1 1 S.B. CIVIL WRIT PETITION NO.7766/2009 (Het Ram Vs. Board of Revenue & ors.) Date of Order :: 20th August 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Anil Kumar Singh for the petitioner. .... BY THE COURT The petitioner Het Ram, having allegedly been allotted 25 bighas of agricultural land as comprised in Murraba No.11/7 at Chak 2 ZWM by the order dated 25.02.1986, chose to prefer an appeal bearing number 115/1999 before the Revenue Appellate Authority, Bikaner ('the RAA') seeking to question an order dated 03.02.1984 whereby the said 25 bighas of land in Murraba No.11/7 had previously been allotted to the respondent No.4 Murlidhar. The petitioner asserted before the RAA that the land in question had been allotted to him on 25.02.1986; that he was in possession thereof; and that he had already deposited certain installments. The petitioner contended that the respondent Murlidhar had neither obtained possession of the land in question nor deposited the installments and hence, the impugned order dated 03.02.1984 pertaining to his allotment was liable to be set aside. The petitioner further suggested before the RAA that on 21.08.1987, the allotting authority did make an order cancelling the allotment of the respondent No.4 2 although such an order was not carrying the signatures of the Presiding Officer. The petitioner also prayed for condonation of delay in filing the appeal with the submissions that he came to know about the impugned order of allotment of respondent No.4 only on 21.11.1999 upon visiting the Tehsil Office for deposit of the amount. The Revenue Appellate Authority, Bikaner, by its order dated 26.04.2002 (Annex.5), though condoned the delay in filing the appeal but then, proceeded to hold the appeal incompetent for the reason that the petitioner was not a party to the proceedings before the subordinate authority and did not seek leave to appeal. On merits too, the learned RAA ruled against the petitioner with the observations that though the land in question was purportedly allotted to him on 25.02.1986 but the same had already been allotted to the respondent No.4 on 03.02.1984. Aggrieved by the aforesaid order dated 26.04.2002, the petitioner preferred a revision petition before the Board of Revenue for Rajasthan, Ajmer ('the Board'). The learned Member of the Board though observed that the RAA should not have rejected the appeal as incompetent once the same had been taken up for consideration on merits but then, noticed the fact that the alleged cancellation order dated 21.08.1987 was not carrying any signatures. The learned 3 Member observed that as on 25.02.1986, there was in existence the allotment order dated 03.02.1984 as made in favour of the respondent Murlidhar; and held that without cancellation of such previous allotment, the same land could not have been allotted to the petitioner. The learned Member, therefore, endorsed the views of the RAA on merits and rejected the revision petition by the impugned order dated 25.03.2008 (Annex.6). By way of this writ petition, the petitioner seeks to question the orders aforesaid as passed by the RAA and by the Board; and, in the averments as taken in paragraph-9 of the writ petition, while contending that the respondent No.4 Murlidhar having never challenged the order dated 21.08.1987, the allotment as made in his favour in the year 1984 stood cancelled, the petitioner has stated the grievance that in the appeal filed by him which, according to the petitioner, 'should not have at all been filed', his own allotment has been declared illegal. The petitioner has filed this writ petition against the order dated 25.03.2008 only on 06.07.2009 and in relation to delay, the petitioner has suggested the reasons that he is a very poor person; that he has not been provided irrigation facility; that he is in possession of the land for the last more than 25 years but is in the litigation for the last more than two 4 decades; and, for his father suffering from heart disease, he was required to visit the doctors very frequently. The grounds have been suggested in the writ petition that the allotment had wrongly been made in favour of the respondent No.4 on 03.02.1984 on the basis of an application made in the year 1975 that too when he did not belong to Bikaner district and rather made the application for allotment in Sriganganagar district. It is also submitted that as per the order-sheet dated 21.08.1987, the allotment of the said respondent had been cancelled for his failing to take possession of the land in question. It is submitted that merely for want of signatures on the said order-sheet dated 21.08.1987, the petitioner could not be penalised as, according to the petitioner, such signatures could have conveniently been erased or it was a matter of bona fide mistake or of investigation. It is further submitted that the respondent No.4 was entitled for 18 bighas of land that could be allotted at any other place; and the petitioner deserves not to be disturbed for being in cultivatory possession of the land in question for the last more than 25 years. It is also contended that the petitioner stood in priority for allotment and the allotment in any case could not have been in favour of the respondent No.4. It is yet further submitted that under Rule 13 (8) of the Rajasthan Colonisation 5 (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 ['the Rules of 1975 hereafter], the allotment of the respondent No.4 stood cancelled for his failure to turn up and to take possession of the allotted land within three months. Reference has also been made to an order passed by this Court in S.B.Civil Writ Petition No.2265/1997: Triloka Ram Vs. Board of Revenue and others, decided on 14.05.2009 with the submissions that in the light of the said decision, the impugned order deserves to be quashed. Apart from the aspect of delay where this petition has been filed more than 15 months after passing of the impugned order by the Board on 25.03.2008 and where the cursory suggestions as made in the petition about the cause of delay do not inspire confidence, this Court finds the case of the petitioner bereft of merits. Admitted position it is that the land in question had been allotted on 03.02.1984 to the respondent No.4 Murlidhar and the same land was allegedly allotted to the petitioner by the order dated 25.02.1986. Existing the allotment in favour of the respondent No. 4 that had not been cancelled, an order allotting the same land to the petitioner could not at all have been made on 25.02.1986. The suggested order as drawn on 21.08.1987 on the file pertaining to the respondent No.4 6 (Annexure-2 – at page 29 of the paper-book) could not have been relied upon and could not have been taken as a valid order for want of signatures of the authority concerned. The learned Member of the Board has rightly pointed out that it were not an order at all; and it was not borne out as to who had drawn such order-sheet and on whose directions and with whose permission ? Even if for the sake of consideration, the said non- existent order dated 21.08.1987 is looked at, noticeable it is that thereby the allotment of the respondent was sought to be cancelled on the alleged grounds that he had not obtained the possession and the allotment order; and that the land in question had been allotted in favour of the petitioner Het Ram who was allegedly in possession. The said non-existent order, even otherwise, remains illegal to the core. The order of allotment as made in favour of the petitioner on 25.02.1986 could not have been made the basis of cancellation of the allotment previously made in favour of the respondent Murlidhar on 03.02.1984. On the other aspects pertaining to the alleged defaults on the part of the allottee Murlidhar, it is not borne out if the said allottee was at all served with any notice before drawing an order adverse to him. Even if there was any circumstance wherefor the allotment as made in favour of the allottee Murlidhar could have been cancelled per 7 Rule 13 (8) of the Rules of 1975, an order against him could not have been made without notice. For all practical purposes, it is apparent that at the time when the land in question was sought to be allotted to the petitioner Het Ram, there was in existence the allotment as made on 03.02.1984 in favour of the respondent Murlidhar. In the given fact situation, the allotment of the petitioner could not have been countenanced; nor the petitioner could have been acceded a right to question the allotment of the respondent by way of appeal. The appeal had rightly been rejected by the learned RAA and the learned Member of the Board has not committed any jurisdictional error in rejecting the baseless revision petition preferred by the petitioner. The learned counsel for the petitioner has referred to the decision in Triloka Ram's case (supra). The said decision does not support the case of the petitioner and the essential considerations therein rather operate against the proposition of the petitioner. In the said case, the allotments as made in favour of the petitioners were cancelled on the ground that the land in question had been allotted to the respondent No.4 Smt.Barji Devi. It was found that such cancellation was made without opportunity of hearing to the petitioners who had to contend that the said respondent could not have been allotted the land in question as small patch at all and that her allotment 8 was liable to be cancelled for failure to deposit the entire amount and to take possession of the land. Viewed in the light of such contentions as available to the said petitioners, the Court held that prejudice had been caused to them for denial of opportunity of hearing before cancellation. The Court also pointed out that no allotment made is to be cancelled without giving opportunity of hearing to the person affected and said,- ''Thus, had the petitioners granted the opportunity by the Allotting Authority before cancellation of their allotments, then they could have legitimately contended that the small patches of the lands in were were not open to be allotted to the respondent Smt.Barji who does not possess any tenure land adjoining to the small patches of lands in question. That apart, the petitioners were also entitled to contend before the Authority that since Smt.Barji who was allotted the land way back on 15.6.82 has failed to deposit the entire amount due and has not taken care to take possession of the land for all these years, her allotment is liable to be cancelled in view of the provisions of Rule 13 (8) of the Rules of 1975. Thus, by no stretch of imagination, it can be said that no prejudice has been caused to the petitioners on account of the opportunity of hearing being denied to them. Moreover, Rule 21 of the Rules of 1975 specifically provides that no allotment made shall be cancelled without giving an opportunity of hearing to the person affected therefore, the order passed by the Allotting Authority cancelling the allotment made in favour of the petitioners without affording of hearing to the petitioners is ex facie illegal and null and void. The ratio foregoing operates rather against the petitioner. It has not been shown if the respondent Murlidhar was at all served with a notice and was afforded opportunity of hearing before drawing of the order-sheet dated 21.08.1987 that does not bear any one's signatures; nor any other valid order has been shown whereby the allotment made in favour of the respondent Murlidhar was cancelled after adopting due 9 proceedings in law. The result is apparent that the allotment as made in favour of the respondent was not cancelled by a legal order; and for want of specific order of cancellation of allotment as already existing, the land could not have been allotted to the petitioner. The petitioner, though having consciously chosen to agitate the matter in appeal and having lost, has gone to the extent of suggesting in this petition that the appeal ‘should not have at all been filed' ! Suffice is to say on this stance of the petitioner that it were his choice to prefer the appeal and the revision petition but when the facts appeared before the RAA and the Board, they could not have simply ignored such facts nor could have passed any order contrary to law. The RAA and the Board cannot be faulted in having passed the appropriate orders as required on the facts and in the circumstances of the case. True it is that the allotment as allegedly made in favour of the petitioner was not as such taken up for cancellation, but it appears that in a pre-emptive move, the petitioner himself preferred the appeal seeking to question the previous allotment of the respondent No.4. The petitioner’s challenge to the said previous allotment could have been considered only upon existence of some legal right in the petitioner and hence, the question of validity of his own 10 alleged allotment was germane to the issue at hands before the RAA and the Board. The petitioner having consciously invited decision on the relevant aspects including legality and validity of his allotment, cannot be considered to be a person against whom any order has been passed without opportunity of hearing. There is no question of any prejudice having been caused to the petitioner if the learned appellate authority and the revisional authority have returned the adverse findings after the same were invited by himself. Viewed from any angle, the illegal allotment as purportedly made in favour of the petitioner could not have been countenanced. The impugned orders appear to be in accord with law; and cannot be said to be suffering from any jurisdictional error nor could be said to be leading to failure of justice. The writ petition remains bereft of substance and is, therefore, dismissed summarily. (DINESH MAHESHWARI), J. MK