 Rules relevant for the present purpose is reproduced hereunder for ready reference:- “12-A. Regularisation.- If any person constructs a well or installs a pumping set on unoccupied cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 5/10 Government land or pasture land and proceedings against him have been initiated by the Tehsildar under section 91 of the Act, the Collector or any other officer authorised in this behalf by the State Government, on an application or report of the Tehsildar, after making necessary enquiry, arrives at the finding that the well has been constructed of the pumping set has been installed for genuine irrigation or drinking water purposes and it does not adversely affect the interests of any person having land in the vicinity, the Collector or such authorised officer may allot the land to such person after recovering from him the market price of the land prevailing at the time of receipt of the application or report of the Tehsildar. Upon the issue of such an order, the allottee shall be deemed to be a Gair-Khatedar tenant of the land with the right of ultimate conferment of Khatedari rights after the expiry of a period of 10 years [lease money charged for such land annually at the rate of Rs.24/- per annual from the date of occupation]: Provided that the land is not used for any other purpose and the terms of tenancy are not infringed during the said period of ten years: Provided further that the total area of land to cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 6/10 be so regularised and allotted shall not exceed 5 biswas per well or pumping set.” 8. Rule 7 of the Rajasthan Tenancy Rules, 1955 framed under powers conferred upon the State Government under Section 257 of the Rajasthan Tenancy Act, 1955, relevant for present controversy is also reproduced herein-under for ready reference :- “7. Allotment or setting apart of Pasture land - (1) The Collector may, in consultation with the Panchayat, change the classification of any pasture land, as defined in sub-section (28) of Section 5 of the Act or any pasture land set apart under Section 92 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act of 1956), as unoccupied culturable Government land (Sawai Chak), for allotment for agricultural or any non-agricultural purposes : Provided that in case where the area of the land sought to be so allotted or set-apart exceeds 4 hectors, the Collector shall obtain prior permission of the State Government: Provided also that any such land, falling within the boundary limits of the Jaipur Region as cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 7/10 defined in the Jaipur Development Authority Act, 1982 (Act No.25 of 1982) or within the periphery of 2 kms. of a Municipality, shall not be allotted except for the purpose of a public utility institution or for expansion of abadi.” 9. A perusal of aforesaid rule 7 of the Rajasthan Tenancy Rules clearly envisages that the classification of pasture land can be converted into unoccupied culturable Government land (Sawai Chak) by the Collector. The Division Bench of this Court in Gulab Chand and others Vs. State of Rajasthan and others - 2007 (3) WLC 21 held that even for change of classification of the pasture land by the Collector for allotment of agricultural or for non-agricultural purposes, the words 'may' in sub-Rule (1) of Rule 7 regarding consultation with the panchayat cannot be read as 'shall' as suggested by the counsel for the petitioner and thus, the Court held that the contention that under Rule 5 of the Rules of 1978 the pasture land could not have been allotted for petrol pump was also founded on erroneous premises and thus, the Court dismissed a public interest litigation against the allotment of 2 hectares of land out of “Charagah” (pasture land) to Indian Oil Corporation for establishment of petrol pump. cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 8/10 10. Therefore, this Court is of the opinion that since the character or the classification of the pasture land can be converted by the Collector under Rule 7 of the Rajasthan Tenancy Rules into Sawai Chak Government land for allotment for agricultural as well as non- agricultural purposes, the prohibition of allotment under Rule 4 of the aforesaid 1979 Rules and the lands mentioned in Section 16 of the Rajasthan Tenancy Act which includes pasture land, cannot be said to be of overriding effect. Rule 12 A which was brought on statute book later on w.e.f. 29.6.1981 permitting such regularisation in cases of a “well” or “Tubewell” constructed or a pumping set installed on un- occupied Government land or pasture land is clearly an exception to Rule 4 of 1979 Rules and which permits regularisation upon certain conditions by the Collector. The ground on which the Board of Revenue has rejected the claim of the petitioner that since the land in question was in the name of wife of the petitioner and the petitioner had constructed a “tubewell” whereas the words used in Rule 12A was “well or pumping set” and, therefore, the petitioner was not entitled for regularisation under Rule 12A, are not sustainable in the eye of law. As clarified by the State Government by a notification dated 30.6.2003 that the “tubewells” were also included in the cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 9/10 category of “wells and pumping sets” under these Rules clearly indicates the intention of the State Government to apply Rule 12A even in the cases of “tubewells”. 11. In view of the aforesaid, the case of the petitioner deserves to be considered for regularisation under Rule 12 A of 1979 Rules and the reasons assigned by the Board of Revenue in the impugned order as well as by the Additional Collector in his impugned order Annex.15 dated 8.1.2002 are not found to be sustainable. 12. Accordingly, this writ petition is allowed and the impugned order of the Assistant Collector Annex.15 dated 8.1.2002 as well as that of the Board of Revenue Annex.18 dated 15.12.2004 are quashed and set aside and the matter is restored back to the District Collector, Bhilwara for fresh consideration of the case of the petitioner for regularisation under Rule 12A of the aforesaid 1979 Rules. Such fresh decision after giving opportunity of hearing to the petitioner may be taken within a period of 3 months from today. The petitioner in the first instance shall appear before the District Collector, Bhilwara in this regard on 17th March, 2008 and thereafter cw 1364.05 Ratan Lal V. State & Ors. : Order dt.29.2.2008 10/10 the Collector, Bhilwara is expected to pass fresh orders in accordance with law. 13. With these observations, the writ petition is allowed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.41 babulal/-