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Rajasthan High Court · body

2002 DIGILAW 1569 (RAJ)

Gurdeo Singh v. State of Rajasthan

2002-09-09

D.N.JOSHI, RAJESH BALIA

body2002
Honble BALIA, J.–Mr.A.K. Khatri appears for the respondents and, therefore, service is complete. (2). Heard learned counsel for the parties. (3). This special appeal is directed against the order of learned Sessions Judge dated 23.3.2001. The petitioner has filed writ petition for quashing the order passed by the Board of Revenue and sought a mandamus for directing the respondents to allot additional 7 bighas & 6 biswas of, land applied for by the petitioner under Rule 13-A of the Rajasthan, Colonization (Allotment & Sale of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975. (4). The petitioner has applied for allotment of 32 bighas and 6 biswas command land in Chak 7-NZP, which was alleged to be in long possession of the applicant. He has also deposited alongwith the application 20% of the notified price for the land. By order dated 31st October, 1983, the petitioners were allotted 25 bighas of common area against the applied land, for which his consent was recorded in the order. The Dy. Commissioner, Colonisation further order that the initial amount paid for the remaining land be adjusted the future instalments payable by the petitioner. The remaining land which was in favour of the petitioner was declared to be government land. (5). Aggrieved with the denial of allotment to the extent of 7 bighas and 6 biswas of land which petitioner applied for, he appealed before the Revenue Appellate Authority, which was barred by time. The Appellate Authority also recorded his considerations on merit in which reference was made to application and affidavit filed by the applicant on 20.9.1983, in which he conveyed hit consent for accepting 25 bighas of land and relinquish his claim to the, balance of the land. He in his affidavit stated that 25 bighas of land allotted to him and it shall not exceed the ceiling area. In these circumstances, the appeal was dismissed by the Revenue Appellate Authority on 12.1.1994. (6). The revision before the Board of Revenue was also met the same fate on 6.6.1997. Aggrieved with these orders, the petitioner has preferred the writ petition No.2658/97. In the writ petition it was alleged by the petitioner that: ``the Board of Revenue has mis-read the record in observing that the petitioner has applied for before the allotting Authority for allotting him only 26 bighas, out of 32 bighas and 6 biswas. Aggrieved with these orders, the petitioner has preferred the writ petition No.2658/97. In the writ petition it was alleged by the petitioner that: ``the Board of Revenue has mis-read the record in observing that the petitioner has applied for before the allotting Authority for allotting him only 26 bighas, out of 32 bighas and 6 biswas. No such application was aver filed by the petitioner. There is no reference of any such application in the order passed by the Allotting Authority. (7). The contention of the learned counsel for the petitioner before the Board of Revenue as well as before this Court had been as it appears from the contention recorded at the time of admission that as per Rules, the land as permissible under ceiling limit can be allotted but, it was recorded by the learned Member of the Board of Revenue that the rules do hot permit allotment of more than 25 bighas land in command area. (8). The contention was founded on the premise of the language used under Rule 13-A, which deals with the special allotment to the persons categorised u/Rule 7. This rule is a non-obstante rule. However, it is precondition that notification of the available area, fixing the price of such land and, inviting of applications by the persons only after such notification has been issued. In others words, Rule 13-A is for the purpose of providing an opportunity to all concerned interested to acquisition of land to the extent it does riot exceed the ceiling area to make an application for such allotment after a notification of availability of such land u/Rule 13-A is issued and applications are invited. Apparently, such rule was not meant for regularisation of such possession, which was not in accordance with the Rules in its inception. (9). The learned Single Judge by noticing the agreement of the petitioner for accepting the allotment of 25 bighas recorded by revenue authorities, held that correctness of the findings recorded by the Courts below cannot be doubted. The concurrent findings of facts do not require interference in absence of compelling reasons. The Court also observed that Rule 13-A of the Rules of 1975 does. not provide for regularisation of land in favour of a trespasser. The concurrent findings of facts do not require interference in absence of compelling reasons. The Court also observed that Rule 13-A of the Rules of 1975 does. not provide for regularisation of land in favour of a trespasser. In view thereof, in the absence of any assertion by anyone that the land was notified for special allotment, the very foundation of the application to claim allotment on the basis of long possession could not have been considered u/Rule 13-A at all. He, therefore, dismissed the writ petition. (10). In the aforesaid circumstances, the petitioner is now in appeal before us. (11). We have noticed the facts as. found by the Revenue Authorities above. The petitioner has made bold to say in his writ petition that he has not made any such application and had laid great stress that no such reference to any application has been made in the order of Allotting Authority. However, we have noticed that the R.A.A. in its order has made a specific reference to the affidavit filed the petitioner on 20th September, 1983 and referred to his statement in the affidavit that he may be allotted 25 bighas of land and he is prepared to leave rest of the land the petitioner has not produced in consonance of his assertion the affidavit filed by him before the Allotting Authority on 20th September, 1983. However, we find that a reply was submitted by the respondents specifically alleging by inviting the attention of the order passed by the R.A.A. that the petitioner filed an application alongwith affidavit before the allotment order was made to th6 him that he may be allotted 25 bighas of land and he gives up his claim to the rest of 7 bighas and 6 biswas of land. The reply also states that the R.A.A. has relied on the statement made by the petitioners in his affidavit for the purpose of restricting allotment to 25 bighas of land only. We also find on the record of the writ petition is photostat certified copy of the affidavit of the petitioner dated 20th September, 1983. In this affidavit, the name of the petitioners the measurement and particulars of the land and the statement ^^25 ch?kk vykV fd;k tkos o ks"k jdck 7-05 NksM+us dks rS;kj gwwawWA^^ have all been written in. hand writing. The affidavit was sworn on 20th September, 1983. (12). In this affidavit, the name of the petitioners the measurement and particulars of the land and the statement ^^25 ch?kk vykV fd;k tkos o ks"k jdck 7-05 NksM+us dks rS;kj gwwawWA^^ have all been written in. hand writing. The affidavit was sworn on 20th September, 1983. (12). Thus, apparently, the petitioner had given. his consent in writing before allotment order dated 31st October, 1983 was made for allotting 25 bighas of land in favour of the petitioner and directing the adjustment of the additional 20% of the amount deposited at the rate of notified price of the land in the area to be adjusted against the price of the allotted land. In view of the aforesaid sworn statement of the petitioner himself for accepting the allotment only to the extent of 25 bighas land, he had no good cause of grievance to pursue further for additional allotment of 7 bighas and 6 biswas of land. Moreover, in the facts and circumstances notice above, the petitioner is also guilty of suppression vari in as much as he was definitely stated wrong facts in the petition filed by him for the purpose of persuading the Court that matter involved. Interpretation of Rule 13-A and the judgments of the Courts below are to be adjusted in that light. The petition was liable, to be non-suited on that ground alone as the relief under Article 226 and 227 cannot be availed by any person, who does not come to the Court with clean hands and suppresses material facts from the Court. In view of the aforesaid, we do not find any merit in this appeal and the appeal is dismissed with costs. The cost is quantified as Rs. 5,000/-. Cost shall be paid to the Legal Aid Cell and receipt be filed in this Court within four weeks.