Rajasthan High Court - Jodhpur
Ami Lal vs Board Of Revenue Ajmer & Ors on 9 August, 2016
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B. CIVIL WRIT PETITION NO.14169/2015
Ami Lal V/S Board of Revenue Ajmer & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
O R D E R
S.B. CIVIL WRIT PETITION NO.14169/2015
Ami Lal V/S Board of Revenue Ajmer & Ors.
Date of order : 09th August, 2016
HON'BLE MR. JUSTICE VIJAY BISHNOI
Mr S.L. Jain ]
Mr Abhinav Jain ], for the petitioner.
Mr D.S. Rajvi ]
Mr Rajesh Saharan ], for the respondent No.5.
BY THE COURT:-
This writ petition has been filed by the petitioner being aggrieved with the order dated 30.11.2015 passed by the Board of Revenue, Rajasthan, Ajmer in an appeal preferred by the petitioner under Section 76 of the Land Revenue Act, 1956 (hereinafter referred to as 'the Act of 1956'), whereby the appeal filed by the petitioner has been dismissed. The petitioner has also challenged the order dated 25.05.2006 passed by the Revenue Appellate Authority, Sri Ganganagar, whereby the first appeal filed by the petitioner under Section 75 of the Act of 1956 has been dismissed. The petitioner has also challenged the order dated 18.09.2000 passed by S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 2 the Allotment Advisory Committee, whereby the 25 Bighas of command land of Murabba No.171/57 of Chak 5KD, Tehsil Gharsana, District Sri Ganganagar was alloted to the respondent No.5 on a price of Rs.6,59,625/-.
The appeal filed by the petitioner against the order dated 18.09.2000 was dismissed by the Revenue Appellate Authority vide order dated 25.05.2006 and the second appeal preferred by the petitioner before the Board of Revenue was dismissed vide order dated 30.11.2015.
This Court vide order dated 06.07.2016 granted time to the counsel for the petitioner to satisfy how the appeals preferred by the petitioner before the Revenue Appellate Authority under section 75 of the Rajasthan Land Revenue Act, 1956 (in brevity 'the Act of 1956' hereinafter) and before the Board of Revenue under section 76 of the Act of 1956 are maintainable in relation to the proceedings under the provisions of Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules, 1975 (in brevity 'the Rules of 1975' hereinafter). This S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 3 Court raised the said quarry in view of sub-rule (1) of Rule 23 of the Rules of 1975, which provides that any person aggrieved by an order of the allotting authority, in relation to the allotment of land under the Rules of 1975, may within 30 days from the date of such order can prefer an appeal to the Colonisation Commissioner. Sub-Rule(2) provides that any person aggrieved by a final order of the Colonisation Commissioner whether passed in appeal or otherwise, may within 60 days of date of such order, file revision before the Board of Revenue.
This Court was of the view that when essentially the petitioner has questioned the allotment of 25 Bighas of the land to respondent No.5 under the provisions of Rules of 1975 and as per Rule 23 of the Rules of 1975, the said allotment can be questioned by way of filing of an appeal before the Colonisation Commissioner and further against the order of the Colonisation Commissioner, a revision can be preferred, then how the appeals filed before the Revenue Appellate Authority and the Board of S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 4 Revenue respectively under the provisions of the Act of 1956 are maintainable.
Learned counsel for the petitioner has argued that as a matter of fact no such objection regarding maintainability of the appeals was raised by the respondent No.5 or by the State Government before the Revenue Appellate Authority or before the Board of Revenue and, therefore, now after the final decision by the Revenue Appellate Authority as well as the Board of Revenue, this writ petition cannot be dismissed on the ground of non- maintainability of the appeals filed by the petitioner before the Revenue Appellate Authority and the Board of Revenue.
Learned counsel for the petitioner has placed reliance on decision of this Court rendered in Dhokal Ram vs. Board of Revenue for Rajasthan, Ajmer reported in 1986(1) WLN 40 and argued that as per section 5 of the Colonisation Act, the appeals preferred by the petitioner before the Revenue Appellate Authority and the Board of Revenue respectively were very much maintainable. Learned counsel for the petitioner S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 5 has further argued that the Revenue Appellate Authority was exercising the powers of the Colonisation Commissioner as per the notification issued by the competent authority and, therefore, even if the petitioner has filed the appeal against it under section 75 of the Act of 1956, it cannot be said to be irregular. He has further submitted that as per sub-rule (2) of Rule 23, the Board of Revenue has the power to hear the revision against the order of the Colonisation Commissioner cum Revenue Appellate Authority, therefore, even if the petitioner has filed the appeal under section 76 before it, the same cannot be said to be irregular and it can be treated that the revision was filed while mentioning a wrong provision. It is also argued by the learned counsel for the petitioner that this Court can also treat the second appeal preferred by the petitioner before the Board of Revenue as revision and convert it into the same as such.
In support of the above contentions, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 6 in Budhia Swain vs. Gopinath Deb, AIR 1999 SC 2089; Pepsi Foods Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128; Ram Prasad Rajak vs. Nand Kumar & Bros., AIR 1998 SC 2730; Ramesh Chandra Sankla Etc; Ratan Singh Rathore; Vikram Cement vs. Vikram Cement Etc; Vikram Cement; Hemant Kumar Jain, AIR 2008 SCW 7923; Col Anil Kak vs. Municipal Corporation Indore, AIR 2007 SCW 1104 and Assistant Commissioner of Central Excise, Hyderabad vs. Sabnife Power Systems Ltd., 2002(9) SCC 389.
It is not in dispute that neither the State nor the respondent No.5 have raised any objection regarding maintainability of the appeals filed by the petitioner before the Revenue Appellate Authority as well as the Board of Revenue. The courts below have also not raised any objection regarding the maintainability of the appeals filed by the petitioner. Hence, in such circumstances, without going into this aspect of the matter, I have decided to examine the case on merits keeping the question of maintainability of such appeals left open to be decided in some S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 7 appropriate proceedings.
Necessary facts for adjudication of the controversy involved in this matter is that on 18.09.2000, allotment authority alloted 25 Bighas of command land of Murabba No.171/57 of Chak 5KD, Tehsil Gharsana, District Sri Ganganagar to the respondent No.5 on a cost of Rs.6,59,625/-. Being aggrieved with this, the petitioner preferred an appeal before the Revenue Appellate Authority on 14.09.2004 under Section 75 of the Act of 1956 along with an application under Section 5 of the Limitation Act with a prayer for condoning the delay in filing the appeal. The Revenue Appellate Authority vide order dated 25.05.2006 while condoning the delay in filing the appeal dismissed the said appeal. Being aggrieved with the order passed by the Revenue Appellate Authority, the petitioner had preferred second appeal before the Board of Revenue, however, the same has been dismissed by it vide order dated 30.11.2015. Hence, this writ petition.
Learned counsel appearing for the petitioner has argued that when the respondent S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 8 No.5 had applied for allotment of 25 Bighas of land of Murabba No.171/57 of Chak 5KD, the same was not available for allotment, therefore, the application filed by the respondent No.5 itself was perse illegal. It is submitted that as a matter of fact the petitioner had filed a revenue suit under Section 92A and Section 88 of the Rajasthan Tenency Act, 1955 (hereinafter referred to as 'the Act of 1955') in the Court of Dy. District Collector, Anoopgarh with a prayer for conferment of Khatedari right for 25 Bighas of land of Murabba No.171/57 along with other lands. Along with the said revenue suit the petitioner has preferred an application under Section 212 of the Act of 1955 seeking interim injunction but the same was dismissed by the Dy. District Collector, Anoopgarh. Against which he had preferred an appeal before the Revenue Appellate Authority, which vide order dated 20.06.1998 ordered for maintaining status quo in respect of the land of Murabba No.171/57. However, during the operation of that stay the alloting authority had alloted the said land in favour of the respondent No.5 illegally.
S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 9 It is also argued that before allotment of the land of Murabba No.171/57 in favour of the respondent No.5, the authority did not follow the procedure of allotment as provided under the Rules of 1975. It is argued that in fact, no notice inviting applications for allotment was ever issued by the allotting authority and, therefore, the allotment made in favour of the respondent No.5 is perse illegal and the same is liable to be quashed and set aside.
In support of above contentions, learned counsel for the petitioner has placed reliance on a decision of this Court rendered in Common Cause, A Registered Society Vs. Union of India & Ors. reported in 1996 (6) SCC 530 and a decision of Hon'ble Supreme Court rendered in Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh & Ors. reported in AIR 2011 SCW 2346.
Per contra, learned counsel appearing for the respondent No.5 has submitted that there is no illegality in the action of the Allotment Advisory Committee of allotting 25 Bighas of land of Murabba No.171/54 of Chak 5KD in favour of the respondent No.5 vide order dated S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 10 18.09.2000. Learned counsel for the respondent No.5 has further submitted that simply because the petitioner filed a suit for conferment of Khatedari right to him in respect of the land of Murabba No.171/57 of Chak 5KD, it cannot be said that the said land was not available for allotment. It is also argued that as a matter of fact the fate of the revenue suit filed by the petitioner is not known because now the petitioner has again filed a revenue suit in the year 2005 seeking declaration of Khatedari rights in 25 Bighas of land of Murabba No.171/57 of Chak 5KD and other lands and in that revenue suit no stay order is in operation. It is submitted that the appeal filed by the petitioner before the revenue appellate authority wherein interim stay for maintaining status quo in respect of land of Murabba No.171/57 was granted is also not surviving today, therefore, the challenge of petitioner to the allotment of land to the respondent No.5 is not sustainable.
It is further argued by learned counsel for the respondent No.5 that a public notice S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 11 inviting applications was duly published and pursuant to that the respondent No.5 along with two other persons have applied for allotment of the land in question. However, later on, the two other applicants viz. Vimla and Mahaveer have shown their unwillingness for allotment of the said land, their applications were rejected and only one application of respondent No.5 was there before the Allotment Advisory Committee and the said committee after verifying the eligibility of the respondent No.5 alloted the said land in his favour. Learned counsel for the respondent No.5 has, therefore, prayed that the writ petition filed by the petitioner is bereft of any merit and the same is liable to be dismissed.
Heard learned counsel for the petitioner and perused the material available on record.
The main contention of learned counsel for the petitioner in this writ petition is this that before issuance of notification by the State Government under Rule 13A of Rules of 1975 for allotment of land of Murabba No.171/57 of Chak 5KD the allotting authority did not issue S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 12 any public notice in Form No.XVIII inviting applications from interested persons. It is also argued that other formalities prescribed under Sub-rule (2) of Rule 13A of Rules of 1975, were also not complied with by the allotting authority and, therefore, the allotment made in favour of the respondent No.5 is perse illegal.
It is not in dispute that the State Government issued notification dated 24.11.1990, which was published in the official gazette on 15.01.1991, whereby the 25 Bighas of land of Murabba No.171/57 of Chak 5KD was notified for special allotment. Along with the reply to the writ petition, the respondent No.5 has annexed photostat of application filed by him for allotment of 25 Bighas of land of Murabba No.171/57 of Chak 5KD. The said application was submitted by him on 10.12.1997.
Learned counsel for the petitioner has failed to controvert the contention of learned the counsel for the respondent No.5 to the effect that along with the respondent No.5 two other persons viz. Vimla and Mahaveer have also applied for special allotment of 25 Bighas of S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 13 land of Murabba No.171/57 of Chak 5KD, however, as they have withdrawn their applications, the allotment committee has allotted the land to the respondent No.5.
From the uncontroverted fact that two other persons have also applied for allotment of land in question before the allotment committee, it can be concluded that the allotting authority had invited applications for special allotment of 25 Bighas of land of Murabba No.171/57 of Chak 5KD.
This Court is of the opinion that mere filing of suit for conferment of Khatedari rights for the land of Murabba No.171/57 by the petitioner before the Dy. District Collector, Anoopgarh in the year 1998, will not entitle him to stall or halt the allotment of the said land by way of special allotment.
Otherwise also from the perusal of the stay order passed by the Revenue Appellate Authority, photostat of which annexed as Annexure-4 of writ petition, there is no mention of Murabba No.171/57 in the said order. Moreover, as per the averments made in the writ petition, the S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 14 said stay order was in currency up to 30.04.2012 only and, therefore, the allotment made in favour of the respondent No.5 cannot be cancelled at this stage on the basis of the stay order passed by the Revenue Appellate Authority.
It is also important to note here that in S.B. Civil Writ Petition No.124/2016, the petitioner has challenged the allotment of 25 Bighas of land of Murabba No.170/64 of Chak 5KD to one Smt. Maghi Bai, wherein an additional affidavit has been filed by the son of petitioner, in which he has disclosed that the record of the revenue suit filed by him in the year 1988 was burnt in Kisan agitation and in the year 2005 he filed a fresh revenue suit for conferment of Khatedari rights in land of Murabba No.171/57 with the other land also. However, in the said affidavit he has not disclosed that any stay order is in operation in that revenue suit filed by the petitioner in the year 2005.
The fact remains that fate of the revenue suit filed by the petitioner in the year 1998 is not known. The petitioner has also not disclosed S.B. CIVIL WRIT PETITION NO.14169/2015 Ami Lal V/S Board of Revenue Ajmer & Ors. 15 whether the appeal filed by him before the revenue appellate authority, wherein order for maintaining status quo regarding the land of Murabba No.171/57 was passed, is still pending or surviving and the petitioner has also not disputed that in the revenue suit filed by him in the year 2005, no stay is operating.
It is also not in dispute that the
respondent No.5 has already deposited 35%
reserve price i.e. Rs.2,30,870/- within the
prescribed time i.e. 17.10.2000.
In view of the above discussions, the
petitioner has failed to make out a case for interference in this writ petition.
Hence, this writ petition is dismissed. Stay petition also stands dismissed.
[VIJAY BISHNOI],J.
Abhishek