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2006 DIGILAW 219 (RAJ)

Bhambhal v. B. O. R.

2006-01-19

PREM SHANKAR ASOPA

body2006
Honble ASOPA, J.—That in both the writ petitions, the main impugned order of the Board of Revenue dated 11.6.1985 is under challenge whereby the judgment of the Revenue Appellate Authority dated 4.9.1978 has been upheld. The Revenue Appellate Authority reversed the order of the Additional Collector dated 18.7.1977, cancelling the allotment order dated 30.10.1975 made in favour of the private respondent. Although in case of Harbhajan and others, S.B. Civil Writ Petition No. 6632/1998, the challenge has also been made to the order of the Director, Consolidation dated 24.8.1967 as well as the order passed on the review petition dated 3.2.1989 arising out of the aforesaid judgment dated 11.6.1985. Apart from above the petitioners in both the cases are the co-tenants of the same Khasra Numbers which are in dispute and in respect of which allotments have been made to the private respondents, therefore, both the writ petitions were tagged together and heard together and further the same are being decided by a common order. (2). Briefly stated the relevant facts of the case are that Harbhajan, Sukha and Shiv Pal are the co-khatedar tenants of Khasra Number 596. The petitioners in writ petition No. 2429/1989 are the legal representatives of Sheo Pal. (3). That in consolidation proceedings under order dated 24.7.63 Khasra No. 596 measuring 17 bighas 14 biswas which was in the Khatedari of Sheo Pal was ordered to be recorded as Sawaichak and on its place 26 Bigha 11 Biswa of Khasra No. 629 was ordered to be given. (4). The petitioners and their co-sharers were having 13 bigha and 14 biswas land in Khasra No. 632 which was near the Khasra No. 629, therefore, the settlement authority merged Khasra No. 629 into Khasra No. 632. (5). That against the order dated 24.7.63, passed by the Settlement Authority, a revision petition was filed before the Director Consolidation by the villagers and the said revision petition was allowed vide order dated 24.8.67 with the order that the petitioner and co-sharers should be given land from Khasra No. 596 and not from Khasra No. 629. (6). (5). That against the order dated 24.7.63, passed by the Settlement Authority, a revision petition was filed before the Director Consolidation by the villagers and the said revision petition was allowed vide order dated 24.8.67 with the order that the petitioner and co-sharers should be given land from Khasra No. 596 and not from Khasra No. 629. (6). That the order of the Director Consolidation dated 24.8.67 was examined by S.D.O. Gangapur City vide order dated 23.7.70 in Execution Petition filed by the father of the petitioner and co-sharers while executing the decree dated 27.9.66 and the Khatedari of Khasra No. 629 was not disturbed and further the same was even not disturbed by High Court in the writ petition filed by the villagers which was dismissed by this Court on 10.12.1980. It is submitted by the petitioners that the land of Khasra No. 596 was allotted to the military personnel, therefore, the aforesaid order of the Director could not be given effect till date and the petitioners remained in possession of the land of Khasra No. 629 which was later on merged in Khasra No. 632. (7). That when the petitioner Sheopal came to know that some allotment has been made to the non-petitioners from Khasra No. 629 on 30.10.75, he challenged the said allotment by way of filing an appeal before the Additional Collector and the same was allowed on 18.7.1997. Against the order dated 18.7.1997, the allottees preferred an appeal before the revenue appellate authority and the same was allowed on 4.9.1978. Against the judgment of the Revenue Appellate Authority dated 4.9.78, the legal representatives of petitioner Sheo Pal filed a revision petition before the Board of Revenue which was dismissed on 11.6.85. A review was also filed by the petitioners and the same was dismissed on 3.2.1989. (8). The Board of Revenue has given much weightage to the fact that the Director Consolidation cancelled the earlier consolidation proceedings in which the petitioners were allotted 26 Bigha and 11 Biswa of land in Khasra No. 629 which was undisputed charagah and has further observed that the petitioners have not acquired any khatedari rights in Khasra No. 629 measuring 26 bigha 11 biswa and they are free to challenge the allotment, if any, made in Khasra No. 596. The relevant paragraph Nos. 5 to 8 are reproduced hereunder for ready reference:— "5. The relevant paragraph Nos. 5 to 8 are reproduced hereunder for ready reference:— "5. The question is as to whether Sheopal was the Khatedar of 26 bigha 11 biswas of land in Khasra No. 629 also. In the application under sub-rule (4) of Rule 14 of the 1970 Allotment Rules, a case was not set out by Sheopal that he was the khatedar of the said land and the only ground urged in the application was that he was in possession since long of khasra No. 629 and there has been decision in his favour by the learned Revenue Appellate Authority. From paper 31 /A of the file of the learned Additional Collector, it appears that in consolidation proceedings under order dated 24.7.1963, khasra No. 596 measuring 17 bigha 14 biswas which was in the khatedari of Sheopal was ordered to be recorded as Sawai Chak and in its place 26 bigha 11 biswas of khasra No. 629 which indisputably was charagah earlier, was ordered to be entered in his name. It also appears that the area of 26 bigha 11 biswa of khasra No. 629 which was ordered to be given in lieu of khasra No. 596 measuring 17 bigha 14 biswas during consolidation proceedings was ordered to be merged in khasra No. 632 measuring 16 bigha 14 biswas and the total are in red ink of khasra No. 532 was entered as 40 bigha 5 biswas. As already stated earlier, the decision was set aside by the Director of Consolidation. Therefore, the very basis of consolidation proceedings under which Sheopal claims 26 bighas 11 biswas of land in khasra No. 629-charagah, in lieu of the land in khasra No. 596 measuring 17 bigha 14 biswas, which indisputable was in his khatedari earlier falls of the ground. 6. Some documents have been filed on behalf of the appellants which are certified copies of judgments in order to show that in suit filed against persons, not the allottees who are parties to the present proceedings, a declaration was made that Sheopal is the khatedar of khasra No. 632 measuring 40 bigha 5 biswas. 6. Some documents have been filed on behalf of the appellants which are certified copies of judgments in order to show that in suit filed against persons, not the allottees who are parties to the present proceedings, a declaration was made that Sheopal is the khatedar of khasra No. 632 measuring 40 bigha 5 biswas. Those documents in my opinion, are not relevant to the present controversy and no reason has been assigned as to why they were not presented during the enquiry of the application under Rule 14(4) before the Additional Collector or even during the first appeal before the Revenue Appellate Authority. To my mind, those documents are not relevant to the present controversy, because as already stated earlier, when the order dated 24.7.1963 was set aside by the Director of Consolidation, the result was that Sheopal continues to be the khatedar of khasra No. 596 measuring 17 bigha 14 biswas and he did not acquire any right, title or interest so far as land in khasra No. 629 measuring 26 bigha 11 biswas is concerned. Thus, if that land can be allotted to the landless persons under the Rules, Sheopal can not have should not have any grievance. 7. As already stated earlier, so far as the proceedings in the earlier suit to which allottees were not and could not be parties, to which even State was not a party, are concerned they have no relevance to the present proceedings. 8. In the result, I do not find any force in this appeal. Obviously, as already held, allotment if any, out of khasra No. 596 to any body cannot be said to be in accordance with law. Sheopal has option to avail of the remedy available to him under law against the allotment, if any, so far as land in khasra No. 596 is concerned." (9). For giving said weightage by Board of Revenue to the order of Director Consolidation, the submission of the counsel for the petitioners is that the Board of Revenue has committed serious error of law as the order of the Director Consolidation dated 24.8.67 was not implemented and Harbhajan was not party to the proceedings. In compliance of the said order the original land of the petitioners and their co-sharers covered by Khasra No. 596 was never restored and they were allowed to continue to hold khasra No. 629. In compliance of the said order the original land of the petitioners and their co-sharers covered by Khasra No. 596 was never restored and they were allowed to continue to hold khasra No. 629. Presently also they are in possession of the land of their part in khasra No. 629. (10). It has also been submitted by the petitioner Harbhajan that he was not party to the proceedings when the Director Consolidation passed the order dated 24.8.1967 and further the order of the Director Consolidation has been examined by S.D.O. Gangapur City in the order dated 27.3.1970 passed in execution petition which remained upheld up to this Court vide order dated 10.12.1980 in S.B. Civil Writ Petition No. 1701/1980 filed by one Kajoria and the said orders were produced before the Board of Revenue but the effect of same have not been taken into consideration while passing the review order. Otherwise also the other petitioner Harbhajan-co-sharer was not party to the proceedings before the Director Consolidation, therefore, the said order which was passed is nullity so far as Harbhajan-the co-sharer is concerned. (11). The further submission of the counsel for the petitioners is that as per rule 5(1) of the Rajasthan Land Revenue (Allotment of land for agricultural purposes) Rules 1970 (for short the Allotment Rules), the land was not unoccupied therefore, the same could not have been allotted to the allottees. The State Government has committed an error in allotting the said land on 30.10.75 when the land was not available for allotment and that too without considering the fact that the petitioners have not been restored the original khasra No. 596 which has been subsequently allotted to the military personnel. The aforesaid legal aspect of the matter was not considered by all the courts below. (12). The submission of the counsel for the State as well as private allottee is that the land has been rightly allotted to them and they have been deprived of the fruits of the allotment and the petitioners are continued to be the khatedars of khasra No. 596. (13). I have gone through the record of the writ petition, further considered the rival submissions made by the party. (14). In my view in this matter the complication has arisen on account of not following rule 5 of the Allotment rules. Rule 5 is reproduced hereunder for ready reference. Rule 5. (13). I have gone through the record of the writ petition, further considered the rival submissions made by the party. (14). In my view in this matter the complication has arisen on account of not following rule 5 of the Allotment rules. Rule 5 is reproduced hereunder for ready reference. Rule 5. Preparation of list of unoccupied lands.—(1) The Tehsildar shall by the 30th day of September, each year, prepare and submit to the Sub Divisional Officer concerned a Village-wise list of unoccupied Government lands, both irrigated and unirrigated, in Form I which shall be available for inspection at the office of the Panchayat, Panchayat Samiti and Tehsil. (2) A copy of this list shall be sent to the Divisional Forest Officer for his comments by the Sub-Divisional Officer in districts in which any area has been declared reserved forest under Sec. 20 of the Rajasthan Forest Act, 1953 (Raj. Act 13 of 1953) or a protected forest under Sec. 29 of the said Act or in respect thereof a notification has been issued declaring that it has been decided to constitute any land in that district a reserved forest. The Divisional Forest Officer shall send his comments within a period of 15 days from the date of receipt of this list. (15). According to said rule unoccupied land normally without taking resort to eviction proceedings under Section 91 of the Land Revenue Act not to be allotted as the aim and object of Allotment Rules is not only give allotment but possession of land also in order to avoid litigation between the parties. (16). I am further of the view that the documents/orders of the Revenue Court filed before the Board of Revenue have relevant bearing on the issue and mere not filing of the same in Court below is not sufficient to discard the same. (17). The order of the Director Consolidation was not even implemented against Sheopal and his legal representatives and the same is not binding on Harbhajan as he was not party to proceedings. (17). The order of the Director Consolidation was not even implemented against Sheopal and his legal representatives and the same is not binding on Harbhajan as he was not party to proceedings. Otherwise also the same was not considered by the S.D.O. Gangapur City while passing the order dated 27.3.1970 and which remained upheld upto High Court in the writ petition filed by one Kajoria vide order dated 10.12.1980 Annexure H. The Board ought to have considered the fact that the land of Khasra No. 596 has been allotted by Government to the military personnel and under such circumstances, the same could not have been restored to the petitioners. Therefore, the Board of Revenue has committed an error of law in not considering the said aspect of the matter. (18). The Board ought to have considered documents/all orders of the Revenue Board produced before it and if the Board comes to the conclusion that the subordinate court dis-regards any specific provision of law and does some thing illegal, then in order to regulate the functioning of the subordinate courts /revenue officer so as to keep them within their respective sphere of jurisdiction invoke general superintendence power under Section 9 of the Land Revenue Act. Here in the instant case the Board has not at all considered the invocation of the said power. Thus committed an illegality. The Section 9 of the Land Revenue Act 1956 has been interpreted by this Court in a case reported in 1995 (1) WLC (Raj.) 213 (D.B.) Raja Ram vs. Board of Revenue and Others 213 = 1994 (2) RLW 719. The Division Bench in Para Nos. 4 and 5 of the said judgment held as follows:— "4. As against this, the counsel for respondent No. 5 cited another decision of the Supreme Court wherein the provision of Section 9 of the Act was specifically considered in Surendra Pal Singh vs. Board of Revenue (1993 RRD 598) and it was held that it is open to the court to exercise this power of superintendence on all its subordinate courts in order to regulate the functioning of the subordinate courts so as to keep them within their respective sphere of jurisdiction. If the subordinate court dis-regards any specific provision of law and does something illegal, it is open to the Board of Revenue to interfere and set the matter right. 5. If the subordinate court dis-regards any specific provision of law and does something illegal, it is open to the Board of Revenue to interfere and set the matter right. 5. The above case went to the Supreme Court for consideration of the question of law that if appeal lies to the Revenue and instead of filing appeal, can Board of Revenue exercise power under Section 9 of the Act or not. It was ruled that instead of exercising the appellate jurisdiction, it is open to the Board of Revenue to exercise its superintendence and control power under Section 9 of the Act. (19). In case the subordinate courts/Revenue Officers disregards any specific provision of law and does something illegal, it is open to the Board to interfere and set the matter right under Section 9 of the Rajasthan Land Revenue Act in order to do substantial justice between the parties which will shorten the litigation. (20). In view of the above the writ petitions are partly allowed. The orders of the Board of Revenue dated 11.6.1985 and dated 3.2.1989 are quashed and set-aside. The case is remanded back to the Board of Revenue to consider the effect of all documents/judgments of revenue courts filed by the petitioners and after hearing them to decide effect of non-implementation of the order passed by Director Consolidation dated 24.8.67 and validity of the same in the light of observations made herein above and pass appropriate order within three months from the date of production of certified copy of this order.