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Rajasthan High Court · body

1998 DIGILAW 603 (RAJ)

Dalpat Singh v. Board of Revenue for Raj. Ajmer

1998-04-28

V.G.PALSHIKAR

body1998
Honble PALSHIKAR, J.–By this petition, the petitioners have challenged the orders passed by the Revenue Authorities cancelling the allotment of land made in favour of Bhanwar Kanwar wife of Chhel Singh Rajput. (2). Facts giving rise to this petition stated briefly are that on 6.6.1962, 10 bighas of land was allotted to Smt. Bhanwar Kanwar in village Gura Mehkaran, Tehsil, Kharchi on the basis that she was a landless person. This land was sold by her by a registered sale-deed dt. 24.12.72 to the present petitioner Dalpat Singh S/o Jorawar Singh. Proceedings were thereafter, taken up for cancellation of this land on the ground that the allottee Smt. Bhanwar Kanwar was not a landless person on the date of allotment as her husband Chhel Singh was recorded owner of 32.5 bighas of land in Village Gura Sursingh. The Tehsildar, Kharchi therefore, recommended the Collector, Pali that the allotment in favour of Bhanwar Kanwar be cancelled. The Collector thereafter proceeded to cancel the allotment in favour of Bhanwar Kanwar on this ground. The order of Collector was challenged in appeal before the Revenue Appellate Authority, Jodhpur. The Appellate Authority decided the appeal on 31.3.79 and confirmed the cancellation on the ground that Chhel Singh, husband of Bhanwar Kanwar, was holding 32 bighas of land and therefore, she was not landless person as contemplated by the Rules. The appellate order was confirmed by the Board of Revenue by its order dt. 6.12.85. All these orders are therefore, challenged in this petition on the ground that all the orders are illegal and without jurisdiction and therefore, liable to be quashed. (3). It is not disputed that the allotment in question is cancelled under the provisions of Raj. Land Revenue Allotment of Land (for Agriculture Purposes) Rules, 1970 by Rule 21 of these Rules, the Raj. Land Revenue Allotment of Land (for Agriculture Purposes) Rules, 1970 were repealed and the allotment made under those Rules could therefore, be revoked cancelled under Rule 14 of the Rules of 1970. The proceedings accordingly were initiated under Rule 14 of the Rules of 1970. (4). Land Revenue Allotment of Land (for Agriculture Purposes) Rules, 1970 were repealed and the allotment made under those Rules could therefore, be revoked cancelled under Rule 14 of the Rules of 1970. The proceedings accordingly were initiated under Rule 14 of the Rules of 1970. (4). The power of the Collector to cancel any allotment made by the Sub-Divi- sional Officer or a Tehsildar under the Rules repealed by Rule 21 of the Rules i.e. 1957 Rules can be exercised in the following contingency; (i) that the allotment has been secured through fraud or misrepresentation or (ii) the allotment has been made against the Rules or (iii) the allottee has committed breach of any of the conditions of allotment. It is then provided that no order of cancellation to the pre- judice of any person shall be made without giving such person an opportunity of being heard. The jurisdiction of the Collector to cancel any allotment can therefore, arise if any one of the three conditions referred to above is existing and a notice to show cause why the allotment should not be cancelled is given to the allottee or his successor in interest. If this is not so, the commencement of proceedings would be without jurisdiction. (5). It is proved on record that the sale in favour of the petitioner took place by a registered document in December, 1972. Proceedings for cancellation were taken up in 1976. The petitioner Dalpat Singh was, therefore, a successor in interest of Bhanwar Kanwar and was therefore, a person bound to be prejudiced by the or- der of cancellation of allotment to be made under Rule 14(4) of the Rules of 1970. An opportunity of being heard was liable to be given to him. (6). It is an admitted position that no such notice has been to given to Dalpat Singh. The entire proceedings are therefore, vitiated and are liable t be quashed on this ground alone which will permit the Collector to start the proceedings all over again after giving notice under Sec. 14(4) to the petitioner Dalpat Singh. However, Shri D.S. Shishodia, senior counsel appearing on behalf of the petitioner relying on several decision of this Court and the Supreme Court of India submitted that continuation of the proceedings and possible cancellation of the allotment itself causes grave injustice in the circumstances of this case. However, Shri D.S. Shishodia, senior counsel appearing on behalf of the petitioner relying on several decision of this Court and the Supreme Court of India submitted that continuation of the proceedings and possible cancellation of the allotment itself causes grave injustice in the circumstances of this case. According to the learned counsel, allotment was made in favour of Bhanwar Kanwar in 1962, she therefore, acquired Khatedari rights in July, 1972 on completion of 10 years. She has then executed sale-deed in favour of the petitioner after about 10 years and therefore, sale-deed is valid. Since 1972 till date i.e. for 26 years, the petitioner is continuing with the cultivatory possession of the land and has incured substantial expenditure in cultivating and developing the land to its present state and therefore, to permit proceedings would be cancelling of this allotment at this stage which would cause grave injustice to the petitioner. He therefore, prayed that the orders of cancellation being without jurisdiction are liable to be quashed without giving any further opportunity to the State to commence fresh proceedings after due completion of Rule 14(4) of the 1970 Rules. (7). Shri D.S. Shishodia, senior counsel appearing for the petitioner relied on decision of the Supreme Court reported in A.I.R. 1969 SC 1297 (1) wherein, it has been observed by the Supreme Court that even in cases where no limits were prescribed for revising order. Revising Authority must act within reasonable time and thereafter crystalisation of rights may take steps which will not warrant revision of an order even though, permissible. It would be worthwhile to note in extenso the observations of the Supreme Court in this regard; ``Although there is no period of limitation prescribed under Sec. 211 the power of the Commissioner to revise under Sec. 65 must be exer- cised in reasonable time must be determined by the facts of the case and the nature of order which is being revised. In this regard Sec. 65 itself indicates the length of the reasonable time within which the Commissioner must act under Sec. 211. Under Sec. 65 of the Code if the Collector does not inform the applicant of his decision on the app- lication within a period of three months the permission applied for shall be deemed to have been granted. In this regard Sec. 65 itself indicates the length of the reasonable time within which the Commissioner must act under Sec. 211. Under Sec. 65 of the Code if the Collector does not inform the applicant of his decision on the app- lication within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Rea- ding sections 211 and 65 together it is clear that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of permission. (8). Relying on this provision, it was argued by Shri D.S. Shishodia that allotment of land in favour of Bhanwar Kanwar was made in June, 1962 by the Tehsildar under the 1957 Rules of the allotment. The fact, if it exists, that Chhel Singh husband of Bhanwar Kanwar was a recorded owner of some agricultural land was within the knowledge of the Tehsildar or was such as could have been known within reasonable time of three years, the recommendations of the Tehsildar for cancellation of the allotment on this ground came up only in 1976 i.e. 14 years after allotment and three years after its sale to petitioner Dalpat Singh. According to the learned counsel, exercise of the jurisdiction under Rule 14 in such circumstances is unwarranted and unsustainable in view of the above referred dicta of the Supreme Court. (9). He then relied on another judgment of the Supreme Court reported in 1993 (2) Supreme Court 544 (Brij Lal vs. Board of Revenue & Ors.) (2). In this case, the cancellation of allotment was quashed by the Supreme Court. The allotment in fa- vour of the petitioner Brij Lal was cancelled on the ground that he obtained the temporary cultivation lease by misrepresentation regarding his age and therefore, the grant of permanent lease granted to him after 10 years of temporary cultivation was liable to be cancelled. The allotment in fa- vour of the petitioner Brij Lal was cancelled on the ground that he obtained the temporary cultivation lease by misrepresentation regarding his age and therefore, the grant of permanent lease granted to him after 10 years of temporary cultivation was liable to be cancelled. It was then observed by the Supreme Court that if there was an error in granting temporary cultivation, steps should have been taken for cancellation of the same, having failed to do so, the permanent lease cannot be cancelled after such a long lapse of time. Reliance was placed on the observations in para 5 which reads thus; ``5. It is not disputed before us that the appellant is in cultivating possession of the land since 1970. It would be travesty of justice to dispossess the appellant from the land which he is nourishing for over a period of two decades. (10). It will thus be seen, that in the present case also, the fact that the husband of Bhanwar Kanwar was holder of land, ought to have been within the knowledge of the State for years. Yet proceedings for cancellation of allotment were not taken up for 14 years. Admittedly since 1972, Dalpat Singh is in cultivating possession of this land now to permit of commencement of proceedings for cancellation after 26 years for such cultivation would also be travesty of justice and therefore, the proceedings should not be allowed to recommence. (11). Reliance was then placed on another judgment of the Supreme Court reported in Tej Singh vs. State o Rajasthan & Ors. (3). In this case, the Supreme Court has observed that even though the order of cancellation of allotment was valid because the allotment was procured by concealing the real status and subsequently the allottee has taken up to cultivate because he was in possession for continuation 20 years or more. Cancellation of allotment though valid, was set aside by the Supreme Court. Relying on this judgment, it was contended by Shri D.S. Shishodia, learned senior counsel for the petitioner that in the present case also, the State be not permitted to reopen the proceedings by giving fresh notice of hearing to the petitioner as contemplated by proviso to Rule 14(4) of 1970 Rules. (12). Relying on this judgment, it was contended by Shri D.S. Shishodia, learned senior counsel for the petitioner that in the present case also, the State be not permitted to reopen the proceedings by giving fresh notice of hearing to the petitioner as contemplated by proviso to Rule 14(4) of 1970 Rules. (12). It will be seen from the above judgment of the Supreme Court, the Honble Supreme Court is of the view that where the land is in possession of the tiller for more than 20 years and the tiller has by his toll cultivating land for all these years mere breach of some technicality on same point of time of years ago should not be allowed to result in cancellation of the allotment as the basic purpose of keeping the land in possession of the tiller is likely to be defeated such action. I therefore, agree with the submissions of the learned counsel that no proceedings should be allowed to be recognised after giving notice as contemplated by Rule 14(4) of 1970 Rules. (13). To be similar effect are the judgments reported in 1997 DNJ (Raj.) 632 (4) and another reported in 1995 All India High Court Cases 1722 (5). It is thus obvi- ous that the orders impugned in this petition are unsustainable for non-compliance of the provisions of Rules 14(4) of 1970 Rules and hence, are liable to be quashed. They are accordingly quashed. It is also ordered that no fresh proceedings be commenced for cancellation of the allotment in favour of Bhanwar Kanwar by issuing a fresh notice as contemplated by proviso14(4) of 1970 Rules for the reasons stated in the foregoing paragraph. There will be no order as to costs.