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2009 DIGILAW 642 (RAJ)

Bena Ram v. Board of Revenue

2009-03-03

A.M.KAPADIA, SANGEET LODHA

body2009
Hon'ble LODHA, J.—Heard learned counsel for the parties. 2. This special appeal is directed against order dated 15.7.1999 passed by the Single Judge of this Court whereby the writ petition preferred by the appellant assailing the correctness of order 16.7.1996 passed by the District Collector, Jaisalmer and order dated 24.7.1998 passed by the Board of Revenue, Rajasthan, Ajmer, stands dismissed. By order dated 24.7.1998, the Board of Revenue affirmed the order dated 16.7.1996 passed by the District Collector, Jaisalmer whereby the allotment of land made in favour of the appellant was cancelled in exercise of the power conferred under Rule 17(4) of the Rajasthan Imposition of Ceiling on Agriculture Holdings Rules, 1973 (in short "the Rules of 1973" hereinafter). The appellant has also challenged the notification dated 5.5.1999 whereby the land held by the appellant is sought to be allotted to other persons. 3. The appellant was allottee agriculture land admeasuring 26 bighas, comprising Khasra No. 2/2, situated at village Madhupura vide a decision taken by the Allotment Advisory, Committee in the meeting held on 16.7.1987. A complaint was lodged by one Shri Praying Singh, the respondent No. 6 herein under Rule 17(4) of the Rules of 1973 with the allegations that at the time of allotment of the land the appellant was minor, he was not the resident of village Madhupura or Sankara and he had given incorrect particulars therefore, the allotment secured by him against the rules through misrepresentations, is liable to be cancelled. 4. The complaint was contested by the appellant by filing a reply thereto. It was specifically averred therein that at the time of allotment, the appellant was resident of Madhupura (Sankara) and in support thereof, a certificate of Sarpanch, Gram Panchayat Sankara and a photo stat copy of the Ration Card was produced by the appellant before the District Collector, Jaisalmer. It was further stated that since last 5 to 6 years, the appellant was residing with his maternals a village Randha, sub-tehsil Fatehgarh but, at the time of allotment he was residing at Madhpura. It was contended on behalf of the appellant that the allotment of land was made in his favour in accordance with the provisions of Rules of 1973. It was contended on behalf of the appellant that the allotment of land was made in his favour in accordance with the provisions of Rules of 1973. It was submitted that in absence of any application filed on behalf of the residents of villages Madhupura belonging to the Schedule Castes and Scheduled Tribes, the allotment made in favour of the appellant according to the priority under the Rules of 1973 considering him a landless person, cannot be faulted with. 5. The District Collector while cancellating the allotment made in favour of the appellant vide order dated 16.7.1996 has arrived at the finding that no documentary evidence viz., Ration Card, Voter List or other Government record has been produced to show that the appellant is resident of the village Madhupura (Sankara). The certificate of Sarpanch, Gram Panchayat, Madhupura (Sankara) produced by the appellant was not considered to be an adequate proof regarding the domicile of the appellant. That apart, relying upon the report of the Tehsildar, Pokaran, the District Collector opined that at the time of allotment, the appellant was minor therefore, the allotment made in his favour is contrary to the provisions of Rule 12 of Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970. 6. On the further appeal by the appellant, the Board of Revenue considering the averments made by the appellant in reply to the complaint opined that it is an admitted fact that for last 5-6 years, the appellant was not residing in the village Madhupura (Sankara) and was residing at village Randha. That apart, relying upon the report of Tehsildar, Pokaran, stating that no person with the name Bena Ram and Purkha Ram resides in the village Sankara, the appellants name does not find mention in the Voter List and no Ration Card has been issued in his name, held that the allotment made in his favour is illegal. 7. In view of the concurrent finding recorded by the revenue authorities against the appellant on the basis of the admission alleged to have been made by him in the reply to the complaint that he was not staying in the village Madhupura (Sankara) since last 5-6 years, the learned Single Judge has declined to interfere with the orders impugned in the writ petition. 8. 8. It is contended by the learned counsel for the appellant that admittedly alongwith the reply to the complaint, the appellant had produced the Ration Card and a certificate issued by the Sarpanch, Gram Panchayat, Sankara showing that he is resident of village Madhupura (Sankara) but the same have been altogether ignored by the authorities below. It is submitted by the learned counsel that this aspect of the matter has escaped the attention of the learned Single Judge as well. The learned counsel submitted that the averments made by the appellant in no manner can be treated to be admission of the appellant that he was not resident of the village Madhupura (Sankara). It is submitted that ignoring the material on record produced by the appellant and solely relying upon the report of the Tehsildar prepared at the back of the appellant, without there being any supporting evidence, the finding arrived at by the authorities below is not sustainable. That apart, it is submitted by the learned counsel that even if the appellant is considered to be not a resident of the village Madhupura then, as per the Rule 17, if the residents of the village concerned are not available then, the allotment can be made according to the priority even in favour of the resident of neighbouring village. The learned counsel submitted that the appellant having deposited full price of the land under Rule 18 of the Rules of 1973 and having become the khatedar tenant of land had acquired all rights under the provisions of Rajasthan Tenancy Act and the allotment made in his favour could not have been cancelled by invoking the provisions of Rule 17(4) of the Rules of 1973. 9. On the other hand, the learned counsel appearing on behalf of the respondents submitted that the findings arrived at by the District Collector and the Board of Revenue are based on material on record and cannot be said to be perverse so as to warrant interference by this Court in exercise of its extra ordinary jurisdiction under Article 226/227 of the Constitution of India. The learned counsel submitted that in view of the admission of the appellant in para No. 4 of the reply to the complaint, the findings arrived at by the revenue authorities, affirmed by the learned Single Judge cannot be faulted with. 10. The learned counsel submitted that in view of the admission of the appellant in para No. 4 of the reply to the complaint, the findings arrived at by the revenue authorities, affirmed by the learned Single Judge cannot be faulted with. 10. We have considered the rival submissions and perused the material on record. 11. The findings arrived at by the revenue authorities and the contentions of the learned counsel revolves around the alleged admission of the appellants as contained in para 4 of the reply to the complaint under Rule 17(4) of the Rules of 1973 therefore, it will be beneficial to reproduce the contents thereof:- ^^4- ;g gS fd iSjk la- pkj izkFkZuk i= xyr gksus ls vLohdkj gSA vizkFkhZ la- ,d cs.kkjke iq= Jh iqj[kkjke oDr vkosnu ek/kqiqjk ¼lkadM+k½ ds gh fuoklh gSa ftlds fuokl ds izek.k ds izek.k Lo:i izek.k i= ljiap lkadM+k o jk'ku dkMZ dh QksVks izfr layXu gSA ;|fi cs.kkjke gky fiNys 5-6 o"kksZ ls vius ufugky xkao j.k/kk mi rglhy Qrsgx<+ esa fuokl dj jgk gS tcfd mDr vkoaVu vizkFkhZ la- ,d ek/kwiqjk dk gh fuoklh FkkA mDr vkoaVu vizkFkhZ la- ,d dks lgh :i ls xkao ek/kqiqjk dk ewy fuoklh ekudj gh vkoafVr dh xbZ Fkh ftls fujLr ugha fd;k tk ldrk gSA** 12. A bare perusal of contents of para No. 4 reproduced above goes to show that the appellant had categorically stated that he is resident of village Madhupura (Sankara) at the time of allotment and in proof thereof, a certificate issued by Sarpanch, Sankara and photo stat copy of Ration Card were also, annexed with the reply. Of course, the appellant has stated that since last 5-6 years, he was residing with his maternals at village Radhwa but at the same time, he has stated that at the time of allotment he was resident of Madhupura. In our considered opinion, if for a few years, the appellant was resident with his maternals, this fact by itself is not sufficient to draw an inference that at the time of allotment of the land, he was not resident of village Madhupura (Sankara). In any case, the averments made as aforesaid cannot be treated to be admission of the appellant that at the time of allotment he was not a resident of Madhupura (Sankara). 13. In any case, the averments made as aforesaid cannot be treated to be admission of the appellant that at the time of allotment he was not a resident of Madhupura (Sankara). 13. It is to be noticed that the finding arrived at by the authorities below is solely based on the report of the Tehsildar which was admittedly prepared at the back of the appellant. That apart there is nothing on record to show that any documentary evidence was produced before the District Collector in support of the report giving finding adverse to the appellant. The documentary evidence produced by the appellant as aforesaid has been brushed aside altogether. Surprisingly, ignoring the photo stat of the Ration Card produced by the appellant, the District Collector has arrived at the finding that no documentary evidence viz. Ration Card, Voter List or other documentary evidence has been produced on record. The District Collector has not assigned any reason as to why the certificate produced by the Sarpanch, Gram Panchayat, village Madhupura, a local authority cannot be considered to be sufficient proof. In this view of the matter, in our considered opinion, the finding arrived at by the District Collector ignoring the relevant material on record solely relying upon the report of the Tehsildar without there being any documentary evidence in support thereof is ex facie perverse. For the parity of the reasons, the finding arrived at by the Board of Revenue is also not sustainable in eye of law. 14. For the aforementioned reasons, in our considered opinion, the learned Single Judge has erred in declining to interfere with the orders impugned in the writ petition. On the facts and in the circumstances of the case, in our view, the matter deserves to be remanded to the District Collector, Jaisalmer for consideration afresh in accordance with law. 15. In the result, the special appeal succeeds, it is hereby allowed. Order impugned dated 15.7.1999 passed by the learned Single Judge is set aside. The writ petition is allowed. The orders impugned in the writ petition are set aside. The matter is remanded to the District Collector, Jaisalmer for consideration and decision afresh. The appellant shall appear before the District Collector, Jaisalmer on 6.4.2009, who shall decide the matter expeditiously after giving full opportunity of hearing to the appellant, preferably within a period of six months thereafter. The orders impugned in the writ petition are set aside. The matter is remanded to the District Collector, Jaisalmer for consideration and decision afresh. The appellant shall appear before the District Collector, Jaisalmer on 6.4.2009, who shall decide the matter expeditiously after giving full opportunity of hearing to the appellant, preferably within a period of six months thereafter. It is made clear that the appellant will be at liberty to raise all contentions available to him under the law before the District Collector, Jaisalmer. No order as to costs.