Rajasthan High Court - Jaipur
Dhokal Ram vs Board Of Revenue For Rajasthan on 6 December, 1985
Equivalent citations: 1986(1)WLN40
JUDGMENT Shyam Sunder Byas, J.
1. By this petition under Articles 226 and 227 of the Cons-tiution, the petitioner challenges the legality of the order dated January 5, 1977 passed by the Board of Revenue for Rajasthan, Ajmer and prays for annulling the same.
2. Briefly recapitulated, the facts relevant for the disposal of this petition are that the petitioner Dhonkal Ram and non-petitioner No. 5 Hanuman jointly held, Khatedari lands situate in Chak IX in Tehsil Ganga-nagar as mentioned in para 1 of the petition. Subsequently, due to partition, 23 Bighas in Murabba Number 8 and one Bigha in Murabba No. 14 along with some other land came to the share of non-petitioner Hanuman, while the rest of Murabba No. 14 (which is the subject matter of dispute in this writ petition) along with other land went to the share of the petitioner. The non-petitioner Hanuman filed an application before the Collector, Ganganagar under Con. 8(2) of the Rajasthan Colonization (General Colony) Conditions, 1955 (here in after to be referred as 'the Conditions') for granting him a way through the petitioner's Kila numbers 10, 11, 20 and 21 of Murabba No. 14. The Collector, after hearing the parties, passed an order on May 25, 1973. He allowed the application and directed the petitioner to allow a way through his fields to non-petitioner Hanuman. The non-petitioner Hanuman was directed to bear the expenses for carving out the aforsaid way and to give twice of the land from his Murabba as compensation to the petitioner. The petitioner felt aggrieved and went in appeal, which was heard and decided by the Revenue Appellate Authority on August 27, 1974. He held, that the Conditions were not applicable to the land in question. He, therefore, set-aside the order of the Collector and dismissed the application filed by the non-petitioner Hanuman. The non-petitioner Hanuman felt aggrieved and challenged the order of the Revenue Appellate Authority by way of an appeal in the Board of Revenue for Rajasthan, Ajmer. The learned Single Member of the Board allowed the appeal, set-aside the order of the Revenue Appellate Authority and restored that of the Collector. The petitioner has filed this writ-petition and challenges the legality of the order passed by the Board of Revenue mainly on two grounds-(1) no second appeal lies against an order passed by the Revenue Appellate Authority and (2) the provisions of the Conditions are not applicable to the lands in question. It was alleged in that the writ petition that the parties i.e. the petitioner and the non-petitioner Hanuman were holding the land even before the commencement of the Rajasthan Colonization Act, 1954 (for short 'the Act'). The Conditions have been framed under the Act. As such, neither the provisions of the Act nor are the Conditions applicable to the lands held by the petitioner and the non-petitioner No. 5 Hanuman.
3. The petition is contested by the non-petitioner Hanuman. According to him, Murabba No. 14 is situate contiguous in South to his Murabba No. 8. The way from Abadi of the village to Murabba No. 8 is circuitous and long. He, therefore, applied for allowing him a way in Murabba No. 14 of the petitioner. The Collector had ample powers under Con. 8(2) of the Conditions to carve cut the way. The Board of Revenue was fully competent to hear the second appeal. The provisions of the Act and the Conditions are fully applicable to the lands in question. Chak IX has been declared to be a 'colony' and as such the Conditions apply to all lands granted before the commencement of the Act or after its commencement.
4. I have heard the learned counsel for the parties, at length. The questions which crop-up for decision and deliberations are : (1) whether the Board of Revenue for Rajasthan was competent to hear the appeal and (2) whether the provisions of the Act and the Conditions are applicable to the lands held by the parties in Chak IX.
5. The first question may be taken up to start with.
6. The Rajasthan Colonization Act, 1954 was enacted to make better provisions for the colonization and administration of the lands in our State. Section 5 of the Act makes applicable all the laws relating to the agriculture, . tenancy, etc. to the tenancies held and the proceedings conducted under the Act except those otherwise provided in the Act or the Rules As such, the Rajasthan Land Revenue Act, 1956 and the Rajasthan Tenancy Act. 1955 and the Rules made there under apply in implementing the provisions of the Act. The Act is silent about the provisions of the appeals. Section 76 of the Land Revenue Act speaks about second appeals. Under Section 9 of the Rajasthan Land Revenue Act, the general superintendence and the control over all Revenue Courts and all Revenue Officers vests in the Board of Revenue, Rajasthan. Section 76(d) lays down that an appeal shall lie from an order passed in appeal by the Revenue Appellate Authority to the Board. When Sections 9 and 76 of the Rajasthan Land Revenue Act are read together, the inevitable position arising out of them is that the Board is competent to hear the second appeal against an order passed by the Revenue Appellate Authority in a proceeding under the Act. The order passed by the Collector was of judicial nature, against which the appeal was heard by the Revenue Appellate Authority. The order passed in appeal by the Revenue Appellate Authority, thus, being a judicial order, was subject to second appeal under Section 76(d) of the Rajasthan Land Revenue Act. I, therefore, find no substance in the contention of Mr. Arora that no second appeal against an order passed by the Revenue Appellate Authority was maintainable or that the Board of Revenue was not competent to hear this second appeal. The first contention of Mr. Arora, thus, fails.
7. Coming to the second contention, which is the main and principal ground of attack, it was contended by Mr. Arora learned counsel for the petitioner that the petitioner and non-petitioner Hanuman were the land-holders in Chak IX before the commencement of the Act. As such the provisions of the Act and the Conditions are not applicable to them, Developing the contention further, it was argued by Mr. Arora that when the Act and the Conditions are not applicable to the lands in question held by the parties, the Collector had no authority to carve out a new way in the petitioner's field for the benefit of non-petitioner Hanuman. He has invited my attention to conditions No. 4 and 8 of the Conditions. Reliance was also placed on Section 20 of the Act. It was contended that the petitioner, under Section 20 of the Act, is bound only by the Conditions mentioned in the Schedule attached with the Act. No other condition except those contained in Schedule can be imposed on him and much less of the Conditions, 1955.
8. Mr. Bishnoi learned counsel for the non-petitioner Hanuman, countering the contentions of Mr. Arora urged that admittedly Chak IX was declared a 'colony'. The definition of 'grant' given in the Conditions includes all the lands situate in a colony and it is immaterial whether the tenants came to hold the land before the commencement of the Act or after its commencement. It was further argued that Section 3 of the Act makes it applicable to all lands in a colony. Since Chak IX is a colony, the provisions of the Act and the Conditions are fully applicable to it. I have bestowed my thoughtful consideration to the rival submissions.
9. In order to properly appreciate the contentions of the parties., it would be useful to read the relevant provisions of the Act and the Conditions. As the preamble of the Act shows the Act was put in the statutes book with the prima object to make better provision for the colonization and administration of lands in the State. Section 3 of the Act speaks about its application. It speaks that the Act shall apply to all lands in a 'colony'. The Act gives the definition of 'colony' according to which 'colony' means any area to which this Act shall be applied by order of the State Government published in the official Gazette. Chak IX has been admittedly declared a colony for the purpose of the Act. Section 2 of the Act vests power in the State Government to grant land in a colony on such conditions as may be prescribed. It also authorises the State Government to issue a statement of the conditions. Section 28 of the Act empowers the State Government to frame rules for carrying into effect the provisions and purpose of the Act. In exercise of the powers conferred by Sections 7 and 28, the State Government has issued the Rajasthan Colonization (General Colony) Conditions, 1955, The Conditions, as such form an integral part of the Act. The Conditions have been brought into existence with the main and sole purpose of carrying into effect the provisions and the scheme of the Act. The definition of 'grant' in the Conditions reads as under:
"Grants" includes any grant made in respect of land to which the Act has been applied, whether made by way of conferment of any class of rights, whether before or after the commencement of the Act, or by devolution or otherwise.
10. The definition of 'Grant' includes not only the grant made after the commencement of the Act but also covers lands which have come in possession of a person even before the commencement of the Act. In other words, 'grant' includes within its scope lands which come into possession of the tenants after the commencement of the Act and the lands which have come into the possession of the tenants before the commencement of the Act.
11. Thus, reading the aforesaid provisions of the Act and the Conditions together, the position which emerges is that the agricultural lands situate in a colony are governed by the provisions of the Act & the Conditions for all purposes without any distinction. It is immaterial for the applicability of the Act the & Rules whether the grant was made before the commencement of the Act or after the commencement of the Act. If these provisions are given effect to a new way can be carved out by the Collector in the fields of the tenants by virtue of powers granted to him under Con. 8(2) of the Conditions. Conditions 8(2) authorises the Collector to create a right of way not only in favour of the Government or persons or any class of persons or for public generally, but also in favour of a single person. The Collector, Ganganagar, therefore, had the necessary powers and the authority to carve out a new way in the petitioner's field for non-petitioner Hanuman.
12. Condition 4 of the Conditions relied upon by Mr. Arora in support of his contention renders no assistance to him. Condition 4 speaks about the conditions on which land may be granted in a colony. Condition 4, in no way, abrogates the other provisions of the Act and the Conditions especially in view of the definition of 'grant' given in the Conditions.
13. Section 20 of the Act, on which reliance was placed by Mr. Arora is of no help to the petitioner. This section lays down that Conditions mentioned in the Schedule attached to the Act will apply to any land which the tenants has acquired previously to the commencement of the Act. Section 20 does not lay down that any other provisions of the Act or Conditions will not apply to a tenant who has acquired right in any land previously to the commencement of the Act. Section 20 has nothing to do with the applicability of the other provisions of the Act and the Conditions.
14. Thus, on reading the various provisions of the Act and the Conditions, I am of the view that they are applicable to lands situate in a colony as defined in the Act. Chak IX is admittedly a colony. The Collector, therefore, had ample powers to carve out way in the petitioner's field. His action cannot be said to be unauthorised.
15. If the contention of Mr. Arora that the provisions of the Act and the Conditions are not applicable to the lands which have been acquired by the tenants before the commencement of the Act is accepted, it will result in same anomalous position. The land-holders, who have acquired lands in a colony before the commencement of the Act will stand debarred from the benefit of the Act whereas who have acquired the lands after the commencement of the Act will get the benefits of the Act. This was never intended or thought of by the legislature, for making the distinction between the tenants residing in the same colony. The various provisions of the Act and the Conditions have been inserted for the benefit of the land-holders. It will be ridiculous to extend the benefits to one class of landholders and to deny the same to the other class of land-holders simply because some of them came to acquire the lands before the commencement of the Act and the others acquired the lands after the commencement of the Act. As such, an anomalous position was never intended and must, therefore, be avoided.
16. There is another aspect of the matter too. The Collector, while granting way in the petitioner's field has adequately compensated him by granting him the land twice in area of his land covered by the new way. The petitioner is, thus, to get land twice in area from the non-petitioner Hanuman.
17. For the reasons mentioned above, I find no merit in this writ petition. The writ petition is consequently dismissed, but with no order as to costs.