VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 1 VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) Dated :- 12th June,2009 HON'BLE MR.JUSTICE SANGEET LODHA Mr.J.L.Purohit, for the petitioner. Mr. Hemant Choudhary, Government Counsel. Reportable 1. This writ petition is directed against order dated 6.8.93 of the Board of Revenue( in short “the Board”) , Rajasthan whereby a revision petition preferred by the respondent no. 5 herein, assailing the validity of order dated 28.4.86 passed by the Additional Colonisation Commissioner-cum-Revenue Appellate Authority, Indira Gandhi Nahar Project Area( in short “IGNP”), Bikaner, rejecting the appeal preferred by him against the allotment of the land made in favour of the petitioner by the Allotting Authority-cum-Assistant Commissioner Colonisation, IGNP, Gharsana, has been allowed and accordingly, the allotment of land made in favour of the petitioner, stands cancelled. 2. The petitioner holding the agriculture land in Square No. 46/2 and 46/10 in Chak No. 5 GD made two applications dated 6.11.84 and 9.11.84 for allotment of small patches of land adjacent to his land falling in Square No. 46/2 and 46/10, measuring 4 bighas and 3 bighas respectively. Since the lands VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 2 were shown in the revenue record as Gair Mumkin , the Allotting Authority who is also a Collector under the Rajasthan Colonisation Act, 1954( in short “the Act of 1954” hereinafter) passed an order dated 4.12.84 converting the nature of the lands in the revenue records as agriculture lands. By the self same order the applications preferred by the petitioner for allotment as aforesaid were accepted and the aforesaid small patches were allotted to him. 3. The respondent no. 5 preferred an appeal against the said order dated 4.12.84 before the Revenue Appellate Authority( in short “RAA”), Bikaner which was dismissed vide order dated 28.4.86. 4. Aggrieved by order dated 28.4.86, the respondent no. 5 preferred an appeal before the Board. It was contended on behalf of respondent no. 5 before the Board that the land in question being Gair Mumkin land reserved for allotment for brick-kiln was not available for allotment. That apart, it was contended that the petitioner herein already possesses the land in excess of the ceiling limit and the Additional Commissioner without holding any inquiry, while deciding the appeal has wrongly held that the petitioner herein had two major sons and 9 members in his family and therefore, the land held by him does not exceed the ceiling limit. VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 3 On the other hand, on behalf of the petitioner it was contended that the respondent no. 5 has no locus standi to file the appeal before the RAA or the revision before the Board. 5. After due consideration, the Board found that the lands in question do not fall within the definition of “small patch” and thus, were not allottable as small patches under Rule 14 of Rajasthan Colonisation (Allotment & Sale of Government Land in Rajasthan Canal Colony Area) Rules 1975 ( in short “the Rules of 1975” hereinafter). In view of the finding arrived at as aforesaid that the lands were not allottable as small patches under Rule 14 of the Rules of 1975, the Board did not decide the question whether the petitioner was holding land in excess of the ceiling limit and was not eligible for allotment under Rule 14 of the Rules of 1975. The objection raised on behalf of the petitioner regarding the locus standi of the respondent no. 5 to maintain the appeal and revision , the Board held that the allotment was made by the Assistant Colonisation Commissioner in flagrant violation of the Rules of 1975 therefore, the applicant, respondent no.5 herein, was entitled to challenge the allotment. That apart, the Board observed that the illegality in making allotment having come to the notice of the Board, it cannot shut its eyes to such an illegal and without jurisdiction act, which was upheld by the Appellate Authority in a most circumvent manner. VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 4 Accordingly, by the order impugned in this writ petition, while accepting the revision petition, the Board has set aside the orders of the Appellate Authority and Allotting Authority and consequently, the allotment made in favour of the petitioner of the disputed small patches of land stands cancelled. 6. It is contended by the learned counsel for the petitioner that the petitioner being khatedar tenant of the lands adjacent to the small patches of land, was eligible for allotment under the Rules of 1975. The learned counsel submitted that admittedly while making the allotment, the lands were converted from Gair Mumkin to agriculture lands by the Allotting Authority who is also a Collector and therefore, there was no jurisdictional defect in the order of allotment. The learned counsel submitted that the land was cultivable land and the nature of the lands was declared by the Allotting Authority before the allotment as agriculture lands, therefore, the Board has seriously erred in holding that the lands in question were not allottable as small patches of land under Rule 14 of the Rules of 1975. The learned counsel submitted that petitioner is in cultivatory possession of the land till date and he was granted the khatedari rights by the Collector, Sri Ganganagar vide order dated 18.1.91 therefore, in absence of any fraud, manipulation or collusion on the part of the petitioner the allotment cannot be cancelled. In this regard, the VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 5 learned counsel has relied upon a decision of this court in the matter of “Mithu Singh vs. The State of Rajasthan”, 2007( 5) WLC, 265. The learned counsel has reiterated the contentions raised before the Board regarding the locus standi of the respondent no. 5 to maintain the appeal against the allotment order and so also the revision petition before the Board. 7. On the other hand, the learned Government Counsel submitted that the lands being neither irrigated nor un-irrigated agriculture lands were not available for allotment as small patches, therefore, the finding arrived at by the Board cannot be faulted with. The learned Government Counsel further submitted that the availability of the small patches of land was not notified by the Allotting Authority before the allotment therefore, the other concerned land holders of the adjacent lands could not make application for allotment and thus, the allotment made in favour of the petitioner is de hors the provisions of Rules of 1975. The learned Counsel submitted that admittedly the lands were classified as “Gair Mumkin” and the Allotting Authority had no jurisdiction to convert the nature of the said lands from “Gair Mumkin” to “agriculture land”.The learned Government Counsel urged that the Allotting Authority had no jurisdiction to convert the land for agriculture purpose, which has been shown in the revenue record as “Abadi”.The learned Counsel submitted that in VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 6 view of the illegalities committed by the Allotting Authority in making the allotment the respondent no. 5 who was allotted the land in Murabba no.46/2 had a locus standi to maintain the appeal before the RAA so also the revision petition before the Board. It is submitted that the Board has rightly held that illegalities committed having come to its notice, it cannot shut its eyes to such an illegal and without jurisdiction act of the Allotting Authority upheld by the Appellate Authority. 8. I have considered the rival submissions and perused the material on record. 9. Admittedly, the allotment and sale of Government land in IGNP area are governed by the Rules of 1975 which have been framed by the State Government in exercise of its powers conferred by Section 7 read with Section 28 of the Act of 1954. The small patch has been defined under Rule 2(xvi) of the Rules of 1975 as a piece of land measuring 5 bighas of irrigated land and 10 bighas of un-irrigated land . As per second proviso to Rule 5 of the Rules of 1975, amongst the persons eligible for allotment of Government land for agriculture purpose , if a person is eligible for allotment of a small patch, such small patch shall be allotted to him only if it is available adjacent to his existing holding. The procedure for allotment of small patches of land in IGNP area is governed by Rule 14 of the Rules of 1975 VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 7 which is an exception carved out to the general allotment. The Rule 14 as it was existing at the relevant time when the allotment was made in favour of the petitioner reads as under:- “14. Allotment of small patch.-(1) 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 the highest prevailing market price for land of a similar soil class in the neighbourhood. (2) In cases there are more than one such tenant applying for allotment of the same small patch, allotment shall be made by drawal of lots amongst them. (3) The price of such small patch shall be payable by the allottee in five annual instalments, the first instalment being payable within a fortnight of the order of allotment. The due date in respect of the second and subsequent instalments shall be the date of the year corresponding to the date on which the allotment was made. Interest at the rate of 9 per cent per annum shall be charged in default of payment of an instalment on the due date: Provided that if such, small patch is allotted to a landless person to raise his holding to 25 bighas, the price and mode of payment shall be as prescribed in rule 17.” 10. Rule 14 has been amended time to time . Vide notification dated 22.9.88, which was published in the official gazette on 13.7.99, following proviso was added: “Provided if the tenant of the adjoining land falls to apply for the allotment of small patch, the allotting authority shall make arrangement for making allotment of such small patch to the tenure tenant of the same chak or of the adjoining chak.” 11. The present controversy relates to the allotment made in favour of the petitioner vide allotment letter dated 4.12.84 VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 8 therefore, the proviso added as aforesaid w.e.f. 13.7.89 has no applicability in the instant case. Therefore, as per the provisions of Rule 14 read with Rule 5 of the Rules of 1975 existing at the relevant time, the small patch of land i.e. measuring 5 bighas of irrigated or 10 bighas of un-irrigated land could have been allotted only to tenure tenants of the tenure land adjoining to such small patches of Government land. However, as per sub- rule(2) , if there were more than one such tenant applying for allotment of such small patch, the allotment was required to be made by drawal of lots amongst them. Therefore, it goes without saying that before the allotment of small patches of land, the availability of the land for allotment has to be notified and the applications for allotment have to be invited even for allotment of small patches of land in terms of the provisions of Rule 9 of the Rules of 1975. Obviously, before the conversion of the land from “Gair Mumkin abadi” and “Gair Mumkin Brick-kiln” if permissible under the law, the other tenure tenants could not have any knowledge about the availability of the land for allotment as small patches,therefore, in absence of any proper notice notifying the availability of the land for allotment , they could not have applied for allotment of the land. Thus, the procedure adopted by the Allotting Authority in allotting the small patches of land taking straight away the applications from VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 9 the petitioner ignoring the possible claim for allotment of other tenure tenants of tenure land adjoining to the small patches of land is ex facie de hors the Rules of 1975. 12. As noticed above, only small patch of land as defined under Rule 2 (xvi) of the Rules of 1975 could be allotted to the tenure tenants of tenure land adjoining to such small patch of land therefore, the Allotting Authority had no jurisdiction whatsoever to allot the lands in question which as per the revenue record were categorised as “Gair Mumkin Abadi” and “Gair Mumkin Brick-Kiln”. Moreover, the “land” as defined by Section 5 (24) of the Rajasthan Tenancy Act, 1955( in short “the Act of 1955” hereinafter) specifically excludes abadi land from the category of the land to be dealt with under the provisions of Act of 1955. Further, Section 16 (vi) of the Act of 1955 specifically prohibits the accrual of khatedari rights in the land acquired or held for public purpose or a work of public utility. The land set apart for abadi is a land for public purpose and not available for allotment A fortiori, there was absolutely no proposal mooted for conversion of the land from “Gair Mumkin Abadi” and “Gair Mumkin Brick-kiln” to agriculture purpose. The learned counsel for the petitioner has not been able to point out any provision which enables the Allotting Authority to convert the land from abadi to agriculture purpose. It is really strange that while VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 10 converting the land set apart for “abadi” and “brick-kiln” to agriculture purpose, no finding is recorded by the Allotting Authority that the lands in question are culturable lands. To the contrary, it has come on record that the buildings are existing on the land in question but the same are not used for last two years. Further, it has been categorically mentioned in the order that the land is situated nearer to abadi then, there was absolutely no occasion for the Allotting Authority to convert the land for agriculture purpose ignoring its beneficial use for abadi purpose. To say the least, the conversion of the land use by the Allotting Authority in perfunctory manner while considering the applications of the petitioners for allotment of the land as small patches smacks mala fide and favoritism which cannot be countenanced by this court. 13. In Mithu Singh's case (supra), relied upon by the learned counsel for the petitioner , this court has taken the view that where a “Gair Mumkin land” was converted into “barani” and allotted to the petitioner therein in absence of fraud, manipulation or collusion in allotment, the cancellation of allotment by way of reference after a lapse of more than 25 years would be illegal and void. In the instant case, the validity of the allotment made in favour of the petitioner vide order dated 4.12.84 was assailed by VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 11 the respondent no. 5 by way of appeal in the year 1985 and the appeal was rejected by the Appellate Authority vide order dated 28.4.86 and immediately thereafter, a revision petition was preferred by the respondent no. 5 before the Board which has been allowed by the order impugned dated 6.8.93. Therefore, by no stretch of imagination , the challenge to the allotment made in favour of the petitioner in the instant case can be said to be belated. Thus, the ratio of the decision relied upon by the learned counsel for the petitioner has no applicability whatsoever to the facts of the present case. 14. It has come on record that the respondent had preferred the appeal against the allotment order stating that he has purchased the land comprising Murabba No. 46/2 and therefore, they are entitled for allotment of the disputed land of Kila No. 6 and 14 to 16 . In this view of the matter, it cannot be said that the respondent no. 2 had no locus standi to maintain the appeal or revision. Moreover, this court is in agreement with the view taken by the Board that the gross illegality committed in making allotment having come to the notice , the Board cannot shut its eyes to illegal and without jurisdiction act of the Allotting Authority which was upheld by the Appellate Authority in circumvent manner. Thus, the revisional power exercised by the Board in setting aside the allotment made by the Allotting VAIDBAKASH VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 3528/96) 12 Authority acting without jurisdiction cannot be faulted with and does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 15. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. Aditya/-