CW 6377/98 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.6377/1998 Agar Singh & Ors. Versus Board of Revenue & Ors. Date of Order ::: 24/03/09 Hon'ble Mr. Justice Ajay Rastogi Mr. RS Purohit & Mr. Ajay Gupta, for petitioner Mr. Chetan Bairwa, Addl. Govt. Counsel, for respondents-State None present for private respondent Nos.5 to 7. Instant petition has been filed assailing initial order dt.19/10/74 (Ann.4) making allotment in favour of Malaram who died pendente proceedings hence being represented by legal heirs (respondent Nos.5-8) under Rajasthan Land Revenue (Allotment of land for Agricultural Purposes) Rules, 1970 (“Rules, 1970”); and so also orders of Board of Revenue dt.19/08/98 (Ann.8) and of Revenue Appellate Authority dt.15/03/93 (Ann.7) whereby appeals were rejected. As alleged in the petition, land bearing Khasra No.88 (Old)(156 & 163, New) measuring 4 bighas 10 biswas situated at village Sukh Singh Ka Bas Tehsil Srimadhopur (Sikar) in revenue record was consistently shown in the name of late Arjun Singh s/o Jawan Singh father of petitioner as Khatedar as is evident from Jamabandi of Samvat year 2016-23 (Ann.1 & 2); and on one find morning, SDO Neem Ka Thana without taking note of the fact CW 6377/98 //2// that land in Khatedari of petitioner's father was not un-occupied government land and without holding any inquiry in terms of Rules, 1970, made allotment of suit land bearing Khasra No.88 (old) in favour of Malaram (father of respondent No.5 to 7) in exercise of powers under Rules, 1970 as is evident from document dt.19/10/1974 (Ann.4). As alleged, since order (Ann.4) was passed by SDO without affording opportunity of hearing to petitioner and proceedings were initiated as a result of allotment made in favour of respondents, upon having come to notice of petitioner, preferred appeal U/s 225 of Rajasthan Tenancy Act, 1955 before Revenue Appellate Authority and placed factual material on record to substantiate that land of Khasra No.88 (Old) in Khatedari of petitioner's father (Arjun Singh) and the SDO without examining as to whether the suit land is un-occupied government land, and without taking note of revenue records, wrongly allotted land to late Malaram (respondent No. 5 to 7's father). However, it appears that Revenue Appellate Authority proceeded on the basis of certain revenue records relating to respondents' father (Malaram) in which their names were record subsequent to allotment and taking note of fact that at one point of time, notice U/s 91 was CW 6377/98 //3// served upon them about encroachment, finally upheld allotment made in favour of respondents vide order dt.15/03/93 (Ann.7) and the Board of Revenue has not even taken care of documentary evidence on record and treating it to be a 'bila- nam Siwai Chak land', upheld allotment made in favour of respondents under Scheme of Rules, 1970. Counsel for petitioner submits that the finding recorded by courts below in holding that the land allotted to respondents is a 'bila-nam Siwai Chak land' is totally perverse since in revenue record, petitioner's father was shown as Khatedar tenant and was mutated in their names after his death and if it was not un-occupied government land, powers are vested with the authority to invoke Rules, 1970 for purposes of making allotment of unoccupied Government land and thus, very allotment made in favour of respondents vide order dt.19/10/74 (Ann.4) is wholly arbitrary and without jurisdiction. Counsel further contends that neither revenue appellate authority nor Board of Revenue has appreciated and taken note of Jamabandi placed on record which demonstrates of petitioner's father Arjun Singh as Khatedar of suit land and proceeded on the basis of revenue record and finally upheld the allotment impugned. CW 6377/98 //4// This Court while issuing notice of the petition has taken note of the fact that despite revenue record of Samvat year 2020-2023, showing entry of name of petitioner's father as Khatedar tenant, how far finding recorded by courts below does sustained and taking note whereof, vide interim order dt.08/12/98, status quo as regards possession was observed to be maintained. Despite service, neither one has appeared nor reply has been filed on behalf of respondents. I have considered contention of Counsel for petitioner and with his assistance, examined material on record. Documentary evidence placed on record by petitioner (Ann.1 & 2) with regard to Jamabandi of Samvat Year 2016-2023 clearly depicts about petitioner's father (Arjun Singh) being Khatedar tenant of Khasra No.88(old) measuring 4 bighas 10 biswas. As regards report of Milan- Keshtraphal (Ann.5), change in Khasra number demonstrates about petitioner's father Arjun Singh as Khatedar tenant of suit land. No documentary evidence contrary to it has been placed on record by which it could be inferred that it was un- occupied government land which could be considered for allotment under Rules, 1970. In instant case, when the land was in khatedari tenancy of petitioner's father as is evident from Jamabandi CW 6377/98 //5// (Ann.1 & 2), in no manner it could be considered as un-occupied government land for which, agricultural land allotment Rules, 1970 could be invoked. The learned revenue appellate authority and the Board of Revenue have failed to notice documentary evidence on record, which clearly depicts about their possession as khatedar tenant of the suit land; in such circumstances, in the opinion of this Court, very finding recorded by courts below in upholding allotment of land to respondents is totally perverse; and such finding is not legally sustainable. Consequently, writ petition succeeds and and is hereby allowed. Allotment made in favour of late Malaram (whose L/rs are respondents No.5 to 8 herein) vide document dt.19/10/1974 (Ann.4) and orders impugned dt.15/03/93 (Ann.7) & 19/08/98 (Ann.8) of courts below are hereby quashed & set aside. No order as to costs. (Ajay Rastogi), J. K.Khatri/p5/6377CW98Mar24Al.doc