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RAM PRATAP versus STATE & ORS

High Court of Rajasthan

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RAM PRATAP v STATE & ORS - CW Case No. 2003 of 1998 [2005] RD-RJ 1143 (13 July 2005)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

ORDER

Ram Pratap v. State of Rajasthan & Ors.

S.B.CIVIL WRIT PETITION NO.2003/1998 under Articles 226 and 227 of the

Constitution of India. 13th July, 2005

Date of Order :

PRESENT

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. Varun Goyal, for the petitioner.

Mr. B.L.Tiwari, Addl.Govt.Advocate.

BY THE COURT :

By this petition for writ a challenge is given by the petitioner to the order of Board of

Revenue Rajasthan, Ajmer dated 1.5.1998 accepting the reference made by the Collector, Sriganganagar under

Section 82 of the Rajasthan Land Revenue Act, 1956

(hereinafter referred to as "the Act of 1956") with recommendation to cancel the allotment of small patch of land made in favour of the petitioner by the Sub

Divisional Officer (Revenue), Raisinghnagar by order dated 14.5.1990.

The factual matrix required to be noticed are that by order dated 14.5.1990 Sub Divisional Officer

(Revenue), Raisinghnagar while exercising powers conferred under the provisions of the Rajasthan

Colonisation (Gang Canal Permanent Allotment and Sale)

Rules, 1956 (hereinafter referred to as "the Rules of 1956") allotted a piece of land measuring 4 bighas bearing kila Nos.5, 6, 15 and 16 of murrabba No.16, chak Thakari as small patch.

As a consequence of order dated 14.5.1990 the petitioner deposited the entire amount against consideration for allotment in instalments and the khatedari rights too were conferred with the petitioner in accordance with the provisions of the

Rajasthan Colonisation (General Colony Conditions)

Rules, 1955. A sanad was issued in the name of the petitioner by Collector, Sriganganagar under an order dated 27.2.1992.

A challenge by way of filing an appeal was given to the order dated 14.5.1990 by one Shri

Rajjiram before the Revenue Appellate Authority,

Sriganganagar. The Revenue Appellate Authority dismissed the appeal by judgment dated 26.10.1990.

The Collector, Sriganganagar by an order dated 2.5.1995 made a reference under Section 82 of the Act of 1956 to Board of Revenue, Ajmer for setting aside the order of allotment dated 14.5.1990. The

Board of Revenue by judgment impugned dated 1.5.1998 accepted the reference and quashed the order of allotment dated 14.5.1990. Hence the present writ petition is preferred by the petitioner.

The contention of the counsel for the petitioner is that the Board of Revenue while accepting the reference vide the judgment impugned dated 1.5.1998 erred while holding that the land measuring 9 bighas was erroneously allotted being in contravention of the Rules of 1956.

A reply to the writ petition has been filed on behalf of the respondents defending the order passed by the Board of Revenue.

I have heard the counsel for the parties and also scanned the documents placed on record including the judgment impugned.

The factual position as stated in the writ petition is not at all in dispute. The Board of

Revenue by judgment impugned dated 1.5.1998 accepted the reference and quashed the order dated 14.5.1990 on three counts, those are:-

"(1)the land measuring 9 bighas was allotted in the form of small patch whereas there was no small patch and 9 bighas land is not fragment under the Rules of 1956;

(2)as per report of the Collector the petitioner was not having adjoining land; and

(3)small patch of the land could have been allotted by way of auction amongst the persons having adjoining murrabba but no such procedure was adhered while making allotment of land in favour of the petitioner."

At the threshold Shri Varun Goyal, counsel for the petitioner pointed out the factual error made by the Board of Revenue to the effect that though a land measuring 4 bighas was allotted to the petitioner as small patch, the Board of Revenue treated and considered it 9 bighas. The factual error is apparent from reading of judgment impugned and the order dated 14.5.1990. By order dated 14.5.1990 only 4 bighas of land was allotted to the petitioner as small patch.

It is contended by the counsel for the petitioner that the land allotted to him is a small patch and is fragment under the Rules of 1956. It is pointed out by the counsel appearing on behalf of the petitioner that under sub-rule(2) of Rule 3 of the

Rules of 1956 notwithstanding anything contained in

Rule 4 small patch of land upto 5 bighas of irrigated land or 10 bighas of unirrigated land may be sold to a person holding land in same square or a person holding adjoining land if the person is prepared to pay index price in four yearly instalments.

From reading of the provisions of sub-rule(2) of Rule 3 of the Rules of 1956 it is apparent that to the extent of 5 bighas of irrigated land and 10 bighas of unirrigated land may be sold as small patch to the person eligible. In the present case 4 bighas unirrigated land was allotted to the petitioner as a small patch, therefore, there was no violation of sub- rule(2) of Rule 3 of the Rules of 1956. The Board of

Revenue committed a patent error while holding that the land measuring 9 bighas was wrongly allotted to the petitioner as small patch.

The Board of Revenue also erred while holding that the petitioner was not having adjoining land to the small patch. The Board of Revenue based this finding on a report given by the Collector. The Board of Revenue no where mentioned in the order impugned about factual foundation referred by the Collector in his report. The application for reference which is available on record also not bear such details. The

Collector simply stated that the land of the petitioner is not adjoining to the small patch.

Contrary to it, a map is placed on record by the petitioner showing physical possession of the land according to that the small patch is having common boundary with the land of the petitioner.

In view of it the finding given by the Board of Revenue as referred above is also not correct.

The Board of Revenue by judgment impugned also held that if two persons are having adjoining murrabba then the small patch if any should have been allotted by way of auction and no such procedure was adhered by the Sub Divisional Officer while making allotment of small patch to the petitioner. The proviso to sub-rule(2) of Rule 3 of the Rules of 1956 provides that if there are more than one person holding the land in same square or a person holding adjoining land who wants to purchase the small patch, the land shall be put up to auction and given to the highest bidder amongst the persons holding the land in the same square or a person holding adjoining land.

The proviso referred above in quite unambiguous terms provides that if there are more than one person holding the land in same square or a person holding adjoining land who wants to purchase the small patch then only the land is required to be placed for auction.

In the present case the petitioner in quite unambiguous terms stated in the writ petition that no one except him was interested to purchase the land which was allotted to him as a small patch. This fact is not denied by the respondents.

The Board of Revenue failed to appreciate the provisions of proviso appended with sub-rule(2) of

Rule 3 of the Rules of 1956. No non compliance of the procedure required to be adhered while making allotment of a small patch exists.

In view of discussion made above I am is of considered opinion that the Board of Revenue committed error apparent while accepting the reference by judgment impugned dated 1.5.1998. The judgment impugned, therefore, deserves to be quashed and the same is hereby quashed. The writ petition is accordingly allowed.

No order as to costs.

( GOVIND MATHUR ),J. kkm/ps.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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