Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 49 (RAJ)

Roshani (Mst. ) v. State of Rajasthan

2010-01-07

SANGEET LODHA

body2010
JUDGMENT 1. - -This writ petition is directed against order dated 5.1.1996 of the Board of Revenue, Rajasthan whereby the revision petition preferred by the petitioner against the order dated 31.7.1992 dismissing the appeal against order dated 16.9.1975 of Assistant Colonisation Commissioner, Lunkaransar allotting the disputed land to the respondents herein, stands dismissed. 2. Briefly stated the relevant facts are that Shri Nanu Khan, the father of the petitioner herein was holding 122 bighas land situated at Lunkaransar and 180 bighas land situated at village Udarana as temporary cultivation lease holder prior to Samvat 2012. It is submitted that during the chakbandi, the land situated in Lunkaransar came under Chak RD277-600, whereas the land of village Udarana came under Chak 274-200RD. Shri Nanu Khan expired in Samvat 2017 when his application for permanent allotment was pending before the allotting authority. It is alleged that after the death of Shri Nanu Khan, the land held by him was partitioned between his legal heirs by way of settlement and the petitioner being daughter of Shri Nanu Khan was given 29 bighas and 4 biswas of land of her share in Chak No. 274/200RD. However, vide order dated 16.9.1975 issued by the Assistant Colonisation Commissioner, Lunkaransar, the aforesaid land was allotted to the respondent Nos. 4 to 10 under Rule 13(5)(b) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Area) Rules, 1975 (in short "the Rules of 1975" hereinafter). It is alleged that the allotment in favour of the respondents No. 4 to 10 was made without giving any notice to the petitioner in terms of Rule 4(4) of the Rules of 1975. 3. In these circumstances, the petitioner preferred an appeal against the allotment order dated 16.9.1975 before the Revenue Appellate Authority, Bikaner which was dismissed vide order dated 31.7.1992 as barred by limitation so also on merits. The Appellate Authority found that the explanation of delay in filing the appeal submitted by the petitioner cannot be treated to be sufficient. On merits, the Appellate Authority found that there is no evidence on record that the petitioner was in cultivatory possession of the land during the period 1975 to 1992 therefore, it cannot be accepted that she came to know about the allotment made in favour of the contesting respondents in the year 1975, when the patwari concerned asked her to vacate the land. That apart, the Appellate Authority observed that after making the permanent allotment in favour of the legal heirs of Shri Nanu Khan, the remaining surplus land was declared as Government land and then, the same was allotted to the adult sons and no khatedari rights have been conferred upon them as legal heirs under Section 15AAA of the Rajasthan Tenancy Act, 1955 (in short "the Act of 1955"). 4. A revision petition, preferred by the petitioner has also been dismissed by the Board of Revenue vide order dated 5.1.1996. After due consideration, the Board found that there is nothing on record to show that Shri Nanu Khan was in possession of the land prior to Samvat 2012 and had become khatedar under Section 15AAA of the Act of 1955. That apart, it was observed by the Board that if the petitioner had any claim of share in the khatedari land of Shri Nanu Khan then, she should have filed a separate suit in this regard. The Board further observed that since the appeal was decided by the Appellate Authority on merits then the question of limitation becomes irrelevant. 5. It is submitted by the learned counsel for the petitioner that the petitioner was entitled for allotment as legal heir of late Shri Nanu Khan in terms of Rule 13(5)(b) of the Rules of 1975. It is submitted by the learned counsel that in view of a Bench decision of this Court in the matter of Kumari Jani Bai v. State of Rajasthan, 1989 RRD 345 , "adult son" entitled for allotment in terms of Rule 4(4) and Rule 13(5)(b) of the Rules of 1975 includes about daughter also and therefore, ignoring the claim of the petitioner, the land could not have been allotted in favour of the respondents herein. It is submitted by the learned counsel that after the death of Nanu Khan, it was duty of the allotting authority to give proper notice to the all legal heirs of deceased Nanu Khan before making permanent allotment of the land in their favour. It is submitted by the learned counsel that the land in question was allotted in favour of respondents No. 4 to 10 in the back of the petitioner which is violative of the provisions of Rules of 1975 and the principles of natural justice. 6. It is submitted by the learned counsel that the land in question was allotted in favour of respondents No. 4 to 10 in the back of the petitioner which is violative of the provisions of Rules of 1975 and the principles of natural justice. 6. The learned Government Counsel submitted that for the reasons recorded, the Board of Revenue has rightly dismissed the revision petition preferred by the petitioner. It is submitted by the learned Government Counsel that if the petitioner was entitled for allotment of surplus land in her favour in terms of Rule 13(5)(b) of the Rules of 1975 then nothing prevented her from making an appropriate application for allotment. Drawing the attention of this Court to the certified copies of the allotment proceedings placed on record, the learned Government Counsel submitted that the allotment has been made in favour of the respondents No. 4 to 10 not as legal heirs of deceased Shri Nanu Khan therefore, the petitioner has no right to assail the validity thereof on the basis of alleged rights as a legal heir of late Shri Nanu Khan. Accordingly, it is submitted by the learned Government Counsel that the order impugned of the Board of Revenue does not suffer from any error warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 7. I have considered the rival submissions and perused the material on record. 8. Indisputably, by the Bench decision of this Court in Jani Bai's case (supra), it stands settled that adult son entitled for allotment in terms of Rule 4(4) and Rule 13(5)(b) of the Rules of 1975 includes adult daughter also and the said provisions shall be construed as such from beginning of the enactment of the Rules of 1975. The petitioner is claiming permanent allotment of the land as a daughter of Nanu Khan, on the ground that Nanu Khan was the temporary cultivation lease holder of the land in question and his application for permanent allotment was pending before the allotting authority at the time of his death. 9. The petitioner is claiming permanent allotment of the land as a daughter of Nanu Khan, on the ground that Nanu Khan was the temporary cultivation lease holder of the land in question and his application for permanent allotment was pending before the allotting authority at the time of his death. 9. However, a perusal of the allotment proceedings produced by the learned Government Counsel for perusal of this Court reveals that Shri Gani Khan, Gulam, Fezu and Saffi Mohammed sons of Shri Nanu Khan, the brothers of the petitioner were allotted 81 bighas of command land as landless persons out of 84 bighas command and 79 bighas and 2 biswas un-command land in their joint possession as gair khatedar and not as legal heirs of Shri Nanu Khan. 10. Further, the respondents No. 4 to 10 have been allotted the land out of the land declared surplus in the hands of their fathers Gani Khan and others, as "adult sons" in terms of the provisions of Rule 13(5)(b) of the Rules of 1975. Obviously, the petitioner could not have claimed the allotment of the land declared surplus in the hands of her brothers Gani Khan and others. 11. Thus, if the petitioner had any claim regarding the permanent allotment of land on the ground that her father late Shri Nanu Khan was holding the land in question as temporary cultivation lease holder then nothing prevented her from raising her claim before the authority concerned by way of appropriate application. She could have availed the remedy of suit for declaration of her rights as well. However, in absence of any evidence on record regarding Shri Nanu Khan being in.possession of the land prior to Samvat 2012, the permanent allotment made in favour of the respondents out of the remaining surplus land in the hands of Gani Khan and others after declaring the same as Government land cannot be faulted with. Suffice it to say that neither Shri Gani Khan and others nor the respondents No. 4 to 10 herein have been conferred khatedari rights as legal heirs of Shri Nanu Khan under Section 15AAA of the Rajasthan Tenancy Act, 1955, therefore, the entire edifice of the claim raised by the petitioner is without foundation. 12. Suffice it to say that neither Shri Gani Khan and others nor the respondents No. 4 to 10 herein have been conferred khatedari rights as legal heirs of Shri Nanu Khan under Section 15AAA of the Rajasthan Tenancy Act, 1955, therefore, the entire edifice of the claim raised by the petitioner is without foundation. 12. In view of the discussion above, in considered opinion of this Court, the order impugned passed by the Board of Revenue rejecting the revision petition t against the order dated 31.7.1992 passed by Appellate Authority dismissing the appeal against the order dated 16.9.1975 of Assistant Colonisation Commissioner, Lunkaransar allotting the disputed land in favour of the respondents No. 4 to 10 does not suffer from any jurisdictional error warranting interference by this Court in exercise of its extra ordinary jurisdiction under Article 227 of the Constitution of India. 13. In the result, the writ petition fails, it is hereby dismissed. 14. No order as to costs.Petition dismissed. *******