Judgment 1. The present special appeal is filed against a decision of learned Single Judge of this Court. The learned Single Judge dismissed the writ petition holding inter alia that the writ petition in question was filed after considerable delay. The learned Single Judge noted that the earlier filed writ petition was withdrawn on 07.01.1999 and the second writ petition, which is in question. Was filed after 18 months of delay. The learned Single Judge noticed that the petitioner wants to usurp the land by hook and crook. For decision of this special appeal it would be necessary to look into facts of the case because the learned counsel urged that the learned Single Judge has not dealt on the facts of the case in detail and has on technical grounds dismissed the appeal. We are therefore, going in for examination of the facts in detail. 2. Near the city of Nagaur, a chunk of 150 Bhighas of land was allotted to Housing Board for developing housing cluster. The appellant petitioners claim Khatedari rights on 27 Bighas of land which is situated in proximity of the lands allotted to the Housing Board. Revenue Authorities felt that petitioners are trespassers and a notice under Section 91 of the Rajasthan Land revenue Act, 1956 [hereinafter referred as the Act of 1956] was issued. An appeal was filed before the Collector against the order of Tehsildar. The Collector upheld the order of Tehsildar by its order dated 09.08.1990. An appeal was preferred by Hanif Khan before the Revenue Appellate Authority wherein the matter was remanded back to the Collector. The Collector once again rejected the claim of Hanif Khan. 3. The Judgment of the Collector was once again challenged before the Revenue Appellate Authority. A Commissioner was appointed by the Revenue Appellate Authority to look into the matter. Finally, Revenue Appellate Authority ordered that Hanif Khan was entitled to the allotment of land measuring 27 Bighas. It was to be distributed amongst the three present petitioners. The Khatedari rights were ordered to be conferred on Hanif Khan under Rule 20 of the Allotment of Land for Agriculture Purposes Rules, 1970 [hereinafter referred to as the Rules of 1970] 4. Rule 20 of the said rules is reprodced herewith for ready reference. 20. It was to be distributed amongst the three present petitioners. The Khatedari rights were ordered to be conferred on Hanif Khan under Rule 20 of the Allotment of Land for Agriculture Purposes Rules, 1970 [hereinafter referred to as the Rules of 1970] 4. Rule 20 of the said rules is reprodced herewith for ready reference. 20. Allotment of land to trespassers.-(1) Notwithstanding anything contained in these rules, subject to the specific or general direction of the State Government, the Sub-Divisional Officer may on the advice of the Advisory Committee, instead of ejecting a trespasser from any land occupied by him without any lawful authority, allow him to retain such land if he is a [landless agriculturist] and the total area of land held by such person including the land so allotted does not exceed 75 Bighas in, Barani areas of the former Bikaner Division. Barmer District (except Siwana Tehsil), Jaisalmer District and Tehsils Shergarh, Phalodi and Osian excluding 40 villages as mentioned in Schedule I of Jodhpur District, not covered by any irrigation project and 15 Bighas in any other part of the State and that the land so allotted does not fall within the categories specified in Rule 4 of these Rules.] (2) [Upon such allotment, the allottee] shall be bound by the conditions of allotment laid down in these rules and Khatedari right shall accrue to him as if his case was of allotment under these rules. 5. A revision was preferred before the Board of Revenue. The Board of Revenue held that the order of Revenue Appellate Authority as far as the question of bestowing of Khatedari rights are concerned is not correct. However, the matter is to be considered for regularization by the Sub-Divisional Officer. The petitioners contended that State Government has not challenged the order of Board of Revenue and it has attained finality. A copy of the Judgment of the Board of Revenue was submitted before the S.D.O. Nagaur and S.D.O. entered the mutation of 25.05.1995. Subsequently, such mutation was ordered to be cancelled by the S.D.O. and it was done without notice. Directions were issued by the S.D.O. to the Tehsildar for cancellation of mutation which was cancelled by the Tehsildar vide order dated 11.03.1996. Subsequently, such mutation was ordered to be cancelled by the S.D.O. and it was done without notice. Directions were issued by the S.D.O. to the Tehsildar for cancellation of mutation which was cancelled by the Tehsildar vide order dated 11.03.1996. The petitioners claim that such order was without jurisdiction though he had filed certain appeals before the Authorities against the cancellation of mutation but he withdrew those appeals and challenged the same before this Court in the present writ petition. 6. The claim of the petitioners is that such order being without jurisdiction is liable to be challenged in the High Court directly. Petitioners also preferred an appeal against that order and have withdrawn the same. The petitioners claim is that the order of the Board of Revenue refusing to allow Khatedari rights to the petitioner is wrong. Though he had claimed that the order has become final after the same being passed on 05.05.1995, still he has chosen to challenge the order before this Court in the present writ petition. The petitioner claims that under the orders of S.D.O. Nagaur dated 22.05.1993 under Rule 20 of the Rules of 1970, sanads were issued in favour of the petitioner and since, the Board of Revenue did not take note of these Sanads the order of Board of Revenue refusing the Khatedari rights is incorrect. 7. The petitioners further said that big flow of aabadi has come in this area and hundreds of houses have been constructed and while claiming this, it is claimed that land was outside the territory of the Municipal area and houses have come without permission of the Municipal Board. Another fact which requires to be noticed at this juncture is that the petitioners have sold the land in question to some persons who have been impleaded as party in the present proceedings. 8. A writ petition was earlier filed on behalf of the petitioners on the strength of a power of attorney by Shakti Singh against the same order. That writ petition was withdrawn. Such writ petition was permitted to be withdrawn with liberty to file fresh. It may be noticed here as well that Bhanwar Singh and Asha Ram who are the purchasers of the land from Gulam Mustafa, one of the petitioners in the writ petition, are also before this Court in writ petition. That writ petition was withdrawn. Such writ petition was permitted to be withdrawn with liberty to file fresh. It may be noticed here as well that Bhanwar Singh and Asha Ram who are the purchasers of the land from Gulam Mustafa, one of the petitioners in the writ petition, are also before this Court in writ petition. In writ petition, they have also challenged the order of the Board of Revenue. Another fact which requires to be noticed here is that the State Government has passed some orders on 10.06.1998 to change the nature of land from Aagore (Tank catchment area) to Barani. Such orders are referred by the petitioner in writ petition in Paragaraph 22. Thus, it is important to see that until this order of the State Government i.e. 10.06.1998, the land was of the nature of Aagore. It is not clear whether any order was passed by the S.D.O., to change the character of the land and if not passed, then the land continued to be Aagore. In the aforesaid background, this Court is required to examine whether the orders passed by the learned Single Judge are required to be interfered or not. 9. As has been seen from the averments of the writ petition, we find that until the orders were passed by the State Government vide order dated 10.06.1998 the land continued in the revenue records to be Aagor, a land which is unavailable for allotment. Thus, until this character of the land is not changed, there is no question of application of Rules of 1970 which are the rules invoked by the petitioners for allotment. In Rule 4[1] of the Rules of 1970, it has been mentioned that land mentioned in Section 16 of the Rajasthan Tenancy Act, 1955 would not be available for allotment. Rule 4(i) of the Rules of 1970 is quoted herein below for ready reference:- "4. Land not available for allotment under these rules.-The following categories of lands shall not be available for allotment for agricultural purposes under these rules, namely- (i) Lands mentioned in the Section 16 of the Rajasthan Tenancy Act, 1955, (ii) …………………. (iii) …………………………. (iv) …………………………. (v) ………………………… (vi) ………………………… (vii) ………………………… 10. Land not available for allotment under these rules.-The following categories of lands shall not be available for allotment for agricultural purposes under these rules, namely- (i) Lands mentioned in the Section 16 of the Rajasthan Tenancy Act, 1955, (ii) …………………. (iii) …………………………. (iv) …………………………. (v) ………………………… (vi) ………………………… (vii) ………………………… 10. In Section16[ii] & 16 [xiv] of the Act of 1955 it has been mentioned that Khatedari rights shall not accrue in the bed of a river or a tank, Section 16[ii] & 16[xiv] is quoted herein below for ready reference :- "16. Land in which Khatedari rights shall not accrue.-Notwithstanding anything in this Act or [in any other law or enactment for the time being in force in any part of the State] Kahtedari rights shall not accrue in- (i) …………………………. (ii) land used for casual or occasional cultivation in the bed of a river [or tank]; (iii) ……………………… .(iv) ……………………… .(v) ……………………… .(vi) ……………………… (vii) ……………………… (viii) ……………………… .(ix) ……………………… .(x) ……………………… .(xi) ……………………… (xii) ……………………… (xiii) ……………………… (xiv) land which has been set apart or is, in the opinion of the Collector, necessary for the flow of water therein into any reservoir or tank of drinking water for a village or for surrounding villages :" 11. Thus, it will be seen that till date, the land continues to be Aagore and that being the position the question of such land being available for allotment under the Rules of 1970 is eclipsed by the provisions of the Tenancy Act and no allotment was possible of such land. It may also be noticed that the land covered by Rule 4(1) of the Rules of 1970 cannot be subjected to any treatment under the rules including regularisation under Rule 20 of the rules because the same has been specifically excluded by the rule. 12. The case of the petitioner further suffers from handicap because the land was not available for allotment because according to the State Government Notification dated 01.04.1991. Operation of the Rules of 1970 has been excluded from the District Nagaur. 12. The case of the petitioner further suffers from handicap because the land was not available for allotment because according to the State Government Notification dated 01.04.1991. Operation of the Rules of 1970 has been excluded from the District Nagaur. Notification of the State Government reproduced herein for ready reference:- th-,l-vkj- 24 %& jkT; ljdkj us bl foHkkx dh vf /klwpuk Øekd i- 6¼7½jkt@4@77@20] fnukad 29-1-1983 }kjk xSj eqefdu Hkwfe ij flQZ d`f"k iz;kstukFkZ fnukad 01-07-1978 ls iwoZ rd fd, x, vfrØe.kksa dks jktLFkku Hkw-jktLo ¼d`f"k iz;kstukFkZ Hkwfe dk vkoaVu½ fu;e] 1970 ds fu;e 20 ,oa puk Øekad i-6¼7½jkt-4@77 fnukad 1-4-1977 easmYysvf /klwf [kr fucU/kuksa ,oa krkZs ij fu;fer fd;s tkus ds vknsk izpuk tks/kiqj tkykSlkfjr fd;s x;s A ;g vf /klwj] tSlyejs] ckM+esj] ukxkjS] ikyh] chdkusj rFkk pw: ftyksa esa ykxw ugha gksxh A ijUrq bu ftyk ds lefUor xzkeh.k fodkl dk;ZØe ds ykHkkfUorksa dks fu;eu dk ykHk fn;k tk ldsaxk rFkk vU; ekeyksa esa ,d gSDVj rdA xSj eqefdu Hkwfe ij fd;s x;s vfrØe.kksa dks fu;eu djus ds iz;kstu ls jktLFkku Hkw-jktLo d`f"k iz;ks~tukFkZ Hkwfe dk vkoaVu ¼fu;e] 1970 ds fu;e 20 ds vuqlj.k esa jkT; ljdkj ,rn}kjk funsZk gsrh gS fd jktdh; xSj eqefdu Hkwfe ij Hkwfeghu d`"kdks }kjk fd;s x;s flQZ d`f"k iz;kstukFkZ vfrØe.kkas dks tks fd fnukad 15-07-1984 ;k mlds iwoZ ds gks] mUgha fucU/kukas ,oa krksZ ij fu;fer dj fn;k tkos tks fd vknsk i-6¼7½jkt-@4@77@7 fnukad 01-04-1991 esa fufgr gSA ¼la[;k i-6¼7½jkt-@4@77@jkt-6@12½ vkKk ls jkeohj flag Hkaoj] mi kklu lfpo 13. That being the position, the case of the petitioner for allotment was rightly refused by the Board of Revenue and therefore, no Khatedari rights could accrue to the petitioners. 14. As regards the order of cancellation of mutation is concerned it may be mentioned here that mutation entries were cancelled pursuant to the order of the Board of Revenue because the Board of Revenue had agreed that the petitioner is not entitled for allotment. If the entitlement of allotment has been negated, them existence of the entries of mutation which were the consequence of the order of Revenue Appellate Authority cannot sustain. Even if a notice was given to the petitioner that would have been of no consequence because such orders have only been made pursuant to the judicial order which was within the knowledge of the petitioner and according to the petitioner that order has become final. Even if a notice was given to the petitioner that would have been of no consequence because such orders have only been made pursuant to the judicial order which was within the knowledge of the petitioner and according to the petitioner that order has become final. The petitioners have chosen to challenge the order in these writ petitions but until that order is invoked, existence of the mutation entries cannot be justified. Further, the orders of cancellation of mutation were liable to be challenged in appeal and appeal was preferred. That appeal having been withdrawn with the expectation that this Court will hear and interfere with the order of cancellation, the petitioner has gambled. It is not clear whether such appeals were withdrawn with our permission or not? The petitioners first writ petition was dismissed on being withdrawn, the same was filed on similar grounds on the same ground. Second writ petition has been filed belatedly and if the writ petition has been dismissed by the learned single Judge on the ground of delay, we do not see that any illegality has been committed by the learned Single Judge. More particularly, when the petitioners without having acquired any right have sold and the land have tried to create third party rights. This conduct of the petitioner also robs away their right to come to this Court because whatever rights they had have already been sold. Such petitioners who have ceased to hold any right, cannot be permitted to claim any subsisting right with them. Thus the special appeal filed by the petitioner having no force is consequently dismissed. 15. The writ petitions of Bhanwar Singh and another and Mishri Lal and another cannot be entertained for the simple reason that they are the purchasers of the land from Gulam Mustafa and Najudeen respectively and who had already sold the land without there being any right vesting with them. We do not see any reason to interfere at the instance of Bhanwar Singh and Mishri Lal, more particularly when the land cannot be allotted as it is Aagore land. It has been seen by us that these are Aagore lands and such lands are not available for allotment. Consequently the writ petition and appeal are meritless and are dismissed.