Jaipur Development Authority vs Gopal S/O Rood Mal on 21 April, 2022

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Rajasthan High Court - Jaipur

Jaipur Development Authority vs Gopal S/O Rood Mal on 21 April, 2022

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 21/04/2022 This writ petition under Article 227 of the Constitution of India has been filed assailing the legality and validity of the judgment dated 17.01.2020 passed by the Board of Revenue for Rajasthan, Ajmer (for brevity, 'the BoR') dismissing the (Downloaded on 22/04/2022 at 10:24:56 PM) (2 of 11) [CW-14676/2020] Appeal/LR/1753/2016 preferred by the petitioner against the judgment dated 29.10.2015 passed by the Revenue Appellate Authority, Jaipur in Appeal No.30/2012/75 LR Act whereby the appeal preferred by the respondents against the judgment dated 29.03.2003 passed by the Additional Collector (VI), Jaipur cancelling allotment of the land in question in their favour, was allowed.

The facts in brief are that predecessor in interest of the respondents, Shri Rudmal S/of Sh. Kanaram, was allotted 15 bighas of land out of khasra no.5 Village Mothu Ka Bas, Tehsil Amber on 09.09.1958. Initially, gair khatedari rights were conferred which, with the passage of time, were converted into khatedari rights. The District Collector, Jaipur vide its order dated 04.09.1996, converted 7 bighas 10 biswa out of the aforesaid land for industrial purpose. The allotment was cancelled by the Additional Collector (VI), Jaipur vide its order dated 29.03.2003 on the premise that land allotted for agriculture purpose was not used so within the stipulated time. An appeal preferred by the respondents thereagainst was allowed by the Revenue Appellate Authority vide judgment dated 29.10.2015 which was unsuccessfully challenged by the petitioner before the BoR which has dismissed the appeal vide its judgment dated 17.01.2020, impugned herein.

Assailing the judgment, learned counsel for the petitioner contended that the BoR has failed to appreciate that allotment in favour of the predecessor in interest of the respondents was cancelled as he failed to cultivate the land, the purpose for which it was allotted to him, within the stipulated period. Drawing (Downloaded on 22/04/2022 at 10:24:56 PM) (3 of 11) [CW-14676/2020] attention of this Court towards the Rule 14(3) of the Rajasthan Land Revenue (Allotment of Land for Agriculture Purpose) Rules, 1970 (for brevity, 'the Rules of 1970'), he submitted that the allottee never applied for extension of time and hence, no fault could have been found with the order cancelling allotment. He, therefore, prayed that the writ petition be allowed and the impugned judgment be quashed and set aside.

Per contra, learned counsels for the respondents submitted that since the land allotted to the predecessor in interest of the respondents was embroiled in litigation from the very inception it was allotted, he could get its physical and peaceful possession only in the year 1967. They submit that there is concurrent finding that thereafter, the allottee cultivated the land in terms of allotment letter whereupon khatedari rights were also conferred upon him. They submit that in the year 1996, a part of the land was converted for industrial purpose by the competent authority. Learned counsels further submitted that it was not permissible for the authorities to have cancelled allotment made in the year 1958 after 41 years during the interregnum, a substantial improvement was made on the land in question by them. In this regard, they relied upon co-ordinate Bench judgments of this Court dated 26.08.2015 in S.B. Civil Writ Petition No.6733/2003: Radha Kishan vs. State & Ors. and dated 05.01.2017 in S.B. Civil Writ Petition No.3909/2001: Chiranji & Ors. vs. Board of Revenue, Ajmer & Anr.

Heard. Considered.

From the material on record, it is established that although the land in question was allotted in favour of the Rudmal S/o (Downloaded on 22/04/2022 at 10:24:56 PM) (4 of 11) [CW-14676/2020] Khanaram on 09.09.1958; but, on account of its involvement in the litigation(s) from the very inception, the allottee could get its physical possession only on 22.08.1967 depriving him to put the land in question to cultivation within the time as per the allotment letter. Even the learned counsel for the petitioner has admitted that till 1967, the allottee had symbolic possession only. It is not disputed that after getting its physical possession, the allottee cultivated it in terms of allotment letter and consequently came to be conferred khatedari rights. Submission of learned counsel for the petitioner based on Rule 14(3) of the Rules of 1970 does not require much deliberation as Rules were not in vogue at the relevant time. A perusal of the judgment dated 29.03.2003 passed by the Additional Collector (VI), Jaipur reveals that it is completely non-speaking one as except recording a single line finding that there was violation of terms of allotment, no reason has been assigned for cancelling allotment whereas, judgments passed by the Revenue Appellate Authority and the BoR are well reasoned and are based on cogent material on record. Learned counsel for the petitioner failed to point out any patent jurisdictional error or any perversity in the concurrent finding of facts recorded by the first and second appellate authority warranting interference of this Court in its limited supervisory jurisdiction vide Article 227 of the Constitution of India.

There is another important aspect of the matter. For cancelling the allotment made in the year 1958 on the premise that the land was not put to use for which it was allotted, proceedings were initiated in the year 1996, i.e. after lapse of about 38 years without any plausible reason for such inordinate (Downloaded on 22/04/2022 at 10:24:56 PM) (5 of 11) [CW-14676/2020] delay. The material on record also establishes that in the meanwhile, almost half of the land in question was converted for industrial purpose under the order of the competent authority. It is also on record that part of the land in question was also transferred through registered lease deed for 99 years in favour of third person.

A co-ordinate Bench of this Court in case of Radha Kishan (surpa), in identical situation, held as under:

"12. The District Collector in its order dated 6.9.2000 has held that the SDO had no authority to make allotment on recommendation by the Allotment Committee and, therefore, his order was without jurisdiction and was liable to be cancelled. The Revenue Appellate Authority in its order taken note of the fact that under the Allotment Rules of 1970, SDO is the head of the Allotment Committee. Neither Tehsildar or SDO has authority to change the nature of the land. The Board of Revenue has also concurred with the view of the SDO.

13. The Supreme Court in Brij Lal, supra although noted that at the time when allotment of land was made in favour of petitioner, he was minor and, therefore, allotment was not proper, but considering that he was cultivating the land for about two decades now, it was held that it would be travesty of justice to dispossess him from the land.

14. The division bench in Pat Ram, supra has relied on the aforesaid judgement of Brij Lal, AIR 1994 Supreme Court 1128 supra. The facts in the case of Pat Ram, supra were somewhat similar wherein the allotment has been cancelled by the Collector. In that case, the allotment was alleged to have been obtained by fraud and Tehsildar made such allotment without consulting the Advisory Committee. The argument was rejected holding that there is no material on record to show that allotment was made by Tehsildar without consulting the Advisory Committee. Cancellation in that case was made 16 years after the allotment. The division bench has held that as per Rule 15 of the Rules, 1970, the khatedari rights can be conferred upon the allottee fulfilling the terms and conditions of allotment. Khatedari rights were conferred upon the (Downloaded on 22/04/2022 at 10:24:56 PM) (6 of 11) [CW-14676/2020] petitioner (in that case) in the year 1974 and after conferring the khatedari rights, the allotment cannot be cancelled on the ground that they violated any condition of allotment.

16. The Larger Bench of this Court in a recently delivered judgement in Tara & Ors., supra has expressed a similar opinion. In taking that view, the Larger Bench also referred to the number of the Supreme Court judgements in State of Gujarat vs. Patel Raghave Natha & Ors.-AIR 1969 SC 1297, Mansa Ram vs. S.P. Pathak & Ors.-AIR 1983 SC 1239, State of Punjab vs. Bhatinda District Cooperative Milk Producers Union Ltd.-(2007) 11 SCC 363 wherein one to three years have been held to be reasonable period.

17. The Larger Bench has also relied on Joint Collector Ranga Reddy District & Anr. vs. D. Narsing Rao & Ors.-(2015) 3 SCC 695 wherein it has been held that when no time limit has been prescribed under the Statute for invocation of certain power, such power must be exercised within a reasonable time. If the power is allowed to be exercised after decades, it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. Absence of any period of limitation does not mean that the power can be exercised at any time, which will make the exercise of power arbitrary and opposed to the concept of Rule of Law. What however shall be the reasonable period, would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. The Larger Bench even went to the extent of holding that "even if the fraud is alleged, the power must not be exercised after unreasonable period, such as, several decades claiming rights over the land."

18. The Supreme Court in State of Punjab & Ors. vs. Bhatinda District Cooperative Milk Producers Union Ltd., supra dealing with a question of delay held that although no period of limitation has been prescribed by Section 21 of the Punjab General Sales Tax Act, 1948, but the same would not mean that suo motu power can be exercised by the competent authority at any time. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period, would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. (Downloaded on 22/04/2022 at 10:24:56 PM)

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19. In the facts of the present case, the period of delay of 24 years, with which the application for cancellation of allotment has been filed by the respondent no.2 and has been accepted by Collector, cannot be regarded as reasonable delay. And counting from the date of allotment, the order of cancellation of allotment has been passed after unreasonable delay of 25 years, which period in itself is highly unreasonable. Petitioner was in cultivatory possession much prior to date of allotment and also during the aforesaid period of 25 years and thereafter continuously for last 15 years including the period of 12 years of pendency of this petition before this Court.

20. In view of above, the impugned orders passed by the Board of Revenue, Revenue Appellate Authority and District Collector cannot be sustained and are accordingly set aside. Petitioner is held entitled to retain the land in dispute."

Another co-ordinate Bench of this Court in case of Chiranji and Ors. (supra) wherein allotment made in favour of the petitioners under the Rules of 1970 after conferment of khatedari rights, was cancelled after lapse of about 21 years by the Additional Collector, Alwar under the Rule 14 of the Rules of 1970 on the premise that the allottee were not cultivating the allotted land, held as under:

"Considering the scope of sub-rule (4) of rule 14 of the Rules of 1970, the Division Bench of this Hon'ble Court in the case of Patram (supra) has observed as under:-

"11. The next question, which requires consideration, is: whether the Collector has powers under rule 14(4) of the Rules, 1970 to cancel the allotment of the land made in favour of the petitioners after the conferment of the Khatedari rights in their favour? The Khatedari rights conferred upon the tenant can be withdrawn only in accordance with the provisions of the Rajasthan Tenancy Act, 1955 and the Collector has no power under rule 14(4) of the Act to cancel the allotment made in favour of the petitioners with respect to the land in which the Khatedari rights have already been conferred upon them because after the conferment of the Khatedari rights, the applicability (Downloaded on 22/04/2022 at 10:24:56 PM) (8 of 11) [CW-14676/2020] of the Rules comes to an end. The powers under Sub-rule (4) of Rule 14 of the Rules, 1970 can be exercised by the Collector before conferment of the Khatedari rights and after the conferment of the Khatedari rights, the petitioners acquired all the rights for which they are entitled under the Rajasthan Tenancy Act and thereafter the provisions of Sub-rule (4) of Rule 14 of the Rules, 1970 has no application. The order, passed by the Collector, Bikaner, exercising its powers under Rule 14(4) of the Rules, 1970, is, therefore, without jurisdiction. The order passed by the learned Collector and the orders passed by the Revenue Appellate Authority and the Board of Revenue confirming the order passed by the Collector, therefore, deserve to be quashed and set-aside.

So far as the point regarding delay in cancelling allotment of land in favour of the petitioners by the respondents is concerned, the law is well settled that where the power has been conferred upon an authority to effectuate a purpose then that has to be exercised in a reasonable manner and within reasonable time. A Division Bench of this Hon'ble Court in the case of Patram (supra) has allowed the writ petition of the petitioners therein when there was a delay of 16 years. Mr. Dharmendra Pareek, the learned Addl. Government Counsel could not explain as to why reference was made after an inordinate delay of 21 years.

A Division Bench of this Court in the case of Anandi Lal vs. State of Rajasthan & Ors. 1996 (2) WLC (Raj.) 36 held asunder:-

"21. In view of the settled position of law, as stated above, simply because the provisions of Section 82 of the Act of 1956 and Section 232of the Act of 1955 do not provide for the period of limitation, it does not mean that the authority on whom the power is conferred, can invoke the same at any time. This is so because each and every authority on whom the power is conferred, is expected to exercise the same in just and reasonable manner. The concept of exercise of power in a reasonable manner inheres with it the concept of exercising the same within a reasonable time. If the power is not exercised within reasonable time, the invocation of the power after inordinate delay and the exercise of the same after unreasonable length of time, would be unjust, arbitrary and unreasonable. Therefore, the action taken by exercise of such power would be illegal and void. If the requirement of exercise of power within reasonable time is not read into the provisions of Section 82 of the Act of 1956 and (Downloaded on 22/04/2022 at 10:24:56 PM) (9 of 11) [CW-14676/2020] Section 232 of the Act of 1955, then the provision itself would become unconstitutional. It can never be presumed that the Legislature intended to confer power on any authority to exercise the same in unjust and unreasonable manner. Therefore, to uphold the constitutionality of the aforesaid provisions, the requirement of exercise of the same power within reasonable period has got to be read into the same.

22. In the case of The Government of India v. The Citedal Fine Pharmaceuticals, Madras reported in AIR 1989 SC 1771, the question arose as to the constitutional validity of Rule 12 of the Medicinal and Toilet Preparation (Excise Duties) Rules, 1956. The said Rule provided for residuary powers of recovery of sums due to Government. Since no period of limitation was prescribed, it was contended that the provision of Rule 12 was unreasonable and violative of Article 14 of the Constitution. The Supreme Court negatived the contention. Then in para 6 of the reported decision, the Supreme Court observed as follows:--

".... While it is true that Rule 12 does not prescribe any period within which recovery of any duty as contemplated by the Rules is to be made, but that by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period would depend upon the facts of each case."

23. The contention that the land was a Muafi Murti Mandir Land, therefore, the power could be exercised after any length of time, cannot be accepted. The question is not with regard to the nature of the land. The question which is required to be examined is as to whether the revisional power conferred upon the authority concerned under the provisions of Section 82 of the Act of 1956 and under the provisions of Section 232 of the Act of 1955, could be exercised after unreasonable period of time. As held by the Supreme Court in the aforesaid decisions, the power could be exercised within reasonable time whenever the statute does not provide for the period of limitation. What would be the reasonable period, would depend up on the facts of the case and the nature of the order sought to be revised.

24. In our opinion, the settled legal position as stated above, would apply to the agricultural land (Downloaded on 22/04/2022 at 10:24:56 PM) (10 of 11) [CW-14676/2020] in possession of the tenants/khatedars also once the cases of such tenants/khatedars are decided and their rights have been concluded and pursuant to the same they are in possession of the land. Ordinarily the revisional power underSection82of the Act of 1956 and under Section 232of the Act of 1955, cannot be exercised after a period of one year from the date of the order sought to be revised. Once a tenant/khatedar acquires tenancy/ khatedari rights and continues to be in possession of the land, his rights cannot be called in question after unreasonable delay. Such tenant/khatedars are required to be treated at par, for all purposes, with all other tenants/khatedars who acquired tenancy/khatedari rights over the land. To permit the exercise of revisional powers under Section 82 of the Act of 1956 and/Or under Section 232 of the Act of 1955 after unreasonable delay, would amount to putting imprimatur of the Courts on the unreasonable and arbitrary exercise of power. Within a period of one year the tenant/khatedar of the land would have spent money for the improvement of the land, he would have arranged his affairs of life on the basis that he is in occupation of the land, he would have entered into several transactions on this basis and made many commitments. Therefore, ordinarily revisional powers under Section 82of the Act of 1956 and under Section 232 of the Act of 1955, cannot be exercised after a period of one year. If this requirement of reasonable length of time is not read into the aforesaid provisions, the provisions would become unconstitutional.

Recently, the Hon'ble Apex Court in Joint Collector Ranga Reddy District & Anr. vs. D. Narsingh Rao & Ors. {(2015) 3 SCC 695} has held as under:-

"11. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing (Downloaded on 22/04/2022 at 10:24:56 PM) (11 of 11) [CW-14676/2020] an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."

In view of the discussions herein above, the writ petition deserves to be allowed, hence the same is allowed and the order dated 15th June, 2001 (Annexure-4) passed by the Board of Revenue Rajasthan, Ajmer, the order dated 28th April,1997 (Annexure-3) passed by the Revenue Appellate Authority, Alwar and the order dated 16th July, 1997 (Annexure-2) passed by the Addl. Collector Alwar are quashed and set aside."

Upshot of the aforesaid discussion in the backdrop of law laid down in the aforesaid judgments is that the writ petition is devoid of merit and is dismissed accordingly.

(MAHENDAR KUMAR GOYAL),J MADAN/44 (Downloaded on 22/04/2022 at 10:24:56 PM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jaipur