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2005 DIGILAW 1009 (RAJ)

Ram Chander v. Board of Revenue

2005-04-05

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-Heard learned Counsel for the parties. 2. The facts required to be noticed to adjudicate instant writ petition are that a land measuring 3 bighas and 15 biswas was allotted under Bhakhra Project (Government Land Allotment and Sale) Rules, 1955 (hereinafter referred to as “the Rules of 1955”) in chak 8 KRW Square No. 84/117, Kila Nos. 1, 2 & 10 and also in chak No. 3 SDS Murrabba No. 83/117 Kila No.15 to Shri Bhagirath by competent authority. Aforesaid Shri Bhagirath was ejected form the aforesaid land as he transferred the land illegally to certain other persons. Shri Bhagirath was ejected from land after following the procedure prescribed under Section 175 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as “the Act of 1955”). 3. The land from which Shri Bhagirath was ejected was subsequently allotted to the petitioner by an order dated 04.08.1981 under the Rules of 1955 under “Antyodaya” Scheme being a person belonging to below poverty line. 4. The allotment made in favour of the petitioner was challenged by Smt. Mamkaur widow of Bhagirath by way of filling an appeal before the Revenue Appellate Authority, Bikaner. The Revenue Appellate Authority, Bikaner by an order dated 30.08.1982 accepted the appeal preferred by Smt. Mamkaur by directing Sub-Divisional Magistrate, Hanumangarh to reconsider the issue with regard to allotment of land to the petitioner. The Sub-Divisional Magistrate, Hanumangarh in pursuance of the order dated 30.08.1982 reconsidered the matter afresh and by order dated 27.03.1984 allotted the land in dispute to Smt. Mamkaur. The Sub-Divisional Magistrate, Hanumangarh while cancelling the allotment made in favour of the petitioner and making allotment in favour of Smt. Mamkaur held that in view of provisions of Sub-rule (3) of Rule 3 of the Rules of 1955 the land from which Shri Bhagirath, a person belonging to Scheduled Caste, was ejected, therefore, it could have been allotted to a member of Scheduled Caste only. The Sub Divisional Magistrate held that the allotment could not be made in favour of petitioner Ram Chander being Kumhar by caste. 5. The petitioner being aggrieved by the order dated 27.3.1984 passed by Sub-Divisional Magistrate, Hanumangarh preferred an appeal before Revenue Appellate Authority, Bikaner but the same was also rejected by Judgment dated 112.1984. The Sub Divisional Magistrate held that the allotment could not be made in favour of petitioner Ram Chander being Kumhar by caste. 5. The petitioner being aggrieved by the order dated 27.3.1984 passed by Sub-Divisional Magistrate, Hanumangarh preferred an appeal before Revenue Appellate Authority, Bikaner but the same was also rejected by Judgment dated 112.1984. The validity of Judgment dated 112.1984 was also challenged by the petitioner by way of filing a revision petition before the Board of Revenue, Rajasthan, Ajmer under Rule 18 (2) of the Rules of 1955. The Board of Revenue Rajasthan, Ajmer also rejected the revision petition by Judgment dated 04.03.1992 the Board of Revenue while affirming the orders passed by the Sub-Divisional Magistrate Hanumangarh and the Revenue Appellate Authority, Bikaner held that the land which was allotted to the petitioner became available on ejectment of Shri Bhagirath who was a member of Scheduled Caste, therefore, in view of Sub-rule (3) of Rule 3 of the Rules of 1955 the same could have been allotted to a person belonging to Scheduled Caste only. Being aggrieved by the orders passed by the Sub-Divisional Magistrate, Hanumangarh, Revenue Appellate Authority, Bikaner and the Board of Revenue, Rajasthan, Ajmer, the instant writ petition is preferred by the petitioner under Articles 226 & 227 of the Constitution of India. 6. No reply to the writ petition has been filed on behalf of the respondents. 7. The contention of Counsel for the petitioner is that the orders impugned suffer from manifest error which requires interference of this Court while exercising extraordinary jurisdiction as the Courts below failed to appreciate that Sub-rule (3) of Rule 3 of the Rules of 1955 came into force being added to Sub-rule (3) of the Rules of 1955 under a notification dated 211.1983 whereas the land in dispute was allotted to the petitioner on 04.08.1981, as such Sub-rule (3) has been wrongly applied in present case. 8. It is admitted position between the parties that the land was allotted to the petitioner by an order dated 04.08.1981 and in compliance of the order of allotment a patta was given by the competent authority to the petitioner on 07.08.1981. The possession of the land was also given to the petitioner immediately thereafter. Sub-rule (3) of Rule 3 of the Rules of 1955 was added to Rule 3 under a notification dated 211.1983. The possession of the land was also given to the petitioner immediately thereafter. Sub-rule (3) of Rule 3 of the Rules of 1955 was added to Rule 3 under a notification dated 211.1983. The relevant portion of the notification dated 211.1983 whereby Sub-rule (3) was added to Rule 3 of the Rules of 1955, reads as under:- “2. After Sub-rule 2 of Rule 3 of the said Rules the following new sub-rules shall be added namely: (3) Theland belonging to the member of Scheduled Castes or Scheduled Tribes which vests in the State Government under Sections 175, 176 of Rajasthan Tenancy Act, 1955 and under Sections 13 & 14 of the Rajasthan Colonisation Act, 1954, shall be allotted only to a members of Scheduled Castes and Scheduled Tribes respectively in accordance with the provisions of these Rules.” 9. From the facts stated above, it is quite clear that the day on which land was allotted to the petitioner, Sub-rule (3) of Rule 3 of the Rules of 1955 was not at all in existence. In view of it, the bar with regard to allotment of a land to a person belonging to the caste other than Scheduled Caste and Scheduled Tribe was not there at the time of allotment of land to the petitioner. It is true that when Sub-Divisional Magistrate, Hanumangarh decided the issue with regard to allotment of land to the petitioner in pursuance of the directions given by the Revenue Appellate Authority, Bikaner by Judgment dated 30.08.1992 Sub-rule (3) was in force. However, the same could have not been applied in present case as the Sub-Divisional Magistrate was reconsidering the matter and he was required to confine himself to the legal position as it was available on the day the land was allotted. The subsequent change in law could not be made applicable while reconsidering an issue. It is worthwhile to note that Sub-rule (3) of Rule 3 of the Rules of 1955 is having no retrospective application. Even otherwise, a right already accrued cannot be taken away even by retrospective application of law. 10. In view of whatever stated above, this writ petition deserves acceptance. The same, therefore is allowed. The orders impugned dated 04.03.1992 passed by Board of Revenue, Rajasthan, Ajmer; dated 112.1984 passed by Revenue Appellate Authority, Bikaner and dated 27.03.1984 passed by Sub-Divisional Magistrate, Hanumangarh are hereby quashed. 11. 10. In view of whatever stated above, this writ petition deserves acceptance. The same, therefore is allowed. The orders impugned dated 04.03.1992 passed by Board of Revenue, Rajasthan, Ajmer; dated 112.1984 passed by Revenue Appellate Authority, Bikaner and dated 27.03.1984 passed by Sub-Divisional Magistrate, Hanumangarh are hereby quashed. 11. No order as to costs.