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2009 DIGILAW 700 (RAJ)

Karim Khan v. Board of Revenue

2009-03-05

A.M.KAPADIA, SANGEET LODHA

body2009
Hon'ble KAPADIA, J.—This special appeal is directed against the order dated 3.7.1999, rendered in S.B. Civil Writ Petition No. 1453/1999 by the learned Single Judge, whereby petition filed by the appellant, assailing the order dated 29.7.1998, passed by the Board of Revenue (Annex. 3 to the petition) has been dismissed. 2. The facts of the case are that appellant was allotted 50 Bighas of uncommand land in Chak 9 B.L.D. of Murabba Nos. 172/3 and 172/2 (i.e. 25 Bighas from each Murabba), being a landless person under Rule 18 of the Rajasthan Colonisation (Allotment and Sale of Government Land in Indira Gandhi Canal Colony Area), Rules, 1975 (hereinafter referred to as 'the Rules of 1975'). As there was fending of Forest Department on the land allotted to he appellant, appellant moved an application to allot him some other land. The Allotment Authority, vide its order dated 2.8.1987 (Annx. 1 to the petition), in place of said 50 Bighas uncommand land, allotted total 25 Bigha of command land i.e. 13 Bighas in Murabba No. 133/26 and 12 Bighas in Murabba No. 132/30. The Collector, vide order dated 4.7.1998, passed under Section 232 of the Rajasthan Tenancy Act (for short the act of 1955), made a reference to the Board of Revenue on the ground of presumption that the Tehsildar submitted a wrong report that there was fencing of Forest Department in fact the land was not allotted to Forest Department and secondly, the Allotment Authority i.e. Asstt. Commissioner, Colonisation, Chattargarh had no power to make an allotment in exchange. Accordingly, while making the reference, parties were directed to appear before the Board of Revenue on 29.7.1998. Thereafter, on 29.7.1998, in absence of appellant on his counsel, reference was accepted by the Board of Revenue ex parte and the 25 bighas of land allotted to appellant in exchange was cancelled, therefore, appellant filed writ petition before the learned Single Judge. 3. The learned Single Judge on adjudicating the issues raised in petition, has dismissed the writ petition and which has given rise to the instant appeal, at the instance of original petitioner. 4. 3. The learned Single Judge on adjudicating the issues raised in petition, has dismissed the writ petition and which has given rise to the instant appeal, at the instance of original petitioner. 4. Pith and substance of the submission of learned counsel for the appellant centers around that initially the appellant was holding 50 Bighas of uncommand land and in exchange thereof 25 Bighas of command land was allotted to him as a landless person under the Rules of 1975, and that as the said land was allotted by the Collector, the Collector had no authority to make a reference under Section 232 of the Act of 1955, however, the Board of Revenue without hearing the appellant, has passed the order, therefore, the Board of Revenue without hearing the appellant, has passed the order, therefore, appellant is deprived of his right not only over the land allotted to him later on but also of the land which was previously allotted to him, therefore, the order impugned in the petition affecting the right of appellant adversely passed without giving him an opportunity of hearing is not sustainable in eye of law. He submitted that the Collector vide order dated 4.7.1998 had directed the appellant to appear before the Board of Revenue on 29.7.1998, however, the counsel appearing on his behalf before the Collector informed him that he matter is referred to Board of Revenue and for hearing, the Board of Revenue may intimate him through issuing notice, therefore, petitioner was under wrong impression that Board of Revenue will issue the notice, therefore, he could not appear on the date fixed and reference has been decided by the Board of Revenue. He, therefore, urged that the matter may be remitted back to the Board of Revenue to decide it afresh. 5. Per contra, Mr. Hemant Choudhary, learned Deputy Govt. Counsel states that when the Collector had already intimated the appellant about the reference before the Board of revenue then it was not incumbent for the Board of Revenue to again intimate the appellant, therefore, there no fault can be found in the order passed by the Board of Revenue. He, therefore, urged to dismiss the appeal. 6. Counsel states that when the Collector had already intimated the appellant about the reference before the Board of revenue then it was not incumbent for the Board of Revenue to again intimate the appellant, therefore, there no fault can be found in the order passed by the Board of Revenue. He, therefore, urged to dismiss the appeal. 6. We have considered the submissions advanced by the learned counsel for the parties and perused the order impugned dated 3.7.1999 passed by learned Single Judge as well as the order dated 4.7.1998 passed by Collector and also the order dated 29.7.1998 passed by Board of Revenue. 7. So far as the factual matrix is concerned, earlier the appellant was having 50 Bighas of uncommand land, which was allotted to him being a landless person under the Rules of 1975 but as there was fencing of Forest Department on the land allotted to the appellant, therefore, he moved an application for allotment of another land. The Allotment Authority then allotted 25 bighas of command land in lieu of 50 Bighas of land which was previously allotted to him. It is true that the Collector vide order dated 4.7.1998, asked the appellant that he should report before the Board of Revenue on 29.7.1998 but the appellant was under wrong impression that the Board of Revenue would also intimate him about the date of hearing by issuing notice, however, the Board of Revenue did not intimate him about the date of hearing of reference and on the date of hearing i.e. on 29.7.1998, accepted the reference ex parte. 8. In view of the aforesaid, we are of the opinion that the appellant was having 50 Bighas of uncommand land and in lieu thereof he was allotted 25 bighas of command land, and his allotment has been cancelled without hearing him, therefore, appellant is deprived of his valuable right of hearing before passing of the order by the Board of Revenue. 9. In view of this, according to us, in the interest of justice, the order passed by the Board of Revenue, which has been affirmed by the learned Single Judge, deserves to be quashed and set aside by allowing this appeal and remitting the matter for deciding afresh by the Board of Revenue after giving opportunity of hearing to the appellant. 10. 10. Accordingly, the special appeal filed by the appellant is allowed, the order passed by the Board of Revenue, which has been confirmed by the learned Single Judge in the writ petition is quash and set aside and the matter is remanded back to the Board of Revenue for deciding afresh under Section 232 of the Act of 1955, after giving opportunity of hearing to the appellant. The parties shall appear before the Board of Revenue on 14.4.2009. No order as to costs.