Niranjan Das and Others vs Board of Revenue and Others

Rajesh Balia, J.—Heard learned Counsel for the petitioner.

The petitioners are transferee of land allotted to one Nanak Ram on 16.10.1957. Nanak Ram had executed a Power of Attorney in favour of Shyamlal who had sold the land in question to the petitioners on different dates.

According to facts recorded by the Board of Revenue whose order is challenged in this petition the transfer had taken place between 17.2.1968 to 18.2.1968. Whereas according to petitioners it is now contended that in fact it has taken place on 10.2.1967. As the land in question was governed by the Colonisation Act, u/s 13 of the said Act as it was in operation at the relevant time any said transfer or sub-lease or charge made without consent in waiting of the State Govt. or for officer authorised by the State Govt. in this behalf was void. Invoking this provision by order dt. 5.1.1968 the allotment made in favour of Nanak Ram was cancelled and the land was resumed in favour of the State. The Tehsildar was directed to take possession of the land after standing crop has been harvested.

In pursuance of the aforesaid order on 19.7.1976 the Tehsildar directed the Nayab Tehsildar to resume the land. That order came into being on making an application by widow of Nanak Ram, who had died in between, that the land was in the name of her husband, possession may be given to her. It appears that Board of Revenue suo motu exercised its power of revision and set aside the order passed by the Tehsildar dt. 19.7.1976 along with order dt. 5.1.1968 against which also no revision has been filed by any one, inter alia on the ground that transferees have not been heard and since the transferees continued to remain in possession for 10 years after making of the order in 1968 they should not be ejected as late as after almost 10 years of the order dt. 5.1.1968. In pursuance thereof he left it to Collector to take a fresh action in accordance with law under the provisions of law. It further directed that all the parties involved in the present case should be made parties before making fresh order.

Against the said order dt. 31.5.1982 the State preferred a Special Appeal which was rejected by the Board of Revenue by its order dt. 20.4.1990.

Aggrieved with the order dt. 20th April, 1990 a D.B. Civil Writ Petition No. 4173/90 was filed by one Vidhya Dhar and two other D.B. Civil Writ Petitions filed by Smt. Meera and Jiwan Ram who had been allotted the land, in the meantime on 19.7.1976, and who had not been heard before making order dt. 31st May, 1982. A Division Bench of this Court allowed the said writ petitions by holding that the persons in whom rights have been created vide allotment dt. 19.7.1976 ought to have been given opportunity of hearing before making any adverse order against them. In view thereof the Court set aside the order of the Board of Revenue dt. 31.5.1982 as well as 20.4.1990 and directed the Board of Revenue to re-decide the matter afresh by affording proper opportunities to all the concerned parties to put their rival contentions before it. Thereafter the Board of Revenue has passed the impugned order dt. 29.5.1998. In pursuance of the direction contained in a common decision in three writ petitions. The earlier revision No. 88/77 was restored. The Board found that order passed on 5.1.1968 was in the interest of State as transfers have taken place in violation of Sections 13 and 14 of the Colonisation Act. Anybody who had purchased land in violation of Sections 13 and 14 of the Act had purchased at his own risk. Thereafter while land stood resumed in favour of the State, the said land has been allotted to the applicants allottees on 19.7.1976 in whose favour order has been issued. No relief was granted to the transferees and their revision was dismissed. A review application was filed by the present petitioners which was rejected by the order dt. 4.2.2000. Hence this petition.

It has been contended by Mr. Bhandari, learned Counsel for the petitioner that Board of Revenue has seriously erred in not noticing the fact the transfers in favour of petitioner has taken place prior to order dt. 5.1.1968, on the basis of which alone the said order has been made resuming the land allotted to Nanak Ram in favour of the State. By noticing incorrect date of transfers subsequent to date of resumption, the decision of the Board of Revenue has been seriously affected on merits. It was also contended by Mr. Bhandari that Board of Revenue has not considered that in view of provisions of Section 13-A, the transactions made in violation of Section 13 were liable to be considered for regularisation. By not considering the provisions of law and giving effect to it by validating the sales made in favour of the petitioners the rights of the petitioners have been seriously affected. According to learned Counsel these errors are patent on the face of order.

Having considered the contentions of the learned Counsel for the petitioner I regret my inability to sustain the same.

The undisputed facts are that the transfers has been made in favour of the petitioners of the land allotted to Nanak Ram had been made in violation of Section 13 without sanction of the State Government in writing as per the provision was in force on the date of transfers which according to petitioners was 18.2.1967. Sub-section (2) of Section 13 only declared the transactions in violation of Sub-section (1) to be void and not voidable or subject to any proceedings. The order passed on 5.1.1968 therefore, accorded with the law as was prevalent on that date by declaring the transaction void u/s 13(2) by not recognising the same and resuming the land in favour of the State the consequences provided under the Act. That order remained unchallenged. It was only when the Tehsildar directed the Nayab Tehsildar to evict the petitioner from the land in question the consequential order of eviction has only been challenged. By that time the fresh allotment has already been made in favour of respondent Nos. 6 to 8 on 19.7.1976. As on that date no provision of validating the void transaction by regularising the transfers made in breach of violation of Section 13 was in force. Section 13-A for the first time was inserted w.e.f. 5.8.1983 by Act No. 12 of 1983 which was later on substituted on 4.5.1984 vide Act No. 12 of 1984. Section 13-A did provide validation of transfers in violation of Section 13 prior to the date on which Section 13-A had been inserted. It enabled the Collector or authorised Officer to declare such transfer to be valid only on an application being made in that behalf within 180 days of the commencement of the provision. Therefore, the amendment did not envisage automatic validation of the transfer made in violation of Section 13, prior to that date nor right to validation was an absolute one. Ordinarily if order of resumption was not given effect, the transactions which were void u/s 13 could be declared valid by the Competent Officer on conditions being fulfilled as laid u/s 13-A. Undisputedly application u/s 13-A for validating the transactions made in violation of Section 13, had never been made whether within 180 days of insertion of Section 13-A or even after order dt. 13.1.1982 was set aside and matter was remanded back to the Board of Revenue on 13th December 1991. Thus there is no room for argument that the Board of Revenue ought to have considered the question of declaring valid the transactions made in favour of the petitioners, which were undeniably void u/s 13, in the light of Section 13-A.

Moreover as on the date order dt. 5.1.1968 was made, the transactions in favour of the petitioner were void by operation of law and not by dint of the order dt. 5.1.1968. That being the position after the order dt. 5.1.1968, the order was issued resuming the land in favour of the State, the Competent Authority was free to allot the land to other applicants and in fact such land has been allotted in favour of respondents 6, 7 and 8. Thus new rights were created in such land when there was no impediment against creation of such rights in favour of respondents No. 6, 7 and 8. Those vested rights could not have been altered to their detriment by subsequent enabling provisions of validating such transaction made prior to insertion of Section 13-A in the Colonisation Act.

Thus in my opinion the date of transfer whether 10.2.1967 or 17.2.1966 is not relevant for the present controversy and Board of Revenue having founded its decision on the provisions of Section 13 has not committed any error apparent on the fact of record. There being no application u/s 13-A it cannot be said that Board of Revenue has committed any error by not taking into consideration the claim of the petitioner, about validation of transactions made in his favour.

As a result this petition fails and is hereby dismissed,