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2015 DIGILAW 1460 (RAJ)

Ajij Khan v. The State of Rajasthan

2015-08-05

GOVIND MATHUR, JAISHREE THAKUR

body2015
JUDGMENT 1. - The present appeal has been filed under Rule 134 of the Rajasthan High Court Rules, 1952 against the order dated 29.8.2013 passed in S.B.Civil Writ Petition No. 10679/2013 dismissing the writ petition of the appellant. 2. The appellant applied to purchase land situated in Chak No. 6-9 KRM, comprising in Murabba No.77/60 measuring 6 big-has in command land and 19 big-has in un-command land to the Allotting Authority cum Deputy Colonisation Commissioner, Nachana in auction proceeding. Along with the application, the appellant also deposited 5% amount of the reserve price and filed an affidavit in support of the fact that he is bona fide resident of Rajasthan , not having land in excess to the ceiling limit. The appellant offered highest the bid for allotment of land under Section 20-F of the Colonisation Act, 1975. The appellant also deposited 20% amount of auction on the very same day. Thereafter the file was sent to the Colonisation Commissioner, Bikaner for confirmation of the auction, who after a gap of two years rejected the bid of the appellant on 3.11.20111 on the ground that the appellant had not produced a certificate of "bona fide resident of Rajasthan". Aggrieved against the order of Colonisation Commissioner, the appellant preferred revision petition before the Board of Revenue which was dismissed on 2.7.2013. This came to be challenged before this High Court by way of filing S.B.Civil Writ Petition No. 10679/2013 and the same was also dismissed. 3. The learned Single judge dismissed the petition in limine by holding that there was violation of provisions of Rule 20(d) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area), Rules, 1975 (for short 'the Rules of 1975'), which specified that no person shall be allowed to bid unless he has been a bona fide resident of Rajasthan for a period of not less than ten years prior to the date of bid. It was held that the appellant had failed to produce the requisite certificate showing himself to be a bona fide resident of Rajasthan for a period of ten years. It was also noted in the judgment that the application made by the petitioner had an endorsement on it to the effect that the allotment is conditional and the petitioner is required to produced the certificate of 'bona fide resident of Rajasthan'. It was also noted in the judgment that the application made by the petitioner had an endorsement on it to the effect that the allotment is conditional and the petitioner is required to produced the certificate of 'bona fide resident of Rajasthan'. The rejection of the bid was upheld while holding that no right accrued in favour of the appellant to claim allotment merely on the ground that the bid offered by him was the highest. Aggrieved against the dismissal of the writ petition, the present appeal has been preferred. 4. It is contended by Mr. Varun Goyal, counsel appearing for the appellant that he had applied for allotment of 6 big-has command land and 19 big-has un-command land to the Allotting Authority cum Deputy Colonisation Commissioner. Along with the bid application, the appellant had filed an affidavit in which he has specified that he was a bona fide resident of village/Chak Pache ka Tala, Tehsil Pokaran, District Jaisalmer(Rajasthan) and that his bid has been wrongly rejected. 5. Per contra, it has been argued by the counsel for the respondent that the appellant had not submitted his certificate to show that he is a bona fide resident of Rajasthan and in view of Rule 20 (d) of the Rules of 1975 the bid was rightly rejected. 6. We have heard the counsel for the parties and perused the record of the case. 7. As per the conditions of sale enumerated in Rule 20(d) of the Rules of 1975, no person shall be allowed to bid unless he has been a bona fide resident of Rajasthan for a period not less ten years prior to the date of the bid, subject to other restrictions imposed by the Government. Rule 2(xv) of the Rules of 1975 defines 'Resident of Rajasthan' which means: "Resident of Rajasthan" means a person who is ordinarily residing in Rajasthan for a period of not less than fifteen years excluding the persons who left country without passport at any time or during Indo-Pak wars of 1965 and 1971 but returned to India and shall not include a person ordinarily resident of any other State who has been coming to Rajasthan only from season to season for the purpose of cultivation of land." 8. Further, there is nothing in the Rules which specifies what would be a mode of proof to establish "residence in Rajasthan" or the word 'bona fide". The appellant had annexed his affidavit in which a categoric statement had been made that he was a bona fide resident of Rajasthan. A perusal of Rule 20(d) specifies that no person should be allowed to bid unless and until he is bona fide resident of Rajasthan, casts a duty upon the authorities concerned to verify and check whether or not the person who is participating in the bid is competent to do so or not, especially when no check list is provided to an applicant showing what documents are required to support or prove being a bona fide resident of Rajasthan. Once a person is allowed to participate in an auction even with a noting that the offer is conditional that the acceptance was conditional to the production of the certificate of "Bona fide resident", the applicant has to be given an opportunity to supply the said certificate. 9. The Colonisation Commissioner kept the matter pending with him for over a period of two years before taking a decision on the said bid received by him. During the pendency of the matter before the Colonisation Commissioner, the appellant had already obtained a certificate of bona fide resident of Rajasthan. If he had been called upon to submit proof of residence in Rajasthan, he would have been able to produce the said certificate. Once the offer of the appellant was forwarded to the Colonisation Commissioner for its acceptance especially after the fact that he had deposited 25% of the auction amount, it became incumbent upon the authority to call upon the petitioner to show adequate proof of being a bona fide resident of Rajasthan. This would also have been in consonance with the rules of natural justice. 10. In the present case the bid money was retained for a period of two years before rejecting the bid. The appellant would have a legitimate expectation about the allotment of land in his favour. Cancellation of bid without due opportunity would be unfair on the party of the respondents. 11. Resultantly, The appeal is, accordingly, allowed. The order of the learned Single Judge dated 29.8.2013 is set aside. The appellant would have a legitimate expectation about the allotment of land in his favour. Cancellation of bid without due opportunity would be unfair on the party of the respondents. 11. Resultantly, The appeal is, accordingly, allowed. The order of the learned Single Judge dated 29.8.2013 is set aside. The matter is remanded back to the Colonisation Commissioner to give an opportunity to the appellant to prove his bona fide residence of Rajasthan and decide the matter afresh within a period of one month from receipt of certified copy of this order.Appeal Allowed. *******