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Rajasthan High Court · body

2006 DIGILAW 2625 (RAJ)

State of Raj. v. Gopal @ Gopi

2006-09-01

R.N.ARVIND

body2006
Honble Arvind, M.—This is a second appeal udner Section 76 of the Rajasthan Land Revenue Act, 1956 against the order of R.A.A., Jaipur dated 25.4.2005. 2. Briefly, the facts of this case are that land 4 bighas 5 biswas of khasra No.92 of village Luniawas was recorded as sewai chak. On 11.6.1968, the Allotment Advisory Committee allotted this land to Gopal S/o Bhura, by caste jat, r/o Luniawas, whereas there is no person of the name of Gopal s/o Bhura jat in the village Luniawas. On the basis of this allotment order, mutation No.90 was attested and the land was mutated in the name of Gopal S/o Bhura Jat as ghair khatedar by the Gram Panchayat on 24.6.1969. By the mutation No. 167 dated 29.1.1981, this land was mutated in the name of Gopi s/o Bhura jat as khatedar. This mutation was attested after a lapse of 12 years. One Shri Sumer Singh, by caste Rajptu, R/o Luniawas made a complaint to Justice Beri Commission. Justice Beri Commission registered the complaint and having enquired into the matter recommended to the govt. that this allotment should be cancelled. The State Govt. made an appeal before learned addl. Collector-III titled as State vs. Gopal r/o Luniawas, Tehsil Phulera. In this appeal, it was a type mistake, by which appeal was made against Gopal S/o Kishanlal. In the decision, learned Addl. Collector ordered that the allotment is cancelled and the land may be recorded back as sewai chak. Against the order of learned Addl. Collector dated 1.8.2002, appeal was preferred to the R.A.A., Jaipur which was decided on 25.4.2005. This appeal was accepted by learned R.A.A. Aggrieved against this order of learned R.A.A. dated 25.4.2005, this appeal has been made before us. 3. The contention of the learned govt. Advocate on behalf of the appellant is that the order of learned R.A.A., Jaipur dated 25.4.2005 is against law and against the facts of the case. He argued that the allotment is ineffective from the date of allotment order because the allotment was Benami and was obtained through fraud. The Sarpanch at that period played a trick and he obtained the allotment in the name of Gopal by mentioning false name of father of Gopal. The Sarpanch wanted to garb the land by a Benami allotment. He argued that the allotment is ineffective from the date of allotment order because the allotment was Benami and was obtained through fraud. The Sarpanch at that period played a trick and he obtained the allotment in the name of Gopal by mentioning false name of father of Gopal. The Sarpanch wanted to garb the land by a Benami allotment. There was no person as Gopal S/o Bhura Jat in the village on the day of allotment i.e. 11.6.1968 and this allotment was benami and obtained through fraud and misrepresentation and concealment of facts. The Sarpanch, Kishanlal was member of the advisory committee and he misled the advisory committee and obtained this allotment order. On an appeal by the Tehsildar allotment was cancelled by learned Addl. Collector-III. He also argued that the order of learned R.A.A. is improper because he mentioned in the decision that proper parties were not made at the level of learned Addl. Collector. This conclusion of learned R.A.A. is not only erroneous but per-se illegal because there was nobody in the name of Gopal alias Gopi S/o Bhura Jat in the village and as such when the allotment was benami, it was not possible that a benami person could be made a party. The original allotment was made in the name of Gopal S/o Bhura Jat and there was no person at the time of allotment in the village in the name of Gopal S/o Bhura Jat. A trick was played subsequently and the allotment was conceived in the name of Gopi S/o Bhura. It is clear in this case that the allotment was obtained in the name of Gopal S/o Bhura Jat and later on with the collusion of the Up-Sarpanch, mutation was attested in the name of Gopi S/o Bhura Jat, whereas no allotment order was made in the name of Gopi S/o Bhura. It was also argued that the appeal presented before the R.A.A. was also benami because the appeal was presented by Gopal alias Gopi S/o Bhura Jat resident of village Luniawas. There is nobody in the village even today in the name of Gopal alias Gopi S/o Bhura. It is for this reason that even after a decision in the favour of Gopal alias Gopi when the application was presented in the Tehsil, it was not signed by Gopal alias Gopi but it was signed by one Sri Jeeturam. There is nobody in the village even today in the name of Gopal alias Gopi S/o Bhura. It is for this reason that even after a decision in the favour of Gopal alias Gopi when the application was presented in the Tehsil, it was not signed by Gopal alias Gopi but it was signed by one Sri Jeeturam. It has nowhere been mentioned as to who is this Jeeturam. It has not been mentioned as to what connection that Jeeturam has with Gopal alias Gopi. It is, therefore, evident that this is a clear case of fraud, misrepresentation and creation of false records. In such a situation, the issue of limitation was not relevant before learned Addl. Collector. As such, the order of learned Addl. Collector may be upheld and since the order of learned R.A.A. is misconceived and has been passed by accepting the false representation as correct one and as such learned R.A.A. has been misguided. As such, the order of learned R.A.A. may be set aside. 4. The learned Govt. Advocate also argued that even in the vakalatnama presented to this court, the address of Gopal S/o Bhura Jat has not been given. The address which was written and then crossed and can be legibly read is Gopal S/o Bhura Jat r/o Jaswantpura, Tehsil Srimadhopur. He also argued that the fraud and misrepresentation which was started by a benami person is continuing up to the Board of Revenue. He also argued that notices were sent by the Board to Gopal alias Gopi S/o Bhura Jat and the Sarpanch and five other villagers reported that there is nobody with that name in the village. It was also brought to our notice that the allottee has failed to establish his identity even in the Vakalatnama which is enclosed here. 5. Arguing against this appeal, the contention of the learned Advocate Shri Anil Sharma is that this allotment was made many-many years ago and allotment after such a long lapse time cannot be cancelled. He also argued that the Govt. has not come with clear evidence in this matter and the allotment may be upheld. He also argued that other issues are not relevant and the order of learned R.A.A. is just and proper and may be upheld. 6. Having heard the rival parties and having perused the record, I come to the following conclusion:- 1. has not come with clear evidence in this matter and the allotment may be upheld. He also argued that other issues are not relevant and the order of learned R.A.A. is just and proper and may be upheld. 6. Having heard the rival parties and having perused the record, I come to the following conclusion:- 1. That the allotment was made in the name of Gopal S/o Bhura Jat r/o Luniawas and mutation no. 90 as ghair khatedar of the disputed land was attested in the name of Gopal S/o Bhura Jat. Later on, in the mutation no. 167 of the same khasra no. 92, the name of Gopal was changed as Gopi S/o Bhura Jat of Luniawas. Dates in that mutation have been over-written. At one place, the date has been mentioned as 6.12.1978 and date has been over-written at another place as 29.1.1981. As such the date has been tampered with and there is no satisfactory answer regarding this. There is no answer as to how the subsequent mutation was made in the name of Gopi whereas the original allotment was made in the name of Gopal. There is no allotment order in the name of Gopi son of Bhura Jat. 2. No counter affidavit has been given by the respondent against the affidavit of learned Tehsildar Shyam Swarup Sharma. In the absence of any counter affidavit against the allegation of benami and forged allotment, the affidavit of the Tehsildar cannot be disbelieved. 3. On the notice issued in the name of the respondent Bhura alias Gopi, the Sarpanch has reported that there is nobody in the village with bearing the name of this appellant. Statement of the Sarpanch has been supported by about half a dozen witnesses. 4. No certificate of the Gram Panchayat or Tehsildar or any other authority has been presented before us which can disprove the averments by the present Tehsildar of the Tehsil. No certificate of bonafide resident has been presented before us. As such, there are no reason for disbelieving the averments of learned Tehsildar in absence of any affidavit by the respondent. 5. There is no satisfactory answer by the respondent regarding the absence of address on the vakalatnama. No certificate of bonafide resident has been presented before us. As such, there are no reason for disbelieving the averments of learned Tehsildar in absence of any affidavit by the respondent. 5. There is no satisfactory answer by the respondent regarding the absence of address on the vakalatnama. The mutation which is being defended is in the name of Gopi S/o Bhura whereas the present vakalatnama on behalf of respondent is on behalf of Gopal S/o Bhura Jat but the address is missing. The address which has been written and then crossed also does not claim that the appellant belongs to village Luniawas. This further supports the allegation of Benami allotment. 6. In the pleadings recorded by before the learned R.A.A and the Additional Collector it is an admitted fact that the first mutation no. 90 was mutated on 24.6.1969 in the name of Gopal S/o Bhura but the subsequent mutation no. 167 was recorded in the name of Gopi S/o Bhura of Luniawas on 30.1.1981 of the same land. Learned R.A.A. has accepted in his pleadings that the allotment was made in the name of Gopal and the first mutation was attested in the name of Gopal but learned R.A.A. has failed to discuss as to why this land was recorded subsequently in the name of Gopi S/o Bhura instead of Gopal S/o Bhura Jat. There is no explanation of the allegations made bv the Tehsildar claiming that there is no person as Gopal S/o Bliui-a or Gopi S/o Bhura in the village. It is, therefore, evident that learned R.A.A. has decided this matter in a casual fashion without properly evaluating the facts which were available in the pleadings. 7. The vakalatnama presented before learned R.A.A. also reveals that the vakalatnama was presented by one Shri Gopal S/o Bhura Jat, r/o Luniawas, Tehsil Sambharlake but there is no mention of anybody as Gopal. 8. Honble High Court has decided a principle that allotment obtained through fraud , misrepresentation and concealment of facts can be cancelled at any time even if khatedari rights have been obtained. 8. Honble High Court has decided a principle that allotment obtained through fraud , misrepresentation and concealment of facts can be cancelled at any time even if khatedari rights have been obtained. This authority of Honble High Court as reported in RRD 2002 page 01 is directly relevant in this case because this is a clear-cut case of fraud and misrepresentation and concealment of facts and surprisingly this fraud is continuing even today and the respondent has failed to give his address even at the level of Board of Revenue." 7. In view of the discussions above, this is a clear-cut case of allotment obtained through fraud and misrepresentation and the above authority of the D.B. of the Honble High Court is directly applicable and I am respectfully duty bound to accept the authority of the Honble High Court in this matter. 8. As such, this appeal is accepted, order of learned R.A.A. is set aside and the order of learned Addl. Collector-III dated 1.8.2002 is upheld and the order of cancellation of disputed allotment is upheld and the land reverts to the State Government. This order will be complied with within a period of one month positively. 9. In view of the facts and circumstances of the case, I would find it proper that this decision may be brought to the notice of the Honble Chairman, Board of Revenue so that he can kindly consider for giving appropriate directions to the concerned revenue authorities for administrative enquiry in this matter regarding disciplinary action. Pronounced.