1 S.B.CIVIL WRIT PETITION NO. 1360/1996 (Sohan Lal Vs. State of Rajasthan & ors.) Date of Order :: 18th March 2009 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.J.L.Purohit for the petitioner Mr.Hemant Choudhary, Government Counsel Mr.B.S.Sandhu for the respondents BY THE COURT: The dispute herein relates to 23 bighas of agricultural land comprised in Murraba Nos.231/24, 231/48 and 231/49 at Chak 1 KSM that was allotted to the petitioner Sohan Lal under the allotment order dated 28.06.1976 (Annex.1). The said allotment was, however, cancelled by the Allotting Authority under its order dated 20.09.1982 (Annex.2) essentially on the grounds that the petitioner failed to deposit the due installments towards the allotment in question; that he failed to cultivate the land; and that he was not residing at the Chak in question. The land in dispute, after cancellation of the petitioner’s allotment, came to be allotted in favour of the respondent No.5 Bishna Ram under the order dated 30.01.1984 (Annex.3). The petitioner preferred two appeals before the Revenue Appellate Authority, Bikaner ('the RAA'): one, against the order dated 20.09.1982 whereby his allotment was 2 cancelled (Appeal No.297/1991); and another, against the order dated 30.01.1984 whereby the land in dispute was allotted to the respondent No.5 (Appeal No.296/1991). However, both these appeals were filed only on 15.01.1991. The petitioner submitted before the RAA that he was not in know of the orders impugned and after coming to know about such orders, made an application before the Sub Divisional Officer, Suratgarh for restoration of his allotment on 20.12.1990; and after receiving the report on such application on 05.01.1991 that he came to know about the fact that the land in question had been allotted to some other person. The learned RAA proceeded to decide both the appeals by the common judgment dated 30.12.1991. The RAA took note of the submissions as made by the appellant for condonation of delay and then, referred to the facts as available in record of the Allotting Authority in Case No.11/1982 wherein notices were ordered to be issued to the petitioner on 26.08.1982 for depositing the due installments. The learned RAA found that such notices were returned unserved with the report that the addressee was residing at other village Shahpini, Tehsil Sangria; and on 04.09.1982, though the Presiding Officer ordered sending of notices again to the Colonisation Tehsildar, Suratgarh No.3 for the purpose of finding the present place of residence of the allottee but a 3 report was made that very day that the allottee was not residing at the site and the land had not been cultivated. The learned RAA observed that the report was required about the present place of residence of the allottee; meaning thereby that such a report ought to have been obtained from the Patwari concerned but, instead, the above-referred report was made the same day on the notice by the Colonisation Tehsildar, Suratgarh No.3. The learned RAA further found the reports regarding cultivation of the land rather contradictory in nature and non-specific particularly with reference to the report stated by the Patwari concerned on 20.09.1982, about the land being vacant at the site but 7 bighas thereof having been cultivated in Svt. Year 2038. The learned RAA observed that the appellant was never served with the notice and yet, by obtaining such ex parte reports, the order of cancellation was passed on 20.09.1982 in the absence of the appellant who had no knowledge about such proceedings. The learned RAA also observed that there was no proof available on record that the appellant was aware of cancellation of his allotment any time earlier; and that there was nothing on record to show positively that the land was taken in possession after cancellation of allotment or that the private respondent had, after his allotment, obtained the possession and commenced cultivation. On these considerations, the learned RAA 4 proceeded to condone the delay in filing the appeals. Thereafter, the learned RAA proceeded to set aside the impugned order cancelling the allotment of the petitioner for the same having been passed without hearing the petitioner; and granted him six months' time to deposit the due installments with interest. As a consequence of setting aside of the order dated 20.09.1982, the learned RAA proceeded to set aside the allotment order dated 30.01.1984 as made in favour of the respondent No.4 but directed that a separate allotment be made to him after examining the eligibility. The order so passed by the learned RAA was challenged in two revision petitions (Nos.2/1992 and 12/1992) by the present respondent No.4 before the Board of Revenue for Rajasthan at Ajmer ('the Board'). After noticing the fact situation of the case, the learned Member of the Board observed that the allottee Sohan Lal, though filed the appeal (No.297/1991) against the order dated 20.09.1982 after a delay of about 7-8 years but did not state anything in the application under Section 5 of the Limitation Act in relation to the knowledge about the cancellation order dated 20.09.1982; and what the appellant stated was only about the knowledge of fresh allotment as made in favour of Bishna Ram. The learned Member observed that knowledge about the fresh allotment order dated 30.01.1984 had no co-relation with the 5 knowledge about the order dated 20.09.1982; and for want of specific particulars in that regard, the RAA was not justified in condoning the delay in filing the appeal against the order dated 20.09.1982. The learned Member also observed that in the said appeal, the appellant Sohan Lal did not even file a copy of the impugned order dated 20.09.1982 nor even moved an application seeking exemption from filing the requisite copy. The learned Member further observed that even otherwise, after taking the allotment and depositing an amount of Rs.601/-, the allottee Sohan Lal did not make any deposit towards installments; that though the Allotting Authority could have issued an order for deposit of the due amount with interest but an application for the purpose was required to be moved by the allottee and no such application was moved by the present petitioner until cancellation of allotment on 20.09.1982 and even while filing the appeal on 15.01.1991; and that the fact significant was that on 30.01.1984, the land in question had already been allotted to the other applicant Bishna Ram and possession had also been delivered to him. The learned Member observed that for about 7 to 9 years, the allottee Sohan Lal did not take any proceedings, and in fact, he was neither in possession of the land in question nor was cultivating the same nor was depositing the installments. Thus, the revision petition as preferred by the present respondent 6 No.4 was allowed and while setting aside the order dated 30.12.1991 as passed by the learned RAA, the order of cancellation of allotment as made on 20.09.1982 was affirmed. It was also noticed that there was no irregularity or illegality in the allotment as made in favour of the subsequent allottee Bishna Ram and, for the cancellation order dated 20.09.1982 having been affirmed, the other revision petition was also allowed and the allotment order dated 30.01.1984 made in favour of Bishna Ram was restored. Aggrieved, the petitioner Sohan Lal has preferred this writ petition. It has essentially been contended by the learned counsel for the petitioner that the petitioner could not have been deprived of his legal rights only on the ground of delay; and that the RAA having condoned the delay in filing the appeals, there was no justification with the Board to have interfered with such a discretionary order while taking a different view of the matter. The learned counsel further submitted that non-filing of copy of the order was not fatal to the maintainability of the appeal before RAA and even if such a copy had not been filed, when the RAA had considered the entire matter on merits, there was no justification with the Board to interfere. The learned counsel submitted that essentially, the petitioner’s allotment was ordered to be cancelled on the ground of some breach of conditions of 7 allotment but then, no notice was served upon him pointing out any alleged breach; he was never extended any opportunity to rectify the breach; and then, he was not even heard before cancellation of allotment. According to the learned counsel, when the matter was only of overdue installments, the Authority could have charged interest or recovered the amount due as arrears of land revenue but there was no justification in cancelling the allotment and that too without notice. The learned counsel further submitted that the petitioner was never dispossessed from the land in question and, therefore, the observations as made by the learned Member of the Board remain away from and contrary to the record. Learned counsel for the petitioner has referred to the provisions as contained in Section 14 of the Rajasthan Colonisation Act, 1956 ('the Act') and the decisions in Nawabkhan Vs. State of Gujarat: AIR 1974 SC 1471; N. Balakrishnan Vs. M. Krishnamurthy: (1998) 7 SCC 123; Sohan Lal Vs. State of Rajasthan: 1980 RLW 17; Milkiyat Singh Vs. The State of Rajasthan & ors.: 1996 (2) WLC 222; and Ram Swaroop & Ors. Vs. Board of Revenue: 1981 RRD 351. Per contra, the learned counsel for the respondent No. 5 submitted that the order as passed by the Board of Revenue does not suffer from any apparent error so as to call for interference in the writ jurisdiction of this Court; that the order 8 of cancellation of allotment was rightly passed by the Allotting Authority under Rule 17(8) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 (‘the Rules of 1975’); and that Section 14 of the Act has no application to the present case nor Rule 17 of the Rules of 1975 as then in operation required service of any notice. The learned counsel further pointed out that the petitioner did deposit only an amount of Rs.601/- but nothing thereafter; and on the other hand, after cancellation of the petitioner’s allotment on 20.09.1982, the land in question came to be allotted to the contesting respondent on 30.01.1984 and he was put in possession as established by the relevant reports. The learned counsel submitted that for the petitioner having not taken any proceedings towards his allotment for about 9 years, and in the meantime, the land having been allotted in favour of the contesting respondent and his having cultivated and developed the same, the appeals as preferred by the petitioner ought to have been rejected by the RAA and the learned Member of the Board has rightly set aside the order as passed by RAA that was essentially based on irrelevant considerations. Having given a thoughtful consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, this Court does not 9 feel persuaded to interfere in the order as passed by the learned Member of the Board. Though in this case, the lacunae in the proceedings as adopted by the Allotting Authority and the shortcomings in the observations of the learned Member of the Board are obvious and apparent; and the submissions as made on behalf of the petitioner cannot altogether be dubbed as baseless but and however, the fact of the matter is that the ultimate order as passed by the learned Member of Board only leads to substantial justice and there appears least any reason to interfere in the writ jurisdiction. True it is that the order dated 20.09.1982 was passed by the Allotting Authority in cancellation of the allotment of the petitioner without proper service of notice on him and without extending him an opportunity to make payment of overdue installments with interest; and true further it is that in relation to the delay in filing an appeal, once the discretion is exercised by the Appellate Court to condone, ordinarily, the superior Court would be very slow in interfering with such exercise of discretion; and true yet further it is that mere want of the copy of the impugned order could not have been treated fatal for an appeal and the observations as made in that regard by the learned Member of the Board would not lead to rejection of the appeal as was filed before the RAA but then, these 10 drawbacks, on the facts and in the circumstances of this case, do not by themselves make out a case for interference by this Court in its writ jurisdiction. The other side of the picture cannot be ignored that the allotment made in favour of the petitioner in the year 1976 came to be cancelled only in the year 1982 after noticing that the petitioner had not paid the overdue installments, had not cultivated the land, and, as per the reports received on the notices sent earlier, was found residing at his original place of residence at Shahpini and not at Chak 1 KSM where the land in question is situate. In the entire length of submissions, nothing specific is coming from the petitioner if he had cultivated the land in question as required by the Rules of 1975 and about the reasons for his having not deposited the requisite installments within time. The significant part of the matter in this case is that despite his allotment having been cancelled in the year 1982 and the land in question having been allotted to the respondent No. 5 in the year 1984, the petitioner chose to question the order canceling his allotment and the order making allotment in favour of the respondent No. 5 by filing the appeals before the RAA only in the year 1991. What did he do for all these years in pursuance of the allotment in question and what steps did he take towards cultivation and towards 11 deposit of installments; and if there was any such disability wherefor he was prevented from adhering to the terms of allotment are the matters all lost in obscurity, uncertainty, and vagueness. There is nothing on record to even remotely suggest that the petitioner ever took steps towards cultivation at the land in question. It cannot be ignored that the allotment in question had been under the Rules of 1975, the principal purpose being the development of land in agriculture and not as if simply handing over title to the petitioner. Looking to the very purpose of the allotment in question and the requirements of the Rules, the omission on the part of the petitioner to develop the land could only be viewed with disfavour. It is noticed that as per record, during subsistence of allotment in favour of the petitioner, only 7 bighas of the land in question was cultivated once i.e., in Svt. Year 2038. It is also noticed that even before cancelling the allotment, the Authority concerned did issue notice to the petitioner after finding prima facie the facts that there were overdue instalments from the year 1977 to the year 1982 against the petitioner and, as per the report of the Patwari concerned, the land was lying vacant and the petitioner was not residing thereat. The specific fact that the petitioner was residing at the other village Shahpini, his original place of residence, as per the reports made on the notice dated 29.08.1982 has not been 12 questioned; and, on the contrary, it is noticed from the cause title of the appeals decided by the RAA that the petitioner did state his place of residence only at Shahpini, Tehsil Sangria. The same is registered address of the petitioner as stated in this writ petition. Having regard to the circumstances of the case and particularly looking to the nature and purpose of allotment, the petitioner cannot be acceded a right and liberty that he would make the service of notice an impossibility by making himself unavailable at the land in question and then would suggest the ground of denial of opportunity of hearing. There is no quarrel with the proposition that, ordinarily, an action aimed at depriving any person of any existing right requires in the first place compliance of and adherence to the basic principles of natural justice; and, for that matter, even if serving of the notice before cancellation was not as such envisaged by Rule 17 of the Rules of 1975 as operative at the relevant time, the broad proposition as canvassed on behalf of the respondent No.5 that no notice was at all required to be given to the petitioner cannot be accepted; but and however, the suggestion as made on behalf of the petitioner that the impugned order should be treated void ab initio for want of service of notice cannot be accepted either. Denial of opportunity of contending against any proposed action and of hearing before passing of an adverse order does not in every 13 case ipso facto make the order or action void altogether. It would depend on the nature of the right concerned that is sought to be taken away and interfered with by such action; and the question of prejudice, if caused, has to be examined. The reference as made by learned counsel for the petitioner to Nawabkhan's case (supra) does not appear apposite so far the fact situation of the present case is concerned. Therein, an externment order passed under the Bombay Police Act was under consideration and in its context, the Hon’ble Apex Court observed that an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. The present one has been a case of allotment of an agricultural land for agricultural purposes and the same was proposed to be cancelled for non-compliance of the requirements of the terms of allotment particularly of making deposit of installments and of cultivating the land in question. When it is noticed that there is no specific assertion on behalf of the petitioner of his having taken the requisite steps to cultivate the land in question, this indisputable default, in the opinion of this Court, operates heavily against the claim as made by the petitioner and there does not appear any reason to consider restoring the allotment to him only for want of service of notice before passing of the order dated 20.09.1982. 14 An argument has repeatedly been emphasized that there is nothing on record showing dispossession of the petitioner. The facts of the case make out that the petitioner himself had abandoned the land in question and never chose to retain its possession. The decision in Milkiyat Singh Singh's case (supra) as relied upon by learned counsel for the petitioner does not appear having application to the facts of the present case fundamentally for the reason that therein, not only the aggrieved person was found to be in possession of the land in question but his crops were also standing thereat and in those circumstances, suggestion about delivery of possession to other person was considered to be only of paper proceeding. As noticed, in the present case, there is not an iota of evidence available on record to find that the petitioner retained the possession of the land in question and contrarily, the record suggests that he had already abandoned the same. This is apart from the fact that the Authority concerned had declared the land in question as Government land after cancelling the allotment of the petitioner and thereafter, not only allotted the same to the respondent No.5 but also delivered the possession to the subsequent allottee, as noticed by the learned Member of the Board. This Court is clearly of opinion that looking to the overall circumstances, in the present case, delay in filing the appeals 15 as preferred by the petitioner could not have been condoned without taking note of other relevant facts and factors and only on the ground that the petitioner was not served with a notice by the Allotting Authority. The fact of the matter had been that the allotment of the petitioner was cancelled as back as on 20.09.1982 whereas appeals were filed only on 15.01.1991. In the meantime, the land in question had already been allotted to the respondent No.5 on 30.01.1984. It is true that mere length of delay would not be decisive of the question of condonation but then, if during the interregnum, a third party's rights come into existence and such third party alters his position believing on a particular state of affairs, such facts and the surrounding circumstances cannot be ignored and rather, have their own bearing on the issue. For inordinate delay in filing the appeals by the petitioner, coupled with third party rights created in between, it was not a matter of routine condonation of delay for the purpose of hearing on merits. The relevant surrounding circumstances were definitely required to be examined before deciding on the question of condonation of delay in filing appeals; and the learned RAA having omitted to do so, the learned Member of the Board cannot be faulted in interfering even in relation to the order condoning delay in filing the appeals. The learned Member of the Board has also pointed out 16 a significant omission in the affidavit as filed by the petitioner while seeking condonation of delay in filing the appeals that the petitioner suggested having come to know about the allotment order as made in favour of the respondent No.5 (the order dated 30.01.1984) only in the month of January 1991 after moving the application in the month of December 1990 but then, the petitioner chose to avoid stating the fact that he was not in know of the order canelling his allotment i.e., the dated 20.09.1982. The omission on this crucial aspect cannot be said to be related to a matter of form but has a direct bearing on the case; and it is apparent that the petitioner had not been forthright in making submissions before the Court while seeking condonation of delay. When the petitioner could dare not state specifically the fact about his want of knowledge of the order cancelling his allotment i.e., the dated 20.09.1982, delay of more than 8 years in challenging the same could not have been condoned with mere reference to the petitioner’s assertion relating to delayed knowledge of the order of subsequent allotment, i.e. the order dated 30.01.1984. Having taken into comprehension all the facts and the surrounding circumstances, this Court is satisfied that the order as passed by the learned Member of the Board leads only to substantial justice and does not result in any injustice 17 so as to call for interference in writ jurisdiction. Consequently, the writ petition stands dismissed; however, in the circumstances, without any order as to costs. (DINESH MAHESHWARI),J. MK