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2003 DIGILAW 672 (RAJ)

State of Raj. v. Girishi Kumar

2003-05-01

S.C.SINGHAL

body2003
SINGHAL, Member – The appeal has been directed against the judgment dated 10.2.99 passed by Settlement Officer-com- Revenue Appellate Authority, Bharatpur camp Dholpur under Section 76 of the Rajasthan Land Revenue Act, 1956, (in short ``the Act) by which the appeal filed by the respondent under Section 75 of the Act, has been accepted. (2). Briefly stated, the facts of the case are that the respondent Girish Kumar was allotted khasra No. 848/28 min area 25 bighas situated at village Changora Teh. Rajakhera on 2.4.85 under the Rajasthan Land Revenue (Allotment of Ravine Land) Rules, 1967 (hereinafter referred to as the Rules, 1967). The respondent was entered as gair khatedar tenant of the disputed land vide mutation No. 449 and thereafter he acquired khatedari rights on 12.6.1994 vide mutation No. 717. The appellant filed an application under Rule 11(4) of the Rules, 1967 before the Collector, Dholpur stating that the respondent has not complied with the conditions of allotment. On this application, the Collector made a reference to the Board of Revenue for cancellation of allotment and to resume the allotted land to the State. The Board of Revenue vide its order dated 6.7.96 dismissed the reference made by learned Collector. Thereafter the Tehsildar filed an application before the Collector for cancellation of the allotment and after hearing both the parties, the learned Collector vide its order dated 10.7.98 cancelled the said allotment. Aggrieved by this, the respondent filed an appeal before the learned lower Court which has been decided as aforesaid. Now this second appeal. (3). The learned counsel of the respondent has contended that the appeal filed by the State is beyond limitation, therefore, it should be dismissed on this count alone. Against which, the learned Government Advocate has contended that he has filed an application under Section 5 of the Indian Limitation Act along with affidavit stating the grounds for condonation of delay. (4). I have gone through the application filed under Section 5 of the Indian Limitation Act. (5). Undisputedly, the appeal has been filed on 15.2.2001, whereas the impugned order has been passed on 10.2.99, i.e., near about two years and five days delay. The reasons for condoning the delay explained in the application are that after the impugned judgment. (4). I have gone through the application filed under Section 5 of the Indian Limitation Act. (5). Undisputedly, the appeal has been filed on 15.2.2001, whereas the impugned order has been passed on 10.2.99, i.e., near about two years and five days delay. The reasons for condoning the delay explained in the application are that after the impugned judgment. Tehsildar, Dholpur was directed to file an appeal on 17.4.99 but due to Parliamentary and Assembly Elections and the accident of the Officer-in-charge the appeal could not be prepared within time. On 12.1.2001 the Naib Tehsildar had been sent to Ajmer to get prepared the appeal but the Government Advocate directed that the Officer-in-charge be present himself for filing an affidavit to condone the delay. After this, the Tehsildar who was the Officer In-charge of the case came on 14.2.2001 and contacted the Government Advocate for filing the appeal. This application has been controverted by the respondent by filing this reply. In my opinion the facts alleged in the application are vague and are not convincing to condone the delay. Admittedly, the impugned order has been passed in the presence of the appellant, therefore, it could not be inferred that he was not in the knowledge of the impugned order. The appellant has filed an application for obtaining the copy of the impugned order dated 10.9.99 on 7.4.2000 and the copy has been given on the same day. It infers that the application for obtaining the copy of the impugned order has been filed after the expiry of the limitation. When Officer In-charge met with an accident no specific dated has been disclosed. When Parliamentary and Assembly Elections took place no specific date has been mentioned. All these are vague statements which are not reliable. The Honble High Court has held in State vs. Madan Gopal and Ors. (1), that where the application for obtaining the copy of the judgment has been filed after the expiry of period prescribed for filing an appeal and thereafter the appeal is filed, it shall be presumed that the State has got no interest in challenging the impugned order. The Honble High Court has held in State vs. Madan Gopal and Ors. (1), that where the application for obtaining the copy of the judgment has been filed after the expiry of period prescribed for filing an appeal and thereafter the appeal is filed, it shall be presumed that the State has got no interest in challenging the impugned order. Reasons of delay in filing the appeal which have been disclosed in the application filed under Section 5 of the Indian Limitation Act are not satisfactory, even the reasons of delay in filing application for getting certified copy are not shown, therefore, delay cannot be condoned and the appeal filed by the State is hopelessly time barred. In this connection, reference may be made to State of Rajasthan vs. Bhim Singh & Ors. (2). (6). As regards merits of the case, it is not disputed that the allotment of the disputed land has been made in favour of the respondent on 2.4.85, i.e., in Svt. year 2042. On behalf of the State it has been contended that Rule 11 of the Rules, 1967, i.e. condition of allotment has not complied with by the respondent. He has stated that under condition No. 4 the allottee have to cultivate atleast one-fourth of the land allotted to him within two years, atleast two third of the land within three years and the entire land within five years form the date of the allotment provided that if the allotted brings two-third of the land under cultivation within three years he will have, in lien of cultivating the option of developing a personal forest on the remaining land. In this connection, it may be stated that no copy of khasra girdawari and jamabandi of Svt. 2042-45 has been filed by the State by which it may be inferred that the condition, as enumerated about has not been complied with by the respondent. The State has not pleaded that the respondent has obtained the allotment by misrepresentation or fraud. Since the disputed land is ravine land and no revenue record pertaining to the year of allotment has been produced by the State, therefore, the allotment cannot be cancelled on technical ground, more so over, when the respondent has acquired khatedari rights over the disputed land. In Brij Lal vs. Board of Revenue (3), Patram and Ors. vs. State of Rajasthan and Ors. In Brij Lal vs. Board of Revenue (3), Patram and Ors. vs. State of Rajasthan and Ors. (4), it has been held that after the acquisition of khatedari rights and after expiry of a period of ten years or more where no allegation of misrepresentation or fraud has been alleged against the allottee, the allotment could not be cancelled. In the present case also the respondent has been allotted the disputed land in the year 1985 and after eighteen years it would be travesty of justice if the allotment made in favour of the respondent is cancelled. The learned lower Court is right in holding that the reference made by Collector has already been rejected by the Board of Revenue, therefore, on the same basis again on application filed by the Tehsildar the allotment could not be cancelled on principle of res-judicata. (7). As a result of aforesaid discussion the appeal filed by the State fails and is hereby dismissed. (8). Pronounced in the open Court.