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2023 DIGILAW 1961 (RAJ)

LR’s of Hamir Chand v. State of Rajasthan

2023-10-12

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : 1. The matter pertains to the year 1998, and thus, listed under the category of “Oldest Cases for Early Disposal”. 2. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: “It is, therefore, prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction.- I. The judgments dated 25.7.98 and 31.8.98 passed by the Special Judge III, Pong Dam Oustees cases, Sri Ganganagar may kindly be quashed and set aside. II. The respondents be directed to restore allotment of the petitioner on disputed land Murabba No.282/460 Chak 9-A, Tehsil Anupgarh, District Sri Ganganagar and petitioner be ordered to be given possession of the said land. III. Any other appropriate writ, order or direction as may be deemed just and proper in the facts and circumstances of the case be granted. IV. Costs of the petition be given to petitioner.” 3. The original petitioner (Hamir Chand), during pendency of the instant petition, has expired, and consequently, his legal representatives have been brought on record and arrayed as petitioners herein. 4. As per the pleaded facts, the original petitioner was a Pong Dam Oustee and was allotted 25 bhigas of land bearing Murabba No.282/460 situated in Chak No. 9A, Tehsil Anoopgarh on 12.10.1977 under the Rajasthan Colonization (Allotment and Sale of the Government Land to Pong Dam Oustees and other Transferees in Indira Gandhi Canal Colony), Rules 1972 (hereinafter referred to as ‘Rules of 1972’), whereafter, the original petitioner remained in cultivatory possession of the said land. 4.1. Thereafter, a survey was conducted by the Halka Patwari on 19.12.1991 whereby it was found that the original petitioner was not in possession of the land in question, instead respondent no.3 was in possession of the same on the basis of certain agreement entered into between the allottee (original petitioner) and the respondent no.3. 4.1. Thereafter, a survey was conducted by the Halka Patwari on 19.12.1991 whereby it was found that the original petitioner was not in possession of the land in question, instead respondent no.3 was in possession of the same on the basis of certain agreement entered into between the allottee (original petitioner) and the respondent no.3. Subsequently, a case bearing no.698/92 was registered before the Sub Divisional Magistrate (SDM), Raisinghnagar, on the basis of the aforesaid report, whereupon, while recording a finding that the original petitioner has violated Rule 6 sub rules (3) & (4) of the Rules of 1972 by selling the land in question to the respondent no.3, the SDM, vide judgment dated 22.03.1993, in exercise of power under Rule 6 sub rule (10) of the Rules of 1972, cancelled the allotment of 15 bighas of land made in favour of the original petitioner. 4.2. Subsequently, a direction was issued by the Hon’ble Supreme Court vide the judgment dated 26.07.1996 passed in Writ Petition (C) No.439/1992, to review all the cases of cancellation of allotment to oustees subsequent to 01.01.1992, and accordingly, the learned Special Judge (III), Pong Dam Oustees related Cases, Sri Ganganagar reviewed the earlier judgment of the SDM and modified the same by cancelling the allotment of the entire 25 bighas land made to the original petitioner and ordered the land to be vested in the State Government, vide the impugned judgment dated 25.07.1998. 4.3. Aggrieved of the judgment of the learned Special Judge, the original petitioner submitted a review application; however the earlier judgment was maintained and the review application was rejected vide the impugned order dated 31.08.1998. Thus, the present petition has been preferred claiming the afore-quoted reliefs. 5. Learned counsel for the petitioner submitted that though the original petitioner entered into an agreement with respondent no.3 to sell 15 bighas of land, however the same was cancelled by Panchayat, after the private respondent did not pay the entire amount, and that, possession of the entire land always remained with the original petitioner; further, the agreement, on the basis of which the allotment of the original petitioner was cancelled, was not a registered document, and therefore, no effect could be given to the said document. Thus, as per learned counsel, the question of violation of the provisions of Rules of 1972 by the original petitioner did not arise. 5.1. Thus, as per learned counsel, the question of violation of the provisions of Rules of 1972 by the original petitioner did not arise. 5.1. It was further submitted that even before the SDM the original petitioner and other witnesses stated on oath that the original petitioner had not delivered the possession of the land, and thus, the SDM in passing the judgment dated 22.03.1993 had erred in law in not believing such statements. 5.2. It was also submitted that the agreement in question was entered only qua 15 bighas land and the survey in question was without jurisdiction, yet the learned Court below, vide the impugned judgment, cancelled the allotment of the entire 25 bighas of land, in accordance with the Hon’ble Apex Court’s judgment to review the cancellation of the allotments after 1992. Thus, as per learned counsel, the learned Court below could not have gone beyond the decision of the SDM, and cancelled the entire allotment (25 bighas land) made in favour of the original petitioner. 5.3. It was further submitted that the survey report of the patwari was completely baseless and incorrect, as the original petitioner was in possession of the land in question, and even the irrigation authority had issued water slips in the name of the original petitioner, from time to time. 6. On the other hand, learned counsel for the respondents while opposing the submissions made on behalf of the petitioner, submitted that the allotment made in favour of the original petitioner was cancelled as he had violated the prescriptions of Rule 6 sub-rules (3) & (4) of the Rules of 1972. 6.1. It was further submitted that the original petitioner was not in possession of 15 bighas of land in question on 19.12.1991 i.e. the date on which the survey in question was conducted by the Halka Patwari, as the original petitioner had already sold the said land to the respondent no.3, before the expiry of 20 years from the date of initial allotment of land, which was violative of Rule 6 (3) & (4) of Rules of 1972; in furtherance the petitioner had himself admitted the fact before the SDM that he had transferred the said land to respondent no.3 and possession of land had also been transferred. 6.2. 6.2. It was also submitted that when the prescription of the Rules is violated, the allotment made in favour of the original petitioner was liable to be cancelled, and thus, vide the impugned judgment passed by the learned Court below, the entire 25 bighas land had rightly been ordered to be vested in the State Government owing to the fact that the original petitioner was not in cultivatory possession of the land in question. 7. Heard learned counsel for the parties as well as perused the record of the case. 8. This Court observes that the present petitioners are the legal heirs of the deceased Hamir Chand (original petitioner) whose allotment pertaining to the land in question under the Rules of 1972, was cancelled by the SDM, after receiving survey report of Halka Patwari in the year 1991, as it was found that the petitioner was not in possession of the allotted land and had transferred 15 bighas out of the total allotted land to the private respondent; in pursuance of the aforementioned order of the Hon’ble Apex Court passed in the year 1996 to review the cancellation of allotments done after the year 1992, the learned Court below reviewed the cancellation of allotment of petitioner and thereafter vide the impugned judgment, cancelled the entire allotment of the petitioner i.e. 25 bighas of land and even the review application of petitioner was rejected. 9. This Court further observes that as per the decision of the learned SDM, the petitioner himself admitted before the SDM that he had sold 15 bighas of the allotted land to the private respondent and had handed over the possession of the same to the private respondent; such statements were recorded in the presence of Standing Counsel for the Government of Himachal Pradesh, and thus it is clear that the original petitioner had violated sub-rules (3) & (4) of Rule 6 of the Rules of 1972, which provides for the conditions for allotment; in furtherance it was also observed by the SDM that an application under Rule 6 A of the Rules of 1972 was presented by the private respondent with the request that the said 15 bhigas of land has been sold/transferred through ikrarnama and he is in possession thereof, and thus, the same deserves to be allotted to him. 10. 10. This Court also observes that as per the observations of the learned Court below in the impugned order dated 25.07.1998, the original petitioner had stated in the ikrarnama itself that he received Rs.2,95,000/-from the private respondent and had sold 15 bighas of the land on 19.12.1990 to the private respondent, and thus, even though the agreement between the original petitioner and the private respondent later came to be cancelled and the possession came back in the hands of the original petitioner, however, the same does not mean that the Rules of 1972 had not been violated. 10.1. In furtherance it was observed by the learned Court below that even before the completion of 20 years, the 15 bighas of allotted land was sold/transferred, and thus, the entire allotment (25 bighas of land) was liable to be cancelled, and to be vested in the State Government. 11. This Court further observes that Rule 6(10) of the Rules of 1972 clearly provides that, “In case of any breach of any terms and conditions by the allottee, the allotment of land made to him shall be liable to be cancelled by the allotting authority or by the Collector and the land shall revert to the State Government free from all encumbrances and without any liability of payment of compensation”. The present factual matrix clearly reveals that the original petitioner had violated the prescriptions of Rule 6(3) & (4) of the Rules of 1972, which clearly attracts invocation of the provisions of the said Rule 6(10), and thus, the allotment of the entire land in question measuring 25 bighas has rightly been cancelled by the learned Court below vide the impugned 25.07.1998. 12. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition. 13. Consequently, the present petition is dismissed, while upholding the impugned judgments. All pending applications stand disposed of.