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2016 DIGILAW 1810 (RAJ)

Sharif Khan v. State of Rajasthan

2016-12-14

NIRMALJIT KAUR

body2016
ORDER : Nirmaljit Kaur, J. 1. The prayer in the present petition is to quash the order dated 24.04.1996 (Annx. 5) passed by the Board of Revenue as well as the allotment order dated 26.11.1993 (Annx. 4) passed by the Commissioner Colonisation, Bikaner. 2. Father of the petitioners, Panne Khan, was a temporary tenant of the land comprising in Khasra No. 100/3, village Dantor measuring 25 bighas in the Samwat year 2012. The father of the petitioners applied for permanent allotment of the above mentioned land. Out of the 25 bighas of land, 7 bighas was allotted to him on permanent basis by the allotting authority vide order dated 27.12.1975 (Annx. 2). A perusal of the said allotment order shows that the decision with respect to the remaining 18 bighas of land was deferred. Meaning thereby, the application with respect to the permanent allotment of the remaining land measuring 18 bighas was kept pending. Subsequently, vide order dated 20.11.1984 (Annx. 3) another 4 bighas land out of the remaining 18 bighas were regularized in favour of Panne Khan in Square 1/33 of Chak 12 SMD. Once again it was mentioned in the order that the allotment of the remaining land will be made later on. Hence, the application for permanent allotment with respect to the remaining 14 bighas land was further kept pending till the rectangularisation of the entire Khasra No. 100/3 was completed. Panne Khan, however, died on 10.04.1989. According to the petitioners, they being the sons of Panne Khan continued to remain in possession of the remaining 14 bighas of the land of earlier Khasra No. 100/3 along with 11 bighas already allotted in the name of Panne Khan and suddenly, without any notice to them, an order dated 26.11.1993 (Annx. 4) was passed by the Commissioner Colonisation, Bikaner qua the remaining 14 bighas of the land, which was re-numbered as Squre No. 1/25 of Chak 14 SMD and the same was allotted in favour of respondent No. 4-Ratan Kanwar widow of late Gordhan Singh Rajput, as erstwhile Jagirdar. The said order was challenged by the petitioners by way of the revision petition before the Board of Revenue. The Board of Revenue dismissed the revision petition on two grounds both on the ground of maintainability and on merits. The said order was challenged by the petitioners by way of the revision petition before the Board of Revenue. The Board of Revenue dismissed the revision petition on two grounds both on the ground of maintainability and on merits. While dismissing the revision on maintainability, the Board of Revenue held that no revision lies against the order under the Rajasthan Land Reforms & Resumption of Jagirs (Concession for Khudkast in Rajasthan Canal Project Area) Rules, 1963, and while dismissing the same on merits, the Board of Revenue came to the conclusion that the temporary tenancy of Panne Khan was not renewed and it had come to an end. No application had been filed for the allotment of the said land, hence, the petitioners could not object to the allotment of the land to a third party. 3. While challenging the order dated 24.04.1996 passed by the Board of Revenue as well as the allotment order dated 26.11.1993 passed by the Commissioner Colonisation, Bikaner in favour of the respondent No. 4 Ratan Kanwar, the learned counsel for the petitioners inter alia contended that the Board of Revenue had ignored the provisions of law. Rule 2 of the Rajasthan Land Reforms & Resumption of Jagirs (Concession for Khudkast in Rajasthan Canal Project Area) Rules, 1963 provides that the Rajasthan Colonisation (General Colony) Conditions, 1955 framed under the Rajasthan Colonisation Act will apply in all allotments of the land made under these rules and since the Colonisation Act governs the allotment, a revision will lie under the provisions of the Rajasthan Land Revenue Act read with Section 5 of the Limitation Act. Secondly, with respect to the merit it was submitted that the allotment of the remaining land in favour of the petitioners’ father was kept pending for want of specifications of the land after rectangularisation and hence, there was no need for fresh application. The land could not have been allotted to someone else during the pendency of the consideration for allotment to the petitioners. 4. While opposing the petition, the only argument raised by respondent No. 4 was that the respondent No. 4 is the bona fide allottee of the land as she has been allotted the land in accordance with law. 5. The land could not have been allotted to someone else during the pendency of the consideration for allotment to the petitioners. 4. While opposing the petition, the only argument raised by respondent No. 4 was that the respondent No. 4 is the bona fide allottee of the land as she has been allotted the land in accordance with law. 5. Learned counsel for the State while trying to defend the order passed by the Board of Revenue submitted that there was nothing wrong with the orders impugned and the petitioners had not filed any application for allotment. 6. The first question, therefore, needs to be determined is whether the revision was maintainable against the order dated 26.11.1993 passed by the Commissioner Colonisation, Bikaner under the Rajasthan Land Reforms & Resumption of Jagirs (Concession for Khudkast in Rajasthan Canal Project Area) Rules, 1963. It is, therefore, necessary to reproduce the Rule 2 of the Rules of 1963, which is as under:- "2. General Colony Conditions to apply.-The statements of the general conditions for colonies namely, the Rajasthan Colonisation (General Colony) Conditions, 1955, in so far as the said conditions are not repugnant to these rules, shall govern all allotments of land made under these rules." 7. A perusal of the Rule 2 of the Rules of 1963 shows that Rajasthan Colonisation (General Colony) Conditions, 1955 framed under the Rajasthan Colonisation Act will apply, and Rule 3(a)(b) of the Rajasthan Colonisation (General Colony) Conditions, 1955 reproduced below further makes it clear that the statement of conditions is subject to the provision of the Act. Rule 3(a)(b) of the Conditions of 1955 read thus: "3. Application of Act and the terms of this Statement to other Statements of Conditions.- (a) This statement is issued subject to the provisions of the Act. (b) All grants of land under the Act, whether by way of Ghair Khatedari tenancy or conferment of Khatedari rights or otherwise, and whether made under this statement or any subsequent or special Statement of Conditions, shall be subject to its provisions, so far as they are applicable thereto and save and in so far as they may be expressly modified, abrogated or supplemented by such subsequent or special Statement of Conditions applicable to any particular part of the State or class of land, and (c) xx xx xx xx" 8. A perusal of the rule 3(a)(b) clarifies that such an allotment would be subject to the provisions of the Rajasthan Colonisation Act. Even, as per the condition (2) of the impugned order of allotment dated 26.11.1993 (Annx. 4), the rules of Rajasthan Colonisation (General Colony) Conditions, 1955 framed under the Rajasthan Colonisation Act were made applicable. The condition (2) of the impugned order reads:- ^^2- bl vkoafVr Hkwfe ij mifuos’ku ¼lkekU;½ ‘krsZa 1955 ,oe~ mifuos’ku vf/kfu;e ds izko/kku ykxw gksaxsA^^ 9. In the case of Ved Prakash v. State of Rajasthan & Ors., reported in RLR 1985 p. 456 too it was held that the allotment made to the Ex-jagirdars would be subject to the provisions of judgment reads:- "18 ... ... From these elaborate provisions, it can be found that the Ex-jagrdars have been allotted the lands under the Jagir Act and the Rules framed there under, although, the General Colony Conditions have been made applicable to such allotments. The matter does not end here. Condition 3(a) of the General Colony Conditions makes it very clear that the statement of conditions of tenancy is issued subject to the provisions of the Act. The General Colony Conditions, 1955 as a whole have been made applicable to all allotments of the land made to the Ex-jagirdars in the Project Areas. That would mean, that Condition 3(a) also has been applicable, so the allotment made to the Ex-jagirdars would also be subject to the provisions of the Act, meaning thereby, that the allotment would be subjected to the provision of Sec. 13 of the Act." 10. Thus, there is no doubt that the General Colony Conditions, 1955 and the Colonisation Act applies to the case in hand. Since the Colonisation Act governs the allotment, a revision lies under Rule 23(2) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 against the order of the Colonisation Commissioner. Rule 23 of the Rules of 1975 reads as under:- "23. Appeal and Revision.-(1) Any person aggrieved by an order passed by an Allotting Authority may within 30 days from the date of such order, appeal to the Colonisation Commissioner. Rule 23 of the Rules of 1975 reads as under:- "23. Appeal and Revision.-(1) Any person aggrieved by an order passed by an Allotting Authority may within 30 days from the date of such order, appeal to the Colonisation Commissioner. (2) Any person aggrieved [by a final order] of the Colonisation Commissioner whether passed in appeal or otherwise may within 60 days of the date of such order, file revision to the Board of Revenue for Rajasthan." 11. In the present case, the order of allotment was passed by the Colonisation Commissioner. Hence, the revision is lie before the Board of Revenue. The petitioner had filed the revision against the order of Colonisation commissioner along with an application under Section 5 of the Limitation Act. The said application was allowed. Moreover, it is worthwhile to note that an appeal lies from the order of Jagir Commissioner and Collector as per Section 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and not against an order of Commissioner. Section 39 of the Act of 1952 reads:- "39. Appeals from the orders of Jagir Commissioner and Collector.- (1) The Government or any person aggrieved by any decision of the Jagir Commissioner or the Collector, as the case may be, under section 5, sub-section (2) of section 23, section 24, sub-section (2) of section 25, Section 26-A, sub-section (2) of section 32, sub-section (3) of section 35, section 36, section 36-A, section 37, section 38, or section 38-B may within ninety days from the date of such decision appeal to the Board. (1A) Any person aggrieved by an order made by the Collector under section 16 may appeal there from to the Commissioner from Khudkasht lands within sixty days from the date of the order. (emphasis supplied) (2) When an appeal is made to the Board under sub-section (1), the appeal shall be heard and decided by a bench of the Board consisting of two members. (3) In deciding an appeal under this Section, the authority hearing the appeal shall follow the same procedure as is prescribed for the hearing of appeals made to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). (4) The decision of the Board or the Commissioner for Khudkasht lands as the case may be in an appeal under this section shall be final." 12. (4) The decision of the Board or the Commissioner for Khudkasht lands as the case may be in an appeal under this section shall be final." 12. As stated above, the impugned order of allotment was passed by Commissioner Colonisation and not by Jagir Commissioner or Collector. Thus, in all respect the revision was maintainable against the order passed by the Colonisation Commissioner. The Board of Revenue therefore erred in ignoring the provisions of law as above. 13. Taking up the second argument that the petitioners were not entitled for the allotment as no application for allotment was pending and the temporary allotment had long come to an end, it has already been noticed above that 25 bighas of land was allotted to the father of the petitioners on temporary basis. Admittedly, 7 bighas of the land out of 25 bighas was allotted vide order dated 27.12.1975 and another 4 bighas was allotted out of the remaining 18 bighas vide order dated 20.11.1984 (Annx. 3). The issue with respect to the allotment of remaining 14 bighas of land on permanent basis was kept pending till the rectangularization of remaining area of Khasra No. 100/3 was complete. This is evident from the orders of allotment dated 27.12.1975 and 20.11.1984, Annexure-2 & 3 respectively. The specific note in the order dated 27.12.1975 (Annx. 2) reads: ^^‘ks”k 18 ch?kk jdck Ldhe ls ckgj gSA vr% bldk fu.kZ; ckn esa fd;k tkosxkA^^ 14. The note in the order dated 20.11.1984 (Annx. 3) reads ^^eqŒuaŒ 1@33 ØŒ 11 ¾ 4 ØŒpd 14 ,l ,e Mh dk ‘ks”k ckjkuh jdck xkspjksa esa ugha vk;k gS pkjksa esa mBkus ij vkcaVu fd;k tkosxkA^^ 15. It is, therefore, evident from the above that the application moved by the father of the petitioners was still under consideration and in any case had not been rejected. 16. 3) reads ^^eqŒuaŒ 1@33 ØŒ 11 ¾ 4 ØŒpd 14 ,l ,e Mh dk ‘ks”k ckjkuh jdck xkspjksa esa ugha vk;k gS pkjksa esa mBkus ij vkcaVu fd;k tkosxkA^^ 15. It is, therefore, evident from the above that the application moved by the father of the petitioners was still under consideration and in any case had not been rejected. 16. Rule 13(9) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 reads as under:- "13(9) If a temporary cultivation lease-holder fails to apply for allotment of land under these rules or if his application for allotment for any land or part thereof is rejected by the Allotting Authority, his temporary cultivation lease in respect of such land or part thereof shall stand terminated on the expiry of the date up to which the application for allotment could be made or on the date his application for such allotment is rejected, as the case may be, and the Government land covered by such lease shall revert to the State Government free from all encumbrances and he shall be liable to be ejected from such land in accordance with any law for the time being in force." 17. The question of applying for renewal of the temporary allotment does not arise in the facts of the present case especially considering the Rule 13(9) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975. From the above facts, it is evident that the application for allotment was still pending and had not been rejected. In fact, the same has specifically been deferred for consideration at a later stage. Thus, the revision petition filed by the petitioners could not have been rejected on the ground that the temporary allotment in favour of the petitioners was not renewed. Rather, the application for permanent allotment was still under consideration. 18. In view of the above, the order dated 24.04.1996 (Annx. 5) passed by the Board of Revenue, Ajmer, Rajasthan is set aside and the matter is remanded back to the Board of Revenue to decide the same afresh after hearing both the parties in the light of the observations made above. During the pendency of the matter before the Commissioner Colonisation, status quo with respect to the possession shall be maintained. 19. During the pendency of the matter before the Commissioner Colonisation, status quo with respect to the possession shall be maintained. 19. The writ petition is disposed of in the above terms.