Rajasthan High Court - Jodhpur
Smt. Sua Kanwar vs State And Ors (2024:Rj-Jd:10273) on 28 February, 2024
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2024:RJ-JD:10273] (1 of 10) [CW-182/2000]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 182/2000
Smt. Raj Kanwar W/o Shri Prem Singh, B/c Rajput, R/o Pithala,
Tehsil and District Jaisalmer.
----Petitioner
Versus
1. State of Rajasthan, through the Secretary to Govt., Revenue
Department, Government of Rajasthan, Jaipur,
2. Board of Revenue for Rajasthan at Ajmer,
3. Commissioner for Colonisation, Bikaner.
----Respondents
Connected With
S.B. Civil Writ Petition No. 181/2000
Smt. Sua Kanwar, W/o Ratan singh, B/c Rajput, R/o Village
Tadana, Tehsil and District Jaisalmer.
----Petitioner
Versus
1. State of Rajasthan, through the Secretary to Govt., Revenue
Department, Government of Rajasthan, Jaipur,
2. Board of Revenue for Rajasthan at Ajmer,
3. Commissioner for Colonisation, Bikaner.
----Respondents
For Petitioner(s) : Mr. J.L. Purohit, Sr. Adv. assisted by
Mr. Magan Singh Gehlot
Mr. Anil Kumar Singh
For Respondent(s) : Mr. I.S. Pareek, AGC
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
REPORTABLE
28/02/2024
1. Since both the writ petitions arise out of a common
judgment, therefore they are being heard and decided finally by
this common order.
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2. Heard learned counsel for the parties.
3. The present writ petitions have been filed against the order
dated 24.10.1997 passed by the Commissioner (Colonization),
Bikaner and the order dated 30.06.1999 passed by the Board of
Revenue, Rajasthan, Ajmer, whereby the revision petitions filed by
the petitioners were dismissed.
4. Briefly, the facts noted in the present writ petitions are that
the petitioners, being the bonafide agriculturists and residents of
State of Rajasthan by way of filing an application applied for
allotment of land as per Rule 13-A of the Rajasthan Colonization
(Allotment and Sale of the Government Land in the Indira Gandhi
Canal Colony Area), Rules, 1975 (hereinafter referred to as the
'Rules of 1975'). Considering the petitioners eligible for allotment
of land, the respondents vide orders dated 29.12.1993 &
25.08.1993 allowed the application of the petitioners and allotted
24.5 Bighas and 25 Bighas of land to the petitioners respectively.
5. After allotment of the land, the petitioners were handed over
the possession of their respective lands and they started
cultivating the lands allotted to them. All of a sudden, the
petitioners were served with the notices dated 03.07.1996 by the
Commissioner (Colonization), Bikaner for cancellation of the
allotment of their lands. The notices received were duly replied by
the petitioners but the learned Commissioner (Colonization),
considering the reply filed by petitioners, vide order dated
24.10.1997, cancelled the allotment of the lands made in favour of
the petitioners and the lands were ordered to be recorded in the
name of State Government and the same was directed to be
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auctioned by taking into consideration the relevant provisions of
the Rules of 1975.
6. The order dated 24.10.1997 passed by the Commissioner
(Colonization) was assailed by the petitioners by way of filing
revision petitions before the Board of Revenue but the Board of
Revenue, while rejecting the revision petitions filed by the
petitioners vide order dated 30.06.1999, affirmed the order
passed by the Commissioner (Colonization) on 24.10.1997.
7. Mr. J.L. Purohit, learned Sr. Counsel appearing on behalf of
the petitioners submits that the learned Commissioner
(Colonization) had committed an error while passing the order
dated 24.10.1997 as the deleted proviso of Rule 7 of the Rules of
1975 had been made applicable, although the same was deleted
from the Statute Book on 15.07.1993. He submits that the deleted
provisions were not required to be considered as the allotment
orders in the case of the petitioners were made in the month of
August, 1993 and December, 1993 and on the date of allotment
orders, the proviso to Rule 7 was not on the Statute Book as the
same was deleted in the month of July, 1993 itself. Thus, there
was no occasion for the Commissioner (Colonization), Bikaner to
take recourse to the deleted proviso while rejecting the allotment
made in favour of the petitioners.
8. Learned Sr. Counsel further submits that a bare perusal of
the definition of a 'landless person' as mentioned in Rule 2(1)(xiii)
of the Rules of 1975 clearly shows that a person who is a resident
of Rajasthan and has been, by profession, a bonafide agriculturist
or a bonafide agricultural labourer having agriculture as a primary
source of his income and who either does not hold any land
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anywhere in India or holds land less than 25 Bighas will be
considered a 'landless person', but it does not include the
temporary lease cultivation lease holder, therefore, the petitioners
are falling within the definition of 'landless person'. Learned
counsel submits that as per Rule 7 of the Rules of 1975, the
petitioners were rightly given the priority for allotment of the land.
9. Learned Sr. Counsel further submits that the Commissioner
(Colonization), Bikaner had completely failed while taking note of
the fact that the petitioners do not hold any land in their names as
per the rules and firstly, the lands in the name of their husbands
cannot be treated to be the lands in the name of the petitioners
and secondly, even if it is taken to be the land of their joint
ownership, then as per Annex.2 dated 13.08.1997 placed on
record, the husbands of the petitioners were having Barani land ad
measuring 9 Bighas and 13 Bighas respectively which is less than
25 Bighas of irrigated land, therefore, the petitioners are landless
persons as per the definition of 'landless person' mentioned in the
Rules of 1975.
10. Learned Sr. Counsel submits that the Commissioner
(Colonization) had committed an error while passing the orders
dated 24.10.1997 and rejecting the allotment of lands made in
favour of the petitioners. He submits that on the same analogy,
learned Board of Revenue affirmed the orders passed by the
Commissioner (Colonization), therefore, the learned Board of
Revenue had also committed an error while interpreting Rule 7
and Rule 2(1)(xiii) of the Rules of 1975 and rejecting the revision
petitions preferred by the petitioners. He, therefore, prays that the
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writ petitions may be allowed and the orders dated 24.10.1997
and 30.06.1999 may be quashed and set aside.
11. Per contra, Mr. I.S. Pareek, learned State Counsel
vehemently opposes the submissions made by the learned Sr.
Counsel for the petitioners and submits that the orders passed by
the Commissioner (Colonization) and affirmed by the learned
Board of Revenue are absolutely justified and do not call for any
interference.
12. Learned State Counsel further submits that the learned
Commissioner (Colonization) had rightly taken note of the Rules of
1975 while cancelling the allotment of land made in favour of the
petitioners. He, therefore, prays that the writ petition may be
dismissed. However, on pointed query being raised by this Court,
the learned State Counsel is not in a position to dispute the fact
with respect to the holdings of the land as per Annex.2 filed by the
petitioners that 13 Bighas and 9 Bighas of uncommand land
respectively is recorded in the name of husbands of the
petitioners.
13. I have considered the submissions made at the Bar and have
gone through the relevant record of the case including the orders
impugned dated 24.10.1997 and 30.06.1999.
14. The date of allotment of the land in case of the petitioners is
August, 1993 and December, 1993 respectively which is clear from
the allotment orders placed on record. While considering the
eligibility of the petitioners for allotment of the lands, they were
considered 'landless persons' falling within the priority enshrined
under Rule 7 of the Rules of 1975. However, on an application filed
by Tehsildar under Rule 22 (3), the petitioners were issued notices
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and the reply was filed by them which was considered by the
Commissioner (Colonization) while passing the orders dated
24.10.1997 cancelling the allotment of lands made in favour of the
petitioners.
15. For better appreciation of the facts in the present case, it will
be essential to take note of certain provisions of the Rules of
1975, which are as under:-
Rule 2. Interpretation.- (1) In these rules, unless there
is anything repugnant to the subject or context-
(i).....
.
.
.
(xiii) "Landless Person" means a person who,-
(i) is a resident of Rajasthan; and
(ii)has been by profession a bona fide
agriculturist or a bona fide agricultural labourer,
having agriculture as the primary source of his
income and who either does not hold any land
anywhere in India or holds and less than 25
bighas, but it does not include temporary
cultivation lease holder:
Provided that a person holding
continuously since before the 1st day of April,
1955 only barani land in a village may surrender
that land in favour of Government free of cost
and on acceptance of such surrender, he will also
be treated as a landless person of that village.
Provided further that a released 'Sagri' as
certified by the Sub-Divisional Officer will also
be treated as landless person of that village.
Explanation - For the purpose of this
proviso "Sagri" means the bonded labourer as
defined in the Bonded Labour System (Abolition)
Act, 1976 (Central Act 19 of 1976).
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Provided further that the following
categories of persons shall not be deemed to be
landless persons, namely:-
(a) an employee other than a casual or work
charged employee of the Government or of a
commercial or industrial establishment or
concern, his wife and children dependent on him.
(b) a person who has sold or otherwise
transferred the whole or part of the land held by,
or allotted to him other than land transferred to
or acquired by the Government or statutory
bodies and thereby reduces the size of his
holding to become landless person.
7. Priorities for allotment.- (1) Priorities for allotment
of Government land under these rules shall be in the
following order :-
(a) Temporary cultivation lease holders;
Provided that the temporary cultivation lease
holder of the district in which
the land to be allotted, is situated, shall be given
first priority in allotment
(b) A landless person of the same village;
(c) A landless person of the same Colonisation
Tehsil/ Revenue Tehsil;
(d) A landless person of the same District or
under the Antyoday Scheme
of the State Government, or as a beneficiary of
the Integrated Rural
Development Programme, who has worked for
two years as paid labourer
of the State Government in the construction of
the Indira Gandhi Canal or
in the development works connected with its
command area, after he is so identified;
(e) Agriculture Graduates, ex-servicemen,
experator of Indira Gandhi Canal
and Bhakra Landless persons for the areas
reserved for them;
(f) Landless persons of the neighbouring district.
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(g) Landless persons of any other districts of
Rajasthan excluding the persons mentioned in
clause (h).
(h) Landless persons of Colonised Part of Tehsils
belonging to area covered by Major and Medium
Irrigation Project.
(2) For the purposes of Sub-rule (11) landless person
shall be deemed to be of the Village, Tehsil or District
where he has been residing [for the last fifteen years]:
Provided that for purposes of allotment of land in
Stage-II the inter se priority of those landless persons
who were eligible, and had applied for and were
registered by the Allotting Authority for allotment of land
in Stage-I under rule 10 and 11 but to whom land could
not be allotted due to non-availability of land in Stage-I,
shall be reckoned from the date on which they had
originally applied for the allotment of land in Stage-I.
Rule 22. Powers of Colonisation Officers.-
(1)....
(2)....
(3) The Colonisation Commissioner shall have the powers
to cancel any allotment made by an Allotting Authority
under these rules either suo moto or on the application of
any person in a case where the allotment has been made
against the rules :
Provided that no such order to the prejudice of any
person shall be passed without giving such person an
opportunity of being heard.
16. From a bare perusal of the provisions mentioned above, it is
clear that on an application filed by the Tehsildar before the
Commissioner (Colonization) under Rule 22 (3) of the Rules of
1975, the matter was examined and the order was passed on
24.10.1997. The fact that the proviso to Rule 7 was deleted from
the Statute Book on 15.07.1993 is not disputed, therefore, on the
[2024:RJ-JD:10273] (9 of 10) [CW-182/2000]
date on which the allotment of lands was made in favour of the
petitioners (i.e. in August, 1993 & December, 1993 respectively),
there was no embargo of proviso to Rule 7 to be taken note of.
Thus, the learned Commissioner (Colonization) had committed an
error while considering the same.
17. This Court further takes note of the fact that as per the
definition of 'landless person', the eligibility of having the land or
not is required to be taken note of only of the person who has
applied before the authorities concerned and, therefore, for all
intents and purposes, the land holdings of an individual person or
the applicant were required to be taken into consideration while
considering the application for grant of land under the 'landless
person' category. Thus, the learned Commissioner (Colonization)
has wrongly considered the land holdings of the petitioners'
husbands towards the applicant/petitioners.
18. The Commissioner (Colonization), Bikaner had also
committed an error while taking note of the provisions of Ceiling
Act in calculating the lands derived by the husbands of the
petitioners in the present case. Since the law does not provide the
clubbing of the lands of husband and wife while considering the
holding of land under the category of 'landless person', therefore,
in the first instance, the lands which belong to the husbands of the
petitioners were not required to be taken note of. Secondly, the
provisions of the Ceiling Act were not applicable in the present
case while calculating the holdings of the land of the petitioners.
Thus, in the considered opinion of this Court, the Commissioner
(Colonization) had committed an error while considering the
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petitioners to be not falling within the category of 'landless person'
as per Rule 2(1)(xiii) of the Rules of 1975.
19. In the considered opinion of this Court, the petitioners were
rightly considered in the category of 'landless person' for allotment
of land under the Rules of 1975 and had rightly been given the
priority as per Rule 7 of the Rules of 1975.
20. The learned Board of Revenue had also committed an error
while affirming the order of the Commissioner (Colonization) by
passing the order dated 30.06.1999 on the same grounds. The
learned revisional court failed to exercise its jurisdiction in
accordance with the rules prevailing at the time of allotment of the
lands in favour of the petitioners. Thus, the orders dated
24.10.1997 and 30.06.1999 are not sustainable in the eye of law.
21. In view of the discussions made above, the writ petitions
merit acceptance and the same are allowed. The orders dated
24.10.1997 passed by the Commissioner (Colonization), Bikaner
and the orders dated 30.06.1999 passed by the Board of Revenue,
Rajasthan, Ajmer are quashed and set aside. The allotment of
lands made in the favour of the petitioners are maintained and
upheld.
22. Photocopy of this order be placed in the connected file.
(VINIT KUMAR MATHUR),J
5-6-/VivekMishra/-
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