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2005 DIGILAW 1957 (RAJ)

Sunder v. Board of Revenue

2005-07-29

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-This writ petition has been submitted by the petitioner Smt. Sunder through her son Jhamanlal against the order dated 210.1994 (Annexure-4) passed by the Board of Revenue for Rajasthan, Ajmer, whereby the learned Member of the Board accepted a revision submitted by Lunaram (respondent No. 5 herein) and set aside the allotment of a small patch land to the petitioner and directed the Allotting Authority to re-allot the land after following the necessary procedure as provided in the relevant rules. 2. Brief facts leading to the said order dated 210.1994, and consequently to this writ petition, may be summarized thus: 3. The petitioner is a khatedar tenant of 25 bighas of land in Murabba No. 95/37 in Chak 4 DLSM. She allegedly applied, through her son, for allotment of an adjoining piece of land of three bighas in Murabba No. 95/38 as "smal patch" of land under Rule 14 of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975, (hereinafter referred to as the Rule of 1975). The application for allotment was moved on 26.06.1986 and thereupon the Assistant Commissioner Colonisation, Chhatargarh, the Allotting Authority, passed an order on 28.06.1986 allotting this three bighas land as small patch under Rule 14 of the Rules of the 1975 to the petitioner while charging double the reserve price of the land. 4. The aforesaid order of allotment dated 28.06.1986 was subjected to appeal by the respondent No. 5 Lunaram on the grounds, inter alia, that this allotment order was passed at his back and without any notice to him although his application for allotment of this small patch land was pending at the time when the allotment was made in favour of the present petitioner. It was contended that when 22 bighas of land in Murabba No. 95/38 stood allotted to the appellant Lunaram and this fact was reported by the concerned Patwari, then it was required of the Allotting Authority to have invited the appellant also. It was also contended that the allotment order was fundamentally erroneous because the Allotting Authority has assumed 22 bighas of land in Murabba No. 95/38 of Chak 4 DLSM to be in allotment with the present petitioner whereas this 22 bighas of land in the said Murabba No. 95/38 was standing in allotment to the appellant Lunaram only. It was also contended that the allotment order was fundamentally erroneous because the Allotting Authority has assumed 22 bighas of land in Murabba No. 95/38 of Chak 4 DLSM to be in allotment with the present petitioner whereas this 22 bighas of land in the said Murabba No. 95/38 was standing in allotment to the appellant Lunaram only. The allotment of small patch of land to the present petitioner assuming her to be the allottee of 22 bighas of land in Murabba No. 95/38 was invalid being based on erroneous assumption. It was also contended that the application submitted by the petitioner was suffering from a fundamental defect that it was not signed by her nor by the person through whom it was allegedly moved. It was, therefore, prayed that the allotment be cancelled. 5. The appeal so submitted by the respondent No. 5 Lunaram was dismissed by the Revenue Appellate Authority on 13.07.1989 on the consideration that from perusal of the record of the lower Court, no application of the appellant was found to be pending and, therefore, be could not be taken to be a person aggrieved. The Revenue Appellate Authority also observed that the disputed land was adjoining the land of the appellant and respondent both and, therefore, both the parties were entitled to have it allotted but the appellant having not made any application, allotment could not have been made to him. The learned Revenue Appellant Authority, of course, agreed with the submission that the application for allotment was not bearing any signature and also that the Allotting Authority in the order dated 28.06.1986 has assumed 22 bighas of land in Murabba No. 95/38 to be of Smt. Sunder widow of Chokha Ram (the present petitioner) whereas she was the allottee of land of Murabba No. 95/37. However, cogency and weight of these factors was eclipsed when the learned Revenue Appellate Authority found that the appellant Lunaram could not be taken to be a person aggrieved and, therefore, he was not entitled to maintain the appeal. If the allotment order was wrong, then the State could have submitted an appeal but State having not done so, the appeal filed by the respondent No. 5 Lunaram was dismissed. 6. If the allotment order was wrong, then the State could have submitted an appeal but State having not done so, the appeal filed by the respondent No. 5 Lunaram was dismissed. 6. Respondent No. 5 Lunaram took the matter in revision before the Board of Revenue under Rule 23 of the Rules of 1975 which has been decided by the impugned order dated 210.1994. The learned Member of the Board did not deal with any other finding as recorded by the Revenue Appellate Authority but, instead, was of opinion that even in respect of small patch land allotment, issuing of declaration and invitation of applications was mandatory so as to ensure equal opportunity to every person of presenting his case before the Allotting Authority. This having not been done in the present case, the learned Member of the Board considered the allotment to be contrary to the Rules and set the same aside leaving the Allotting Authority to re-allot this land after following the necessary procedure as provided under Rules. The petitioner has assailed the order dated 210.1994 passed by the Board of Revenue in this writ petition. .7. According to the petitioner, the Board of Revenue has committed an error in holding that the procedure prescribed in the Rules of 1975 for allotment of land is required to be followed for allotment of small patch of land. The petitioner has contended that non obstante Clause of Rule 14 makes it clear .that the procedure otherwise provided in the Rules of 1975 is not applicable for the purpose of allotment of small patch of land. The petitioner has also submitted that when the Revenue Appellate Authority recorded a categoric finding that the respondent No. 5 has no locus standi to challenge the allotment made in favour of the petitioner, and the said finding was not reversed by the Board of Revenue, then the allotment made in favour of the petitioner could not have been disturbed. The petitioner has placed on record a certified copy of the application moved on her behalf as Annexure-5 and has contended that it was wrong to allege that the application was not signed on her behalf . The petitioner has prayed that the order of the Board of Revenue dated 210.1994 be quashed and set aside. 8. The petitioner has placed on record a certified copy of the application moved on her behalf as Annexure-5 and has contended that it was wrong to allege that the application was not signed on her behalf . The petitioner has prayed that the order of the Board of Revenue dated 210.1994 be quashed and set aside. 8. On behalf of the State, respondent No. 4, it has been averred in the reply that the Allotting Authority mistakenly considered permanent allotment of the land to her in Square No. 95/38 and the allotment of three bighas of land was made to her in Square No. 95/38 under such mistaken impression. It has been contended that making of the allotment without calling of the applications and on the basis of unsigned application was nothing but gross violation of the Rules and that the application moved by the petitioner was even otherwise was not in accordance with the Rules and no allotment could have been made on its basis. 9. The respondent No. 5 has submitted a separate reply and has contended that he has locus standi to agitate the matter because the land in question is situated in his Murabba number and the land is required to be allotted to him only and not to the petitioner. It has also been contented that the procedure given in Rule 9 for inviting applications is required to be followed even in respect of small patch allotment. 10. The petitioner has submitted rejoinder contending the Rule 14 of the Rules is a self-contained provision and the requirement of following the entire allotment procedure is exempted so far small patch of land is concerned. There was no question of any mistaken belief as the petitioner has consciously made application for allotment of the land of Murabba No. 95/38 and the Allotting Authority has allotted this small patch of land to her. The petitioner has produced a certificate of khatedari of 25 bighas of land in Murabba No. 95/37 to her as Annexure-6 with rejoinder to the reply filed by the respondent No. 5. The locus standi of respondent No. 5 has been denied. .11. The petitioner has produced a certificate of khatedari of 25 bighas of land in Murabba No. 95/37 to her as Annexure-6 with rejoinder to the reply filed by the respondent No. 5. The locus standi of respondent No. 5 has been denied. .11. Assailing the order dated 210.1994 passed by the learned Member of the Board of Revenue, the learned Counsel for the petitioner has put forward the following contentions,- .(a) Thelearned Member of the Board of Revenue has seriously erred and the errors and apparent on the face of the record inasmuch as the learned Member has not considered the finding recorded by the Revenue Appellate Authority in the order dated 17.03.1989 and without dealing with those findings and meeting with the reasons, a considered order passed by the Revenue Appellate Authority could not have been reversed by the revisional authority; that the respondent No. 5 Lunaram had no locus standi to challenge the allotment made to the petitioner as he was never the applicant for the land in question and this relevant finding by the Revenue Appellate Authority has not even been considered by the learned Member of the Board. .(b) That the learned Member ofthe Board of Revenue has erred in observing that unsigned application of the petitioner was received and allotment order was passed whereas the fact remains that the application was duly submitted and signed by the son of the petitioner. A certified photostat copy of application dated 26.06.1986 has been submitted as Annexure-5 with the writ petition. .(c) Thelearned Member of the Board has further erred in observing that the allotment was made in contravention of the Rules and that the procedure for issuing declaration, inviting application etc. was mandatory even in cases of allotment of small patch of land. Rule 14 dealing with the allotment of small patch of land is a provision made with non obstante clause and is a Code in itself which does not provide for inviting applications and the other part of procedure as laid down in the rules is not required to be followed for this allotment of small patch. Non obstante clause in a provision takes it to override other provisions as held in Union of India & Anr. vs. G.M. Kokli, AIR 1984 SC 1022 , and Narcotics Control Bureau vs. Kishan Lal & Ors., AIR 1991 SC 558 . Non obstante clause in a provision takes it to override other provisions as held in Union of India & Anr. vs. G.M. Kokli, AIR 1984 SC 1022 , and Narcotics Control Bureau vs. Kishan Lal & Ors., AIR 1991 SC 558 . .(d) Theprocedure for allotment of land as applicable to other kind of allotment and sell of land under the Rules cannot be applied to the allotment of small patch as by the very nature of this provision, the same is available only to the adjoining tenure tenants and as the allotment is not open to general public, no notice is required. .12. Per contra the learned Counsel for the respondent No. 5 submitted that,- .(a) No error was committed by the learned Member of the Board of Revenue in finding that the allotment to the petitioner was in contravention of the Rules and, therefore, unsustainable. The .small patch land is situated in Murabba No. 95/38. In this Murabba No. 95/38, other 22 bighas of land are already allotted to the respondent No. 5 and he has every claim to seek allotment of this small patch of land of three bighas which is situated in the remaining part of the same Murabba. Moreover, when the allotment was not made in accordance with law and upon setting aside of the allotment, it would be the respondent No. 5 who would be entitled for allotment, then his locus standi to raise the dispute and challenge the allotment cannot be denied. Even if the learned Member of the Board has not recorded finding is so many words on locus standi, the substance of the order remains that locus of the answering respondent was considered to be existing particularly when the learned Member has directed for re-allotment of this small patch after following the necessary procedure. .(b) The application as shown by way of Annexure-5 cannot be termed to be an application as contemplated and required by the Rules for allotment of any land. Every application for allotment of Government land under the Rules of 1975 is required to be made as provided in Form-III appended to the Rules and this application being not in conformity thereof , was bound to be rejected. Every application for allotment of Government land under the Rules of 1975 is required to be made as provided in Form-III appended to the Rules and this application being not in conformity thereof , was bound to be rejected. Moreover, this application does not contain signatures of the petitioner Smt. Sunder; no authority of Jhamanlal to make such application has been shown; even his signatures are not available; and the application is not even supported by affidavit. .True and correct facts are required to be disclosed in the application which have not been disclosed in the application Annexure-5 and even if the application of the respondent No. 5 was not available, the application of the petitioner being not in conformity with law, could not have been granted. .(c) Non obstante clause provide for operation of the Rule 14 "Notwithstanding anything contrary contained in the Rules"; the phrase "to the contrary" mean that only those aspects and provisions available in the Rules which are otherwise contrary to the operation of Rule 14 would stand overridden or excluded and not the provisions whole-hog. The provisions for the categories of the eligible persons and the priorities are contrary to the requirements of Rule 14 and only they would be excluded and when no other procedure for making allotment of small patch has been provided, then general procedure would apply. .Non obstante clause operates till the consideration of adjoining tenure tenant who alone could be allotted the small patch of land but otherwise by virtue of Rule 5(2) the eligibility would be seen and the procedure prescribed under Rule 8 would apply and thereby the procedure as contemplated by Rules 9, 10 and 11 would apply. .(d) For providing equal opportunity to all concerned and avoiding arbitrary operation of Rule 14, adherence to the fair procedure prescribed by the Rules is necessary; and the learned Member of the Board has not committed any error in setting aside the allotment made without adherence to the Rules and in directing re-allotment after following the necessary procedure as provided in the Rules. 13. 13. The learned Counsel appearing for the State has duly supported the submissions made by the learned Counsel for the respondent No. 5 and has contended that the procedure having not been followed, the learned Member of the Board has rightly set aside the allotment, and that the application allegedly filed by or on behalf of the petitioner has no meaning in law as it was neither signed nor verified. 14. The learned Counsel for the petitioner rejoined with the submissions that the reference to Rules 8 to 11 as attempted to be made in this case is entirely misplaced so far operation of Rule 14 is concerned. The learned Counsel referred to the provisions of Rule 8 and submitted that the programme for allotment and preparation of list refers to the priorities as laid down in Sub-rule (1) of Rule 7 and for a small patch allotment there being no such priority as contemplated by Rule 7, the procedure prescribed by Rules 8 to 11 would not apply. The learned Counsel further submitted that the decision is required to be taken so far the small patch allotment is concerned by the Allotting Authority alone and this allotment is not required to undergo other process of allotment as contemplated by the Rules. Learned Counsel submitted that for true interpretation of Rule 14, the language used therein is required to be considered and the specific omission to provide for any such procedure for allotment cannot be ignored as irrelevant. The notification for intended allotment having been excluded, there was no necessity to follow the procedrue of Rules 8 to 11. 15. At the conclusion of the submissions by the learned Counsel for the parties, the learned Counsel for the petitioner was asked about the recitals in allotment order Annexure-1 which show that while passing the impugned order of allotment, the Allotting Authority has considered as if the petitioner was the allottee of 22 bighas of land in Murabba No. 95/38 in Chak 4 DLSM as landless person and that the allotment sought by the applicant (i.e., the petitioner) was of the land falling in her murabba only. All the aforesaid elements of murabba number, area and the location of land sought in the same murabba relate only and only to Lunaram respondent No. 5 and not the petitioner. All the aforesaid elements of murabba number, area and the location of land sought in the same murabba relate only and only to Lunaram respondent No. 5 and not the petitioner. To this aspect the learned Counsel for the petitioner submitted that even if the Allotting Authority erroneously mentioned a wrong fact it would not vitiate her allotment to which she was otherwise entitled. According to the learned Counsel, this could only be a clerical error but not relating to any material fact as the entitlement of the petitioner to have the land in question as small patch of land cannot be doubted. The learned Counsel pointed out that the applicant has stated true and correct facts in her application Annexure-5 showing her Murabba No. 95/37 and showing the location of the small patch applied for and it was her application only which was considered by the Allotting Authority. The learned Counsel submitted that the order passed by the learned Member of the Board being entirely erroneous, deserves to be set aside and the allotment deserves to be maintained. 16. The submissions made by the learned Counsel for the parties have been given thoughtful consideration and the record of the case has been scanned through with reference to law applicable to the case. Rules of 1975 - General Outline : 17. Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 made by the State Government in exercise of the powers conferred by Section 7 read with Section 28 of the Rajasthan Colonisation Act, 1954 provide for allotment and sale of Government land in the Indira Gandhi Canal Colony area. The Rules prescribe, inter alia for eligibility of the persons for allotment of land and extent thereof , reservation of the Government land in specified area, priorities for allotment and the method for allotment by calling for applications, necessary enquiry, terms and conditions of allotment etc., etc. .18. The provisions in the Rules of 1975 relevant for the present purpose and related to the questions involved in this case could be usefully noticed. .19. "Small patch" was defined originally under Clause (xvi) of the Rules 2 thus,- .(xvi) "Small Patch means a piece of land measuring upto 5 bighas (1.26 hectares)." .20. .18. The provisions in the Rules of 1975 relevant for the present purpose and related to the questions involved in this case could be usefully noticed. .19. "Small patch" was defined originally under Clause (xvi) of the Rules 2 thus,- .(xvi) "Small Patch means a piece of land measuring upto 5 bighas (1.26 hectares)." .20. However, by way of an amendment by the Notification dated 25.06.1981, the said clause was substituted and now reads as under,- .(xvi) "Small Patch" means a piece of land measuring upto 5 bighas of irrigated land and 10 bighas of unirrigated land. 21. Rules 3 and 4 are transitory provisions dealing with the repeal are savings regarding previous allotment Rules and so also for disposal of pending applications which are not relevant for the present purposes. Rule 5 provides for the person eligible for the allotment of Government land for agricultural purposes. The clause of eligible persons has also undergone some amendments, however, those amendments being not of any vital effect in the present case, Rule 5 as it stood at the relevant time could be noticed thus,- "5. Eligibility and Extend of Allotment.-(1) The following persons shall be eligible for allotment of Government land for agricultural purposes under rules namely:- .(i) Agriculture Graduates, .(ii) Landless persons, and (iii) Bhakra landless persons .(iv) Ex-Serviceman .(v) Beneficiary of the Integrated Rural Development Programme. .(2) Each such person may be allotted Government land upto 25 bighas (6.32 hectares): Provided that if such person holds any land anywhere in India, he will be allotted only so much Government land as together with his existing holding does not exceed 25 bighas: Provided further that if such person is eligible for allotment of small patch, such small patch shall be allotted to him only if it is available adjacent to his existing holding." 22. The second proviso to Sub-rule (2) of Rule 5 makes it clear that even if a person is eligible for allotment of small patch, it could be allotted to him only when lying adjacent to his existing holding. 23. Rule 6 provides for reservation of the land in specific areas for allotment to each category of persons specified in Sub-rule (1) of Rule 5 which is not directly relevant for the present purposes. 23. Rule 6 provides for reservation of the land in specific areas for allotment to each category of persons specified in Sub-rule (1) of Rule 5 which is not directly relevant for the present purposes. Rule 7 provides for priorities for allotment with the provisions that the priorities for allotment of the Government land under these Rules shall be in the order provided in Sub-rule (1) of Rule 7. At the relevant time, the priorities were in the order of temporary cultivation lease holders; a landless person of the same village identified as a beneficiary of the Integrated Rural Development Programme; other landless person of the same village and so on. This Rule has also undergone some amendments in the year 1993 but not relevant for the present case. 24. Rule 8 at the relevant time contained three sub-rules and it read as under:- "8. Programme for Allotment and preparation of list of Government Land available for Allotment.-(1) Allotment of Government land shall be made only out of the command and uncommand land. .(2) TheAllotting Authority may from time to time, fix such time and date as it deems proper for inviting applications for allotment of Government land for any specific purpose of class of persons keeping in view the priorities as laid down in Sub-rule (1) of Rule 7 and such dates may be different for different areas, purpose or class of persons. .(3) The Allotting Authority shall prepare village-wise/chak-wise lists in Form 1 of all Government land available for allotment. In case any such land is reserved either by the State Government or by the Allotting Authority for any specific purpose or class of persons, the list for the same shall be prepared separately." 25. However, by the amendment in the year 1989, Sub-rule (1) was deleted and the remaining sub-rules were renumbered as Sub-rules (1) and (2). 26. Rule 9 provides for issue and publication of notice thus,- "9. Issue and publication of Notice.-(1) After fixing the time and date for inviting applications for allotment and preparing the lists in accordance with Rule 8, the Allotting Authority shall issue a public notice in Form II under its signatures inviting applications for allotment within the time fixed therein, which shall not be less than 30 days of the date of such notice. .(2) Copies of such notice shall be affixed at the following places for wide publicity, namely:- .(a) Notice Board of the Allotting Authority concerned; .(b) Notice Board of the Colonisation Tehsil/Revenue Tehsil in which the land is situate; .(c) A conspicuous place in the village in which the land is situate. .(3) Wherethe Allotting Authority is not the Collector of the Revenue District, a copy of such notice shall also be sent to the Collector of the District concerned for affixing it on the Notice Board of the Collectorate." 27. Rule 10 provides for making of the application in the prescribed form thus,-"10. Application for Allotment.-(1) Within the time fixed in the public notice issued under Rule 9 or within such time as may be extended by the Allotting Authority from time to time, any person eligible for allotment of Government land may present an application in Form III to the Allotting Authority of the area or to any other officer authorised by the Colonisation Commissioner in this behalf . Provided that persons belonging to priorities for which applications have already been invited under the Post-55 Rules but who could not apply as they were not eligible under those Rules, may, if they are eligible under these Rules, apply to the concerned Allotting Authority within 30 days from the date of coming into force of these Rules. .(2) Anapplication made under Sub-rule (1) shall be verified by the applicant as a plaint according to the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908). .(3) Theapplicant shall file with his application an affidavit containing true and correct factual information on the following points duly verified by a Magistrate or Oath Commissioner, namely:- .(a) Permanent place of his residence and the place where he ordinarily resides, carries on his business or earns his livelihood specifying the name of his village, tehsil and district and showing that he is a resident of Rajasthan. .(b) Whether he is a landless person or whether he or any other member of his joint family holds any land anywhere in India in his own name or in the