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2011 DIGILAW 317 (RAJ)

Ram Sukha v. Board of Revenue

2011-02-10

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This writ petition has been filed by the petitioner challenging the order passed by the Board of Revenue dated 15.11.1996 by which the Board has accepted the reference made by the Additional Collector, Karauli vide order dated 5.7.1995 u/S. 82 of the Rajasthan Land Revenue Act and recommended for setting aside the order of SDO, Karauli dated 22.5.1992. The SDO, Karauli in that order has regularised possession of the petitioner for 32 sq. yards of land out of land of khasra No. 2852. The total rakba of this land is 2.6 bighas. 2. Shri Tripurari Sharma, learned counsel for the petitioner has argued that the regularisation of such possession was made by the local administration in favour of several persons like respondents Gopal and Durga Lal also apart from petitioner. In the case of Gopal also revision petition was filed by the State but the Additional Collector dismissed the revision petition holding that since he has received a notice u/S. 91 of the Land Revenue Act on 24.3.1987, his possession appears to be prior to 30.6.1987. He was thus in possession of the disputed land for 6-7 years. 3. Learned counsel for the petitioner also invited the attention towards the order dated 5.7.1995 passed in the case of Durga Lal in which also the revision petition was dismissed by the very same learned Additional Collector on the premise that a similar notice was served upon him u/S. 91 on 24.3.1987 which was before 30.6.1987 and thus his possession appears to be for last 7-8 years. The report of the Patwari with regard to length of the possession was also considered but in the case of petitioner alone, the Additional Collector has by the order passed on the same day i.e. 5.7.1995 decided to make reference in view of the possession of the trespasser for the purpose of regularisation. As per the Government Rules and Circulars the encroachment before 30.6.1987 can be regulasirsed. Learned counsel submitted that the learned Additional District Collector has wrongly construed the order of SDO. In fact, the SDO has stated that possession of the petitioner appears to be for last 7 years which was in effect because the possession of the petitioner situated in between the possession of Durga Lal and Gopal, which have eventually been regularised by the revenue. In fact, the SDO has stated that possession of the petitioner appears to be for last 7 years which was in effect because the possession of the petitioner situated in between the possession of Durga Lal and Gopal, which have eventually been regularised by the revenue. The Board of Revenue has failed to appreciate that aspect of the matter that when respondents have not made reference in the case of Durga Lal and Gopal Lal, there is no reason for picking up of petitioner alone. Learned counsel also argued that in the case of Gopal, there is one additional factor that it was not his possession, the possession was that of his father and he has been benefited by that possession. The action of the respondents is wholly discriminatory. The Board of Revenue has not gone into the arguments of discrimination but has accepted the reference on the basis of earlier order passed by it accepting the similar reference in the case of some other persons out of same khasra. 4. Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that a trespasser has no right to claim regularisation unless there are rules for doing so. SDO in the present case committed an illegality in dismissing the possession of the petitioner for more than 7 years and not regularising the same. In fact, as per the Rule 3(3) of the Rajasthan Land Revenue (Conversion of Agriculture Land For Residential and Commercial Purposes in Rural Areas) Rules, 1971, the cut off date was 30.6.1987 before which the trespasser must have used the land for residential or commercial purpose and with the permission of the State Government only in their capacity regularisation could be made. Learned counsel submitted that in the case of other two reference was not considered proper because their possession was more than 9 years. 5. Having heard the learned counsel for the parties and perused the material on record, I find that this is apparently a case of distinction because there was regularisation of land of other two persons namely Gopal and Durga Lal in the same khasra, adjacent to the land which is possession of the petitioner. In fact, Gopal himself was not in possession. It was his father who was in possession. He was extended benefit thereby. In fact, Gopal himself was not in possession. It was his father who was in possession. He was extended benefit thereby. Regardless of what the Rule 3(3) of the Rules of 1971 provides, the fact remains that one trespasser cannot be distinguished from another trespasser. If the Board of Revenue has accepted reference in the case of another identically situated person, the Additional Collector in this case was not justified in making reference in the case of petitioner alone and omitting to make such a reference in the case of Gopal and Durga Lal. The respondents could not selectively pick up one person for making reference against him for removal of encroachment and for others they may not do so. Even then the fact remains that in the present case, this Court has passed the interim order in favour of petitioner on 14.3.1997 directing the parties to make status quo as a result thereof the petitioner has now remained in possession of the land for 13 more years. 6. Having regard to the totally of circumstances, I relegate the petitioner to the remedy of approaching the District Collector who may consider either making reference in the case of other two persons Gopal and Durga Lal or for regularising possession of the petitioner as per the policy of the Government. 7. The writ petition is therefore disposed of with the above directions.