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2018 DIGILAW 61 (RAJ)

Noor Mohammed v. State of Rajasthan

2018-01-04

GOPAL KRISHAN VYAS, VINIT KUMAR MATHUR

body2018
JUDGMENT : G.K. Vyas, J. In this special appeal filed by appellant Noor Mohd. under Rule 134 of the Rajasthan High Court Rules, 1952 read with Article 225 of the Constitution of India, the judgment dated 26th of May, 2017 passed by learned Single Judge is under challenge, whereby the writ petition filed by the writ-petitioners was allowed. 2. As per facts of the case, Jawar Singh, predecessor of the petitioners, was holding 951 Bigha 11 Biswa lands, his son Khanu Singh submitted a declaration under Chapter III-B of the Rajasthan Tenancy Act, 1955 (Act of 1955) (Old Ceiling Law) before the Additional Collector, Bikaner and the Additional Collector in Ceiling Case No.303/1970 declared 340 Bigha 7 Biswa land as excess vide order dated 11.08.1971. Another proceedings were initiated against Jawahar Singh as Ceiling Case No.199/72 based on the declaration submitted by Jawahar Singh and vide order dated 19.12.1972 the order of resumption of 356 Bigha 11 Biswa land was made. After resumption of the land, the same was allotted to number of persons including private respondents. The allotments were purportedly made under the provisions of Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970 (Rules of 1970). 3. Against the order dated 19.10.1972 passed against Jawahar Singh resuming 356 Bigha 11 Biswa land, an appeal was filed before the Revenue Appellate Authority, wherein submissions were made that as land has already resumed in Ceiling Case No.303/1970 pertaining to Khanu Singh, proceedings could not be initiated again. The appeal filed by Jawahar Singh was allowed by Revenue Appellate Authority, Bikaner vide its judgment dated 31.05.1984 (Annex.4). 4. A revision petition was filed against the said judgment dated 31.05.1984 passed by Revenue Appellate Authority before the Board of Revenue by the allottees of the land, however, the said revision petition was dismissed by the Board of Revenue on 01.05.1985 (Annex.5). 5. Jawahar Singh and his sons filed appeals for cancellation of allotments made in favour of allottees, who were allotted land in question after resumption, inter-alia on account of the fact that the order of resumption dated 19.10.1972 had been reversed by the Revenue Appellate Authority. In the appeals, it was claimed that allotment made in favour of allottees was illegal and contrary to the provisions of Rajasthan Tenancy (Fixation of Ceiling on Land) (Government) Rules, 1963. In the appeals, it was claimed that allotment made in favour of allottees was illegal and contrary to the provisions of Rajasthan Tenancy (Fixation of Ceiling on Land) (Government) Rules, 1963. The Revenue Appellate Authority allowed those appeals filed against the respondents in the present case vide order dated 29.06.1982. 6. Against the judgment of Revenue Appellate Authority, Bikaner dated 29.06.1985, the allottees again filed review petition, however, the said revision petition was dismissed vide order dated 07.02.1992. The allottees feeling aggrieved with the orders dated 29.06.1982 and 07.02.1992 preferred revision before the Board of Revenue. Before the Board of Revenue, the matter was not argued on merits and the challenge was made only to the extent of Revenue Appellate Authority to hear the appeals against the orders of allotment made in favour of allottees after land in question was resumed under the Ceiling Law. 7. The argument was raised before the Board of Revenue that the Revenue Appellate Authority, Bikaner had no jurisdiction as under the provisions of Rajasthan Imposition of Ceiling of Agriculture Holding Rules, 1973 (Rules of 1973), the appeal can filed against the allotment before the Collector only and not before the R.A.A. 8. The Board of Revenue, Ajmer allowed the revision petition vide order dated 28.07.2000 and set aside the orders dated 28.06.1985 and 07.02.1992 passed by the Revenue Appellate Authority on the ground that only Collector had jurisdiction to cancel the allotment of land acquired under the Ceiling Act and the Revenue Appellate Authority has no jurisdiction to hear the appeals. 9. The appellant preferred writ petition before this Court (CW No. 3247/2000) and challenge the order of Board of Revenue on various grounds. The learned Single Judge passed an interim order on 08.09.2000 to maintain status quo and subsequent the said stay order was confirmed vide order dated 04.07.2001. The writ petition filed by the writ-petitioners was allowed by the learned Single Judge vide order dated 26.05.2017, whereby the order of Board of Revenue dated 28.07.2000 passed in revision petition filed by the appellant/respondent has been set aside and the orders passed by R.A.A., Bikaner dated 29.06.1985 and 07.02.1992 have been restored. 10. The writ petition filed by the writ-petitioners was allowed by the learned Single Judge vide order dated 26.05.2017, whereby the order of Board of Revenue dated 28.07.2000 passed in revision petition filed by the appellant/respondent has been set aside and the orders passed by R.A.A., Bikaner dated 29.06.1985 and 07.02.1992 have been restored. 10. In this appeal, learned counsel for the appellant vehemently argued that the finding of learned Single so as to quash the order of Board of Revenue is contrary to law because as per Rule 17 (4) of the Rules of 1973, the Collector is having jurisdiction to cancel any allotment made under the Rules of 1973. It is also argued that if any order for cancellation is passed, further appeal is provided under Rule 22 of the Rules of 1973, therefore, the Board of Revenue while considering Rule 17 (4) of the Rules of 1973 held that Revenue Appellate Authority was not having jurisdiction to cancel the allotment made in favour of appellant/non-petitioner. However, the learned Single Judge without considering the relevant rule in proper prospectus, set aside the order passed by the Board of Revenue, Ajmer on the ground that ground on which challenge was made by the petitioners, the same essentially not covered under said parameters as provided under Rule 17 (4) of the Rules of 1973, therefore, the only remedy available to the writ petitioners was to file appeal u/s 225 of the Act of 1955 before the R.A.A., which appeal having been filed and accepted, the determination made by the Board of Revenue by holding that only application under Rule 17 (4) before the District Collector was maintainable, is ex facie incorrect and the same cannot be sustained in view of judgment of larger bench of Board of Revenue itself in the case of Hanman Singh & Anr. v. Jagdish Chanda & Anr. reported in 1995 RRD 172, and in the case of Jagannath & Ors. v. Umrao & Ors., 1998 RRD 367 . 11. Learned counsel for the appellant vehemently argued that aforesaid finding is totally perverse because the allotments were made under Rules of 1970 and for cancellation of the allotments only remedy is provided under Rule 17 (4) of the Rules of 1973 before the District Collector only. 12. v. Umrao & Ors., 1998 RRD 367 . 11. Learned counsel for the appellant vehemently argued that aforesaid finding is totally perverse because the allotments were made under Rules of 1970 and for cancellation of the allotments only remedy is provided under Rule 17 (4) of the Rules of 1973 before the District Collector only. 12. After hearing the learned counsel for the appellant, first of all it is required to be observed that the order dated 19.02.1972 for acquiring 356 Bigha and 11 Biswa land was challenged by the writ-petitioners by way of filing appeals before RAA, Bikaner, and those appeals were accepted by the R.A.A., Bikaner vide order dated 31.05.1984. The allottees aggrieved against the order of accepting appeals preferred revision petition before the Board of Revenue, but those revision petitions were dismissed vide order dated 01.05.1985 inter-alia observing that the allotment made in 340 Bigha 7 Biswa land acquired under order dated 21.08.1971 would not be disturbed. Therefore, once the order acquiring 356 Bigha & 11 Biswa land was set aside by the Revenue Appellate Authority in the appeals filed by the writ-petitioners against the allotments before the Revenue Appellate Authority vide order dated 29.06.1985 and that judgment become final after dismissal of revision petition, then there was no question for the Board of Revenue to interfere in those orders on the ground of jurisdiction which is not even raised before the Revenue Appellate Authority by the appellants/non-petitioners either in appeal or in review petition filed by them. 13. We have perused the finding of learned Single Judge with regard to jurisdiction of Collector coupled with Rule 17 (4) of the Rules of 1973. In our opinion, the learned Single Judge while considering the relevant Rule 17 (4) of the Rules of 1973 and the fact that order dated 31.05.1984 passed by R.A.A. setting aside the order dated 19.12.1972 become final and revision petitions filed by allottee/appellant was rejected vide order dated 01.04.1985, we are not inclined to interfere in this appeal because the learned Single Judge gave finding that provision of Rule 14 (4) of the Rules of 1970 is pera materia with the provisions of Rule 17 (4) of the Rules of 1973. 14. 14. It is also one of the important aspect of the matter that with open eyes question of jurisdiction of Revenue Appellate Authority was never raised by the appellants either in the revision petition or in the review petition filed by them, more so, the appeals were argued on merit but learned Board of Revenue completely ignored the said fact. The learned Single Judge while discussing entire provisions of law held that, once the order dated 31.05.1984 passed by Revenue Appellate Authority setting aside the order dated 19.10.1972 acquiring 356 Bigha 11 Biswa land become final than, no one can be permitted to claim any right on the basis of illegal allotment. 15. In view of above, we are not inclined to disturb the finding given by the learned Single Judge so as to quash the judgment impugned dated 26th of May, 2017, hence, this special appeal is hereby dismissed.