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1999 DIGILAW 989 (RAJ)

Jethanand v. Board of Revenue

1999-08-06

B.J.SHETHNA

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Honble SHETHNA,J.– The petitioner was cultivating the land in question admeasuring 24.10 bighas in Chak No. 13-A since 1970 on a temporary cultivation basis. The order regarding permanent allotment of the said land was passed on 22.2.74 under the Rajasthan Colonization (Allotment of Government Land to Post 1955 Temporary Cultivation Lease holders and other Landless persons in the Raja- sthan Canal Project Area) Rules, 1971 (for short ``the old Rules of 1971). Thereafter new Rules have come into force in 1975. A show cause notice was issued to the petitioner under Rule 21 of the New Rules of 1975 to show cause as to why his permanent allotment should not be cancelled. However, nothing was stated in the show cause notice that on what ground, his permanent allotment was sought to be cancelled. At the time of cancellation proceedings, the evidence of the petitioner was recorded wherein he had stated that he was allotted a small shop at the monthly rent of Rs.4/- by the Municipality in 1964 in `Tehbazari i.e. on Pavements wherein he was setting tea, milk etc. It is called as shop but it is as good as a thela/lorry. He also stated in his evidence that he had given up that business of sell- ing tea and shop in that small thela/lorry since last ten years and the same was looked after by his sons. (2). From the record also, it appears that at the time of allotment of the land, the evidence of one Munshi Ram was recorded on 13.2.74 who had clearly stated in his evidence that he was knowing Jethanand (petitioner) whose field is adjacent to his field wherein he has constructed a small house and he himself is cultivating the land. On the basis of the evidence of the petitioner and Munshi Ram and other evidence on the record, the Allotting Authority made permanent allotment to the petitioner in 1974. However, the Allotting Authority, without taking into consideration all the relevant facts on the record, cancelled the allotment made in favour of the petitioner by the impugned order dated 30.11.76 (Annex.1). The said order was challenged in appeal by the petitioner before the Additional Commissioner (Colonization) and Revenue Appellate Authority which was allowed by the Appellate Authority on 2.2.84 (Annex.2) and the order of cancellation of permanent allotment of the petitioner passed by the Allotting Authority was set aside. The said order was challenged in appeal by the petitioner before the Additional Commissioner (Colonization) and Revenue Appellate Authority which was allowed by the Appellate Authority on 2.2.84 (Annex.2) and the order of cancellation of permanent allotment of the petitioner passed by the Allotting Authority was set aside. The State of Raja- sthan challenged the order passed by the Appellate Authority by way of revision before the Board of Revenue which was allowed on 9.10.91 (Annex.3) and the order passed by the Appellate Authority was set aside and the order of cancellation of permanent allotment passed by the Allotting Authority was restored. This order has been challenged by the petitioner in this petition. (3). Learned counsel Mr. Sharma for the petitioner vehemently submitted that when the Appellate Authority after appreciating the oral as well as documentary evidence on the record, allowed the appeal and set aside the order of cancellation of permanent allotment passed by the Allotting Authority, then it was not open to the Board of Revenue to interfere with that order in exercise of its revisional juris- diction. He submitted that the scope of revision petition is very narrow and limited. The Revisional Authority can not reappreciate the evidence and without dealing with the reasons assigned by the Appellate Authority in appeal, it could not have passed its own order and substitute its own reasons for the purpose of allowing the revision petition. However, learned counsel Mr. C.L. Jain appearing for the respon- dents submitted that the Board of Revenue has rightly exercised its revisional jurisdiction and set aside the order passed by the Appellate Authority, therefore, this Court in exercise of its powers under Article 227 of the Constitution of India should not interfere with such order as according to him the fact is not in dispute that the petitioner at one point of time was owing the shop. (4). It is true that the scope of petition filed under Article 227 of the Constitution is very narrow and limited. This Court cannot correct error committed by the Subordinate Court on facts or even on law. This Court can interfere with such order only when there is a jurisdictional error committed by the subordinate court. (5). From the impugned order passed by the Board of Revenue, it is clear that by giving reasons only in one para 6 of its order, the revision petition was allowed. This Court can interfere with such order only when there is a jurisdictional error committed by the subordinate court. (5). From the impugned order passed by the Board of Revenue, it is clear that by giving reasons only in one para 6 of its order, the revision petition was allowed. From the order of the Board of Revenue it also appears that the Board of Revenue was very much concerned with the transfer of the shop in 1974 by the petitioner in the name of his two sons and according to it, it was a comouflage and the formality of transfer of the shop was done clearly with a view to defeat the terms and condi- tions of the allotment. It also appears from the order of the Board of Revenue that it had placed much reliance upon the order passed by the Allotting Authority and the finding recorded by the Allotting Authority that the petitioner was allotted a shop in the municipal area by the Municipality in his own name and the shop was run by the petitioner himself. It seems that the Board of Revenue had only one thing in its mind that the petitioner was allotted shop by the Municipality but it had not bothered to apply its mind to the fact that what type of shop it was. For the sake of calling it, it was a shop but it was as good as a thela or lorry because it was on the pavement of the Municipality and let out at a meagre amount of Rs.4/- per month in which the petitioner was selling tea, milk etc. Unfortunately, the Board of Reve- nue had not at all bothered to consider the finding of the fact recorded by the Appellate Authority while allowing the appeal filed by the petitioner against the order of Allotting Authority of cancellation of permanent allotment. The scope of revision is very narrow and limited. In revision, it was not open for the Board of Revenue to appreciate the evidence or consider the order passed by the Allotting Authority which was already set aside by the Appellate Authority. The Board of Revenue ought to have dealt with the reasoning assigned by the Appellate Authority. The Board of Revenue ought to have dealt with the reasoning assigned by the Appellate Authority and by giving cogent reasons that it did not agree with such reasonings. The Board of Revenue ought to have dealt with the reasoning assigned by the Appellate Authority. The Board of Revenue ought to have dealt with the reasoning assigned by the Appellate Authority and by giving cogent reasons that it did not agree with such reasonings. It could have only interfered with the order passed by the Appellate Authority otherwise not. Thus, while allowing the revision, the Board of Revenue committed a jurisdictional error, therefore, this Court has to interfere with such order in exercise of its power under Articles 226/227 of the Constitution. (6). Before parting, I must state that the petitioner admittedly is in cultivatory possession of 24.10. bighas of land since 1970 which he has nourished, cultivated and developed for all these years. To divest him from such land after a period of almost three decades, it would be nothing but a travesty of justice as held by Honble Supreme Court in Brij Lal vs. Board of Revenue (1). (7). In view of the above discussion, this petition is allowed, the impugned or- der passed by the Board of Revenue dated 9.10.91 (Annex.3) is set aside, once the order it Annex. 3 is set aside, the order passed by the Board of Revenue on 6.8.93 (Annexure 4) in the review petition dismissing the review petition is also hereby quashed and set aside. Once the impugned order of the Board of Revenue at Annexure 3 is set aside, the order passed by the Appellate Authority at Annexure 2 is restored. (8). The petition is allowed accordingly with no order as to costs.