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2009 DIGILAW 1105 (RAJ)

Saddique v. The State of Rajasthan

2009-04-23

DINESH MAHESHWARI

body2009
JUDGMENT 1. - By the order dated 04.12.1997 (Annex.1), the State Government in its Colonisation Department, while observing that 38.14 bighas of agricultural land of Allabux son of Kurda (predecessor of the petitioners Nos. 1 to 3) and Barkhu son of Jume Khan (petitioner No.4) at Chak ZWM and Chak 1 KLM had been acquired, proceeded to sanction allotment to them in exchange the agricultural land in Murabba No. 136/56 at Chak 5 PRKM; in Murabba Nos. 144/416 and 142/416 at Chak 12 KWD; in Murabba No. 29/53 at Chak 1 KDM; and in Murabba No. 50/17 at Chak 3 SPD, in all measuring 38 bighas and 14 biswa; and, pursuant to the sanction, the Collector, Haumangarh issued the allotment order in relation to the said land on 15.01.1998 Annex.2). The petitioners have pointed out that the said land was duly recorded in their name and was handed over in possession. 2. It is alleged that the Gram Panchayat concerned preferred an appeal against such allotment wherein on 11.05.2008, the Revenue Appellate Authority issued a stay order directing status quo to be maintained in relation to the land of Murabba No. 136/56 at Chak 5 PRKM and posted the matter for arguments. However, on 18.07.1998, the respondent No.2, Collector, Hanumangarh proceeded to issue the impugned order (Annex.7) cancelling the said allotment order dated 15.01.1998 with reference to an order dated 09.07.1998 as issued by the Government in its Colonisation Department whereby the sanction order dated 04.12.1997 had been cancelled; and the Tehsildar concerned was directed to recover possession of the land in question and to enter the same in the records as the Government land. 3. Aggrieved, the petitioners filed this writ petition on 22.07.1998 with the submissions, inter alia, that the impugned order had been passed at their back without any opportunity of hearing; that it was a non-speaking order without setting forth the circumstances where for and the grounds whereupon such cancellation was ordered. It has been asserted that the petitioners were allotted the land after a long spell of 35 years in exchange though their land had been taken over way back in the year 1961-62 without any payment of compensation; and that the petitioners never concealed any fact nor there was any reason where for the allotment of the land was required to be cancelled. The allotment was, according to the petitioners, made in a legal manner and after completion of the requisite formalities. The petitioners have alleged that they had been in peaceful possession of the land except 20 bighas of disputed land whereupon a Receiver has been appointed by the Assistant City Magistrate, Rawatsar. It has been suggested that even a copy of the order as made by the State Government on 09.07.1998 has not been supplied to them. 4. This writ petition was admitted for consideration on 24.07.1998 and by way of interim order, dispossession of the petitioners was ordered to be stayed. An application was moved in this matter by Moman Ram son of Kana Ram seeking impleadment with the submissions that the land in question is a public utility land situated in village Pohadka and himself being a Ward Panch of Gram Panchayat concerned, was interested in protecting the property of the Panchayat. The application was allowed on 09.07.1999 and the applicant was ordered to be joined as the respondent No.3 in this petition. Thereafter, the interim order passed by this Court was confirmed on 11.10.2000. 5. Separate replies have been submitted in this matter by the respondent No.3 and by the respondents Nos.1 and 2. The respondent No.3 would assert that the petitioners submitted a wrong application by concealing material facts and obtained illegal order for allotment of Johad Paytan land, though they were not entitled for any such allotment. It has also been asserted that the petitioners had already obtained the land in exchange long back and while concealing the previous allotment, they submitted a fresh application and obtained illegal order that has rightly been cancelled when such concealment of material facts surfaced. 6. The respondents Nos.1 and 2 have filed separate reply with the assertions that the land allotted by the order dated 04.12.1997 was not a vacant land but was entered as Johad Paytan in the revenue records; that many houses had been constructed on the said land and there are various Dharmshalas, temples existing thereat. It has also been asserted that the exercise of cancellation ' had been carried out because the earlier allotment made in favour of the petitioners escaped the notice of the authorities. It has also been asserted that the exercise of cancellation ' had been carried out because the earlier allotment made in favour of the petitioners escaped the notice of the authorities. It has been asserted that the petitioners had already been allotted the land in exchange of the acquired land on 12.05.1967 and copy of such order dated 12.05.1967 has been placed on record as Annexure R/2. 7. The petitioners have submitted a rejoinder with the assertion that the allotment in question had been made after due enquiry; and that it was not a case of the petitioners taking double allotment. It is asserted that 38.14 bighas of land was acquired besides other 11.13 bighas of land in whose regard, the petitioners had been allotted only 7.18 bighas of land at Chak 2 KLM. 8. During the course of submissions in this petition, while noticing that the impugned order dated 18.07.1998 (Annex.7) came to be issued by the Collector, Hanumangarh pursuant to the State Government's order dated 09.07.1998 but copy thereof has not been placed on record, the learned Government Counsel was posed a question in that regard. Learned Government Counsel has now placed on record. a copy of the order dated 09.07.1998 issued by the Government in its Colonisation Department addressed to the District Collector, Hanumangarh that reads as under:- " mijksDr fo"k;kUrxZr lanHkZ esa funs'kkuqlkj ys[k gS fd izkFkhZ Jh vykc{k dqjM+k dyky o cDlq iq= tqes [kk dks rcknys esa Hkwfe dh Lohd`fr lEcU/kh 'kklu ds le la[;d vkns'k fnukad 4-12-97 dks fujLr fd;k tkrk gSA " 9. Having examined the material placed on record and having given a thoughtful consideration to the submissions made by the learned counsel for the parties, this Court is unable to countenance the dealings of the respondents Nos.1 and 2 in this matter particularly in cancellation of the allotment made in favour of the petitioners. 10. It is noticed that by the order dated 04.12.1997, specifically the sanction was issued for allotment of above-mentioned land in favour of the petitioners and in pursuance thereof, the Collector, Hanumangarh issued the allotment order dated 15.01.1998. The record prima facie shows that the allotted land had been recorded in the name of the petitioners and then, there had been certain amendments and modifications made in the record particularly pursuant to the orders passed by the Revenue Appellate Authority, pursuant to the impugned orders. The record prima facie shows that the allotted land had been recorded in the name of the petitioners and then, there had been certain amendments and modifications made in the record particularly pursuant to the orders passed by the Revenue Appellate Authority, pursuant to the impugned orders. The fact of the matter remains that the allotment was specifically made in favour of the petitioners while recognising their right for such allotment in exchange of the land acquired. 11. In the impugned order as issued on 18.07.1998, the Collector, Hanumangarh has merely referred to the fact of making of allotment and then, the fact of receiving of the order dated 09.07.1998 cancelling the sanction for such allotment; and the learned Collector has proceeded to cancel the allotment pursuant to the said order dated 09.07.1998. The entire order dated 09.07.1998 has been reproduced above; and it is very difficult to find as to how and on what basis, the Government proceeded to issue the order dated 09.07.1998 ? This is apart from the fact that admittedly such an order was issued without hearing the petitioners. 12. Once specific sanction had been issued and specific allotment had been made in favour of the petitioners, the rights came existing in the petitioners and the same could not have been taken away in such a casual and cursory manner by simply issuing an order of cancellation for allotment without disclosing any reasons and without hearing the petitioners. Only or these counts, the impugned orders cannot be sustained and are required to be set aside. 13. Though certain submissions have been sought to be made on behalf of the respondents that the petitioners had already got the allotment in exchange of the land acquired and such submissions have been sought to be countered by the petitioners with the assertion that the previous allotment as referred had been in relation to the different land acquired but then, this Court would not like to make any comment in regard to such of the submissions of either of the parties because the fact of the matter remains that the impugned orders have been passed squarely in violation of the principles of natural justice without hearing the petitioners and are absolutely non-speaking; and the respondents cannot be permitted to supply reasons by way of replies in this petition. 14. 14. Similarly, the suggestion about the land in question being a Johad Paytan land and other co-related facts do not deserve consideration because, again, such had not been the basis of passing of the order dated 09.07.1998. It may, however, be observed that so far the land in question being Johad Paytan is concerned, the fact was precisely in the knowledge of the authorities while making the allotment as is apparent from the contents of the sanction order dated 04.12.1997 and the allotment order dated 15.01.1998. 15. Having regard to the facts and circumstances of the case, the Court is unable to countenance the impugned orders that have been issued squarely against the very basic principles of natural justice. Learned counsel appearing for the respondents made a submission that in the totality of circumstances, the matter could be remanded to the State Government, for consideration afresh. This Court does not find any justification to make any order of remand herein because the petitioners were neither served with any notice before passing of the order nor were they afforded any opportunity of hearing nor any reasons had been assigned in the orders impugned. Instead of making any directions for remand, it appears proper to observe that if considered necessary, appropriate proceedings could be adopted by the authorities only in accordance with law; and if any order adverse to the interest of the petitioners is proposed to be passed, the petitioners be afforded adequate opportunity of hearing in such proceedings that shall be required to be concluded with reasoned and speaking order. 16. In the result, this writ petition succeeds and is allowed. The impugned orders dated 18.07.1998 and 09.07.1998 are quashed and set aside, of course, with the observations foregoing. 17. In the circumstances of the case, the parties are left to bear their own costs.Writ Petition Allowed. *******