Rajasthan High Court - Jodhpur
Ami Lal & Ors vs Board Of Revenue Ajmer & Ors on 9 August, 2016
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B. CIVIL WRIT PETITION NO.14110/2015
Ami Lal & Ors. 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.14110/2015
Ami Lal & Ors. 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 petitioners.
Mr D.S. Rajvi ]
Mr Rajesh Saharan ], for the respondent No.4/1.
BY THE COURT :-
This writ petition has been filed by the petitioners being aggrieved with the order dated 30.11.2015 passed by the Board of Revenue, Rajasthan, Ajmer, whereby the revision petition filed by the petitioners under Section 230 read with Section 221 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act of 1955') has been dismissed. The petitioners have also challenged the orders dated 02.05.2000 and 16.06.2000 passed by the District Collector, Sri Ganganagar, whereby the District Collector, Sri Ganganagar has declared the entitlement of one Smt. Maghi Bai for allotment of 25 Bighas of command land and directed the Allotment Advisory S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 2 Committee to allot the 25 Bighas of land of Murabba No.170/64 of Chak 5KD in favour of her after completing the formalities.
Facts necessary for adjudication of present case are that Maghi Bai filed an application under section 15AAA of the Rajasthan Tenancy Act, 1955 (in brevity, the Act of 1955' hereinafter) before the Assistant Colonisation Commissioner, Chhatargarh No.1 in the year 1980 with a prayer for conferment of khatedari rights upon her for 75 Bighas of land of Chak 5KD and Chak 1 BPSD falling in Murabba Nos.170/64, 191/1 171/57 and Murabba No.191/1 respectively. The said application filed by the petitioner No.1 was dismissed on 20.03.1985. Being aggrieved with the order dated 20.03.1985, Maghi Bai preferred an appeal before the Additional Colonisation Commissioner, Revenue Appellate Authority, Bikaner, which was allowed and the matter was remanded to the Assistant Colonisation Commissioner for deciding her claim afresh.
Meantime, power of conferment of khatedari rights under section 15AAA of the Act of 1955 S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 3 were given to the Tehsilder concerned and the matter was taken up by Tehsildar, Gharsana. The Tehsildar, Gharsana rejected the application of Maghi Bai vide order dated 01.06.1994.
Being aggrieved with the order dated 01.06.1994, Maghi Bai filed an appeal before the Additional District Collector, Sri Gangangar, who vide order dated 02.05.2000 partly allowed the said appeal and held that Maghi Bai has failed to prove her possession over the said land prior to year 1955, however, her cultivatory possession over the demanded land is proved after the year 1955 and, therefore, she is entitled for allotment of 25 Bighas of land on payment and held that remaining 50 Bighas of land be resumed in the State.
The Additional District Collector, Sri Ganganagar quashed the order dated 01.06.1994 passed by the Tehsildar Gharsana and ordered for permanent allotment of 25 Bighas of land of Murabba No.171/57 of Chak 5KD on payment to Smt. Maghi Bai. Thereafter, she moved an application before the Additional District Collector, Sri Ganganagar and prayed that she may be allotted S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 4 25 Bighas of land of Murabba No.170/64 instead of Murabba No.171/57. The Additional District Collector, Sri Ganganagar disposed of the said application vide order dated 16.06.2000 and ordered that the petitioner No.1 may be allotted 25 Bighas of land in Murabba No.170/64 instead of Murabba No.171/57, however, he modified his earlier order dated 02.05.2000 while observing that since the allotment is to be made by the Allotment Advisory Committee, the case of Smt. Maghi Bai be placed before the said committee, which would allot the land to her after receiving an application from her.
Being aggrieved with the orders dated 02.05.2000 and 16.06.2000 passed by the District Collector, the petitioners had preferred a revision petition before the Board of Revenue claiming that the District Collector while exercising powers under the provisions of Act of 1955 has no jurisdiction to order for allotment of land to any person under the provisions of Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 5 Colony Area) Rules, 1975 (hereinafter referred to as 'the Rules of 1975'), as both the Statutes are separate and under the Rules of 1975, the District Collector has no authority to direct the allotment committee to allot the land in favour of any person. It was also argued on behalf of the petitioners before the Board of Revenue that a stay was granted in favour of him in the matter by the Revenue Appellate Authority and, therefore, the District Collector has no jurisdiction to direct the Allotment Advisory Committee to allot 25 Bighas of land of Murabba No.170/64 in favour of Smt. Maghi Bai. The Board of Revenue, after hearing learned counsel for the petitioners, has rejected the revision petition filed by the petitioners while observing that there is no illegality in the orders passed by the District Collector. Being aggrieved with this, the petitioners have filed this writ petition.
Learned counsel for the petitioners has argued that the District Collector has no jurisdiction to order for allotment of 25 Bighas of land of Murabba No.170/64 of Chak 5KD under S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 6 the provisions of Rules of 1975, particularly when the District Collector was hearing an appeal in the matter of Act of 1955. It is also argued that in fact the Revenue Appellate Authority in an appeal preferred by the petitioners bearing No.102/1998 ordered for maintaining status quo in respect of the land in question and in the year 2000, hence, the direction issued by the District Collector of allotting 25 Bighas of land of Murabba No.170/64 of Chak 5KD to Smt. Maghi Bai was illegal.
Learned counsel for the petitioners has further argued that in a revision petition filed by the petitioner No.1 before the Board of Revenue, he moved an application on 12.10.2001 with a prayer that the thumb impressions of Smt. Maghi Bai affixed on the application under Section 15AAA of the Act of 1955 as well as on the power of attorney executed in favour of one Sahab Ram, are different and, therefore, the same may be sent for examination to the Handwriting Expert. It is submitted that ultimately the said application of the petitioner No.1 was rejected by the Board of S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 7 Revenue vide order dated 05.08.2003, against which the petitioners preferred S.B. Civil Writ Petition No.4967/2003 before this Court and the said writ petition was disposed of vide order dated 27.08.2003 while observing that "The SDO while comparing, if requires the documents, which the petitioner filed, are necessary, the petitioner may plead before SDO who may call for those documents from concerned office / court." It is submitted that against the order dated 27.08.2003, Smt. Maghi Bai had preferred D.B. Civil Special Appeal (W) No.598/2003 before the Division Bench of this Court, however, during the pendency of the appeal, Smt. Maghi Bai died and an application was moved on behalf of the respondent No.4/1 Mahesh Kumar through general power of attorney holder Sahab Ram for substitution of him in place of Smt. Maghi Bai and the said appeal was disposed of by the Division Bench of this Court on 05.10.2010 with the observations that the main and ancillary questions involved in relation to the land are to be tried by the Board of Revenue in the pending revision, then in such circumstances it S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 8 would be just and proper to direct the Board of Revenue to decide the said revision finally on merits after affording an opportunity to all parties concerned in accordance with law. It is also observed that during the pendency of this litigation Smt. Maghi Bai died and, therefore, effect of her death and the persons who claim to be her legal representatives shall also be decided by the Board of Revenue while deciding the said revision on merits.
Learned counsel for the petitioners has submitted that though the Division Bench of this Court has given a specific direction to the Board of Revenue to decide the question regarding the legal representatives of Smt. Maghi Bai, but the Board of Revenue while passing the order dated 30.11.2015 did not decide the question of legal representatives of Smt. Maghi Bai and as such not complied with the direction given by this Court. It is prayed that in view of the fact that the Board of Revenue did not decide the revision petition as per the directions given by this Court, the impugned order passed by the Board of Revenue is liable S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 9 to be set aside on this ground also.
Learned counsel for the petitioners has, therefore, argued that the order passed by the Board of Revenue as well as the District Collector are liable to be dismissed.
Per contra, learned counsel appearing for the respondent No.4/1 has argued that there is no illegality in the order passed by the District Collector as Smt. Maghi Bai was entitled for allotment of 25 Bighas of command land on the basis of her old possession and the District Collector has simply directed the Allotment Advisory Committee to allot the 25 Bighas of land of Murabba No.170/64 of Chak 5KD to her after completing formalities. It is submitted that the petitioners have failed to prove that Smt. Maghi Bai was not entitled for allotment of 25 Bighas of land as per Section 15AAA of the Act of 1955 and in such circumstances, the challenge of the petitioners to the allotment of land to Smt. Maghi Bai is not sustainable.
It is also argued that though the Division Bench of this Court had given a direction to the S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 10 Board of Revenue to take a decision regarding the claim of respondent No.4/1 that whether he is legal representative of deceased Smt. Maghi Bai or not, but as no objection was ever raised by the petitioner before the Board of Revenue, the Board of Revenue has rightly treated the respondent No.4/1 as legal representative of deceased Smt. Maghi Bai.
It is also pointed out by learned counsel for the respondent No.4/1 that the petitioner is claiming his right over 25 Bighas of land of Murabba No.170/64 on the ground that he was in possession of the said land as Smt. Maghi Bai has gave him the said land for cultivation way back in the year 1965 and he is cultivating the said land as subtenant, therefore, he became Khatedar of the above mentioned land on the basis of adverse possession.
Learned counsel appearing for the respondent No.4/1 has further submitted that the petitioner has also come out with the case that he has already filed a suit for declaration in the Court of Dy. District Collector, Anoopgarh with a prayer for declaring him Khatedar of 25 S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 11 Bighas of land allotted to Smt. Maghi Bai, however, from the perusal of Revenue Suit No.67/1988 filed by the petitioner before the Dy. District Collector, Anoopgarh, it is clear that he had not prayed for declaring him as Khatedar of 25 Bighas of land of Murabba No.170/64 of Chak 5KD, and prayed for declaring him as Khatedar of land of Murabba Nos.170/64, 171/54 of Chak 5KD and 191/1 of Chak 1BPSB only. Learned counsel for the respondent No.4/1 has, therefore, submitted that from any point of view the claim of the petitioner for the land in question cannot be said to be maintainable as he has not prayed for declaring himself as Khatedar of 25 Bighas of land of Murabba No.170/64 of Chak 5KD and as such is not entitled to get any relief from this Court.
In response to the argument of learned counsel for the respondent No.4/1, the petitioner had not sought any declaration from the Revenue Court to declare him as Khatedar of 25 Bighas of land of Murabba No.170/64 of Chak 5KD, learned counsel for the petitioner filed an additional affidavit of Jagdish S/o Ami Lal S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 12 dated 27.07.2016, in which it is averred that though the petitioner has filed a revenue suit in the Court of Dy. District Collector, Anoopgarh in the year 1998, but the record of the said suit was destroyed in fire took place during Kisan agitation in the year 2004 and, therefore, the petitioner filed a fresh revenue suit before the Dy. District Collector, Gharsana in the year 2005 and in the said suit, he prayed that he may be declared as Khatedar of 25 Bighas of land of Murabba No.170/64 of Chak 5KD along with the other land, which was mentioned in the suit filed by him in the year 1998. Learned counsel for the petitioner has, therefore, prayed that since the petitioner had already filed a suit for declaring him Khatedar and prayed for granting him Khatedari rights for 25 Bighas of land of Murabba No.170/64 of Chak 5KD, he cannot be non-suited on the ground that he had not sought Khatedari rights of 25 Bighas of land of Murabba No.170/64 of Chak 5KD.
Heard learned counsel for the parties and perused the impugned orders as well as the material available on record.
S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 13 It is not in dispute that at the time of passing of orders by the Additional District Collector on 02.05.2000 and 16.06.2000, the petitioners did not claim Khatedari rights in the said land. The petitioner No.1 had filed a revenue suit in the Court of Dy. District Collector, Anoopgarh for declaring him as Khatedar of 58 Bigha land falling in Murabba No.151/54, 171/57 and 191/1 of Chak 5KD only and had not claimed Khatedari rights in land of Murabba No.170/64 which was alloted to Smt. Maghi Bai. The same is evident from perusal of the photostat of revenue suit filed by the petitioner, copy of which is annexed with the reply of the respondent No.4/1 as Annexure- R/4/1/1 in another S.B. Civil Writ Petition No.124/2016 filed by the petitioner No.1.
The Additional District Collector, Sri Ganganagar vide order date 02.05.2000 found that Smt. Maghi Bai is entitled for allotment of 25 Bighas of land on payment as she has proved her possession over the land of Murabba Nos.170/64, 171/57 and 191/1 Chak 5KD and Murabba No.191/1 of Chak 1BPSB. Initially, the S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 14 Additional District Collector, Sri Ganganagar ordered for allotment of 25 Bighas of land of Murabba No.171/57 to Smt. Maghi Bai, however, later on, while allowing the application of Smt. Maghi Bai, has observed that the land of Murabba No.170/64 measuring 25 Bighas be allotted to her. The Additional District Collector, Sri Ganganagar while passing the order dated 16.06.2000 also observed that since the allotment is to be made by the Allotment Advisory Committee, it directed the Allotment Advisory Committee to allot the land to Smt. Maghi Bai after completing the formalities.
Section 15AAA of the Act of 1955 is regarding the accrual of Khatedari rights in Indra Gandi Canal Area. The land alloted to Smt. Maghi Bai falls in Indra Gandi Canal Area. Learned counsel for the petitioner has failed to satisfy this Court as to how Smt. Maghi Bai was not entitled for allotment of 25 Bighas of land on the basis of her possession over the said land after the year 1955 as per the provisions of Section 15AAA of the Act of 1955.
This Court is of the opinion that once the S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 15 Additional District Collector, Sri Ganganagar has found Smt. Maghi Bai entitled for allotment of 25 Bighas of land, he could have ordered for conferment of Khatedari rights to Smt. Maghi Bai himself but instead of it if he has directed the Allotment Advisory Committee to allot her 25 Bighas of land after completing the formalities then also it cannot be held that he has committed any illegality. Once the entitlement of Smt. Maghi Bai for allotment of land was established it cannot be cancelled on mere technicalities.
Moreover, except the petitioner, no other person has objected the allotment of 25 Bighas of land to Smt. Maghi Bai. The petitioner has also not claimed for declaration of Khatedari rights of 25 Bighas of land of Murabba No.170/64 of Chak 5KD in the revenue suit filed by him in the year 1998, though, in the year 2005 by way of fresh revenue suit he sought declaration of Khatedari rights for land allotted to Smt. Maghi Bai along with other lands, but fact remains that at the time of allotment of 25 Bighas of land of Murabba No.170/64 Chak 5KD in the year S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 16 2000 no claim of the petitioner was pending for such land.
So far as argument of learned counsel for the petitioner to the effect that the Board of Revenue did not decide the revision petition as per the directions given by the Division Bench of this Court vide order dated 05.10.2010 is concerned, I do not find any merit in this argument because the petitioner has not raised any objection about the substitution of the respondent No.4/1 as legal representative of late Smt. Maghi Bai before the Board of Revenue then there was no occasion for the Board of Revenue to decide the said question. If any objection was raised by the petitioner before the Board of Revenue about the substitution of respondent No.4/1 as legal representative of late Smt. Maghi Bai and if the Board of Revenue would not have decided the same, then only it can be concluded that the Board of Revenue has not decided the revision petition as per the directions given by the Division Bench of this Court. However, as stated earlier, when the petitioner did not raise any objection about the S.B. CIVIL WRIT PETITION NO.14110/2015 Ami Lal & Ors. V/S Board of Revenue Ajmer & Ors. 17 substitution of respondent No.4/1 as legal representative of late Smt. Maghi Bai before the Board of Revenue, it has no occasion to decide the said question.
From the above also it cannot be said that the Board of Revenue has passed the impugned order without complying the directions issued by this Court.
In view of the above discussions, no case for interference in the impugned orders passed by the Collector as well as the Board of Revenue is made out at the instance of the petitioner.
Accordingly, this writ petition is dismissed.
No order as to costs.
Stay petition also stands dismissed.
[VIJAY BISHNOI],J.
Abhishek