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Rajasthan High Court · body

2001 DIGILAW 228 (RAJ)

Mussvirnisa Begum v. State of Raj.

2001-02-08

K.S.RATHORE, V.S.KOKJE

body2001
Honble KOKJE, J.–The appellant aggrieved by the dismissal of S.B. Civil Writ Petition No.1179/97 filed by her, by the learned Single Judge, has preferred this appeal. (2). The petitioner was the Jagirdar of Thikana Dhunwa, Tehsil Deoli, District Tonk. According to her, she was holding land measuring 7505 acres = 7428 bighas 3 biswas. In the year 1951, Rajasthan Land Reforms and Resumption of Jagirs act, 1952 (hereafter referred to as `the Act) came into force w.e.f. 16.2.52. The Act provided for resumption of Jagirs and also contained provisions for allotment of agricultural lands for Khudkasht (self cultivation) to the ex-Jagirdars on priority basis. Section 14 of the Act provides that a Jagirdar who did not hold any Khudkasht on first day of July, 1954 or who held Khudkasht less in area than the maximum ares specified in Section 11 of the Act, may before 31st August, 1958 or within there months of the date of resumption of his Jagir, whichever is later, apply to the Collector or to the Commission for Khudkasht Lands for allotment of Khudkasht. Section 16 of the Act provides that after receiving application under Section 14, the Commissioner for Khudkasht lands may pass such orders thereon as he may deem fit, after holding enquiry. It also provides that when the application is received by the collector, he may, after enquiry conducted in the prescribed manner, either return the application, allot Khudkasht land not exceeding 30 Acres or submit a report to the Commissioner for Khudkasht lands for his order, making recommendation for allotment of Khudkasht land specifying the manner in which his recommendation may be carried out. This Section further provides that as soon as may be after the order is passed by the commissioner for Khudkasht lands, the Collector shall give effect to such an order. Section 19 of the Act provides for the categories of land that may be allotted as Khudkasht. Section 18 of the Act provides the maximum area of the Khudkasht which could be allotted to an ex-Jagirdar. (3). According to the petitioner, she was entitled to allotment of 345 Acres of land as Khudkasht as she was holding 5705 Acres of Jagir land. On 26.11.66, the petitioner made an application to the District Collector, Tonk for allotment of Khudkasht Land. (3). According to the petitioner, she was entitled to allotment of 345 Acres of land as Khudkasht as she was holding 5705 Acres of Jagir land. On 26.11.66, the petitioner made an application to the District Collector, Tonk for allotment of Khudkasht Land. The application, which was filed under Section 14 of the Act, was rejected by the Collector, Tonk vide order dated 1.3.67. The petitioner made an application to the State Government against the rejection of her application. Government forwarded it to the Commissioner for Khudkasht lands and he returned the application of petitioner on 14.7.67. On 15.10.87, the petitioner made another application to the Deputy Secretary to the government, Revenue Department, for consideration of her application treating the same to be within limitation and for allotment of Khudkasht land. The State Government, after considering the facts and circumstances of the case, by order dated 20.8.88, directed the Distt. Collector, Tonk to allot Khudkasht land as per Rules, treating the application dated 26.1.66 to the within limitation as the decision for resumption of Jagir had been taken by the Jagir Commissioner on 10.5.74. The Distt. Collector, Tonk, thereupon allotted 86 Bighas 8 Biswas = 54 Acres of land in Villages Abbasnagar Khas and Jai Kishanpura by order dated 5.1.89. (4). As the petitioners entitlement was of 345 Acres of land as Khudkasht and only 54 Acres land was allotted to her in Tonk District, she made an application on 6.5.95 to the Commissioner for Khudkasht lands for allotment of remaining 291 Acres of land. The Commissioner for Khudkasht lands conducted an enquiry and sought information from the distt. Collector, Jaipur regarding position of the land situated in Village Keshwana Rajput, Tehsil Kotputli, which was shown by the petitioner to be the land available for allotment as Khudkasht. The Tehsildar, Kotputli, submitted to the Collector, jaipur report on 26.4.95 that the land was available for allotment as Khudkasht. The Collector, Jaipur sent a report to he Commissioner for Khudkasht lands on 18.7.95 forwarding information given by the Tehsildar. The Collector, however, observed that the allotment of Khudkasht land may be resisted by the villagers. On 8.9.95, the Commissioner for Khudkasht lands also sought information regarding the availability of land for allotment as Khudkasht from the Distt. Collector, Tonk. The Distt. Collector sent a report of non-availability of land. The Commissioner for Khudkasht lands on 16.10.95 enquired from the Distt. On 8.9.95, the Commissioner for Khudkasht lands also sought information regarding the availability of land for allotment as Khudkasht from the Distt. Collector, Tonk. The Distt. Collector sent a report of non-availability of land. The Commissioner for Khudkasht lands on 16.10.95 enquired from the Distt. Collector, Jaipur about the possibility of resistance by villagers and in view of this, the petitioner obtained a certificate from Sarpanch of the Village Panchayat Malpura to the effect that the possibility of the resistance by the villagers was not there. This certificate was submitted to the Commissioner for Khudkasht lands. (5). After holding enquiry as above, the Commissioner for Khudkasht lands passed an order dated 28.2.96 rejecting the application of the petitioner on the ground that the petitioner was allotted land vide order dated 5.1.89 by the Collector, Tonk and as that order has not been challenged by her in appeal, the application could not be treated as appeal. The petitioner moved the State Government against the aforesaid order and the State Government by its order dated 3.7.96 directed the Commissioner for Khudkasht lands to allot land on merits of application dated 6.5.95. Upon this, the commissioner for Khudkasht lands again sought report of the Collector (Jagir), Jaipur who gave a negative report that no land was available for allotment as Khudkasht. Even after the State Governments intervention, the land was not allotted and, therefore, the petitioner filed the petition praying for quashing of order dated 28.2.96 (Annexure-11 to the petition) passed by the Commissioner for Khudkasht lands and also praying for allotment of suitable land as per entitlement. (6). Learned Single Judge rejected the writ petition holding that the application under Section 14 of the act was itself time- barred and the Deputy Secretary to the government had no jurisdiction to direct the Commissioner for Khudkasht lands to treat the application as within limitation. The learned Single Judge also held that no Government officer can interfere with the quasi-judicial functions of another officer though subordinate to him. (7). Learned counsel for the writ petitioner-appellant submitted that the learned Single Judge did not appreciate the real controversy in the case. It was nobodys case that the original application was time barred. Actually, the application has been held by the State Government itself to be within limitation from the date of resumption of Jagir, which was in the year 1974 itself. It was nobodys case that the original application was time barred. Actually, the application has been held by the State Government itself to be within limitation from the date of resumption of Jagir, which was in the year 1974 itself. It is clear from Annexure-2 to the writ petition, which is a letter dated 20.8.88 written by the Revenue (Group-3) Department of the government of Rajasthan to the Commissioner for Khudkasht lands that the Jagir Commissioner had determined the date of resumption of Jagir by his judgment dated 10.5.74 and, therefore, the Law Department had accepted 10.5.74 as the date of resumption of jagir and hence, the application has to be taken to be within limitation. This memorandum was written by the Revenue Department on specific advice of the Law Department and this has been stated in the aforesaid memorandum (Annexure-2) itself. Even the State Government in its reply had not raised the point of limitation and even if it had raised, because of the decision of the government itself, the point could not have been entertained by the learned Single Judge. It was further contended that the order passed by the commissioner for Khudkasht lands on 28.2.86 was perverse in the sense that it was based on misconception that the order dated 5.1.89 passed by the Collector (Jagir), Tonk. Her grievance was that since because of paucity of land available for allotment as Khudkasht, the Collector, tonk could allot only 54 Acres but as the writ petitioner-appellant was entitled to more land, she had moved the Commissioner for Khudkasht lands who had also enquired from the Collector, Jaipur about availability of land for allotment. The only question, therefore, which was before the Commissioner for Khudkasht lands was whether the land suggested by the writ petitioner-appellant was available for allotment as Khudkasht and whether it should be allotted to the writ petitioner-appellant as Khukkasht. The Commissioner for Khudkasht lands instead of deciding the straight question even after directions of the State Government to decide that question, did not decide it. The order of the Commissioner for Khudkasht lands, therefore, deserves to be set aside, according to the writ petitioner-appellant. (8). Learned counsel for the respondent State Government submitted that since there was no land available for allotment as Khudkasht, no useful purpose would be served by allowing the appeal and the petition. The order of the Commissioner for Khudkasht lands, therefore, deserves to be set aside, according to the writ petitioner-appellant. (8). Learned counsel for the respondent State Government submitted that since there was no land available for allotment as Khudkasht, no useful purpose would be served by allowing the appeal and the petition. Learned counsel also tried to support the order passed by the commissioner for Khudkasht lands even in the face of the communication sent to the Commissioner for Khudkasht lands in the face of the communication sent to the Commissioner for Khudkasht lands by the State Government itself, directing him to decide the application on merits. (9). Having heard the learned counsel, we are of the view that the petition deserves to be allowed on the short point that the Commissioner for Khudkasht lands has committed serious error in rejecting the application of the writ petitioner-appellant by its order dated 28.2.96 on the ground that it was time-barred and that the order dated 5.1.89 of Collector, Tonk amounts to final allotment depriving the appellant from claiming any land in excess of 54 acres, allotted by the collector, Tonk. From the facts set out in the order dated 28.2.96 passed by the Commissioner for Khudkasht lands (Annexure-11 to the writ petition) itself, it is clear that initially on 26.11.66, application under Section 14 of the Act was presented to the Distt. Collector, Tonk. He rejected it has time barred on 1.3.67. The State Government on 6.7.67 sent the matter to the Commissioner for Khudkasht lands for disposal but the Commissioner for Khudkasht lands also on 14.6.67 rejected the application as time barred. Thereafter on 15.10.87, the writ petitioner-appellant moved the State Government and on 16.11.87, the State Government called comments of the Commissioner for Khudkasht lands. On 13.1.88, The Commissioner for Khudkasht lands sent detailed comments and the State Government after taking advice of the Law Department, held the application to be within time and by is order dated 20.8.88 directed allotment of land according to entitlement. As the original application had been made to the Collector, Tonk, the Commissioner for Khudkasht lands wrote to the Collector, Tonk to dispose of the application on its level by letter dated 15.10.88. Thereupon, the Collector, Tonk on 5.1.89 allotted 54 Acres of land. As the original application had been made to the Collector, Tonk, the Commissioner for Khudkasht lands wrote to the Collector, Tonk to dispose of the application on its level by letter dated 15.10.88. Thereupon, the Collector, Tonk on 5.1.89 allotted 54 Acres of land. Thereupon, the writ petitioner-appellant moved the Commissioner for Khudkasht lands for allotment of rest of the 291 Acres of land. it is, therefore, clear that the original application had already been held to be within limitation on the advice of the Law Department, by the State Government and nobody had raised any question about that decision. So far as the order dated 5.1.89 passed by the Collector, Tonk is concerned, the writ petitioner appellant was not aggrieved by it as it did not amount to reduction of the claim of 291 Acres balance land out of the entitlement. As the land was not available in his District, the Collector, tonk had not allotted the entire land according to the entitlement of the writ petitioner-appellant. The application made to the Commissioner for Khudkasht lands for allotment of balance land was not u/Sec.14 of the Act but it was only an application for compliance of the Government decision to allot land in accordance with entitlement. It was not an appeal against the Collectors order nor an application challenging the Collectors order dated 5.1.89. The Commissioner for Khudkasht lands had clearly misconceived the entire issue and seriously erred in passing the order dated 28.2.96 rejected the application. (10). The learned Single Judge also seriously erred in taking into consideration the points which were not in issue. Nobody had challenged the authenticity or authority of the Dy.Secretary to the Government to address the memorandum which he had addressed to the Commissioner for Khudkasht lands. Actually, the Dy.Secretary to Government was only conveying the Governments decision taken after the advice received from the Law Department. The application under consideration was not the original application u/Sec.14 of the Act but was an application for allotment of the balance land in accordance with entitlement of the writ petitioner appellant and no question of limitation could come up in such a situation. (11). For the aforesaid reasons, the appeal deserves to be allowed and it is hereby allowed. The application under consideration was not the original application u/Sec.14 of the Act but was an application for allotment of the balance land in accordance with entitlement of the writ petitioner appellant and no question of limitation could come up in such a situation. (11). For the aforesaid reasons, the appeal deserves to be allowed and it is hereby allowed. The order of the learned Single Judge is set aside, the order dated 28.2.96 (Annexure-11 to the writ petition) passed by the Commissioner for Khudkasht lands is also set aside and the matter is remanded back to the Commissioner for Khudkasht lands with a direction to dispose of the application of the writ petitioner appellant for allotment of balance for Khudkasht in accordance with law. There shall be no order as to costs.