At, High Court of Rajasthan
By, THE HONOURABLE MR. JUSTICE A.M. SAPRE & THE HONOURABLE MR. JUSTICE NARENDRA KUMAR JAIN
For the Appellants: N.L. Joshi, Advocate. For the Respondents: Hemant Choudhary, Govt. Counsel, R4, B.N. Kalla, Advocate.
1. This is an intra Court appeal filed by the writ petitioner of W.P. No. 3086 of 1990 under Rule 134 of the Rajasthan High Court Rules, 1952 against an order dated 19.9.2002 passed by Single judge in aforementioned writ petition.
2. By impugned order, the learned Single judge in substance dismissed the appellant's writ petition and upheld the order of the Board of Revenue challenged in the writ petition.
3. So the question arises for consideration in this appeal
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is whether learned Single Judge was justified in dismissing the appellant' writ petition?
4. Facts of the case are these.
5. The dispute in this case is between one Late Chandan Singh (who is now represented by his legal representatives as appellants herein) and Heera Singh, the respondent No. 4. It related to an agriculture land bearing Khasra No. 239 measuring 20 Bighas and 16 biswas situated in village Kallasar.
6. By order date 10.1.1983, this land was allotted to Chandan Singh by Sub Divisional Officer (annexure-4). The respondent No. 4 felt aggrieved of this allotment, filed an appeal before the Revenue Appellate Court (camp Ganganagar) on the ground that since he was in possession of the land and hence it could not have been allowed to Chandan Singh. The Appellate Authority by its order 17.9.1983 allowed the appeal and set aside the allotment order on the ground that respondent No. 4 was in possession of the land and it could not have been allotted to him. Chandan Singh felt aggrieved of this order, filed appeal before the Board of Revenue. The Board by its order dt 3.3.1986 dismissed the appellants appeal on the ground that the Advisory Committee which decided the allotment case was not validly constituted for want of its quorum and secondly since respondent No. 4 was in possession of the land in question and hence also, it could not have been allotted to Chandan Singh under the Rules. Chandan Singh felt aggrieved of this order, filed the writ petition out of which this intra Court appeal arises. The writ Court though dismissed the writ petition but held that constitution of advisory -committee, which decided the case of allotment of land in question was properly constituted. It was however held that since the respondent No. 4 was found to be in possession by all the Revenue authorities and hence it being a finding of fact, would be binding on the writ Court. It is with these findings the writ petition was dismissed. It is against this order Chandan Singh felt aggrieved and filed this appeal. During pendency of this appeal, Chandan Singh died and hence present appellants were brought on record as his legal representatives to continue the lis for and on behalf of Late Chandan Singh.
7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow this appeal in part and while setting aside of the impugned orders, remand the case to, the Advisory Committee to decide the matter afresh in light of Rules applicable to the case.
8. In our considered opinion, before making the allotment, it was necessary for the committee to examine as to whether person to whom the land is being allotted is a "land less Agriculturist" as defined under Rule 2 (iii-B) of Rajasthan Land Revenue (Allotment of land for Agriculture Purpose) Rules 1970 (for short hereinafter called "the Rules" and whether land which is being allotted is available for such allotment as per Rules or not? This inquiry in this case does not seem to have been done. Similarly, there is no categorical finding recorded as to what was the nature of possession of respondent No. 4 on the land in question i.e. whether it was lawful by virtue of some grant or ownership rights or he was just a trespasser on the land having no right, title and interest in the land. In other words, his being in possession by itself was not of much significance unless the finding relating to his nature of possession was also recorded. This was not done. It is for these reasons, we are of the view that the case has to go back to Advisory Committee for deciding the issue of allotment afresh keeping in view the aforementioned observations of this court and further keeping in view the requirements of Rules.
In the light of forgoing discussion, appeal succeeds and is allowed. Impugned orders are set aside. The case is remanded to Advisory Committee for deciding the application of Chandan Singh (now represented by his legal representatives i.e. appellant's herein) afresh. Needless to say, respondent No. 4 would also be heard in the inquiry to be now made by the Advisory Committee while examining the case of allotment to appellants. Let the proceedings be completed by the committee within 6 months from the date of this order. Parties should file the copy of this order before the committee to enable them to decide the matter as directed.