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2003 DIGILAW 439 (RAJ)

Batasiya v. State of Rajasthan

2003-03-25

S.C.SINGHAL

body2003
SINGHAL, Member – The applicants have filed this revision under Section 81 read with Section 9 of the Rajasthan Land Revenue Act, 1956, (in short ``the Act), against the order dated 13.11.98 passed by Settlement Officer-cum-Revenue Appellate Authority, Dholpur, by which the appeal filed by the non- applicants under Section 75 of the Act has been accepted. (2). Briefly stated, the facts of the case are that Shri Tikaram, husband of applicant No.1 and father of applicants No.2 to 5, was allotted Araji Khasra No. 1461 area 11 biswas and 1463 area 5 biswas situated at village Nonera Prithvi Singh by the allotting authority in consultation with the Advisory Committee on 6.7.89, under the Rajasthan Colonisation (Medium and Minor Irrigation Projects Government Land Allotment) Rules, 1968 (hereinafter referred to as ``the Rules 1968). On 26.10.93 Tehsildar, Basedi filed an application before the Collector, Dholpur that the allottee has not cultivated the allotted land as per the conditions of allotment; hence the allotment be cancelled. During the pendency of the application, non-applicant N.3 Durg Singh filed an application on 12.9.94 stating that the allottee Tikaram has not cultivated the allotted land and has breached the conditions of allotment whereas he himself is in cultivatory possession of the disputed land, therefore, he may be heard before passing any order. The Collector, Dholpur vide its order dated 17.12.94 dismissed the application of Tehsildar. Against which an appeal was filed by the State in the Court of Settlement Officer-cum-Revenue Appellate Authority, Bharatpur and during the pendency of the appeal non-applicant Durg Singh also filed an application under Order 1 Rule 10 CPC to implead him as appellant in the case which was accepted and after hearing the parties the learned lower court accepted the appeal vide its impugned judgment. Against which, this revision has been filed. (3). I have heard the learned counsels of both the parties and perused the record and also have gone through the impugned judgment. (4). The learned counsel of the applicants, Mr. Pareek, has contended that non-applicant Durg Singh was wrongly impleaded as appellant by the learned lower court. It has also been argued that the learned lower court has accepted the appeal only on technical grounds which have no bearing in the present allotment made in favour of the applicants. (4). The learned counsel of the applicants, Mr. Pareek, has contended that non-applicant Durg Singh was wrongly impleaded as appellant by the learned lower court. It has also been argued that the learned lower court has accepted the appeal only on technical grounds which have no bearing in the present allotment made in favour of the applicants. On the other hand, learned counsel of the non-applicants while supporting the impugned judgment has argued that the disputed land is in possession of non-applicant Durg Singh, therefore, it was not available for allotment and the allotment made in favour of Tikaram is per se illegal. He has also contended that the Tehsildar is not the member of Advisory Committee whereas he has been made as member, therefore, the constitution of Advisory Committee is not in accordance with rules 1968. (5). I have considered the rival contentions of both the parties. (6). It is not disputed that the allotment of the disputed land has been made in favour of Tikaram on 6.7.89 whereas the application for its cancellation has been filed by the Tehsildar on 26.10.93. It is also not in dispute that the Tehsildar had asked for cancellation of the allotment on the ground that the allottee has not cultivated the land in accordance with the conditions of allotment. Collector, Dholpur in its order dated 17.12.94 has categorically stated that in khasra girdawari Svt. 2049 their exists the crop of mustard (Sarson) which belongs to Tikaram, therefore, it cannot be said by any stretch of imagination that the disputed land has never been cultivated by Tikaram since his allotment. The Collector, Dholpur has also stated in its order that the status of Durg Singh on the disputed land is that of a trespasser. After perusing the relevant record produced before the Collector it comes out that the disputed land in jamabandi Svt. 2049-52 Tikaram has been entered as gair- khatedar and the mutation No. 386 has been entered as such. No record has been produced by the non-applicant which could show that he is in cultivatory possession of the disputed land after the allotment made in favour of Tikaram except the report of patwari. The non-applicant Durg Singh has filed certain documents before the lower court but no order has been made by the learned lower court as to whether these documents have been taken on record. The non-applicant Durg Singh has filed certain documents before the lower court but no order has been made by the learned lower court as to whether these documents have been taken on record. However, copy of `Khasra Parivartansheel of Svt. 2032 reveals that the non-applicant Durg Singh had entered as trespasser and he has been evicted on 31.10.75 from the disputed land. The Larger Bench of Board of Revenue in ``Rahim Khan vs. Noor Mohammed (1), has held that the land in possession of a trespasser is unoccupied government land and available for allotment under the rules. Therefore, no right accrues to the non-applicant Durg Singh over the disputed land. (7). The learned lower court has also erred in cancelling the allotment made in favour of the applicant on the ground that in rule 13 of the rules 1968, the constitution of allotment committee was not in accordance with rules. In this connection, I have perused Rule 13 in which it has been provided that the Advisory Committee shall consist of (a) Member of Legislative Assembly (b) Pradhan of Panchayat Samiti (c) Sarpanch of Panchayat (d) A Scheduled caste or scheduled tribe member of the Rajasthan Legislative Assembly (e) A member of Rajasthan Legislative Assembly belonging to the District in which the landless person to whom the land is to be allotted (f) Colonisation Tehsildar of the Tehsil and (g) Tehsildar of Revenue Tehsil in which the land is situated. In sub-clause (2) of Rule 13 it has been mentioned that the allotting authority shall be the Chairman of the Advisory Committee and the Colonisation Tehsildar shall act as Member Secretary of the Committee. Therefore, learned lower Court has erred in holding that the Tehsildar cannot be a member under Rule 13 of the rules 1968 is patently illegal and unjustified. Rule 13 specifically provides that Colonisation Tehsildar of the Tehsil and Tehsildar of Revenue Tehsil in which the land is situated shall be the member of the Advisory Committee. Hence it cannot be said that the constitution of Advisory Committee was not in accordance with Rule 13 of Rules 1968. (8). The applicant has been allotted land in the year 1989 for which nearabout fourteen years have elapsed. If today the land in question is not kept will the applicant then his entire family would starve. In Jasraj vs. Board of Revenue and Ors. (8). The applicant has been allotted land in the year 1989 for which nearabout fourteen years have elapsed. If today the land in question is not kept will the applicant then his entire family would starve. In Jasraj vs. Board of Revenue and Ors. (2), the Honble High Court relying upon the judgment of Honble Supreme Court in the case of Brijal vs. State (3), has held that it would be travesty of justice to dispossess the applicant from the land which he is nourishing for over a period of two decades. (9). In view of the above discussions this revision is allowed and the impugned order of cancellation of allotment dated 13.11.98 passed by Settlement Officer-cum-Revenue Appellate Authority, Bharatpur camp Dholpur is set-aside. (10). Pronounced in the open court.