1 STATE OF RAJASTHAN & ANR. VS. AHSAN (D.B.CIVIL SPECIAL APPEAL(W)NO. 912/99) Dated:- 3.3.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Sandeep Bhandawat, Government Counsel,for the appellants. Mr. Jitendra Chopra, for the respondent. 1. Heard learned counsel for the parties. 2. This special appeal is directed against order dated 7.7.97 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant assailing the validity of order dated 25.4.89 passed by the Board of Revenue, Rajasthan, Ajmer, order dated 20.9.88 passed by the Revenue Appellate Authority-II,Jodhpur and order dated 11.4.84 passed by the Additional Collector, Barmer , has been allowed and accordingly, the aforesaid orders impugned have been set aside. 3. The relevant facts in nutshell are that in the year 1968, the appellant was allotted 75 bighas agriculture land in Khasra No. 57, situated at village Tamlor under the provisions of Rajasthan Land Revenue (Allotment of Land for Agriculture Purpose) Rules, 1957 ( in short “the Rules of 1957” hereinafter). After the allotment as aforesaid, the appellant occupied the land and cultivated the same . On 10.6.81, the Tehsildar, Shiv filed an application under Rule 14 of the Rules of 1957 before the 2 Additional Collector, Barmer for cancellation of the allotment made in favour of the appellant on the ground that the appellant was minor and was not a landless person at the time of allotment therefore, he was not eligible for allotment under the Rules of 1957. It was alleged that the appellant had notional share in the land owned by his father and grand father. 4. The application was contested on behalf of the appellant stating that he is living separately from his father since the year 1968 and he did not own any land. That apart, it was submitted that the appellant has cultivated the land for all these years and has invested a huge amount in improvement of the land therefore, at such a belated stage, the allotment cannot be cancelled. 5. After considering the evidence led by the parties, the Additional Collector arrived at the finding that though the appellant was not having any land in his own name but at the time of allotment his father owned 180 bighas land and if his notional share in the said land is taken into consideration then, the appellant does not fall within the category of “landless person”. The Additional Collector also arrived at the finding that the appellant was minor at the time of allotment of land. Accordingly, the allotment made in favour of the appellant was set aside vide order dated 11.4.84. An appeal preferred by the appellant aggrieved by the said order of cancellation was 3 dismissed by the Revenue Appellate Authority-II, Jodhpur vide order dated 20.9.88. On further appeal, the Board of Revenue arrived at the finding that since at the time of allotment, the appellant was minor therefore, he was not entitled for any allotment. Other questions raised on behalf of the appellant were not gone into by the Board of Revenue. 6. The writ petition preferred by the appellant as aforesaid assailing the validity of order dated 25.4.89 passed by the Board of Revenue has been allowed by the learned Single Judge relying upon a decision dated 7.7.97 rendered in Writ Petition No. 2005/89. The said writ petition was allowed by the learned Single Judge on the ground that the petitioner therein was in continuous cultivatory possession of the land since last 30 years and had nourished and developed the land for all these years, therefore, it will be unjust to dispossess him from the land . In this regard, the learned Single Judge relied upon a Bench decision of this court reported in 1996(3) WLC , 426. Hence, this appeal. 7. It is contended by the learned counsel for the appellant that apart from being minor at the time of allotment in view of the notional share of the appellant in the land owned by his father he was not a landless person and therefore was not entitled for any allotment, however, this aspect of the matter has not been considered by the learned Single Judge. The learned 4 counsel submitted that the judgment relied upon by the learned Single Judge relates to the allotment of the land in favour of the minor against whom there was no allegation of fraud or misrepresentation therefore, the ratio decidendi of the said decision is not applicable on the facts of the present case. 8. It is to be noticed that the Board of Revenue has held the appellant disentitled for the allotment of the land only on the ground that at the time of allotment, he was minor. Admittedly, the question as to whether the appellant was a “landless person” eligible for allotment under the Rules of 1957 was not even considered by the Board of Revenue. 9. In the matter of “Brij Lal vs. Board of Revenue & Ors”, AIR 1994 SC, 1128, the Hon'ble Supreme Court while considering the propriety of cancellation of allotment made in favour of a minor after long lapse of time, held as under:- “3. As mentioned above, the Board of Revenue of Rajasthan had remanded the case for consideration afresh in accordance with the Rules. It is not disputed that the appellant is a “landless person” under the Rules. It is further not disputed that the appellant was “temporary cultivation lease-holder” and as such he was eligible and entitled to permanent allotment of the land on priority basis under the Rules . On the date when the appellant applied for permanent allotment he was holding the temporary allotment. If the appellant had procured temporary allotment by giving false declaration regarding age then proceedings for cancelling temporary allotment should have been undertaken. The temporary lease of the appellant was never cancelled. The appellant being “temporary cultivation lease-holder”, permanent allotment could not be denied to him under the Rules. We are, therefore, of the view that the Authorities under the 5 Rules and the High Court fell into patent error in rejecting the claim of the appellant for permanent allotment. 4. Even otherwise, there was no justification for the Authorities under the Rules to reject the school certificate and the medical certificate. There was not even an iota of evidence on the record to show that the appellant was minor on the date of temporary allotment. After making temporary allotment in favour of the appellant, if it was sought to be cancelled on the ground that the appellant was minor at the time of allotment then, the onus was on the authorities to show that the appellant had made misrepresentation regarding his age. There was no basis at all for the authorities under the Rules to reach the finding that the appellant was minor on the date of the temporary allotment. 5. It is not disputed before us that the appellant is in cultivating possession of the land since 1970. It would be travesty of injustice to dispossess the appellant from the land which he is nourishing for over a period of two decades.” 10. Similarly, in the matter of “Amar Singh vs. State of Rajasthan”, WLR 1997 Raj., 342, the order rejecting the request for permanent allotment on the ground that the lease holder was minor on the date when the temporary cultivation lease of the land was granted in his favour, was set aside by a Bench of this court relying upon the decision of the Hon'ble Supreme Court in Brij Lal's case (supra). 11. In this view of the matter, in considered opinion of this court, the order impugned passed by the learned Board of Revenue is not sustainable in eye of law. 12. As noticed above, the question as to whether the appellant 6 was entitled for allotment as a “landless person” has not been considered by the Board of Revenue inasmuch as, the Board found that the allotment made in favour of the appellant was liable to be cancelled solely on the ground that at the time of allotment the appellant was minor. The learned Single Judge has also not examined this aspect of the matter. Therefore, in our considered opinion, the matter deserves to be remanded to the Board of Revenue for adjudication of the remaining issues raised on behalf of the appellant. 13. In the result, the special appeal succeeds, it is hereby allowed. The order under appeal is set aside. The writ petition is allowed. The order dated 25.4.89 passed by the Board of Revenue impugned in the writ petition is set aside. The matter is remanded to the Board of Revenue for consideration and decision afresh as indicated above. The parties shall appear before the Board of Revenue on 6.4.09 which shall decide the matter expeditiously, preferably within a period of six months thereafter. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-