1 3 S.B. CIVIL WRIT PETITION NO.152/1998. Indra Kumar & Anr. Vs. State & Ors. ..... 4 S.B. CIVIL WRIT PETITION NO.170/1998. Indra Kumar Vs. State & Ors. ..... 5 S.B. CIVIL WRIT PETITION NO.281/1998. Lalit Kumar Mohta Vs. State & Ors. ..... 6 S.B. CIVIL WRIT PETITION NO.282/1998. Santosh Kumar Mohta Vs. State & Ors. ..... 7 S.B. CIVIL WRIT PETITION NO.283/1998. Shiv Kishan Mohta Vs. State & Ors. ..... 8 S.B. CIVIL WRIT PETITION NO.284/1998. Sushil Kumar Mohta Vs. State & Ors. ..... 9 S.B. CIVIL WRIT PETITION NO.285/1998. Rajesh Kumar Mohta Vs. State & Ors. ..... 10 S.B. CIVIL WRIT PETITION NO.286/1998. Vinod Kumar Mohta Vs. State & Ors. ..... 11 S.B. CIVIL WRIT PETITION NO.287/1998. Megh Raj Mohta Vs. State & Ors. ..... 12 S.B. CIVIL WRIT PETITION NO.288/1998. Megh Raj Mohta Vs. State & Ors. ..... 13 S.B. CIVIL WRIT PETITION NO.289/1998. Girdhari Lal Mohta Vs. State & Ors. ..... 14 S.B. CIVIL WRIT PETITION NO.290/1998. Sohan Lal Mohta Vs. State & Ors. ..... 2 15 S.B. CIVIL WRIT PETITION NO.291/1998. Mohan Lal Mohta Vs. State & Ors. ..... 16 S.B. CIVIL WRIT PETITION NO.292/1998. Dau Lal Mohta Vs. State & Ors. ..... 17 S.B. CIVIL WRIT PETITION NO.293/1998. Sushil Kumar Mohta & Anr. Vs. State & Ors. ..... 18 S.B. CIVIL WRIT PETITION NO.294/1998. Rajendra Kumar Mohta Vs. State & Ors. ..... s1 S.B. CIVIL WRIT PETITION NO.487/1998. Vijay Kumar Mohta Vs. State & Ors. ..... s2 S.B. CIVIL WRIT PETITION NO.486/1998. Sunil Kumar Mohta Vs. State & Ors. ..... Date of Order :: 23rd April 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. J.L. Purohit, for the petitioners. Mr. Hemant Choudhary, Government Counsel. .... BY THE COURT: These 18 writ petitions, filed against the similar nature and common orders passed by the Board of Revenue for Rajasthan, Ajmer ['the Board'] in respective similar revision petitions and review petitions, have been heard together; and are taken up for disposal by this common order. Briefly put, the background facts and the relevant aspects are that the present petitioners or their predecessors 3 were taken as the landless persons of village Bikampur and were allotted certain agriculture land under the Rajasthan Colonisation (Allotment and Sale of the Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 [‘the Rules of 1975’] on 03.01.1985. However, an anonymous complaint came to be made against such allotments particularly questioning the entitlement of the allottees on the allegations that they were not the bonafide agriculturists and were not the residents of village Bikampur. It appears that the enquiries were made on such a complaint and ultimately, the matter was taken up for consideration by the Commissioner Colonisation exercising his powers under Rule 22 (3) of the Rules of 1975. The petitioners were accorded opportunity of hearing and the learned Commissioner recorded the statements of the witnesses produced and also summoned and examined the then Allotting Officer and the then Patwari concerned. The learned Commissioner, with reference to the statements of the witnesses, felt satisfied that the allottees were the bona fide agriculturists; and also observed that though the allegations had been about the allottees being engaged in business in other cities but there was no cogent evidence to substantiate such allegations and to show the nature of business or profession and as to whether their income from such business 4 or profession was more than the agriculture income. The learned Commissioner also referred to the fact that 316 bighas of barani doyam and 40 bighas of barani avaall land were recorded in the names of the elder uncle or the grandfather of the allottees at village Bikampur and found that the families were engaged in agriculture. The learned Commissioner further observed with reference to the revenue records that the allottees were continuing in cultivatory possession of the land in question and that was enough indicative of the allottees being the bona fide agriculturists. The learned Commissioner found even the Government Counsel conceding that there was no evidence on record against the allottees so as to rebut their case of being bona fide agriculturists and being bona fide residents of village Bikampur. Thus, finding the allegations having not been substantiated, the learned Commissioner proceeded to drop the proceedings under Rule 22(3) of the Rules of 1975 by his common order dated 31.10.1991. The matters were taken in revision by the respondents before the Board. In 4 revision petitions, bearing numbers 231/1992, 225/1992, 221/1992 and 215/1992 [related with CWP Nos. 289/1998, 290/1998, 294/1998 and 283/1998 herein], the allottees remained absent and were proceeded ex parte; and the said revision petitions were taken up for 5 disposal by the learned Member of the Board on 23.09.1996 by a common order. The learned Member noticed the contentions as urged on behalf of the revisionist that the material on record indicated the fact that the allottees were not the bona fide agriculturists; and that the delay in filing the revision petitions be condoned. The learned Member referred to the report of Colonisation Tehsildar dated 29.04.1988 stating that the allottees were the family members of Tilok Chand Mohta who had gone to Calcutta about 80 years back; that there were four houses of Tilok Chand Mohta in village Bikampur, two of them were not in habitable condition and in one of them, a Gaushala was being maintained; and that the allottees of Mohta family were residing permanently at Calcutta, were engaged in cloths business, and were not engaged in agriculture. The learned Member further observed that the report of Nayab Tehsildar dated 31.10.1990 had also thrown light on the same points. The learned Member of the Board was of opinion that the order passed by the Commissioner was erroneous inasmuch the evidence had been recorded only of the persons who were interested in maintaining the allotments like the Allotting Officer, the Patwari, and the Sarpanch; that the matter was not examined deeply with reference to the report of the Colonisation Tehsildar so as to find the truth; and that further 6 enquiry could have been made about voter list and ration card etc. The learned Member further observed that enough evidence was not collected so as to find the income from non- agricultural sources; that the Commissioner could have gone to the site so as to find the correctness of the report of the Tehsildar; and that the allotment of such chunk of land to 18 persons of the same family prima facie did not appear justified. Thus, accepting the contentions of the learned Government Counsel, the learned Member of the Board proceeded to condone the delay in filing the revision petitions, set aside the order dated 31.10.1991, and remanded the matters with the directions that the Commissioner Colonisation shall himself visit the site and examine the matter deeply and then decide, keeping in view the observations made in the order of remand. It appears that the other 14 revision petitions wherein the allottees had put in appearance were taken up for consideration separately, but were decided on the same date i.e., 23.09.1996 by another common order. The learned Member of the Board rejected the contention on the part of the non-applicants that the revision petitions were required to be dismissed on the ground of delay; and considered it appropriate to decide the cases on merit while condoning delay. Thereafter, the learned Member practically reiterated 7 the same observations as made in the other order of the even date as referred above; and remanded the matters with the same observations and directions. The present petitioners proceeded to submit review applications in relation to the aforesaid orders that have been rejected by the learned Member of the Board on 24.09.1997 by separate but similar nature orders with the observations that there was no ground to review as the matters have only been remanded for enquiry afresh; and, if the applicants would be entitled for allotment, the matter would be decided in their favour. Assailing the orders aforesaid, it has been contended on behalf of the petitioners that the revision petitions were filed with gross delay and there had not been any ground for condonation of delay; and the learned Member of the Board having proceeded to condone the delay without even reference to the sufficient cause for delay, the impugned orders deserves to be set aside. It is further submitted that the Commissioner Colonisation had recorded the statements of the witnesses produced by the parties and so also those summoned by himself and came to a specific finding against the allegations that the petitioners were not the landless persons and had shifted out of Bikampur; and the findings of the facts by the Commissioner have not even been set aside 8 by the Board of Revenue and yet the matters have been remanded merely with reference to the reports of the Tehsildar and the Nayab Tehsildar drawn at the back of the petitioners at the preliminary enquiry stage and regarding which, the petitioners were never afforded any opportunity to rebut; and such reports could not have been the basis of remand so as to compel the petitioners to face another round of enquiry. On the other hand, the impugned orders have been supported by the learned Government Counsel with the submissions that in the given fact situation when the Commissioner Colonisation omitted to consider all the relevant aspects of the matter and ignored the irregularities in such allotments, there had not been any error on the part of the Board in passing the orders impugned and in remanding the matter for enquiry afresh. Having heard the learned counsel for the parties and having perused the material placed on record, this Court is unable to countenance the approach of the Board of Revenue in setting aside the order passed by the Commissioner Colonisation merely with reference to the two reports: one by the Tehsildar Colonisation and another by the Nayab Tehsildar and with the observations that the Commissioner recorded the statements only of the interested persons. A look at the order dated 31.10.1991 makes it clear that 9 the Commissioner Colonisation examined Bhuralal PW-1, Hanuman Singh PW-2 and Rameshwar PW-3 and thereafter summoned Shri R.P.S.Chauhan, the then Allotting Authority and Shri Manishankar, the then Patwari and further the persons of the locality, Shri Premraj and Shri Bherudan. Premraj and Bherudan did not appear but submitted their affidavits that were taken on record with no objection in relation to such affidavits on behalf of any of the parties. The learned Commissioner referred to the statements of the then Allotting Authority and so also to the fact that the cases of the allottees were got examined and the reports were taken even from the Superintendent of Police, Bikaner and the matters were placed before the Allotment Committee; and the allotments were made before public after due notice during the revenue campaign after all the Members of the Allotment Committee felt satisfied about the applicants' being the bona fide residents of village Bikampur and being the bona fide agriculturists; and that no any objection was raised at the time of allotment. The learned Commissioner also referred to the statements of Rameshwar, Bhuralal, Hanuman Singh (Sarpanch) and so also the affidavits of Premraj and Bherudan; and felt satisfied that the allegations had not been proved and the allotments had rightly been made. In the given status of record, when the Commissioner 10 Colonisation had passed the order after enquiry and after taking the relevant evidence, it cannot be said that only the reports as made on 29.04.1988 and 31.10.1990 were conclusive of the matter or that every piece of evidence was required to be examined on the touch stone of such reports. In any case, the observations as made by the learned Member about the Commissioner having not made enquiry in thorough detail or deeply are rather too insufficient to justify the order of remand by the Revisional Authority. While dealing with the revision petitions against the considered and reasoned order of the learned Commissioner, it was definitely expected of the learned Member of the Board to have examined the findings as recorded by the Commissioner and to have set aside such findings, if at all they were to be set aside on cogent reasons, before considering remand of the matters. The orders as passed by the learned Member of the Board not dealing with all the reasonings and considerations that have prevailed with the Commissioner and merely making a remand with reference to preliminary inquiry reports, cannot be approved. It is noticed that before the learned Commissioner, even the Government Counsel ultimately conceded that there was no cogent evidence on record against the allottees. The submissions as made on behalf of the petitioners 11 appear correct that all the reasonings and considerations of the learned Commissioner have not been given adequate consideration by the learned Member of the Board. It appears that the fact of allotment of land to 18 persons of the same family itself has given rise to suspicion and such suspicion has weighed heavily with the learned Member of the Board to consider something fishy in the matter and for that reason alone, the order as passed by the Commissioner has been set aside. It was definitely expected of the learned Member of the Board while dealing with the revision petitions to have considered and dealt with all the reasonings that prevailed with the learned Commissioner and also to have considered if there was a jurisdictional error warranting interference before setting aside the order impugned. Though the submissions as attempted on behalf of the petitioners that revision petitions were required to be dismissed on the ground of delay cannot be countenanced and there appears no reason as to why the revision petitions were not to be decided on merits but then, the manner of decision of the revision petitions by the Board cannot be approved. In the aforesaid view of the matter, it appears appropriate that while setting aside the orders passed by the Board of Revenue, respective revision petitions be restored to 12 their number; and the Board be required to decide the same afresh after extending an opportunity of hearing to both the parties and after examining the entire material available on record. This Court would hasten to clarify that observations herein would not in any manner have any bearing on the merits of the case that is left to be examined by the concerned authorities in accordance with law. As a result of the aforesaid, these writ petitions succeed and are allowed to the extent indicated above; the impugned orders dated 24.09.1997 and 23.09.1996 are set aside; and the revision petitions shall stand restored for re-consideration of the Board of Revenue in accordance with law. The parties present before this Court shall stand at notice to appear before the Board of Revenue in the respective revision petitions on 28.05.2009. In the facts and circumstances of the case, there shall be no order as to costs. (DINESH MAHESHWARI), J. s.soni Mohan