Before :- R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ.
Civil Appeal No. 14 of 2012. D/d. 21.11.2019.
Duli Chand - Appellants
Versus
State of Rajasthan - Respondents
For the Appellants :- H.D. Thanvi, Ms. Preeti Thanvi, Rishi Matoliya, Sarad Kumar Singhania, Advocates.
For the Respondents :- Dr. Manish Singhvi, Sr.Adv., Shailja Nanda Mishra, Arpit Parkash, Sandeep Kumar Jha, Milind Kumar, Irshad Ahmad, Advocate.
ORDER
Hrishikesh Roy, J. - This appeal is preferred against the judgment and order dated 26.03.2008 in D.B. Civil Special Appeal (W) No.1235 of 1998 whereunder, the Division Bench of the High Court of Judicature for Rajasthan at Jodhpur dismissed the appeal filed by the appellant and upheld the view taken by the learned Single Judge of the High Court in dismissing S.B. Civil Writ Petition NO.3819/98.
2. We have heard Mr. H.D. Thanvi, learned counsel appearing for the appellant and also Dr. Manish Singhvi, learned senior counsel representing the respondent-State. The impugned judgment and the materials on record are perused.
3. The appellant's case relates to the land at Square No. 202/16, Chak 3 J.M., Tehsil Anoopgarh in Rajasthan. This land was allotted to one Shri Hariya alias Haria under the Rajasthan Colonisation (Allotment and Sale of Government Land to Pong Dam Oustees and Their Transferees in the Indira Gandhi Canal Colony) Rules, 1972 (hereinafter referred to as, `1972 Rules'). By virtue of the Will dated 20.8.1998 executed by the original allottee-Hariya, following his death on 10.4.1998, the appellant claimed absolute title to the allotted land. The appellant's claim was considered in the Review Case No. 136/98 by the Special Judge (Third) who was dealing with the Cases relating to Rehabilitation of Oustees of Pong Dam, following the order passed on 26.7.1996 by the Supreme Court in the Writ Petition (C) No. 439/1992 and the judgment dated 1.5.1992 of the SDO(Revenue), Raisinghnagar. In the judgment dated 20.08.1989 (Annexure P-2), the Court noted that the allottee- Haria could not have alienated the allotted land on account of the bar under Rule 6(4) of the 1972 Rules and since such alienation was done in defiance of the allotted norms, the concerned land vests upon the State Government.
4. Aggrieved by the above decision, the aggrieved appellant approached the High Court at Jodhpur through the S.B. Civil Writ Petition No.3819 of 1998. The learned Single Judge of the High Court, however, agreed with the conclusion and the reasoning given by the earlier forum and dismissed the writ petition by the Judgment dated 16.11.1998 (Annexure P-3).
5. Aggrieved by the cryptic order of the Writ Court, the appellant filed an intra-court appeal i.e. D.B. Civil Special Appeal (W) No.1235/1998. The appellant argued that the learned Single Judge has passed a non-speaking order. He also contended that since the appellant is a beneficiary of a Will executed by the original allottee-Haria, the Will being excluded under Section 13 of the Rajasthan Colonisation Act, 1954 (hereinafter referred to as `1954 Act'), the transfer of property to the beneficiary of the `Will' is in order and to this extent, the bar under Rule 6(4) of the 1972 Rules is not attracted.
6. In order to consider the above arguments, the Division Bench referred to the provisions of Rule 6(4) of the 1972 Rules and observed that there is absolute bar on transfer and alienation and the allottee does not have transferable rights by way of sell, mortgage, gift, transfer, lease or otherwise. Focusing on the word "otherwise", the High Court observed that the word "otherwise" is of much significance and it covers all types of alienation.
7. The Division Bench also referred to the Will dated 21.02.1989 (Annexure P-1) executed by the testator-Haria and noted that the allottee-Haria besides his wife had seven children but the surprising beneficiary of the Will was the appellant-Duli Chand who is not related to the allottee.
8. The Court then referred to the provisions of Section 13 of the 1954 Act (as amended in 1984) and observed that although the word "Will" was deleted, it being a case of alienation of the allotted property, the appellant's claim is hit by the bar of Rule 6(4) of the 1972 Rules which not only speaks of transfer but also of alienation.
9. The High Court accordingly concluded that the Will executed by Haria is nothing but alienation of the property covered under the expression "otherwise" as mentioned under Rule 6(4) and, therefore, concurred with the view taken by the learned Single Judge of the High Court as also of the first forum.
10. Mr. H.D. Thanvi, learned counsel appearing for the appellant, has reiterated the arguments advanced before the High Court. Dr. Manish Sighvi, learned senior counsel appearing for the respondent-State of Rajasthan, has stoutly opposed those contentions.
11. For ready reference, the provision of Rule 6(4) of the Rajasthan Colonisation (Allotment and Sale of Government Land to Pong Dam Oustees and Their Transferees in the Indira Gandhi Canal Colony) Rules, 1972 as it existed at the relevant point of time is extracted which reads as under:
"Rule 6: Terms and conditions of allotment: All allotments of land made under these rules shall be made and shall be deemed to have been made under the following terms and conditions.
(1).......................
(2).......................
(3).......................
(4) During the period of ghair-khatedari tenure, the allottee shall not have any alienable and transferable rights in land and shall not transfer or alienate the land to any other person in any way e.g. by sale, mortgage, gift, transfer, lease or otherwise. No transfer or alienation of land even in the form of a Nokername, Mukhtiarname, Tebilname, Ikarname or the like shall be permissible.
12. Having regard to the nature of the comprehensive bar on alienation, envisaged by Rule 6(4) of the 1972 Rules and considering the nature of the allotment made to the Pong Dam Oustees and the terms of allotment specified in the 1972 Rules, we are of the considered opinion that the original allottee could not have alienated or transferred the allotted land in favour of the appellant-Duli Chand, as has been done in this case. To this extent, the Will executed by the allottee is hit by Rule 6(4) of 1972 Rules.
13. In such view of the matter, the appeal is found devoid of merit and the same is accordingly dismissed. There shall be no order as to costs.