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2005 DIGILAW 1901 (RAJ)

Shanti Devi v. State of Rajasthan

2005-07-26

V.K.BALI

body2005
Judgment V.K. Bali, J.-Shanti Devi is admittedly an oustee from Pong Dam. She was allotted 25 bighas of land in Chak No.2 p.m. Murabba No. 57/10 under the Rajasthan Colonisation (Allotment of Government Land to Pong Dam Oustees in Rajasthan Canal Colony) (Amendment) Rules, 1982 (hereinafter to be referred as Rules of 1982). 2. It is the case of the petitioner that she deposited some installments and took the possession of the land in dispute and started cultivating it. The allotment was made in the year 1973. Inasmuch, as some of the installments against the price of land were not deposited, the allotment made to the petitioner was cancelled on 111.1976. Despite that, petitioner remained in cultivatory possession of the land in dispute. On 22.04.1982 the Rajasthan Colonization (Allotment of Government land to Pong Dam Oustees in Rajasthan Canal Colony) (Amendment) Rules, 1982 came into force. Under the provisions of Rule 8-A of the amended Rules, 1982, petitioner filed a review application. In the amended Rules 1982, new proviso to Rule 7(5) of the Rules of 1972 was added. Under this proviso it was provided that when the order of cancellation of allotment is reviewed and restored under Rule 8-A of the amended Rules, 1982, the payment of remaining installments shall be rescheduled and spread over the remaining years in equal annual installments. It is the case of the petitioner that it was enjoined upon Allotting authority to reschedule the amount of remaining installments at the time when it passed an order of restoration of allotment under Rule 8-A of the amended Rules 1982. It is admitted position that the review application was indeed filed by the petitioner under Rule 8-A of the amended Rules, 1982 and was accepted on 26.02.1983 and the order of cancellation of allotment dated 111.1976 was set aside and the original allotment order was restored. The second respondent in his order dated 26.02.1983 directed the petitioner for depositing the installments within a period of 90 days. It is the case of the petitioner that while passing this order of restoration, the second respondent did not comply with the proviso added to Rule 7(5) of the Rules of 1972. Neither the remaining installments were rescheduled nor the amount of each installment together with interest was fixed. It is the case of the petitioner that while passing this order of restoration, the second respondent did not comply with the proviso added to Rule 7(5) of the Rules of 1972. Neither the remaining installments were rescheduled nor the amount of each installment together with interest was fixed. Thus, the petitioner filed an application before second respondent and prayed that petitioner be informed of the total amount to be deposited and the installments be rescheduled. The second respondent without deciding this application and without rescheduling the installments and without fixing the amount to be deposited, again cancelled the allotment for non-payment of installments. Petitioner then submitted yet another application before the second respondent and prayed that as his previous application was not decided and she was not informed about the amount of installments, hence she could not deposit the installments. She prayed that she be informed about the amount to be deposited so as to enable her to deposit the amount and also the installments be rescheduled. No orders were passed on this application as well by the second respondent. However, suo moto order Annexure-1 dated 31st May, 1985 came to be passed under Section 8-AA of the Rules of 1972, directing the petitioner to deposit the installments within 45 days. It is this order passed by Assistant Colonization Commissioner, the second respondent herein that the present writ petition has been filed under Article 227 of the Constitution of India. 3. Pursuant to notice issued, respondents have entered defence and contested the case of the petitioner. On facts, there is no dispute. It is, however, asserted that the petitioner is not in cultivating possession of the land in dispute. 4. Learned Counsel representing the parties are at variance in so far as possession of the petitioner is concerned. Whereas it is asserted by the Counsel appearing for the petitioner that she is in continuous possession of the land and this Court has passed an order for the parties to maintain status quo on 111.1986, learned Government Advocate contends that said order was passed only on the basis of averments made in the written statement that petitioner is not in possession of the land in dispute. 5. In so far as the controversy on the merits is concerned, the petitioner appears to be having a fool proof case. Facts as mentioned above are not in dispute. 5. In so far as the controversy on the merits is concerned, the petitioner appears to be having a fool proof case. Facts as mentioned above are not in dispute. The petitioner was indeed allotted 25 bighas of land under the Rules of 1972 way back in the year 1973. Due to non-depositing of some installments, allotment was cancelled by order-dated 112.1976. The Rules of 1972 were amended on 22.04.1982 and Rule 8-A came into force. On the basis of amended provision contained Section 8-A petitioner filed a review petition, which was allowed and the order canceling allotment was set aside. The allotment was cancelled once again and the authority restored allotment of the land in dispute to the petitioner under the provisions of Rule 8-AA. It is quite apparent that both the parties appeared when order of cancellation of allotment was set aside and the petitioner was given time to deposit the installments. She was directed to either deposit all the installments within 90 days or 45 days. When it was restored for the first time, petitioner was asked to deposit installments within 90 days, whereas, on the second occasion when the order of cancellation was set aside and the land was restored, she was asked to deposit the installments within 45 days Annexure-1. When it was restored for the first time, petitioner was asked to deposit installments within 90 days, whereas, on the second occasion when the order of cancellation was set aside and the land was restored, she was asked to deposit the installments within 45 days Annexure-1. Second proviso to Rule 7(5) of Rules of 1972 reads as follows:- “Provided further that where fresh order of allotment is made under Rule 8-A or rule 8-AA, the allottee shall pay the price in 20 equal installments commencing from the date of fresh allotment calculated at the scale of price in force on the commencement of Rajasthan Colonisation (Allotment of Government Land to Pong Dam Oustees in Indira Gandhi Canal Colony) (Amendment) Rules, 1982 and the amount of any installment deposited by the allottee shall be adjusted.” Sub-rule 2 of Rule 8-AA of Rules of 1972 reads as follows: --“(2) Where a review application has already been decided by the allotting authority under rule 8-A as it stood immediately before the date of commencement of the Rajasthan Colonization (Allotment of Land to Pong Dam Oustees in the Indira Gandhi Canal Colony) (Amendment) Rules, 1984 and the Allotting Authority is of the opinion that the order made by him on such review application is not consistent with the provisions of these rules, or where the order of restoration made under rule 8-A before the aforesaid date of such commencement is deemed to have been cancelled in accordance with Sub-rule (7) of the Rule 5, he shall of his own motion further review the order and shall after giving the affected persons an opportunity of being heard, make an order of restoration or an order of allotment, as the case may be, under and in accordance with these rules.” 6. From the facts detailed above what clearly emerges is that when the first order Annexure-2 was passed, the concerned authority did not take into consideration the second proviso of Sub-rule 5 of Rule 7 reproduced above. The said proviso in terms enjoins upon the concerned authority to demand payment of price in 20 equal installments commencing from the date of fresh allotment calculated at the scale of price in force on the commencement of the Rules of 1982 and an amount of installment already deposited has to be adjusted. As per Sub-rule 5 of the price has to be paid in 20 annual installments. As per Sub-rule 5 of the price has to be paid in 20 annual installments. The petitioner was thus to deposit the remaining installments by way of 20 installments whereas she was asked to do so within 90 days. Once again, even though not on the application of the petitioner, as filing of the same is disputed by the State, the concerned authority took the matter on second occasion suo motu under the provisions of Rule 8-AA and restored the land to the petitioner. However, it made the same mistake again by fixing the time for payment of installments as 45 days as compared to 20 installments under the relevant rules quoted above. The time fixation in the impugned order subject matter of challenge before this Court was wholly illegal being against the Rules. The said order has thus necessarily to be set aside. 7. Petitioner has not deposited any installments after filling of the writ petition and period of more than 20 years has gone by. Interest of justice demands that the petitioner at least now should pay the remaining installments within three months from today. Learned Counsel appearing for the petitioner accepts and states that the petitioner shall now make payment of remaining installments within three months. 8. The Court may, however, mention that there is serious dispute with regard to the possession of the petitioner. The directions mentioned above would be complied with only if the petitioner was in actual possession and is in possession even now. If she has been dispossessed and the land subject matter of dispute has been allotted to somebody else and therefore, if third party rights have intervened, the petitioner cannot be granted any relief . The petitioner in such an event ought to have brought on record the relevant facts. 9. While, therefore, setting aside order (Exhibit-1), the Court will direct that if the petitioner is not in possession, she be restored possession only on payment of price as mentioned above and subject to the condition that nature of land has not changed and is capable of being given possession. The petitioner shall not be restored possession in the event if third party rights have intervened. 10. With the observations made above, this petition is disposed of . Parties are left to bear their own costs.