MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 1 MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL(W) NO. 503/99) Dated:- 24th March, 2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Ranjeet Joshi, for the appellant. Mr. R.K. Soni, Additional Government Counsel, for respondents no. 1 & 2. Mr. Vijay Bishnoi, for respondent no. 3. BY THE COURT(PER HON'BLE MR.SANGEET LODHA,J.) 1. This special appeal is directed against the order dated 23.4.97 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the respondent no. 3 herein, assailing the validity of order dated 3.11.87 by the Board of Revenue, Rajasthan, Ajmer has been allowed and accordingly, the order dated 13.10.80 passed by the Revenue Appellate Authority has been restored and consequently, the allotment of land made in favour of the appellant , stands set aside. 2. The appellants' father late Shri Raghu Nath was allotted 14 bighas of agriculture land comprising Khasra No. 288 at village Sogawas, district Nagaur vide order dated 24.11.62 by the Advisory Committee headed by Tehsildar, Merta. Shri Ramjiram , father of the writ petitioner , respondent no. 3 herein assailed the validity of the allotment made in favour of Shri Raghu Nath as aforesaid, by way of an appeal before the MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 2 Additional Collector, Nagaur, on the ground that the land allotted to him out of total 97 bighas 14 biswas land comprising Khasra No. 288 forms part of the “public way” as shown in the revenue record and therefore, the same was not available for allotment in view of provisions of Rule 4 of the Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1957 ( in short “the Rules of 1957” hereinafter). The appeal was allowed by the Additional Collector, Nagaur vide order dated 28.8.66 and accordingly, the allotment made in favour of Shri Raghu Nath was set aside holding that the allotment made is in contravention of the provisions of Rule 4 of the Rules of 1957 and that the provisions of Rule 5 , 6(i) & (ii) and 13(ii)(b) of the Rules of 1957 have also not been complied with. On the further appeal by Shri Raghunath, the Revenue Appellate Authority, Bikaner vide order dated 16.3.68 confirmed the order dated 28.8.66 passed by the Additional Collector, Nagaur cancelling the allotment. The validity of order dated 16.3.68 passed by the Revenue Appellate Authority was assailed by Shri Raghunath by way of revision petition before the Board of Revenue. After due consideration, the Board of Revenue found that the allotment of land made by the Advisory Committee in favour of Shri Raghunath out of the land comprising Khasra No.288 recorded in revenue record as “Gair Mumkin Rasta” is bad in law. However, the revision petition MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 3 preferred was allowed by the Board of Revenue vide order dated 17.12.76 holding that Shri Ramjiram , the father of the respondent no. 3 herein, was not entitled to prefer an appeal before the Additional Collector, Nagaur against the allotment made in favour of Shri Raghunath. 3. After passing of the order dated 17.12.76 by the Board of Revenue as aforesaid , Shri Ramjiram filed an application under Rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970( in short “the Rules of 1970” hereinafter) before the Additional Collector, Nagaur for cancellation of the allotment which came to be dismissed on 30.9.77, aggrieved by the same, he preferred an appeal before the Revenue Appellate Authority ,Jodhpur. The appeal was allowed by the Revenue Appellate Authority vide order dated 13.10.80 and the order dated 30.9.77 passed by the Additional Collector, Nagaur dismissing the application preferred by Shri Ramjiram so also the allotment made in favour of Shri Raghunath were set aside. Aggrieved by the aforesaid order dated 30.9.77, Shri Raghunath preferred second appeal before the Board of Revenue which was allowed vide order dated 3.11.87 and consequently, the order passed by the Revenue Appellate Authority dated 13.10.80 was set aside and the order dated 30.09.77 passed by the Additional Collector, Nagaur and MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 4 the original allotment order dated 24.11.62 made in favour of Shri Raghunath was restored. Since Shri Ramjiram expired during the pendency of the revision petition before the Board of Revenue therefore, the validity of the order dated 3.11.87 passed by the Board of Revenue was challenged by the writ petitioner Shri Dhula Ram, the respondent no.3 herein who is son of deceased Ramjiram. During the pendency of the writ petition, the original allottee Shri Raghunath also expired and in his place, his legal representatives the appellants herein were taken on record. 4. Before the learned Single Judge , a preliminary objection was raised on behalf of the appellants that on earlier occasion, the Board of Revenue had clearly observed that the deceased Shri Ramjiram had no locus standi to file an appeal against the allotment order before the Additional Collector and on that ground alone , the revision petition preferred by their father Shri Raghunath was allowed therefore, son of Shri Ramjiram, the respondent no. 3 herein cannot be permitted to proceed with the writ petition inasmuch as , he has no locus standi to challenge the order dated 3.11.87 passed by the Board of Revenue. That apart, yet another objection was raised on behalf of the appellants that since the writ petitioner, respondent no. 3 herein has suppressed the fact of filing civil suit and obtaining the MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 5 injunction against the appellants therefore, the writ petition deserves to be dismissed on this count alone. 5. It was contended on behalf of the respondent no. 3 before the learned Single Judge that deceased Shri Ramjiram , being citizen of the village Sogawas was entitled to challenge the order of allotment made in favour of deceased Raghunath because the land was allotted to him forms part of the public way and was not available for allotment to anyone. Regarding the filing of the civil suit, it was submitted that in the civil suit the writ petitioner has only obtained injunction restraining the respondent Raghunath from cultivating the land therefore, the disclosure or non disclosure of the said fact does not make any difference for arriving at a correct decision about the legality and validity of the order impugned passed by the Board of Revenue . 6. On merits, it was contended on behalf of the respondent no. 3 that the land allotted in favour Shri Raghunath forms part of the land which is shown as public way in the revenue record therefore, the same could not have been allotted in his favour. Per contra, it was contended on behalf of the appellants before the learned Single Judge that the entire land comprising khasra no. 288 is not public way but only some portion of the said land was part of the way and the rest of the land being chak land was available for allotment. MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 6 7. The learned Single Judge after due consideration found that the dispute involved in the matter relates to public way therefore, not only deceased Ramjiram or the writ petitioner Shri Dhula Ram but anyone else could have challenged the validity thereof. Regarding non disclosure of the fact of filing of the civil suit and obtaining the stay, the learned Single Judge opined that the said fact itself should not come in the way of the writ petitioner particularly when the order passed by the Board of Revenue is challenged on merits. Accordingly , both the preliminary objections raised on behalf of the appellants were rejected by the learned Single Judge. On merits, the learned Single Judge found that if the land is a public way , it has to be kept as public way and it cannot be permitted to be cultivated. In this view of the matter, the learned Single Judge found that the reasons assigned by the Board of Revenue for allowing the revision petition are totally absurd and wholly unsustainable. Accordingly, the writ petition has been allowed as aforesaid. 8. It is contended by the learned counsel for the appellants that the findings arrived at by the Board of Revenue are findings of fact and could not have been interfered with by the learned Single Judge in exercise of the extra ordinary jurisdiction under Article 226/227 of the Constitution of India. It is submitted that on earlier occasion while passing the order dated 17.12.76, the MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 7 Board of Revenue has categorically held that the father of respondent Dhula Ram, late Shri Ramjiram cannot be said to be an aggrieved party by the allotment made and therefore, cannot maintain an appeal against the said order therefore, the allotment made in favour of late Shri Raghunath could not have been challenged by late Shri Ramjiram by way of an application under Rule 14(4) of the Rules of 1970 and for the parity of the reasons, the order passed by the Board of Revenue could not have been challenged by the respondent Dhula Ram by way of writ petition before this court. It is submitted by the learned counsel that the total 97 bighas and 14 biswas land comprising khasra no. 288 is not the public way but only a part of it is used as public way therefore, it cannot be said that the entire land of the said khasra was not available for allotment. It is submitted by the learned counsel that the land comprising khasra no. 288 was converted into pasture land after leaving 10 gatta (50 ft.) land for public way. It is submitted by the learned counsel that the land allotted in favour of their father was a barani land available for allotment and therefore, the allotment made in his favour was not liable to be cancelled invoking the provisions of Rule 14(4) of the Rules of 1970. It is further submitted by the learned counsel that the appellants are in possession of the land in question and cultivating the same for last more than 35 years MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 8 therefore, at this stage, it will be wholly unjustified to dispossess them from the said land. In this regard, the learned counsel has relied upon a decision of Hon'ble Supreme Court in the matter of “Brij Lal vs. Board of Revenue”, AIR 1994 SC , 1128. 9. Per contra, the learned counsel for the respondent no. 3 while reiterating the submissions made before the learned Single Judge submitted that the land reserved for the public way in the revenue record cannot be divested for any other purpose therefore, in view of the provisions of Rule 4 of the Rules of 1957, the disputed land was not available for allotment and thus, the allotment made in favour of the appellants' father is ex facie contrary to the provisions of the Rules of 1957 and therefore, the learned Single Judge has committed no error in restoring the order passed by the Revenue Appellate Authority cancelling the allotment made in favour of father Shri Raghunath. In support of his contentions, the learned counsel has relied upon a Bench decision of this court in the matter of “Nizamuddin vs. The Board of Revenue & Ors.”, RLR 1991(1) , 84. 10. We have considered the rival submissions and perused the material on record. 11. From bare perusal of the revenue record i.e. khatauni and the map, it is manifestly clear that the entire land i.e. 97 bighas 14 biswas comprising khasra no.288 situated at village Sogawas, MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 9 tehsil Merta has been shown as “Gair Mumkin Marg”. Even the Board of Revenue while passing the order dated 17.12.76 allowing the revision petition preferred by the appellants' father on the ground that the respondent's father Shri Ramjiram had no locus standi to maintain the appeal against the allotment order has arrived at a categorical finding that the order of the Advisory Committee in allotting the land from khasra no. 288 recorded as “Gair Mumkin Rasta” was bad and not justified. That apart, while passing the order as aforesaid, it was categorically observed by the Board of Revenue that it would be open to the Collector, Nagaur to examine the validity of the allotment made in favour of Shri Raghunath under Rule 14(4) of the Rules of 1970. It is not in dispute that the lands recorded as “Gair Mumkin” in the revenue record were not available for allotment for agriculture purposes in view of provisions of Rule 4 of the Rules of 1957. Therefore, the allotment made in favour of appellants' father late Shri Raghunath by the Advisory Committee was ex facie in contravention of the provisions of Rule 4 of the Rules of 1957. 12. Under Rule 14(4) of the Rules of 1970 the Collector has the power to cancel the allotment made either suo moto or on application of any person in case the allotment has been secured through fraud or misrepresentation or has been made against Rules or in case the allottee has committed any breach of the MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 10 conditions of the allotment. Thus, on an application being made by the father of the respondent no. 3 Shri Ramjiram questioning the allotment of the land on the ground that the same forms part of the public way and was not available for allotment, the authority concerned was under an obligation to examine the validity of the allotment and pass an appropriate order for cancellation of the allotment on the same having been found made against the Rules. Therefore, the objection with regard to locus standi of the father of the respondent no. 3 to question the allotment by way of an application under Rule 14(4) of the Rules of 1970 was not sustainable and the same has rightly been rejected by the learned Single Judge. 13. It is settled law that the land which forms part of the public way cannot be divested for any other purpose inasmuch as, the every citizen has right of ingress and egress through the public way. In Nizamuddin's case (supra), a Bench of this Court while dealing with the question regarding the allotment of the land forming part of the public way categorically held that a land recorded as “Gair Mumkin Rasta” cannot be treated as an agriculture land available for allotment. The court observed : “19. The Rules of 1981 provide for allotment, conversion and regularisation of agricultural land for residential and commercial purposes in an urban area. Now, this has to be decided whether the land which has been recorded in the revenue records as land forming part of the public way can be held to be an agricultural MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 11 land? Our considered view is that it cannot be S.140 of the Rajasthan Land Revenue Act provides for presumption as to entries in the revenue records. It says that all entries made in the record of rights shall be presumed to be true until the contrary is proved. In this case, it has been admitted by both the parties that the land in dispute bearing Khasra No.1979 has been recorded as Gair Mumkin Gova in the revenue records. When this land forms part of Gair Mumkin Rasta and has been certified to be so by the Inspector, Land Records, then it is surprising how the Tehsildar (Conversion) has reported that this land forms part of Siway Chak. The land which forms part of the way can only be utilised as a way and not otherwise because the General Public has a right to use that land as public path and no encroachment can be permitted on that public path. Even if any encroachment has been made, that encroachment on public path cannot be regularised and that has to be removed. The persons whose land abut that way have a right of ingress and egress through that public way and that right cannot be defeated by a private citizen by making encroachment upon the public way. A person whose land abuts the public way comes into the category of persons, who have suffered special damages on account of that encroachment. It may be that certain other encroachments might have been made on the other side of the public way and abut those encroachments, no grievance has been made by the complainant, but does not mean that the complainant cannot get any relief against the person, whose encroachment has been challenged by him.”(emphasis added) 14. In our view, the authoritative pronouncement of this court in Nizamuddin's case (supra) is complete answer to all the questions raised before us in this appeal. The entries in the revenue record regarding the category/nature of the land in the revenue record is conclusive therefore, the Advisory Committee had no jurisdiction to treat the land in question as “siway chak “ available for allotment. The land which forms part of the public MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 12 way is not available for use for any other purpose therefore, the allotment of the land in question made in favour of the appellants' father by the Advisory Committee was ex facie illegal and thus, the cancellation of the allotment made in favour of the appellants' father cannot be faulted with. 15. The alternative contention raised on behalf of the appellants that they are in possession of the land and are cultivating the same for years together therefore, they should not be divested of the same at this stage, is also devoid of any merit inasmuch as, that the appellants are continuing in possession of the interim order granted by the Board of Revenue and this court which does not create any right in their favour for regularisation of the possession thereof. Moreover, the allotment of the land which forms part of the public way made in favour of the appellants' father is void ab initio and the same cannot be permitted to be regularised. The decisions of the Hon'ble Supreme Court in Brij Lal's case (supra) also does not help the appellants in any manner inasmuch as, in the said matter, an allotment made in favour of a minor which was not obtained by making any false declaration as to the age was protected by the court keeping in view the fact that the land was being cultivated by the allottee for over a period of two decades. It was not the case wherein an allotment of land for being part of the public MUNNA LAL & ORS. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO. 503/99) 13 way was ordered to be regularised by the Hon'ble Apex Court . 16. For the aforementioned reasons, we do not find any error in the order impugned passed by the learned Single Judge warranting interference by us in this intra court appeal. 17. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-