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2004 DIGILAW 1333 (RAJ)

Bakhtawar Singh v. State of Rajasthan

2004-09-14

A.K.PUROHIT

body2004
PUROHIT, MEMBER.–This second appeal has been filed under section 76 of the Rajasthan Land Revenue Act, 1956 (in short ``the Act) against the order of learned Revenue Appellate Authority, Bikaner dated 24.11.2001 passed in appeal No. 314/94 filed under section 75 of the Act against the order of Asstt. Colonisation Commissioner, Suratgarh dated 30.5.84. (2). Briefly stated, the relevant facts of the case are that the present appellants are the real brothers. The appellant No. 1 Bakhtawar Singh was allotted a piece of land situated in chak 4 MWM comprising in Muraba No. 107/331 measuring 24.10 bighas uncommand land on temporary cultivation lease. Appellant No. 2 Phoola Singh was allotted a piece of land situated in the same chak comprised in muraba No. 107/332 measuring 21.16 bighas uncommand land and 2.14 bighas command land on temporary cultivation lease. After coming into force of the Rajasthan Colonisation (Allotment of Government Lands to Temporary Cultivation Lease Holders of pre 1955 and post 1955 Tenants and other land less person in Rajasthan Canal Project) Rules, 1971, present appellants applied for permanent allotment of the land. The applications of both the appellants were allowed by the Dy. Colonisation Commissioner, Suratgarh by his order dated 31.12.72 and the appellant Bakhtawar Singh was allotted the land situated in chak No. 4 M.W.M. comprising in Muraba No. 107/331 measuring 24.10 bighas uncommand land and of muraba No. 111/332 measuring 10 bighas command land and appellant Phoola Singh was allotted land of chak No. 4 M.W.M. comprised in Muraba No. 107/332 measuring 24.10 bighas and muraba No. 111/332 measuring 9.16 bighas by his order dated 27.11.72 on permanent basis. Out of this land, 12.10 bighas was command land and 21.16 bighas land was uncommand land. (3). On 11.11.77, one Gurdayal Singh filed a complaint to the Asstt. Colonisation Commissioner, Suratgarh for cancellation of above allotments. The complaint was registered on complaint no 446/77. The Asstt. Colonisation Commissioner proceeded under the provisions of the Colonisation act for cancellation of allotment and by order dated 5.8.78; the allotments made to the appellants were cancelled. This order of cancellation of allotment and by order dated 5.8.78 was challenged by the appellants before Revenue Appellate Authority, Bikaner the appeal was partly allowed and matter was remanded to Allotting Authority with the directions that after enquiry the appellants be allotted only the land for which they are entitled. This order of cancellation of allotment and by order dated 5.8.78 was challenged by the appellants before Revenue Appellate Authority, Bikaner the appeal was partly allowed and matter was remanded to Allotting Authority with the directions that after enquiry the appellants be allotted only the land for which they are entitled. This order in appeal was passed by Revenue Appellate Authority, Bikaner on 1.10.80. After remand of the case, the Asstt. Colonisation Commissioner by order dated 23.1.82 cancelled the allotment of 10 bighas of land of Muraba No. 111/332 and rest of land was allowed to retain, as permanent allottees. The Asstt. Colonisation Commissioner, Suratgarh made a detailed equity about to the allegation of complainant Gurdayal Singh that appellants were allotted excess land than what they were entitled and after hearing both the parties on 30.5.84 passed an order by which the allotment of Muraba No. 111/332 measuring 25 bighas was cancelled. The order of Asstt. Colonisation Commissioner was challenged by the present appellant before the Addl. Colonisation Commissioner cum Revenue Appellate Authority, Bikaner allowed the appeal of the appellants by order dated 24.7.84 and order of Asstt. Colonisation Commissioner dated 30.5.84 was set aside. The complainant Gurdayal Singh filed a revision petition before the Board of Revenue against the order of Revenue Appellant Authority dated 24.7.84 and the Board by its order dated 11.7.91 allowed the revision petition of the complainant and set aside the order of Revenue Appellate Authority dated 24.7.84 and remanded the matter to the Revenue Appellate Authority, Bikaner with the direction that the Revenue Appellate Authority should make an enquiry and afresh decision to be passed after providing appropriate opportunity of hearing to the concerned parties. After receiving the record from the Board, after remand, the Revenue Appellate Authority by its order dated 24.11.2001 dismissed the appeal of the present appellant by judgment dated 24.11.2001. Against this order dated 24.11.2001 of Revenue Appellant Authority, Bikaner the present appeal has been filed. (4). Learned counsel for the appellants has argued that the allotment of land in muraba No. 111/332 measuring 25 bighas was made by the Dy. Colonisation Commissioner, therefore, it cannot be cancelled by the authority lowe than him. In the present case the cancellation of the allotment was done by Asstt. Colonisation Commissioner, therefore, this cancellation is bad and without jurisdiction because Asstt. Colonisation Commissioner is a lower authority than the Dy. Colonisation Commissioner. Colonisation Commissioner, therefore, it cannot be cancelled by the authority lowe than him. In the present case the cancellation of the allotment was done by Asstt. Colonisation Commissioner, therefore, this cancellation is bad and without jurisdiction because Asstt. Colonisation Commissioner is a lower authority than the Dy. Colonisation Commissioner. In support of this argument, he has relied on 1971 RRD 25 (1), 1983 RRD 324 (2), 1987 RRD 445 (3). He has further argued that under section 11/14 of the Colonisation Act it is the Collector only who is competent authority to cancel the allotment in the Act and no authority lower than the Collector has any authority to cancel the allotment. He further argued that under Rule 21 of the Rules of 1975, it is the allotting authority alone who is empowered to cancel the allotment and the persons lower than the allotting authority has not right to cancel the allotment. In the present case, the cancellation of the allotment by the Asstt. Colonisation Commissioner is bad because he has not allotted the disputed land to the appellant. The learned counsel has further argued that the allotment of the disputed land was made to the appellant in the year 1972; therefore, after a period of thirty years the cancellation of the allotment is not justifiable. He has further put his grievance in a manner the Revenue Appellate Authority decided the appeal, by arguing that the order of the Revenue Appellate Authority is not a reasoned order and the Revenue Appellate Authority has also not complied with the direction issued by the Board of Revenue while deciding the appeal. (5). The learned Government Advocate for the State has supported the judgment of Revenue Appellate Authority dated 24.11.2001 and has submitted that the matter was remanded by the Board to the Revenue Appellate Authority on the revision petition filed by the complainant Gurdayal Singh but the present appellant in in this appeal has not impleaded Gurdayal Singh as a respondent by not making Gurdayal Singh as a party. Thus, this appeal deserves to be dismissed for non-joinder for necessary party. The Government Advocate for the State further submitted that Revenue Appellate Authority has decided the appeal in view of the directions issued by the Board by judgment dated 24.11.2001 and further stated that the competence of Asstt. Thus, this appeal deserves to be dismissed for non-joinder for necessary party. The Government Advocate for the State further submitted that Revenue Appellate Authority has decided the appeal in view of the directions issued by the Board by judgment dated 24.11.2001 and further stated that the competence of Asstt. Colonisation Commissioner to cancel the allotment was not challenged by the appellant in the previous proceedings. Therefore, he cannot raise the same before this court in the second appeal. he further submitted alternatively that Asstt. Colonisation Commissioner is competent to cancel the allotment because under provisions of Colonisation Act the Asstt. Colonisation Commissioner has been delegated the powers of Collector. While cancelling the allotment he exercise the power of the Collector and consequently the appeal was filed before the Revenue Appellate Authority. The Government Advocate has further submitted that under the Colonisation Act as well as rule of 1975, the Asstt. Colonisation Commissioner was competent to cancel illegal allotment because on the basis of complaint of Gurdayal Singh he found that allotment made to the appellant in muraba No. 111/332 to both the appellants was on the basis of concealment of facts that they were having already land allotted in their names and the same land was sold by them. When these facts were brought to the notice of Asstt. Colonisation Commissioner, he made detail enquiry and after satisation he cancelled the allotment of 25 bighas of land of muraba No. 111/332. In rebuttal to the arguments of the appellant that after 30 years cancellation of the allotment was bad, he has submitted that in the present case the allotment has been found to be illegal on account of misrepresentation,concealment of facts, therefore, the delay in cancellation of such allotment is not at all fatal. He has submitted that the order of Revenue Appellate Authority is well-reasoned order and has been made in compliance of the directions issued by the Board. (6). I have given my thoughtful consideration to the rival submissions made on behalf of both the parties. (7). In the present case, Asstt. Colonisation Commissioner has initially cancelled the allotment made to the appellant by the order dated 5.8.78, which was later on challenged before Revenue Appellant Authority. Revenue Appellant Authority remanded the matter back and finally Asstt. Colonisation Commissioner again cancelled the allotment of muraba No. 111/332 measuring 25 bighas by order dated 30.5.84. (7). In the present case, Asstt. Colonisation Commissioner has initially cancelled the allotment made to the appellant by the order dated 5.8.78, which was later on challenged before Revenue Appellant Authority. Revenue Appellant Authority remanded the matter back and finally Asstt. Colonisation Commissioner again cancelled the allotment of muraba No. 111/332 measuring 25 bighas by order dated 30.5.84. On perusal of this order dated 30.5.84, it is clear that Asstt. Colonisation Commissioner cancelled the allotment on the basis of complaint of Gurdayal Singh. In the complaint there was specific allegation that the present appellants were having a joint khata of the purchased land including 3-3 bighas in their names, making total 12 bighas 10 biswas and 12 bighas 10 biswas land in their names. This important fact of having land in their names was concealed while applying for getting the allotment of the land in muraba No. 111/332 and on the basis of such concealment of the facts of having land already in their names 20 bighas of the land was got allotted as a permanent allotment and 5 bighas of the land was got allotted as temporary cultivation. Before Tehsildar, Padampur only fact of having 3 bighas land was disclosed. It is only on the basis of complaint by Gurdayal Singh this fact came to the knowledge of Asstt. Colonisation Commissioner. Shri Gurdayal Singh, the complainant, also disclosed that before getting the allotment of land in muraba No. 111/332 the present appellants sold the land of their joint khata and the complainant in order to prove his allegation in the complaint submitted certified copies of the sale deeds of the sale made by the appellants. On making detailed enquiry Asstt. Colonisation Commissioner was satisfied that the disputed allotment was made on account of misrepresentation made by the present appellants. On cancellation of the allotment of the appellants by order dated 5.8.78 by Asstt. Colonisation Commissioner, Suratgarh an appeal was filed by the present appellants before the Add. Colonisation Commissioner cum Revenue Appellate Authority, Bikaner and the Revenue Appellate Authority initially set aside the order of the Asstt. Colonisation Commissioner by judgment dated 1.10.80 and remanded the matter back to Asstt. Colonisation Commissioner with the direction that the land allotted to the appellant including allotment made in muraba No. 107/332, 107/331 be not cancelled and only excess land allotted to the appellants can be cancelled. Colonisation Commissioner by judgment dated 1.10.80 and remanded the matter back to Asstt. Colonisation Commissioner with the direction that the land allotted to the appellant including allotment made in muraba No. 107/332, 107/331 be not cancelled and only excess land allotted to the appellants can be cancelled. After remand by the Revenue Appellate Authority, Asstt. Colonisation Commissioner by his initial order dated 23.1.82 cancelled 10 bighas of the excess land in muraba No. 111/332 but subsequently by order dated 30.5.84 whole of the excess land i.e. 25 bighas of the land (10 bighas land in muraba No. 111/332 allotted to Bakhtawar Singh, 9.16 bighas land to P.S. in Muraba No. 111/332 and 5 bighas land allotted because of above permanent allotment made as temporary cultivation allotment) was cancelled by Asstt. Colonisation Commissioner. The cancellation order of Asstt. Colonisation Commissioner was challenged before the Revenue Appellant Authority, Bikaner who accepted the appeal and set aside the order of Asstt. Colonisation Commissioner. Against this order of Revenue Appellate Authority complainant filed a revision petition before the Board of Revenue and the revision petition filed by Gurdayal Singh was allowed by the Board and matter was remanded back. In view of facts stated above. It is clear that it is the complainant Gurdayal Singh who has brought illegalities before the concerned allotting/cancelling authorities as well as before the Board of Revenue in the revision. Therefore, in the present appeal, it was necessary for the appellant to make Gurdayal Singh as a respondent in the present appeal but he has avoided to implied Gurdayal Singh as a party, certainly he is a necessary and proper party. Therefore, it cannot be said that the complainant is not a necessary and proper party. So far as the right of complainant to file the appeal or revision is concerned, Rajasthan High Court in 2002 RRD 43 (4), has overruled the judgment of Larger Bench of the Board of Revenue and has held that in the matter of allotment complainant has every right to file the appeal and the revision before the higher authorities. So far as the right of complainant to file the appeal or revision is concerned, Rajasthan High Court in 2002 RRD 43 (4), has overruled the judgment of Larger Bench of the Board of Revenue and has held that in the matter of allotment complainant has every right to file the appeal and the revision before the higher authorities. In the present case, the matter was remanded back to the Revenue Appellate Authority on account of a decision given in a revision filed by the complainant, complainant is certainly a necessary and proper party to the proceedings in the present appeal and without imploding the complainant as party the present appeal is incompetent appeal and it can be dismissed on this court alone. However, I would like deal with this appeal on merit also. (8). Learned counsel for the appellant on merit has raised the arguments that since the allotment of the disputed land was made to him by Dy. Colonisation Commissioner, therefore; Asstt. Colonisation Commissioner was having no jurisdiction and was not competent to cancel the allotment. In this regard, section 2(2) of the Colonisation Act provides that every officer has been delegated the power of Collector, therefore, while making the allotment Dy. Colonisation Commissioner was exercising the power and the jurisdiction of Collector. Similarly, the Asstt. Colonisation Commissioner who has also been delegated the power of Collector, was competent to cancel the illegal allotment on the basis of complaint filed by Gurdayal Singh. The scheme of the Actin this regard is also very clear which provides that any order either by Asstt. Colonisation Commissioner or by Dy. Colonisation Commissioner is not appealable before the Collector but the appeal lies against the order of both the officer before the Revenue Appellate Authority treating the order passed by either of the officers as an order of Collector. (9). In this regard it is not disputed that the allotment of the land the petitioner was made by the Dy. Colonisation Commissioner. It is also not disputed that the cancellation of excess land of the petitioner has been done by Asstt. Colonisation Commissioner. It is also an established principle of law that whenever a higher officer passed any order that order cannot be cancelled by the lower officer but in present case the Asstt. Colonisation Commissioner as well as Dy. Colonisation Commissioner. It is also not disputed that the cancellation of excess land of the petitioner has been done by Asstt. Colonisation Commissioner. It is also an established principle of law that whenever a higher officer passed any order that order cannot be cancelled by the lower officer but in present case the Asstt. Colonisation Commissioner as well as Dy. Colonisation Commissioner have passed the orders, exercising the power of Collector vide notification No. F4(7) Rev/Col/73 dated 11.10.1974, the Asstt. Colonisation Commissioner, Suratgarh has been appointed to perform all function and exercise power of Collector under the Colonisation Act, 1954. This power has been conferred in sub-clause (a) of clause (1) of section 2 of the Rajasthan Colonisation Act. The Notification No. F4(7)Rev/Col/73 dated 11.10.1974 reads as under:- ``S.O.111-In partial modification of this department Notification No. f.4(4) Rev/Col/69 dated 31.10.1969 and in exercise of the powers conferred by sub-clause (a) of clause (1) of section 2 of the Rajasthan Colonisation Act, 1954 (Rajasthan Act XXVII of 1954, the State Government hereby also appoints the following officer to perform all the functions and exercise all the powers of the Collector under the said Act within the respective territorial jurisdiction noted against it:- Asstt. Colonisation Commissioner Area of Tehsil (Colonisation) Suratgarh R.C.P. (1) Suratgarh No. 1 (2) Suratgarh No. 2 Similarly, Notification No. F.4 (7) Rev/Col/73 dated 2.2.1974, which reads as under:- ``S.O. 176-In exercise of the powers conferred under Sub- clause (a) of clause (1) of section 2 of the Rajasthan Colonisation Act, 1954 (Rajasthan Act, XXVII of 1954), and in partial modification of this Department Notification No. f.4(c) (1) Rev/Col/71 dated 31.5.1971, the State Government hereby appoints the following officer to perform all the functions and exercise all the powers of the Collector under the said Act within the respective territorial jurisdiction noted against it:- Dy. Colonisation Commissioner, Area of Tehsil (Colonisation) Suratgarh IGPC (1) Suratgarh No. 1 & 2 (2) Suratgarh No. 3. On perusing these two Notification it makes clear that both the officers, Asstt. Colonisation Commissioner and Dy. Colonisation Commissioner have been conferred the powers of Collector and the orders of either allotment or cancellation are being made by them exercising the power of Collector, therefore, in the present case it cannot be said that while cancelling the allotment made by Dy. Colonisation Commissioner, the Asstt. Colonisation Commissioner and Dy. Colonisation Commissioner have been conferred the powers of Collector and the orders of either allotment or cancellation are being made by them exercising the power of Collector, therefore, in the present case it cannot be said that while cancelling the allotment made by Dy. Colonisation Commissioner, the Asstt. Colonisation Commissioner because he has done so in exercising the power of Collector, which was exercised by the Dy. Colonisation Commissioner while making the allotment. In view of this, the authorities 1971 RRD 25 (supra), 1983 RRD 324 (supra), and 1987 RRD 445 (supra), are not applicable to the facts and circumstances of the present case. Under section 11/14 of the Colonisation Act, the Collector is competent authority to cancel the allotment of the allottee as well under the Rules of 1975 the allotting authority is also authorised to cancel the allotment. It is not disputed that the Collector is the allotting authority under the provisions of the Act and the Rules; therefore, Dy. Colonisation Commissioner and Asstt. Colonisation Commissioner under the delegated power by the Notification referred above are allotting as well cancelling authorities. (10). The second arguments of the learned counsel of the appellants is that the disputed land was allotted to the petitioner in the year 1972, therefore, after a period of 30 years the cancellation of allotment is not justified. In the present case, the petitioner was only entitled to be allotted 25 bighas of land but by misrepresentation and concealment of facts he has obtained the allotment of more than 25 bighas of land. On the complaint being filed by Gurdayal Singh and on the basis of his complaint it was detected that petitioner has got excess land allotted (10 bighas land of muraba No. 111/332 allotted to Bakhtawar Singh and 9.16 bighas land to Phoola Singh in muraba No. 111/332 and 5 bighas land allotted because of above permanent allotment) and the allotment of this excess land in muraba No. 111/332 has been cancelled and the allotment of remaining land of muraba No. 107/331, 107/332 was kept intact. It has been held by the Honble Rajasthan High Court in Sohan Kanwar vs. Board of Revenue (5), that if any allotment has been obtained by misrepresenting the facts of land-less persons then that allotment could be cancelled even after 30 years of the allotment. It has been held by the Honble Rajasthan High Court in Sohan Kanwar vs. Board of Revenue (5), that if any allotment has been obtained by misrepresenting the facts of land-less persons then that allotment could be cancelled even after 30 years of the allotment. Therefore, this argument of the petitioners have no force that the allotment has been cancelled after 30 years. In view of the facts that the allotment was obtained by misrepresentation. (11). The argument of the petitioner that the judgment of Revenue Appellant Authority is not a reasoned order has also no force, because Revenue Appellate Authority has given reasons in its decision of 24.11.2001. The petitioner has further argued the the directions issued by the Board in its judgment dated 11.7.91 have not been complied with, this argument of the petitioner has also no force because the Revenue Appellate Authority has decided the appeal taking into account the allegations which were levelled by the complainant with regard to allotment of excess land obtained by the petitioner by misrepresentation. In the judgment of Board of Revenue which was passed on the revision petition filed by the complainant Gurdayal Singh in which Revenue Appellate Authority Bikaner was asked to ascertain that how the petitioners were having land more than permissible limit which was only 25 bighas, on the basis of the observation of the Board of Revenue the Revenue Appellate Authority came to the conclusion that allegations made in the complaint by Shri Gurdayal Singh were correct and the petitioner by misrepresenting and concealment of facts able to obtain allotment of the disputed land, which was excess than they were entitled. (12). In view of the above, this appeal has no force and is hereby dismissed and the judgment passed by Revenue Appellate Authority, Bikaner dated 24.11.2001 is upheld. Pronounced in open court.