(1) Smt. Dhapu Vs. State of Rajasthan & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.8147/2008. (Smt. Dhapu Vs. State of Rajasthan & Others) DATE OF ORDER : November 6th, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. G.R. Punia for the the petitioner. BY THE COURT : In this writ petition, the petitioner has prayed for quashing judgment dated 06.10.2008, Annex.-10 passed by the Board of Revenue and restoring the order/judgment dated 16.11.2002, Annex.-9 passed by the Revenue Appellate Authority, Bikaner. By the order Annex.-9 dated 16.11.2002 the learned Revenue Appellate Authority restored the order dated 16.03.1978 passed by the S.D.O., Bikaner. According to facts of the case, the petitioner applied for (2) Smt. Dhapu Vs. State of Rajasthan & Others allotment of land under the provisions of the Rajasthan Land Revenue (allotment of land for Agricultural Purpose) Rules, 1957. The allotting authority S.D.O., Bikaner allotted 32 bigha land in khasra 133 (main), 21 bigha in khasra 179 and 16 bigha in khasra 180, total 69 bigha barani land in village Kistooriya, Tehsil Loonkaransar. The said allotment was made on 16.03.1978. As per the petitioner, she took possession of the aforesaid land and started cultivating the same and the land was mutated in her favour vide mutation No.867 and, accordingly, her name was entered in khasra jamabandi and girdawari. An application was however filed under Rule 14 (4) by one Dhanna Ram before the District Collector, Bikaner for cancellation of allotment made in favour of the petitioner and the Collector allowed the said application cancelling the allotment made in favour of the petitioner vide order dated 04.10.2002 against which the petitioner preferred appeal before the Revenue Appellate Authority. Learned Revenue Appellate Authority allowed the petitioner's appeal on 16.11.2002 and set aside the order dated 04.10.2002 passed by the Collector, Bikaner. Respondent Tehsildar however preferred second appeal against judgment dated 16.11.2002 before the learned Board of (3) Smt. Dhapu Vs. State of Rajasthan & Others Revenue on behalf of the State and, so also, complainant Dhanna Ram also preferred a second appeal. In the second appeal, learned Board of Revenue reversed the order of the RAA maintaining the cancellation order dated 04.10.2002 passed by the District Collector, Bikaner vide impugned judgment/order dated 06.10.2008. In this writ petition, the petitioner has prayed for quashing the order passed by the Board of Revenue and restoring the order passed by the RAA dated 16.11.2002. The main contention of the petitioner is that in the application filed under Rule 14(4) of the Rules of 1970 baseless allegations were levelled against the petitioner that while concealing the material fact of possessing land she got allotment in her favour. It is also submitted that the petitioner was not landless person and, more so the husband of the petitioner Uma Ram was having 62/14 bigha land in village Kistooriya and 145/1 bigha land in village Malasar, in total the husband of the petitioner was in possession of 207 bigha land and being wife of Uma Ram she was not landless person, therefore, the allotment was made illegally on the basis of concealment of fact by the petitioner and the allotment in her favour was void ab initio. The case of the petitioner is that the said assertion was (4) Smt. Dhapu Vs. State of Rajasthan & Others totally false on the ground that the petitioner was given divorce as per custom by her husband and she was thrown out of the matrimonial house, therefore, the land which belonged to Uma Ram cannot be treated to be land in her possession. So also, it cannot be said that any misrepresentation or fraud was committed by the petitioner which warrants any cancellation under Rule 14(4) of the Rules of 1970. According to the petitioner although there was no divorce decree by any competent Court but the fact remains that the petitioner was divorcee and was living separately with her children and, at that time, she made application for allotment of land, therefore, allegation of misrepresentation and fraud is totally baseless and illegal. Further, it is submitted that in the second appeal the learned Board of Revenue has failed to consider this aspect of the matter in right perspective and the learned Board of Revenue has committed error while setting aside the judgment passed by the learned Revenue Appellate Authority in which the learned RAA appreciated the entire evidence and found that the order passed by the Collector cancelling allotment was not in accordance with law. Learned counsel for the petitioner is mainly challenging the order of the Revenue Board on the ground that the finding (5) Smt. Dhapu Vs. State of Rajasthan & Others recorded is totally perverse and without any ground or reasons and further the allotment made in the year 1978 has been set aside by the Collector in the year 2002, i.e. after lapse of 24 years which itself is sufficient ground for setting aside the order passed by the District Collector as well as learned Board of Revenue in the second appeal. Learned counsel for the petitioner invited my attention towards certain judgments reported in 1996 (2) WLC (Raj.) 525, Dalpat Singh Vs. State, in which the learned Single Judge of this Court has held that there is total failure on the part of the respondents to establish that the petitioner misrepresented before the State that at the time of allotment he was landless. Further, it is observed in the said judgment that even if it is held that the father of the petitioner held in his favour 56 bigha of land, it cannot lead to the conclusion that the state of the petitioner that he was landless at the time of allotment is a misrepresentation. Similarly, in the case of Sohan Lal Vs. State, reported in 2002 (UC) WLC 220, the learned Single Judge of this Court remitted the case to the Revenue Board to determine the matter properly while giving reasons afresh. In the case of Guman Singh Vs. State, reported in 1998 (1) RLR 328, as per learned counsel for the petitioner, in para 16 of (6) Smt. Dhapu Vs. State of Rajasthan & Others the said judgment the learned Single Judge of this Court has held that the Addl. Collector committed grave error in not taking into consideration the notional share of the respondent No.6 held by his father. Similarly, in the case of Heera Lal Vs. State, reported in 2001 (1) WLC (Raj.) 641, the learned Single Judge of this Court has held that if defendants were in possession of land since more than 30 – 35 years as was held by all the Courts below, then, it would be travesty of justice to set aside allotment after that much of time. While inviting attention towards the judgment of the apex Court reported in AIR 1994 SC 1128, Brij Lal Vs. Board of Revenue, it is contended by learned counsel for the petitioner that the Hon'ble Supreme Court held in that judgment that if a person is in cultivatory possession of the land since 1990 then it would be travesty of justice to dispossess the person from the land which he was holding for last two decades. I have considered the submissions advanced by learned counsel for the petitioner. Admittedly, the petitioner is wife of late Uma Ram who was having 207 bigha land and no documentary evidence was produced by the petitioner showing that she was divorced by late (7) Smt. Dhapu Vs. State of Rajasthan & Others Uma Ram. The only assertion has been made that as per custom she was divorced by her husband, therefore, the land which the petitioner's husband Uma Ram was holding cannot be treated to be held by the petitioner in her favour because she was divorced by late Uma Ram. Before the District Collector or learned Board of Revenue, it is nowhere disputed by the petitioner that her husband was having 207 bigha land in villages Kistooriya and Malasar. The only ground which the petitioner has taken is that she was divorced by her husband, therefore, the land allotted to her being landless person was in consonance with the provisions of the rules but the learned District Collector as well as Board of Revenue committed error in not accepting the defence of the petitioner that she was divorced landless lady at the time of allotment of land. In my opinion, such argument is not tenable in the absence of evidence to the effect because after death of Uma Ram the petitioner had her share in the land held by Uma Ram and petitioner did not produce any documentary evidence to show that at the time of allotment of land she was landless person; more so, when there was no divorce decree in her favour with regard to her claim. In that view of the matter, both District Collector as well as learned Board of Revenue rightly arrived at (8) Smt. Dhapu Vs. State of Rajasthan & Others the finding that the petitioner was not landless person at the time of allotment in the year 1978, therefore, both the judgments require no interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. The learned Board of Revenue has rightly set aside the order of the Revenue Appellate Authority which was based upon presumptions. In this view of the matter, there is no force in this writ petition. The writ petition is accordingly dismissed. No order as to costs. (Gopal Krishan Vyas) J. Ojha, a.