SHETHNA, J. - (1.) ALL these petitions are disposed of by this common order as the common question of law is involved in all these petitions. A short but important question of law involved in all these petitions is, "whether the report of allotting authority would supersede the report of Tehsildar or not?"
(2.) ALL the petitioners made an application before the Tehsildar under Rule 13 of the Rajasthan Colonisation (ALLotment of Govt. Land in I. G. N. P. Area) Rules, 1975 as a land less persons for allotment of land in the year 1990 and to issue certificates recording they being a land less persons which is known as "photo form". In all these cases, the Tehsildar submitted his report against the petitioners on the ground that they were not land less persons and their main occupation was business. This was based on the report of Patwari Halka. However, while submitting such report against the petitioners, the Patwari Halka or Tehsildar had not made any detailed enquiry as to business licence, registration of shops, sales tax number etc. As against that the Deputy Commissioner Colonisation, who is allotting authority, personally enquired from the villagers and after making detail enquiry he came to the conclusion that they were landless persons and, therefore, they were bonafide agriculturist. Accordingly, the allotting authority allotted land to the petitioners on 16. 12. 1992. On allotment of the land, all the petitioners deposited first instalment and the possession of the land was handed over to all of them immediately thereafter. Since then all the petitioners were in possession of their respective land till today. On 31. 3. 1994, the Commissioner, Colonisation, Bikaner-respondent No. 2 issued separate notices to all the petitioners under Rule 22 (3) for cancellation of their allotment. All the petitioners filed their reply and after hearing them the authority cancelled the notice on 30. 7. 1997 as it was of the opinion that the said notices were wrongly issued. Thereafter, the vigilance officer submitted an application before the Commissioner Colonisation under Order 22 Rule 3 C. P. C. , on which the proceedings were initiated and second notices were issued against the petitioners stating that they were not bonafide agriculturists and not bonafide residents before 1. 4. 1955. The same was replied by all the petitioners, but this time after hearing them the Commissioner cancelled the allotment of land made in favour of all the petitioners by separate orders passed on 19. 9. 98 (Annex. 3 in all petitions ). This was challenged by the petitioners by filing separate revision petitions before the Board of Revenue and all these five revision petitions came to be dismissed by common judgment and order dated 18. 5. 1999 (Annex. 4 in all these petitions) passed by the Board of Revenue, therefore, all the petitioners have filed these separate petitions before this Court under Article 226 of the Constitution of India. Learned counsel Shri Khatri for the respondents vehemently submitted that though the petitioners have labelled these petitions as a petition under Article 226 of the Constitution, but strictly speaking all these petitions are under Article 227 of the Constitution of India. The scope of which is very narrow and limited. He also submitted that when concurrent finding of fact recorded by the authorities below then this Court should not entertain such petitions in its supervisory jurisdiction under Article 227 of the Constitution of India.
(3.) IT is true that all these petitions have wrongly been labelled as a petitions under Article 226 of the Constitution. IT is also true that the scope of this Court in its Supervisory jurisdiction under Article 227 of the Constitution of India is very narror and limited. This Court cannot interfere with the finding of fact recorded by the courts below. Ordinarily, this Court would have dismissed all these petitions on the ground that there are concurrent finding of facts recorded by the courts below which cannot be interfered with by this Court in its supervisory jurisdiction under Article 227 of the Constitution of India. But from the record of the case it appears that when all the petitioners applied for allotment of land as a land less persons the Patwari Halka and Tehsildar submitted their report that their main occupation was business. While submitting their reports against the petitioners no enquiry was made by them regarding the business licence, shops resgistration or sales tax numbers and other material things. It is not even mentioned in the report that what type of business they were doing. They had not recorded the statement of any villagers to show that their main occupation was business. Under the circumstances, even though the Patwari Halka and Tehsildar submitted their report against the petitioners, such a report cannot be accepted for the simple reason that there was no material to substantiate the fact that they were businessmen. As against that, on an application moved by the petitioners before the allotting authority against the report submitted by the Patwari Halka and Tehsildar, the allotting authority thought it fit to personally enquire into the matter and had gone to the village where the petitioners were residing and enquired from the villagers people about the main source of livelihood of the petitioners and on enquiry the allotting authority was satisfied that they were not businessmen. When the detailed enquiry was made by the allotting authority and on its report if the allotment is made in favour of the petitioners then in my opinion such an authentic report of allotting authority should be preferred to the report of Patwari Halka and Tehsildar. The Commissioner, who had cancelled the allotment made in favour of the petitioners and the Board of Revenue both have committed grave error in placing reliance upon the Patwari Halka and Tehsildar's report rather than the report of allotting authority. Thereby, they have committed jurisdictional error, therefore, this Court has to interfere with such orders passed by the authorities below in its Supervisory jurisdiction under Article 227 of the Constitution of India, though, both the courts below have concurrently found against the petitioners. Both the courts below have committed material illgality in not considering the fact that allotment of land was made to all the petitioners way back in 1992 and after the period of about two years notices were issued against the petitioners in 1994, but on the sufficient cause being shown those notices were cancelled by the authority by an order dated 30. 7. 97 (Annex. 2 in all the petitions ). Under the circumstances, in my opinion, it was not open to the authority to issue second notice on the same subject against the petitioners under Order 22 Rule 3 C. P. C. on the application submitted by the vigilance officer. In such type of cases, bar of resjudicata will certainly apply. It is unfortunate that in second notices learned Commissioner cancelled the allotment of land made in favour of the petitioners by his order dated 19. 9. 98 (Annex. 3 ). Even assuming for the sake of arguments that the petitioners were earning their livelihood by running small shops on a small piece of land but that would not make them as a businessmen. For running a regular shop, a person is required to have licence under the Shops Establishment Act, sales tax numbers etc. In absence of all these things one cannot be said to be a businessman. If the persons are landless persons and after making detail personal enquiry if the allotting authority is fully convinced that they are entitled for land as a landless persons then in my opinion such an opinion should be preferred to the opinion of Patwari Halka or Tehsildar, unless and until there is a serious allegation of malafide is levelled against the allotting authority while allotting the land to the landless persons. ;