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2002 DIGILAW 772 (RAJ)

Kapil Dev v. State of Raj.

2002-04-12

H.S.PUNIA

body2002
PUNIA, Member – The petitioners-villagers of Village Ajitgarh have filed this revision petition under Section 84 read with Section 9 of Rajasthan Land Revenue Act, 1956 (in short ``the Act) against the judgment passed by Revenue Appellate Authority, Sikar dated 22.1.2001, whereby appeal No. 11/99 filed by some villagers against the order of Collector, Sikar dated 1.5.95 was dismissed. (2). The brief facts giving rise to this revision petition are that on the proposal of Tehsildar, Sri Madhopur and Sub Divisional Officer, Neem Ka Thana, Collector passed an order dated 1.5.95 under Section 92 of the Act setting apart a piece of land area 2 hectares out of Khasra No. 2053 area 5.08 hectares situated at Vill. Ajitgarh for industrial purposes and by the same order the land set apart for industrial purposes was allotted to the non- petitioner No. 2 under Rajasthan land Revenue (Industrial Area Allotment) Rules, 1959 (in short ``Rules of 1959) for a value of Rs. 80,000/- on the conditions specified in the order. Five persons from Village Ajitgarh filed an appeal against the order passed by Collector, Sikar dated 1.5.95, which was dismissed by the impugned judgment. Now the petitioners have filed this revision petition. (3). Heard the learned counsel for both the parties and perused the record. (4). The learned counsel for the petitioners has contended that Collector is not empowered to set apart land for industrial purposes under Section 92 of the Act. It is also contended that every villager has right of grazing on pasture land for their cattle. The Sarpanch of Gram Panchayat alone is not empowered to issue no objection certificate without authority of the Panchayat and without calling a meeting, therefore, order passed by Collector was illegal and without jurisdiction which should have been set-aside in the appeal. (5). The learned counsel for the non-petitioner No. 2 has argued that this revision petition is not maintainable on the ground that the petitioners did not file an appeal before the learned Revenue Appellate Authority and the persons who preferred appeal before Revenue Appellate Authority have not filed this revision petition. It is also contended that Collector has passed the order in exercise of powers conferred by Section 92 of the Act and in pursuance of government notification dated 19.5.93, Collector is empowered to set apart land for industrial purposes under Rule-7 of Rajasthan Tenancy (Government) Rules-1955. It is also contended that Collector has passed the order in exercise of powers conferred by Section 92 of the Act and in pursuance of government notification dated 19.5.93, Collector is empowered to set apart land for industrial purposes under Rule-7 of Rajasthan Tenancy (Government) Rules-1955. Thus, there was no illegality in the order passed by Collector. (6). I have considered the rival submissions of the parties. (7). The learned counsel for the non-petitioner has raised a preliminary objection regarding maintainability of revision filed by the petitioners. From perusal of Section 84 of the Act, it appears that the Board of Revenue is empowered to interfere in revision with the orders of the lower courts, if the court or officer by whom the case was decided appears to have exercised a jurisdiction hot vested in it or him by law or to have failed to exercise jurisdiction so vested or acted in the exercise of its or his jurisdiction illegally or with material irregularity. It is thus, clear that power of revision lies in the Board of Revenue and it is not necessary that a petition should be filed before Board of Revenue. Moreover, this matter pertains to the pasture land and according to Section 93 of the Act every villager has a right of grazing in the pasture land for their cattle. Hence the preliminary objection raised by the non- petitioner is not tenable and the Board of Revenue is empowered to entertain the revision petition against the order passed by the Revenue Appellate Authority or Collector, Sikar. (8). Now it is to be seen whether the lower appellate court while passing the impugned judgment or Collector, Sikar while passing the order dated 1.5.95 exercised the; jurisdiction not vested in them or acted in the exercise of their jurisdiction illegally or with material irregularity, Collector, Sikar passed order dated 1.5.95 on the proposal of Tehsildar and Sub Divisional Officer setting apart 2 hectares land out of khasra No. 2053 area 15.08 hectares. It is not disputed that the land bearing khasra No. 2053 is pasture land as defined in Section 5(28) of the Rajasthan Tenancy Act, 1955. The State Government has made Rajasthan Tenancy (Government) Rules, 1955 (in short, ``the Rules of 1955) and Chapter-11 of the Rules of 1955 makes provisions to give effect to the provision of clause (28) of Section 5 of Rajasthan Tenancy Act, 1955. The State Government has made Rajasthan Tenancy (Government) Rules, 1955 (in short, ``the Rules of 1955) and Chapter-11 of the Rules of 1955 makes provisions to give effect to the provision of clause (28) of Section 5 of Rajasthan Tenancy Act, 1955. Rule-7 of the Rules of 1955 is relevant in the present case which provides that Collector may in consultation with the Panchayat change the classification of any pasture land as unoccupied culturable Government land. (Sivai Chak) for allotment for agricultural or any non-agricultural purpose. It is further provided that in case-where the area of land sought to be so allotted or set part exceed 4, hectares, Collector shall obtain prior permission of the State. Government, In the present case, Collector has not exercised powers under Rule-7 as mentioned above, but passed the order under Section 92 of the Act. Section 92 reads as under: - LAND MAY BE SET APART FOR SPECIAL PURPOSES-Subject to the general order of the State Government, the Collector may set apart land for any special purpose, such as for free pasturage of cattle for forest reserve for development of abadi or for any other public or municipal purpose; and such land shall not be used otherwise than for such purpose without the previous sanction of the Collector." (9). A perusal of above provision shows that the Collector may set apart land for any special purpose, such as, for free pasturage of cattle, for forest reserve, for development of abadi or for any other public or municipal purposes and such land shall not be used otherwise than for such purpose without previous sanction of the Collector. The expression ``Any other public or municipal purpose has been used in Section 99 of the Act. In the present case the Collector set apart 2 hectares of land out of Khasra No. 2053, which is recorded as pasture land and it has been allotted to the non-petitioner No. 2 under Rules of 1955. Now it is to be seen whether the allotment of land for industrial purposes to the non-petitioner No. 2 is covered by the expression ``any other public or municipal purpose. The order of Collector also makes a reference of proposal of Tehsildar and Sub Divisional Officer but does not make any reference whether the land was set apart out of the pasture land in consultation with the local Panchayat. The order of Collector also makes a reference of proposal of Tehsildar and Sub Divisional Officer but does not make any reference whether the land was set apart out of the pasture land in consultation with the local Panchayat. The learned lower appellate court has given a finding that the land bearing khasra No. 2053 is recorded as pasture land and Collector is empowered to reserve and allot 2 hectares of land out of pasture land. It was also mentioned that Administrator and Secretary Gram panchayat, Ajitgarh wrote a letter dated 17.10.94 and informed that a resolution was passed in Gram Subha on 28.5.87 that they want to establish an industrial area for the development of the village. It is also on record that Gram panchayat wrote a letter on 17.11.94 wherein it was mentioned that Gram Subha passed a resolution on 28.5.87 for development of industrial area in land bearing khasra No. 2053, but later on another resolution was passed on 24.6.94 that this land should be handed over to the Forest Department for development of fuel and grass development project and copy of resolution No. 141 dated 24.6.94 is also attached with the letter Moreover, it can be said that the Gram panchayat gave its concurrence for development of industrial area in the land bearing khasra No. 2053, but the learned Collector did not reserve the whole land for development of industrial area and only a piece of 2 hectares of land was allotted to the non- petitioner No. 2, which shows that the land was set apart and allotted to a single person and it cannot be covered by the public purpose or for the purpose of the development of industrial area in village Ajitgarh. (10). In view of the above discussion, the learned Collector passed the impugned order setting apart 2 hectares of land out of khasra No. 2053 which is a pasture land for allotment to non- petitioner No. 2 which is not covered by public purpose and no plan for development of industrial area was prepared and land was set apart and allotted to a single person which is not covered by Section 92 of the Act. Therefore, the learned collector has acted illegally while exercising jurisdiction vested in him under Section 92 of the Act. (11). Therefore, the learned collector has acted illegally while exercising jurisdiction vested in him under Section 92 of the Act. (11). Similarly, the allotment made in favour of the non- petitioner No. 2 is also not covered by Rule 7 of Rules of 1955. Under Rule- 7 the Collector is empowered to change the classification of any pasture land as unoccupied culturable Government land (Sivai Chak) for allotment for agricultural or any non-agricultural. purpose. The Collector while passing the impugned order set-apart two hectares of land out of pasture land bearing khasra No. 2053 for industrial purpose and it was not declared as unoccupied culturable Government land (Sivai Chak), It appears that the Collector has exercised his jurisdiction illegally merely to benefit the non-petitioner No. 2 and the order passed by the learned Collector cannot be said to be passed in the public interest or strictly in accordance with law. Therefore, the judgment passed by the lower appellate court and the order passed by the Collector deserve to be quashed. (12). Consequently, this revision petition is allowed and the judgment passed by the learned Revenue Appellate Authority dated 22.1.2001 is set-aside and the order passed by the Collector, Sikar dated 1.5.95 is hereby quashed. Pronounced in the open court.