1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR SPL. APPL. WRIT No.550 of 1997 JAYANA V/S STATE & ORS Mr. VIJAY BISHNOI, for the appellant. Mr. O.P.BOOB, GOVT. COUNSEL, for the respondents Date of Judgment : 3.11.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER -------- BY THE COURT [PER HON'BLE CHAUDHARI,J.]: This special appeal has been filed, against the order dt. 5.2.1997 passed by learned Single Judge, by which the petition of respondent No.4 was allowed. Brief facts of the case are, that land in question measuring 55.10 Bighas situated in village Ranasar, Pawaran was allotted in favour of the appellant in 1965. This land was allotted to her as daughter of Lekhram, though, at that time, she was married to Patwari Foota Ram. This allotment was cancelled under section 101 (3) of the Rajasthan Land Revenue Act by allotting authority in 1966 on the ground, that the appellant was wife of Foota Ram, who was working as Patwari. However, the appellant managed to retain the possession even after cancellation of allotment and in 1975, the appellant applied for regularization before SDO and the same was regularized, though in 1974, allotted portion of cancelled land was allotted to 2 respondent No.4 and out of allotted land, she was given possession of substantial part of land and possession of remaining land 29 Bighas remained with the appellant. Respondent No.4 applied before the Collector for cancellation of allotment, made in favour of the appellant, and the Collector vide order dt. 25.8.1981, cancelled the allotment as he was of the view that the SDO did not carefully examine the case and ordered regularization, though, a fraud was played by the appellant. The appellant challenged this order before the Revenue Appellate Authority by filing an appeal and the Revenue Appellate Authority dismissed the appeal vide order dt. 1.6.1984. The appellant preferred a second appeal before the Board of Revenue, which was accepted vide order dt. 13.8.1991, against which, a review petition was filed, which was dismissed by the Board of Revenue vide order dt. 25.10.1991. That order was challenged by respondent No.4 by filing writ petition before this Court and the learned Single Judge vide impugned order dt. 5.2.1997, allowed the writ petition, set aside the orders of the Revenue Board and directed the appellant to handover the possession within three months from the date of impugned order. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant submitted, that name of her father was given only for the purpose of establishing identity and merely by mentioning name of her father, no irregularity was committed by appellant in getting the allotment 3 of land in her favour. Learned counsel for the appellant further submitted, that before regularization of land, appellant's husband retired from service, therefore, the regularization was in accordance with law. He further submitted, that as the appellant has developed the land and is in possession since last 33 years, she is entitled to retain possession, hence, appeal may be accepted and the order of the learned Single Judge may be set aside. On the other hand, learned counsel for the respondent submitted, that as the allotment as well as regularization of land were against the Rules, the learned Single Judge has not committed any error in allowing the writ petition filed by respondent No.4. He further submitted, that merely because the appellant is in possession of land for last 33 years, she does not have any right to retain unauthorized possession and deprive the subsequent allottee from possession of the land, hence, appeal may be dismissed. Rule 2(iii-B) of Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 reads as under: “'Landless Agriculturist' means a resident of Rajasthan who is either a bonafide agriculturist or an agricultural labourer, and is cultivating or is likely to cultivate land personally, and whose main source of livelihood is agriculture or any occupation which is subsidiary or subservient to agriculture, and such person does not hold any tenure land anywhere in Rajasthan, or the area of such land which he holds including any land which has been previously allotted to him, is less than the area prescribed in rule 12: 4 Provided that the following categories of persons shall not be considered to be landless agriculturists, namely-- (a) an employee of the Government, or of a commercial or industrial establishment or concern, his wife and children dependent on him but a casual or work charged labourer shall not be treated as an employee for this purpose, (b) a person who has sold or otherwise transferred, the whole or part of the land held by, or allotted to him and has, thereby, come to hold less than the minimum area specified above.” This provision clearly shows that an employee of the Government or his wife and children depending on him cannot be considered to be landless agriculturist. It is an admitted fact, that the appellant was already married to Foota Ram at the time of allotment of land and Foota Ram was working as Patwari as employee of the Government. The appellant has nowhere stated that she was not living with Foota Ram at the time of allotment. It appears that purposely, name of father of the appellant was mentioned in application for allotment of land, in favour of the appellant and therefore, the fact, that her husband was working as Patwari, was suppressed. When this fact came to the notice of allotting authority, her allotment was cancelled in the year 1966. Learned counsel for the appellant has placed reliance on judgments of Hon'ble Supreme Court in Tej Singh vs. State of Rajasthan and Ors., reported in 1995 RRD, 68 (SC) and in Brij Lal vs. Board of Revenue & Ors., reported in AIR 1994 SC 1128. In Tej Singh vs. State of Rajasthan & Ors., it was held as 5 under: “In this case, the facts found are that on the date of making the application and assignment namely, 18-11-1968, the appellant was a Gram Sewak, a public servant. Though he was a resident, his main source of income was, from service as Gram Sewak and hence he cannot also be said to be a bona fide agriculturist. That is the finding of fact recorded by all the authorities. Under these circumstances, it would amount to suppression of the material fact and of obtaining an order of assignment of 5 bighas of land. Therefore, the cancellation of the order cannot be said to be illegal. The power exercised by the Collector cannot be said to be without jurisdiction.” Thus, it becomes clear, that allotment of land, in favour of the appellant, was against the Rules and the allotment was procured by suppression of material facts and thus, there was no illegality in cancellation of the allotment. Learned counsel for the appellant further submitted, that before the regularization, appellant's husband had retired. Thus, at the time of regularization, appellant's husband was not working as Patwari, hence, regularization of allotment was in accordance with law. It reveals from the record, that the appellant was about 23 years of age at the time of allotment in 1965, and the land was regularized in the year 1975 and at that time, appellant's husband must not have attained the age of superannuation. Learned counsel for the appellant has not given specific date of retirement of the appellant's husband and it 6 appears that appellant's husband was either dismissed from service or terminated before 1975, and on this ground, the appellant was not entitled to get the allotment regularized, which had already been cancelled in 1966. On the contrary, it appears, that even after cancellation of allotment in 1966, because of the influence of appellant's husband, the appellant continued in illegal possession for a period of nine years. Even before regularization, the land had already been allotted in favour of respondent No.4 in 1974, hence, allotment could not have been regularized in favour of appellant in 1975. Learned counsel for the appellant further submitted, that even though the allotment was not in accordance with law but as the appellant is in possession of land since last 33 years, her possession may be protected. In Tej Singh vs. State of Rajasthan & Ors. (supra), the allottee was temporary Gram Sewak in 1968 when he applied for allotment of land and in 1973, he resigned from that post and took up his avocation as an agriculturist and for more than 20 years, he was personally cultivating the land. In view of special facts of the case, his possession was protected. In Brij Lal vs. Board of Revenue & Ors. (supra), the appellant's possession was protected as he was in possession for more than 23 years because temporary allotment of the appellant was never cancelled, and it was further observed, that there was no basis to reach the finding, that the appellant was minor on the date of temporary allotment on which sole ground, 7 allotment was cancelled. In the present case, the appellant suppressed material fact, that her husband was Patwari at the time of allotment of land and even after cancellation of allotment, she did not surrender the land, though appellant's husband being Patwari and protector of the interest of the State, was under obligation to surrender the land. Not only this, the appellant managed to get the allotment regularized in 1975 in spite of the fact, that this land had already been allotted to respondent No.4 in 1974. Thus, the judgments relied on by the learned counsel for the appellant in Tej Singh Vs. State (supra), Brij Lal vs. Board of Revenue & Ors. (supra) are of no help to the appellant and in our view, the appellant does not deserve sympathy and is not entitled for regularization of her possession over the land in question. Thus, we do not find any error in the order impugned passed by the learned Single Judge. The appeal of the appellant against the respondents is, therefore, dismissed. ( KISHAN SWAROOP CHOUDHARI),J. (N P GUPTA), J. /m.asif/