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2010 DIGILAW 60 (RAJ)

Buggi Devi v. Board of Revenue

2010-01-07

SANGEET LODHA

body2010
Hon'ble LODHA, J.—This writ petition is directed against order dated 1.3.96 of the Board of Revenue, Rajasthan, whereby an appeal preferred by the petitioner against the order dated 20.2.96 passed by the Colonisation Commissioner, Bikaner, cancelling the allotment of land made in her favour in exchange of the land already allotted, has been dismissed. 2. The relevant facts in nutshell are that the petitioner was allotted land measuring 25 bighas comprising Murabba No. 226/56 and 17 bighas comprising Murabba No. 222/64 in Chak No. 18 PSD by the Assistant Commissioner Colonisation, Kolayat. Since the land allotted to the petitioner was not suitable for cultivation purposes therefore, she made an application to the Assistant Commissioner Colonisation, Indira Gandhi Nahar Pariyojana ("IGNP") Kolayat for allotment of some other cultivable land. The Assistant Commissioner Colonisation directed Tehsildar to submit the report in this regard who in his turn asked the concerned Patwari to submit the report. It was reported by the Patwari that the land allotted to the petitioner is not suitable for cultivation being covered by high sand dunes. After consideration of the report of the Patwari, the Assistant Commissioner Colonisation vide order dated 16.12.91 while cancelling the earlier allotment made in favour of the petitioner, allotted 21 bighas of command land comprising Murabba No. 64/17 and 64/33 in Chak 6 PSD. 3. The respondent No. 3 herein preferred an application for review of order dated 16.12.91 passed by the Assistant Commissioner Colonisation, Kolayat contending that the land comprising Murabba No. 64/33 has already been allotted to his son Ramniwas in the year 1989 and therefore, the same could not have been allotted to the petitioner herein. On the factual report being requisitioned, the Patwari of the area concerned reported that 12 bighas land comprising khasra No. 64/33 Killa No. 11 to 14 and 17 to 24, 4 bighas land comprising Murabba No. 64/25 Killa No. 15, 16, 24, 25, 3 bighas land comprising Murabba No. 64/26, Killa No. 3 to 5 and 2 bighas land comprising Murabba No. 64/34 Killa No. 1 & 2, total 21 bighasland already stands allotted in the name of Ram Niwas s/o Shri Hajari Ram Bishnoi, however, since the allotment made was not entered in the revenue record, 10 bighas land comprising Murabba No. 64/33 was allotted in favour of Smt. Buggi Devi, the petitioner herein and possession thereof was handed over to her on 6.1.92. 4. The respondent No. 3 also made a complaint before the Commissioner Colonisation, Bikaner, who referred the matter for enquiry to the Deputy Commissioner Colonisation, Bikaner. On receipt of the enquiry report from the Deputy Commissioner Colonisation vide communication dated 19.4.93, the proceedings under Rule 22(3) of the Rajasthan Colonisation (Allotment & Sale of Government Land in IGNP Area) Rules, 1975 (in short "the Rules of 1975" hereinafter) were initiated and the petitioner herein was issued a notice as to why the allotment made in her favour may not be cancelled. 5. After due consideration of the rival submissions, the Colonisation Commissioner arrived at the finding that the Assistant Colonisation Commissioner, the allotting authority had no jurisdiction to allot the command land in exchange of uncommand land allotted to the petitioner by way of lottery. That apart, the Commissioner found that if earlier the uncommand land was allotted to the petitioner herein then for allotting the land in exchange, the matter was required to be referred to the Colonisation Commissioner, who could have taken the appropriate steps for allotment in accordance with the orders issued by the State Government in this regard. The Commissioner found that so many applications for allotment of the command land in exchange of the uncommand land were pending therefore, the allotting authority was not justified in allotting the desired land to the petitioner herein ignoring the preference of others entitled for allotment in exchange. Accordingly, vide order dated 20.2.96 while setting aside the allotment made in favour of the petitioner as aforesaid, it was ordered that the petitioner may be allotted the land in exchange by lottery amongst the person who have applied for allotment of land in exchange as per the directions of the Head Office. 6. Aggrieved by the aforesaid order dated 20.2.96, the petitioner preferred an appeal which stands dismissed by the Board of Revenue by order impugned holding that the transfer made without following the procedure lacks the legal sanctity. The Board opined that for bona fide transfer, the proposal should have been sent to the Colonisation Commissioner as prescribed under the law. 7. Aggrieved by the aforesaid order dated 20.2.96, the petitioner preferred an appeal which stands dismissed by the Board of Revenue by order impugned holding that the transfer made without following the procedure lacks the legal sanctity. The Board opined that for bona fide transfer, the proposal should have been sent to the Colonisation Commissioner as prescribed under the law. 7. The learned counsel for the petitioner submitted that the proceedings under Rule 22(3) of the Rules of 1975, initiated by the Colonisation Commissioner at the instance of Shri Hajari Ram was absolutely without jurisdiction inasmuch as, Shri Hajari Ram had no locus standi to maintain the complaint assailing the allotment made in favour of the petitioner. The learned counsel submitted that the allotment made in favour of the respondent already stands cancelled and therefore, as on the date, there is no claim for the land in question and the petitioner is in possession of the land since 1991. Accordingly, it is submitted that there is no reason as to why the allotment of land made in favour of the petitioner, a landless person, should be cancelled at this stage. The learned counsel submitted that even if the order impugned is maintained by this Court, the respondent is not going to be benefited. The learned counsel submitted that the Board has seriously erred in holding that the exchange could have been sanctioned only by the Colonisation Commissioner and the allotting authority had no jurisdiction to allot the land in exchange. It is submitted by the learned counsel that the exchange has been sanctioned as per provisions of Section 12 of the Rajasthan Colonisation Act, 1954 and does not suffer from any infirmity or illegality. The learned counsel submitted that the Colonisation Commissioner had committed an error in holding that the exchange of the land was made in contravention of provisions of Rule 13(5)(d) of the Rules of 1975. The learned counsel submitted that the provisions of Rule 13(5)(d) are applicable only at the time of initial allotment and not in cases of exchange. The learned counsel submitted that the Colonisation Commissioner had committed an error in holding that the exchange of the land was made in contravention of provisions of Rule 13(5)(d) of the Rules of 1975. The learned counsel submitted that the provisions of Rule 13(5)(d) are applicable only at the time of initial allotment and not in cases of exchange. The learned counsel submitted that under Rule 22(3) of the Rules of 1975, the Colonisation Commissioner is empowered to cancel the allotment made in contravention of the provisions of the Rules of 1975 but the exchange of the land was sanctioned in favour of the petitioner u/S. 12 of the Act of 1954 by the allotting authority which does not fall within the purview of Rule 22(3) of the Rules of 1975 hence, the entire proceedings taken by the Colonisation Commissioner for cancellation of the allotment stands vitiated on this count alone. The learned counsel submitted that the land in exchange was allotted in favour of the petitioner in the year 1991 and the possession was handed over on 6.1.92 and thereafter, the petitioner has invested the huge amount for the development of the land and has also constructed a residential house over the land therefore, at this juncture if exchange of the land made in favour of the petitioner is cancelled then, she will suffer irreparable loss. 8. Per contra, Mr. N.S. Acharya, the learned counsel appearing on behalf of the respondent No.3 submitted that the question of locus standi of the respondent No. 3 to maintain the petition for cancellation of allotment raised on behalf of the petitioner is absolutely baseless. It is submitted by the learned counsel that in terms of Rule 22(3), the Colonisation Commissioner is empowered to cancel the allotment made by the allotting authority either suo moto or on an application of any person in a case where the allotment has been made against the Rules, therefore, the cancellation of the allotment made on the application preferred by the respondent No. 3 cannot be faulted with. The learned counsel submitted that it is settled law that the only Commissioner is competent to sanction the exchange therefore, the orders sanctioning the exchange of the land in favour of the petitioner by the allotting authority is ex facie without jurisdiction. The learned counsel submitted that it is settled law that the only Commissioner is competent to sanction the exchange therefore, the orders sanctioning the exchange of the land in favour of the petitioner by the allotting authority is ex facie without jurisdiction. The learned counsel submitted that admittedly, the land allotted to the petitioner in exchange had already been allotted in favour of Shri Ram Niwas therefore, the said land was not available for allotment to anybody else. That apart, it is submitted that no action whatsoever prejudicial to the interest of the earlier allotted could have been taken by the allotting authority without giving him an opportunity of hearing. In support of his contention, the learned counsel has relied upon a Bench decision of this Court in "Sikander Bakht vs. State of Rajasthan" (DB Civil Writ Petition No. 4414/92, decided on 23.10.92). The learned counsel submitted that setting aside of the order impugned will result in restoration of an order which is ex facie illegal which will amount to perpetuating an illegality which is not permissible under the law. In this regard, the learned counsel has relied upon the decision of this Court in the matter of "Jagan Singh vs. State & Anr." AIR 1980 Raj. 1 and and the decision of the Hon'ble Supreme Court in the matter of "Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar & Ors." (1999) 8 SCC 16 . It is further submitted by the learned counsel Mr. Acharya that the petitioner has obtained the allotment by committing fraud and therefore, the respondent No. 3 even an informant has locus standi to seek remedy for cancellation of allotment. In this regard, the learned counsel has relied upon a Bench decision of this Court in "Narain & Anr. vs. Board of Revenue & Anr." , 2000(3) WLC (Raj.), 311 = RLW 2000(2) Raj. 1320. Accordingly, it is submitted by the learned counsel that viewed from any angle, the orders impugned do not warrant any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India and, therefore, the writ petition deserves to be dismissed. 9. Mr. 1320. Accordingly, it is submitted by the learned counsel that viewed from any angle, the orders impugned do not warrant any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India and, therefore, the writ petition deserves to be dismissed. 9. Mr. Hemant Choudhary, Government Counsel while supporting the arguments advanced on behalf of the respondent No. 3 submitted that the power of exchange u/S. 12 conferred upon the Collector is subject to the orders that may be issued by the State Government. Drawing the attention of this Court to the government order dated 24.7.77, it is submitted that if any land is found not worth cultivation then, the allotting authority is required to submit the report to the Colonisation Commissioner and on his recommendation, the appropriate sanction for the transfer can be issued by the State Government. Relying upon yet another Government order dated 27.6.83, the learned Government Counsel submitted that no allotment in exchange can be made by the allotting authority straight away without inviting the application from the persons desirous for allotment of the land in exchange. Accordingly, it is submitted by the learned Government Counsel that the allotment made in favour of the petitioner by the allotting authority straight away without following the procedure laid down has rightly been set aside by the Colonisation Commissioner. 10. It is further submitted by the learned Government Counsel that the allotments are made by allotting authority as per the recommendation of the Advisory Committee therefore, even otherwise, the allotting authority had no jurisdiction to sanction the land in exchange of the land already allotted. It is submitted that the provisions of Section 12 of the Act of 1954 are not attracted in the matter inasmuch as, the allotment in question has been made by the allotting authority in favour of the petitioner under the Rules of 1975. The learned Government Counsel contended that as per the Scheme of the Rules of 1975 even the allotment by way of exchange cannot be made without following the provisions of Rules 13(5)(d) of the Rules of 1975. It is submitted that the petitioner in collusion with the allotting authority got the land allotted in her favour de hors the Rules which cannot be sustained. It is submitted that the petitioner in collusion with the allotting authority got the land allotted in her favour de hors the Rules which cannot be sustained. Accordingly, it is submit-ted by the learned counsel that the Board has committed no error in dismissing the revision petition preferred against the order passed by the Colonisation Commissioner, cancelling the allotment made in favour of the petitioner. 11. I have considered the rival submissions and perused the material on record. 12. In the first instance, it will be appropriate to deal with the contention of the learned counsel that the proceedings under Rule 22(3) of the Rules of 1975 initiated by the Colonisation Commissioner at the instance of Shri Hajari Ram who had no locus standi to maintain the petitioner is absolutely without jurisdiction. It is to be noticed that under Rule 22(3) of the Rules of 1975, the Colonisation Commissioner is empowered to cancel any allotment made by an allotting authority under the Rules of 1975, either suo moto or on the application of any person in case, where the allotment has been made against the Rules. Since, the Colonisation Commissioner is empowered to cancel the allotment even suo moto, therefore, nothing turns on the question that the proceedings for cancellation were initiated by the Colonisation Commissioner on a complaint being lodged by the petitioner who is father of earlier allottee of the land comprising murabba No. 64/33. Thus, the proceedings for cancellation of allotment initiated by the Colonisation Commissioner even on the basis of the complaint made by the respondent No. 3 herein cannot be said to be without jurisdiction. 13. The next question falls for consideration is as to whether the allotment of the land in question made in favour of the petitioner was de hors the Rules of 1975? 14. A perusal of the application preferred by the petitioner for allotment of cultivable land on the ground that the land already allotted is not cultivable reveals that no request for allotment of specific land was made on her behalf. There is nothing on record to show asto at whose instance, the report regarding availability of the land in question for allotment was obtained by the allotting authority. There is nothing on record to show asto at whose instance, the report regarding availability of the land in question for allotment was obtained by the allotting authority. Further, the order dated 16.12.91 passed by the allotting authority cancelling the earlier allotment made and allotting the land in question in favour of the petitioner makes it abundantly clear that straight away without holding a proper enquiry as to availability of the land and without inviting applications from the persons desirous of allotment in exchange, straight away allotment was made in favour of the petitioner. 15. Indisputably, 10 bighas land comprising murabba No. 64/33 allotted in favour of the petitioner in exchange as aforesaid had already been allotted to Ramniwas s/o Hajari Ram vide order dated 28.11.88 and therefore, the same was not available for allotment as on the date the petitioner made the application for allotment of alternate cultivable land. Thus, the allotment made in favour of the petitioner without there being availability of the land for allotment was ex facie illegal and without jurisdiction. 16. It is contended by the learned counsel for the petitioner that the exchange of the land has been sanctioned in favour of the petitioner in items of the provisions of Section 12 of the Act of 1954 and therefore, the provisions of Rule 13(5)(d) of the Rules of 1975 are not attracted in the matter and thus, the Colonisation Commissioner so also the Board of Revenue has committed an error in holding the allotment made in favour of the petitioner as de hors the Rules. 17. The provisions of Section 12 of the Act of 1954 be beneficially quoted, which read as under:- "Sec. 12. Exchange.- Subject to any orders that he may received from the State Government, the Collector may allow any tenant to exchange the whole or any part of his tenancy for other land in the colony and the land so taken in exchange shall, in the absence of any special condition to the contrary to be recorded in writing by the Collector be deemed to be held on the conditions and subject to the obligations of which the land so given in exchange was held." 18. A bare perusal of the above provision, makes it abundantly clear that the power to be exercised by the Collector in terms of Section 12 is subject to any orders that may be received from the State Government. It is not in dispute that the vide order dated 24.5.77, it was decided that if the land allotted to any landless person in the Rajasthan Canal Area is found to be not cultivable then, the report in this regard after side inspection shall be submitted by the Tehsildar/Allotting Authority to the Commissioner Colonisation and on the basis of the recommendations made by him, the sanction for transfer may be issued by the State Government. That apart, as per the by the petitioner order dated 27.6.83 (Annexure 8) placed on record by the petitioner, where more than 50% of the land allotted to any person is uncommand and he is desirous for allotment of other land in exchange then the allotment of the land can be made in his favour after preparing the list of the persons desirous of such exchange. It has been further provided that if the persons falling in such category are less in number then they will be served with the notice individually else the application shall be invited by issuing a public notice. It has been further specifically provided that if there is more than one application for the allotment of a particular land then the allotment shall be made by way of a lottery. Thus, the allotment made in favour of the petitioner without following the procedure laid down and without considering the competitive claims was ex facie illegal, arbitrary and without jurisdiction. 19. As a matter of fact, the contention of the learned counsel that while considering the application for allotment of the land in exchange, the provisions of Rule 13(5)(d) are not attracted is also devoid of any merit. It is true that under the Rules of 1975 no specific provision has been incorporated as to how the application for the allotment of the land in exchange should be dealt with. But then, it is not in dispute that the allotment of the land to be made in the IGNP area are governed by the Rules of 1975. It is true that under the Rules of 1975 no specific provision has been incorporated as to how the application for the allotment of the land in exchange should be dealt with. But then, it is not in dispute that the allotment of the land to be made in the IGNP area are governed by the Rules of 1975. As per Rule 7 of the Rules of 1975, the allotment of the government land in the IGNP are has to be made in order of priorities for allotment specified therein. In terms of Rule 8, the allotting authority is under an obligation to prepare village wise/chak wise lists of all government land available for allotment. It further provides that in case the land is reserved either by the State Government or by allotting authority for any specific purpose or class of persons, the list for the same shall be prepared separately. Rule 9 provides for the issue and publication of the notice inviting application for allotment. Rule 11 provides for scrutiny, verification and enquiry with regard to the applications and the relevant entries therein. As per Rule 13 all allotments of the government land other than those specified in Rule 12 i.e. the allotment of land to agriculture graduates shall be made by the allotting authority in consultation with the Advisory Committee. Rule 13(5)(d) specifically provides that the allotment to the landless persons has to be made strictly according to the orders of priority specified in Rule 7 by lots in the manner as may be directed by the Colonisation Commissioner. In this view of the matter, there is no reason as to why the provisions incorporated in Section 13(5)(d) for allotment by lots in case, the application received for allotment of a particular land are more than one shall not apply to the allotment to be made in exchange of the land already allotted. Even otherwise, a thing which cannot be permitted to be done directly cannot be permitted to be so done indirectly. The Rules of 1975 excludes the possibility of any allotment of land on just asking without considering the competitive claim. Therefore, there is no reason as to why the allotment of the command land in exchange of the uncommand land shall be permitted without considering the claim of persons similarly situated. The Rules of 1975 excludes the possibility of any allotment of land on just asking without considering the competitive claim. Therefore, there is no reason as to why the allotment of the command land in exchange of the uncommand land shall be permitted without considering the claim of persons similarly situated. The allotment of the land by way of exchange cannot be permitted to be become a source of allotment of land in favour of any person according to his choice without consideration of competitive claim in conformity with the provisions incorporated in this regard in the Rules of 1975. Therefore, it stands to reason that even that allotment of land in exchange of the land already allotted, the equal opportunity should be extended to all concerned which would be a sure method of guaranteeing compliance with the mandate of Article 14 of the Constitution of India. 20. Thus, in considered opinion of this Court, all allotment and sale of the Government land in the IGNP Area including the land in exchange of the land already allotted shall be governed by the Rules of 1975 and the provisions of Rule 13(5) of the Rules of 1975, providing for allotment according to priority shall automatically apply even in the case of allotment of the land in exchange in terms of the provisions of Section 12 of the Act of 1954. 21. In view of the discussion above, the order passed by the Colonisation Commissioner, cancelling the allotment made in favour of the petitioner in exchange of the land already allotted, affirmed by the Board of Revenue does not suffer from any jurisdictional error warranting interference by this Court n exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 22. Coming to the last submission of the learned counsel that the petitioner is cultivating the land in question for all these years and the allotment made in favour of Shri Ramniwas has already been cancelled and therefore, even if the order impugned is maintained by this Court, the earlier allottee is not going to be benefited and therefore, the possession of the petitioner deserves to be regularised. It is to be noticed that while passing the impugned order the Colonisation Commissioner, had already directed for allotment of alternate land in favour of the petitioner in accordance with the Rules. It is to be noticed that while passing the impugned order the Colonisation Commissioner, had already directed for allotment of alternate land in favour of the petitioner in accordance with the Rules. However, it is pertinent to note that the State Government has even incorporated the provision under the Rules of 1975 for regularisation of the possession of the trespassers for specified years and therefore, if there is no subsisting claim of the earlier allottee over the land in question and the land is available for allotment then, it will be open for the State Government to consider the petitioner's claim for regularisation of her possession in accordance with the Rules. The entire exercise for allotment of alternate land or regularisation of the petitioner's possession over the land in question shall be completed by the competent authority within a period of three months from the date of this Order. 23. Accordingly, the writ petition stands dismissed with observations/directions above. No order as to costs.