Prabhat and Another vs Board of Revenue and Others

Mahendra Bhushan Sharma, J.—Khasra No. 957 measuring 957 measuring 9 Bighas 1 biswas situated in Gram Dhani Lali Tehsil Jamuaramgarh was recorded as Gair Mumkin Rasta.'' Out of that land the said khasra No. 957, 8 bighas, four bighas to each of the petitioners, was allotted by the SDO Amber under his order dated October 29, 1977 under the Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970 (for short, the Rules). The possession of the land was also given to the petitioner some time in the month of January, 1978. An application was made by the non-petitioner No, 3 under sub-rule (4) of Rule 14 of the Rules before the Additional Collector, Jaipur. In the said application it was stated that the nature of the land was ''Gair Mumkin'' and the same could not be allotted under the Rules. The Additional Collector dismissed that application. Aggrieved by the aforesaid order of the Addl. Collector dated July 17, 1978, the non-petitioner No. 3 preferred an appeal before the Revenue Appellate Authority on August 5, 1978 and the said authority dismissed the appeal on the ground that the non-petitioner No. 3 has no locus standi. The non-petitioner No. 3 then went to the Board of Revenue in revision and the Board of Revenue on August 12, 1985 allowed the revision petition.

The petitioners have challenged the aforesaid order of the Board of Revenue on the ground that the non-petitioners No. 3 was not an aggrieved party and he has no locus standi to file the revision petition before the Board of Revenue. It is also contended by Mr. Pareek, learned counsel for the petitioner that ''Gair Mumkin Rasia'' could also be allotted under the Rules. In support of his contention, Mr. Pareek placed reliance on Durga Prasad v. Pannalal 1977 RRD 673, a Full Bench decision of the Board of Revenue.

Learned Member, Board of Revenue has taken a view that the nature of the land as per the revenue record was Gair Mumkin Rasta. The Land was that such which may be meant for public purpose, and as such u/s 16 of the Rajasthan Tenancy Act, Khatedari right could not accrue on such land. Therefore, the land was not available under Rule 14 of the Rules for allotment to the petitioners. The allotment was not in accordance with law and under Sub-rule (4) of Rule 14 on an application the same could be set aside It can hardly be disputed that all the villagers have a right of passage through any land which is recorded as Rasta. It has come in the order of the Board of Revenue that in the application under Rule 14(4) of the Rules and it was also contended on behalf of the complainant non-petitioner No. 3 that the only way to various dhanis was through Khasra No. 957 which was entered as Gair Mumkin Rasta in the revenue records. It can therefore be said that u/s 16(6) of the Rajasthan Tenancy Act khatedari rights could not accrue in respect of land in dispute which was recorded as Gair Mumkin Rasta and only was meant for public purpose. Therefore, under Rule 4 of the Rules the land was not available for allotment. The allotment made by the Sub Divisional Officer was hi contravention of the Rules. In Durga Prasad''s case (supra) the Full Bench of the Board of Revenue took a view that the Sub-Divisional Officer has no power to change the classification of soil. The Full Bench was considering the case where the land was recorded as Gair Mumkin Pahaci, and not a case where the land was recorded as Gair Mumkin Rasta. Gair Mumkin Pahad may not be the same land which may fall u/s 16(6) but Gair Mumkin Rasta is such land which will fall u/s 16(6) as it is meant for public purpose. The Full Bench said that the effect is that the lands recorded as Gair Mumkin which are not covered by Section 16 of the Tenancy Act or otherwise are not excluded by Rule 4 of the 1970 Allotment Rules are available for allotment under these rules. Thus, the Full Bench itself expressed that if the and is such which is covered by Section 16 of the Tenancy Act, the same shall not be available for allotment under Rule 4 of the Rules. As stated earlier the land who entered as Gair Mumkin Rasta in the revenue records and as such which falls u/s 16 of the Act and as such no khatedari right accrued and the same could not be available for allotment.

I need not go into the question whether the non-petitioner No. 3 has locus standi or not in detail. Prima facie, in my opinion the non-petitioner being villager has a right to use the land and as such could file an application before the Collector for cancellation of allotment on the ground that the same has been allotted in contravention of the Rules, Even otherwise this Court will not interfere in the order of the Board of Revenue if the interference will amount to restoration of an illegal order. Reference is made to Jagan Singh Vs. State Transport Appellate Tribunal, Rajasthan and Another, to which I was also a party.

The writ petition has no force. It is hereby dismissed summarily.