Hamir Chand vs State And Ors
2023 Latest Caselaw 8436 Raj

[2023:RJ-JD:32774]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 3653/1998

LR's of Hamir Chand

----Petitioner

Versus

State of Rajasthan & Ors.

                                                                   ----Respondent




For Petitioner(s)            :    Mr. Sudhir Sharma
For Respondent(s)            :    Mr. I.S. Pareek

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 04/10/2023 Pronounced on 12/10/2023

1. The matter pertains to the year 1998, and thus, listed under

the category of "Oldest Cases for Early Disposal".

2. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction.-

I. The judgments dated 25.7.98 and 31.8.98 passed by the Special Judge III, Pong Dam Oustees cases, Sri Ganganagar may kindly be quashed and set aside.

II. The respondents be directed to restore allotment of the petitioner on disputed land Murabba No.282/460 Chak 9-A, Tehsil Anupgarh, District Sri Ganganagar and petitioner be ordered to be given possession of the said land.

[2023:RJ-JD:32774] (2 of 8) [CW-3653/1998]

III. Any other appropriate writ, order or direction as may be deemed just and proper in the facts and circumstances of the case be granted.

IV. Costs of the petition be given to petitioner."

3. The original petitioner (Hamir Chand), during pendency of

the instant petition, has expired, and consequently, his legal

representatives have been brought on record and arrayed as

petitioners herein.

4. As per the pleaded facts, the original petitioner was a Pong

Dam Oustee and was allotted 25 bhigas of land bearing Murabba

No.282/460 situated in Chak No. 9A, Tehsil Anoopgarh on

12.10.1977 under the Rajasthan Colonization (Allotment and Sale

of the Government Land to Pong Dam Oustees and other

Transferees in Indira Gandhi Canal Colony), Rules 1972

(hereinafter referred to as 'Rules of 1972'), whereafter, the

original petitioner remained in cultivatory possession of the said

land.

4.1. Thereafter, a survey was conducted by the Halka Patwari on

19.12.1991 whereby it was found that the original petitioner was

not in possession of the land in question, instead respondent no.3

was in possession of the same on the basis of certain agreement

entered into between the allottee (original petitioner) and the

respondent no.3. Subsequently, a case bearing no.698/92 was

registered before the Sub Divisional Magistrate (SDM),

Raisinghnagar, on the basis of the aforesaid report, whereupon,

while recording a finding that the original petitioner has violated

Rule 6 sub rules (3) & (4) of the Rules of 1972 by selling the land

in question to the respondent no.3, the SDM, vide judgment dated

[2023:RJ-JD:32774] (3 of 8) [CW-3653/1998]

22.03.1993, in exercise of power under Rule 6 sub rule (10) of the

Rules of 1972, cancelled the allotment of 15 bighas of land made

in favour of the original petitioner.

4.2. Subsequently, a direction was issued by the Hon'ble Supreme

Court vide the judgment dated 26.07.1996 passed in Writ Petition

(C) No.439/1992, to review all the cases of cancellation of

allotment to oustees subsequent to 01.01.1992, and accordingly,

the learned Special Judge (III), Pong Dam Oustees related Cases,

Sri Ganganagar reviewed the earlier judgment of the SDM and

modified the same by cancelling the allotment of the entire 25

bighas land made to the original petitioner and ordered the land to

be vested in the State Government, vide the impugned judgment

dated 25.07.1998.

4.3. Aggrieved of the judgment of the learned Special Judge, the

original petitioner submitted a review application; however the

earlier judgment was maintained and the review application was

rejected vide the impugned order dated 31.08.1998. Thus, the

present petition has been preferred claiming the afore-quoted

reliefs.

5. Learned counsel for the petitioner submitted that though the

original petitioner entered into an agreement with respondent no.3

to sell 15 bighas of land, however the same was cancelled by

Panchayat, after the private respondent did not pay the entire

amount, and that, possession of the entire land always remained

with the original petitioner; further, the agreement, on the basis of

which the allotment of the original petitioner was cancelled, was

not a registered document, and therefore, no effect could be given

[2023:RJ-JD:32774] (4 of 8) [CW-3653/1998]

to the said document. Thus, as per learned counsel, the question

of violation of the provisions of Rules of 1972 by the original

petitioner did not arise.

5.1. It was further submitted that even before the SDM the

original petitioner and other witnesses stated on oath that the

original petitioner had not delivered the possession of the land,

and thus, the SDM in passing the judgment dated 22.03.1993 had

erred in law in not believing such statements.

5.2. It was also submitted that the agreement in question was

entered only qua 15 bighas land and the survey in question was

without jurisdiction, yet the learned Court below, vide the

impugned judgment, cancelled the allotment of the entire 25

bighas of land, in accordance with the Hon'ble Apex Court's

judgment to review the cancellation of the allotments after 1992.

Thus, as per learned counsel, the learned Court below could not

have gone beyond the decision of the SDM, and cancelled the

entire allotment (25 bighas land) made in favour of the original

petitioner.

5.3. It was further submitted that the survey report of the

patwari was completely baseless and incorrect, as the original

petitioner was in possession of the land in question, and even the

irrigation authority had issued water slips in the name of the

original petitioner, from time to time.

6. On the other hand, learned counsel for the respondents while

opposing the submissions made on behalf of the petitioner,

submitted that the allotment made in favour of the original

[2023:RJ-JD:32774] (5 of 8) [CW-3653/1998]

petitioner was cancelled as he had violated the prescriptions of

Rule 6 sub-rules (3) & (4) of the Rules of 1972.

6.1. It was further submitted that the original petitioner was not

in possession of 15 bighas of land in question on 19.12.1991 i.e.

the date on which the survey in question was conducted by the

Halka Patwari, as the original petitioner had already sold the said

land to the respondent no.3, before the expiry of 20 years from

the date of initial allotment of land, which was violative of Rule 6

(3) & (4) of Rules of 1972; in furtherance the petitioner had

himself admitted the fact before the SDM that he had transferred

the said land to respondent no.3 and possession of land had also

been transferred.

6.2. It was also submitted that when the prescription of the Rules

is violated, the allotment made in favour of the original petitioner

was liable to be cancelled, and thus, vide the impugned judgment

passed by the learned Court below, the entire 25 bighas land had

rightly been ordered to be vested in the State Government owing

to the fact that the original petitioner was not in cultivatory

possession of the land in question.

7. Heard learned counsel for the parties as well as perused the

record of the case.

8. This Court observes that the present petitioners are the legal

heirs of the deceased Hamir Chand (original petitioner) whose

allotment pertaining to the land in question under the Rules of

1972, was cancelled by the SDM, after receiving survey report of

Halka Patwari in the year 1991, as it was found that the petitioner

was not in possession of the allotted land and had transferred 15

[2023:RJ-JD:32774] (6 of 8) [CW-3653/1998]

bighas out of the total allotted land to the private respondent; in

pursuance of the aforementioned order of the Hon'ble Apex Court

passed in the year 1996 to review the cancellation of allotments

done after the year 1992, the learned Court below reviewed the

cancellation of allotment of petitioner and thereafter vide the

impugned judgment, cancelled the entire allotment of the

petitioner i.e. 25 bighas of land and even the review application of

petitioner was rejected.

9. This Court further observes that as per the decision of the

learned SDM, the petitioner himself admitted before the SDM that

he had sold 15 bighas of the allotted land to the private

respondent and had handed over the possession of the same to

the private respondent; such statements were recorded in the

presence of Standing Counsel for the Government of Himachal

Pradesh, and thus it is clear that the original petitioner had

violated sub-rules (3) & (4) of Rule 6 of the Rules of 1972, which

provides for the conditions for allotment; in furtherance it was also

observed by the SDM that an application under Rule 6 A of the

Rules of 1972 was presented by the private respondent with the

request that the said 15 bhigas of land has been sold/transferred

through ikrarnama and he is in possession thereof, and thus, the

same deserves to be allotted to him.

10. This Court also observes that as per the observations of the

learned Court below in the impugned order dated 25.07.1998, the

original petitioner had stated in the ikrarnama itself that he

received Rs.2,95,000/- from the private respondent and had sold

15 bighas of the land on 19.12.1990 to the private respondent.

[2023:RJ-JD:32774] (7 of 8) [CW-3653/1998]

and thus, even though the agreement between the original

petitioner and the private respondent later came to be cancelled

and the possession came back in the hands of the original

petitioner, however, the same does not mean that the Rules of

1972 had not been violated.

10.1. In furtherance it was observed by the learned Court below

that even before the completion of 20 years, the 15 bighas of

allotted land was sold/transferred, and thus, the entire allotment

(25 bighas of land) was liable to be cancelled, and to be vested in

the State Government.

11. This Court further observes that Rule 6(10) of the Rules of

1972 clearly provides that, "In case of any breach of any terms

and conditions by the allottee, the allotment of land made to him

shall be liable to be cancelled by the allotting authority or by the

Collector and the land shall revert to the State Government free

from all encumbrances and without any liability of payment of

compensation". The present factual matrix clearly reveals that the

original petitioner had violated the prescriptions of Rule 6(3) & (4)

of the Rules of 1972, which clearly attracts invocation of the

provisions of the said Rule 6(10), and thus, the allotment of the

entire land in question measuring 25 bighas has rightly been

cancelled by the learned Court below vide the impugned

25.07.1998.

12. Thus, in light of the aforesaid observations and looking into

the factual matrix of the present case, this Court does not find it a

fit case so as to grant any relief to the petitioners in the present

petition.

[2023:RJ-JD:32774] (8 of 8) [CW-3653/1998]

13. Consequently, the present petition is dismissed, while

upholding the impugned judgments. All pending applications stand

disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

SKant/-

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