1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPL. APPL. WRIT No. 994 of 1999 KISHAN LAL V/S STATE & ORS Date of Judgment : 28.4.2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr. R.S. RAJPUROHIT, for the appellant / petitioner Mr. VIVEK SHRIMALI, for the respondent BY THE COURT : (PER HON'BLE GUPTA,J.) This appeal seeks to challenge the order of the learned Single Judge dated 30.3.1999, accepting the writ petition of the private respondents, being respondents No.4, 5, 6 and 7, hereafter to be referred to as the writ petitioners. The necessary facts are, that the private respondents claimed to be sons of Bhagwana, including Bhagwana himself, and it is alleged, that the land in 2 question is in their old cultivatory possession, out of which 0.68 hectares came to be allotted to the present appellants. That allotment was sought to be challenged by the writ petitioners before the Collector unsuccessfully, so also before the Revenue Appellate Authority, and the learned Board of Revenue. According to the writ petitioners, the fact of their being in possession since old times is clear from the fact, that proceedings were initiated against them under Section 91 of the Rajasthan Land Revenue Act, way-back in the year 1978, and orders had also been passed, but then, they had not been dispossessed. It is claimed, that so being in old possession, they are entitled for regularisation under the provisions of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (hereinafter to be referred to as the Rules of 1970) specially Rule 20, for which they had filed an application in the year 1978 itself, but that has never been decided. In this background, it is contended, that despite their being in possession, without giving any opportunity of hearing, the land in question came to be allotted to the present appellant, vide order dated 25.1.1991 (Annex.7). Thus, two fold grievance was raised in the writ petition, firstly for quashing the allotment in favour of 3 the appellant, and secondly, for direction to regularise the possession of the writ petitioners. The writ petition was contested by the present appellant. Of course the State has also filed reply. According to the reply of the State, the writ petitioner being sheer trespasser, cannot claim any right, apart from the fact, that the present appellant had deposited the requisite amount of Rs.67,214/- against the cost of the land on 10.4.1991. It was also pleaded, that proceedings under Section 91 were initiated against the writ petitioners, and order of ejectment was passed therein, and in execution thereof, they were physically dispossessed. It was also pleaded, that earlier also they were dispossessed from the land by initiating proceedings under Section 91, but then, they again trespassed, and were dispossessed by subsequent orders again. It was pleaded, that the application of the present appellant was properly processed, all necessary reports were obtained, and after complying with the requirements of the Rules, allotment was made. It was also pleaded that under the Rajasthan Land Revenue (Allot., Conversion and Regularisation of Agrl. Land for Construction of Cinemas, Hotels and Establishment of Petrol Pumps [Medical Facilities]) Rules, 1978, (hereinafter to be referred to as the 1978 Rules), there is no requirement of giving any opportunity to the person like the petitioners, more so when they were already ordered to 4 be dispossessed under Section 91, and they have actually been dispossessed. It was pleaded, that the Revenue Appellate Authority had found, that in Samvat Year 2046-47 no crop was sown. In the reply of the private respondent, being the present appellant, it was pleaded that the land is a hillock, which has specifically been so mentioned in the judgment of the Revenue Appellate Authority, and was Gair Mumkin Bhakhar. Then certain pleas taken by the State have been adopted by taking them as pleas afresh. A stand is also sought to be taken to the effect, that the writ petitioners are having in their khatedari certain other lands also, being irrigated and un-irrigated, for which they have produced the copies of the Jamabandies, which show the lands held by the writ petitioners to be including even canal irrigated land as well. Obviously the allotment in favour of the present appellants was sought to be defended on all grounds. The learned Single Judge, it appears from the judgment, was undertaking in extensive screening of the record of allotment, probably assuming it to be suspicious, even though there was no such plea taken in the writ petition, and in that regard, proceeded to catalog facts from the allotment file, by giving dates about the application, about the land being included in the limits of municipality, the steps taken by the Financial Corporation in sanctioning loan, then no objection certificate for 5 conversion having been obtained from Tourism Department, and so on, and has concluded, that from the narration of facts gathered from the original file, it is very clear, that on mere making of the application by the present appellant in the month of November 1989 things have started moving very swiftly, the rent was assessed, fixed, reduced and then stayed by the authorities, and that the department had not even asked, or even invited any application from public, for establishment of any such hotel, and that, only because of the reason, that some land has been mentioned by the present appellants, it was given to him on his asking, and formalities were completed by the Collector in unheard and unknown haste, and that no notice was given to the occupants, even trespassers, being the writ petitioners. This is the whole thrust of the judgment of the learned Single Judge. We feel constrained to observe, that the application was made in November 1989, as found by the learned Single Judge, and a look at the order, Annex.7 shows, that it was passed as late as on 25.1.1991. Admittedly (as we had put to both the learned counsel) the present appellant was the only applicant. In that background, if the matter took more than one year, in our view, it can hardly be said, that the things “started moving very swiftly” or “formalities were completed by the Collector in unheard and unknown haste”. Thus, the very 6 basic assumption of the learned Single Judge, to say the least, is wrong. So far as giving of the notice to the occupant, and inviting of the applications from the public at large is concerned, under the Rules of 1978 there is no such requirement at all, unlike the requirement, as provided in Rule 5 of the Rules of 1970. Thus, if only one person had applied, there was no bar in the application being processed in accordance with the provisions of Rule 6 onwards of 1978 Rules, and on the competent authority being satisfied, making allotment. It is required to be comprehended, that the Rules do not even contemplate publication of any such application, so as to invite objection of anybody, or so as to enable anybody else also to apply for the same land, in the manner as done by the particular person. As such, another basic assumption, about the requirement of law, assumed by the learned Single Judge, is also wrong. Then it was considered by learned Single Judge at page 11, that the land capable of being allotted is Gair Mumkin or Ujar or culturable waste land, or land classified as Banjar, and if such land is not available, then the land of last clause of Barani is available. Then at page 12 onwards, Rule 5 and 6 have been considered, by being reproduced, without giving any finding, except observing, 7 that the Rules had been violated grossly, as it has been noticed by the authorities, that the land was occupied, and there were crops, and that, only because for one year the land remained without any crops, it cannot be said, that the land had become Banjar, un-culturable or unoccupied. In our view, admittedly when the land was recorded as Gair Mumkin Bhakar, which literally means a rock, simply because somehow, or may be by some manipulations, some changes have been made, and somehow it has been shown, that the writ petitioners have been sowing some land, it cannot be said, that the land ceased to be of the category, available for allotment. It is significant to note, that even according to the writ petitioners, time and again, orders had been passed in proceedings under Section 91, ordering his ejectment, and as is clear from at least Annex. R/5, that he has in fact been ejected also, and it is only on account of his adamancy or obduracy or stubborn attitude, that he has carried the litigation to this extent, and has the audacity to contend before us that he is still continuing is possession. The writ petitioners should feel fortunate, that prosecution had not been lodged against them for allegedly continuing in possession, despite having been dispossessed repeatedly, in proceedings under Section 91. 8 The net result of the aforesaid discussion is, that we are constrained to allow the appeal, and set aside the order of the learned Single Judge, and to dismiss the writ petition, filed before the learned Single Judge. Accordingly, the appeal is allowed. The impugned judgment is set aside, and the writ petition is dismissed. Parties are left to bear their own costs. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /tarun/