Rajasthan High Court - Jodhpur
Jagdish Singh & Anr vs Board Of Revenue Of Raj. Ajmer & Ors on 29 July, 2016
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.CIVIL WRIT PETITION NO.1191/2015
Jagdish Singh (deleted) & Anr.
vs.
Board of Revenue & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.1191/2015
Jagdish Singh (deleted) & Anr.
vs.
Board of Revenue & Ors.
Date of Order : 29th July, 2016
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Manish Shishodia for petitioners
Mr Sanjeet Purohit for respondent-RIICO
Mr O.P.Boob, Govt. Counsel
BY THE COURT:
This writ petition has been filed by the petitioners while challenging the order dated 28.05.2014 (Annexure-9), whereby the Board of Revenue accepted the reference under section 82 of the Rajasthan Land Revenue Act, 1956 (for short 'the Act of 1956' hereinafter) and set aside the order dated 16.06.1968 passed by Tehsildar, Jodhpur regularising 375 Bighas of land of Khasra No.69 of village Desoriya Vishnoiyan, S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
2 Tehsil Jodhpur in favour of Jagdish Singh (now dead) and nine other persons.
The finding of facts recorded by the Board of Revenue is to the effect that the land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur was recorded as Ghair Mumkin Pahad in the Revenue Records and, therefore, the same is not liable to be regularised as per the provisions of Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957 (for short 'the Rules of 1957' hereinafter).
Facts necessary for adjudication of this writ petition are that on 16.06.1968, Tehsildar Jodhpur regularised 375 Bighas of land out of total land measuring 443.11 Bighas of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur in favour of petitioner Jagdish Singh and nine other persons and as such each person got 37.4 Bighas of land in his share. In the year 1989, the Tehsildar Jodhpur filed an application before the District Collector, Jodhpur with a prayer that regularisation of S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
3 375 Bighas of land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur in favour of ten persons was illegal and without jurisdiction, therefore, a reference be sent to the Board of Revenue under section 82 of the Act of 1956. The District Collector, Jodhpur after hearing the Tehsildar, Jodhpur and the persons, in whose favour the regularisation of the land was made by the Tehsildar vide order dated 16.06.1968, made a reference to the Board of Revenue, Ajmer under section 82 of the Act of 1956. The Board of Revenue accepted the said reference vide order dated 26.09.1995 and cancelled the order dated 16.06.1968 of regularising the land measuring 375 Bighas in favour of the petitioner Jagdish Singh and nine other persons.
Being aggrieved with the order dated 26.09.1995, petitioner Jagdish Singh and nine other persons, in whose favour, the above mentioned land was regularised, had filed a writ petition being SBCWP No.1171/1996 before this Court, which came S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
4 to be dismissed vide order dated 18.05.1998 and the petitioners in the said writ petition, had filed D.B.Civil Special Appeal (Writ) No.583/1998, which too came to be dismissed vide judgment dated 25.03.2008, against which, the petitioners filed Special Leave to Appeal before the Hon'ble Supreme Court, however, during the pendency of the said leave to appeal, some persons had approached the Board of Revenue by way of review petitions while claiming that they have purchased some portion of 375 Bighas of the land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur from some of the persons in whose favour, the regularisation was made and their names have also been entered into the revenue records as Khatedars but while deciding the reference, no opportunity of hearing was provided to them and, therefore, the order dated 26.09.1995 may be recalled.
The Board of Revenue vide order dated 27.01.2011 accepted those review petitions and set aside its earlier order S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
5 dated 26.09.1995 and restored the reference to its original number. In view of the said developments, the petitioner and other persons filed an application in the SLP pending before the Hon'ble Supreme Court and prayed that since the Board of Revenue recalled its order dated 26.09.1995, the orders passed by Single Bench as well as by Division Bench of the High Court may be set aside and the matters be remanded to the Board of Revenue for deciding afresh. The aforesaid application was allowed by the Hon'ble Supreme Court and the orders dated 18.05.1998 and 25.03.2008 passed by the Single Bench as well as Division Bench of this Court respectively were set aside and the matters were remanded to the Board of Revenue for fresh hearing.
Now the Board of Revenue after hearing the parties concerned, accepted the reference vide order dated 28.05.2014 and set aside the order dated 16.06.1968 passed by the Tehsildar, Jodhpur. The Board of Revenue has held that in the year 1968, the S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
6 land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur was recorded as Ghair Mumkin Pahad and the same was not available for allotment for agricultural purposes as per the Rules of 1957 and, therefore, the Tehsildar, Jodhpur illegally regularized the said land in favour of the petitioner and other persons.
Being aggrieved with the order dated 28.05.2014 passed by the Board of Revenue, this writ petition has been filed.
It is noticed that out of ten persons, in whose favour, the land measuring 375 Bighas of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur has been regularized, only one person i.e. the petitioner-Jagdish Singh filed this writ petition and remaining persons have not challenged the order passed by the Board of Revenue.
The main argument of the learned counsel for the petitioners for assailing the order passed by the Board of Revenue is that the reference made by the Collector, S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
7 Jodhpur after 22 years of regularisation of the land in favour of the petitioner and other persons was not justified and the Board of Revenue has committed illegality in accepting the said reference after delay of about 46 years and, therefore, the impugned order dated 25.08.2014 is liable to be quashed and set aside on this ground alone.
In support of the above argument, learned counsel for the petitioners has placed reliance on decisions of Hon'ble Supreme Court in State of Gujarat vs. Patel Raghav Natha & Ors., AIR 1969 SC 1297, Santoshkumar Shivgonda Patil & Ors. vs. Balasaheb Tukaram Shevale & Ors., (2009) 9 SCC 352 and Joint Collector Ranga Reddy District & Anr. vs. D.Narsing Rao & Ors., (2015) 3 SCC 695. He has also placed reliance on a decision of Full Bench of this Court rendered in Tara & 35 Ors. vs. State of Rajasthan & Anr., 2015(3) WLC (Raj.) 548.
Per contra, learned counsels appearing for the respondents have supported the impugned judgment and argued that since S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
8 the regularisation of the land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur measuring 375 Bighas in favour of the petitioner and others was in violation of the Rules of 1957, hence was void ab initio, the learned Board of Revenue has not committed any illegality in exercising its powers under section 82 of the Act of 1956 as under the statute, no limitation for making reference is prescribed.
Heard learned counsels for the rival parties and perused the impugned order.
Learned counsel for the petitioners has placed on record some
additional papers i.e. copies of Girdawaries etc. pertaining to the year 1969 onwards and claimed that the regularisation of the land measuring 375 Bighas of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur in favour of the petitioner and other persons cannot be said to be bad as they were in possession of the land prior to 1968, however, learned counsel for the S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
9 petitioner has failed to produce any document to substantiate the claim of the petitioner that he and other persons were in possession of the land prior to 1968. Learned counsel for the petitioner has also failed to demonstrate that land of Khasra No.69 was not recorded as "Ghair Mumkin Pahad" in the revenue record and was available for allotment for agricultural purposes in the year 1968 under the Rules of 1957. Therefore, finding of fact arrived at by the District Collector, Jodhpur while making reference and Board of Revenue while accepting it that land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur was recorded as "Ghair Mumkin Pahad" remain unrebutted.
In view of above, it is clear that the land of Khasra No.69 of village Desoriya Vishnoiyan, Tehsil Jodhpur measuring 443.11 Bighas was recorded as "Ghair Mumkin Pahad" in the revenue records in the year 1968 and as per Rule 4(iv) of the Rules of 1957 as it was in force in the S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
10 year 1968, lands recorded as Ghair Mumkin in the current settlement shall not be available for allotment for agricultural purposes.
Now the question arises that whether the order passed by the Board of Revenue dated 25.08.2014 is not sustainable in the light of the principles of law laid down by the Hon'ble Supreme Court as well as by a Full Bench of this Court in the cases cited by the counsel for the petitioner because the reference was made by the Collector, Jodhpur after 22 years.
In those decisions, it has been held that when there is no period of limitation prescribed under statute, powers should be exercised within reasonable period. It has also been held that reasonable period would depend upon the facts and circumstances of each case. The reasoning behind it is that if any order in respect of any land exists in favour of any person, the said order should not have been interfered after passing of a long period S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
11 because there is possibility that that person might have put his all savings to improve the quality of the land.
Now if we analyze the facts of this case, it is clear that the land regularised in favour of the petitioner and other persons was not available for allotment for agricultural purposes at the relevant time.
As noticed earlier, out of 10 persons, in whose favour land of Khasra
No.69 was regularised by the Tehsildar on 16.06.1968, only one person viz. Jagdish Singh (now dead) filed this writ petition assailing the order passed by the Board of Revenue. The petitioner in this petition has failed to clarify that which portion of the land out of 375 Bighas of Khasra No.69 is in his possession. When it is not clear that in which portion out of 375 Bighas of land, the petitioner is in possession, it cannot be held that such person has invested huge money in improving the said land.
S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
12
Rules of 1957 has now been repealed but were in force at the time when the regularisation of 375 Bighas of land was made in favour of the petitioner and other persons by Tehsildar on 16.06.1968. Under the scheme of Rules of 1957, there was no provision for regularisation of old possession of any person. In the scheme of Rules of 1957, only unoccupied Government lands were available for allotment for agricultural purposes to the landless persons, definition of which was provided under Rule 2(iii) of the Rules of 1957. Rule 3 of the Rules of 1957 defines the scope of the rules, which says that these rules shall govern the allotment of unoccupied Government lands in areas other than those declared as a colony under the Rajasthan Colonisation Act and other than lands falling under sections 15 and 15-A of the Tenancy Act. Rule 4 categorises the lands, which were not available for allotment for agricultural purposes. Rule 5 provides that the Tehsildar by 30th September in each year S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
13 prepares a village-wise list of unoccupied Government lands of the categories mentioned in Form-I. Rule 6 was regarding exclusions of lands of categories mentioned in Rule 4 and provides reservation of lands for schools, village Abadi and for reservation for SC/ST, OBC, and gardens and orchards. Rule 7 provides that the Tehsildar shall issue proclamation inviting applications for allotments. Rule 8 provides that application for allotment shall be submitted in Form-III and should be verified as a plaint under the Code of Civil Procedure and may be presented to the Tehsildar or Naib-Tehsildar. Rule 9 provides that the Tehsildar or Naib- Tehsildar shall record on each application the date and time of its receipt and shall enter all the applications received in a register of applications in Form-IV. Rule 10 cast a duty upon Tehsildar to check the particulars given in each application with the entries existing in the annual registers or other Tehsil Record and for making such enquiries as he deems fit with regard to the S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
14 applicant's eligibility and other connected matters. Rule 11 prescribes priorities for allotment amongst the applicants and Rule 12 prescribes the maximum area to be allotted under the Rules. Rule 13 provides that all allotments shall be made by the Tehsildar in consultation with an Advisory Committee consisting of Members of Rajasthan Legislative Assembly, Pradhan of the Panchayat Samiti concerned, Sarpanch of village Panchayat, Vikas Adhikari of the Panchayat Samiti and two Members of the SC/ST of the Panchayat Samiti of the area. It also provides that Tehsildar shall give notice to the Members of the Advisory Committee regarding the meeting of committee a week prior from the date of meeting. Rule 14 was about the condition of allotment. Rule 14-A was regarding Sanad and possession, and provision of appeal was under Rule 15. Rule 16 was about the allotment of land by the State Government to the Co-operative Societies and to ex- servicemen. Rule 16-A was about the S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
15 allotment of land to Panchayat Samiti under the orders of the Government.
From the above scheme, it is clear that only landless persons were eligible for allotment of agricultural land under the Rules of 1957 and the allotment of unoccupied land for agricultural purpose can only be made after inviting applications from the interested parties. The Tehsildar was required to check the particulars given in the application and to verify from the revenue record about the said entries and further to make enquiry if he deems fit. The allotment of agricultural land can be made by Tehsildar in consultation with Advisory Committee.
Importantly, Rule 12 prescribes the maximum area to be allotted by the Tehsildar under the Rules of 1957. It was provided in the Rule that the maximum area to be allotted shall be 5 Bighas of irrigated land and 15 Bighas of unirrigated land. It is also provided that in Barani areas of former Biakner Division, Barmer S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
16 except Siwana Tehsil and District Jaisalmer which was not covered under any irrigation project, the maximum area to be allotted shall be 75 Bighas.
In the present case, the procedure laid down under the Rules of 1957 was not followed by the Tehsildar. As observed earlier, there is no provision under the Rules of 1957 where an old possession of any person could be regularised. Interestingly, the maximum area which can be allotted by the Tehsildar under the Rules of 1957 in Jodhpur District was 5 Bighas of irrigated land and 15 Bighas of unirrigated land. In the present case, the Tehsildar had regularized 37.4 Bighas of land each in favour of the petitioner and nine others. It is also not clear that any proclamation was issued by the Tehsildar inviting applications from the interested persons for allotment of the land of Khasra No.69 at the time of making regularisation in favour of the petitioner and nine other persons and the Tehsildar had consulted the Advisory S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
17 Committee before regularising the land in favour of the petitioner. Apart from that, the land which was regularized in favour of the petitioners for agricultural purposes was not available for allotment for agricultural purposes because the same was recorded as Ghair Mumkin Pahad in the Revenue Records.
From the above facts, it is clear that the order of regularisation dated 16.06.1968 passed by the Tehsildar in favour of the petitioner was in flagrant violation of the scheme of Rules of 1957.
This Court is of the firm view that allotment of land by the State or its officers should always be done in a transparent and equitable manner without any favoritism and nepotism. The State or its officers cannot give largesse to selected persons as per their whims and will and any such decision of the State Government or its officers must be transparent, non- discriminatory and non-arbitrary.
This Court is of the opinion that S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
18 one who manages to get the allotment of land against the provisions of law and the Rules by dishonest means with the connivance of the authority, such person is not liable to get any relief on the ground of equity. If this is accepted by the Court then it amounts to giving premium to dishonest persons.
In view of the above noted peculiar facts and circumstances of the
case, this Court is of the opinion that even if Collector made a reference after a delay of 22 years and the Board of Revenue accepted the same vide impugned order, the said actions of the District Collector and the Board of Revenue cannot be interfered with only on the ground of delay because the regularisation of 375 Bighas of land in favour of the petitioner was in flagrant violation of the Rules and was arbitrary action on the part of the Tehsildar concerned.
As a matter of fact, the reference was accepted by the Board of Revenue in the S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
19 year 1995 itself, however, the Board of Revenue thereafter, recalled the said order in the year 2011 and after providing opportunity of hearing to the petitioner and some other persons, again reaffirmed its order passed in the year 1995 vide impugned order.
As observed earlier, the petitioner-Jagdish Singh was the sole person, who challenged the order of the
Board of Revenue dated 28.05.2014 and no other affected persons have challenged the said order. However, petitioner-Jagdish Singh failed to clarify that out of 375 Bighas of land, which portion of the land is in his possession and, therefore, it cannot be held that he invested any money in improving the said land.
In view of the above discussions, I do not find any merit in this writ petition and the same is, therefore, dismissed.
Looking to the glaring facts of the case, the District Collector is directed S.B.CIVIL WRIT PETITION NO.1191/2015 Jagdish Singh (deleted) & Anr.
vs. Board of Revenue & Ors.
20 to comply with the directions issued by the Board of Revenue in its order dated 28.05.2014 regarding taking action against the erring officials forthwith.
The Registry is directed to send a copy of this order to District Collector, Jodhpur immediately.
Stay petition also stands
dismissed.
[VIJAY BISHNOI],J.
m.asif/-PS