BHEEKA RAM Vs. STATE

JUDGEMENT

(1.) This appeal seeks to challenge the order of the learned Single Judge dt. 27.8.2001 dismissing the appellant's writ petition.

(2.) The case has a long drawn history which may briefly be recapitulated in the manner, that three killas of land being Killa No. 11, 12 and 13 of Murabba No. 118/42 of Chak 19 KYD is the bone of contention, which shall hereafter be referred to as the land in question.

(3.) It appears from Annexure-2 dt. 29.7.1989, that the land in question was allotted to one Kadu Khan on 14.3.1988 as a small patch of land, which allotment was challenged by the appellant, interalia on the ground, that the appellant had applied for being allotted the said land to him on 16.6.87, but without considering that application allotment was made to Kadu Khan, and without giving opportunity of hearing to the appellant. The appeal was allowed, and it was found, that the allotment was made on the application of Kadu Khan, by observing that till 29.2.1988 no other application was received, while application of the appellant was filed on 16.6.1987, and therefore, eligibility of both the parties was required to be considered for deciding the matter of allotment. Consequently, the appeal was allowed, and the allotment of Kadu Khan was set aside, and the matter was remanded to the allotting authority. Thereafter the allotting authority passed the order Annexure-1 dt. 23.7.1990, and in this order, while recapitulating facts it was noticed, that the present appellant produced a certificate from the Colonisation Tehsildar, and Sarpanch of Gram Panchayat Karnisar Bhatiyan, to the effect, that in that village no person in the name of Kadu Khan s/o Daulat Khan at all resides. Then, the factum of allotment in favour of Kadu Khan having been set aside, and the matter having been remanded has been narrated, and after purporting to hear both the parties, being Kadu Khan and the appellant, allotment of the land in question was made in favour of the appellant. Against this order dt. 23.7.1990 appeal was filed by the private respondent Jor Singh, contending interalia, that he came to learn of the order dt. 23.7.1990 on 6.11.1990 only, on being informed by the present appellant, and also contending, that Jor Singh is an allottee of 18 bighas of land in this very Murabba No. 118/42 of Chak No. K.Y.D., and is entitled to have the land in question allotted as small patch of land. It was contended, that though the matter was remanded for deciding afresh after hearing both the parties, but then after remand the proceedings were not taken in accordance with law, i.e. by giving opportunity of hearing to all persons who were entitled to allotment. The learned Additional Commissioner Colonisation dismissed the appeal, on the ground, that Jor Singh has not been able to show his possession over the land, nor he has been able to show as to why he did not apply for allotment of land in question, and did not take any step in that direction, and even if it were to be assumed that he is in possession, his possession is only in the nature of trespasser. Thus, considering the merits of the matter, the appeal was dismissed on merits, as well as on the ground of limitation. Against that order a revision was filed by Jor Singh, which came to be allowed by the Board of Revenue vide order dt. 24.4.1996, finding interalia, that the first right of allotment of small patch of land vests in the adjoining tenure holders, and therefore, at the time of taking proceedings for allotment, it was necessary to give notice to the adjoining tenure holders, which has not been done in the present case. The question as to whether any of the adjoining tenure holders is in possession of the land is not a material circumstance but notice was required to be given, and for that purpose two decisions of the Board of Revenue, reported in 1991 RRD-22 and 1980 NUC 54 have been relied upon. It was also considered, that under the Rules if more than one persons claim to be entitled to be allotted the land, then the land is to be put to auction. Thus, possibility of loss of revenue to the Government has also come about. At the same time it was also considered, that the present appellant has not been able to show that any application was filed, either by himself, or by his son, for allotment of the land in question to him. Interalia with these findings the revision was allowed, and the order of the learned Additional Commissioner Colonisation was set aside, and the matter was remanded back to the allotting authority, with a direction to take proceedings for allotment of small patch of land, after inviting applications/giving notice to all concerned persons, and in accordance with law.