1 3 D.B. CIVIL SPECIAL [W] APPEAL NO.819/1997. [LEGAL REPRESENTATIVES OF NAZAR SINGH VS. BOARD OF REVENUE & ORS.] DATED : 04.01.2007 HON'BLE MR. RAJESH BALIA, J. HON'BLE MR. CHATRA RAM JAT, J. Mr.B.S.Sandhu for appellant. Mr.M.MridulSr.Advocate assisted by Mr.P.S.Chundawat for the respondent. ***** Heard learned counsel for the parties. We are of the opinion that this appeal and writ filed by the petitioner must succeed on a short ground. The undisputed facts are that allotment of land in question made in favour of the petitioner appellant was stated to have been challenged by way of appeal before the Revenue Appellate Authority in which the State was also a party. While the validity of allotment made in favour of the appellant, appeal was pending before the higher authority, the Collector purporting to act as Commissioner Colonisation acting on report of Tehsildar cancelled the allotment on the ground that allotment has been wrongly made notwithstanding an objection being taken to recourse to this power while appeal challenging the validity of allotment was pending before higher authority and before whom the same grounds could have been urged. The Board of Revenue sustained the order of the Collector by setting aside the order of allotment. 2 Aggrieved with the aforesaid order of the Board of Revenue by which the allotment made in favour of the petitioner on 22.04.1995 was cancelled, S.B.Civil Writ Petition No.2613/1997 was filed. One of the grounds raised by the petitioner before the learned Single Judge was that the power to cancel allotment was vested to Commissioner Colonisation in the Colony area and the Collector was not empowered to cancel the allotment and he lacked inherent jurisdiction. This contention was rejected by the learned Single Judge inter alia on the ground that the objection was not taken before the Collector though it has been raised before the Board of Revenue. Considering that this contention would required holding an inquiry into a question of fact whether Collector was duly authorised in accordance with law to exercise the power to Colonisation Commissioner, which inquiry cannot be held in writ jurisdiction. The second contention which was raised before the learned Single Judge and which was raised right from the beginning was that once proceedings were challenging the allotment were pending before the authority higher than the Collector by way of appeal to which State was also a party through Tehsildar he could not have exercised that power simultaneously so as to infructuate the appeal. This issue was not considered by the learned Single Jude though the contention was noticed by him. 3 We are of the opinion that this contention of the appellant also goes to the root of the matter. Once, the matter about validity of allotment made in favour of the appellant was pending before the Revenue Appellate Authority in which State was party through Tehsildar and the State had an opportunity to raise the question about the validity of the allotment before the Revenue Appellate Authority it could not have resorted simultaneously to make reference to the Board prempt the finding recorded in appeal that may be arrived at by the appellate forum which could not have been subject matter of reference. Apparently, the methodology adopted by Collector in case where matter was pending before Higher Forum, where State was a party and had opportunity to raise the issue and get its adjudication is a clear case of over reaching the jurisdiction of appellate forum and the right of affected parties to get adjudication by appellate forum. This alone was sufficient to uphold the challenge to the order passed by the Board of Revenue and the Collector setting aside the allotment made in favour of the petitioner. Moreover, we further are of the opinion that learned Single Judge was not right in refusing to entertain the plea about the lack of jurisdiction of Collector on the ground that it was claimed when the question has been raised before the Board Of Revenue in appeal, but which was not considered by the Board of Revenue. Moreover when the question depended merely on the verification of existence of Notification conferring 4 power of Colonisation Commissioner on Collector, which could only a statutory document emanating from State, the petition ought not to have been rejected merely because contention was not raised before the Collector. Be that as it may, we rest our conclusion on first issue by allowing the appeal and writ petition by setting aside the judgment of the learned Single Judge and quash the impugned orders of Board of Revenue and Collector, Sri Ganganagar. No order as to costs. This is without prejudice to the outcome of the proceedings of the appeal before Revenue Appellate Authority. If the appeal has been rendered dismissed as infructuous because the impugned order of Collector, as a result of the setting aside of Collector's order and the order of Board of Revenue, the same may be revived and decided on merit. [CHATRA RAM JAT], J. [RAJESH BALIA], J. mamta