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2018 DIGILAW 1192 (RAJ)

State of Rajasthan v. Shankarlal

2018-05-07

SANJEEV PRAKASH SHARMA

body2018
JUDGMENT Sanjeev Prakash Sharma, J. In all these three writ petitions, the petitioner-State has challenged the common order passed by the Board of Revenue whereby the appeals preferred by the respondents against order of the Revenue Appellate Authority were allowed setting aside the order dated 16/06/2008 passed by the Revenue Appellate Authority and upholding the allotment granted to the concerned persons under the Rajasthan Land Revenue (Allotment of Land for Agriculture Purpose) Rules 1970 for agricultural purposes. 2. Brief facts are that eight persons were allotted five bighas of land in Khasra No.116 (Old No.517) in a camp held for village Sargaon, Tehsil Kishangarh, District Ajmer on 14/07/1997. The possession was handed over on 20/06/1998 and mutation was opened on 06/08/1998 and their Khatedari rights were created. 3. The Tehsildar concerned moved an application after about nine years praying therein to cancel the allotment granted to the said eight persons on 14/07/1997. The same was on the basis of 'Mouka Report' submitted by him. It was case of the Tehsildar that the land was not cultivated for the period as provided under Rule 14(3) of the Rules of 1970 and also under Rule 14(4) of the Rules of 1970 the land was allotted wrongfully. The Additional Collector, Ajmer cancelled the allotment of three tenants namely; Shankar Lal, Syoraj and Smt. Chooti Devi while rejecting the application for cancellation in relation to other tenants. 4. Appeal was preferred by the State as well as the said tenants before the Revenue Appellate Authority who has cancelled allotments of all the persons holding that the land was being used for the purpose of 'Charagah Land' and the entries made in the revenue records relating to the land being cultivated was in collusion with the revenue officers and has held that the same cannot be relied upon. The Revenue Appellate Authority has also declared as void the sale executed by two tenants in the intervening period. The Revenue Appellate Authority has noted that before the Additional Collector, Ajmer, replies had also not been filed and on the said basis he has proceeded to cancel the sale executed. 5. The Revenue Appellate Authority has also declared as void the sale executed by two tenants in the intervening period. The Revenue Appellate Authority has noted that before the Additional Collector, Ajmer, replies had also not been filed and on the said basis he has proceeded to cancel the sale executed. 5. The Board of Revenue having examined the orders passed by the courts below found that the action of the Tehsildar was on account of ill-will and malice and there was no occasion to have initiated proceedings under Rule 14(4) of the Act of 1970 for cancellation of allotment. No cogent reason was available for cancelling the allotment. As regards the nature of land, the same was held to be not 'Charagah Land' but was a "Sawai Chak" land and duly allotted to the concerned respondents/appellants therein. 6. Learned counsel for the petitioners submits that the Board of Revenue has fallen in error in reaching to such a conclusion and has failed to examine the case in correct perspective. The Revenue Appellate Authority has looked into the record and has reached to a factual finding which was not required to be interfered with. It is submitted that the Board of Revenue did not examine the facts. 7. Per-contra, learned counsel for the respondents submits that the Revenue Appellate Authority had wrongfully held the land to be not cultivated as there was revenue record available before him to show that the land had been cultivated for several years and as per revenue record the land was "Padat" land and not "Charagah" land. In the circumstances, the order of the Revenue Appellate Authority was rightly set aside by the Board of Revenue. It is submitted that in terms of Section 14 of the Land Revenue Act, a presumption has to be drawn with regard to the entries recorded in the revenue record to be correct. Heard learned counsel for both the parties. 8. Rule 14 of the Rules of 1970 provides as under:- 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 fulfills during this period the terms and conditions of allotment until Khatedari rights are conferred. 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 fulfills 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 (19) 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. (8) The land shall be liable to be 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.] " In view of above, this Court finds that the period of ten years as mentioned shows that after three years the allottee would be conferred Khatedari rights. The provision does not require anything else but to make the entries in the revenue records. A presumption has to be drawn that after three years Khatedari rights shall be conferred on the allottees and thereafter there was no power vested with petitioner to cancel the allotment. From the tenor of Rule 14 of the Rules of 1970, it is apparent that the cancellation under Rule 14(4) of the Rules of 1970 can be on two counts; firstly, on the ground that the allottee has not cultivated 50% of the land in the first year of allotment and remaining in the second year but such cancellation can only be within a period of three years as provided under Rule 14(1) of the Rules of 1970 because after three years, the concerned tenant would acquire Khatedari rights. The second ground on which the Collector has cancelled the allotment is if he is satisfied that the allotment has been secured through fraud or misrepresentation. 9. From the perusal of the order passed by the Additional Collector, Ajmer, it is apparent that the Additional Collector, Ajmer did not cancel the allotment on the ground of fraud or misrepresentation but was only on the ground that the land had not been cultivated. 10. Taking into consideration the view as above, the cancellation therefore, could not be made after a period of three years. The allotment is therefore, required to be restored. The order of Board of Revenue though on different footings is upheld for the reasons stated above. 11. The another aspect, which the learned counsel for the respondents has raised, is regarding presumption under Rule 140 of the Land Revenue Act, since the order passed by the Revenue Appellate Authority has already been set aside by the Board of Revenue, this Court is not required to examine the same at this stage. This order has been passed taking into consideration the facts of SB Civil Writ Petition No.4194/2018 (State v. Shankarlal and ors.) 12. This order has been passed taking into consideration the facts of SB Civil Writ Petition No.4194/2018 (State v. Shankarlal and ors.) 12. Consequently, these three writ petitions filed by the State are accordingly dismissed.