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2011 DIGILAW 1244 (RAJ)

Kalawati v. State of Rajasthan

2011-06-29

DINESH MAHESHWARI

body2011
Hon'ble MAHESHWARI, J.—By way of this writ petition, the petitioners seek to question the order dated 20.10.2010 (Annex. 5) whereby the Board of Revenue for Rajasthan, Ajmer ("the Board'/'the Board of Revenue') has rejected the review application (No. LR/5123/2010/Bikaner) and found no case for interference in the order dated 10.3.2010 (Annex. 4) as passed in Reference Case No. LR/7200/2002/Bikaner. 2. Briefly put, the relevant background aspects of the matter are that on 26.7.1982, 32 bighas of agricultural land (14 bighas command and 18 bighas uncommand) as comprised in Murabba Nos. 48/18, 48/2, 28/29 and 28/51 at Chak 1SDWM came to be allotted to late Shri Om Prakash, husband of the petitioner No. 1 and father of the petitioners Nos. 2 and 3. It appears that on 3.6.1987, i.e., nearly 5 years after the allotment, the allottee late Shri Om Prakash moved an application with the submissions that he could not take actual possession of the and so allotted to him as the same was covered within the wire-fencing of the forest department and, therefore, alternative land be allotted to him. Upon moving of such an application, the allotting authority, the Assistant Commissioner Colonisation, Chhatargarh, proceeded to order allotment of 46 bighas of uncommand land as comprised in Murabba Nos. 226/56, 226/64, 247/49 and 226/41 at Chak 2ADM by his order dated 12.6.1987. However, it appears to be an indisputable position that such 46 bighas of land, purportedly allotted as the alternative, was already recorded in the name of the forest department and the allottee never came in possession thereof. The allottee Shri Om Prakash, in the meantime, expired on 7.9.1988 and as per the averments, the petitioner No. 2 was 4 years of age and the petitioner No. 3 was 2 years of age at the time of demise of the allottee Shri Om Prakash. 3. It appears that the Tehsildar Colonisation, Chhatargarh made an application for making reference in relation to the land in question under Section 232 of the Rajasthan Tenancy Act, 1955 read with Section 82 of the Rajasthan Land Revenue Act, 1956 to the Deputy Commissioner Colonisation. This application was transferred to the Additional Collector (Administration), Bikaner for change of jurisdiction who ultimately decided the same (Case No. 91/1996) by his order dated 23.11.2002 (Annex. 2). This application was transferred to the Additional Collector (Administration), Bikaner for change of jurisdiction who ultimately decided the same (Case No. 91/1996) by his order dated 23.11.2002 (Annex. 2). The learned Additional Collector observed that the land as purportedly given in exchange and as an alternative allotment was recorded in the name of forest department and could not have been allotted at all; and further that the allottee failed to make any deposit against the original allotment dated 26.7.1982 and otherwise, the land at Chak 1 SDWM was lying vacant yet. The Additional Collector, therefore, opined that the allotment as made in this case was required to be cancelled. Noteworthy it is that the original allottee Shri Om Prakash had expired and the proceedings for making reference were taken up against the allottee's wife Smt. Kalawati (the petitioner No. 1 herein) on whose behalf, the counsel did appear and made the submissions, as noticed in the order dated 23.11.2002. 4. The Board took up the matter for consideration pursuant to the reference so made; and it appears that despite repeated notices, the petitioner No. 1 chose not to appear in the reference proceedings before the Board. The Board ultimately considered the matter in its order dated 10.3.2010 (Annex. 4. The Board took up the matter for consideration pursuant to the reference so made; and it appears that despite repeated notices, the petitioner No. 1 chose not to appear in the reference proceedings before the Board. The Board ultimately considered the matter in its order dated 10.3.2010 (Annex. 4) and found it justified to accept the reference with the following observations and findings:- ^^6- i=koyh ij miyC/k nLrkosth lk{; ,oa vfrfjDr ftyk dysDVj ¼iz'kklu½ chdkusj }kjk ikfjr fu.kZ; ds voyksdu ls izdV gksrk gS fd fookfnr vkjkth dk fofu;e i=@vkns'k lgk;d mifuos'ku vk;qDr] Nrjx<+ }kjk okLrfod rF;ksa ds foijhr ikfjr fd;k x;k gSA ;g Hkh Lohd`r fLFkfr gS fd fookfnr jdck jkt ugha gksdj ou foHkkx dks vkoafVr jdck gS rFkk jkT; ljdkj }kjk bl izdkj dh Hkwfe ds fofue; Lohd`fr ij jksd gSA lkFk gh vizkFkhZ }kjk vkoaVu 'krksZ dh ikyuk esa ikap o"kZ dh vof/k rd fdlh izdkj dh fdLrs] tek ugha djokbZ x;h gS ftlls vizkFkhZ ds i{k esa tkjh vkoaVu vkns'k Lor% gh fujLr gks tkrk gSA tc ewy vkoaVu gh fujLr ;ksX; gS rks mDr vkoaVu dh ikyuk esa fofue; esa nwljh Hkwfe iznku ugha dh tk ldrh gSA bl izdkj vizkFkhZ dh fookfnr Hkwfe fofue; esa voS/kkfud :i ls izkIr dh gS tks xSj dkuwuh gksus ls dHkh Hkh fujLr fd;s tk ldrs gSaA mijksDr fo'ys"k.k ds vk/kkj ij ;g jsQjsUl Lohdkj fd;s tkus ;ksX; gSA 7- blds vykok Hkh vizkFkhZ ckotwn uksfVl rkfey ds mifLFkr ugha vk;s gS vkSj uk gh mudh vksj ls jsQjsUl Lohdkj ugha fd;s tkus ds lEcU/k esa dksbZ izfrj{kk izLrqr dh gSA bl fLFkfr esa Hkh ge jkT; ljdkj dh vksj ls jsQjsUl dks Lohdkj fd;s tkus ;ksX; le>rs gSaA 8- QyLo:i ;g jsQjsUl Lohdkj fd;k tkdj lgk;d mifuos'ku vk;qDr Nrjx<+ }kjk ikfjr vkns'k fnukad 12-6-1987 fujLr fd;k tkrk gSA** 5. After passing of the said order dated 10.3.2010, the petitioner Nos. 1 and 2 filed a belated review application that has been decided by the impugned order dated 21.10.2010 (Annex. 5). After passing of the said order dated 10.3.2010, the petitioner Nos. 1 and 2 filed a belated review application that has been decided by the impugned order dated 21.10.2010 (Annex. 5). The submissions were made before the Board that the allottee Om Prakash had expired on 9.7.1988 but the reference was made on 23.11.2002 against the dead person and hence, there was an error apparent on the face of the record; and that as per the decisions of the Hon'ble Supreme Court and the Hon'ble High Court, the reference was required to be made within a reasonable time but in the present case, the reference was made after 15 years without any reason and on this count too, the reference was required to be rejected. An application was also moved by the petitioners for condonation of delay in filing the review application on the suggestions that they were not served with the notice and came to know about the decision only through the Patwari on 20.8.2008. 6. The Board of Revenue found incorrect the submissions made by the petitioners for condonation of delay and pointed out that the reference was made against "Om Prakash (Deceased) through widow Kalawati" and therein, the petitioner No. 1 Smt. Kalawati was issued notices; that the first notice for appearance on 7.7.2006 was duly received by Smt. Kalawati; another notice for appearance on 8.12.2006 was received by her son Mangi Lal (the petitioner No. 2 herein); and yet another notice for appearance on 22.8.2008 was again received by Smt. Kalawati, The Board, thus, found that there was no proper explanation for delay, particularly when Smt. Kalawati was aware of the proceedings. 7. Yet further, the Board found no case for review. The main plank of the submissions on behalf of the petitioners was that the allottee Shri Om Prakash had expired on 7.9.1988 and hence, the proceedings adopted against him and the consequential order making reference on 23.11.2002 were nullity. The Board pointed out that in the order dated 23.11.2002 itself, it was made clear that the proceedings were taken against "Om Prakash (Deceased) through widow Kalawati" and hence, the proceedings were not adopted against the deceased person but against his legal representative, wife Smt. Kalawati. The Board pointed out that in the order dated 23.11.2002 itself, it was made clear that the proceedings were taken against "Om Prakash (Deceased) through widow Kalawati" and hence, the proceedings were not adopted against the deceased person but against his legal representative, wife Smt. Kalawati. The Board found the other submissions on the merits of the case not worth consideration being beyond the scope of the review application and hence, proceeded to reject the review application as barred by time and so also as devoid of substance. 8. Seeking to challenge the order aforesaid, the learned counsel for the petitioners strenuously contended that the previously allotted land when found to be of the forest department, the petitioners ought to be given the alternative land and cannot be deprived of their rights that do exist by virtue of the original allotment made in favour of late Shri Om Prakash. The learned counsel further contended that the reference proceedings were invalid and so also unjustified for all the legal representatives of the deceased allottee Om Prakash having not been served and for having been taken up nearly 15 years after the allotment without any justification. The learned counsel further contended that the reference as made by the Additional Collector was entirely incompetent because the land had been allotted by the Assistant Commissioner Colonisation, Chhatargarh under the provisions of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975; and the said Assistant Commissioner Colonisation, while making such allotment, had been functioning as the Collector and was not as such subordinate to the Additional Collector. 9. Having given a thoughtful consideration to the submissions made on behalf of the petitioners and having examined the record, this Court is unable to find any reason to consider interference in the impugned orders dated 10.3.2010 and 21.10.2010. 10. The submission that the reference proceedings were adopted against a dead person remains fundamentally, baseless and rather incorrect. In the cause-title of the order dated 23.11.2002, it is distinctly stated that the proceedings were taken against ^^vkse izdk'k ¼e`rd½ tfj;s csok dykorh**. The same is the cause-title in the impugned order dated 10.3.2010. 10. The submission that the reference proceedings were adopted against a dead person remains fundamentally, baseless and rather incorrect. In the cause-title of the order dated 23.11.2002, it is distinctly stated that the proceedings were taken against ^^vkse izdk'k ¼e`rd½ tfj;s csok dykorh**. The same is the cause-title in the impugned order dated 10.3.2010. The Board has also pointed out in its order dated 21.10.2010 that the notices in relation to the reference proceedings were served thrice over; twice, the petitioner No. 1 herself received the notices and once, the notice sent to the petitioner No. 1 was received by her son, the petitioner No. 2 herein. In fact, the directions to appear before the Board of Revenue on 28.1.2003 were made in the reference order dated 23.11.2002 itself and the said order was passed in the presence of the counsel for the petitioner No. 1. The reference proceedings were taken up in the year 1996 and as per the showings of the petitioners themselves, the petitioners Nos. 2 and 3 were minors at the relevant time. 11. When the petitioner No. 1 had chosen not to divulge the facts about her minor children and the petitioners Nos. 2 & 3 themselves chose not to take any other proceedings immediately after attaining majority, the authorities cannot be faulted in proceeding in the matter against the wife of the allottee with sufficient representation of the estate of the deceased. It is but apparent that the petitioners have avoided to attend the matter at the relevant time. The suggestions as sought to be made in this writ petition about denial of opportunity of hearing cannot be accepted. 12. The other submission about want of authority with the Additional Collector for making the reference was not even made before the Board of Revenue. Upon this Court expressing reservations that the said submissions was not made before the Board, the learned counsel for the petitioners contended that it being a question of law, could be raised in the writ petition. The submission cannot be accepted for the reason that this writ petition is not in the nature of a regular appeal that is considered to be of continuation of the proceedings from the subordinate Court and wherein, under certain circumstances, a new plea could be allowed to be raised for the first time before the Appellate Court. The submission cannot be accepted for the reason that this writ petition is not in the nature of a regular appeal that is considered to be of continuation of the proceedings from the subordinate Court and wherein, under certain circumstances, a new plea could be allowed to be raised for the first time before the Appellate Court. The consideration in this writ petition, essentially under Article 227 of the Constitution of India, remains as to whether the subordinate Court/Tribunal/Authority has proceeded within its parameters or not. Errors of fact or even of law are not the matters to be corrected in this supervisory jurisdiction (vide Sadhana Lodh vs. National Insurance Co. Ltd. and Anr. : (2003) 3 SCC 524 ]. Even otherwise, the argument remains untenable because the proceedings as taken up by the Additional Collector cannot be said to be suffering from inherent lack of jurisdiction. Further, the Board, being the highest Court is relation to the revenue jurisdictions and having specific powers and authority of superintendence, when has considered and allowed the reference, the order so passed by it cannot be considered suffering from inherent lack of jurisdiction. 13. The submission about delay in reference proceedings also remains untenable when viewed in the light of the given fact situation. It is but apparent that the allotment as made in the name of alternative one could not have been made at all for such land was recorded in the name of the forest department; and was not even available for allotment. The significant aspect of the matter remains that the allottee had lost his right even in relation to the original allotment made in the year 1982 because for nearly 5 years, he chose not to make any payment towards the allotment and then, came out with a suggestion that the land was in the fencing of the forest department. If the originally allotted land was in the possession of anyone else, it was required of the allottee to make the relevant submissions before the allotting authority at the earliest. Moving of an application after 5 years without having deposited any amount towards allotment and without having taken any steps for obtaining possession of the land allotted makes it clear that the allottee was not at all interested in taking up cultivation. 14. Moving of an application after 5 years without having deposited any amount towards allotment and without having taken any steps for obtaining possession of the land allotted makes it clear that the allottee was not at all interested in taking up cultivation. 14. In this matter, when the allotting authority chose to make an allotment in the name of alternative one in such a manner that the land of forest department was sought to be handed over to the allottee who had not taken timely steps about the previous allotment, the reference could not have been rejected only on the ground of delay. Rejection of the reference in this matter only on the ground of delay would have resulted in perpetuating an illegality, of allotment of the forest department's land; and the Board could have never countenanced such an position. In fact, with the indisputable position that the allottee never took possession of the originally allotted land nor even of the alternative land; and neither the allottee nor even the petitioners deposited any amount towards the allotment, in the ultimate analysis, the present one cannot be said to be a case where any prejudice is caused to the petitioners for the so-called delay. 15. So far the prayer for allotment of yet another and alternative land is concerned, this Court is clearly of opinion that for the facts and factors noticed above, particularly when nothing has been deposited towards the allotment, there does not appear any equity in favour of the petitioners. 16. In view of the aforesaid, this writ petition remains bereft of substance and does not merit admission. Accordingly, the petition stands dismissed.