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2006 DIGILAW 945 (RAJ)

Durgesh Kumari v. State of Raj.

2006-03-23

K.S.RATHORE

body2006
Honble RATHORE, J.—Brief facts of the case are that the petitioner being Ex-Jagirdar in lieu of resumption of Jagir under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 applied for allotment of land. (2). The petitioner earlier also filed a writ petition before this Court, which was registered as S.B. Civil Writ Petition No. 758/1998 titled as Smt. Durgesh Kumari vs. State of Rajasthan & Ors. The said writ petition was decided on 27.3.1998 directing the respondents authority to allot the land to the petitioner in lieu of Jagir resumption expeditiously in accordance with the provisions of law, but not later than the period of two months from the submission of the order. (3). Against the judgment passed by learned Single Judge, the State preferred D.B. Civil Special Appeal No. 227/1999 wherein Division Bench of this Court vide its judgment dated 15.1.2001. Since, the judgment passed by learned Single Judge dated 27.3.1998 was challenged after a delay of more than 305 days, the special appeal was dismissed on the ground of delay and latches. (4). The respondents after judgment of the Division Bench dated 15.1.2001 allotted 54 acres Barani land to the petitioner vide order dated 25.7.2001 wherein it was observed that in view of Sections 14(1), 18 and 19(1) of the Jagir Act, 1952 and the order dated 9.6.2000 passed by the State Government, land in lieu of Jagir resumption can only be allotted upto the ceiling limit. Considering the circular order dated 9.6.2000, 54 acres of land was ordered to be allotted in favour of the petitioner. (5). This order dated 25.7.2001 passed by the Khudkasht Commissioner is challenged after lapse of more than 4 years on the ground that rider of ceiling limit in view of circular/order dated 9.6.2000 is contrary to the provisions of Jagir Act as the petitioner is entitled to get the land in lieu of resumption of Jagir irrespective of fact that the land for which the petitioner is entitled for allotment of land even beyond the ceiling limit. (6). Learned Counsel for the petitioner submits that in view of provisions of Jagir Act, 1952, the petitioner is entitled for allotment of 163 acres land instead of 54 acres. (6). Learned Counsel for the petitioner submits that in view of provisions of Jagir Act, 1952, the petitioner is entitled for allotment of 163 acres land instead of 54 acres. Thus, allotment of only 54 acres of Barani land is not only contrary to the provisions, but also against the fundamental rights of the petitioners and the Government cannot impose any restrictions by issuing the order dated 9.6.2000, which is contrary to the provisions of the Act of 1952 and the order cannot have override effect over the statute framed by the legislation. Thus, putting rider of not to allot land beyond the ceiling limit. (7). Learned Counsel for the petitioner placed reliance on the judgment rendered by this Court in case of Smt. Mussvirnisa Begum vs. The State of Rajasthan & Ors., D.B. Civil Special Appeal No. 933/1999, wherein the appellant-petitioner claimed allotment of balance land. Considering the submissions of the appellant, the Division Bench remanded the matter back to the Commissioner for Khudkasht lands with a direction to dispose of the application of the writ-petitioner-appellant for allotment of balance land for Khudkasht in accordance with law. (8). Pursuant to the direction issued by the Division Bench, Khudkasht Commissioner allotted the balance land measuring 17.5 hectare. (9). Placing reliance on the aforesaid judgment, learned Counsel for the petitioner submits that in case of the petitioner, the respondents have discriminated and in view of the ratio decided by the Division Bench in the appeal of Mussvirnisa Begum, the petitioner is also entitled to get the balance land ignoring the circular dated 9.6.2000 passed by the State Government. (10). It is also contended by the petitioner that respondents have recently allotted the land to some of the Ex-Jagirdar out of Khasra No. 1805 at village Nawa, District Nagaur. Khasra No. 1805 is adjacent to the Khasras Nos. 1800 and 1803 where the land has been allotted in favour of the petitioner. It is further contended that at least 400 hectare land is still available in Khasra No. 1805 for allotment. (11). Per contra, learned Additional Advocate General Mr. Khasra No. 1805 is adjacent to the Khasras Nos. 1800 and 1803 where the land has been allotted in favour of the petitioner. It is further contended that at least 400 hectare land is still available in Khasra No. 1805 for allotment. (11). Per contra, learned Additional Advocate General Mr. G.S. Gill appearing on behalf of the State raised preliminary submissions regarding maintainability of the writ petition and submits that the petitioner has filed this writ petition praying for allotment of 109 acres of land relying upon the judgment passed by the Division Bench of this Court in case of Smt. Mussvirnisa Begum vs. State and make the basis of her claim as per the judgment dated 25.7.2001 passed by the Khudkasht Commissioner, Jaipur. The Khudkasht Commissioner while deciding the claim has held that the petitioner is entitled for allotment of land i.e., 54 acres upto the extent of ceiling limit. (12). Mr. Gill submits that in case of Mussvirnisa Begum, the Division Bench has only remanded back the matter to the Commissioner for Khudkasht with a direction to dispose of the application of the appellant for allotment of balance land for Khudkasht in accordance with law. Mr. Gill submits that even the balance land which was allotted by the Khudkasht Commissioner is not beyond the ceiling limit. Thus, the judgment of the Division Bench is having no application to the facts and circumstances of the present case. (13). The Khudkasht Commissioner has earlier allotted the land 16 Bigha of land in 3 BSM Murrabba No. 155/25 in the year 1966, but the petitioner failed to take the possession of the land and again agitated for allotment of land. It shows that the petitioner was not interested in getting the possession of the land earlier allotted in her favour. (14). Mr. Gill submits that the petitioner in writ petition has averred that she made application for allotment of land in village and Tehsil Nawa, District Nagaur of the land bearing Khasra Nos. 1800 and 1803. It was brought to the notice of this Court that vide notification dated 23.3.2005, the Government of Rajasthan has reserved 350 Murrabbas of land for allotment to the Ex-Jagirdars (15). 1800 and 1803. It was brought to the notice of this Court that vide notification dated 23.3.2005, the Government of Rajasthan has reserved 350 Murrabbas of land for allotment to the Ex-Jagirdars (15). So far as circular/order dated 9.6.2000 issued by the State Government, it is submitted that it is simply a clarification in which it was clarified that the land to be allotted to Ex- Jagirdar may not be allotted in urban area and master plan area and be allotted from the agricultural land only. In the said order, it was further made clear that said allotment should not exceed the ceiling limit. (16). Learned Additional Advocate General has given much emphasis on the aspect that the land was allotted in lieu of Jagir resumption by the Khudkasht Commissioner for the purpose of agricultural activities and the rehabilitate the Ex-Jagirdar. (17). While hearing the arguments in Writ Petition No. 5541/2005, Durgesh Kumari vs. State of Rajasthan, learned Additional Advocate General, Mr. G.S. Gill has categorically stated in the reply that in similar other cases in compliance of this Courts order, the land out of Khasra Nos. 1800 and 1803 are allotted to the Ex-Jagirdar. (18). It is also contended on behalf of the State that after getting the allotment of the land and getting entered names of the petitioners in S.B. Civil Writ Petition No, 3403/2005, Bachhan Singh vs. State of Rajasthan & Ors. and S.B. Civil Writ Petition No. 3402/2005, Than Singh vs. State of Rajasthan & Ors., they have sold the land and which is used other than agricultural purposes and at the request of the Additional Advocate General S.B. Civil Writ Petitions Nos. 3042/2005 and 3043/2005 are ordered to be listed. (19). I have perused the order passed by this Court dated 9.5.2005 in Writ Petitions No. 3042/2005 and 3043/2005. Upon perusal of the order it reveals that the writ petitions are disposed of without issuing notice to the respondents as the petitioner only claimed in the writ petitions to comply with the order passed by Khudkasht Commissioner dated 28.9.2004 to allot the land. (20). Here in the instant case, the land which was allotted out of Khasra No. 1803 in village and tehsil Nawa, District Nagaur had been sold by the petitioner through her power of attorney holder Ravinder Singh just after getting it recorded in her favour in the record of rights. (20). Here in the instant case, the land which was allotted out of Khasra No. 1803 in village and tehsil Nawa, District Nagaur had been sold by the petitioner through her power of attorney holder Ravinder Singh just after getting it recorded in her favour in the record of rights. For this reason also, the claim of the petitioner diminishes. (21). It is further submitted that in case of Than Singh and Bachhan Singh, in view of the order passed by this Court dated 9.5.2005, land was allotted by the Khudkasht Commissioner, but both the petitioner sold the land immediately after getting the entries recorded in revenue record. Thus, the purpose of maintaining the Ex-Jagirdar by cultivating the land so allotted is totally frustrated and the act of the Ex-Jagirdar is contrary to the spirit of Jagir Act, 1952. (22). After referring the aforesaid illustrations, learned Additional Advocate General submits that no illegality is committed by the Government in issuing the circular dated 9.6.2000 whereby restriction was imposed that Khudkasht land should not be allotted beyond the ceiling limit. Otherwise also, petitioner and other persons, whose names are referred hereinabove are not interested in cultivation and retaining the land so allotted and sold the land to other persons for the other than agricultural purposes. (23). Heard rival submissions of the respective parties and perused the circular/order dated 9.6.2000 as well as the judgment passed by the Division Bench in case of Mussvirnisa Begum and the provisions of Jagir Act, 1952. (24). It is not disputed that the Khudkasht Commissioner allotted 54 acres of land to the petitioner being Ex-Jagirdar and part of the land has already been sold to other persons, which is admittedly will be used other than the agricultural purposes. Thus, after selling part of land, the petitioner become wise in view of judgment in case of Mussvirnisa Begum and prayed for allotment of balance land. (25). Though the respondents has raised the preliminary objection that the writ petition has been filed through power of attorney holder and copy of power of attorney has been appended with the writ petition. Without entering into this technicality, I thought it proper to consider the writ petition on merit. (26). (25). Though the respondents has raised the preliminary objection that the writ petition has been filed through power of attorney holder and copy of power of attorney has been appended with the writ petition. Without entering into this technicality, I thought it proper to consider the writ petition on merit. (26). The Khudkasht Commissioner vide order dated 25.7.2001 allotted the land to the petitioner and being satisfied with the allotment order, the petitioner got the entries recorded in the revenue record and without cultivating the same for a single day, immediately sold the land to other person for use of other than the agriculture purposes, which shows that the petitioner is not at all interest in cultivating the land. (27). I have also perused the impugned order dated 9.6.2000 by which certain conditions are laid down like that land should not be allotted in favour of Ex-Jagirdar in lieu of Jagir resumption in urban area and should not exceed the ceiling limit. I do not find any fault in the said order as the petitioner is only entitled to get the land which is permissible under the law time being in force. It will be futile exercise, first allot the land in favour of the petitioner excess than the ceiling limit and, therefore, initiate the proceeding to declare the surplus land and acquire such surplus land. In my considered view, it is within the domain and jurisdiction of the State to laid down such provisions, which is absolutely in accordance with the provisions of law. (28). It would not be out of place to observe that the impugned order has been challenged after lapse of four years and after getting 54 acres of land and being satisfied with the allotment order, it also create doubts about the bona fides of the petitioner and the petitioner through her power of attorney holder wants to sold the land and fetch money under the garb of the order of Division Bench. The ratio decided by the Division Bench in case of Mussvirnisa Begum is not applicable to the present case as in that case, the land allotted does not exceed to ceiling limit. (29). The ratio decided by the Division Bench in case of Mussvirnisa Begum is not applicable to the present case as in that case, the land allotted does not exceed to ceiling limit. (29). In view of aforesaid discussion, I find no merit in the writ petition and the same is hereby dismissed with the direction to the respondents to enquire into the matter with regard to sale of land out of the land allotted in favour of the petitioner as such sale is contrary to the spirit of Jagir Act, 1952. The respondent State is further directed to take appropriate steps for incorporating the condition in allotment order at least for a reasonable time as incorporated by the State while allotting the irrigated land. The State invariably in the allotment order which are made in favour of Ex-Jagirdar gives the Gair Khatedari rights.for a period of 10 years and undertaking continues for agricultural activities for a period of 10 years. Similar condition is also required to be incorporated even for the Barani land which are allotted in lieu of Jagir resumption to the Ex- Jagirdar for maintaining themselves and this will serve the purpose to maintain the Ex-Jagirdar as stipulated in the Jagir Act. It is also expected from the respondent to allot the land in lieu of Jagir resumption in favour of Ex-Jagirdar, which is cultivable and fit for agriculture and such land should not be used for any purpose other than the agricultural purposes. If such land is utilised other than the agricultural purposes, such allotment should be cancelled after holding enquiry and the respondents are further directed to hold the enquiry in such cases.