' This is a revision petition against the order, dated 4-7-1969 passed by the Additional Commissioner, Hyderabad whereby he directed that disputed piece shall remain within prohibited area and will not be opened to cultivation.
2. The facts of the case are that some where in 1922, the Deputy Collector declared Tar Dahar in Makan Bapuhar, Taluka Mithi as Gauchar. In 1964-65, the petitioner Mataro cultivated the piece and penal form was filled and fine imposed against him by the Deputy Collector. He filed an appeal to the Deputy Commissioner, who upheld the same on the ground that the Mukhtiarkar Mithi had reported that the land under penal action did not fall within the Gauchar area or within the prohibited area. The respondents preferred an appeal to the Additional Commissioner, Hyderabad, who, vide the impugned order held that the disputed piece was within the prohibited area. I. The counsels for the parties urged the following points :- A-PETITIONER
(i) The disputed land does not fall within the prohibited area as defined by paragraph 4 of Land Grant Policy in the Desert. According to report, dated 15-2-1966 of Mukhtiarkar the disputed land was from the Gauchar,
(ii) The petitioner is Hari and cultivating the land, Tal jo Dahar was reserved for asaish some time back but the disputed piece is away from the Dahar.
(iii) The respondents are residents of Makan Nathro which is 4 miles away from the disputed piece.
The villagers of Makan Bapuhar have not raised any objection against disposal of the disputed land.
(iv) The petitioner has been cultivating the land in the past.
(v) The appeal of the respondents was in the first instance dismissed by the Additional Commissioner, Hyderabad, in default on 29-1-1969 but no notice of restoration application was given to the petitioner.
(vi) The restoration application could be made only within 30 days but the respondents had submitted the application on 12-3-1969, i,e, after the lapse of 30 days and it was, therefore, time- barred and could not be entertained by the Additional Commissioner, Hyderabad.
B-RESPONDENTS
(i) There were disputes between the residents of villages Bapuhar and Nathro and there was agreement between them in 1922, according to which the Tal jo Dahar and the areas from which water came to the Dahar were reserved for Gauchar under section 38 of the then Bombay Land Revenue Code (Original Rubkari, dated 14-6-1922 shown by the counsel).
(ii) Faqir Muhsin, one of the respondents is resident of Village Bapuhar and is a descendant of one of the disputing parties in 1922.
(iii) Petitioner is not landless.
Note.-Copies of Register Haqdaran Deh Bapuhar showing the partner as a sharer to the extent of 0.50 paisa in serial No, 45 Acres of the Deh and 10 ' Charkh-Shumari of the Makan for the year 1969-70 showing follow- ing areas on lease with the partner and his sons produced by the counsel.
Name of grantee. Area granted.
(i) Mataro. 35-03 acres.
(ii) Haji son of Mataro. 17-23 acres.
(iii) Mouledino son of Mataro. 16-03 acres.
(iv) The report of the Mukhtiarkar referred to by the petitioner was based on the report of S. T. While the Dy. Collector had subsequently visited the site personally and reported vide his No, 5 dated 17- 1-1969 that the piece is part of the prohibited area.
(v) The Additional Commissioner had accepted the restoration application and taken decision on it which showed that the authority had applied his mind to the question of limitation and condoned the delay vide 1970 SCMR 170."
4. The representative of the Assistant Commissioner, Desert stated that the petitioner had cultivated the land in the past but the cultivation was unauthorised and he was penalized for it.
5. I have considered the arguments put forth by the parties and seenIA the record. The file of the office of the Additional Commissioner shows that notice of the restoration application was issued to the petitioner for 4-7-1969 and the petitioner was present before him when the impugned order was passed. The plea of the petitioner that he had no notice about restoration application has, therefore, no weight. The plea of limitation was not raised before the Additional Commissioner, Hyderabad, and in view of PLD 1970 SCMR 170, it can be assumed that the Additional Commissioner had considered the question and as such there is no justification for interference with the impugned order on that account. As regards merits of the case, the original Rubkari dated 14-6-1922 shown by the counsel for the respondent indicates that Tal jo Dahar and the area from which water comes to Tal Dahar were reserved for Gauchar. The report of the Dy. Collector, who visited the site, is clear on the point that the rain water and cattle path are going through the disputed land and as such the disputed land forms part of the area reserved for Gauchar in 1922.
The petitioner could not cultjvate the prohibited area and the unauthorised cultivation done by him in the past does not confer any right on the petitioner to grant of the land. There is no merit in revision, petition, which is, therefore, dismissed accordingly.