G.M. Lodha, J.
1. Seemingly battle against nepotism, favouritism and deprivation of landless from distribution of surplus land under ceiling laws, whether genuine or crocodile tears and trickery to retain possession by landowners, is the pivot of real debate in this petition.
2. Hardly the ink of Hon'ble Justice Shrimal's pen has dried in penning the monograph on 'Land Reforms', in which he made Government Advocates tall claim of distribution of this land to landless, the alleged third innings of this Land-owners v. Landless litigation was on the 'docket' and board of this Court, by the present writ having been filed on 19th July, 1982. Whether it is 'old wine in new bottle,' is a serious question for judicial adjudication.
3. The above author of 'Land Reforms Monograph' has observed as under:--
'Transfer of land made by land-holders having excess land than that of the ceiling limit prescribed under the law does not create any right in favour of the transferees and the plea of bona fide purchaser is not open to them.
In Lekh Raj v. State of Rajasthan S. B. Civil Writ Petn. No. 21 of 1981, decided on October 30, 1981 along with 53 writ petitions filed by transferors of Maharaja Kumar Pritivi Singh, I held that the pattas issued to the petitioners of these cases were ante-dated. They were neither on stamps nor registered ones and no right was created by them in favour of the holders of those pattas. In those cases, it was also held that petitioners were guilty of laches and contemptuous conduct disentitled them to extraordinary remedy under Rule 226 of the Constitution of India.
Detailed scrutiny of these cases reveal that even highly placed persons change their stand and raise false pleas and put resistance to save land from being resumed and put obstacles in allotment of land to landless persons by issuing Benami Pattas in favour of their employees and favourites. On the basis of the information given to the court by the Government Advocate it can be said this time the administrative machinery has been geared up properly. It is said that land measuring 1840 acres involved in the above noted cases, have been allotted to landless peasants by now, 1982 RLR (Journal Section) 22,'
4. Gram Panchayat village Mahawa, Tehsil Todabhim, District Sawai Madhopur, represented by Narainlal Sarpanch, has filed this writ petition against the apprehended and later on actual allotments, which were made on 25-6-82 and 30-6-82 of the agricultural land. The petitioner has made the following prayer :--
'It is, therefore, prayed that your Lordships may be pleased to accept this writ petition, issue a writ of certiorari, mandamus and prohibition, call for the record of the case and it may be declared that the initiation for the proceedings for allotment of land were all illegal, void and the notification dated 5-5-1982 and 30-6-1982 be quashed and set aside and the allotments made be cancelled and the Advisory Committee and the Sub-Divisional Officer be directed not to allot land measuring 627 Bighas-17 biswas in view of the two stay orders passed by the Government dated 12-8-1980 and 24-6-1982 and the Advisory Committee and the Sub-Divisional Officer be restrained from allotting land to any body which is Ghair Mumkin Talab and Ghair Mumkin land (uncultivable) without converting its category by the competent authority and for the rest of the land the respondents be directed to invite fresh applications for allotment in accordance with law, and the persons in possession of 627 Bighas 17 Biswas of land may now be dispossessed and any other appropriate writ, direction or order be issued which your Lordship think proper.'
5. The petitioner claims that he is filing this writ petition in his own capacity and also in representative capacity on behalf of the villagers of village Mahawa.
6. The land measuring 1940 Bighas consisting of Khasra Numbers 1, 2, 4, 6, 8, 10 to 20, 21, 23, 130. 1307 and 1309, situated in village Mahawa, Tehsil Toda Bhim was admittedly in the Jagir of Maharai Kumar Prithwi Singh son of late Maharai Mansingh of Jaipur. The petitioner's case is that this land was given to different persons as tenants by Maharai Kumar Prithwi Singh and later on for an area of 627 Bighas and 17 Biswas the tenants became khatedars.
7. Proceedings under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act. 1973 were taken against Maharai Prithwi Singh and there wasa chequered career of these proced-ings, in which ultimately the transfers made by Maharaj Kumar Prithwi Singh were held to be invalid.
8. The petitioner in this case has claimed that by letter dated 12-8-80 stay order was granted by the Government, but in contravention of that the S.D.O., Hindaun issued a declaration on 5-5-82 (Annexure-F) for allotment of land measuring 1940 Bighas and 18 Biswas situated in this village and invited applications under Rule 7 of the Allotment Rules mentioning that the application can be filed up to 21-5-82.
9. After the issue of the above proclamation, the petitioner's case is that a stay order was again granted in respect of the land and the same was served on the Sub-Divisional Officer, who is Chairman of the Advisory Committee, but in spite of service of the stay order allotments were made on 25-6-82 and again on 30-6-82, to 365 persons, who according to the advisory committee were landless persons entitled to allotments.
10. The petitioner has challenged the above allotments on a number of grounds. Firstly, it was contended by Mr. Tewari learned counsel for the petitioner that in view of the stay order of the Government for 627 Bighas of land, the S.D.O. was not competent to allot that part of the land. It was then contended that Shri Chet Ram Meena Minister in the State of Rajasthan acted mala fide and made illegal allotments on account of nepotism and favouritism, as allotments were made illegally to his relatives and he himself was present in the meeting of 30-6-82. It was also argued that the place of allotment was changed, as instead of Panchayat Office the allotments were made at the residence of some relative of Shri Chetram Meena, and the village people could not go to the place for filing applications for allotment. It was then argued that in any case the allotments were illegal, because they were made to minors and to persons who were not entitled to allotment and further they were made for an area for which allotments are prohibited under Section 16 of the Tenancy Act, because it is Pan Talab area. Mr. Tewari further argued that all these allotments were made in a surreptitious manner by fake proceedings, because there was no map or trace prepared mentioning individual khasra numbersand areas divided into various portions, and in the absence of the trace no allotments could have been made. Mr. Tewari, therefore, prayed that all the allotments should be cancelled, because in the meeting of 25-6-82 the petitioner Sarpanch wanted to make a dissenting note and according to the rules the proceedings cannot proceed.
11. Mr. M. I. Khan appearing for the respondents has controverted the above allegations of Mr. Tewari. According to him, this is the third inning in which an effort is being made by persons who want to retain the land which has been taken in ceiling as surplus land from Maharaj Kumar Prithwi Singh. Mr. Khan referred to two earlier judgments of this court, one of Civil Writ Petition No. 21 of 1981 Lekhraj v. State of Raiasthan decided on October 30, 1981, in which writ petition No. 86/81 was filed by the present petitioner Narainlal son of Meghchand Meena, resident of village Mehawa. Mr. Khan pointed out that Narainlal Meena after the above judgment has only camouflaged his status by filing the writ petition On behalf of the Gram Panchayat, but the real object is to retain the land which has been declared surplus under the Ceiling Law.
12. Reference was also made to the judgment of Civil Spl. Appeal No. 33 of1982 Naharsingh v. State of Rajasthan, decided on 3-8-1982 in which the judgment of the learned single Judge dated 30-10-1981 was confirmed.
13. It appears that the Division Bench judgment dated 3-8-1982 has confirmed the judgment of the single Bench dated October 30, 1981, referred to above, although only four persons filed the appeal out of 54, and these four persons were of village Kamalpura.
14. In the judgment of the learned single Judge, it has been held that the State Government had taken vacant possession of the land in dispute on 19-2-75 vide Annexure-R-4, and thereafter the petitioners trespassed over the land and the Naib Tehsildar imposed a penalty over them. The operative part of the judgment is as under -
'One of the prayers made by the petitioners in the writ petitions is that the order of the Sub-Divisional Officer, Hindaun dated April 15, 1971 (Annexure-B) be quashed. In fact this is the main relief, which the petitionerswant. Unless that order is quashed, the petitioners cannot claim any khatedari rights in the land in dispute. This order was passed in the year 1971 and the petitioners have filed these writ petitions in the year 1981 i. e. after the expiry of ten years. The petitioners have failed to explain this inordinate delay in filing the writ petitions and on ground of laches also these writ petitions are not maintainable so far as the relief relating to quashing of the impugned order dated April 15, 1971 is concerned.
As already mentioned above, according to the State Government the Sub-Divisional Officer had taken possession of the land in dispute on February 19, 1975 vide Annexure R-4. Thereafter the petitioners again trespassed over the land and the Naib Tehsildar vide his order dated August 9, 1977 imposed penalty over them as mentioned in paragraph No. 6 of the writ petition. From the re'sume' of the case and the facts already narrated above, it can be said that the petitioners are guilty of laches and contumacious conduct which disentitle themselves from invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
For the reasons already mentioned above, I find no merit in the above writ petitions and they are dismissed summarily.'
15. Mr. Khan then raised a preliminary objection that admittedly allotment order under challenge, allotted the land lo 365 persons and those allotments have been challenged as a whole in this case, but as those 365 persons in whose favour the allotments have been made have not been made parties, this Court cannot condemn them behind their back and quash the allotments without hearing them. In substance, the objection relates to non-joinder of parties on account of non-joinder of 365 persons in whose favour allotments have been made.
16. Mr. Khan then raised another preliminary objection that thepetitioner and other persons havefiled appeals-cum-revision-cum-com-plaints-cum-applications under Rule 17 (4)of the Ceiling Rules beforethe Collector on precisely thesame grounds on which thiswrit petition has been filed. It was,therefore, argued that this court shouldnot allow duplicacy of proceedings anddual proceedings at the same time, because it will result in anomalous situation.
17. Replying to the separate objections, Mr. Khan pointed out that the allegations that allotments were made to the relatives of Shri Chetram Meena is incorrect. It was pointed out that in the writ petition no names were given of any relatives and a bald, sweeping and general allegation was made. Later on, in the process of reply to reply some names have been introduced, but they do not show any relationship between Shri Chetram Meena and those persons mentioned in ihe reply to reply. It was also pointed out that allotments were made to those persons on 25-6-82 when Shri Chetram Meena was not present at all. The allotments to minors etc were denied. Mr. Khan submitted that no such contention was raised in the writ petition and this allegaiton is an afterthought. Mr. Khan in his reply controverted all the allegations and then lastly submitted that all these questions raised by Mr. Tewari and denied by the respondents are complicated questions of fact on which this Court cannot hold an elaborate enquiry for adjudicating the truth or otherwise.
18. Regarding the stay order of the Government, Mr. Khan pointed out that as it would be clear from the writ petition itself and the prayer clause, the Government order dated 12-8-80 was superseded by the later order dated 24-6-82. Mr. Khan pointed out that this order dated 12-8-80 by which the Government decided not to allot 627 Bighas of land for the time being on account of some objections about the nature of the land and the status of the applicants or objectors at that time was ultimately adjudicated by this court in the earlier judgment and it was held by this Court in the judgment of single Bench on page 9 that the petitioner appellants were not required to give any notice as they were neither valid or legal transferees nor were recorded tenants or sub-tenants before the proceedings for ceiling were taken under the old ceiling law. It was held by the Division Bench that neither the letter issued by the Government dated 12th August, 1980 nor the decision of M. C. Jain J. referred to above is of any as-sistance to the petitioner-appellants. The Division Bench ultimately held as under:--
'The allotments have already been made in favour of persons belonging to Scheduled Castes and Scheduled Tribes. The petitioner appellants had neither raised this ground in the writ petitions nor it was argued before the learned single Judge. Even otherwise in order to bring the case under this Rule many conditions have to be fulfilled and we are not concerned to go into this matter. The lands have already been allotted in favour of other persons and the question of cancelling their allotments, is neither valid nor justified'.
19. Having heard Mr. Tewari and Mr. Khan at length, I have given thoughtful consideration to the various issues involved in this writ petition. The first and the foremost objection which appears to be substantial and unassailable relates to the question whether, the allotment orders made in favour of 365 persons who have been prima facie treated as landless tenants and in whose favour land has been allotted can be quashed and cancelled on account of allegations of nepotism or favouritism, behind the back of those persons. The elementary principles of natural justice warrant that before the allotments are cancelled and the orders are quashed, each person in whose favour allotment order stands, should be heard.
20. In my opinion, this objection of Mr. Khan goes to the root of the caseand deserves to be accepted.
21. Mr. Tewari after contesting the above legal position during arguments, volunteered during the dictation of the order that he is prepared to join these 365 persons as respondents in this case, and he must be allowed an opportunity to do so now. For the reasons which I shall mention hereafter, I am of the opinion that no such opportunity can be given now at this stage and in any case it would be futile.
22. Mr. Tewari, further submitted that it is not necessary to join 365 persons as respondents, because the Gram Panchayat has been challenging the allotments from the very beginning and in any case the challenge on behalf of the Gram Panchayat which has got a right to file writ petition is for the welfare at the people as a whole. In my considered opinion, though it is true that the Gram Panchayat can file writ petition, and I would not express anyopinion whether it is being done for the benefit of the people as a whole or for the benefit of Narainlal Sarpanch whose writ petition was dismissed earlier and those persons who met their Waterloo in the earlier writ petitions, but even otherwise the right of 365 persons in whose favour allotments have been made as landless persons cannot be done away with and abandoned. It makes no difference whether the petitioner is Gram Panchayat or not. It is the right of a person in whom some property vests due to the allotment which is being considered to be heard and it is not in question as to who is the petitioner. Each individual in whose favour an allotment has been made by the advisory committee is entitled to be heard and to show cause and to give reply and convince this court that the allotment is valid and the allegations of nepotism or favouritism, irregularities and illegalities are not correct. I am afraid, I cannot deprive them on this ground that the petitioner is Gram Panchayat and not an individual.
23. The second objection of Mr. Khan is equally substantial. This relates to the fact that under Section 21 of the Ceiling Law allotment is made and under Section 23 any person aggrieved by any decision or order can file an appeal before the Collector of the concerned district against the decision or order.
24. Obviously, in the instant case, allotment orders have been made in writing. The various objections which the petitioner wants to take here in the writ petition could have been taken and can be taken before the Collector. The Collector of the district is conversant and has got speedy access to the record of the proceedings, and he can decide the entire case as an appellate authority under Section 23. Under Sub-clause (4) of Section 23, he can either decide the case finally or remand the case or take additional evidence or require the evidence to be taken by an authorised person for the decision of the case finally.
25. Such being the comprehensive provisions in Section 23, the petitioner could have challenged the allotment orders on the grounds which have been urged here and the Collector would have been in a better position to decide them. According to Sub-clause (6) there is further provision for the Board of Revenue to reconsider the matter. It is thus clearthat according to sub-clauses (1) and (2) not only one but two opportunities are provided, the first before the Collector and the second before the Board.
26. Mr. Tewari pointed out that since he has not challenged the allotments on merits, but he challenges the allotments as a whole on account of the grounds which are common to all or to a major part of the land, therefore the appeal was not the proper remedy. He further submitted that his application was neither taken nor rejected, and, therefore, he could not have filed the appeal.
27. I am afraid, the reply submittedby Mr. Tewari fails to carry any conviction with me, because nowhere ithas been provided that only a personwhose application is rejected can file anappeal. Any aggrieved person who hasbeen deprived of the right to move anapplication or whose land is being allotted, even though the land vests inhim under the law, can certainly file anappeal before the Collector. Moreover,the grounds which have been taken byMr. Tewari regarding individual casesof favouritism on account of relationshipor minority or otherwise require a detailed consideration of the facts in individual case. If 4-5 persons were minoror 50 persons were minor, all the allotments cannot be quashed. If a part ofthe land is alleged to be such and itcannot be allotted on account of Section 16,then again the entire allotments cannotbe quashed. Again, if some of the persons who are relatives of the Ministerconcerned and a case of nepotism andfavouritism is proved, then it would bethe individual cases which would require consideration by the appellateauthority. The request for wholesalecancellation of the allotment orders cannot be entertained, when specific, positive, and more efficacious proper remedyis provided by appeal under Section 23 of theAct. In my considered opinion, the present one was an appropriate case wherethe petitioner or those persons who wereaggrieved by allotment to 365 personsshould have filed appeals taking specificgrounds in each case, so that the Collector could have scrutinised the facts anddecided them on an objective consideration of the entire matter.
28. Closely associated with the abovethe objection is that the petitioner withsome other persons has filed com-plaints under Rule 17 (4) of the Ceiling Rules. It is not material as to whether Rule 17 contemplates a representation or complaint or an application. The substance of the matter is that under Rule 17 (4) allotment can be challenged. There is difference and divergence between the submissions of Mr. Tewari and Mr. Khan. Whereas Mr. Khan submits that objections have been filed and are pending, and wants to show that the objection of Narainlal was filed before the Collector, Mr. Tewari submits that no such objections were filed and no documents have been filed before this Court, nor any allegations have been made in support of those allegations. Be that as it may. In my considered opinion, since I have held that proper remedy of appeal has been provided by the Legislature under Section 23, where all these disputed questions of fact can be adjudicated, it is immaterial whether some complaints or objections have been filed under Section 17 (4) or not. That factor would not come either in the way of accepting or rejecting the writ petition.
29. In view of the above two important objections of Mr. Khan, it is not necessary for me to decide the separate allegations of the writ petition. It would be sufficient to mention here that if I would not have accepted the objection regarding the non-maintainability of the writ petition on account of the alternative remedy of appeal, I might have considered the prayer of Mr. Tewari which was made during dictation of the judgment to permit him to join 365 persons as parties. However, as the second point has also proved fatal to his case, therefore I feel that no useful purpose would be served by accepting his prayer at this belated stage.
30. Mr. Tewari pointed out that the petitioner and other persons were not allowed to move applications because of the presence of R.A.C. of the respondents at the place where allotments were made and the change of venue. Mr. Khan has denied that any person was deprived to make any application before the authority. Be that as it may, I am not deciding the above on merits, because it is a seriously disputed question, whether any person wanted to move any application at all. For one, the petitioner claims that the land belongs to him and he has not been dispossessed so far, and the narration inthe earlier part of the writ petition shows that he wants to assert that the land which is being allotted cannot be allotted. As a matter of fact, the prayer clause also shows that the notification or proclamation inviting applications should be quashed. That submission appears to be not genuine, because the main limb of the writ petition is that the allotments should not have been made at all, and the land is not surplus land in Ceiling Law. If that is so, it does not stand to reason that the petitioner who has been litigating earlier also and has filed this second writ petition, now in a different status of Gram Panchayat would have moved any application for the allotment of land. In any case, I have held that the writ petition is not maintainable on two preliminary objections.
31. I am restraining myself from adjudicating the question posed at the threshold of this judgment, whether this litigation is 'old wine in new bottle', because I feel that the controversy can be avoided. However, I do feel that prima facie, the contention of Mr. Khan about the 'third inning' and effort of landowners to deprive landless, is not only relevant but well substantiated, from the history of litigation and earlier judgments.
32. If it is so, what a poor homage is being paid to the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 and the earlier such provisions in Rajasthan Tenancy Act, 1955 needs no comments.
33. In view of the above discussion, the objections of Mr. Khan are accepted. The writ petition falls and is dismissed without any order as to costs.