Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 637 (RAJ)

Archana Kashyap v. State of Rajasthan

2018-02-23

M.N.BHANDARI

body2018
JUDGMENT : M.N. Bhandari, J. By this bunch of writ petitions, a challenge is made to the order dated 7th November, 2014, passed by the District Collector, Jaipur. A direction is sought not to dispossess the petitioners from the land allotted to a Kupanyabadh Sanyukt Krishi Sahkari Samiti Limited, Kukas. The petitioners are said to be members of the samiti. The land was allotted under the provisions of the Rajasthan Land Revenue (Allotment of Land to Co-operative Societies) Rules, 1959 (for short "the Rules of 1959"). 2. For convenience, facts of the writ petition bearing No.13068/2014, Prabhat and Ors. v. State of Rajasthan and Ors., are taken. 3. It is stated that on 10th June, 1959, the State Government allotted an agricultural land in Village Kukas, District Jaipur to Kupanyabadh Sanyukt Krishi Sahkari Samiti Limited (in short "the samiti") constituted under the Societies Registration Act, 1860 (in short "the Act of 1860"). The samiti was having 21 members belonging to scheduled caste. A "tarmeem" of the land was prepared on 7th January, 1970. At that time, the samiti did not remain in existence and even few members died thus cultivation on the land was by their successors. The members of the samiti were paying "lagan" on cultivation of the land. The revenue authorities made an inspection of the area in the year 2014 and found that samiti is not existing. Some of the members are not cultivating the land thus respondents passed an order on 7th November, 2014 to cancel the allotment made in favour of the samiti. A direction was also given to take possession of the land and be recorded as "sivai chak". These writ petitions have been filed to challenge the aforesaid order. 4. It is stated by learned counsel for petitioners that as per the Rules of 1959, the members of the samiti have right to retain the land for cultivation. It is even by the successors of the members. They are landless persons and belong to scheduled caste. 5. These writ petitions have been filed to challenge the aforesaid order. 4. It is stated by learned counsel for petitioners that as per the Rules of 1959, the members of the samiti have right to retain the land for cultivation. It is even by the successors of the members. They are landless persons and belong to scheduled caste. 5. The impugned order has been passed without seeking advice of the committee for allotment of land in favour of the petitioners and it was obligatory on the part of the District Collector to provide an opportunity of hearing before passing the impugned order in view of the provisions of the Act of 1959 and Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes (Amendment) Rules, 2007 (in short "the Rules of 2007"). 6. Learned counsel for petitioners has made specific reference of Rule 20 of the amended Rules of 2007. The amended provision is to protect rights of those landless persons, who are having continuous possession and cultivating the land personally. The land is to be allotted to them irrespective of its resumption under the Rules of 1959. It is subject to limit provided under Rule 12 and has to be on payment of 5% amount to the market value. The exercise aforesaid has not been undertaken before cancellation of allotment. A prayer is, accordingly, to comply the mandate of the amended Rules of 2007 and writ petitions may be allowed with grant of the prayers made therein. 7. The land was allotted to the members of the samiti for cultivation. If few members failed to cultivate the land or have transferred it illegally then action should have been taken against them and not against those, who are cultivating the land and have not transferred it. In few cases, construction has also been raised in violation of the Rules of 1959 but the petitioners did not violate the terms of allotment. The respondents were expected to make difference between the members, who have acted in violation of the Rules of 1959 and those who are still following it. 8. Learned counsel for respondents have contested the writ petitions. It is submitted that petitioners are having alternative remedy of revision before the State Government under the Rajasthan Land Revenue Act, 1956 (for short "the Act of 1956"). The writ petitions thus deserve to be dismissed on the aforesaid ground itself. 8. Learned counsel for respondents have contested the writ petitions. It is submitted that petitioners are having alternative remedy of revision before the State Government under the Rajasthan Land Revenue Act, 1956 (for short "the Act of 1956"). The writ petitions thus deserve to be dismissed on the aforesaid ground itself. It is further stated that land in dispute has been recorded in the name of Jaipur Development Authority but it has not been made as party. 9. Coming to the facts of the writ petition, it is stated that a land was allotted to the samiti under the Rules of 1959. It was on certain conditions given therein and otherwise provided under the Rules of 1959. The members of the samiti did not comply the conditions given therein and, presently, out of 21, only 4 members are alive. An FIR was registered pursuant to letter of Additional Superintendent of Police, Jaipur City (North), Jaipur dated 22nd September, 2010 that members of the samiti have executed an agreement to sell after plotting of the land. The construction has also been raised on the land though it was allotted only for cultivation purpose with the restriction of construction on it. 10. It is also stated that land was allotted only for a period of 25 years. It expired on 10th June, 1984. The allotment of land was not renewed thereafter, thus allotment came to an end in the year 1984 itself. The members became trespasser. The then authorities even allotted land of Khasra Nos.29 to 32 and 35 belonging to the Forest Department. 11. A reference of Rule 5 of the Rules of 1959 has been given to show conditions of allotment. Rule 5(1) of the Rules of 1959 provides for allotment of land for a period of 25 years, renewal by another 25 years at the option of the co-operative samiti. Sub-rule (3) of Rule 5 requires cultivation of atleast 25% of the land in the first year and atleast 50% within two years of allotment. The entire land is to be cultivated in third year and subsequent years. Sub-rule (4) of Rule 5 of the Rules of 1959 provides for resumption of land if it is not cultivated as per sub-rule (3) of Rule 5 of the Rules of 1959 or samiti has gone in liquidation. The entire land is to be cultivated in third year and subsequent years. Sub-rule (4) of Rule 5 of the Rules of 1959 provides for resumption of land if it is not cultivated as per sub-rule (3) of Rule 5 of the Rules of 1959 or samiti has gone in liquidation. As per sub-rule (6) of Rule 5 of the Rules of 1959, the members of the samiti are not permitted to raise permanent structures or buildings on the allotted land. The maximum period of lease is of 50 years, however, it is with renewal of allotment, which did not take place in these cases. Even if renewal of allotment would have taken place, the period could have been expired in the year 2009. The samiti, however, did not apply for renewal. The survey made in the year 2014 makes it clear that not only construction has been raised on the land measuring 400 bigha but plotting has been done leaving hardly any area for cultivation where few persons may be cultivating the land. The land was otherwise resumed in the Government as samiti went in liquidation. 12. Learned counsel for respondents further stated that prior to cancellation of allotment, a Notification was issued in the newspaper on 21st January, 2006. It is to see claim of the members of the samiti or to submit objections but no one responded to the notice, i.e. either by the samiti or its members. The samiti was again given notice showing violation of the terms of the allotment but no reply was given to it, therefore, prior to cancellation of allotment, an opportunity of hearing was given. The facts aforesaid have been suppressed by the petitioners. The copies of notices have been enclosed along with the reply. 13. It is further stated that, as per directions of the court on the last date of hearing, the area was inspected followed by a report. It shows that major portion of the land is not cultivated, rather, either construction has been raised or plotting has been made. As per conditions of allotment, cultivation of the entire land is a precondition and otherwise the samiti having been liquidated, land stood resumed in the Government thus no right now remains with the respondents in view of sub-rule (4) of Rule 5 of the Rules of 1959. 14. As per conditions of allotment, cultivation of the entire land is a precondition and otherwise the samiti having been liquidated, land stood resumed in the Government thus no right now remains with the respondents in view of sub-rule (4) of Rule 5 of the Rules of 1959. 14. The petitioners have given rejoinder to the reply filed by the State. It is stated that subsequent to cancellation of allotment, an application was submitted for allotment of land. The copies of applications filed by the members of the samiti have been submitted along with the rejoinder. The inspection of the area was made and report is favourable to them showing possession of the petitioners on the land. 15. A reference of the order passed by the Revenue Minister dated 18th September, 2007 on a revision petition in other case has also been given. There recording of the land in the name of JDA was cancelled so as to record it as "sivai chak" again. A direction has also been given to send the cases for regularisation of the land as per the Rules of 2007, as amended. 16. I have considered rival submissions of learned counsel for the parties and perused the record. 17. By this bunch of writ petitions, a challenge is made to the order dated 7th November, 2014, by which, allotment of land in favour of the samiti has been cancelled. Many issues have been raised for challenge to cancellation of allotment of land. Learned counsel for the parties have admitted that samiti went in liquidation. In view of the above, land stood resumed in the Government pursuant to Sub-rule (4) of Rule 5 of the Rules of 1959. For ready reference, Rule 5 of the Rules of 1959 is quoted hereunder: "5. Conditions of allotment.-The allotment of land under these rules to a cooperative Society shall be subject to the following conditions, namely- (1) The allotment shall be on a lease for a period of twenty fie years, renewable for further period of twenty-five years, at the option of the Cooperative society. Conditions of allotment.-The allotment of land under these rules to a cooperative Society shall be subject to the following conditions, namely- (1) The allotment shall be on a lease for a period of twenty fie years, renewable for further period of twenty-five years, at the option of the Cooperative society. (2) The allotment shall be subject to payment of rent at the sanctioned rent rates applicable to the land; and in the case of land situated in a colony, the premium and betterment levy, if any, shall have to be paid by the cooperative society; and the provisions of the Rajasthan Colonisation Act, 1954 (Rajasthan Act XXVII of 1954), and of the Rajasthan Colonisation (General Colony Conditions) Rules, 1955, shall apply. (3) The Co-operative society shall have to cultivate atleast twenty-five percent of the allotted land within one year of the allotment, atleast fifty percent within two years of the allotment and the entire culturable area in the third year and subsequent years. (4) Land shall be resumed by the [Collector] without Payment of compensation (a) if it is not brought under cultivation strictly in accordance with sub-rule (3) or (b) if it is not properly utilised or (c) if it is sub-let or transferred in any other manner or (d) if the co-operative society fails or goes into liquidation. Provided that the co-operative society may effect a simple mortgage of the whole or any portion of the allotted land with the Rajasthan Central Land Mortgage Bank [District Central Co-operative Bank] or a Co-operative Land Mortgage Bank for the purpose of obtaining a loan therefrom. Provided further that no such order of resumption of land shall be passed unless the allottee co-operative society has been given an opportunity of being heard. (5) The Co-operative society shall have to pay to the State Government the price of the wells and permanent structures, if any, existing on the land, as well as the price of trees growing on the land at the rates prescribed for purposes of Sections 80 and 81 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act No.3 of 1955). (6) The Co-operative society shall not construct any permanent structures or buildings on the allotted land other than a building which comes under the definition of an improvement as defined by clause (19) of section 5 of the Tenancy Act. (6) The Co-operative society shall not construct any permanent structures or buildings on the allotted land other than a building which comes under the definition of an improvement as defined by clause (19) of section 5 of the Tenancy Act. (7) No individual Khatedari or Gair Khatedari right shall accrue in the allotted land to any member of the Co-operative Society." 18. The rule quoted above shows conditions of allotment. The condition is even not to make improvement. The definition of "improvement" has been given separately. Sub-rule (4) of Rule 5 of the Rules of 1959 provides resumption of land if a cooperative society goes in liquidation. The allegation of the respondents is not only that majority of the members have sold the land to others in violation of the Rules but have even made improvement, thereby, cultivation has not been done. The report shows that other than few members, nobody is cultivating the land and thereby, conditions of allotment have been violated. In few areas, the plotting on the land has been made, whereas, in others, even construction exists. It is also not in dispute that samiti has gone in liquidation thus as per Rule 5(4) of the Rules of 1959, the land resumed in the Government. To the extent of resumption of land and cancellation of allotment in view of the facts given above, contest could not be made by the petitioners. It is moreso when order was passed after an opportunity of hearing. Their prayer is only for compliance of Rule 20 of the Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970, as amended in the year 2007. For ready reference, Rule 20, as amended in the year 2007, is quoted hereunder: "Rule 20. It is moreso when order was passed after an opportunity of hearing. Their prayer is only for compliance of Rule 20 of the Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970, as amended in the year 2007. For ready reference, Rule 20, as amended in the year 2007, is quoted hereunder: "Rule 20. Allotment of land to trespassers.- 2[(1) Notwithstanding anything contained in these rules, subject to the specific or general direction of the State Government, the Sub-Divisional Officer may on the advice of the Advisory Committee, instead of ejecting a trespasser from any land occupied by him without any lawful authority, allow him to retain such land if he is a landless agriculturist and the total area of land held by such person including the land so allotted does not exceed 3[4 hectares] and that the land, so allotted does not fall within the categories specified in Rule 4 of these rules: Provided that in eight desert Districts i.e. Barmer, Jodhpur, Churu, Pali, Jaisalmer, Nagaur, Bikaner and Jalore, where the area of trespassed land exceeds 3[4 hectares] instead of ejecting a trespasser from such excess land, he may he allowed to retain such excess land upto maximum are of 3[2.5 hectares] subject to the following conditions? (i) the total area of land held by such person including the land allotted does not exceed 1[6 hectares]. (ii) for the area exceeding 1[4 hectares] 50% of prevailing market price of neighbouring agriculture land shall be charged from the trespasser belonging to General Category and 25% of the prevailing market price of neighbouring agriculture land shall be charged from the trespasser belonging to Scheduled Caste/Scheduled Tribe/Backward Classes/Below Poverty Line Category. 2[(1-A) Notwithstanding anything contained in these rules, the cultivators, who were conferred khatedari rights during the process of "Bhoo Abhilekh Sansodhan" in Ajmer district in the period of 1970 to 1972 and subsequently whose khatedari were cancelled and land was recorded as Siwai Chak in revenue record, the Sub-Divisional Officer on the advice of the advisory committee may regularise such land in favour of such cultivators upto 15 bighas. But in case where the land exceeds 15 bighas, the excess land may be regularised in favour of their adult son 1- 1-2000 and such land shall be entered in their joint tenancy: Provided that total area of land already held by such tenant and land so regularised shall not exceed ceiling area applicable to them under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973.] 3[(1-AA) Notwithstanding anything contained in these rules the person who was in possession of land as temporary cultivation lease holder in colony area and in whose favour permanent allotment of part of such land was made before such area was excluded from colony area and he is still in continuous possession of such part of remaining land, such remaining part of land may be regularized in his favour up to the cellin limit applicable under the Rajasthan Imposition of Celling on Agricultural Holding Act, 1973.] 4[(2) Upon such allotment, the allotted] shall be bound by the conditions of allotment laid down in these rules and Khatedari right shall accrue to him as if he was an allottee under these rules 5[Explanation (1) Deleted] Explanation (2) One 6[hectare] of irrigated land for the purpose of this rule shall be taken equal to 6[hectare] of unirrigated land:] 7[Provided that the Collector shall have the power to cancel any regularisation made by the S.D.O. or Tehsildar either suo motu or on the application of any person in case where regularisation has been secured through fraud or mis-representation or has been made against rules.] [(3) Notwithstanding anything contained in these rules, the cooperative society to whom land was allotted and the said society provided that land to its member for cultivation and the said land has been resumed under the Rajasthan (Allotment of Land to Cooperative Societies) Rules, 1959. If the said member of his successor is landless and continuously in possession and cultivating the said land personally, the allotting authority may on advice of the Advisory Committee instead of ejecting him, allot the whole or part of such land subject to limit provided in rule 12 on payment of five percent of the market value of the land determined by District Level Committee. In case of persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and B.P.L. families no price shall be charged: Provided that if such land was not within the urbanisable limit of peripheral belt of the urban area as mentioned in section 90-B of the Act at the time of allotment and subsequently inclued in urbanisable limit of peripheral belt of urban area of Jaipur Development Authority, Urban Improvement Trust or Municipal Corporation or Municipal Council, Khatedari right shall be conferred only with the prior approval of the State Government and on payment of 20% of market value or land as determined for the area by the District Level Committee and in case of land subsequently included in the urbanisable limit or peripheral belt of Municipal Board, Khatedari right shall be conferred only with the prior approval of Divisional Commissioner and on payment of 10% of market value of land determined for the area by the District Level Committee." 19. The amended provision provides for allotment of land, if it has been resumed provided members are cultivating the land personally and such members are landless having continuous possession. The advice of the Advisory Committee can be taken to avoid ejectment. The allotment is subject to limit provided under Rule 12 and has to be on payment of 5% of the market value other than for reserve category. The proviso to it, however, imposes conditions on allotment, if the land comes in the peripheral belt of the urban area of Jaipur Development Authority or Municipal Corporation or Municipal Council. The petitioners in Writ Petition No.13068/2014 have submitted copies of applications given by them for allotment of land. 20. The report submitted on the directions of the court shows that measure part of land is not cultivated and few khasras belong to the Forest Department. The houses and other constructions also exist on the land. It is apart from transfer of land by majority of the members thus allotment cannot be sought by them even under Rule 20 of the Rules of 1959. 21. The petitioners have given reference of the order passed by the then Revenue Minister dated 18th September, 2007. It has no application to the present cases as it was in other case and the impugned order was passed in the year 2014. 21. The petitioners have given reference of the order passed by the then Revenue Minister dated 18th September, 2007. It has no application to the present cases as it was in other case and the impugned order was passed in the year 2014. The order of the Revenue Minister has no application and seems to have referred to create confusion in the matter. 22. In view of the above, I do not find any illegality in the impugned order for resumption of land, rather, there exist additional grounds to resume it as per Rule 5(4) of the Rules of 1959. It is for the reason that samiti has gone in liquidation thus land stood resumed in the Government. 23. So far as claim as per amended Rule 20 of the Rules of 1970 is concerned, it cannot be accepted other than for whom it applies. Rule 20 of the Rules of 1970, as amended, would apply subject to conditions given therein. In no case, applications would be entertained in the hands of those who are not members of the samiti and not cultivating the land throughout. It would further be subject to other conditions given therein. 24. The writ petitions are according disposed of with a direction to the respondents to consider the case only of those who are entitled to the benefit of amended Rule 20 of the Rules of 2007. It also when land was allotted to a co-operative society and not otherwise. 25. The judgment of the Division Bench of this court in the case of Budh Singh v. State of Rajasthan and Ors., DB Civil Writ Petition No. 6468/2005 along with connected matter, decided on 11th March, 2015 would also be taken into consideration while considering the case. It is, however, made clear that it would not be considered for those who were not the members of the samiti and not cultivating the land throughout personally. It would not be even for the land where improvements have been made or land was transferred. The other conditions of Rule 20(3) of the amended Rules of 2007 would be complied and consideration would be made under the said provision for those members who did not violate Rule 5 of the Rules of 1959. 26. A copy of this order be placed in each connected file.