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2014 DIGILAW 93 (RAJ)

Kamruddin v. Board of Revenue

2014-01-07

GOPAL KRISHAN VYAS

body2014
JUDGMENT 1. - Instant writ petition was filed in the year 1997 for quashing order Annex.-4 dated 2.11.1992 passed by the Collector, Bikaner upon application filed under Rule 23(2) of the Rajasthan Colonization (Allotment and Sale of Govt. Land in Canal Colony Area) Rules, 1975 whereby 7 allotments of small patches of land made in favour of the petitioner were cancelled, so also, the order dated 25.6.1996 passed by the Board of Revenue for Rajasthan, Ajmer whereby order passed by the Collector, Bikaner was upheld by the Board of Revenue. 2. As per facts of the case, the petitioner was having khatedari right over 19 bigha land in Chak 12 CHD Tehsil Suratgarh. The petitioner applied for allotment of small patch of land under Rule 14 of the Rules of 1975 and upon petitioner's applications made on different dates for different muraba, seven allotment orders were passed of small patches of land in favour of the petitioner; in all 8 bigha 18 biswa command land and 21 bigha 14 biswa uncommand land was allotted in favour of the petitioner by way of allotment of small patches of land. 3. As per petitioner's contention in the writ petition khatedari sanad against the above allotments was issued in favour of the petitioner by the respondent authorities on 24.9.1990 under Rule 9 of the Rajasthan Colonization (General Colony) Conditions, 1955. After granting khatedari sanad in favour of the petitioner the land was recorded in favour of the petitioner. As per the petitioner, the Collector, Bikaner initiated suo motu proceedings under Rule 23 of the Rules of 1975 against the aforesaid allotment of small patches of land in which the petitioner filed his reply and raised ground that the District Collector has no jurisdiction to look into the validity of the allotment made for which sanad has already been issued. 4. The District Collector, Bikaner vide order dated 2.11.1992 set aside the allotments made in favour of the petitioner in between 30.5.1985 to 16.11.1987 on the ground that allotments have been made with ulterior motive. 4. The District Collector, Bikaner vide order dated 2.11.1992 set aside the allotments made in favour of the petitioner in between 30.5.1985 to 16.11.1987 on the ground that allotments have been made with ulterior motive. Learned Counsel for the petitioner submits that the order of the District Collector is totally without jurisdiction, so also, the finding given by the Collector for cancellation of allotment is totally contrary to law, therefore, the order was challenged before the Board of Revenue, Ajmer by way of filing revision but the Board of Revenue, Ajmer also dismissed the revision petition in mechanical manner and upheld the order of the District Collector, Bikaner vide judgment dated 25.6.1996. 5. Learned Counsel for the petitioner submits that once khatedari rights have been issued the same cannot be cancelled by the District Collector while exercising power under Rule 21(3) of the Rules of 1975. Further, it is submitted that there was no illegality in making the aforesaid seven allotments but the District Collector gave erroneous finding that the allotments have been made totally contrary to the rules with ulterior motive because seven orders were passed in favour of the petitioner in the span of two years. But, as per Counsel for the petitioner, there is no illegality in making seven allotments because the land in question was made available for allotment as small patch of land, therefore, the orders impugned deserves to be quashed. 6. Learned Counsel for the petitioner further argued that both the orders impugned in this writ petition are illegal. In support of his contention, learned Counsel for the petitioner invited attention of this Court towards judgment rendered by the Division Bench of this Court in the case of Pathram v. State of Rajasthan , in which, it has been held that after ten years of granting khatedari rights the Collector has no right to disturb the status under the new Rules of 1970. 7. Per contra, learned Counsel Mr. Hemant Choudhary, appearing for the respondents, vehemently argued that first of all contention of the petitioner made in the writ petition that the Collector has suo motu initiated the proceedings is totally incorrect because upon perusal of Annex.-4 it will reveal that the Commissioner (Colonization), Bikaner by its order dated 4.10.1990 issued notice to the petitioner why so called seven allotments made in his favour may not be cancelled. After issuing the notice the matter was transferred to the Collector, Bikaner for deciding the same under Rule 22(3) of the Rules of 1975. The Collector, Bikaner after hearing Counsel for both the parties specifically observed in the order that 8.18 bigha command land and 21.14 bigha uncommand land by way of small patches of land have been allotted to the petitioner within two years and said land comes in three blocks, therefore, apparently it emerges from the facts that allotments have been made with ulterior motive totally contrary to the rules and while giving such finding cancelled the allotments made in favour of the petitioner in which there is no illegality. 8. Further, it is submitted that the Board of Revenue elaborately considered all the grounds raised by the petitioner and held that as per Rule 14 of the Rules of 1975 a patch of land measuring 5 bigha in command area and 10 bigha in uncommand area can be allotted to a tenant whose land is adjoining to the available patches of land; but, in this case allotment of 8.18 bigha command land and 21 bigha uncommand land has been made in favour of the petitioner which is totally contrary to the rules. It is also observed by the Board of Revenue that allotment under the small patch allotment has been made totally contrary to the rules, therefore, there is no illegality committed by the revenue authority while cancelling the allotment made in favour of the petitioner by the allotting authority. 9. While inviting attention of this Court towards the Division Bench judgment reported in 2002 RRD, Sohan Kanwar v. Board of Revenue , it is submitted by learned Counsel for the respondents that the Division Bench has categorically held that allotment cancelled by the Collector after 30 years cannot be disturbed if the allotment order is bad in the eye of law being obtained by misrepresentation and order of the Collector is not liable to be interfered, therefore, in this case also, no case is made out in favour of the petitioner because 30 bigha land has been allotted under the command and uncommand area upon applications for allotment of small patch of land which is contrary to the Rules of 1975, therefore, this writ petition may be dismissed. 10. After hearing learned Counsel for the parties, I have perused both the orders impugned. 11. 10. After hearing learned Counsel for the parties, I have perused both the orders impugned. 11. It emerges from the facts and finding given by both the Courts below that in fact seven different allotments were made by the Assistant Colonization Commissioner on different dates in favour of the petitioner in different files within a period of two years out it was not looked into by the authorities making the allotment whether the applicant is entitled to allotment of small patch of land exceeding the limit provided in the rules. The Board of Revenue also observed in the judgment that there is no force in the argument of learned Counsel for the petitioner that the Collector is not empowered to cancel the allotment because the State Government issued notification No. F.4(17)Rev./Co-l/84 dated 26.5.1987 by which powers were granted to the Collector to examine the allotment made. The Board of Revenue after examining the Rules of 1975 categorically held that as per the rules a patch of land measuring 5 bigha in command area and 10 bigha in uncommand area can be allotted to a tenant whose land is adjoining to the available patches of land; but, in this case, in between 30.7.1985 to 16.11.1987, 30 bigha command and uncommand land by way of small patches of land have been allotted which is not permissible in law. 12. In the opinion of this Court, in view of the judgment of the Division Bench of this Court rendered in the case of Sohan Kanwar, reported in 2002 RRD 1 , the order of Collector, Bikaner cannot be interfered with because from the facts itself it is transparently clear that 30 bigha land has been allotted as small patches of land which comes in three blocks which is not permissible under the Rules of 1975. The finding given by the District Collector, Bikaner that seven allotments have been made within a span of two years under the category of small patches of land appears to be made in favour of the petitioner with ulterior motive inasmuch as big chunks of land measuring 30 bigha by way of small patches of land have been allotted in favour of the petitioner who original was having only 19 bigha of land. In view of above while following the Division Bench judgment in the casejji Sohan Kanwar (supra), this writ petition is hereby dismissed. In view of above while following the Division Bench judgment in the casejji Sohan Kanwar (supra), this writ petition is hereby dismissed. No order as to costs. Petition dismissed. *******