- (1.) GORDHAN and seven others, who were allotted agricultural land for cultivation in village Chandji-ki-Kheri, Tehsil Mandalgarh, by Tehsildar on 15-4-60, and whose allotment has been cancelled by the Government on 18-1-63 (vide Ex. 4 on the record), have filed this writ petition under Art. 226 of the Constitution questioning the validity of the aforesaid Government order.
(2.) THE petitioners were residents of village Chandji-ki-Kheri and according to them they had no cultivable land of their own prior to the allotment in question. Consequently they applied to the Tehsildar Mandalgarh for allotting them land. THE Tehsildar accepted their applications and granted them land comprised in Khasra No. 226, 720 and 723, which roughly measured 75 bighas. THE petitioners proceed to say that after the allotment they were put in possession of the land and after they were so put in possession they made several inprovements over it. THEy sank well in it and made it cultivable. THEy had also raised crops over it and had been paying rent to the Government regularly. One Shri Motilal Dhakar respondent No. 2, who was the Sarpanch of village Panchayat Gopalpura filed a revision petition against the order of allotment to the Government of Rajasthan. Pursuant to that application the Deputy Secretary to the Government in the Revenue Department heard the revision application and, accepting the same, cancelled the allotment (vide order Ex. 4 on the record ). In challenging the validity of this order Ex. 4 the petitioners aver that no revision lay to the Government under the Rules of allotment and as such the order Ex. 4, was wholly without jurisdiction. Then, as regards the merits of the Government order, it is urged that there was no objection whatsoever from any quarter before the revenue authorities against the application for allotment and, therefore, it was in order. It is then contended that the land in question was not a pasture land as mentioned in the Government order. Then it is said that Shri Motilal, who was the Sarpanch of village Panchayat Gopalpura had no right to file the revision application as village Chandji ki-Kheri was not in the Panchayat circle of Gopalpura. Lastly, it is urged that the Deputy Secretary to the Government could not have dealt with the matter on his own. Though appearance has been entered on behalf of the respondents, by the learned Government Advocate for respondents Nos. 1 and 3, and by Shri Arjunlal Mehta for the other respondent, no reply has been filed to the writ petition. The main question that falls for consideration is whether Government were competent to entertain any revision against the order of allotment. Sec. 101 of the Rajasthan Land Revenue Act, 1956, provides for allotment of land for agricultural purposes. The relevant portion of this section reads as under: "sec. 101. Allotment of land for agricultural purposes - (1) Save as otherwise provided elsewhere by this Act, land for agricultural purposes shall be allotted by a Tehsildar after entering the application in the register kept for the purpose and allotment by him shall be subject to such rules as may be made by the State Government from time to time in this behalf. " The Government have framed the Rules known as the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1957, hereinafter to be referred as the "rules", in excercise of their rule making power and the procedure for allotment is laid down in these rules. Shri U. L. Gupta, learned counsel for the petitioners, invited our attention to R. 15 of the Rules which provides that "any person aggrieved with the Tehsildar's order of allotment, or an order rejecting an application for allotment, may appeal to the Collector within 30 days of such order". It is argued by Shri Gupta that as no appeal was filed in accordance with the Rules, the order of allotment in favour of the petitioners had become final and consequently it could not be interfered with by the Government. It is true that no appeal was filed by any party within the prescribed period against the order of allotment, but this, to our mind, will not affect the jurisdiction of the Government to deal with the matter. Sec. 83 of the Rajasthan Land Revenue Act provides that "the State Government may call for the record of any non-judicial proceeding not connected with settlement held by any officer subordinate to it, and may pass thereon such orders as it thinks fit. " The matter relating to allotment of land for agricultural purposes is nothing but a non-judicial proceeding and as the same is not connected with settlement the State Government will be competent to call for the record of such proceedings and pass in relation thereto such orders as it thought fit. In the circumstances, we find no substance in the contention that the Government had no jurisdiction to revise the orders of allotment. A perusal of the order does not show that it was the Deputy Secretary who had dealt with the matter. At the end of the order the Deputy Secretary has put the words "by Order" before signing the order. This order is, therefore, ex-facie an order of the Government and not that of the Deputy Secretary as such. There is no averment in the writ petition that this order was not authenticated by the Deputy Secretary in accordance with the business rules of the Government. We are thus not satisfied that this is an order passed by the Deputy Secretary of his own and not one passed by the Government in exercise of their revisional jurisdiction under section 83 of the Rajasthan Land Revenue Act, 1956. A perusal of the order Ex-4, shows that the Government thought that this was a pasture land, and, therefore, the Tehsilder was not competent to allot it for purposes of cultivation. Rule 4 of the Rules specifies the lands that shall not be open for allotment and the relevant portion thereof runs as under: - "r. 4. Land not available for allotment under these rules - The following categories of lands shall not be available for allotment for agricultural purposes under these rules - (i) Lands mentioned in sec. 16 of the Tenancy Act; x x x x x x" Now, Lands mentioned in section 16 of the Tenancy Act are such categories of lands in which no Khatedari right could accrue. Relevant portion of that section reads as under: - "sec. 16. Lands in which khatedari rights shall not accrue - Notwithstanding anything in this Act or (in any other law or enactment for the time being in force in any part of the State) Khatedari rights shall not accrue in - (i) pasture land ; x x x x x x" Under section 5 (28) of the Rajasthan Tenancy Act, the term "pasture land" shall mean "land used for the grazing of the cattle of a village or villages or recorded in settlement records as such at the commencement of this Act or thereafter reserved as such in accordance with rules framed by the "state Government". From the definition of the term "pasture land" it will be evident that if the land is recorded in settlement records or is reserved as such in accordance with the rules then no further proof of it being a pasture land is necessary, otherwise for any land to be pasture land it has to be shown that it is a land used for grazing of the cattle of a village or villages. In the circumstances it is but a question of fact, whether the land in question allotted by the Tehsildar to the petitioners was or was not used for grazing cattle. In exercise of our extraordinary jurisdiction under Article 226 of the Constitution we are in no position to make any pronouncement one way or the other, whether the Government were justified in treating the land as pasture land. We are also unable to express any opinion on the question whether the petitioners had-made any improvements over it or that they had been cultivating it and paying rent regularly to the Government. If the petitioners feel that by virtue of the allotment in their favour by the Tehsildar and by their cultivating it and paying rent to the Government, they have lawfully acquired tenancy rights in it, then it will be for them to establish their rights in a competent court. To our mind, the remedy of a suit is available to the petitioners and consequently we are not inclined to deal with the matter in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. The result is that we hereby dismiss the writ petition. The parties will bear their own costs. . ;