(1) Chetan & Others Vs. Board of Revenue & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.3751/2002. (Chetan & Others Vs. Board of Revenue & Others) DATE OF ORDER : May 22, 2007 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. M.L. Khatri for the petitioners. Mr. S.N. Tiwari, Dy. G.A. BY THE COURT : By way of filing the present writ petition, the petitioners seek to challenge judgment Annex.-3 dated 25.02.2000 passed by the Board of Revenue, Ajmer whereby the learned Board of Revenue set aside order passed by the Revenue Appellate Authority, Barmer dated 27.06.1997 and restored the order passed by the Addl. District Collector, Barmer by which the land allotted to the petitioners' father Sanga in village Gumane-ka- Tala, khasra 48, measuring 70 bigha was cancelled on the (2) Chetan & Others Vs. Board of Revenue & Others ground that the original allottee Sanga s/o Achala was not landless person and while concealing the fact that he is owning agricultural land got allotment made in his favour. According to the facts narrated in the writ petition, it is averred by the petitioners that the above land was allotted in the name of Sanga s/o Achala in the year 1973. Thereafter, an application under Rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purpose) Rules, 1970 (in short, referred to hereinafter as “the Rules of 1970”) was filed by the State Government through the Tehsildar, Chohtan. In the said application, it was submitted that at the time of allotment the parental land of Sanga measuring 104 bigha 1 biswa was in existence and, therefore, he was not landless person; but, Sanga while filing the application for allotment concealed the fact of having the aforesaid land and, on the basis of claiming himself landless person, he got the allotment of land in his favour. Therefore, vide the said application filed under Rule 14(4) of the Rules of 1970 the Tehsildar, Chohtan prayed that the allotment made in favour of Sanga may be cancelled. According to the petitioners, the original allottee did not make any deliberate false statement and Sanga filed reply to the application that after allotment of the land he is in cultivatory possession and has also (3) Chetan & Others Vs. Board of Revenue & Others acquired khatedari rights as per the allotment rules in the year 1983, i.e. much before the filing of the said application for cancellation of allotment; and, so also, it is prayed by the allottee before the learned Addl. District Collector, Barmer in the reply to the application filed under Rule 14(4) of the Rules of 1970 that after such belated stage and knowing it well that khatedari rights have been conferred upon the allottee the application has been filed which is illegal and the application was to be dismissed. The learned Addl. District Collector, Barmer decided the application bearing No.96/96 after hearing the parties and cancelled the allotment mad in favour of the petitioners. Aggrieved by the said order dated 14.01.1997 passed by the learned Addl. District Collector, Barmer, the petitioners being legal heirs of Sanga filed appeal before the Settlement Officer & Revenue Appellate Authority, Barmer (in short, “the RAA”) and the learned RAA, after going through the relevant rules and notification issued by the Government regarding landless persons and, upon consideration of the fact that the petitioners were given khatedari rights, vide judgment dated 27.07.1997 quashed the order of cancellation of allotment passed by the learned Addl. District Collector, Barmer. Against the said judgment, the State (4) Chetan & Others Vs. Board of Revenue & Others preferred second appeal before the Board of Revenue being Appeal No.Second Appeal/LR/127/97/Barmer. The learned Board of Revenue, after hearing the parties, without disagreeing with the finding arrived at by the RAA, however, made a distinction that even assuming that the predecessor-in-title of the petitioners was a landless person as per the rules, then too, since the original allottee had not narrated that he is having khatedari over some agricultural land he committed fraud and misrepresentation, therefore, the learned Board of Revenue set aside the order passed by the RAA vide judgment dated 25.02.2000. The said order is under challenge in the present writ petition. Learned counsel for the petitioners argued that the original allotment was made in the year 1973 and khatedari rights were accorded to the petitioners in the year 1983, that is, almost 15 years before the application was moved for cancellation of allotment by the Tehsildar, Chohtan under Rule 14(4) of the Rules of 1970 and, therefore, the application filed at such a belated stage is abuse of process of Court. It is further submitted that the learned Board of Revenue also committed error while reversing the order passed by the learned RAA because the Board of Revenue was convinced that as per rules (5) Chetan & Others Vs. Board of Revenue & Others the finding of the RAA that the allottee was landless person at the time of allotment cannot be found fault with and once the above finding is upheld the question of misrepresentation and concealment and fraud etc. is washed away and the predecessor-in-title of the petitioners was thus entitled to allotment of land in question. According to the learned counsel for the petitioners, the assertion of the Board of Revenue with regard to fraud and misrepresentation is totally unfounded. It is also argued by learned counsel for the petitioners that khatedari rights were given by the order of the Tehsildar Chohtan in the year 1983 and, for the first time, application was moved on the ground of concealment of fact in the year 1996 under Rule 14(4) of the Rules of 1970 which is totally illegal and abuse of the process of court. It is further submitted that the petitioners are in possession of the land in question since 1973 and they are cultivating the land, therefore, equities lie in favour of the petitioners and cancellation of the allotment is arbitrary and erroneous. It is contended by learned counsel for the petitioners that even the Hon'ble Supreme Court has taken a liberal view and though guilt is proved, after efflux of time, refused to cancel the allotment to secure the ends of (6) Chetan & Others Vs. Board of Revenue & Others justice. Therefore, it prayed by learned counsel for the petitioner that the impugned judgment passed by the Board of Revenue deserves to be set aside and order of the RAA may be restored. Learned counsel for the petitioners invited my attention towards the judgments reported in 1999 (4) SCC 575, Tej Singh Vs. State of Rajasthan; 1999 RRD 128; 1997 DNJ 632, Gopi Ram Vs. State of Rajasthan; and, judgment of the Division Bench reported in 2001 (1) RRD and prayed that cancellation of allotment of the petitioners' land is totally unwarranted, therefore, the impugned judgment may be quashed. In reply, the learned Dy. Government Advocate vehemently opposed the prayer of the petitioners and submitted that at the time of filing application for allotment by late Sanga he was having land measuring 104 bigha 1 biswa and he was not landless person and this fact was concealed by him for obtaining allotment in his favour. It is submitted that the learned RAA committed an error while giving the finding that late Sanga was having minimum land; and, in fact, it was calculation mistake which was corrected by the Board of Revenue. It is further submitted by the learned Government Advocate that the question of limitation does not come in way when the allotment was obtained by concealment of fact and playing fraud, (7) Chetan & Others Vs. Board of Revenue & Others therefore, it can be said that in this case while playing fraud upon the State authority the allotment of land was secured. In these circumstances, there is no error in the order passed by the Board of Revenue. I have perused the entire record of the case. In the writ petition, it is nowhere mentioned by the petitioners that no land was existing at the time of allotment of the land in question in favour of late Sanga. Moreover, the contention of the petitioners is that the RAA gave finding rightly and quashed the order passed by the Addl. District Collector, Barmer. In that judgment also, it is accepted by the RAA that there was existence of land in favour of Sanga. It was, however, mentioned that it was minimum land, therefore, allotment cannot be cancelled. Thus obviously concealment was made at the time of allotment. In these circumstances, the Tehsildar, Chohtan filed application under Rule 14(4) of the Rules of 1970; and, after giving documentary evidence, the Tehsildar prayed for cancellation of allotment made in favour of late Sanga. In my opinion, the learned Addl. District Collector, Barmer rightly considered the entire facts and, so also, the Board of Revenue rightly set aside the order passed by the learned RAA because the learned RAA while holding that Sanga was (8) Chetan & Others Vs. Board of Revenue & Others possessing minimum land at the time of allotment gave the finding that he was landless person. However, even this fact is also not correct in view of the order passed by the Board of Revenue whereby proper calculation has been made and, therefore, the Board of Revenue has not committed any error while quashing the order passed by the RAA because, in its judgment, the learned RAA accepted that there was existence of land in favour of Sanga but it was minimum land. However, in the present case, the allotment has been obtained while submitting that the applicant is landless person which was total concealment of fact by the original allottee. In the facts and circumstances of the case, the order of cancellation of allotment was rightly passed. Consequently, the writ petition is dismissed. (Gopal Krishan Vyas) J.