Rajesh Balia, J. - (1.) HEARD learned Counsel for the parties.
(2.) WE are of the opinion that this appeal and writ filed by the petitioner must succeed on a short ground. The undisputed facts are that allotment of land in question made in favour of the petitioner appellant was stated to have been challenged by way of appeal before the Revenue Appellate Authority in which the State was also a party. While the validity of allotment made in favour of the appellant, appeal was pending before the higher authority, the Collector purporting to act as Commissioner Colonistion acting on report of Tehsildar cancelled the allotment on the ground that allotment has been wrongly made notwithstanding an objection being taken to recourse to this power while appeal challenging the validity of allotment was pending before higher authority and before whom the same grounds could have been urged. The Board of Revenue sustained the order of the Collector by setting aside the order of allotment. Aggrived with the aforesaid order of the Board of Revenue by which the allotment made in favour of the petitioner on 22.04.1995 was cancelled, S.B. Civil Writ Petition No. 2613/1997 was filed. One of the grounds raised by the petitioner before the learned Single Judge was that the power to cancel allotment was vested to Commissioner Colonisation in the Colony area and the Collector was not empowered to cancel the allotment and he lacked inherent jurisdiction. This contention was rejected by the learned Single Judge inter alia on the ground that the objection was not taken before Lrs. of the Collector though it has been raised before the Board of Revenue. Considering that this contention would require holding an inquiry into a question of fact whether Collector was duly authorised in accordance with law to exercise the power to Colonisation Commissioner, which inquiry cannot be held in writ jurisdiction.
(3.) THE second contention which was raised before the learned Single Judge and which was raised right from the beginning was that once proceedings were challenging the allotment were pending before the authority higher than the Collector by way of appeal to which State was also a party through Tehsildar he could not have exercised that power simultaneously so as to infructuate the appeal. This issue was not considered by the learned Single Judge though the contention was noticed by him.;