Judgment:
Sangeet Lodha, J.
1. These two writ petitions are directed against a common order dt. 28.04.1997 passed by the Board of Revenue, Rajasthan dismissing the revision petitions preferred by the petitioners against the order dt. 16.09.1994 passed by the Revenue Appellate Authority (in short 'RAA'), Bikaner. By order dt. 16.09.1994, RAA has affirmed the order dt. 19.12.1988 passed by the Assistant Commissioner Colonisation, IGNP, Chhattargarh cancelling the allotment made in favour of the petitioners and directing to hand over the possession of the land in question to the respondent No. 4 Smt. Barji Devi.
2. The background facts in nutshell are that the petitioner Tiloka Ram was allotted the land situated in Chak No. 2 KJD(A) in Murabba No. 120/3 bearing Kila No. 1 to 20 on permanent basis in the year 1976. The petitioner applied for allotment of land measuring 5 bighas of Kila No. 21 to 25 adjoining to his land as small patch. The land was allotted in favour of the petitioner vide order dt. 11.01.1988 passed by the Allotting Authority. The petitioner deposited the amount in terms of the allotment order and possession of the land was handed over to him. However, vide order dt. 19.12.1988 passed by the Assistant Commissioner Colonisation, Chhattargarh, the allotment made in favour of the petitioner was cancelled without giving him an opportunity of hearing, on the ground that the land in question already stands allotted to one Smt. Barji widow of Ramsukh on permanent basis.
3. Similarly, the petitioner Mala Ram was allotted land on permanent basis in Chak No. 2KJD(A), Murabba No. 120/1, Kila No. 1 to 20 in the year 1976. He was also allotted small patch of Government land measuring 5 bighas of Kila No. 21 to 25 vide order dt. 11.01.1988. However, the allotment made was cancelled vide order dt. 19.12.1988 without issuing any notice and giving him an opportunity of hearing, on the similar ground that the land in question had already been allotted to Smt. Barji widow of Ramsukh.
4. Aggrieved by the aforesaid orders dt. 19.12.1988, the petitioners preferred separate appeal before the RAA, Bikaner. The learned RAA vide order 16.09.1994 held that the lands in question had already been allotted to Smt. Barji on permanent basis and allotment made in her favour was never cancelled therefore, the orders dt. 19.12.1988 passed by the Allotting Authority cancelling the allotment after issuing notice to the parties and due inquiry cannot be faulted with. The learned RAA held that even if it is assumed that the notice issued by the Allotting Authority was not served upon the petitioners then too, on the facts and in the circumstances of the case, it does not make any difference inasmuch as, had the opportunity being granted to the petitioners, the ultimate decision of the Allotting Authority would have been the same. The RAA arrived at the finding that simply because the served notice is not available on file, it cannot be said that the order has been passed without giving an opportunity of hearing to the persons affected. The RAA found that without cancellation of allotment made in favour of Smt. Barji could not have been allotted to any other person even if the land was shown to be 'Rakba Raj' in the Revenue Record.
5. Aggrieved by the appellate order dt. 16.09.1994, the petitioners preferred revision petitions before the Board of Revenue. The Board of Revenue observed that the petitioners had not applied for the allotment of the small patch of Government land even after lapse of more than 12 years after the permanent allotment made in their favour of the adjoining land. The Board of Revenue opined that the allotments of the small patch of Government land were obtained by the petitioners by committing fraud without assailing the allotment already made in favour of Smt. Barji vide order dt. 15.06.1982. The Board of Revenue opined that without cancellation of the allotment made in favour of Smt. Barji, the petitioners were not entitled for allotment of the land as small patch. Rejecting the contentions of the petitioners that the small patch of government land could not have been allotted to the general category persons, the Board of Revenue held that since the allotment in favour of Smt. Barji was made in the year 1972 before the amendment of Rule 14 of the Rules of Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Area), Rules, 1975 (in short 'the Rules of 1975' hereinafter) therefore, in absence of any application by the petitioners for allotment of small patch Government land, the allotment made by the Allotment Committee of the Government land lying vacant cannot be faulted with. Accordingly, the revision petitions preferred by the petitioners have been dismissed by the Board of Revenue by the order impugned dt. 28.04.1997. Hence, these writ petitions.
6. It is contended by the learned Counsel for the petitioners that the allotment of the small patch of Government land is regulated by provisions of Rule 14 of the Rules of 1975. The learned Counsel submitted that the petitioners tenure land adjoins the small patches of Government lands in question therefore, the same were not available for general allotment under Rule 13 of the Rules of 1975. The learned Counsel submitted that in the first instance, the small patch of land is required to be offered to the adjoining land holders and it is only when they fail to apply for the allotment of small patch, the Allotting Authority may proceed to make arrangement for making allotment of such small patch to the tenure tenants of the same Chak or of the adjoining Chak. Accordingly, it is submitted by the learned Counsel that the allotment made in favour of Smt. Barji ignoring the claim of the petitioners was ex facie contrary to Rule 14 of the Rules of 1975. That apart, it is submitted by the learned Counsel that admittedly, the due amount was not deposited by Smt. Barji and she did not turn up and take possession of the allotted land within a period of three months from the service of the allotment order therefore, in terms of Rule 13(8) of the Rules of 1975, the allotment made in her favour was liable to be cancelled. The learned Counsel submitted that on the basis of the material on record, it is manifestly clear that the order impugned has been passed without notice and without giving an opportunity of hearing to the petitioners therefore, the order impugned deserves to be quashed and set aside for this reason alone. The learned Counsel submitted that RAA has seriously erred in holding that the notice was issued to the petitioner and simply because the served notice are not available, the order passed after due inquiry cannot be set aside. The learned Counsel submitted that the finding arrived at by the RAA is based on surmises and conjecture and there is absolutely no evidence on record to show that any notice was ever issued to the petitioners by the Allotting Authority at any point of time. The learned Counsel submitted that as per proviso to Rule 21 of the Rules of 1975, no order cancelling the allotment can be passed by the Allotting Authority without giving the persons likely to be affected thereby an opportunity of being heard therefore, the order impugned passed by the Allotting Authority in violation of Rule 21 of the Rules of 1975 and the elementary principles of natural justice deserves to be declared null and void. The learned Counsel submitted that the finding arrived at by the Board of Revenue that the allotments were obtained by the petitioners by committing fraud is absolutely perverse inasmuch as, there was not even an iota of evidence suggesting any manipulation on the part of the petitioners in getting the land allotted in their favour.
7. On the other hand, the learned Government Counsel submitted that admittedly, the lands in question allotted to the petitioners were not available for allotment in view of the permanent allotment already existing in favour of the respondent Smt. Barji. The learned Counsel submitted that on the facts and in the circumstances of the case and keeping in view the admitted factual position, the denial of opportunity of hearing to the petitioners has not prejudicially affected them and therefore, the RAA so also the Board of Revenue have rightly declined to interfere with the order passed by the Allotting Authority cancelling the allotment made in favour of the petitioners. The learned Counsel submitted that the petitioners had never applied for allotment of land as small patch before the allotment made in favour of respondent Smt. Barji, therefore, the government land was open to be allotted to any other person under Rule 13 of the Rules of 1975. The learned Counsel submitted that the validity of the allotment has been examined by the RAA and the Board of Revenue after giving full opportunity of hearing to the petitioners therefore, the defect, if any, in procedure adopted by the Allotting Authority stands cured by the Appellate and Revisional Authority by affording hearing. Accordingly, it is submitted by the learned Government Counsel that the orders impugned do not warrant any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
8. I have considered the rival submissions and perused the record.
9. Admittedly, the allotment and sale of Government land in IGNP area are governed by the Rules of 1975 which have been framed by the State Government in exercise of its powers conferred by Section 7 read with Section 28 of the Rajasthan Colonisation Act, 1954. The 'small patch' as defined under Rule 2(xvi) of the Rules of 1975 means a piece of land measuring 5 bighas of irrigated land or 10 bighas of un-irrigated land. As per second proviso to Rule 5 of the Rules of 1975, amongst the person eligible for allotment of Government land for agriculture purpose, if a person is eligible for allotment of a small patch, such small patch shall be allotted to him only if it is available adjacent to his existing holding. The allotment of small patch of land is governed by Rule 14 of the Rules of 1975 which is an exception carved out to the general allotment. The rule as it was existing at the relevant time when the allotment was made in favour of the respondent Smt. Barji reads as under:
14. Allotment of small patch.-(1) Notwithstanding anything to the contrary contained in these rules, small patch of Government land may be allotted to a tenure tenant whose tenure land adjoins such patch, subject to the ceiling area at the highest prevailing market price for land of a similar soil class in the neighbourhood.
(2) In cases there are more than one such tenant applying for allotment of the same small patch, allotment shall be made by drawal of lots amongst them.
(3) The price of such small patch shall be payable by the allottee in five annual instalments, the first instalment being payable within a fortnight of the order of allotment. The due date in respect of the second and subsequent instalments shall be the date of the year corresponding to the date on which the allotment was made. Interest at the rate of 9 per cent per annum shall be charged in default of payment of an instalment on the due date:
Provided that if such, small patch is allotted to a landless person to raise his holding to 25 bighas, the price and mode of payment shall be as prescribed in Rule 17.
10. Rule 14 has been amended time to time. Vide notification dt. 22.09.1988, which was published in the Official Gazettee on 13.07.1989 following proviso was added:
Provided if the tenant of the adjoining land fails to apply for the allotment of small patch, the allotting authority, shall make arrangement for making allotment of such small patch to the tenure tenant of the same chak or of the adjoining chak.
11. The present controversy relates to the allotment made in favour of the respondent Barji vide allotment letter dt. 15.06.1982 therefore, the proviso added as aforesaid w.e.f. 13.07.1989 has no applicability in the instant case. Therefore, as per the provisions of Rule 14 read with Rule 5 of the Rules of 1975 existing at the relevant time, the small patch of land could have been allotted only to the tenure tenants of the tenure land adjoining to such small patch Government land. However, as per sub-Rule (2) if there were more than one such tenant applying for allotment of the small patch, the allotment was required to be made by drawal of lots amongst them. But then, if the land of the tenure tenant was not adjoining the small patch of the Government land, such a person was not eligible for allotment of small patch of land under the said Rule. Thus, had the petitioners granted the opportunity by the Allotting Authority before cancellation of their allotments, then they could have legitimately contended that the small patches of the lands in question were not open to be allotted to the respondent Smt. Barji who does not possess any tenure land adjoining to the small patches of lands in question. That apart, the petitioners were also entitled to contend before the Authority that since Smt. Barji who was allotted the land way back on 15.06.1982 has failed to deposit the entire amount due and has not taken care to take possession of the land for all these years, her allotment is liable to be cancelled in view of the provisions of Rule 13(8) of the Rules of 1975. Thus, by no stretch of imagination, it can be said that no prejudice has been caused to the petitioners on account of the opportunity of hearing being denied to them. Moreover, Rule 21 of the Rules of 1975 specifically provides that no allotment made shall be cancelled without giving an opportunity of hearing to the person affected therefore, the order passed by the Allotting Authority cancelling the allotment made in favour of the petitioners without affording of hearing to the petitioners is ex facie illegal and null and void.
12. There is no substance in the contention of the learned Government Counsel that since the RAA and the Board of Revenue have afforded the opportunity of hearing to the petitioners therefore, the defect if any in procedure adopted by the Allotting Authority, stands cured. As laid down by the Hon'ble Supreme Court in the matter of State of U.P. v. Mohammad Nooh AIR 1958 SC 86 that if an order passed by an inferior Court or Tribunal of first instance is null and void, the vice cannot be obliterated or cured on appeal or revision. Even if, such an order is confirmed in appeal or revision, it does not make any difference.
13. In considered opinion of this Court, the opportunity of hearing at the appellate stage cannot be accepted as substitute for hearing in the original proceedings. If the person is entitled for opportunity of hearing at the initial stage of adjudication then, the violation thereof shall render the order null and void. Moreover, in the instant case, as noticed above, a serious prejudice has been caused to the petitioners on account of denial of opportunity of hearing to them. In this view of the matter, the orders impugned passed by the RAA and the Board of Revenue ignoring this aspect of the matter are not sustainable in eye of law.
14. Coming to the finding arrived at by the Board of Revenue that the allotment was obtained by the petitioners by committing fraud, it is to be noticed that there is not even an iota of evidence on the basis of which such an inference can be drawn. Suffice it to say that the finding recorded by the Board of Revenue as aforesaid is only its ipse dixit which cannot be countenanced by this Court.
15. In view of the discussion above, the orders impugned are not sustainable in eye of law and deserve to be quashed and set aside and the matter deserve to be remanded to the competent authority for decision afresh.
16. Accordingly, the writ petitions are allowed. The orders impugned dt. 28.04.1997 passed by the Board of Revenue, order dt. 16.09.1994 passed by the Revenue Appellate Authority, Bikaner and order dt. 19.12.1988 passed by the Assistant Commissioner Colonisation, IGNP, Chhattargarh are quashed and set aside. It is submitted by the learned Counsel for the parties that presently, Sub Divisional Officer, Khajuwala is authority competent to decide the matter, accordingly, the matter is remanded to the Sub Divisional Officer, Khajuwala for decision afresh after giving opportunity of hearing to both the parties. No order as to costs.