CW 5603/99 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Civil Writ Petition No.5603/1999 Narendra Kumar Versus Board of Revenue & Ors. 2-Civil Writ Petition No.362/1999 Kamlesh Kumar Versus Board of Revenue & Ors. Date of Order ::: 18 /03/09 Hon'ble Mr. Justice Ajay Rastogi Mr. N.K.Maloo, for petitioner (CWP-362/99) Mr. Gopal Krsn Garg, for respondent No.5 (CWP-362/99) Mr. Mahendra Goyal, for petitioner (CWP-5603/99) Mr. Ajeet Bhandari, for respondent No.5 (CWP-5603/99) Mr. KS Chandel, Dy. Govt. Advocate for State At request, these petitions were heard together and are being disposed of by this order since common question of law is involved. Factual matrix – CWP-5603/1999 Instant petition has been filed by petitioner assailing orders dt.19/08/98 (Ann.7) of the Board of Revenue, dt.28/03/94 (Ann.16) of Revenue Appellate Authority, Kota and dt. 28/09/92 (Ann.15) of Collector, Bundi. Petitioner was allotted agricultural land measuring Six bighas in Khasra No.7 (old (New No.17) situated in village Chhatarpura (Bundi) in open auction under Rajasthan Colonization Conditions, 1955 vide certificate dt.01/06/67 (Ann.1) – in pursuance whereof, Patta was issued to him on 31/01/76 (Ann.2) and mutation was also made in his favour on 01/02/76 (Ann.3) besides pass book issued by Revenue CW 5603/99 //2// department alongwith a trace map (Ann.4). As alleged, in settlement proceedings, Khasra No.7 was given new No.17; as such Khasra No.17/2 has been shown in the pass book. Total land of Khasra No.17 (New) was 16 bighas 10 biswas as shown in order dt.13/11/79 (Ann.5A), whereby Collector, Bundi in exercise of powers conferred U/s 92(1) of Rajasthan Land Revenue Act, 1956 (“Act, 1956”) set apart One bigha of land out of Khasra No.17 of village Chhatarpura for the purposes of small scale industries and vide subsequent order dt.18/12/79 (Ann.5) allotted one bigha of land to Narendra Kumar Tewari (respondent No.5) in exercise of powers conferred U/r 2(b)(1) of Rajasthan Industrial Area (Allotment) Rules, 1959 (“Rules, 1959”). It appears that petitioner was aggrieved because according to him, respondent No.5 herein was allotted One bighas of land under orders of Collector , which was overlapping his land which petitioner purchased in open auction (supra); and thus he challenged order of allotment made in favour of respondent No.5 under Rules, 1959 before Revenue Appellate Authority, which after hearing the parties disposed of the appeals vide order dt.10/03/80 (Ann.6) against which petitioner preferred 2nd appeal before Board of CW 5603/99 //3// Revenue with the grievance that apart from what has been observed by revenue appellate authority in its order dt.10/03/80 (Ann.6), Tehsildar should be directed to ensure that the land allotted to respondent No.5 should not form part of his land (petitioner's) and at the same time, it was also questioned that respondent No.5 (allottee) violated terms & conditions of his land allotment, as well. Second appeal was dismissed vide order dt.04/08/81 (Ann.7) while observing ad infra: “The Revenue Appellate Authority's order in this respect is very clear, that the land allotted to the respondent should not coincide with any of the land previously allotted to the appellant. Thus there is no force in this second appeal. At the same time, in the interest of justice, the attention of the Tehsildar is drawn to the R.A.A.'s order and he is directed to ensure that the possession which is given to the respondent of land allotted by the Collector on 18/12/79 should not form part of the land in the long possession of the appellant. The Tehsildar will ensure this personally and should not leave the matter to be settled by the patwari.” It appears that a complaint was made by petitioner to the Government with respect to the allotment of land in favour of respondent No.5, CW 5603/99 //4// which was examined by District Vigilance Committee and on its recommendations made (Ann.8), order of allotment dt.18/12/79 was cancelled by Collector vide order dt.07/10/82 (Ann.9) – against which respondent No.5 preferred appeal before Revenue Appellate Authority which was dismissed on the premise that it did not have any jurisdiction vide order dt.26/09/83 (Ann.10) – against which second appeal was preferred but that too met with the same fate vide order dt.23/01/89 (Ann.11) of the Board of Revenue. It is relevant to mention that civil suit was also filed by respondent No.5 but was withdrawn as is evident from order dt. 02/06/92 (Ann.13). However, one Om Prakash (respondent No.5 in CWP-362/1999) who was also allotted agricultural land like respondent No.5, raised his grievance before Revenue Minister against order of cancelling the allotment by Collector, Bundi. Revenue Minister in exercise of revisional powers U/s 83 of Land Revenue Act allowed application and while setting aside order of cancelling allotment having been passed in violation of principles of natural justice, directed the Collector to examine the matter afresh and after due compliance of principles of CW 5603/99 //5// natural justice, orders may be passed in accordance with law. It appears that Collector, Bundi in the light of decision of revisional authority, reconsidered the matter and revoked order of cancelling allotment of land and vide order dt.28/09/92 (Ann.15) restored allotment order dt.18/12/79 and against order of revocation (Ann.15), petitioner preferred appeal before Revenue Appellate authority which was dismissed vide order dt.28/03/94 (Ann.16) and second appeal against it too was dismissed by Board of Revenue vide order impugned dt.19/08/98 (Ann.17). Hence instant petition. However, both, Board of Revenue & revenue appellate authority while dismissing appeals preferred by petitioner, observed that basic dispute was with respect to the land – whether it was overlapping each other or not and accordingly directed the revenue authorities as to whether the land allotted to respondent No.5 is in any manner overlapping the land measuring Six bighas of Khasra No.17/02 allotted to petitioner through public auction, for which demarcation of land should be made by Tehsildar who may independently inquire into matter and appropriate orders may be passed by the authority in accordance with law. Extract of CW 5603/99 //6// order dt.19/08/98 (Ann.17) reads ad infra: “8- अिभभाषक अपीलान् ट का यह तकर् तो सही है िक उसके पक्ष में आबन् टन वषर् 1966 का है, जो बाद में ूत् यथȸ को आबिटत नहीं की जा सकती थी, मगर खसरा नम् बर 7 व 17/2 का रकबा बडा है, उसमें से कौन सा आंबटन सही हआ है एवं कौन सा गलत है ु , इस बाबत सभी तथ् य भूिम का नाप चौप होने के बाद ही ः पं ट हो सकेगे, इसिलए ूकरण् ा को जो ूित ूेिषत िकया गया है उसमें कोई कानूनी ऽुिट नहीं है, िजससे के अपील के ः तर पर उसमें हः तक्षेप िकया जावे " Factual matrix – CWP-362/1999 Kamlesh Kumar (petitioner) was allotted agricultural land measuring 3 bighas 11 biswas out of Khasra No.7 (old-New No.17/1) in public auction – possession whereof was handed over to him on 16/05/1966 (Ann.1); Patta granting khatedari rights upon full payment was issued on 31/01/76 (Ann.2) besides mutation duly opened in revenue record in his favour on 01/02/76 (Ann.3) while issuing pass book (Ann.4) alongwith trace map. Out of Khasra No.17 (supra), Collector, Bundi in exercise of powers conferred U/r 2(b) (1) of Rajasthan Industrial Area (Allotment) Rules, 1959 (“Rules, 1959”) allotted Two bighas of land situated in Chhatarpura to Om Prakash Sharma (respondent No.5) vide order dt.22/01/81 CW 5603/99 //7// (Ann.5) - against which petitioner through his mother made a complaint that the land allotted to respondent NO.5 is overlapping the land of petitioner, and the complaint was finally forwarded to the District Vigilance Committee- as per its recommendations (Ann.R.6), allotment of land in favour of respondent-5 was cancelled vide order dt.07/10/82 (Ann.7) it is to be mentioned that neither the District Vigilance Committee nor the Collector before cancelling allotment ever afforded opportunity of hearing to respondent No.5 and the order which certainly causes prejudice was passed behind his back and in violation of principles of natural justice – against which respondent-5 preferred civil suit and at the same time, also preferred appeal to revenue appellate authority but his appeal was dismissed while holding being not maintainable and second appeal preferred before the Board of Revenue also met with the same fate. However, respondents filed revision U/s 83 of Land Revenue Act before competent authority (Minister) against order of cancellation dt. 07/10/82 (Ann.7); wherein the revisional authority vide order dt.03/02/92 (Ann.14) while setting aside order of cancellation (Ann.7) being in violation of principles of natural CW 5603/99 //8// justice, directed the authority to decide the matter after affording an opportunity of hearing in accordance with law – in the light whereof, respondent NO.5 withdrew his civil suit on 02/06/92 and in compliance of directions of Revenue Minister (Ann.14), learned Collector vide order dt.07/10/92 (Ann.15) revoked earlier order of cancellation dt.07/10/82) and restored order of allotment dt.22/01/81 in favour of respondent NO.5 – against which petitioner preferred appeal before revenue appellate authority but the same was dismissed vide order dt.23/03/94 (Ann.16) and the same was fate of second appeal preferred by petitioner before Board of Revenue vide order dt.19/08/98 (Ann.17) but while rejecting the appeal, the Board of Revenue observed ad infra: - 6- यह िबन् द तो आराजी का नाप ु -चौप करने के बाद ही िनिँ चत रूप से िनिणर्त िकया जा सकेगा िक पूवर् आराजी खसरा नंबर 7 का नया खसरा नं0 17 बना, उसमें िकस-िकस आराजी का िकतना िकतना रकबा समायोिजत िकया गया है, क् योंिक नये खसरा नं0 का रकबा 16 बीधा 10 िबः वा बताया जाता है एवं इस रकबे में से अपीलाट तो 3 बीघा 11 िबः वा एवं ूत् यथȸ 2 बीघा ही मांग करता है, जो अलग -अलग आबन् टन आदेशो के आधार पर है, तो कौन सी भूिम पूवर् में आबिन् टत की गयी, िकस भूिम का कब् जा िदया गया, नक् शे की क् या िः थित है, यह िबन् द जब तक पूणर् रूप से आराजी का ु नाप-चौप नहीं हो जाता, ः पं ट नहीं हो सकेगे, इस िबन् द पर राजः व अपील ु ूािधकारी ने जो िवः तुत आदेश पाǐरत िकया है, उससे मɇ पूणर्त: सहमत हंू एवं अब िƮतीय अपील के ः तर पर उन् हें दोहराना उिचत नहीं समझता . 7- फलः वरूप अपील अपीलान् ट सारहीन होने से खाǐरज की जाती है " CW 5603/99 //9// Counsel for petitioners submits that respondent No.5 (Narendra Kr. Tewari) never preferred revision before Revenue Minister inasmuch as appeal preferred by him against order of cancellation of his allotment before revenue appellate authority was dismissed for want of jurisdiction, and no adjudication had taken place in the civil suit; and thus under the garb of order dt.03/02/92 of the revisional authority (Minister), orders dt.07/10/92 passed by the Collector, Bundi in revoking cancellation and restoring order of allotment dt.22/01/81 in case of respondent No.5 in both the instant petitions were bad in law. Counsel further submits that once petitioners were allotted agricultural land (6 bighas & 3 bighas & 11 biswas respectively) in open auction and possession whereof was handed over in their favour, no powers were vested with respondents authority to set apart land out of their allotted land for further allotment in favour of both the respondent No.5, which was contrary to scheme of Rajasthan Industrial Area (Allotment) Rules, 1959. Counsel further laid much stress that since respondent No.5 failed to comply with terms & conditions of allotment; therefore, even otherwise their allotment of land was deserves CW 5603/99 //10// to be cancelled and both, revenue appellate authority as well as Board of Revenue have failed to consider the documents made available to petitioners at the time allotment of their land in open auction were first required to be set apart and only thereafter if land is left and available for further allotment out of New Khasra NO.17, that alone could have been considered for allotment to respondent No.5 but under the garb of present orders impugned, it is left for Tehsildar to make inquiry afresh while both the Courts below have failed to record finding as to what would be the effect of allotment made in favour of petitioner in open auction long back vis-a-vis subsequent allotment of land in favour of respondents no.5; and in what manner, their respective claims can be taken note of by Tehsildar while making inquiry into the matter. Counsel for petitioner (in CWP-362/99) further submits that order dt.07/10/92 passed by Minister (revisional authority) in exercise of powers U/s 83 of Land Revenue Act even if was not challenged before courts-below, still petitioner can question order of revisional authority in instant petition; and further submits that revisional authority has not CW 5603/99 //11// afforded opportunity of hearing to petitioner while passing its order impugned dt.07/10/92; and that apart, once respondent No.5 withdrew the suit without seeking any liberty, that tantamounts to a decree and revisional authority was not competent in the facts of instant case in passing order impugned dt.07/10/92; in such circumstances, very order passed by Collector revoking cancellation of allotment in the light of order of revisional authority is not legally sustainable. Counsel further submits that respondents were under obligation to restore possession of the land sold to petitioners as per their trace map annexed with pass book and once authentic map (Naksha Lattha) was prepared as per statutory provisions, and being never altered/modified as is evident from Ann.21, p.123-CWP-362/99, trace map filed by respondents are unauthorised and contrary to provisions of the Act. In their reply, both the respondents NO.5 inter-alia averred that petitioners were allotted agricultural lands in Khasra No.17/1 & 17/2 on their having purchased in open auction while present respondents No.5 were allotted in Khasra No.17/4 & 17/6 and as per trace map, which was made available to them at the time of CW 5603/99 //12// issuing Patta whereof, there is government land in between, therefore, question of their land being over-lapped each others is ruled out through their trace maps. However, Counsel for respondents No.5 submits that in terms of orders of the revenue appellate authority & Board of Revenue, the Tehsildar made inquiry and submitted its report dt.03/03/99 (Ann.R.5/5) while observing that the land allotted to petitioner was out of Khasra NO.17/02 while respondents No.5 were allotted agricultural land out of Khasra No.17/04 and in between these Khasra, there is a government land; there cannot be any overlapping of land allotted to petitioners & respondents No.5, as the case may be. Counsel submits that respondent No.5 (Narendra Kumar Tewari) has established factory after taking loan from Rajasthan Financial Corporation, and is a running industry. Counsel further submits that allotment of land made in favour of respondents No.5 was cancelled vide order dt.07/10/82 without affording opportunity of hearing, and action of Collector, Bundi in cancelling their allotment being in violation of principles of natural justice, and respondent NO.5 made representation to the authority for CW 5603/99 //13// revoking cancellation which was considered and cancellation was revoked by authority and consequently, it certainly restored back the allotment dt.22/01/81; in such circumstances since their action was bad in law, no error was committed in revoking cancellation and restoring allotment of land in favour of respondent NO.5 alongwith possession. Further, order of cancellation being arbitrary action of respondents State, if restored that would be nothing but to perpetuate illegality, which this Court would not like to restore in its equitable jurisdiction U/Art.226 of the Constitution. Counsel for respondents No.5 further submits that revenue appellate authority and Board of Revenue have not finally rejected submissions of petitioners and since these are factual disputes as to which part of land was allotted to whom either in auction or by allotment in exercise of powers under Rules, 1959, for which Tehsildar has been directed to inquire into the matter after taking into consideration the material on record, which certainly relates to documents made available to respective parties either at the time of auction or otherwise; and thus it has been left open for the competent authority to examine in accordance CW 5603/99 //14// with law; even this Court would not like to examine such disputed facts requiring roving inquiry and thus, no error has been committed by revenue appellate authority and Board of Revenue while remanding the matter under orders impugned warranting interference. That apart, Counsel for respondent No.5 further submits that petitioners raised dispute that land was acquired by State Government – documents in support whereof was also placed on record to justify the acquisition of land, therefore, petitioners would not hold any interest over the land in dispute. At last in rejoinder, Counsel for petitioners tried to clarify the position as regards acquisition that it was de-acquired by the Government. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. Facts are almost not in dispute that petitioners were allotted agricultural land out of old Khasra No.7 and new Khasra No.17/02 (Six bighas) & No.17/1 (3 bighas, 11 biswas) of village Chhatarpura in public auction – in pursuance whereof, Patta was issued besides mutation being made in their favour in revenue record and they CW 5603/99 //15// were given necessary documents in respect of allotted land including pass book and trace map attached thereto demarcating land – possession whereof was also handed over to them. However, later on, the land was set apart by Collector out of new Khasra NO.17 of village Chhatarpura (Bundi) in exercise of powers U/s 92(1) of Land Revenue Act for the purposes of small scale industries and vide order dt.18/12/79,one bigha of land was allotted in favour of respondent No.5 (Narendra Kumar Tewari) while Two bighas of land was allotted in favour of respondent No.5 (Om Prakash) vide order dt.22/01/81 in in exercise of powers conferred U/r 2(b)(1) of Rajasthan Industrial Area (Allotment) Rules, 1959. It is also not in dispute that complaint allegedly made by petitioners regarding land allotted to respondents No.5 was sent by the authority for being examined by District Vigilance Committee, on whose recommendations made, the allotments dt.22/01/81 (Om Prakash) & dt.18/12/79 (Narendra Kr. Tewari) were cancelled by Collector, Bundi vide order dt.07/10/82. It remains uncontroverted and is relevant to observe that neither District Vigilance committee nor Collector have ever afforded opportunity of hearing to respondents No.5 while CW 5603/99 //16// cancelling their allotment of land.; in such circumstances,if an error being pointed out and corrected by Collector at a later stage, while revoking cancellation and restoring allotment, certainly action of respondents cannot be said to be bad in law; while contrarily, it was expected from the authority since action of cancellation being per se bad and in violation of principles of natural justice, allotment was supposed to be restored back as it was existing prior to its cancellation. Against the orders revoking cancellation and restoring allotments of land in favour of respondents NO.5, petitioners preferred appeal to the revenue appellate authority and later on to the Board of Revenue, but both the authority have not interfered with as regards restoration of allotments of land in favour of respondents No.5; obviously because cancellation, itself was in violation of principles of natural justice, inasmuch as it remained uncontroverted that cancellation was made by Collector, Bundi, on recommendations of district vigilance committee, by whom no opportunity was ever afforded to the allottees (respondents No.5) and if the same has been re-called or revoked and allotment was restored back by Collector vide subsequent CW 5603/99 //17// order, this Court does not find any error in restoration of allotments of land in favour of allottees concerned. Moreover, Board of Revenue and revenue appellate authority have safeguarded interest of petitioners while disposing of appeals while observing that Tehsildar may hold inquiry about allotment of land made to petitioners in open auction taking note of letter of possession, pass books and trace map having been made available at the relevant time to them and at the same time, it may also take note of letter of allotment and documents made available to respondents NO.5 and after holding an independent inquiry, may make appropriate demarcation of land of petitioners and so also of respective allottees (respondent No.5). These being disputed questions as to which part of land was allotted to whom and is such allotted land in any manner overlaps the land allotted to petitioners through auction; that can certainly be examined by Tehsildar on the basis of revenue record and so also relevant documents made available to respective parties either at the time of public auction or allotment as the case may be. This Court does not find any substantial manifest error, which may call for interference. CW 5603/99 //18// As regards submission made by Counsel for petitioners that respondents did not prefer any revision petition and the appeal preferred was dismissed, may be for want of jurisdiction, and civil suit was withdrawn in absence of any adjudication, order of revoking cancellation and restoring possession of land was bad in law, it is of no substance for the reason that when action of cancellation, itself, was per se arbitrary and in violation of principles of natural justice, which has not been controverted by petitioners, as well, certainly apparent error committed by the authority, if noticed subsequently, and illegality has been revoked; on the representation or on a revision at a belated stage, action of the authority unless violates provisions of law revoking cancellation of their allotment of land cannot be said to be bad in law and the respondent-State has not committed any error in restoring allotments of land in favour of respondents No.5. As regards submission made by petitioners' Counsel that respondents NO.5 (allottees) violated certain terms & conditions of allotment of land in their favour, it is of no substance for the reason that this was not the subject matter of inquiry or dispute before CW 5603/99 //19// the revenue authority at any stage and that apart, if that be so, it was always open for the allotting authority to examine and such an inquiry cannot be made by quasi judicial authority in these revenue proceedings. Submission made by Counsel for respondent No.5 that after impugned orders being passed by Board of Revenue, the Tehsildar conducted inquiry and submitted report dt. 23/03/99 (Ann.R.5/5-CWP-5603/99) is also of no substance for the reason that inquiry was made behind back of parties who are affected and there is no material placed by either party or by State Government by which it can at all be inferred about material available on the basis of which report (Ann.R.5/5) was submitted by the Tehsildar. However, under orders impugned, matter has been remanded to the Tehsildar to inquire but this Court would like to observe that since petitioners were allotted land in public auction much before allotment made in favour of respondents No.5 by Collector, in exercise of powers under Rules, 1959, the Tehsildar may afford opportunity of hearing to respective parties who may be permitted to submit their documents which were made available to them at CW 5603/99 //20// the time of public auction/allotment, as the case may be, and taking note of their respective material, would give precedence to the documents made available to the petitioners (auction purchasers); and while holding inquiry, Tehsildar may also look into as to whether land allotted to the allottees (respondentNo.5) in any manner over-laps the land alloted to petitioners (auction purchaser) and if in any manner, it over-laps, he has to give precedence and to restore possession of land to the auction purchasers in relation to subsequent allottees (respondents No.5) to whom the land was allotted under Rules, 1959 at a later stage. Both the parties are directed to appear before Tehsildar concerned on April 20, 2009. While upholding orders impugned in instant petitions, these writ petitions stand disposed of with the observations (supra). No order as to costs. (Ajay Rastogi), J. K.Khatri/p.20/5603CW99Rsrd18Mar(2).doc