J.C. Verma, J.
1. The petitioners are Bhagwana son of Sadda Jat and Poona, Sohan and Heera sons of Shawano Jat i.e. father and the sons, resident of village Sadari, Tahsil Desuri, District Pali and are aggrieved against the orders dated 25-1-1991 (Annexure-7) passed by the Collector, Pali; 29-6-1991 passed by the Revenue Appellate Authority-II, Jodhpur (Annexure-9) and order dated 6-2-1992 passed by the Board of Revenue (Annexure-10), with a further prayer for a direction to the concerned respondents to convert the land involved in the writ petition comprising in Khasra No. 4559 as cultivable agricultural land and also to regularise the possession of the petitioners on the said land.
2. It is submitted that the agricultural land 7.75 Bighas comprising in Khasra No. 580 situated in village Sadari was being cultivated by the petitioners for years together. This khasra number was renumbered and part of this khasra number measuring 0.68 hectare was re-allocated as Khasra No. 4559 and the remaining area of earlier khasra number was re-allocated as Khasra No. 4560 which measured 0.73 hectares. Reliance has been placed on Annexure-1 wherein such khasra number has been so changed. To show that the petitioners were in possession of the land, the petitioners rely on Khasra Parivartan Nirdharan Sheet attached as Annexures-2 to 5 to regard to the land aforesaid. It is stated that the petitioners had applied for regularisation of the land in their possession and a report was submitted by the Tehsildar Dcsuri on 2-9-1978 vide Annexure-6 and it was reported by the Tehsildar that the petitioners were in possession of the land and their possession was very old. It was further submitted that the petitioners were landless persons and were not possessing any khatedari. Instead of regularising the possession of the petitioners, an order was passed to dispossess the petitioner, however, according to the petitioners they were never dispossessed as is clear from revenue document Annexures-2 to 5.
3. It is the grievance of the petitioner that out of the said land a part of land measuring 0.68 hectares comprising in KhasraNo. 4559 is said to have been allotted to the respondent No. 2 Shri Kishan Lal son of Charan Singh Dhobi resident of Pali vide order dated 25-1-1991, copy of which has been attached as Annexure-7. It is stated that despite the fact that the petitioners were in possession of the land, they were not informed of any such allotment to any other person and when they had acquired the knowledge of such allotment on 20-4-1991, they approached the Collector for undoing the same vide their application Annex. 8. However, their request was not agreed to. Appeal filed by the petitioner was dismissed on 29-6-1991 vide An-nexure-9 and further a
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ppeal to Board of Revenue was also dismissed on 6-2-1992 vide Annexure-10. The petitioners are aggrieved against the order Annexures-7, 9 and 10 with the prayer as mentioned above.
4. It is stated by the petitioners that they were in possession of the land and the land was being cultivated by them and was available for allotment to the petitioners, and without any notice to any of the petitioners the land had been allotted to the respondent No. 2 by the impugned order Annexure-7. It is further stated that even though the land in question has been shown as Gair Mumkin Bhakar, but they had made the land cultivable by their hard labour and had transformed the land into arable land and the land was hearing crops. For the reason that the land was under crops, it could not have been allotted for the purpose of construction of hotels under the provisions of Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Construction of Cinema, Hotel and Establishment of Petrol Pump) Rules, 1978 (hereinafter called as Rules of 1978). It is further submitted by the petitioners that the land is said to have been allotted by the Collector to respondent No. 2 by considering the landas 'Barani Doyum' whereas in the revenue record the land is shown as Gair Mumkin Bhakar. It is submitted that the Gair Mumkin Bhakar land could not have been allotted according to record without changing the category of land and thus the allotment itself is illegal and void ab initio. As already submitted because of their old possession and because of land had been converted into agriculture by the petitioners, it was their entitlement to retain the land.
5. The impugned order Annexure-7 reads that an application has been received from Kishan Lal son of Charan Singh (respondent No. 2) by caste dhobi for allotment of Khasra No. 4559 measuring 0.68 hectares, a land shown as 'Barani Doyum' for the purpose of establishment of hotel. It is stated that because of the reason that the land is situated outside the limits of Nagar Palika Sadari and the land was inspected and proposal was made and, therefore, under the Rules of 1978 the land is allotted to respondent No, 2 on the conditions mentioned therein.
6. It has been noticed in the order Annexure-9, an appel late order, that as per the copies of the revenue record initial Khasra No. 580 measuring 1766 Bighas and 18 Biswas, the appellant have been shown to be in possession since Samvat Year 2016. It is further mentioned by the appellate Court that as per revenue record of Samvat year 2046-47 Khasra No. 4559 is possessed by Poona, Heera sons of Bhagwana and it is found in the revenue record that the appellants-writ petitioners were in possession of the land of Khasra Nos. 4559 and 4560 since Samvat year 2016. It is further found by the appellate Court that the property in dispute is classified as Bhakar land and it is not beneficial to cultivate the said land. Because of the reason that no crop has been shown for Samvat years 2046-47, therefore, despite the recommendation having been made to regularise the land in favour of the petitioners. the petitioners are not entitled to any title on the land. The appeal was dismissed.
7. The Board of Revenue, Rajasthan, Ajmer in its impugned order Annexure-10 had observed that it cannot be proved that the possession of the petitioners was authorised possession. It is stated that the possession of the petitioners is as trespasser. For the reason that the allotment has not been made for agricultural purposes and it has been made for construction under 1978 Rules and thus, the rules do not bar allotment of Gair Mumkin land.
8. Reply has been filed by the respondents and it has been stated that the land in question is not worth cultivation as it was a Gair Mumkin Bhakar being hillock land. It is further stated that because of the reason that the land in question was not regularised in favour of the petitioners, therefore, no right had accrued in their favour. It is further submitted that the petitioners were trespassers and ejected in pursuance of the order of ejectment passed on 28-1-1991. It is stated that no notice was required to be given to the petitioners and petitioners had no right or title on the land and, therefore, no illegality has been committed by the respondents in allotting the land to the respondent No. 1.
9. Record was called in the present case for perusal and to see as to in what circumstances the land was allotted to the respondent No. 1. On the record, there is an application dated 8-11 -89 sent by Kishan Lal addressed to the Collector, Pali for allotting the said land to him wherein the soil has been shown as Barani-II. A map had also been attached. The respondent No. 2 had also attached a map of the hotel showing the location of Jhupas, tank and well and lawn. This application seems to have been given by hand. A report dated 1-12-1989 is said to have been made by the S.D.O., Pali "showing the location and price etc. of land. It is addressed to the District Collector, Pali. However, it is not clear as to in what circumstances he had submitted his report. He is said to have inspected the spot on 18-11-1989 because of the reason that the Collector had directed the S.D.O., Pali to report as per order made on 10-11-1989. There is one order of the Government at page 12 of the file to show that the village Sadari has been converted into Nagar Palika. Despite the notification a report is said to have been made on 15-1-1990 to the effect that the proposed land is situated in revenue village Sadari which does not contain the limits of Municipality, whereas vide Notification No. F. 1(33)SLG/A/58, dated 14-7-1961 the town of Sadari has been converted into Municipality. However, it is reported that the land in question does not fall within Nagar Palika area. There is another notification extending the limits of the Municipality in the year 1978. At page 24 the Collector, Pali had intimated the Tehsildar that Khasra No. 4559 measuring 0.68 Barani Sivay has been allotted to Kishanlal, for the purpose of establishment of hotel and vide another letter dated 4-10-1990 the Collector had written to the S.D.O., Pali to inspect the site and convey the rates of the agricultural land surrounding Khasra No. 4559. Interestingly enough, in reply to letter dated 4-10-1990 a report is made on the next day and the land is allotted by the Collector by impugned order. Not only the land is allotted to respondent No. 2, but immediately thereafter steps are taken by the Rajasthan Financial Corporation to sanction the financial assistance to said Kishan Lal for establishment of hotel which is found at pages 107 and 108 of the file. Even no objection certificate for conversion of the land is also sanctioned in the month of August, 1991 by the Tourism Department, in the meantime the present writ petition had been filed. Vide another order the District Collector, Pali on 6-9-1992 had modified the earlier order in regard to monthly rent to be recovered from the allottee-respondent No. 2. The monthly rent had been reduced from Rs. 1219.92 to Rs. 609.96 on the ground that earlier wrong report has been made about the location of the site to the effect whether it is beyond Municipal limits or within Municipal limits. Slay order had been issued by the High Court in regard to raising of construction vide order dated 26-5-1992. An application has also been made by Kishan Lal at page 143 for not recovering any rent from him and to allot land to him free of any rent which was examined by the Collector. The Government had further decided vide letter No. F. 12(3)(159) RAJ/89/4988, dated 20-9-1993 to the effect that during the pendency of the writ petition filed by the petitioners even the monthly rent should not be recovered from the petitioners. It is also again reiterated by the officer-in-charge, Revenue Branch of the office of the Collector, Pali vide its order dated 8-2-1995 appearing at page 175 of the file.
10. From the above narration of the facts gathered from the original file produced for perusal it is very clear that on bare making of the application by the respondent No. 2, in the month of November 1989, things have started moving very swiftly. The rent was assessed, fixed, reduced and then also stayed by the authorities. From the record it is very clear that the department had not even asked for or even invited any applications from the public for establishment of any such hotel. Only because of the reason that some land had been mentioned by the respondent No. 2, it was given to him on his asking and the formalities were completed by the Collector in unheard and unknown haste. No notice was issued to the occupants even though termed to be trespassers i.e. the petitioners. No objections were invited. But still the land was allotted as per asking.
11. What do the rules say in regard to allotment of land for agricultural purposes. There are rules called Rajasthan Land Revenue (Allotment for Agricultural Purposes) Rules, 1970 (hereinafter called as the Rules of 1970). These rules are meant to allot the agricultural land to the landless agriculturists. Under Rule 4 of the Rules of 1970 the following type of land is not allottable.
4. Land not available for allotment under these rules:-- The following categories of lands shall not be available for allotment for agricultural purposes under these rules, namely :--
(i) Lands mentioned in Section 16 of the Rajasthan Tenancy Act, 1955;
(ii) Lands demarcated as landing grounds for aircrafts;
(iii) Lands reserved for village forests constituted u/s 28 of the Rajasthan Forests Act, 1954 (Rajasthan Act 13 of 1953);
(iv) Small Baras of lands reserved for thrashing grounds adjoining, or close to the Abadi of a village;
(v) Lands within-
(a) a radius of three miles of municipal limits of cities having a population of five lacs or more;
(b) a radius of two miles of municipal limits of towns with a population of two lacs or more, but below five lacs;
(c) a radius of one mile of municipal limits of towns with a population of one lac or more, but below two lacs;
(d) municipal limits of any other towns;
(e) one hundred yards of a railway fencing; or
(f) fifty yards from the centre of national highway or any other metalled or gravelled road;
(vi) lands declared as saline areas under the Rajasthan Land Revenue (Saline Areas Allotment) Rules, 1962; or
(vii) Lands reserved for allotment under any Special Rules for the allotment of land."
12. Rule 5 enables the authorities to procure the details of the land village-wise and the list of unoccupied land both irrigated and un-irrigated, for the purpose of allotment and Rule 7 prescribes that the applications would be invited for allotments. Rule 8 prescribes form of application for allotment and Rule 9 prescribes register of applications and inquiry is to be made by the S.D.O. under Rule 10, the land is to be allotted to the landless agriculturists under Rule 11. Rules 9, 10 and 11 are reproduced as under :--
"9. Register of applications.-- The Sub-Divisional Officer shall record on each application the date and time of its receipt and shall get applications received, entered in a register of application in Form IV.
10. Enquiry by Sub-Divisional Officer.--The Sub-Divisional Officer shall get the particulars given in each application verified with the entries existing in the annual register or other Tehsil record and may make such enquiries as he deems fit with regard to the applicant's eligibility and other concerned matters.
11. Eligibility and order of priority for allotment.-- (1) The land shall be allowed only to a landless agriculturists as defined in the Tenancy Act.
(2) If there is only one applicant for a particular plot of land, it shall be allotted to him.
(3) If there are more than one applicants requiring the same plot of land, it shall be allotted to him/them according to the priorities fixed in Section 101 (4) of Rajasthan Land Revenue Act, but inter se priority between the applicants of the same category, as per Section 101 (4) of the said Act, shall be in the following order :--
(a) Legal heir of a member of the Armed Forces of the Union killed in action or a disabled soldier or Beneficiary of the Integrated Rural Development Programme.
(aa) a landless agriculturist who is released sagri as certified by the Sub-Divisional Officer.
(b) Member of the Scheduled Casteor Scheduled Tribe who Is a landless agriculturist.
(c) Unemployed Landless Agriculture Graduate.
(d) Agricultural Labourer, who is a landless agriculturist.
(e) Non-Commissioned Ex-servicemen who has been released from the Armed Forces after having served in any rank for at least five years.
(f) Other landless agriculturists preference being given to those with lesser income.
(g) A non-commissioned member of the Armed Forces or the Border Security Force who has rendered not less than 5 years' service :
Provided that the State Government may determine the category of persons to whom alone allotment shall be made in any area of the State to be specified."
13. Under the Rules of 1970 landless persons are eligible for allotment whose livelihood depends primarily on agriculture and under Rule 12 land is to be allotted less than 10 acres to one allottee etc. The present petitioners who were admittedly in possession had applied for regularising the allotment of land in the Rules of 1970 upon which no action had been taken.
14. The submission of the petitioners is that they were entitled to regularisation of land under the Rules of 1970.
15. The Rules of 1978 i.e. The Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Construction of Cinemas, Hotels and Establishment of Petrol Pumps) Rules, 1978 prescribes the scope of the rules. Under Rule 3 the allotment of land is to be made which land is unoccupied Government land and under Rule 4 it is prescribed that the conversion of the land shall not be made or regularised to which land the applicant is not having any legal right, land which is allotted for special purpose and certain other contingencies excluding the land which is situated within one hundred and twenty feet of a railway boundary of the National Highway or ten feet of any road maintained by the Government or local authority. Rule 5 provides classes of land which may be allotted i.e. unoccupied Government land namely unculturable land classified as 'Gair Mumkin" or 'Ujar' or culturable waste land or land classified as Banjar and if both the above said land is not available then the land of last clause of Barani is available. Section 6 provides that any person having a legal right to an agricultural land, if intends to construct a Cinema-house, or a Hotel or to establish a Petrol Pump thereon or if any person who has trespassed upon Government agricultural land, and has utilised such land for the construction of a Cinema or a Hotel, or for establishment of a Petrol Pump, may submit an application in writing in Form A to the Collector of the District in which the said agricultural land is situated and such an application is to be verified by the applicant as a plaint. Register of applications are to be maintained under Rule 6-A. Scrutiny and inquiry of applications are to be made by the Collector or any person authorised and all applications submitted to the Collector are to be examined and enquired into by him and the land is allotted ultimately under Rule 9 on the conditions mentioned thereunder. There are conversion charges. There are special provisions for establishment of Resort of Country Hotel. Under Rule 9-A there is a provision that the Collector shall satisfy himself that the applicant is in a position to execute the project and his financial status and business experience etc. is sound.
16. In the present case the Government land can only be allotted if it was unoccupied, unculturable as 'Gair Mumkin' or 'Ujar' and under Rule 6 any person having a legal right to an agricultural land was entitled to apply. Rules 5 and 6 which are the material rules in this case are reproduced as under :--
"5. Classes of land which may be allotted land for the construction of cinema or a hotel or establishment of a petrol pump may be allotted by way of lease out of the following categories of unoccupied Government land namely :--
(a) Unculturable land classified as 'Gair Mumkin' or 'Ujar' :
Provided that the land used as creation ground or burial ground, grazing grounds or pasture land and the 'pal' or embankment of a tank the water of which is used by the village cattle, even though classified as unculturable shall not be allowed;
(b) Where suitable land classified as unculturable is not available, culturable waste land or land classified as banjar;
(c) Where land of the categories mentioned in the preceding clauses are not available, the lowest class of barani land available:
Provided that no irrigated land classed as chahi, nahri, or talabi shall be allotted in any case, except with the permission of the State Government.
6. Application for permission.-- (1) Subject to Rule 4, if any person having a legal right to an agricultural land, intends to construct a cinema-house, or a hotel or to establish a petrol pump thereon or if any person who has trespassed upon Government agricultural land, and has utilised such land for the construction of a cinema or a hotel, or for establishment of a petrol pump, wants to acquire lease rights in the land so used for construction of a cinema or a hotel, or for establishment of petrol pump, he may submit an application in writing in Form 'A' to the Collector of the District in which the said agricultural land is situated.
(2) Such an application shall be verified by the applicant as a plaint according to the provisions of the Code of Civil Procedure, 1908.
(3) A receipt shall be given in respect of such application bearing time and date of receiving the same."
17. Admittedly, the land has been allotted for a Country Resort Hotel and name has been mentioned as Aravali Resorts and, therefore, the provisions of Rule 9-A of the Rules were also applicable in the present case. Rule 9-A (2) reads as under :--
"9-A(2) Application for allotment, conversion or lease of land, its scrutiny and disposal.--Applications for the allotment or conversion or lease of land to construct a Resort or Country Hotel shall be submitted, scrutinised, dealt with and disposed of mutatis mutandis in the manner prescribed in these rules :
Provided, however, that:--
(i) While scrutinising the applications, the Collector shall satisfy himself that applicant is in a position to execute the project, specially keeping in view his financial status and business experience, and, shall also consult the Town Planning Department of the State Government in regard to the plans and lay out submitted by the applicants for the Resort or Country Hotels. However, if the views of the Town Planning Department are not received within six weeks from the date of making the reference, it will be presumed that it has no objection and the application shall be processed accordingly.
(ii) AH applications under Rule 9-A shall after scrutiny, be referred to the State Government for final decision."
18. In the present case rules have been violated grossly. It has been noticed by the authorities that the land was occupied and there were crops. Only because for one year the land remained without any crops, it cannot be said that the land had become banjar, unculturable or unoccupied. The petitioners have also applied for regularisation of land for being landless agriculturists under the Rules of 1970 which request according to the respondents could not be acceded to.
19. Scrutiny as required under the relevant Rules of 1978 had not been done by the Collector. It seems that despite the fact that there are certain applications of respondent No. 2 on record that he has got no finances, the provisions of Sub-rule (2) of Rule 9-A of the Rules of 1978 in regard to finances mentioned in the provisions there under had not been looked into by the Collector. Even the trespassers are allowed to have their possession regularised in case of agriculturists under the Rules of 1970. The contention of the petitioner that the land was not Gair Mumkin and could not have been allotted under Rule 5 of the Rules of 1978 has force. Even otherwise, to avoid any arbitrariness it is essential that if the same land is to be allotted for the purpose mentioned under the Rules of 1978 that can be allotted under the conditions as prescribed under Rules 5 and 6 or under Rule 9 or 9-A. Rule 5 clearly says that the land can only be allotted to such persons who have got a legal right on the land or if a person who has started such business as enshrined under the rules can apply for allotment orconversion as the case may be. In the present case, admittedly Kishan Lal had no right in his favour to apply under Rule 5 or under Rule 6. It seems that on receipt of the application, the authorities moved in a lightening way and very swiftly the action was taken in allotting the land to only one person who had applied. In case, even assuming that the land is available for allotment or is not in possession of the petitioners or is Banjar, being the Government land, the authorities appointed under the rules are duty-bound to notify to the public and to invite applications and to scrutinise those applications as per rules and the best applicant available be allotted the land. Rule 5 has been framed with the intention to give such right to that person who has legal right on the land and until and unless the applicant has not shown any legal right, the land is not available for allotment to the outsider who has no legal right contrary to the provisions of Rule 5 of the Rules of 1978. But still assuming that if there is some land available which can be utilised by the Government for establishment of hotel or petrol pump etc. etc., in that situation it is the duty of the authorities in case it is decided to utilise the land, to invite the applications and after making proper enquiries and scrutinising the same, the applicant who is considered to be the best be allotted the land for the said purpose. This has not been done so in the present case. The record smacks of arbitrariness and it will not be out of place to say that it does speak of some favouritism as well towards the respondent No. 2 for the reasons best known to the authorities. The statutory Rules of 1978 in allotting the land have been violated. Even though the land was not available for allotment, it was allotted. Even though the respondent No. 2 had no legal right to allotment of land as per Rule 5 and Rule 6, the matter was not scrutinised in this regard and Rule 5 was violatived. Even though the respondent No. 2 had been writing the Collector to waive the monthly rent in his favour because of the reason that he has not got the financial position to construct the hotel, no inquiry was made as required under Rule 9-A (2) read with proviso of the said rule. Even though the rent was fixed initially but reduced later on and recovery was totally stopped later on on the ground that the writ petition is pending. It clearly shows that the Collector had not given consideration to the provisions of Section 9-A(2) and the proviso there under. It was a case where before making any such allotment properinquiry should have been made and the petitioners should have been issued notice as they had better right for allotment under the Rules of 1970 being landless agriculturists and in case it could be proved that the land was actually not available for allotment and where the classification of the land had been changed because of cultivation by the petitioners as it was not a Gair Mumkin Bhakar, it was a matter of inquiry which has not been conducted properly in the present case. The omission vitiates the impugned orders Annexures-6, 9 and 10.
20. In view of the abovesaid discussion, the writ petition is allowed. The impugned orders dated 25-1-1991 (Annex. 7), 29-6-1991 (Annex. 9) and 6-2-1992, (Annex. 10) are quashed with the direction that in case the petitioners had a right for regularisation of land under the Rules of 1970, their regularisation case would be considered in accordance with the Rules of 1970. The allotment made in favour of the respondent No. 2 under the Rules of 1978 is set aside.
21. The writ petition is allowed as discussed above with a cost of Rs. 2,000/-.