JUDGMENT 1. - Naseer khan petitioner herein takes exception to order Annexure P-3 dated 28.9.1993 passed by the Board of Revenue for Rajasthan, Ajmer vide which, he was not allowed conversion of land use under sub-rules (5) of sub-clause (4) or sub-clause (5) of Rajasthan Land Revenue (Conversion of Agricultural Land for Residential or Commercial Purposes in Rural Areas) Rules, 1971. 2. The brief facts of the case reveal that the Tehsildar, Gangrar vide order dated 30.12.1971 regularised possession of some land in favour of petitioner. However, on a reference made by Collector to the Board of Revenue, the order dated 30.12.1971 was set aside with some directions, pursuant to which Collector, Chittor inspected the site and vide its order dated 11.09.1978 held petitioner entitled for regularisation of land measuring 4620 Sq. Ft. Against this order as well, Collector made a reference before the Board of Revenue. Even though, the contention of the petitioner before the Board of Revenue that the Collector had no power to make reference for setting aside the order passed by his predecessor, as such was upheld, yet, it was felt by the Board that the order of Collector was patently illegal and, therefore, the revision was converted into an application under section 9 of Rajasthan Land Revenue Act and notice was issued to the petitioner. 3. Admittedly, the matter is governed by the Rajasthan Land Revenue (Conversion of Agricultural Land for Residential or Commercial Purposes in Rural Areas) Rules, 1971 (hereinafter referred to as the 'Rules of 1971'). Concededly as well, by virtue of sub-rule (5) of sub-clause (4) or sub-clause (5) of Rule 3 there should not be any regularisation within 50 feet of Railway Boundary or National Highway or any road maintainable by the Government or Local Authority. It is not in dispute that the land which was regularised in favour of the petitioner was not within 50 feet of the Railway Boundary or National highway or any road maintainable by the Government or local authority. In fact, the land in possession of the petitioner is beyond the area mentioned above has since not been regularized, even though the petitioner was in possession of some land within that area as well. Is it. is only that land which was within the area as mentioned above which was regularized. In fact, the land in possession of the petitioner is beyond the area mentioned above has since not been regularized, even though the petitioner was in possession of some land within that area as well. Is it. is only that land which was within the area as mentioned above which was regularized. During the course of arguments before the Revenue Board, it was argued on behalf of the petitioner that even a no-khatedar was entitled to regularisation of possession by virtue of Rule 3 (4) of the Rules of 1971. This position was not disputed. The contention however raised on the basis of Rule 3 (4) of the Rules of 1971 was repelled on the sole ground that the said Rule had come into being on 29th August, 1988 and, therefore, in the year 1978 when order was passed with regard to the regularisation of land in possession of the petitioner, the said Rule was not in existence. 4. This matter is pending for disposal since 1994. No written statement has been filed on behalf of the respondent State. Averments. In the petition have to be believed and taken as correct on the ground of non-traverse. Be that as it may, the petitioner is in possession since last more than 50 years. He was in possession of land at the time of order, which was passed on 1 1.09.1976 and also on 29.08.1988 when Rule 3 (4) of the Rules of 1978 was inserted in the statute book. If during the currency of the proceedings Rule favouring petitioner had come into being the same ought to have been applied to determine entitlement of the petitioner. At the most, it could be said that the entitlement of the petitioner for regularisation of the land would be from 29th August, 1988. If supposing, the petitioner was to make a fresh application on 29th August, 1988, could it be said that the petitioner was not entitled to regularisation of the land. In considered view of this Court, the Board ought to have taken into consideration the entitlement of the petitioner under Rule 3 (4) of Rules of 1971. 5. It has also been averred in the petition that in the case of similarly situated persons, order regularising their possession has been passed and no reference in their case was made by the Collector to the Board of Revenue. 5. It has also been averred in the petition that in the case of similarly situated persons, order regularising their possession has been passed and no reference in their case was made by the Collector to the Board of Revenue. No doubt, while making averment to the effect aforesaid, the names of persons equally situate have not been mentioned. But, the State has chosen not to file any reply. The Court shall however not go into this ground in giving the relief to the petitioner as, in considered view of this Court, the petitioner was entitled to succeed on the basis of Rule 3 (4) brought in statute on 29th August, 1988, according to which, even a non-khatedar, like the petitioner, was entitled for regularisation of his possession. 6. In view of the discussion made above, the petition is allowed. The order dated 28th September, 1993 Annexure-P3 impugned in the petition is set aside. The order passed by the Collector dated 11th September, 1978 is upheld. Parties are left to bear their own costs.Petition Allowed. *******