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2005 DIGILAW 1886 (RAJ)

Oswal Samaj v. The Board of Revenue

2005-07-25

V.K.BALI

body2005
Judgment V.K. Bali, J.-Oswal Samaj, Balotra and Mr. Paras Chand Bhandari, Manager and Authorised Representative of Oswal Samaj, Balotra have filed this petition under Articles 226 and 227 of the Constitution of India seeking to set aside order (Annexure-5) dated 20.07.1993 passed by the Board of Revenue for Rajasthan, Ajmer. 2. Brief facts giving rise to the present petition as projected reveal that within the revenue boundary of the Balotra town there exists an agricultural land entered in Khasra No. 853 which is situated on the Southern Bank of river Luni. This Khasra was earlier known as Khasra No. 456/1 of having area of two bighas and one biswa but in the new settlement the number of the Khasra has been changed to 853/1 having an area of 1.7 bighas. Formally it was in the Khatedari of Shri Kana and Ram son of Nenal Mali. By virtue of registered sale-deed dated 12.06.1970 this land was purchased by Oswal Sewa Sudhar Samiti, Balotra for the purpose of extension of cremation ground and for the purpose of keeping the disabled and abandoned animals. Adjacent to this land, there exists 13 biswas of land on the southern bank of river Luni. This piece of land is surrounded by Khasra Nos. 829, 853 and 854, which is recorded as agricultural land. Patwari of the area reported that the Oswal Samaj is in possession of 13 biswas of land in Khasra No. 853 which is in excess of their own land. The Tehsildar Pachpadra issued various notices to the office bearers of Oswal Samaj for vacating the land. The Oswal Samaj however, moved an application for the regularisation of the excess land in their possession in accordance with Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (herein after referred to as “The Rules” of 1970). On the application aforesaid, the Tehsildar reported that the Oswal Samaj is in possession of this land from Samvat 2030 as is made out from Khasra parivartanshil. The Tehsildar recommended that this possession can be regularized, the Municipal Board, Balotra had no objection to it. The Municipal Board, Balotra had also issued a no objection certificate for the same. The Tehsildar by his order dated 17.04.1984 recommended to the Land Allotment Committee that in his opinion it was a fit case for regularisation. The order has been placed on record as Annexure-1. The Municipal Board, Balotra had also issued a no objection certificate for the same. The Tehsildar by his order dated 17.04.1984 recommended to the Land Allotment Committee that in his opinion it was a fit case for regularisation. The order has been placed on record as Annexure-1. The Land Allotment Committee vide order dated 21.07.1984 resolved that 13 biswas of the land in Khasra No. 853 should be regularised in favour of the petitioners and the same has been placed on record as Annexure-2. It bears the signatures of Tehsildar, Pachpadra, the S.D.O., Balotra and various office bearers of the Land Allotment Committee. Two years after the order aforesaid was passed, Tehsildar, Pachpadra moved an application under Section 14(4) of the Rules of 1970 for the cancellation of order made by the Land Allotment Committee dated 21.07.1984 on the ground that it has been procured by practicing fraud. The Additional Collector, Barmer rejected the application of the Tehsildar on the ground that the allotment had not been secured on fraud or even against the Rules of 1970. He held that from the records it was clear that the petitioner was in old possession and, therefore, there was no ground to cancel the order of allotment of small strip of land. The Additional Collector vide order dated 20.04.1988 rejected the application of the Tehsildar that was filed under Section 14(4) of the Rules of 1970. This order, which has been placed on record as Annexure-3 was not challenged in any higher forum. However, in the year 1989, Tehsildar Pachpadra again filed an application under Section 82 of the Rajasthan Land Revenue Act, 1956 seeking a reference before the Board of Revenue for Rajasthan at Ajmer for cancellation of order dated 20.04.1988. The District Collector, Barmer made a reference to the Board of Revenue for cancellation of the order referred above, on 06.08.1992 and the Board of Revenue vide impugned order dated 20.07.1993 cancelled the order dated 20.04.1988. It is in these circumstances, that the present writ petition seeking to set-aside the order Annexure-5 dated 20.07.1993 has been filed. 3. The District Collector, Barmer made a reference to the Board of Revenue for cancellation of the order referred above, on 06.08.1992 and the Board of Revenue vide impugned order dated 20.07.1993 cancelled the order dated 20.04.1988. It is in these circumstances, that the present writ petition seeking to set-aside the order Annexure-5 dated 20.07.1993 has been filed. 3. Learned Counsel appearing on behalf of the petitioner vehemently contends that the Board of Revenue clearly erred while holding that the Land Allotment Committee had no jurisdiction to regularise the possession of the petitioner as, by virtue of Rule 19 of the Rules of 1970 it was an Advisory Committee, alone, which could make a recommendation for regularisation of the possession and the SDO, Balotara had to pass the order. In the present case, it is stated that the SDO, Balotara was present in the meetings of the Advisory Committee and, therefore, the provisions of Rule 19 of the Rules of 1970 were complied with. He further contends that the State having failed to achieve cancellation of the order when it moved an application under Rule 14(4) of the Rules of 1970 could not then resort to provisions of Section 82 of the Rajasthan Land Revenue Act, 1956 in seeking reference for setting aside the same order and that too after so many years. 4. Pursuant to notice issued by this Court, the respondents have entered defence and while filing written statement opposed the cause of the petitioners. 5. I have heard the learned Counsel appearing on behalf of the parties and with their assistance examined the records of the case. There appears to be a considerable merit in the contentions of the learned Counsel appearing on behalf of the petitioner that the order regularising possession of the petitioner was passed by the competent Authority. A perusal of Annexure-1 dated 17.04.1984 would manifest that the matter was taken up by the Advisory Committee in presence of SDO, Balotra. The Advisory committee unanimously opined allotment of land in favour of the petitioner. Once, the SDO of the concerned area was present himself and had signed the proceedings of the Advisory Committee. It could not be said by any stretch of imagination that the order of allotment was not passed by the Competent Authority. The Advisory committee unanimously opined allotment of land in favour of the petitioner. Once, the SDO of the concerned area was present himself and had signed the proceedings of the Advisory Committee. It could not be said by any stretch of imagination that the order of allotment was not passed by the Competent Authority. That apart, it would not be fair for the State to seek same remedy by having resort to different provisions contained in various Acts or Rules as the case may be. Surely, the Tehsildar of the area sought setting aside the order Annexure-1 under the provisions of Rule 14(4) of the Rules of 1970 on the same very grounds which were pressed into service later in point of time culminating in to order Annexure-5. It may be true, that the procedure seeking setting aside of the order passed by the Advisory Committee may be permissible under two different Statutes but this Court is of the considered opinion that if one remedy is resorted to by the State, having lost its cause therein, it cannot seek another remedy and that too on the same very grounds. If the State was aggrieved with the order passed by the Asstt. Collector, which is detailed one dealing with all possible arguments raised by the State and which were taking into consideration, it ought to have challenged the said order in the higher forum and if no forum under the relevant Statute was available to rake up the issue under Article 226 of the Constitution of India. Once, the order passed by the Asstt. Collector rejecting the application of the State filed under Rule 14 (4) of the Rules of 1970 was dismissed resort to Section 82 of the Rajasthan Land Revenue Act, 1956 for seeking reference for the same object and the result would be inequitous and illegal. It is significant to mention that a positive finding of fact came to be recorded that the petitioner had not indulged in any fraud or mis-representation for seeking allotment of small strip of land in his favour. The Board of Revenue, however, returned such a finding without any basis whatsoever. That the petitioner was in possession of land in dispute was not in dispute. In fact, concerned Patwari had himself stated that the petitioner was indeed in possession of the land. The Board of Revenue, however, returned such a finding without any basis whatsoever. That the petitioner was in possession of land in dispute was not in dispute. In fact, concerned Patwari had himself stated that the petitioner was indeed in possession of the land. The Municipal Board had reported NOC for allotment of the land to the petitioner which was for a common and public cause. What mis-representation was made by the petitioner and how the allotment was obtained by fraud has not been apprised to the Court even at this stage. Learned Counsel for the petitioner has cited two Judgment s of the Division Bench of this Court in the case of State of Rajasthan vs. Teja, 2005 (1) CDR 505 (Raj) and Lalu & Ors. vs. Board of Revenue & Ors. 2000 (3) WLN 160 and on the basis thereof contends that resort to provisions of Section 82 of the Rajasthan Land Revenue Act, 1956 could not be made after inordinate delay. The judicial precedence stated by the learned Counsel for the petitioner do support the case of the petitioner but this Court is of the view that the impugned order Annexure-5 State cannot be permitted resort to various provisions for achieving the same results. Therefore, if the State may move an application for a desired relief and it may fall in its endeavor, it cannot then resort to other provisions provided under different Statute for the same relief . 6. In view of discussions made above, this writ petition succeeds and the order Annexure-5 dated 20.07.1993 passed by the Board of Revenue, Ajmer is set-aside and one passed by the Additional Collector, Barmer Annexure-3 dated 20.04.1988 is upheld. The parties shall however, bear their own costs.