Rajasthan High Court - Jodhpur
Heera Ram vs B.O.R. & Ors on 22 September, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CIVIL WRIT (CW) No.1867 of 1997
PETITIONER:
Heera Ram s/o of Shri Shivji Ram by
caste Jat aged about 60 years resident of
chak 3 K.P.M. Tehsil Chattargarh
District Bikaner.
Versus
RESPONDENTS:
1.Board of Revenue Rajasthan, Ajmer.
2.The Commissioner Colonisation cum R.A.R.,
I.G.N.P., Bikaner.
3.Assistant Commissioner Colonisation,
I.G.N.P. Chatargarh No.1 District Bikaner.
4.State of Rajasthan through Secretary Revenue/
Colonisation Department, Government of
Rajasthan, Jaipur.
Date of Order: 22.9.2016
HON'BLE MR.SANGEET LODHA,J.
Mr. A.K.Singh,for the Petitioners.
Mr. A.R.Godara, Deputy Government Counsel.
ORDER
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1. This writ petition is directed against order dated 2 18.3.97 passed by the Board of Revenue, Rajasthan, whereby the revision petition preferred by the petitioner under Rule 23 (2) of the Rajasthan Colonisation (Allotment & Sale of Government Land in the Indira Gandhi Canal Area), Rules, 1975 (in short "the Rules of 1975" hereinafter) against the order dated 25.11.92 of the Colonisation Commissioner, Bikaner, cancelling the allotment of small patch land made in favour of the petitioner vide order dated 5.9.87 by the allotting authority, stands dismissed.
2. The background facts in nutshell are that the petitioner was allotted 18 bighas command land in Chak 3 KPM i.e. 11 bighas comprising Murabba No.127/45 Kila No. 1,2,8 to 16, 2 bighas comprising Murabba No.127/53 Kila No. 19 & 20, 2 bighas comprising Murabba No.127/36 Kila No.24 & 25 and 3 bighas comprising Murabba No.127/35 Kila No. 3 to 5. The petitioner applied for allotment of un-command land measuring 8 bighas 6 biswas comprising Murabba No. 127/45 and 2 bighas 12 biswas comprising Murabba No.127/53 as small patch. The land was allotted in favour of the 3 petitioner vide two separate orders dated 5.5.87 issued by the Allotting Authority. However, the Commissioner, Colonisation issued notice dated 18.7.91 under Rule 22 (3) of the Rules of 1975 to the petitioner, initiating proceedings suo moto for cancellation of the allotment made. The allotment made as aforesaid were cancelled vide order dated 25.11.92, holding that the land allotted to the petitioner does not fall within the category of small patch land.
3. Aggrieved thereby, the petitioner preferred a revision petition before the Board of Revenue Rajasthan under Rule 23 (2) of the Rules of 1975. The Board of Revenue arrived at the finding that the land ad- measuring 11 bighas comprising Murabba No.127/45 was allotted in favour of the petitioner earlier and the remaining land 13 bighas 6 biswas un-command land does not fall within the category of small patch land and therefore, out of the said land, 8 bighas and 6 biswas of land allotted in favour of the petitioner was ex-facie illegal. The contention of the petitioner that out of 13 bighas and 6 bighas land comprising Murabba No.127/45, 4 5 bighas land stood allotted to one Shri Shahabuddin and therefore, the remaining land 8 bighas and 6 biswas falls within the category of small patch land, was not accepted by the Board of Revenue, keeping in view the fact that allotment in favour of Shahabuddin was made vide order dated 16.9.88, subsequent to the allotment made in favour of the petitioner. Accordingly, the revision petition has been dismissed. Hence, this petition.
4. At the outset, learned counsel appearing for the petitioner submitted that the petitioner does not want to press his claim in respect of the land ad-measuring 2 bighas and 12 biswas un-command land comprising Murabba No.127/53 in Chak 3 KPM. Learned counsel submitted that it is true that the petitioner was initially allotted 11 bighas land comprising Murabba No. 127/45 as an oustee of Mahajan Field Firing Range (MFFR), but then, the finding arrived at by the Board of Revenue that the remaining 13 bighas and 6 biswas land comprising Murabba 127/45 does not fall within the definition of small patch land, is absolutely incorrect. Learned counsel urged that 5 bighas land was allotted in favour of 5 Shahabuddin vide order dated 16.9.88 recognising his right under Section 15 AAA of the Rajasthan Tenancy Act, 1955, ('the Act of 1955') and therefore, even at the time of initial allotment in favour of the petitioner of 11 bighas land, the said land allotted in favour of Shahabuddin was not available for allotment and thus, the remaining 8 bighas and 6 biswas land was rightly allotted to the petitioner as small patch land. Learned counsel urged that the Board of Revenue has seriously erred in observing that since the allotment in favour of Shahabuddin was made subsequent to the allotment made in favour of the petitioner and therefore, as on the date of the allotment in favour of the petitioner, the disputed land was not available for allotment as small patch. Accordingly, learned counsel submitted that the order impugned passed by the Board of Revenue affirming the order passed by the Colonisation Commissioner cancelling the allotment made in favour of the petitioner, is ex-facie erroneous and deserves to be set aside.
5. On the other hand, the Deputy Government Counsel 6 submitted that the maximum 5 bighas command land or 10 bighas un-command land could be allotted in favour of an agriculturist, as small patch land. Learned counsel urged that admittedly, vide two separate orders dated 5.5.87, the allotment of 10 bighas and 6 biswas un- command land made in favour of the petitioner was ex- facie illegal. Learned counsel submitted that 5 bighas land comprising Murabba No. 127/45 was allotted in favour of Shahabuddin vide order dated 16.9.88 and therefore, it cannot be disputed that as on the date of the allotment of the land in favour of the petitioner, the land available in Murabba No. 127/45 was 13 bighas and 6 biswas, which does not fall within the definition of small patch and therefore, the Board of Revenue has committed no error in affirming the order passed by the Commissioner Colonisation in exercise of the power conferred under Rules 22 of the Rules of 1975.
6. I have considered the rival submissions and perused the record.
7. Admittedly, the allotment and sale of Government land in IGNP area are governed by the Rules of 1975 7 which have been framed by the State Government in exercise of its powers conferred by Section 7 read with Section 28 of the Rajasthan Colonisation Act, 1954. The "small patch" as defined under Rule 2(xvi) of the Rules of 1975 means a piece of land measuring 5 bighas of irrigated land or 10 bighas of un-irrigated land. As per second proviso to Rule 5 of the Rules of 1975, amongst the person eligible for allotment of Government land for agriculture purpose, if a person is eligible for allotment of a small patch, such small patch shall be allotted to him only if it is available adjacent to his existing holding. The allotment of small patch of land is governed by Rule 14 of the Rules of 1975 which is an exception carved out to the general allotment. The Rule 14 as it was existing at the relevant time when the allotment was made in favour of the petitioner, reads as under:-
"14. Allotment of small patch.-(1) Notwithstanding anything to the contrary contained in these rules, small patch of Government land may be allotted to a tenure tenant whose tenure land adjoins such patch, subject to the ceiling area at the highest prevailing market price for land of a similar soil class in the neighbourhood.
(2) In cases there are more than one such tenant applying for allotment of the same small patch, 8 allotment shall be made by drawal of lots amongst them.
(3) The price of such small patch shall be payable by the allottee in five annual instalments, the first instalment being payable within a fortnight of the order of allotment. The due date in respect of the second and subsequent instalments shall be the date of the year corresponding to the date on which the allotment was made. Interest at the rate of 9 per cent per annum shall be charged in default of payment of an instalment on the due date:
Provided that if such, small patch is allotted to a landless person to raise his holding to 25 bighas, the price and mode of payment shall be as prescribed in rule 17."
8. It is not in dispute that as on the date of allotment of a small patch in favour of the petitioner, he was holding 18 bighas of land and on account of allotment of un-command land measuring 8 bighas and 6 biswas comprising Murabba No. 127/45, the total land in the hands of the petitioner does not exceed the permissible limit. The petitioner has abandoned his claim regarding 2 bighas and 12 biswas land comprising Murabba No. 127/53 and therefore, only the legality of allotment of 8 bighas and 6 biswas land comprising Murabba No. 127/45 made in his favour remains to be examined by this Court.
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9. It is not in dispute that if the land in question falls within the definition of small patch land, the petitioner's tenure land being adjoining to the land in question in the same Murabba, the petitioner was entitled for allotment of the said land as small patch. Precisely, the allotment of 8 bighas and 6 biswas land comprising Murabba No. 127/45 in favour of the petitioner has been held to be illegal by the Commissioner Colonisation on the ground that after allotment of 11 bighas land comprising Murabba No.127/45 initially, the remaining land comprising Murabba No.127/45 was 13 bighas and 6 biswas and not 8 bighas and 6 biswas as claimed by the petitioner, which does not fall within the definition of small patch land as set out in Rule 2(xvi) of the Rules of 1975. But then, it is not in dispute that Shahabuddin was allotted 5 bighas of land comprising Murabba No. 127/45 vide order dated 16.9.88 recognising his right under Section 15 AAA of the Act of 1955 and thus, the allotment order issued is only recognition of his existing right over the land in question by virtue of provisions of Section 15 AAA of the Act of 1955. In this view of the 10 matter, in the considered opinion of this Court, the Board of Revenue has erred in affirming the order passed by the Commissioner Colonisation holding that the land having been allotted in favour of Shahabuddin subsequent to the allotment of the land in favour of the petitioner as small patch, the land available in Murabba No. 127/45 for allotment, as on the date the allotment was made in favour of the petitioner does not fall within the definition of small patch land. Suffice it to say that the right having accrued in favour of Shahabuddin in respect of the land measuring 5 bighas comprising Murabba No. 127/45, the same could not have been considered to be available for allotment as on the date of allotment of 8 bighas and 6 biswas of land in favour of the petitioner.
10. There is yet another aspect of the matter, the claim of the petitioner for 8 bighas and 6 biswas land as small patch as on the date is not in dispute. Admittedly, after the allotment made as aforesaid, the petitioner is cultivating the land in question for last 29 years and thus, at this stage, when the petitioner's entitlement for 11 allotment of the land in question adjoining to his existing holding as small patch land, is not in dispute, it will be unjust to interfere with the allotment made in favour of the petitioner on technical ground.
11. In view of the discussion above, the order impugned of the Board of Revenue to the extent affirming the order passed by the Commissioner Colonisation cancelling the allotment of 8 bighas and 6 biswas land comprising Murabba No. 127/45, is not sustainable in the eyes of law.
12. In the result, the writ petition is partly allowed. The order impugned passed by the Board of Revenue dated 18.3.97 and the order of Commissioner Colonisation dated 25.11.92 so far the same relate to cancellation of the allotment of 8 bighas and 6 biswas of land comprising Murabba No.127/45 in Chak 3 KPM made in favour of the petitioner as small patch, are set aside. The allotment of the said land made in favour of the petitioner shall stand restored. However, the orders impugned so far as the same relate to cancellation of allotment of 2 bighas and 12 biswas land comprising Murabba No. 127/53 in Chak 3 12 KPM in favour of the petitioner are maintained. No order as to costs.
(SANGEET LODHA),J.
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