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2008 DIGILAW 156 (RAJ)

Pappu v. Jagram

2008-01-18

M.N.BHANDARI

body2008
Honble BHANDARI, M.—These five writ petitions are arising out of the same judgment dated 29.3.2007, which is common in all the cases though passed in different appeals. Looking to the fact that not only the issue involved in the present writ petitions, but the facts of all the cases are also similar, thus all five writ petitions were taken up together for final disposal. 2. The petitioners preferred these writ petitions to challenge the order passed by the Board of Revenue dated 29.3.2007 on the ground that though they are in cultivatory possession of the land, the Board of Revenue passed the order in favour of the private non-petitioners. It is submitted that initially, an application was filed by the Tehsildar before the Collector in view of the violation of the provisions of Rule 14(3) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (for short, the Rules of 1970). The District Collector concerned had passed an order on the application so moved by the Tehsildar under Rule 14(4) of the Rules of 1970. During the pendency of, the application before the Collector, the petitioners moved an application for their impleadment in view of the fact that they were in possession of the land in dispute. The application so moved by the petitioners was then allowed and the petitioners were impleaded as party respondents to the petition moved by the Tehsildar. The decision of the Collector was thereafter challenged by the non-petitioners before the Revenue Appellate Authority (for short R.A.A.), but their appeal was also dismissed and thereafter, the non-petitioners approached the Board of Revenue and therein, the second appeal so preferred by the non-petitioners was allowed. Hence, these writ petitions before this Court. 3. Learned counsel for the petitioners urged that despite of a clear finding to the effect that the petitioners were in possession of the land in dispute and were cultivating the land, the Board of Revenue reversed the finding of the two Courts below. It was also submitted that the non-petitioners had made violation of the provisions of Rule 14 of the Rules of 1970, therefore, the order passed by the Collector and upheld by the Revenue Appellate Authority was not available for interference by the Board of Revenue. It was also submitted that the non-petitioners had made violation of the provisions of Rule 14 of the Rules of 1970, therefore, the order passed by the Collector and upheld by the Revenue Appellate Authority was not available for interference by the Board of Revenue. Hence, according to learned counsel for the petitioners, not only the finding recorded by the Board of Revenue, but also interference of the two Courts below Is totally Illegal because the non-petitioners failed to cultivate the land for two years subsequent to their allotment of the land In the year 12.10.2001, thus made violation of Rule 14(3) of Rules of 1970. In view of the above, learned counsel for the petitioners urged that the judgment of the Board of Revenue should be set aside. 4. Learned counsel for the respondents, on the other hand, submits that the Board of Revenue had taken note of all the factual aspect concerned to the matter more specifically looking to the fact that as to whether Girdhawari prepared was proper or not and as to whether there was a lapse of Patwari concerned in preparation of the Girdhawari. Referring to the order of the Revenue Board, learned counsel for the respondents submitted that on the perusal of the records by the Revenue Board, it came to the conclusion that the Girdhawari prepared by the Patwari Halka was not based on correct factual position, therefore, the learned Revenue Board has rightly interfered in the order. 5. It is further urged that even the very basis taken by the Tehsildar in moving the application under Rule 14(4) of the Rules of 1970 regarding violation of Rule 14(3) was not available in view of the-amendment in the Rules of 1999. It is submitted that old rule was contemplating a condition on the allottee to cultivate at least 50% of the land in the first year of the allotment and remaining area in the second year, thus outcome of the original rule was that the entire land was to be cultivated within a period of two years and the precise allegation made by the Tehsildar in his application and supported by the petitioners was that the petitioners failed to cultivate the land so allotted to them within a period of two years after its allotment vide order dated 12.10.2001. Rule 14(3) was amended in the year 1999 and now it reads as under: "14(3)- The allottee shall have to bring the land under cultivation and shall utilize it properly. Provided that this period may be extended by the Tehsildar by one year if due to unforeseen causes over which the allottee had no control, he was unable to cultivate the land within the stipulated period." 6. A bare perusal of the Rules clearly shows that condition of cultivation of the land to the extent of 50% in the first year and remaining in the second year no more exists. Now, the condition on the allottee is to bring the land under cultivation and to utilize it properly further. 7. In view of the aforesaid, it becomes clear that the entire matter was dealt with by all the authorities below on the basis of the provisions, which has also been amended. Thus, the judgment passed by the Collector as well as by the RAA was on the basis of non-existing provision, thus the same can be set aside on that ground alone. However, taking note of the fact that apart from the aforesaid ground, the Revenue Board has even looked into the factu~1 aspect of the matter, after going through the record and finding that Girdhawari record of the Patwari Halka was not properly maintained, otherwise it was showing cultivation of the land, hence, even on facts the judgment of the learned two Courts below cannot be allowed to be sustained, inasmuch as perusal of both the orders passed by the two Courts below i.e. Collector as well as Revenue Authority reveals that they had not properly appreciated the record of the Patwari Halka before arriving at the factual conclusion, thus even on facts the finding recorded by the Collector as well as Revenue Authority cannot be sustained rather the conclusion drawn by the Revenue Board are just and proper. 8. 8. Learned counsel for the petitioners, however, submits that the matter should be remanded back to the Collector looking to the fact that their exists serious dispute about the possession of the land In dispute and, therefore, the Issue of possession should first be decided and only then necessary order should be passed as to whether there exists violation of provisions of Rule 14(3) or not I am afraid that on the issue for which remand is asked was not even taken or raised earlier, hence, matter cannot be remanded back to the Collector for recording its finding on the aforesaid issue. It is a case where the matter was initiated on the application moved by the Tehsildar under Rule 14(4) of the Rules of 1970 and the two Courts below adjudicate the issue as to whether their exists violation of Rule 14(3) or not The issue in regard to violation of Rule 14(3) has already been discussed and even in that regard, a finding has also been recorded by the Revenue Board taking note of the factual aspect though based on the old provision, however, apart from the finding recording by the Revenue Board, since it has brought to the notice of this Court the provisions of Rule 14(3) has also been amended in the year 1999 and by virtue of amended rule which otherwise is applicable to the present matter. The very ground taken by the Tehsildar for seeking cancellation of the allotment was not existing. 9. In view of the above, there exists no lacuna in the order passed by the Revenue Board, thus, the same cannot be set (3.side, thus same is upheld for the reasons given therein as well as for the additional reasons given in the judgment 10. In view of the above discussions, all the five writ petitions are according dismissed. 11. After dictation of the order, learned counsel for the petitioners submits that if he is having any other right, he may be given liberty to agitate the matter before the appropriate authority. It goes without saying that if any person is having a right under the provisions of law, he is always at liberty to pursue the same at any time.