Hari Shankar S/o Murlidhar Mishra v. State of Rajasthan Through Tehsildar, Tehsil Ajmer, District Ajmer (Raj. )
2017-04-19
M.N.BHANDARI
body2017
DigiLaw.ai
JUDGMENT : M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 23.6.2000, 9.1.2001 and 17.6.2002. 2. Learned counsel submits that petitioner, being a member of armed forces, was allotted land for agricultural purposes under the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970. After the allotment of land, it was cultivated through a person to whom it was let out. The cultivation was not required to be by the petitioner in person in view of the provisions of the Rajasthan Tenancy Act, 1955 read with section 46(f). The respondents, however, initiated proceedings for cancellation of allotment of land after lapse of 25 years. The petitioner was served with a notice and, after hearing him, order of cancellation of allotment was passed. The petitioner challenged the order of the District Collector by maintaining an appeal before the Revenue Appellate Authority which dismissed the appeal without considering any of the issues raised therein. He thus preferred an appeal before the Board of Revenue but it was also dismissed. The petitioner approached the Board of Revenue again by way of filing a review petition which was then allowed. A challenge to the order on review petition was made by the State by maintaining a writ petition, which was allowed and, accordingly, order of the Board of Revenue on review petition was set aside. The petitioner preferred an appeal before the Division Bench of this court, where interference in the order passed by the Single Bench was not made but liberty was given to challenge the order of the Board of Revenue dismissing the appeal thus present writ petition has been field 3. Learned counsel submits that as per the terms of allotment, petitioner has cultivated more than 50% land in the first year and 100% in the second year. He cultivated it though in few years out of first ten years, cultivation may not have been done but then it does not result in cancellation. As per the Rules of 1970, cultivation is required only for first two years i.e. 50% of the land in the first year and 100% in the second year. The petitioner produced "Khasra Girdawari" to show cultivation of land in the first year followed by cultivation in the second year but ignoring the aforesaid, order of cancellation of allotment of land has been passed against the petitioner.
The petitioner produced "Khasra Girdawari" to show cultivation of land in the first year followed by cultivation in the second year but ignoring the aforesaid, order of cancellation of allotment of land has been passed against the petitioner. It has further been ignored that as per section 46(f) read with the provisions of the Act of 1955, cultivation of land was not required to be made by the petitioner in person being a member of the armed forces. He was at liberty to let out the land and, in that case, it is taken to be cultivation by the petitioner. The aforesaid aspect has not been taken into consideration by the respondents, rather, the respondents have passed the orders ignoring the documents on record. It considered only one "Khasra Girdawari" of samvat year 2032 ignoring other "Khasra Girdawaris" to show cultivation of the land in dispute. In the light of the facts given above, writ petition deserves to be allowed while setting aside the impugned orders. 4. Learned counsel for respondents has contested the writ petition. He submits that allotment of land under the Rules of 1970 was on certain terms and conditions. The allotment creates status of "Gair Khatedar Tenant" which may be converted in khatedari rights after expiry of a period of 10 years, however, it is subject to compliance of the conditions. One of the conditions was to cultivate the land minimum to the extent of 50% in the first year and 100% in the second year. The petitioner did not cultivate the land regularly for a period of 10 years thus having flouted the condition, lost his right to be khatedar of the land. The allotment of land was otherwise made only for a period of 10 years. In absence of an order granting khatedari right, allotment lapsed. 5. It is also stated that petitioner was not even knowing about the location of the land what to say about its cultivation. He had made a request to demarcate the area by moving an application on 11.11.1998 at annexure-4 though allotment of land was made in the year 1975. The Khasra Girdawari has been submitted by the petitioner but it does not specifically indicate cultivation of land allotted to him as the Khasra Girdawaris are for bigger chunk of land and even if land was cultivated, it was not continuously for a period of 10 years.
The Khasra Girdawari has been submitted by the petitioner but it does not specifically indicate cultivation of land allotted to him as the Khasra Girdawaris are for bigger chunk of land and even if land was cultivated, it was not continuously for a period of 10 years. In view of above, challenge to the order made by the petitioner is not sustainable and otherwise there exist concurrent finding of fact of three revenue courts. The order of the Board of Revenue on a review petition was favourable to the petitioner but it has been set aside by the High Court resulting in confirmation of the order under challenge thus this writ petition may be dismissed. 6. I have considered rival submissions of the parties and perused the record. 7. The allotment of land was made to the petitioner under the Rules of 1970. The petitioner being a member of Armed Forces, was not required to cultivate the land by himself but was entitled to let it out. The cultivation of the land is however on a condition given under the Rules of 1970 and, otherwise under the allotment letter itself. Rule 14 of the Rules of 1970 is quoted hereunder for ready reference- "14. Condition of Allotment.-(1) The allotment of land under these rules shall be on a Gair Khatedari tenancy with a right to ultimate conferment of Khatedari rights after the expiry of 10 years provided the allottee fulfils during this period the terms and conditions of allotment until Khatedari rights are conferred. The allottee shall have all the rights and be subjected to all liabilities of a Gair Khatedar tenant under the Tenancy Act: [Provided also that the allotment of land may be cancelled at any stage by the Collector before the expiry of a period of 10 years, if the land is required for public purpose: [Provided further the no such order to the prejudice of such person shall be passed without giving him an opportunity of being heard.] (2) Rent at the sanctioned rent rate applicable to the land or if the land applied for and allotted is unassessed, at the lowest class of Barani land in the village for irrigated land at the Chahi or Nehri rates, as the case may be, for Chahi or Nehri irrigated lands of the village shall be payable from the first year of allotment.
(3) the allottee shall have to cultivate at least 50% of the land in the first year of allotment and the remaining area in the second year: Provided that this period may be extended by the Tehsildar by one year if, due to unforeseen causes over which the allottee had no control, he was unable to cultivate the land within the stipulated period. (4) The Collector shall have the power to cancel any allotment made by a Sub-Divisional Office [or a Tehsildar under the rules repealed by rule 21 of the rules] either suo-moto or on the application of any person in case the allotment has been secured through fraud or misrepresentation or has been made against rules or in case the allottee has committed breach of any of the conditions of allotment: Provided that no such order to the prejudice of any person shall be passed without giving such person an opportunity of being heard. (5) the allottee shall pay to the State Government the price of the walls and permanent structures if any, existing on the land, as also the price of trees standing on the land at rates prescribed by rules made under section 80 and 81 of the Tenancy Act. (6) Before acquisition of Khatedari rights the allottee shall not construct any permanent structures or buildings other than a tank, well or dwelling a house within the meaning of an "improvement" as defined by clause (1) of section 5 of the Tenancy Act. (7) In case of land situated within a radius of 10 miles of Jaipur City, the allottee shall also pay the rate of Fifteen rupees and 25 paisa per bigha: Provided that no such price shall be charged if the number of trees standing in a bigha of land is less than five.
(7) In case of land situated within a radius of 10 miles of Jaipur City, the allottee shall also pay the rate of Fifteen rupees and 25 paisa per bigha: Provided that no such price shall be charged if the number of trees standing in a bigha of land is less than five. (8) The land shall be liable to resumed by the State Government without payment of compensation if- (a) it is not brought under cultivation strictly in accordance with the condition of allotment and it is not properly utilised: (b) it is sub-let or transferred in contravention of the provision of Tenancy Act applicable to Gair Khatedar tenants; (c) it is found that the allottee was not a [landless agriculturist] (d) the allottee makes default in the timely payment of the price referred to in clause 5 of the rule and/or the annual rent; or (e) the allottee makes construction on the land in contravention of the allotment rules. [(9) In case the land allotted in grass land or subject to erosion, the allottee shall have to undertake the work of soil conservation as and when directed by an officer of the Agriculture Department authorised in this behalf.]" 8. Rule 14(3) of the Rules mandates for cultivation of land at least 50% in the first year of allotment and 100% in the second year. 9. According to the petitioner, condition aforesaid was satisfied as cultivation of land to the extent of 50% was made in the first year followed by cultivation of entire land in second year. According to him, rule 14(3) does not provide further cultivation of land. 10. To consider the aforesaid issue, the court has gone into object of the Rules of 1970. The Rules of 1970 were brought for allotment of agriculture land to the landless persons as a measure of economic reform. If the object sought to be achieved, landless persons need to cultivate the land for economic reform and it cannot be that cultivation can be only for two years, whereas, khatedari is given after expiry of 10 years. If rule 14 is read with the object and purpose of allotment of land for 10 years, then it would become clear that cultivation of land should be in continuity.
If rule 14 is read with the object and purpose of allotment of land for 10 years, then it would become clear that cultivation of land should be in continuity. The specific condition of cultivation of land to the extent of 50% in the first year is given under rule 14(3) because with allotment of land, entire land may not be cultivated. The rule further requires cultivation of entire land in the second year of allotment. The emphasis of cultivation of entire land in second year is to see that it is utilised entirely to achieve the object of the Rules of 1970 for which it was brought. 11. If the plea taken by the petitioners that cultivation of the land was not required after second year by taking interpretation of rule 14(2) in isolation and the very object of the Rules would frustrate. If the plea is accepted then allotment of land would then become a venture. The land is allotted to the landless persons so that they may earn out of it with cultivation thereof. If the position aforesaid is maintained for a period of 10 years, they would be entitled for khatedari rights. 12. It is admitted case of the petitioners that cultivation of land was not in continuity for 10 years. The Board of Revenue has taken aforesaid into consideration and found that after allotment of land in the year 1975 petitioner even made application on 11.11.1998 for demarcation of area of the land so allotted to him. The aforesaid has been clarified by learned counsel for petitioner to show that there was a dispute on part of the land. Even if it is accepted, then also, cultivation of land is not in continuity thus very object to bring the Rules of 1970 has been frustrated. 13. It is also a fact that petitioner did not ask for khatedari right after expiry of period of 10 years, rather, the land was not cultivated in many years thus in absence of an order granting khatedari rights, petitioner is not entitled to claim right on the land after expiry of the period of 10 years. 14. All the revenue courts have taken into consideration record produced before it and there exist concurrent finding of fact.
14. All the revenue courts have taken into consideration record produced before it and there exist concurrent finding of fact. In view of above, I do not find any reason to interfere in the concurrent finding of fact while exercising jurisdiction under Article 227 of the Constitution of India in view of the judgment of the Apex Court in the case of "Sadhana Lodh v. National Insurance Company Limited & Anr." [ 2003 (3) SCC 524 ]. Para 7 of the said judgment is reproduced hereasunder - "7. The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision." In view of the judgment referred above and taking into consideration the facts of this case, I do no find any reason to cause interference in the orders passed by the three revenue courts. In the result, writ petition is dismissed.