1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B.CIVIL SPECIAL APPEAL (WRIT) No.51/2002 Bheeka Ram V/S State & Ors. Date of Judgment : 3rd September,2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. Mr. S.D.Vyas, for the appellant. Mrs.Raghu Raj Kanwar & Mr. Hemant Choudhary, A.G.C., for the respondents. BY THE COURT : (PER HON'BLE GUPTA,J.) This appeal seeks to challenge the order of the learned Single Judge dt. 27.8.2001 dismissing the appellant's writ petition. The case has a long drawn history which may briefly be recapitulated in the manner, that three killas of land being Killa No. 11, 12 and 13 of Murabba No. 118/42 of Chak 19 KYD is the bone of contention, which shall hereafter be referred to as the land in question. It appears from Annexure-2 dt. 29.7.1989, that the land in question was allotted to one Kadu Khan on 14.3.1988 as a small patch of land, which allotment was challenged by the appellant, interalia on the ground, that the appellant had applied for being allotted the said land to him on 16.6.87, but 2 without considering that application allotment was made to Kadu Khan, and without giving opportunity of hearing to the appellant. The appeal was allowed, and it was found, that the allotment was made on the application of Kadu Khan, by observing that till 29.2.1988 no other application was received, while application of the appellant was filed on 16.6.1987, and therefore, eligibility of both the parties was required to be considered for deciding the matter of allotment. Consequently, the appeal was allowed, and the allotment of Kadu Khan was set aside, and the matter was remanded to the allotting authority. Thereafter the allotting authority passed the order Annexure-1 dt. 23.7.1990, and in this order, while recapitulating facts it was noticed, that the present appellant produced a certificate from the Colonisation Tehsildar, and Sarpanch of Gram Panchayat Karnisar Bhatiyan, to the effect, that in that village no person in the name of Kadu Khan s/o Daulat Khan at all resides. Then, the factum of allotment in favour of Kadu Khan having been set aside, and the matter having been remanded has been narrated, and after purporting to hear both the parties, being Kadu Khan and the appellant, allotment of the land in question was made in favour of the appellant. Against this order dt. 23.7.1990 appeal was filed by the private respondent Jor Singh, contending interalia, that he came to learn of the order dt. 23.7.1990 on 6.11.1990 only, on being informed by the present appellant, and also contending, that Jor Singh is an allottee of 18 bighas of land in this very Murabba No. 118/42 of Chak No. 3 K.Y.D., and is entitled to have the land in question allotted as small patch of land. It was contended, that though the matter was remanded for deciding afresh after hearing both the parties, but then after remand the proceedings were not taken in accordance with law, i.e. by giving opportunity of hearing to all persons who were entitled to allotment. The learned Additional Commissioner Colonisation dismissed the appeal, on the ground, that Jor Singh has not been able to show his possession over the land, nor he has been able to show as to why he did not apply for allotment of land in question, and did not take any step in that direction, and even if it were to be assumed that he is in possession, his possession is only in the nature of trespasser. Thus, considering the merits of the matter, the appeal was dismissed on merits, as well as on the ground of limitation. Against that order a revision was filed by Jor Singh, which came to be allowed by the Board of Revenue vide order dt. 24.4.1996, finding interalia, that the first right of allotment of small patch of land vests in the adjoining tenure holders, and therefore, at the time of taking proceedings for allotment, it was necessary to give notice to the adjoining tenure holders, which has not been done in the present case. The question as to whether any of the adjoining tenure holders is in possession of the land is not a material circumstance but notice was required to be given, and for that purpose two decisions of the Board of Revenue, reported in 1991 RRD-22 and 1980 NUC 54 have been relied upon. It was also considered, that under the 4 Rules if more than one persons claim to be entitled to be allotted the land, then the land is to be put to auction. Thus, possibility of loss of revenue to the Government has also come about. At the same time it was also considered, that the present appellant has not been able to show that any application was filed, either by himself, or by his son, for allotment of the land in question to him. Interalia with these findings the revision was allowed, and the order of the learned Additional Commissioner Colonisation was set aside, and the matter was remanded back to the allotting authority, with a direction to take proceedings for allotment of small patch of land, after inviting applications/giving notice to all concerned persons, and in accordance with law. Challenging this order of the Board of Revenue, the petitioner filed the writ petition before this Court, and the learned Single Judge found, that it is apparent from the order of the Board of Revenue, that like the respondent Jor Singh, there was no application of the present petitioner for allotment of land to himself. It was noticed, that it was stated before the Board of Revenue, that application was made by the son of Bhika Ram for allotment. Then, the Board of Revenue has found, after considering the record, that there is no application filed by Bhika Ram on record, which is signed by his son, nor any other application filed by any authorised person is on record, which can be treated as application on behalf of Bhika Ram. This finding of the Board of Revenue was 5 not even disputed during the course of hearing, but it was accepted, and plea was taken, that the allotment has been made on the application of his son. Learned Single Judge found, that the finding recorded by the Board of Revenue having not been challenged, in the writ petition either, which alone is sufficient to non suit the petitioner. Accordingly, the writ petition was dismissed. This appeal came up for admission on 13.2.2002, and it was contended, that under Rule 14 no application is required to be submitted for the allotment of patch of land, and that Khatedari rights have vested with the petitioner in the land in question. Noticing this contention, notices were ordered to be issued, and ultimately vide order dt. 22.2.2005 appeal was admitted, as nobody appeared on behalf of the respondent. Arguing the appeal, firstly it was submitted that since Jor Singh is not a tenure tenant, under Rule 14 he was not entitled to have the land allotted as small patch of land. However, after reading the definition of tenure tenant as given in Rule 2(xviii) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the (Indira Gandhi Canal Colony Area) Rules, 1975, hereinafter to be referred to as the rules of 1975, the learned counsel did not press the argument further, as the tenure holder includes the person in whose favour the land has been allotted on permanent basis. Then it was submitted, that since 6 vide order Annexure-2 when the matter was remanded, the appellate authority only directed the matter to be decided after hearing both the parties, which both the parties were only Bhika Ram and Kadu Khan, and not Jor Singh. Elaborating the argument it was submitted, that when the allotment was made in favour of Kadu Khan on 14.3.1988, that was not challenged by Jor Singh, and was challenged only by Bhika Ram, in that view of the matter, the right to Jor Singh to challenge the allotment comes to an end, and he cannot claim any right to be heard afresh. Obviously as a necessary consequence Jor Singh had no right of challenging the allotment made in favour of the appellant, which was made vide Annexure-1, much less could the Board of Revenue direct the matter to be remanded back, more particularly when Kadu Khan has not challenged the allotment of the land. We have considered the submissions. A look at Rule 14 of the rules of 1975 shows, that it clearly provides, that notwithstanding anything to the contrary contained in these rules, small patch of Government land may be allotted, to a tenure tenant whose tenure land adjoins such patch, subject to the ceiling area, at double the reserve price for land of a similar soil class in the neighbourhood. Then, according to proviso, if the tenant of the adjoining land fails to apply for the allotment of small patch, the Allotting Authority shall make arrangement for making allotment of such 7 small patch to the tenure tenants of the same chak or of the adjoining chak. At the same time, it also provides, that in case more than one tenants apply for allotment of same small patch, allotment shall be made by auction, and it shall be allotted to the highest bidder. Of course, Rule 14(1) does not contemplate filing of any application by any adjoining tenure tenant, but then, that would not mean that allotment can be made arbitrarily in favour of any of the persons entitled to be allotted even without keeping in view the letter and spirit of Article 14 of the Constitution of India. Obviously primary right of allotment vests in the tenure tenants, whose tenure land adjoins such patch, and obviously, such adjoining tenants can be more than one, as inherently, in the very nature of things, the small patch of land shall be adjoining larger tenure tenant. In that view of the matter, either the allotment should be made, or could have been made, by inviting applications from all the adjoining tenure tenants, or in any case no body applies except one of the adjoining tenure tenants, then it was obligatory on the authority to give an opportunity to other adjoining tenure tenants also, giving them also opportunity to apply, and if they also do not apply then, the allotment could be made to the applicant, and in case more than one applicants apply then recourse was required to be had to sub-rule (2). That being the inherent intrinsic position of Rule 14(1), simply because Jor Singh did not challenge 8 the initial allotment of Kadu Khan, which came to be challenged by the present appellant Bhika Ram, it cannot have the effect of entitling the authorities to decide the matter of allotment of land, considering the comparative entitlement of Kadu Khan and Bhika Ram only, rather the authorities are under an obligation to consider the entitlement of adjoining tenure tenants, if they choose to apply, after being given opportunity of hearing. It is not the case of the appellant, that Jor Singh is not the adjoining tenure tenant. That being the position, irrespective of the question as to whether the petitioner had ultimately applied, or not, since the Board of Revenue has directed the matter to be remanded to the allotting authority, to decide the matter in accordance with law, obviously it is open to all the adjoining tenants to now apply, and allotting authority is expected to proceed in accordance with law. In that view of the matter, we do not find any error, so as to interfere with, in the impugned order in our intra court appellate jurisdiction. The appeal thus has no force, and is hereby dismissed. (GOVIND MATHUR), J. (N.P.GUPTA),J. /Sushil/