Kanta Bhatnagar, J.
1. Petitioner has filed this writ petition Under Article 226 of the Constitution of India with the prayer that the orders passed by the Board of Revenue dated May 6, 1977 Annexure-6, by the Revenue Appellate Authority dated March 20, 1972 Annexure 5 and by the Sub Divisional Officer, Chittorgarh dated June 24, 1970 Annexure 4 be quashed and the petitioner be declared khatedar tenant of the land allotted to them in the year 1946 for establishing a Bone Mil) and developing Orchard.
2. Succinctly narrated the facts of the case giving rise to this writ petition are as under: An area of 35 bighas and 2 biswas of land situated in Chosunda, Tebsil Chittorgarh was allotted to late Abdul Rehman Admani, father of Md. Ayub, proprietor of the petitioner, M/s Mewar Bone Mills, Chosundra (here in after to be referred as the 'Mills') on June 7, 1946 by the erstwhile State of Mewar. Certain conditions were imposed at the time of that allotment. One of them was, that, on 10 bighas of the land allottee would put up a Bone Mill within a specified period, and the remaining land would be developed as an orchard that too within a specified period. Another condition was that the allotment would be on the basis of 'shikmi' for eleven years and thereafter the question of realising 'nazrana' would be examined. In the year 1961 the Government of Rajasthan held that the Bone Mill was established only on an area of six bighas and ten biswas. The Collector, Chittorgarh was therefore, directed to allot that area to the petitioner on the basis of a 99 year lease on payment of premium as well as annual ground rent. The directions were also issued for taking over possession of the 'emining land, as the petitioner had failed to fulfil the conditions of allotment. When this order of the Government was going to be executed by the Revenue Officers, the petitioner filed a suit for declaration and perpetual injunction against the State of Rajasthan in the Court of Sub-Divisional Officer, Chittorgarh on the ground that with the enforcement of the Rajasthan Tenancy Act on October 15, 1955 (hereinafter to be referred as the 'Act') they became Khatedar tenant of the land in dispute and were therefore, not liable to ejectment. The suit was dismissed. The petitioner preferred an appeal which was dismissed by the Revenue Appellate Authority. The petitioner then went in revision before the Board of Revenue Rajasthan, Ajmer, but could not succeed. A review petition was filed there, which too was rejected on January 23, 1980.
3. It is in grievance of the aforesaid judgments that the petitioner has invoked the extraordinary jurisdiction of this Court by filing this writ petition.
4. Notices were issued to the respondents at the stage of admission. Mr. M.D. Purohit, learned Additional Government Advocate put in appearance on behalf of the respondents and filed the reply. We heard Mr. S.N. Sharma, learned Counsel for the petitioner and Mr. M.D. Purohit, learned Additional Government Advocate and carefully examined the record of the case.
5. Mr. S.N. Sharma, learned Counsel for the petitioner has strenuously contended that the petitioner, having been considered a 'shikmi' at the initial stage and then being recorded as ghair-khatedar tenant' in the revenue records, had acquired khatedari rights by virtue of Section 15 of the Act from the date it came into force i.e. October 15, 1955. According to the learned Counsel the petitioner is a 'grantee' as defined in Section 5(12) of the Act, and therefore, is a tenant according to Section 5(43) of the Act. Mr. Sharma next argued that on account of the land in dispute being hilly track 'orchard' could not be developed. That, this difficulty was realised by the concerned authorities and the Collector, Chittorgarh and Commissioner, Udaipur Division, recommended that khatedari rights should be given to the petitioner. Despite that the Government passed the order for granting 99 year lease for the land utilised for establishing the Mill and dispossessing the petitioner from the remaining area, which is aga'nst the provisions of the Act.
6. Mr. M.D. Purohit, learned Additional Government Advocate controverting these arguments, submitted that the conditions contained in the allotment order were not fulfilled by the allottee and therefore, the order of the Government was fully justified. That, the allotment was to establish a factory and to develop the 'orchard' and not to permit the petitioner to use the land for agriculture purpose and therefore, his suit for declaration of khatedari rights had been rightly dismissed. All the three courts in their judgments have discussed the relevant condition of the allotment that ten bighas of land was meant for the Mill and the remaining area would be brought under an 'Orchard'. Mr. Sharma, learned Counsel for the petitioner also does not dispute this condition. But his contention is that the unsuitability of the land for that purpose led to the failure on the part of the petitioner to comply with the condition.
7. Issue No. 3 in the suit, filed by the petitioner, translated into English reads as under:
Whether plaintiff was a 'ghair khatedar' tenant of the suit land on, or before, 15.10.1955 and whether he become a khatedar tenant on 15.10.1955'.
8. The learned Members of the Board have discussed the implications of the term 'shikmi' and taken into consideration the definition of this term given in 'Kanun Mal Mewar' enacted in 1947 to amend and consolidate the then existing laws relating to land revenue and tenancies.
9. Assailing that part of the judgment Mr. Sharma contended that the allotment being in the year 1946, 'Kanun Mal Mewar' could not have been retrospectively applied to that allotment and therefore, the Board was in error in looking to the definition in 'Kanun Mal Mewar' for the term 'shikmi'.
10. It is noteworthy that the learned Members were alive of this position and had only taken help from the definition in 'Kanun Mal Mewar' for the term 'shikmi' to understand the intention or idea of using the term 'shikmi' in the year 1946. 'Shikmi' tenancy was of the lowest order. Such a tenant could not claim khatedari rights because he was liable to ejectment at the will of the authorities concerned.
11. As per provisions of Section 15 of the Act every person who at the commencement of this Act was a tenant (excluding certain categories given in that Section) acquired Khatedari rights in accordance with the provisions of that Act.
12. Section 5(43) defines tenant as a person by whom rent is, or, but for a contract, express or implied, would be payable. Section 5(12) defines 'grant' as under:
'Grant' shall mean a grant or a right to hold land or interest in land in any part of the State and the person to whom such right is granted shall be called the 'grantee' thereof:
13. Mr. Sharma emphatically stressed that all the courts below were in error in considering the case of the petitioner under the definition of 'grant' at, a favorable rate of rent' as appearing in Section 5(13) of the Act. He referred to Section 5(43) of the Act and urged that only a grantee at a favourable rate of rent or an ijardar or a thekadar or a trespasser has been excluded from that definition and if the intention of the legislature had been to exclude the 'grantee' also from the definition of the tenant, there would have been a specific mention to that effect. Correct it is that there is a specific exclusion of 'grantee at a favourable rate of rent from the definition of tenant but that does not mean that the grantee of the 'grant' defined in Section 5(12) of the Act has been implidely included in the category of a tenant.
14. This is not in dispute that the grant to the petitioner was on certain conditions which they had to fulfill in a specified period. This is also not contested that certain conditions could not be fulfilled by the petitioner. Section 15(2) deals with this type of cases. Section 15(2) reads as under:
Notwithstanding anything contained in Sub-Section (1) khatedari rights shall not accrue there under to any person to whom land had been let out before the commencement of this Act by the State Government in furtherance of the 'Grow More Food Campaign' or under some special order or subject to some specified conditions or in pursuance of some statutory or nonstatutory rules and who shall have, before such commencement made a default in securing the objective of such campaign or a breach of any such order, condition or rule.
15. The present case is covered by this clause. As the allotment to the petitioner was under a special order and also subject to specified conditions, their failure to fulfill those conditions amounted to a breach and they became defaulter. This non-obstante clause creates a bar on the rights of the petitioner to acquire khatedari rights as provided in Section 15(1) of the Act. This being the clear position of law mere use of the word 'shikmi' or 'ghair khatedar' anywhere in the record would be of no help to the petitioner.
16. Mr. Sharma inter alia argued that even if the case of the petitioner is held to be covered by Section 15(2), as they had filed an application Under Section 15(3) of the Act in time action should have been taken on that application, and they should have been declared khatedar tenants.
17. The above submission is not worth consideration. Firstly because this point has been raised for the first time in this Court and that too during the course of arguments, and secondly because there is no material on record to indicate whether any such step was at all taken by the petitioner, and if so with what result. Apart from it even if the petitioner had filed any such application, the proper course would have been to pursue the matter before the Assistant Collector and to seek relief there before filing the writ here.
18. Under these circumstances, there being no infirmity or illegality in the impugned orders, no relief can be given to the petitioner by this Court in exercise of extraordinary jurisdiction.
19. Consequently, the writ petition is dismissed summarily. In the circumstances of the case costs shall be easy.