LRs. of Gulab and Others vs State of Rajasthan and Others

Dinesh Maheshwari, J.

The Background:

The dispute in this matter relates to the allotment of 2 bighas of land comprised in Khasra No. 53 at Sumerpur, said to have been made on 09.08.1975 in favour of the respondent No. 5 Ishaq Mohammed.

The petitioners Gulab and Nathu Ram (both since deceased and represented by their legal representatives), moved an application in the year 1978 under Rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 [''the Rules of 1970''] read with Rule 18 of the Rajasthan Colonisation (Jawai Project Government Both the applications aforesaid were rejected by the learned Additional Collector, Pali by the common order dated 05.11.1982 (Annex.13). The appeal taken by the petitioners was dismissed by the Revenue Appellate Authority, Jodhpur

Assailing the aforesaid orders and judgments, Annexures 13, 14 and 15, the petitioners preferred this writ petition; and, after the matter was initially considered by the Division Bench of this Court on 09.10.1990, the petitioners prayed for and were granted time to apply for amendment of the writ petition; the amendment prayed for was allowed on 26.11.1991; and by way of the amended writ petition, apart from assailing the aforesaid orders passed by the revenue authorities and apart from questioning the alleged allotment made in favour of the respondent No. 5, the petitioners also put a challenge to Rule 2 of the Rules of 1978. This writ petition was admitted for consideration on 02.12.1991 and later on, when it was alleged that the respondent No. 5 had transferred the disputed land in favour of four persons during the pendency of the writ petition, by the order dated 24.08.1993, such transferees were permitted to be joined as respondents Nos. 7 to 10 in this writ petition; and by way of interim order, the respondents were directed to maintain status quo. During the pendency of this writ petition, the original petitioners expired and on applications, their respective legal The impugned Orders/Judgments as passed by revenueauthorities:

While dealing with the aforesaid applications as moved by the petitioners under Rule 14(4) of the Rules of 1970 read with Rule 18 of the Rules of 1978 (earlier numbered as Revenue Misc. Case No. 50/1978 and later on numbered as Case No. 17/1981) and as moved by the State Government (Case No. 11/1981), the learned Additional Collector, Pali noticed the contentions on behalf of the petitioners that 2688 square yards of land of Khasra No. 53 was in their possession for having been let out by the Gram Panchayat, Sumerpur as abadi land on a rent of Re. 1/-per month w.e.f. 01.02.1960 and, thus, was not available for allotment; that the land was falling in municipal area and so also that the area in question had been declared a command area and, therefore, neither was it available for allotment under the Rules of 1970 nor could have been allotted thereunder. The learned Additional Collector also noted the counter contentions on behalf of the present respondent No. 5 that the land of Khasra No. 53 being situated outside the command area, the Rules of 1978 did not apply; that for a stay order granted by this Court, change of Gram Panchayat, Sumerpur to a Municipal Board had been stayed and, therefore, as on 09.08.1975, the land was not falling in municipal area; that the Municipal Board had The learned Additional Collector, Pali considered the rival submissions and observed that the petitioners had not been able to produce any document to establish if the land in question was given on rent in the year 1960 and any rent was paid; that only a certified copy issued on 25.01.1973 of the so- called rent note was filed alongwith the reply submitted by the Municipal Board on 09.01.1979 but the same was bereft of various particulars like the serial number of the document, valuation, and date etc. and it was difficult to co-relate the same with the land in question. The learned Additional The petitioners took the matter in appeal before the RAA but no appeal was preferred in relation to the other application as moved by the State Government. The learned The learned RAA observed with reference to the certificate issued by the Municipal Board, Sumerpur on 18.10.1982 that at the time of the allotment in question, the order passed by this Court was in operation whereby conversion of Gram Panchayat to a Municipality was stayed. The learned RAA further referred to the said certificate issued by the Assistant Engineer of the Irrigation Department and concluded on its basis that the land of Khasra No. 53 was out of the command area. According to the learned RAA, once it was accepted that the provisions of the Rules of 1978 were inapplicable, �the other contention of the appellants, that the allotment in question should have only been made under Rules of 1978 by the Collector, automatically falls down�. On the question that it were not an unoccupied land, the learned RAA observed that the total area of Khasra No. 53 had been The learned RAA further observed that no cogent documentary evidence was available in proof of the fact that the land was let out to the appellants; and, while indicating various loopholes and shortcomings in the alleged rent note, pointed out that there was nothing to co-relate the same with the land of Khasra No. 53. The learned RAA further wondered as to where the original of the said rent note was; as to why the same was not produced; and how, if at all, the Gram Panchayat gave on rent about 2688 square yards of land only at Re. 1/-per month? The learned RAA observed that the disputed allotment was made in the year 1975 and as per the record, possession was delivered by the Patwari concerned without any indication of the land being not an unoccupied one. The learned RAA further observed that had the appellants been in possession of the said portion of the land, they would have raised immediate protest but, on the contrary, they came to the Court questioning the allotment for the first In the second appeal preferred by the petitioners, the learned Member of the Board agreed with the finding that conversion of Gram Panchayat into a Municipality remained stayed for the order passed to that effect by this Court. The learned Member of the Board also observed that Khasra No. 53 comprised of 16 bighas and 15 biswas of land and the petitioners allegedly had with them 2688 square yards of land thereof and another piece of 3 bighas and 5 biswas was allotted to Anand Singh (though the allotment made to Anand Singh was later on cancelled) and it was not borne out from the record if the land allotted under the questioned allotment was a part of any such pieces of land and, thus, it could not be concluded that it were not an unoccupied land. The learned Member of the Board also made an observation, while agreeing with the arguments advanced on behalf of the respondent, that the petitioners had no right to take an appeal in the matter after having filed the application under Rule 14(4) of the Rules of 1970. Further, the learned Member of the Board reiterated that there was no proof of the fact that the allotted one was the very same land that was allegedly in possession of the appellants. Accordingly, the appeal taken by the petitioners came to be dismissed by the impugned judgment dated 20.07.1990 (Annex. 15).

The petition and documents of the petitioners:

Assailing the orders aforesaid, the petitioners preferred this writ petition; and the petition averments with the documents relied upon could be summarized thus: The petitioners have averred that prior to 01.04.1975, Sumerpur town was a Panchayat and was thereafter constituted as Municipality; that the aforesaid Khasra No. 53 was in abadi area of Gram Panchayat, Sumerpur, it was treated as an abadi area, and ceased to be an agricultural land; and, thus, according to the petitioners, a part of the said land was let out for non-agricultural purposes to M/s Indian Oil Company and M/s Kapoor Chand Jawahar Mal etc. as stated in Khasra Parivartansheel for Svt. Year 2023 (Annex.1). The petitioners have reiterated their case that 2688 square yards of land in the said Khasra No. 53 had been let out to the petitioner No. 1 Gulab and one Chelaji son of Bhaggaji on a monthly rent of Re. 1/-and a rent note was executed in that regard on 01.02.1960 (Annex. 2). The petitioners have alleged making payment of rent from time to time and have placed on record the copies of the alleged notice-cum-receipt dated 24.06.1964 (Annex.3) and the alleged rent payment receipts dated 06.07.1967, 21.08.1969, and 30.08.1974 (Annexs. 4 to 6 respectively). Under the last receipt dated 30.08.1974 (Annex.6), allegedly an amount of Rs. 64/-was deposited towards rent for five years from 01.04.1970 to 31.03.1975. The petitioners have further averred that one Anand Singh tried to encroach over the said land and upon the complaint, he was convicted ultimately for offence u/s 447 of the Indian Penal Code; and in that regard, a copy of the judgment dated 19.08.1974 as passed by the Munsif & Judicial Magistrate, Pali in Case No. 1/1970 has been placed on record as Annexure-7.

According to the petitioners, it was in the month of November 1978 that the respondent No. 5 wanted to dispossess the petitioner No. 1 from the said land let out by the Gram Panchayat in Khasra No. 53; that an FIR was filed but prosecution was not launched on the ground that the said respondent had an order of allotment of 2 bighas of land from the Sub-Divisional Officer, Bali. It is stated that the petitioner applied for the copy of the order of allotment made in favour of respondent No. 5 but the same was not supplied and, instead, were supplied the copies of the report of Patwari dated 07.10.1975, of the application of the respondent No. 5 dated 27.10.1975, and of the order of Sub-Divisional Officer dated 27.10.1975; and the petitioners have placed such copies on record as Annexures 8, 9 and 10 respectively. According to the petitioners, for the said document revealing an allotment having been made by the Advisory Committee in favour of the respondent No. 5 on a price of Rs. 150/-, as advised, they submitted the application (Annex.11) under Rule 14(4) of the Rules of 1970 read with Rule 18 of the Rules of 1978.

The petitioners have further averred that on the said application, the Additional Collector made inquiries from the Municipal Board, Sumerpur as well as the respondent No. 5; and in response to the notices, the administrator of the Municipal Board accepted the fact that the part of the land in dispute was allotted to the petitioner No. 1 and Chelaji on a monthly rent of Re. 1/-and the rent was paid by the tenants upto 31.03.1975; and a copy of the reply dated 09.01.1979 as sent by the Municipal Board has been placed on record as Annexure-12. It has further been pointed out that the State Government also filed the application for cancellation of allotment as made in favour of the respondent No. 5 and both the applications were decided by the common order dated 05.11.1982 (Annex.13).

The petitioners, after referring to the facts regarding dismissal of the application and of their appeals as noticed hereinbefore, have taken the grounds in the writ petition that the judgment of the learned Additional Collector, Pali on the question as to whether Sumerpur was a colony and whether 1978 Rules applied for the allotment of agricultural land thereat stood vitiated for his failing to consider the Notification dated 24.06.1958 (appended to the writ petition as Schedule-I) whereby, in exercise of powers u/s 2 of the Act of 1954, the said Act was applied to the village Sumerpur. The petitioners maintain that as a necessary effect of the said Notification, Sumerpur became a colony; and have urged that the Rules of 1970 did not apply to the area or the villages that were declared a colony and, therefore, the alleged allotment under the Rules of 1970 was without authority of law and void. According to the petitioners, unnecessary stress has been laid by the Additional Collector as well as RAA that the Rules of 1978 did not apply though, as a matter of fact, on the date of allotment, as allegedly made in the year 1975, the Rules of 1978 were not in force at all.

According to the petitioners, the net legal position had been that no permanent allotment could have been made in Sumerpur village until promulgation of the Rules of 1978; that only temporary allotment could have been made under the General Colony Conditions, 1955 framed under the Act of 1954; that the authority competent for such temporary allotment was the Tehsildar and not the Sub-Divisional Officer and, thus, the order of allotment said to have been passed by the Sub-Divisional Officer or by the Advisory Committee was absolutely without jurisdiction and void. The petitioners have further contended that the authorities were not right in observing that the Rules of 1978 do not apply to the uncommand land in Jawai area because, according to the petitioners, the Rules were applicable to the whole of the colony area including uncommand land. The petitioners have pointed out that Rule 17 of the Rules of 1978 also provides for the price of uncommand land to be allotted under the said Rules.

10.It has further been contended that the allotment order in favour of the respondent No. 5 had been passed without following any of the Rules because in all the Rules there remains the provision for inviting applications and no such allotment could have been made simply on the basis of application made by a person. The petitioners have also averred that the Revenue Authorities have failed to consider the reply submitted by the Municipal Board, Sumerpur on 01.09.1979 admitting the fact that the land in dispute was given on rent by the Panchayat, Sumerpur in the year 1960 and the rent upto 31.03.1975 was received by the Panchayat. The petitioners have also suggested that there was a misplaced reliance on the so-called admission on the part of the petitioners about the land being vacant, without considering their case as set up against Anand Singh.

The petitioners have further submitted that the Board of Revenue has been in error in refusing to exercise jurisdiction on the ground that the appeal was not maintainable against the order passed by the Additional Collector. The petitioners have proceeded to submit that even if no such appeal lay against the order made under Rule 14(4) of the Rules of 1970, they were entitled to challenge the order of allotment in the writ petition on the grounds that the said order was a nullity and could not have been passed by the Sub-Divisional Officer under any of the statutory provisions; that allotment of 2 bighas of land was less than a fragment as defined in Section 5 of the Rajasthan Holdings (Consolidation and Prevention of Fragmentation) Act, 1954 [�the Prevention of Fragmentation Act�]; that the allotment order does not even specify the boundaries of the alleged 2 bighas of land from out of more than 16 bighas land in Khasra No. 53; and that, if the petitioners'' contentions about it being an abadi area were accepted, the allotment made for agricultural purposes was void. The petitioners have further submitted that they were entitled to file an application for cancellation of the allotment even on the ground that they were the residents of Sumerpur and were entitled to apply for allotment, if applications were invited therefor.

It may be pointed out that the petitioners have also placed on record as Annexure-16 a report of the Tehsildar bearing date 08.01.1979. The said report seems to have been addressed to the Collector, Pali with reference to the communication dated 06.12.1978 in relation to this case. As per the said report, the Tehsildar had inspected the site on 31.12.1978 with the Patwari concerned and pointed out that the land was an unarable one and even when Patwari had shown some cultivation in the Girdawaries of Svt. Years 2033, 2034 and 2035, as per the situation at site, the land appeared not to have been cultivated and there had been tractoring in about half a bigha portion by Ishaq Mohammed to claim possession. The Tehsildar had also stated that the same land was earlier regularised to Anand Singh and the record entries were also made but then, there had been a stay from the Collector and in compliance thereof, by the letter dated 24.04.1974, the Patwari concerned was asked not to alter the record; that the appeal was pending before the Collector but the Patwari concerned stated it to be Siwai chak arable land that was allotted by the Allotting Committee on 09.08.1975 contrary to the Rules and even when the land was subject to the stay order passed by the Collector.

It may also be pointed out that though by way of amendment, the petitioners also put a challenge to Rule 2 of the Rules of 1978 in this writ petition but the learned Counsel for the petitioners has not pressed on such grounds, and this aspect of the matter is, therefore, not required to be dilated upon. It may, however, in the passing be observed that the said Rule 2 of the Rules of 1978 merely provides that all allotments of Government land made in the Jawai Project area before the commencement of those Rules shall be deemed to have been made under those Rules. Such a provision does not appear suffering from any vice and the learned Counsel has rightly not argued on this ground, rather unnecessarily inserted in this writ petition by way of amendment.

The reply submissions and documents of the respondentNo. 5:

The respondent No. 5 has filed the reply with several documents while contesting this writ petition. According to the contesting respondent, Sumerpur was a commercial town even prior to 24.06.1958 but was not governed by the Act of 1954 that was applied only to specific Khasras of Sumerpur village and the disputed Khasra No. 53 admeasuring 16 bighas 15 biswas was not included therein. The respondent would maintain that the said Khasra No. 53 was an agriculture land; the same was never within abadi area of Gram Panchayat, Sumerpur; the Gram Panchayat never treated it as abadi land nor had any lawful authority to do so; that it was wrong to contend if any part of Khasra No. 53 was let out to the petitioner or any person nor the Gram Panchayat could have done so. In relation to Khasra Parivartansheel (Annex.1) it is submitted that the petitioners� names have not been stated therein and that falsifies their case. The answering respondent has placed on record Khatoni/Jamabandi of Svt. Year 1980 (=1923 A.D.), Svt. Year 1998 (=1941 A.D.), Svt. Years 20272030 (=1970-1973 A.D.), marked as Annexures R/I to R/III respectively, to submit that the land in question was regularly treated as an unoccupied Government land. The respondent has also placed on record Jamabandi of Svt. Years 2031-2034 (=1974-1977 A.D.) showing that from out of the land of Khasra No. 53, mutation was effected on 29.10.1975 in relation to 2 bighas of land allotted to him (Annex. R/IV).

The contesting respondent has averred that even when the Municipality was constituted at Sumerpur from 01.04.1975, it refused to accept rent from the petitioners for the land in question being an agricultural land as stated in the certificate dated 14.10.1982 (Annex. R/V); and it was also stated in the reply submitted by the Municipal Board to the RAA on 18.08.1984 (Annex. R/VI) that it were an agricultural land with the Municipal Board having no right, title or interest therein. It is also submitted with reference to the documents Annexures R/VII and R/VIII, Khatoni of Svt. Year 1980 (=1923 A.D.) and Jamabandi of Svt. Year 2048 (=1991 A.D.) respectively, that the village Sumerpur consisted of 13 Khasras and the said Khasra No. 53 was not included therein. The respondent has put to dispute the claim of the petitioners of any land having been let out to them and has further submitted that the documents relied upon by the petitioners, Annexures 2 to 6, do not show that the land let out to them was a part of Khasra No. 53. It is also pointed out with reference to the observations made in the impugned orders that the petitioner Nathu has been in the habit of usurping some pieces of land by trespass. Reference has also been made to the admission of the petitioners as noticed in the impugned orders that it was a vacant piece of land. The answering respondent has further averred that the judgment in the criminal case against Anand Singh was irrelevant for not pertaining to Khasra No. 53; and that the petitioners have concealed the fact that the said judgment was set aside in appeal on 19.07.1976 (Annex. R/IX).

The respondent has submitted that 2 bighas of land was allotted to him after due process of law and Sanad dated 27.10.1975 (Annex. R/X) was issued by the Sub-Divisional Officer, Pali in his favour; mutation was also carried out in the records (Annex. R/XI & R/XI-A); in the last settlement, the disputed part of Khasra No. 53 measuring 2 bighas was separately made as Khasra No. 186 measuring 0.42 hectare (Annex. R/XII); and Parcha Lagan was also issued in his favour (Annex. R/XIII). Copies of Khasra Girdawaries (Annex. R/XIV to R/XIX) have also been filed to submit that the land was cultivated and produces were mentioned therein. The respondent No. 5 has also placed on record a copy of the pass-book issued to him as Annexure-R/XI-B. The substance of the submissions of the answering respondent with such documents has been that the land was duly allotted to him and he was in its cultivatory possession. It is submitted that the petitioners did not raise objections for about three years and then wrongly filed the FIR but the allegations were found to be baseless and the case was dropped.

The answering respondent would maintain that the Additional Collector rightly dismissed the baseless application filed by the petitioners and the appeals were also rightly dismissed by the Appellate Authorities. It is submitted that the administrator of the Municipal Board never alleged that the disputed land was a part of Khasra No. 53 and it is reiterated with reference to the document Annexure-R/V that Municipal Board did certify that the land allotted to the answering respondent was an agricultural revenue paying land; and such was the stand of the Municipal Board before the RAA too (Annex. R/VI).

The respondent has countered the grounds stated in the writ petition with the submissions that the Notification dated 24.06.1958 applied to the command area of Jawai Project and the recent Notification also shows that the provisions of the Act of 1954 were applied only to a few Khasras and not to all the agricultural holdings; and that the said Act was not applied to the disputed Khasra No. 53 or any part thereof; that the Act of 1954 or the General Colony Conditions were not applicable to this case; and that the allotment made by the Sub-Divisional Officer on the recommendation of the Advisory Committee was perfectly valid. The definition as contained in Rule 3 of the Rules of 1978 has been referred to submit that commanded land would mean the land shown as such by the Irrigation Department in their command statements and per Rule 1 (2), the Rules would apply only to the areas that were served by Jawai Project; and the areas not served by Jawai Project were not governed by the Act of 1954 or the Rules framed thereunder. The Certification from the Assistant Engineer, Jawai Canal Sub-Division, Sumerpur dated 17.03.1979 (Annex. R/XX) has been referred to submit that Khasra No. 53 is outside the command area of Jawai Project.

The respondent has further submitted in relation to the ground as stated by the petitioners of applications having not been invited that such a ground was never pressed before the three authorities below and it is maintained that �the applications were invited and different pieces of land were allotted to different persons and all the rules were fully complied with�. It is submitted that the SDO was perfectly justified under the Rules of 1970 to accept the recommendation of the Advisory Committee and accordingly passed the order of allotment; that Section 8 of the Rajasthan Holdings (Consolidation and Prevention of Fragmentation) Act, 1954 relates only to the cases of transfer or partition and not to the allotment of Government land; that allotment order was forwarded to the Tehsildar who in turn directed the Patwari to hand over possession; the Patwari concerned, accordingly, demarcated the land and handed over possession; the Settlement Officer issued the Parcha Lagan, mutation was made recording the respondent No. 5 as Gair-khatedar and after 10 years, he was granted the khatedari rights. It is also suggested that the order of allotment has merged in the order granting khatedari rights and such khatedari rights of the respondent No. 5 having not been challenged, the petition was liable to be dismissed on this count alone.

In relation to the grievance of the petitioners about the authorities having not supplied the copy of allotment order, the respondent submits that he has produced the Sanad (Annex. R/X) and pass-book (Annex. R/XI-B) wherefrom every particular was apparent. It is submitted that the petitioners were neither the landless persons nor the residents of Sumerpur and they were not entitled to maintain the application for cancellation of allotment. Uncertainty on the part of the Municipal Board, Sumerpur:

As noticeable, the contesting parties i.e., the petitioners and the respondent No. 5, have referred to and relied upon the different stands taken and different suggestions made by the Municipal Board, Sumerpur. While the petitioners have referred to the reply said to have been filed by the said Municipal Board on 09.01.1979 (Annex.12) to the Collector, Pali in these proceedings wherein the fact was admitted that the land in question was let out by the Gram Panchayat in the year 1960-61 to Gulab (petitioner No. 1) and Chela son of Bhagaji at a monthly rent Re 1/-per month and the rent upto the period 31.03.1975 was deposited with the Gram Panchayat on 30.08.1974; however, it was also stated therein that for the record of Gram Panchayat of the year 1973-74 having been seized, other information was not available. On the other hand, the respondent No. 5 has referred to a so- called certificate issued by the Executive Officer of the said Municipal Board on 14.10.1982 (Annex. R/V) stating that the stay order passed by the High Court against conversion of Gram Panchayat to Municipality was operative on 09.08.1975 and that the land allotted to Ishaq Mohammed in Khasra No. 53 was a revenue land and continues to be so; and the contesting respondent has further referred to the reply submitted on behalf of the said Municipal Board before the RAA on 18.08.1984 (Annex. R/VI) that it were an agriculture land with the Municipal Board having no right, title or interest therein.

The Municipal Board, Sumerpur (respondent No. 6 herein) has chosen to file a so-called reply to the writ petition also; and this Court is constrained to comment that in the name of reply, the Municipal Board has filed the pleading in an entirely irresponsible manner. From a reading of the said reply, it is extremely difficult to decipher the stand sought to be taken and even to comprehend the meaning from out of the sentences framed. Be that as it may, whatever could be deduced from such pleading is that the said Municipal Board, was unable to reply on the facts relating to the dealings of Gram Panchayat because the record was not traceable; and was unable to state as to which area was given on rent by the Sarpanch of the erstwhile Gram Panchayat without looking into the record. However, the Municipal Board has not disputed the fact about its submissions dated 09.01.1979 (Annex.12) as relied upon by the petitioners. In this regard, the averments as taken by the Municipal Board in paragraph No. 9 of the reply are reproduced, verbatim, hereunder:

That in reply to para No. 9 of the writ petitionit is submitted that the answering non-petitioner No. 6, Have proceeded as par the lawand it is not disputed that the rent was paid by the tenants, rest of the contents are denied, of course, Anneexure-12 was passed.

While otherwise largely maintaining that the facts were required to be replied by the respondent No. 5, the Municipal Board has suggested that the grounds urged by the petitioners were not sustainable but then, it has also been reiterated that the Municipal Board correctly submitted reply to the Collector on the facts concerning letting out of land by the Panchayat in the year 1960. However, according to the Municipal Board, it was only one aspect of the matter; and a question has been posed if it could be said that the authorities have failed to consider the documents. It has also been suggested that it was wrong to say if the allotment could not have been made merely because Khasra No. 53 became abadi land; and, according to the Municipal Board, the allotment could have been made as per Rules. It has further been averred that the land at present belongs to the Municipal Board.

Rival contentions:

Arguing for the petitioners, learned Counsel has pressed his submissions essentially to the effect that the alleged allotment to the respondent No. 5 was fundamentally illegal and could not have been sustained. According to the learned Counsel, if it were a colony area, only the Tehsildar could have made the allotment that too for temporary cultivation and if it were not a colony area and the allotments were to be made under the Rules of 1970, the requisite mandatory procedure was required to be followed and, in any case, the allotment could not have been made by simply granting of an application by the Advisory Committee on the same day it was moved. The other part of submissions of learned Counsel has been that the land being not an unoccupied one and falling in abadi area, could not have at all been allotted as an agricultural land. Learned counsel has elaborated on his submissions that the authorities have failed to consider the grounds urged by the petitioners particularly to the effect that the SDO was not competent to make such an allotment, that the requisite procedure was not followed, and that the Allotment Committee was not consulted. Learned counsel submitted that the so- called allotment order has not been produced and the Sanad (Annex. R/X) as filed by the respondent No. 5 purports to make allotment under the Rules of 1957 though according to the respondent, the allotment was made under the Rules of 1970. In any case, learned Counsel contended, the allotment could not have been made on the very same day of the application.

Learned counsel further submitted that the land in question being in abadi area, was not available to be allotted as an agricultural land. According to the learned Counsel, the land was never used for agricultural purposes and had ceased to be an agricultural land and the same was let out for nonagricultural purposes as evidenced from the documents produced by the petitioners and as admitted by the Municipal Board too. Learned counsel has referred to the decision in Smt. Sarifabibi Mohmed Ibrahim and others Vs. Commissioner of Income Tax, Gujarat,

Learned counsel submitted that if the land was at all intended to be allotted as an agricultural land, that could have been done only by the Tehsildar for the land being comprised in a command area as per the Notification dated 24.06.1958.

Learned counsel submitted that viewed from any angle, the allotment in question being illegal and unauthorised, could not have been approved. It has also been urged that allotment of 2 bighas of land is in contravention of Section 8 of the Prevention of Fragmentation Act and Rule 12 of the Rules of 1970 and even the boundaries of such 2 bighas of land under alleged allotment have not been specified. Learned counsel submitted that the authorities have not considered the questions as posed by the petitioners and have acted illegally in observing that the petitioners have not been able to establish letting out of the land by the Panchayat.

Learned counsel for the contesting respondent on the other hand, vehemently contended that the petitioners are guilty of serious misstatement of facts and of filing baseless and rather fabricated documents. Learned counsel submitted that the petitioners attempted to rely on the decision dated 19.08.1974 (Annex.7) but did not state that the same was set aside in appeal on 19.07.1976 (Annex. R/IX). Learned counsel further referred to the observations in the said decision dated 19.08.1974 and submitted that according to the very case set up by the petitioners, they had lost possession before 24.08.1969 and Anand Singh was in possession. Thus, according to the learned Counsel, the petitioners have no cause to contend in this case. Learned counsel further submitted that the petitioners have purportedly filed certain receipts but then, the finding of fact as rendered by the learned Additional Collector that the petitioners failed to establish themselves being the tenants was not even assailed before the RAA; and the fact was not disputed that they had admitted it to be a vacant land in other proceedings; and even the finding that the petitioner Nathu was in the habit of grabbing other land was also not challenged. Thus, the learned Counsel contended, the submissions sought to be made in this writ petition remain bereft of foundation. With reference to the decision of the Hon�ble Supreme Court in the case of Union of India (UOI) and Others Vs. N.V. Phaneendran, , learned Counsel underscored the submission that the petitioners were not entitled to urge new grounds particularly when the judgment of the learned RAA specifically records that only three grounds were urged by them. Learned counsel further submitted that the belated application as made by the petitioners was rightly rejected by the learned revenue authorities and the petitioners have even failed to furnish any explanation for the delay in moving the application though possession of the land in question was delivered to the contesting respondent and he had been cultivating the same as evidenced from the documents produced on record.

Learned counsel for the contesting respondent further contended that the land in question has been a revenue land that was not vesting in the Municipal Board and referred to Section 92(2)(e) of the Rajasthan Municipalities Act, 1959 and Section 102-A of the Rajasthan Land Revenue Act; and that the land in question was outside Jawai command area as evidenced from the certificate of the concerned department (Annex. R/XX). The learned Counsel further submitted that there was nothing wrong if the allotment was made on the very date of moving the application; and that the petitioners have failed show if there was any contravention of any specific Rule. Learned counsel yet further submitted that the petitioners have no locus standi in the matter because by merely challenging the allotment of respondent No. 5, they would not be entitled to recover possession; and in the set up of the application as made by the petitioners, they were nothing more than complainants and could not have been treated as the persons aggrieved so as to maintain an appeal against the order passed by the Additional Collector. Learned counsel also contended that the reply as submitted by the Municipal Board before this Court is rather contradictory to its assertion before the Revenue Appellate Authority, and is of no consequence.

Learned counsel for the petitioners rejoined with the submissions that the Notification dated 24.06.1958 deals with command land and uncommand land both while fixing different prices and, therefore, it was not correct to contend that an uncommand land would remain out of the purview of the Act of 1954. Learned counsel further submitted that for maintaining the application under Rule 14(4) of the Rules of 1970 and so also for maintaining the appeals and this writ petition, the petitioners were and are very much the persons aggrieved having direct interest in the land in question. Learned counsel submitted that the delay in moving the application before the Collector was duly explained and has further been explained in this writ petition and merely with reference to some delay in moving of the application, the revenue authorities could not have perpetuated the illegality. Learned counsel submitted in the last that even according to the State Government, it was an illegal allotment; and the learned revenue authorities have been in error in not setting the same aside.

The matter is required to be remanded:

Having given a thoughtful consideration to the rival submissions and having scanned through the entire record with reference to the law applicable, this Court is unable to sustain the order and judgments (Annexures 13,14 and 15) as passed in this case by the learned revenue authorities; and the matter is required to be remanded to the Additional Collector for decision afresh on the application as moved by the petitioners.

The application (Annex.11) was moved by the petitioners under Rule 14(4) of the Rules of 1970 read with Rule 18 of the Rules of 1978. On the matter, subject, and purport, the provisions of Rule 18 of the Rules of 1978 and Rule 14(4) of the Rules of 1970 are in pari materia; and for the purpose of this order, suffice it shall be to notice the said Rule 14(4) that reads as under:

(4) The Collector shall have the power to cancel any allotment made by a Sub-Divisional Officer or a Tehsildar under the rules repealed by Rule 21 of the rules either suo-moto or on the application of any person in case the allotment has been secured through fraud or misrepresentation or has been made against rules or in case the allottee has committed breach of any of the conditions of allotment:

Provided that no such order to the prejudice of any person shall be passed without giving such person an opportunity of being heard.

Thus, the fundamental, essential, and real issue calling for determination in the application (Annex.11) as moved by the petitioners was about the legality and validity of the allotment in dispute with reference to the questions as to whether the said allotment was secured through fraud or misrepresentation or had been made against the Rules. The petitioners, apart from suggesting that the land in question was treated as abadi land and was let out to them by the Gram Panchayat, and apart from submitting that the township of Sumerpur was falling in a colony area and no allotment could have been made under the Rules of 1970, had also submitted that the allotment in question was not made by the competent authority nor the Rules were followed nor any applications were invited.

Assuming for the sake of arguments that the other two aspects of the submissions of the petitioners were not to be accepted and the conclusions were reached that it was not an abadi land and that it was not a part of command area; and, consequently, it was to be held that the allotment could have been made under the Rules of 1970, the question, yet, was definitely required to be considered as to whether the allotment in dispute had been made in accordance with the said Rules of 1970. Unfortunately, this relevant question seems to have rather been lost in the heap of other facts and factors.

It has so happened in this case that for the petitioners suggesting that the land in question was let out by the Gram Panchayat as non-agricultural land, a larger part of consideration of learned Additional Collector and so also of the appellate authorities got diverted towards, and revolved around, the singleton aspect of the matter as to whether the petitioners had been able to establish the facts that they were in possession of the land as tenants. The learned Additional Collector considered that there was no document to establish if the land in question was given on rent in the year 1960 and any rent was paid and found that the so-called rent note dated 25.01.1973 as produced by the petitioners was not identifiable with the land in question. The learned Additional Collector also observed that if the petitioners were in possession, assertion would not have been made by them in Appeal No. 55/1974 that it was a vacant piece of land. The learned Additional Collector further referred to the certification from the Municipal Board that the land in question was an agricultural land. Then, the other part of objections of the petitioners was taken up for consideration that the land was falling in Jawai command area and such an objection was overruled with reference to the certificate issued by the Assistant Engineer, Jawai Nahar Division, Sumerpur. The learned Additional Collector also referred to the fact that the petitioner Nathu Ram had encroached over various other pieces of land and applied for regularisation, and found that he was habitual of encroaching over the Government land. With further reference to the notices u/s 91 and Khasra Girdawari, the learned Additional Collector found that the respondent No. 5 was a resident of Sumerpur and had been cultivating the land in question. On these findings the learned Additional Collector held that the applications were required to be rejected.

For the order of remand proposed to be passed, this Court would not like to pronounce finally on the questions involved in the matter but this much is certain that if the allotment in question had been made contrary to the Rules, the authorities concerned would not permit the illegality to be perpetuated even if the petitioners would fail to establish by cogent evidence the fact that the land in question or a part thereof had been let out by the Gram Panchayat, as alleged. In that very sequence, even if the petitioner Nathu is found encroaching over other pieces of land, such an aspect, though leading to doubts on his bonafides, would not lend credibility and legality to the allotment in question. Further, even if other contentions of the petitioners are not accepted and it is held that the land in question was not a part of command area, the only consequence would be the finding that the land in question could have been allotted under the Rules of 1970. But and however, this aspect would also not be decisive of the core question, rather the fundamental and serious question, if the requirements of the said Rules of 1970 were complied with leading to a legally valid allotment. In this matter, the questions for consideration ought to be essentially approached from the angle as to whether the impugned one is a valid allotment made in accordance with law? The question as to whether the petitioners have or had any right in the land in question is rather a secondary one because even if the petitioners would be held having no right therein yet, if the allotment in question is not to be approved, the land in question would definitely remain as Government land, available to be put to use in accordance with law. Similarly, the finding on the question as to whether the land falls within command area or not would not, by itself, be conclusive for determination of the real question regarding legality of the allotment in dispute.

The question as to whether the requisite procedure under the applicable Rules was followed while making such allotment has not even entered into the process of consideration of the learned Additional Collector. In fact, overbearance of the questions as to whether the land was an abadi land and was let out by the Panchayat; as to whether the land in question fell in a command area; and as to whether the applicants had otherwise been bonafide in their conduct has effectively overtaken and rather overhauled the root question calling for determination viz., as to whether the allotment allegedly made in favour of the respondent No. 5 had been a valid allotment made in accordance with law?

The judgment of the learned Revenue Appellate Authority has, again, revolved around the considerations that as per the certificate issued by the Irrigation Department, the land of Khasra No. 53 is out of command area; and that the petitioners have not been able to adduce cogent evidence to show if the alleged 2688 square yards of land of Khasra No. 53 had been on lease with them.

Though learned Counsel for the respondent No. 5 referred to paragraph No. 3 of the impugned judgment dated 20.06.1986 (Annex.14) as passed by the learned Revenue Appellate Authority and attempted to argue that the petitioners urged only three grounds as noticed therein and, therefore, according to the learned Counsel, the petitioners were not entitled to urge new grounds in this petition but this Court is unable to agree with such submissions. In the observations as made by the RAA in paragraph No. 3 of the impugned judgment, the arguments have been noted as if the petitioners suggested that under the Rules of 1978, the allotment was not permissible and that the Collector was the competent authority to make allotment under the Rules of 1978; and such arguments, according to the learned RAA, fell to the ground once it was concluded that the Rules of 1978 were not applicable. The observations and impressions of the learned RAA do not appear standing in accord with the case set up by the petitioners and the grounds urged by them. The submission of the petitioners had been that the land could not have been allotted under the Rules of 1970; and it had further been the case of the petitioners that even when purportedly made under the Rules of 1970, the allotment does not conform to the requirements of the said Rules and other applicable laws. It is rather strange to find in paragraph No. 5 of the impugned judgment dated 20.06.1986 (Annex.14) that according to the RAA, the petitioners contended that allotment was to be made under the Rules of 1978 by the Collector! The questioned allotment had been made in the year 1975 when the Rules of 1978 were not even promulgated; and from the substance of the submissions as made by the petitioners in their application, it is difficult to find if they had suggested any such preposterous a proposition. It is difficult to accept that the learned RAA took into the grip correctly the questions calling for determination; and in the fact situation of this case, the observations as made in the impugned judgment on the impressions of the said appellate authority about the arguments cannot be treated conclusive. Again, the basic and pivotal question about legality of the disputed allotment has not been gone into by the learned RAA.

So far the decision in N.V. Phaneendran (supra) is concerned, therein imposition of the punishment of removal on a Travelling Ticket Examiner by the Divisional Railway Manager [�the DRM�] was challenged before the Central Administrative Tribunal only on the ground that the DRM was not the appointing authority and he was not competent to impose such punishment. It was found by the Hon�ble Supreme Court that the point stood covered by its previous decision in another case. However, when the employee suggested that several contentions were raised on merits but the Tribunal had only dealt with the said issue and request was made to remit the matter for extending an opportunity to the employee to agitate other questions, the Hon�ble Supreme Court did not accept such a prayer particularly after noticing that competence of the DRM was the only point argued before the Tribunal. It is difficult to find in the present case if the learned revenue authorities have taken into comprehension the real questions calling for determination; and, as noticed, the judgment of the learned RAA does not appear having been framed after correct appreciation of the substance of the arguments and the real questions in controversy.

The learned Member of the Board has, again, not considered the real issue about legality of the allotment in dispute and largely addressed to the same questions as to whether the land was in abadi area or not and as to whether the Gram Panchayat leased out the same or not.

It is apparent that excessive dealing and analysis of the submissions that the land was let out as abadi land and/or that the land was in colony area has worked to the effect that the basic, pivotal, significant, and rather the crucial part of the matter as to whether the allotment as made to the respondent No. 5 had been in accord with the Rules or not, has practically been missed by the learned revenue authorities; and, in the context of the application under consideration, such a miss is as good as a mile.

Of course, the authorities alone cannot be faulted for such error of approach because the parties also concentrated much too heavily on the said aspects, rather a bit too far beyond. May be the petitioners chose to harp on the aspect of letting out by the Panchayat because they were keen to assert their rights in the land in question; and then, it were a part of their grounds that the land being comprised in abadi, was not an agricultural land and could not have been allotted as such. But and however, as noticed, even if these submissions of the petitioners were not to be accepted; and even if it were to be assumed that the land in question was not in abadi and was not let out as alleged, that would not have ipso facto furnished legality to the allotment as made in favour the respondent No. 5; nor would have made the allotment a fait accompli.

Several inconsistencies and incongruities in the matter have also been noticed from the material as available on record and as omitted to be produced. The petitioners have maintained that despite request, they were not supplied with the copy of alleged allotment order dated 09.08.1975. It appears that the said allotment order was not produced before the revenue authorities. Such an allotment order has not been produced by the contesting respondent even in this writ petition. Then, the report of Tehsildar dated 08.01.1979, a copy whereof has been filed by the petitioners as Annexure16, seems not to have even gone into the consideration of the learned revenue authorities.

Going by the Sanad dated 27.10.1975 (Annex.R/X) as placed on record by the contesting respondent, it is found that the application was made on 09.08.1975 and allotment of 2 bighas of land in Khasra No. 53 was made on the same date. Interestingly, on the classification of land, it has been stated to be ''Chahi V'' after scoring out the words ''Jawai Doyam''. Then, in the column relating to irrigation facilities, the words were specifically scribed ''Jawai Nahar'' that have been scored out, but apparently by a different ink. Moreover, it is rather inexplicable as to how and why only 2 bighas of land were allotted from out of about 16 bighas and 15 biswas of land of Khasra No. 53; that too on the same day of the application! There is nothing on record to find if proper applications were invited after carrying out all the requirements of the Rules of 1970 including preparation of list of unoccupied lands as required by Rule 5, carrying out exclusions and reservations per Rule 6; issuing of proclamation inviting applications for allotments per Rule 7; registering of applications and enquiry by the Sub-Divisional Officer per Rules 8 to 10; and due adherence to the eligibility and order of priority for allotment. The requirement of Rule 12 that as far as possible the land to be allotted will not be less than 5 acres of unirrigated land cannot be said to be totally irrelevant or redundant and it is rather questionable that merely 2 bighas of land would be allotted out of 16 bighas and 15 biswas of land of Khasra No. 53.

Even with reference to the Jamabandies filed by the contesting respondent, it is but apparent that other part of land of Khasra No. 53 had remained intact and only 2 bighas of land were allotted to him. The submission as cursorily made by the contesting respondent in the reply to the writ petition that duly the applications were invited and the statement in plural form that different pieces of land were allotted to different persons (vide paragraph 15(iv) of the reply) prima facie does not inspire confidence. All said and done, as noticed, serious doubts do crop up from the very document of Sanad as produced by the contesting respondent. The authorities ought to have probed a little farther in the matter. Even in relation to the question as to whether the land in question was otherwise treated to be an abadi land, the facts could not have been ignored that the Municipal Board stated in its reply dated 09.01.1979 (Annex.12) that the land of Khasra No. 53 was let out in the year 1960-61 by the Gram Panchayat and the rent was indeed deposited lastly on 30.08.1974 for the period ending 31.03.1975. The Municipal Board, of course, has played its role in confounding the matter to the maximum; and in contrast to the assertion as made in the communication dated 09.01.1979 (Annex.12), the same Municipal Board purportedly issued a certificate on 14.10.1982 (Annex. R/V) stating that the stay order passed by the High Court against conversion of Gram Panchayat to Municipality was operative on 09.08.1975; and that the land allotted to Ishaq Mohammed in Khasra No. 53 was a revenue land and continues to be so. The Municipal Board further stated before the Revenue Appellate Authority on 18.08.1984 (Annex. R/VI) that the said one was a revenue land and it had no right, title, or interest therein. Then, in the reply as stated before this Court the said Municipal Board would not dispute the fact that rent was paid by the tenants and would also say that the land belongs to it! Leaving such uncertainties and inconsistencies aside for the moment, it is apparent that the matter requires deeper consideration on this question also, as to whether the land in question was treated and used as abadi land.

The learned authorities have proceeded on a consideration that the petitioners have failed to establish if the piece of land allegedly given on rent by the Gram Panchayat had been the same one as that was allotted to the contesting respondent. Such consideration seems to have engulfed, again, the real question in this regard too i.e., as to whether Khasra No. 53 was an agricultural land available for allotment as such or not. This apart, as noticed hereinbefore, the very root question as to whether the allotment was in accordance with the Rules of 1970 or not, seems to have gone unattended by the learned revenue authorities.

Even the objection of the petitioners that the land was comprised in Jawai command area and was not available for allotment under the Rules of 1970 seems not to have been considered by the authorities in accordance with Rules including Rule 3 of the Rules of 1970 and so also the Notification dated 24.06.1958. The authorities have not considered that in a command area, there could be barani and uncommand land also; and the very same Notification dated 24.06.1958 is enough indicator of such a position where in respect of Pali area, different rates have been prescribed for Chahi I,II,III, then for Chai IV, V and Jawai I and II, and for barani and other uncommand land. The certificates as issued by the Assistant Engineer were not conclusive evidence on the question as to whether the questioned one was a command area.

The learned Additional Collector had before him the application as moved by the petitioners and so also the application as moved by the State Government and it was definitely required of him to have thoroughly examined the matter before pronouncing on the said applications. Irrespective of the nature and frame of the arguments advanced by the petitioners, the pivotal consideration ought to have been to find as to whether the allotment in question had been made in accordance with the law. It is, however, apparent that the learned Additional Collector had misdirected himself and with rejection of the case of the petitioners that the land was an abadi land or that it was falling in colony area, assumed that the application was required to be rejected. The same error of approach has percolated in the considerations of the learned Appellate Authorities too. This Court is unable to find specific and considered finding by the authorities concerned that the alleged allotment conformed to the requirements of the Rules of 1970, if at all made under the said Rules as alleged by the respondent No. 5 and, therefore, the matter deserves to be remanded for reconsideration by the Additional Collector.

For the matter being remanded for reconsideration by the Additional Collector, other aspects of the matter and the arguments as advanced by the learned Counsel for the parties in this writ petition are not required to be, and are not, dealt with. However, it may be observed that the submission as made on behalf of the contesting respondent regarding delay in moving of the application by the petitioners is not countenanced by this Court looking to the overall circumstances of this case; and merely for such delay, the authorities are not precluded from examining the legality of the allotment in question. It is, however, made clear that other observations have been made herein essentially to indicate the questions calling for determination and the angle of approach required to be adopted; and else, this Court has not finally pronounced on the merits of any issue.

It may be pointed out that during the pendency of this writ petition the original petitioners-applicants expired and their legal representatives were substituted in their place. The said legal representative shall stand substituted as applicants in the said application (Annex.11) that shall stand restored for reconsideration of the learned Additional Collector, Pali in accordance with law. Further, during the pendency of this writ petition, the respondent No. 5 has purportedly alienated the land in question to the respondent Nos.7 to 10 who were joined as parties in this writ petition. The respondent Nos.7 to 10 herein shall also stand added as the non-applicants in the said application By way of an interim order as passed in this case on 24.08.1993, the respondents were directed to maintain status quo. In the interest of justice, it appears appropriate that status quo should further be maintained until final decision of the matter by the Additional Collector.

Before concluding, this Court is constrained to observe that the role of the Municipal Board, Sumerpur in this matter had neither been free from doubt nor befitting a statutory body. It had regularly been maintained by the said Municipal Board that the record of Panchayat concerning the facts relating to letting out of the land was not available and yet a reply was submitted to the Collector on 09.01.1979 (Annex.12) admitting the fact that the land was let out by the Panchayat. Then, the said Municipal Board on 14.10.1982 issued a certificate (Annex. R/V), only a few days before the Additional Collector passed the impugned order on 05.11.1982, to the effect that the land in question was a revenue land. It is not borne out as to whom this certificate was issued, and why? Then, a so- called reply was submitted before the RAA on 18.08.1984 (Annex. R/VI) by the said Municipal Board stating that it were an agricultural land and itself having no right therein. However, in the reply to this writ petition, the said Municipal Board would state admission about its reply (Annex.12) as submitted to the Additional Collector and would also claim that the land belongs to it; and then, in the name of reply to the writ petition, the pleading has been placed before this Court by the said Municipal Board in such an irresponsible manner that most of its contents hardly convey any meaning, apart from typographical errors galore.

However, as the matter is being remanded to the Additional Collector essentially for consideration of the question of legality and validity of the allotment in dispute, the shortcomings on the part of the Municipal Board are left at that only but it is made clear that if so desired by the Additional Collector, it shall be required of the said Municipal Board to clarify its stand; and if the Municipal Board be found wanting in making proper and exact submissions, it shall be permissible for the Additional Collector to take all steps/proceedings as considered proper and necessary against the erring officers/staff of the said Municipal Board.

Conclusions:

As a result of the aforesaid, this writ petition succeeds and is allowed to the extent indicated above; the impugned order/judgments dated 05.11.1982 (Annex.13), 20.06.1986 (Annex.14), and 20.07.1990 (Annex.15) are quashed and set aside; the application as made by the petitioners under Rule 14 (4) of the Rules of 1970 read with Rule 18 of the Rules of 1978 shall stand restored to its number for reconsideration and decision of the Additional Collector, Pali in accordance with law; the legal representatives of the deceased petitioners shall stand substituted as applicants in the said application; and, apart from the parties already joined, the respondents Nos.7 to 10 herein shall also stand impleaded as the non- applicants in the said application. Status quo in relation to the land in dispute shall be maintained by all the concerned until final disposal of the matter by the said Additional Collector. The parties present before this Court shall stand at notice through their counsel to appear before the Additional Collector, Pali on 17.11.2008.

In the circumstances of the case, there shall be no order as to costs of this writ petition.