IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 2223 of 1996 LUNA RAM & ORS V/S BOARD OF REVENUE & ORS Mr. K.C. SAMDARIYA, for the appellant / petitioner Mr. R.K. SINGHAL assisted by Mr.NL JOSHI &, Mr. B.L. BHATI, AGA, for the respondent Date of Order : 4.1.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- The petitioners by this petition seek to challenge the order of the Board of Revenue, Annex.3, dated 21.6.96, whereby the revision of the private respondent (respondent No.5) has been allowed. The facts of the case, as alleged in the writ petition are, that the petitioners applied for allotment of small patch of land measuring 3 Bigha, in the name of their father Ramchander. The Allotting Authority issued notices to the adjacent tenants, but none of them have applied except the petitioners. Thereupon vide order dated 19.7.89, the SDO (Revenue) allotted the land to the petitioners in their father's name, and the price was paid. It is then alleged that it appears that after the said allotment, the respondent No.5 moved an application for allotment, which was rejected on 27.7.89, on the ground of prior to moving of the application by Mana Ram, the land had already been allotted to the petitioners. It is alleged that being aggrieved of the order dated 19.7.89 and 27.7.89, the private respondent preferred appeal before the Revenue Appellate Authority, which was dismissed vide order dated 6.4.90. Aggrieved further, respondent filed revision before the Board of Revenue, which has been decided vide Annex.3. With this telegraphic narration of facts, the order, Annex.3, is sought to be challenged in the writ, on the ground that the Board of Revenue erred in setting aside the order dated 3.8.89, against which appeal was never preferred, and was not subject matter of appeal before the Revenue Appellate Authority, so also the Board of Revenue has committed error in setting aside the orders dated 19.7.89 and 27.7.89, without giving consequential order. It is then contended, that as a matter of fact, there was only application for allotment moved by the petitioners, and as such Rule 14(2) was not applicable, as the matter was covered by Rule 14(1). A reply has been filed by the private respondent, alleging that it is wrong to say, that the petitioners had ever applied for allotment of land in question, rather a look at Annex.1 it clearly shows, that the proposal for allotment of land, as small patch, was submitted by the Tehsildar, before the Allotting Authority, and thereafter, 2 the Allotting Authority issued notices to the adjoining tenants. Significantly, the Allotting Authority has recorded presence of the deceased Ramchander, who had already died some 6-7 years back. Likewise, if any application for allotment were made, the allotment order would not have been passed in name of deceased, rather the provisions of the Rules have not been followed, and the proceedings have been drawn in a clandestine and secret manner. It is also alleged, that the respondent submitted application on 12.1.88, which was registered as No.1/88, but was not taken up for consideration at the time of allotment to the petitioners, and rather another file was constituted, thus wholly malafide action has been taken. The respondent has produced the photostat copy of the application dated 12.1.88, as Annex.R/1. Then the allegation of issuing notices to the respondent was denied, rather it was pleaded, that notice was issued on 25.7.89 fixing hearing on 16.8.89, while the allotment had already been made on 19.7.89 itself. The respondent has produced the notice as Annex.R/1/3. It is also contended, that the factum of making allotment in the name of petitioners' father came to notice on 25.7.89, thereupon application was moved, but instead of rectifying the error, a revised order was passed on 3.8.89, in favour of wife of the deceased, even without having any application of her, for allotment. It was also contended, that Mamkori is not adjacent tenant, nor the sole heir of deceased Ramchander, as there were 3 other heirs as well. The copy of application dated 25.7.89, and the copy of order dated 3.8.89, have also been produced as Annex.R/2 and R/4. Then it is contended that real aspect of the matter is, that the application of the respondent was earlier in time than the petitioners, but in collusion with the Allotting Authority, they successfully got the land allotted in the name of deceased father, and the learned authority wrongly dismissed the respondent's application on 27.7.89, on the ground of the land having already been allotted, rather both the applications should have been considered together. The order dated 27.7.89 has been produced as Annex.R/5. Then grounds have been replied by contending, that the order dated 3.8.89 was in continuance of the previous order, and when that order was challenged, the Board of Revenue has power under Section 9 of the Rajasthan Land Revenue Act, to revise the judicial order of the authority subordinate, in appropriate cases. Thus, it was rightly set aside. It was maintained, that consequent upon the impugned order of the Board of Revenue, the nature of the land stood restored, as it existed prior to allotment, and is obviously open to be allotted in accordance with the provisions of Rule 14. Then it was contended, that the respondent is clearly an adjacent tenant, and the land falls in the same square, rather the answering respondent's claim is much better than that of the petitioners. The site plan has been produced as Annex.R/6. Then the factum of giving possession was also 4 assailed by pleading various facts about the daily diary of the Patwari. The order of the Board of Revenue was thus supported. Arguing the writ petition, it was contended by learned counsel for the petitioners, that the appeal decided by the learned Revenue Appellate Authority vide Annex.2 was filed against the orders dated 19.7.89 and 27.7.89 only and no appeal was filed against the order dated 3.8.89, nor the allottee thereunder, being Mamkori was impleaded as party in that appeal. Thus, the order dated 3.8.89 was allowed to acquire finality. In such circumstances, on the face of the order dated 3.8.89 having not been challenged, the orders dated 19.7.89 and 27.7.89 could not be successfully challenged. Notwithstanding this, simply because Mamkori was added as party before the Board of Revenue in revision, the learned Board of Revenue did not acquire any jurisdiction to set aside the order dated 3.8.89, more so in view of the fact that the order dated 3.8.89 was appelable, and was not appealed against. On the other hand, learned counsel for the respondent reiterating the pleadings taken in the reply, submitted that the order dated 3.8.89 was only passed in furtherance of the order dated 19.7.89, and when the basic order was challenged, the subsequent order automatically fell, and was rightly set aside by the Board of Revenue. 5 I have considered the submissions, and have gone through the impugned order and the other material available on record. An overall comprehension of the documents, made available in this file, by both the parties, does make it clear, that the things are substantially shrouded in mystery. To start with, a look at Annex.1 shows, that there is no reference in this order about any application having been filed by anybody, for being allotted the land, and the petitioners have also not disclosed, as to when the application was filed, except that in para 3 it is alleged, that petitioners had applied for the allotment of small patch of land in the name of their father Ramchander. No date has been given; and then coming to the order Annex.1, it shows, that it clearly recites Ramchander to be personally present before the authority, on the day of passing of the order. Admittedly, Ramchander had died long before, and then, what is further significant to note is, that in this order itself, it is also mentioned, that on the proposed land the present private respondent No.5 is reported by the Tehsildar to be in actual physical possession. With this, it is simply recorded, that the notice to the other neighbouring tenants was given, but nobody appears, and then the allotment has been made. Thereupon immediately, on 25.7.89 private respondent No.5 6 filed an application, informing Ramchander to have died, and prayed for staying implementation of the order, whereupon the matter was fixed on 16.8.89, in the meanwhile, file was requisitioned by the Revenue Appellate Authority, vide letter dated 4.8.89. It is in this background, that the order dated 3.8.89 purports to have been passed, and one doesn't know, as to in what file, and in what proceedings, it was done, but it appears, that it was done on the application of Mana Ram, informing Ramchander to have died, and exercising suo-moto powers, the order dated 27.7.89 was sought to be amended, and instead of Ramchander, name of Mamkori was substituted. One fails to understand, as to why name of Mamkori alone was substituted, instead of all his legal representatives. Be that as it may. Then as appears from Annex.R/1, that application was filed by the private respondent on 12.1.88, as this application bears the endorsement of presentation of that date. Then a look at Annex.R/5, being order dated 27.7.89, does show, that this is the order passed in file No.1/88, dismissing the private respondent's application, on the ground of land having already been allotted in Case No.87/89, vide order dated 19.7.89. Even Annex.R/5, by itself, does clearly show, that thereby the application, bearing No.1/88, was rejected on 27.7.89, on the ground of land having already been allotted, in file No.87/89. It passes all comprehension, as to why, at the time of considering file No.87/89, this file No.1/88 was also not 7 processed. The reasons are better known to the authorities and the petitioners. The Court is only left to conjecture, which I need not. It is in this background, that though appeal was dismissed vide Annex.2, however, the Board of Revenue has found, that the matter of allotment of small patch of land is covered by Rule 14, which has been quoted in extenso, and according to that provision, small patch land can be allotted to adjoining tenant, while according to sub-rule (2) where more than one applications are there, the allotment is required to be made by auction, while according to the old provisions, it was required to be made by draw of lots, and that, from perusal of the record, it found, that these requirements of Rules have not been complied with, therefore, the order dated 19.7.89, amended order dated 3.8.89, and the order dated 27.7.89, have been set aside, and in my view, rightly. So far as the contention about non-challenge to the order dated 3.8.89, and that having become final, and not being capable of interfered with by the Board of Revenue, is concerned, the argument cannot be accepted for manifold reasons. Firstly, under Section 9 of the Rajasthan Land Revenue Act, the Board has ample powers to set aside the order dated 3.8.89, even if it was not appealed against. Secondly, by order dated 3.8.89, any fresh allotment has not been made, and only suo-moto correction was made in the order dated 19.7.89, by substituting the 8 name of Mamkori, instead of Ramchander, as Ramchander was reported to have died, and the basic order of 19.7.89 was very much under challenge, mainly, rather substantially, on the ground, that at the time of consideration of that matter, the application of the private respondent dated 12.1.88, being application No.1/88, was very much pending, and he also being the adjoining tenant, his application was required to be considered, before making allotment to Ramchander, apart from the fact, that it was contended, that allotment has been obtained in the name of Ramchander, in a fake manner, by projecting somebody else as Ramchander, because Ramchander had already died long back. In such circumstances, the Board of Revenue was perfectly right, and entitled to examine the validity of the basic order dated 19.7.89, and if that was found to be bad, the order dated 3.8.89, automatically fell. Then thirdly, all said and done, even if all above reasonings are ignored, still, the consequence of interfering with the order impugned, passed by the Board of Revenue, and thereby upholding the order dated 3.8.89, would result into restoration of allotment in favour of Mamkori, consequent upon allotment having been made to Ramchander, a person, who had died long back, and that too without considering the application of the private respondent dated 12.1.88, being application No.1/88, which was already pending, and had been dismissed vide order Annex.R/5 dated 27.7.89, on the ground of land having been allotted to Ramchander on 9 19.7.89, which is clearly contrary to the basic provisions of Rule 14; and for bringing about such illegality, interference under Article 226 jurisdiction cannot be made. Thus, considering the matter from any stand point, I do not find any ground to accept the contention of the learned counsel for the petitioners, about the order impugned being vitiated, on account of the order dated 3.8.89, having acquired finality. So far as the consequence of the order of the Board of Revenue is concerned, of course, the Board of Revenue has not clarified the things, but then, the things are taken care of by Rule 14, and obviously, consequent upon the order of the Board of Revenue, the authorities competent shall proceed in accordance with Rule 14. The writ petition thus, has no force and is dismissed, of course, with the aforesaid clarificatory directions to the learned authorities below, to proceed in accordance with Rule 14. The parties shall bear their own costs. ( N P GUPTA ),J. /tarun/ 10