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2003 DIGILAW 626 (RAJ)

Gudar Ram v. State of Rajasthan

2003-04-24

S.C.SINGHAL

body2003
SINGHAL, Member – This appeal has been filed by the appellants under Section 76 of the Rajasthan Land Revenue Act, 1956, (in short ``the Act), against the order dated 13.2.2001 passed by Revenue Appellate Authority, Pali by which he has dismissed the appeal filed by them. (2). In short, the facts of the case are that the respondents No.1 to 4 were allotted khasra No. 48 and area 0.04 hectares situated at village Khariya Swami Tehsil Sojat by Sub- Divisional Officer, Sojat City under Rajasthan Land Revenue (Allotment of land for Digging Wells and Installing Pumping Sets for Irrigation Purposes) Rules 1979 (Hereinafter referred to as the Rules 1979) vide its order dated 9.9.1996. Against which, the appellants filed appeal before the Revenue Appellate Authority, Pali on the ground that the allotment has been made from the land reserved for funeral ground (Graveyard) but it has been dismissed by the impugned order. Now this second appeal. (3). The learned counsel of the appellants has contended that the learned lower Court has erred in dismissing the appeal filed by the appellants, as time barred. He has also contended that the appellants are the aggrieved person and the allotment order passed by Sub-Divisional Officer is per so illegal and without jurisdiction. He has also contended that the disputed land is being used as funeral ground by the villagers which could not be available for allotment under the Rules 1979. On the other hand, the learned counsel of the respondents while supporting the order passed by learned lower Court has argued that before making allotment proclamation inviting applications for allotment has been issued by the Sub-Divisional Officer, therefore, it could not be said that the appellants were not in knowledge of the impugned allotment. He has contended that the Sub-Divisional Officer has allotted the disputed land under the Rules, 1979 to the respondents after following the prescribed procedure. (4). I have considered the rival contention of both the parties. (5). The appellants have filed an application under Section 5 of the Indian Limitation Act along with affidavit for condoning the delay occurred in filing the appeal before the Revenue Appellate Authority. No counter-affidavit has been filed by the respondents. (4). I have considered the rival contention of both the parties. (5). The appellants have filed an application under Section 5 of the Indian Limitation Act along with affidavit for condoning the delay occurred in filing the appeal before the Revenue Appellate Authority. No counter-affidavit has been filed by the respondents. The appellants have specifically mentioned in their application that for the first time they had come to knowledge of the allotment when the respondents went for digging well at the site which is being used a funeral ground. The learned lower Court on the basis of the proclamation dated 9.8.1996 has made up his mind that the appellants were earlier in the knowledge of the said allotment. In my view, this finding of the learned lower Court is not sustainable. Under Rule 9 of the Rule, 1979 it has been provided that the Collector shall issue proclamation inviting application for allotment of land for digging wells and installing pumping sets. Such proclamation shall give necessary details of the land available for allotment and shall be published in such local newspaper or otherwise, as Collector may decide. After perusing the file of Sub-Divisional Officer it comes out that the proclamation has been signed on 9.8.1996 and both the copies, i.e., original as well as officer copy are annexed with the file. The said proclamation has not been published in the local newspapers as envisaged under Rule 9 of the Rules, 1979 and the original proclamation has not been sent for circulation either in the concerned village in which the disputed land is situated or it has been pasted on Tehsil or Gram Panchayat or any conspicuous place. Therefore, on the basis of the proclamation dated 9.8.1996 it could not be assumed that the appellants were in the knowledge of the said proclamation. (6). Therefore, on the basis of the proclamation dated 9.8.1996 it could not be assumed that the appellants were in the knowledge of the said proclamation. (6). It is not disputed that the duties imposed and powers conferred on the Collectors by Rules 9, 10, 11 and 12(a) of the Rules, 1979 has been delegated to all Sub-Divisional Officers within their respective territorial jurisdiction vide notification dated 14th December, 1982 but under Rule 5 of the Rules, 1979 it is incumbent upon on the Collector to declare any land specify its location, khasra number, area and other particulars of land reserved for digging of wells or for installing pumping sets and upon such declaration it shall be reserved and be available for allotment under these rules. The learned counsel of the respondents as well as the learned Dy. Govt. Advocate have utterly failed to show the order of the Collector made under Rule 5 of the Rules, 1979 by which the disputed land has been re-served for digging of wells or for installing of pumping sets. Until and unless the disputed land is declared to be reserved for digging of wells or for installing of pumping sets the said land cannot be made available for allotment under the Rules 1979. (7). The case of the appellants is that the disputed land is funeral ground which is being used as ^^kekku^^ MeceMeeve by the villagers. It is true that in jamabandi Svt. year 2048-51 the disputed land has been entered as `Barani belonging to the government but photocopy of Tehsildar, Sojat showing list of graveyard land which is annexed with the file by learned lower Court reveals that with regard to the disputed land a specific note has been mentioned which is as under :- ^^uksV %& mDr [kljk [kkjh;k Lokeh dh ljgn esa gS kekku [kkjh;k lks<+k ds fuokfl;ksa dk gSA^^ In the report of Tehsildar, Sojat dated 16.7.1992 which is enclosed in the file of the Sub-Divisional Officer shows that their had been scuffling between the allottees and villagers at the site while digging the well on the disputed land. In the report it has been mentioned that ^^dq,a ls kekku ds voks"k 30 ehVj dh nwjh ij gS ,oa dq,a dks feV~Vh Mkydj Hkj fn;k x;k gSA^^ On the basis of these reports it cannot be presumed that the disputed land is not being used as funeral ground by the villagers. Rule-4 of the Rules, 1979 specifically provides that the lands mentioned in Section 16 of the Rajasthan Tenancy Act shall not be available for allotment under these rules. Since the land is acquired or held for public purpose or a work of public utility, hence khatedari rights shall not accrue in such lands under Section 16 of the Rajasthan Tenancy Act. (8). Under Rule-7 of the Rules, 1979 apart from other conditions there is one specific condition that the allottee shall have to dig well or install a pumping set as the case may be within two years of the allotment and on failure to fulfill any of the terms and conditions of allotments, the lease shall be liable to be cancelled and the land shall be taken back by the Government. Since the allotment of the disputed land in favour of the respondents is said to be made on 9.9.1996, but the respondents have failed to dig well or install a pumping set within two years of the allotment on the disputed land, therefore, on failure to fulfill the conditions of the lease, their lease is liable to be cancelled. (9). The net result of the above discussion is that the allotment of the disputed land in favour of the respondents had been made in contravention of the Rules 1979 and this disputed land is being used as funeral ground (Graveyard) by the residents of the village Khariya Sodha for public utility and the learned lower Court has erred in passing the impugned judgment without going into the said legal provisions which deserves to be set- aside. (10). In the result, the appeal is accepted and the order of Revenue Appellate Authority, Pali dated 13.2.2001 and the allotment order dated 9.9.1996 passed by Sub-Divisional Officer, Sojat are set aside. (11). Pronounced in the Open Court.