1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Pradeshik Kisan Pong Bandh VS. Shri Ram Singh & Ors. Bhumi Kharidar Samiti D.B.CIVIL REVIEW/RECALLING PETITION NO.31/2006 IN D.B. CIVIL SPECIAL APPEAL (WRIT) NO.666/1999 Date of order : 21st July, 2006 PRESENT HON'BLE JUSTICE MR. RAJESH BALIA HON'BLE JUSTICE MR. R.P. VYAS REPORTABLE Mr. Anand Purohit for the petitioner. Mr. K.L. Thakur, Addl. Advocate General. ______ BY THE COURT: ( PER HON'BLE RAJESH BALIA, J.) This review petition has been filed in pursuance of order dated 17.4.2006 passed by Supreme Court in I.A. No.1 in Petition for Special Leave to Appeal (Civil) 2400/2006 which was filed against the judgment dated 14.3.2005 passed by this Court in D.B. Civil Special Appeal No.666/99 whereby the said appeal was dismissed. 2 While dismissing the appeal, the Division Bench noticed the directions of the Supreme Court contained in Writ Petition (C) No.439/1992, Pradesh Pong Bandh Visthapit Samiti, Rajasthan and Anr. Vs. UOI & Ors. decided on 26th July, 1996 and reported in AIR 1996 SC 3445 wherein the Supreme Court has issued certain directions in relation to the land to be made available for rehabilitating the persons who have been displaced in Himachal Pradesh as a result of construction of Pong Dam. Before noticing the directions issued, which is the bone of contention in this application, it would be apposite for us to notice the background and directions issued by the Supreme Court in Pradesh Pong Bandh Visthapit Samiti's case. The construction work on the Pong Dam was commenced in the year 1960. The land which was required for the purpose fell within the territory of State of Himachal Pradesh. The water impounded by the Pong Dam was within the State of Himachal Pradesh, but the benefit thereof accrued to the State of Rajasthan. To rehabilitate the persons, who were displaced as a result of acquisition of land and construction of Dam, the problem 3 was considered firstly between the representatives of State of Rajasthan and Punjab as at the time the land was acquired, the State of Himachal Pradesh was not in existence and thereafter in 1962 a meeting was held between the then Union Secretary for Irrigation and Power and the representatives of the two States in which it was agreed that oustees of the Pong Dam were eligible for allotment of land in Rajasthan Canal area i.e. in the State of Rajasthan. The Government of Himachal Pardesh estimated in 1969 that a total number of 20722 persons would be oustees by the reasons of acquisition and gave this figure to the Committee which was accepted by the Committee and placed before the Committee of the concerned Chief Ministers. These figures were not questioned by the Rajasthan Government. In furtherance of these efforts to rehabilitate the pong dam oustees, the Rajasthan Colonization (Allotment of Government Land to Pong Dam Oustees in the Indira Gandhi Canal Area) Rules, 1972 were framed and the pong dam oustees were to be allotted lands in Rajasthan on the terms and conditions contained in the said Rules of 1972. The terms and conditions for allotment have been mentioned in Rule 6. One of the conditions which is relevant for the present purpose was that during the period of ghair khatedari tenure, allottee shall not have any alienable and 4 transferable rights in the land and shall not transfer or alienate the land to any other person in any way e.g. by sale, mortgage, gift, transfer, lease or otherwise. No transfer or alienation of land even in the form of Nokarnama, Muktiarnama, Tabliknama, Ikranama or the like shall be permissible. Provided that after expiry of 10 years from the date of taking over the possession by the allottee and subject to allottee having paid full price of land allotted to him, the Colonisation Commissioner may, on the application of the allottee after satisfying the hard and exceptional circumstances exist,allow the allottees to relinquish the land allotteed to him in favour of the State Government on refund of the price paid by him for the said land. It also envisaged that initially the allotment shall be on ghair-khatedari tenure only and to the allottee no khatedari rights shall accrue in any land so allotted till the expiry of 20 years from the date of allotment and till the full price of the land together with all other dues of the State Government, if any, has been paid by him to the State Government. In 1981, the position of the rehabilitation of the pong dam oustees was reviewed and certain amendments in the Rules of 5 1972 were agreed to. By then only 9169 Pong Dam Oustees have been allotted land. But they were facing infrastructual problems in continued cultivation of the land. Cancellation of allotment made in favour of pong dam oustees due to non taking possession there of within 45 days of allotments were to be reviewed. While the period for acquisition of khatedari rights were to be reduced from 20 years to 10 years provided that before the acquisition of khatedari rights all dues due to the State government have been fully discharged but it was agreed that right to alienate the land would not accrue before the expiry of 20 years from the date of allotment. It was also noticed that certain lands were not irrigable and cancellation of allotment has been made because the same has not been cultivated. Such cancellation orders were also agreed to be withdrawn. It was also agreed that before the allotment orders were issued encroachment on the allotted land should first be removed. Thereafter on 12th March, 1992, the Rules of 1992 were further amended and in the proviso to Rule 6 for expression “20 years” the expression “25 years” was substituted that is to say the period of embargo on alienation of the allotted land was increased from 20 years to 25 years and Rule 6A was also 6 inserted. Rule 6A sub-clause (1) reads as under:- “(1) Notwithstanding anything to the contrary contained in these rules, the land reverted to the State Government under sub-rule (10) of Rule 6 as a result of transfer or alienation of the allotted land in breach of sub-rule (4) of Rule 6 of the Rules, may be sold by way of special allotment to the purported transferee who has been a bona fide resident of Rajasthan and has not been involved in anti-national activities, and who is also in possession of the land as on 31st December, 1991 and continues to be in possession till the date of reversion, after holding such enquiry as the Collector deems proper, subject to the ceiling area applicable to the purported transferee under the Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973.” These provisions were challenged before the Supreme Court in the aforesaid case. The Supreme Court struck down the amendment by which the period for embargo on alienation of the lands allotted to the pong dam oustees was increased. The Rule 6A enabled the State Government to transfer the land by way of special allotment to those persons who were in possession of the land allotted to 7 pong dam oustees as transferees or proposed transferees since before the amendment was also struck down. Large number of cancellation took place as a result of the aforesaid amendment inter alia on the ground that pong dam oustees in whose favour the land has been allotted had alienated their land in contravention of the provisions contained in Rule 6 and, therefore, the land was reverted to the State Government and simultaneously the Rule 6A was operated by making the allotment of the same land in favour of the transferees as special allotment. The following observations were made in this regard by the Supreme Court:- “It had been decided in 1992, as the affidavit of the State of Rajasthan shows, to regularise the possession of the Rajasthanis who were in possession of lands allotted to oustees. It was for that purpose that Section 6-A was then incorporated. Rule 8-AAA was required to be introduced within a few months thereafter because the State of Himachal Pradesh complained of its blantant misuse and a review of cancellations was agreed to. Rule 8-AAA states, as already noted, that a review was required because the oustee allottees had been deprived of allotments in breach of the provisions of natural justice. The number of cases where this happened because of alleged breach of Rule 6(4) and subsequent application of Rule 6-A was 1935. Out of these, 836 8 cases had been disposed of by 31st March, 1996. What the consequence of such disposal was is not stated in the affidavit of the State of Rajasthan. Mr. Aruneshwar Gupta could not tell us either, but, according to him, no oustee allottee could have been put back in possession because of a judgment of the Rajasthan High Court. He did not cite the judgment nor give the number of or title of the case. For alleged breaches of Rules 6(5) and 6(6) the position is similar. The affidavit of the petitioners date 28th June, 1996, states that 2063 allotments were cancelled upon the insertion into the Rules of Rule 6A; that, upon review, 843 cancellation orders were affirmed and only 94 cases were decided in favour of oustee allottees; and that is 1126 cases review is pending.” With these premises, the Supreme Court concluded “having regard to the track record, the Revenue Authorities of Rajasthan cannot be entrusted with the task”. It further indicted State of Rajasthan when it observed:- “We think that directions are necessary if the oustees are to get their due; we are left in no doubt that the State of Rajasthan has disfavoured them and favoured 9 the Rajasthani and has made rules and implemented them with that in mind.” While directing that the notification dated 12th March, 1992 amending the Rajasthan Colonisation (Allotment of Government Land to Pong Dam Oustees in the Indira Gandhi Canal Colony) Rules, 1972, was malafide and ultra vires and, consequently, the substitution of 25 years for 20 years in the proviso to Rule 6(3) and the introduction of Rule 6-A were quashed and set aside. The Court did not rest at that but further directed that:- “The Chief Justice of Rajasthan High Court shall nominate, within 6 weeks of receipt of a copy of this order, one or more District Judges for the purpose now set out.” The purpose set out was that the cases of all cancellation of allotment to the oustees subsequent to January 1992 shall be reviewed by the District Judge. Where the District Judge finds that an oustee allottee has committed a breach that invites the forfeiture of his land, he shall so record. Where the 10 District Judge finds to the contrary, whether or not the oustee allottee appears, he shall so record. The District Judge shall also record, should he so find, that the oustee allottee was forced to leave the land because of lack of irrigation or other essential facilities such as water,road, schools and medical assistance and/ or because of coercion, intimidation or trespass. The District Judge shall complete the task allotted to him as soon as reasonably possible. The directions made by the Supreme Court were as under:- “The committee shall be responsible for the settlement in the command area of the Indira Gandhi Canal Colony in Rajasthan of all oustees who have secured certificates of eligibility in that behalf from the State of Himachal Pradesh, except those who, having been allotted land, have been found by the District Judge aforementioned to have forfeited it, provided that they were not forced to leave the land because of lack of irrigation or other essential facilities such as water, roads, schools and medical assistance and/or because of coercion, intimidation of trespass. Such land only shall revert to the State of Rajasthan and it shall be utilised for the purpose of allotment to oustees not yet settled.” 11 According to these directives, the lands of those persons, who had been allotted land but were found to have transferred their land in contravention of Rule 6 prior to expiry of 20 years or had abandoned voluntarily the land so allotted by the District Judge aforementioned shall stand forfeited and it shall be reverted to the State of Rajasthan and it shall be used for the purpose of allotment to the oustees not yet settled. It is keeping in view the aforesaid directions that the allotment made in favour of the pong dam oustees which as per the recommendations of the District Judge appointed by the Chief Justice in terms of the aforesaid directions stood forfeited were to revert back to the State Government to be utilised for the purpose of settling those pong dam oustees, who have not been settled. The result of the forfeiting the allotment and quashing of rule 6A coupled with the fact that the land, allotment of which was made in favour of pong dam oustees, if were to be forfeited the land under such allotment were reverted back to the State Government and to be utilised only for the purpose of settling the pong dam oustees, made it abundantly clear that such land could not be allowed to remain in possession of the transferees or 12 trespassers. If the forfeiture of allotment in favour of the pong dam oustees has taken place as a result of transfers made in violation of Rule 6(4), then the continuous possession after the recommendation of the District Judge forfeiting the allotment made in favour of pong dam oustees was not lawfully permissible because the same reverted to State, but did not remain at the State for disposal at its sweet will. Such land was required to be made available to the pool for settling the pong dam oustees, who had not been settled till then and the task of utilisation of that land so reverted to the State of Rajasthan was to be undertaken by the Committee and not by the State of Rajasthan. Hence irresistibly, it led to continue possession of such transferees after decision of District Judge a special Tribunal set up under the order of the Supreme Court to be unlawful as trespassers. It is keeping in view the aforesaid directions of Supreme Court in the aforesaid decision that while deciding D.B. Civil Special Appeal No.666/1999 in Ram Singh's case who was pong dam oustee, the allotment made in his favour was cancelled and finding that he has transferred the land in violation of condition contained in Rule 6 of Rules 1972, when it was noticed that the 13 transferees were still continuing in possession, notwithstanding that no challenge to order of District Judge has been made by them. The Court directed the State authorities to immediately evict them from the land in question in the said writ petition and give effect to reversion of land to State for the purpose of settling remaining Pong Dam Oustees. The finding recorded by the District Judge on reviewing the cases in terms of the directions of the Supreme Court were binding on the transferor, transferee and the Government. The Supreme Court has clearly observed that the report shall be binding on the oustee allottees and State of Rajasthan there. Hence, there was hardly any scope for judicial review of such orders. Be that as it may, the petition as well as the special appeal failed. However, during the course of hearing of the appeal in Ram Singh's case, the judgment in which the subject matter of this application and another D.B. Special Appeal No.261/1999, Kashi Ram Vs. Union of India & Ors. to which reference has been made in the judgment dated 14th March, 2005 in Ram Singh's case, it was observed that in spite of clear provisions of law and directions of the Court the persons who are in unauthorised 14 possession are still in possession. Keeping in view the aforesaid backdrop of the Supreme Court directives which we have noticed in detail, the Court observed as under:- “That in spite of the directions of this Court, if the respondent Officers have not taken care of the directions and trying to ignore their obligations to secure the land allotment of which to Pong Dam Oustees have been cancelled to be made available for rehabilitating the remaining Pong Dam Oustees, the State Authorities have failed to act in accordance with law to give effect to the above directions. To give effect to the directions of the Hon'ble Supreme Court for reverting the land to the State Government and make the land available to the unsettled Pong Dam Oustees is true deposed in the State Government under the agreement arrived between the two States. We, therefore, further direct that the respondents shall give effect to the above directions of the Supreme Court and wherever it is found that the provisions made for Pong Dam Oustees were not complied with in accordance with law and total allotted lands which were transferred in breach of provisions of Rules of 1972 and cancelled and where such lands were allotted under Rule 6-A to illegal transferee, which special allotments stood inoperative as void as a result of Rule 6-A being declared invalid, but still the persons are in unauthorised possession over the 15 lands to be treated as trespassers having been allowed to remain in possession of such lands and the land is not being made secured by the State Government for rehabilitating the Pong Dam Oustees, the action must be complied with within three months. For this purpose, a separate case may be registered for seeking compliance report about the above directions. A copy of this Order be communicated to the Chief Secretary and Revenue Secretary to the Government of Rajasthan with the direction to the District Collector, Sri Ganganagar to furnish compliance report within ten days.” The SLP was preferred before the Supreme Court against the aforesaid judgment not by Ram Singh and others, the appellant whose appeal was dismissed but by Pradeshik Kishan Pong B.B. Kharidar Samiti. The petition was dismissed by the Supreme Court with the following order on 17.4.2006:- “Permission to file special leave petition is granted. Learned counsel for the petitioner states that the writ petition related to in essence a private dispute between certain allottees, but was disposed of by the High Court by making certain observations relating to 16 allotments in general which would affect the petitioner. It is also stated that the entire issue relating to the allotment relating to the allotment of the land to the Pong Dam oustee-allottees has been remitted by this Court to the Himachal Pradesh High Court. In our view these are arguments which should appropriately be made to the High Court. The special leave petition is therefore dismissed as withdrawn with liberty granted to the petitioner to approach the High Court.” This has led to filing of this petition. Apparently, the petitioner which is stated to be an association of those transferees of land allotted to the pong dam oustees, whose allotments have been cancelled for breach of terms of allotment and as a result of declaration of Rule 6A to be ultra vires, the special allotment made in their favour after cancellation of allotment made in favour of the pong dam oustees also stood nullified. This position is not in contention. It is also not in contention that in terms of the order of the Supreme Court noticed above, on cancellation of the allotment made in favour of Pong Dam Oustees, the lands must revert to the State Government and were to be made available only for the purpose of rehabilitating the pong dam oustees, who had not been settled so far. This is clearly indicative of the mandate of Supreme 17 Court that on cancellation of the allotment made in favour of pong dam oustees, the land must revert back to the State Government and become part of the pool of the land available for settling the pong dam oustees. This also implies the persons in possession of the land as on the date, the order of cancellation was made by the competent authority and thereafter the said cancellation order was found to be justified by the District Judge on review of the order in terms of the direction of the Supreme Court the transferree person in possession was not entitle to continue to remain in possession and the land was required to be made available to the State Government to be dealt with by the committee for settling the pong dam oustees. The Supreme Court has clearly not trusted the State authorities for the purpose of this task of settling the pong dam oustees in no uncertain terms and it said in para 24 of the judgment that 'having regard to their track record, the revenue authorities of Rajasthan cannot be entrusted with the task'. The continued possession of such transferees despite cancellation of allotment until now ventilates the apprehension of the Apex Court. The only contention that has been raised before us by the learned counsel for the applicant for recalling the aforesaid 18 directions issued to the State authorities for implementing the order of the cancellation of allotment made in favour of pong dam oustees by dispossessing the persons in possession and securing the land for the purpose of making it available to the Committee for settling the unsettled pong dam oustees. The entire matter of settlement has been referred to Himachal Pradesh High Court by the Supreme Court and in tern Himachal Pradesh High Court has referred to the Committee constituted by the Supreme Court in the judgment noticed above. According to the learned counsel, since no claim of pong dam oustees remained to be satisfied as per the report submitted by the Committee, the Members of the applicant, who are continuing in possession, after the cancellation of allotment made in favour of the pong dam oustees and holding the special allotment to them be valid be not disturbed and their possession of the land be regularised in terms of the price already paid by them. In other words, the case of applicant is that since all the claims of pong dam oustees have been settled and the land in question is not required for settling the pong dam oustees any more, the transferrees of such pong dam oustees, whose allotments have been cancelled be allowed to continue to occupy the land in question. In alternative, it has also been urged by the learned counsel for the applicants that at any rate since all the 19 matters about settling the pong dam oustees have been referred to the High Power Committee, unless those cases are settled, the applicants may be allowed to continue with their possession and the directions issued to give effect to consequences of the order of canceling the allotment made in favour of pong dam oustees and invalidation of the special allotment made in favour of the transferee as a result of Rule 6A having been decided ultra vires under which special allotments were made and to secure the land in question to the 'land pool' making it available to the settlement of pong dam oustees, be recalled or be kept in abeyance and the notices issued to such transferee for delivering their possession to the State Government be set aside. The learned counsel for the respondent-State urged that this petition cannot be granted to the applicant as it would be contrary to the directions issued by the Supreme Court in the case of Pradesh Pong Bandh Visthapit Samiti, Rajasthan and another Vs. Union of India and others reported in AIR 1996 SC 3445 in which it has specifically been directed that the land under allotment which have been forfeited by the District Judge as per his decision rendered in pursuance of the directions issued by the Supreme Court to review all the mattes of cancellation