1 KISHAN LAL VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.717/98) Dated : 26th August,2008. HON'BLE THE CHIEF JUSTICE MR.NARAYAN ROY HON'BLE MR.JUSTICE SANGEET LODHA Mr.N.S.Acharya, for the appellant. Mr. Shyam Ladrecha, Government Counsel. Mr.M.C.Bhoot, for the respondent no. 4. BY THE COURT :-(PER HON'BLE SANGEET LODHA,J.) 1. This appeal is directed against order dated 22.4.98, passed by the learned Single Judge, whereby the writ petition preferred by the writ petitioner-respondent no. 4 herein assailing the validity of the orders passed by the revenue authorities refusing to cancel the allotment of land made in favour of the appellant herein, has been allowed, the order dated 7.5.92 (Annexure 2) passed by the Colonisation Commissioner, Bikaner, rejecting the application under Rule 22(3) of the Rajasthan Colonisation (Allotment and Sale of Government land in Indira Gandhi Canal Colony Area), Rules, 1975 ( in short “the Rules of 1975” hereinafter) preferred by the writ petitioner and order dated 21.5.93, passed by the learned Board of Revenue , rejecting the revision petition preferred by the writ petitioner against the aforesaid order passed by the Colonisation Commissioner, have been quashed and the matter has been remanded to the 2 Commissioner Colonisation, Bikaner for decision afresh in accordance with law. 2. In nutshell, the relevant facts are that a temporary allotment of agriculture land ad measuring 25 bighas, comprising Chak No. 20 KYD, Square No.98/29 in Tehsil Khajuwala, district Bikaner in Rajasthan Canal Project Area, later substituted by the name “Indira Gandhi Canal Project Area” (in short “IGNP” hereinafter) was made by the competent authority in favour of the appellant. The temporary cultivation lease granted in favour of the appellant as aforesaid in the year 1971-72 was renewed upto 1973-74. Thereafter, the appellant applied for permanent allotment of the said land, accordingly, vide order dated 20.4.74 passed by the Assistant Commissioner Colonisation, Rajasthan Canal, Chattargarh No.2, Bikaner, permanent allotment was made in his favour. The validity of the aforesaid allotment made in favour of the appellant was assailed by the respondent no.4 herein by way of an application under Rule 22 (2) of the Rules of 1975 before the Colonisation Commissioner, Bikaner, on the ground that the appellant was working as UDC in the office of the Chief Engineer, Bikaner i.e. in the IGNP Department itself therefore, he could not have been placed in the category of “landless persons and bona fide agriculturists” and thus, he was not entitled for allotment of land under the relevant Rules. The learned Commissioner opined that 3 an application earlier preferred against the aforesaid allotment having been decided on 12.8.85 and the proceedings having been dropped, it is not appropriate to initiate fresh proceedings, accordingly, the proceedings were dropped vide order dated 7.5.92. A revision petition preferred by the respondent no.4 against the aforesaid order dated 7.5.92 before the Board of Revenue, also failed. 3. The learned Single Judge has arrived at the finding that the learned Board of Revenue has fallen in error in holding that the fresh proceedings under Rule 22(3) before the Commissioner Colonisation was barred by principle of res judicata. The learned Single Judge observed that it is nowhere the case of parties respondents in the writ petition that the earlier complaint was also made by the writ petitioner-the appellant herein and furthermore, there is nothing on record that the inquiry was made on the complaint and thereafter, it was rejected. The learned Single Judge found that dropping of the proceedings without inquiry does not amount to dismissal of the complaint on merits, therefore, both the authorities below have obviously, fallen in error when they refused to entertain the matter on the ground that earlier the proceedings were dropped under Rule 22 (3) of the Rules of 1975. The learned Single Judge observed that under Rule 22(3), the Colonisation Commissioner is empowered to cancel the allotment made by an allotting authority either suo 4 moto or on the application of any person, in case, the allotment is made against the Rules, therefore, it was the duty of the Commissioner to have inquired into the matter and he should not have rejected the application preferred by the writ petitioner in slip shod manner. The learned Single Judge further observed that when the proceedings under Rule 21 were also pending for cancellation of allotment, it was not proper for the Commissioner to reject the application preferred by the writ petitioner summarily. However, it was not considered appropriate by the learned Single Judge to record the finding on the issue, as to whether the allotment made to the writ petitioner was according to the Rules or not in the writ of certiorari and accordingly, the matter has been remanded to the Commissioner Colonisation to decide the controversy afresh. 4. It is contended on behalf of the appellant that the learned Single Judge has seriously erred in holding that the principle of res judicata was not applicable in the instant case inasmuch as , the writ petitioner -the respondent no. 4 herein was not party to the earlier complaint and the proceedings were dropped without holding an inquiry. The learned counsel submitted that as a matter of fact, that the earlier complaint was made on the same facts and the proceedings were dropped after making an inquiry by the allotting authority, therefore, the finding recorded by the learned Single Judge stands vitiated on this count alone. The 5 learned counsel submitted that admittedly, prior to permanent allotment, the appellant was holding temporary allotment of the land in question in his favour and as per the Rules prevailing at the relevant time, the allotment was rightly made in his favour. The learned counsel submitted that the amendment in Rule 2 (xiii) of the Rules of 1975 , whereby the government servants have been excluded from the category of the landless persons , has been introduced by notification dated 27.12.82 w.e.f. 11.1.83 therefore, prior to the aforesaid date, there was no restriction on allotment of the land to the government servants, thus, the allotment made in favour of the appellant prior to coming into force of the aforesaid amendment cannot be faulted with. Drawing the attention of this Court to the order dated 21.12.06 passed by the Sub Divisional Officer, Khajuwala, district Bikaner, whereby an application preferred by the writ petitioner-respondent no. 4 herein seeking cancellation of the allotment in terms of Rule 21 of the Rules of 1975, has been rejected, the learned counsel submitted that in view of rejection of the application of the respondent no. 4 as aforesaid, no simultaneous proceedings under Rule 22 of the Rules of 1975, for cancellation of the self same allotment can be continued. That apart, it is submitted by the learned counsel that in yet another proceedings under Rule 21 initiated at the instance of one Shri Luna Ram, the allotment made in favour of the 6 appellant was cancelled by the Sub Divisional Officer , Bikaner vide order dated 28.1.2008, however, the same was set aside by the appellate authority vide order dated 26.4.08, validity whereof has already been assailed by Shri Luna Ram by way of revision petition before the Board of Revenue therefore, for this reason also, the question of continuing the proceedings for cancellation under Rule 22 (3) of the Rules of 1975 does not arise. 5. Per contra, the learned counsel appearing on behalf of the respondent no.4 submitted that on the first complaint lodged, the matter was never decided on merits after a proper inquiry therefore, the learned Single Judge has not erred in holding that the fresh proceedings under Rule 22(3) initiated at the instance of the respondent no.4 is not barred by the principle of res judicata. The learned counsel submitted that admittedly, when the permanent allotment of the land was made in favour of the appellant , he was working as Upper Division Clerk in the Department of IGNP itself , therefore, being a government servant, in terms of the provisions of Rule 2(xiii) of the Rules of 1975 , he cannot be said to be a person bona fide agriculturist by profession or a bona fide agriculture labourer, having agriculture as the primary source of his income. The learned counsel submitted that the allotment made in favour of the appellant is ex facie contrary to the Rules of 1975 and therefore, 7 deserves to be cancelled in terms of the provisions of Rule 22(3) of the Rules of 1975. The learned counsel submitted that the learned Single Judge instead of examining the validity of the allotment made in favour of the appellant on merits, has only remanded the matter to the Commissioner Colonisation for decision afresh in accordance with law therefore, there is no reason as to why the order impugned passed by the learned Single Judge should be interfered with by this Court in exercise of its appellate jurisdiction. The learned counsel further submitted that the application preferred by the appellant before the Sub Divisional Officer, Bikaner by the respondent no. 4 under Rule 21 of the Rules of 1975 has been rejected only on the ground that the complaint is based on the facts in regard to which, a decision has already been taken by the Commissioner Colonisation,Bikaner and the learned Board of Revenue and further that the present D.B.Special Appeal is pending decision before this Court therefore, nothing turns on the question that the application preferred under Rule 21 of the Rules of 1975 has been rejected by the learned Sub Divisional Officer. The learned counsel submitted that in view of the directions of this Court , the matter has to be decided by the Commissioner in terms of Rule 22(3) of the Rules of 1973 and all other proceedings arising from the order passed in proceedings under Rule 21 of the Rules may be kept in abeyance till the matter is decided afresh by the 8 learned Commissioner under Rule 22(3) of the Rules of 1975. 6. We have considered the rival submissions and perused the record. 7. It is not disputed before this Court on behalf of the appellant that he has been allotted the land in question in the category of “landless person”. The “landless person” as defined under Clause 2(xiii) of the Rules of 1975 means a person, who is resident of Rajasthan and has been by profession a bona fide agriculturist or a bona fide agricultural labourer, having agriculture as the primary source of his income and who either does not hold any land anywhere in India or holds land less than 25 bighas but, it does not include temporary cultivation lease holder. Suffice it to say that a person claiming the allotment of land under the Rules of 1975 as a landless person should be inter alia a bona fide agriculturist by profession or a bona fide agriculturer labourer,having agriculture as the primary source of his income. It is also not in dispute that the appellant at the relevant time, when a permanent allotment was made in his favour was working as UDC in the Department of IGNP itself,therefore, the question as to whether the appellant can at all be considered to be a bona fide agriculturist by profession having agriculture as his primary source of income, has to be decided on the basis of the relevant facts. If, after due consideration, the competent 9 authority arrives at the finding that the appellant being a government servant at the time of permanent allotment made in his favour, cannot be treated to be a bona fide agriculturist having agriculture as the primary source of his income then, it does not make any difference that the provisions excluding the government servant specifically from the definition of “landless person”, has been introduced by way of amendment vide notification dated 27.12.82 i.e. much after the permanent allotment made in favour of the appellant. Thus, the contention raised by the learned counsel for the appellant that prior to 11.1.83, there was no restriction on allotment of the land to the government servant and therefore, the allotment made in favour of the appellant cannot be faulted with, is devoid of any merit. 8. It is pertinent to note that the respondent nos. 1 to 3 in their reply before the learned Single Judge has taken the specific stand that the respondent no. 1 was an employee working as UDC in the Department of Additional Chief Engineer(Vigilance), IGNP, at the relevant time when the permanent allotment was made in his favour. It has been further stated in the reply in unequivocal terms that the allotment was obtained by the appellant as landless person, on the basis of the wrong facts and by concealing the fact that he was an employee in the IGNP Department itself. 9. It is to be noticed that as per Rule 21 of the Rules of 1975, 10 if at any time, it is discovered that any allotment of the government land under the Rules was made upon an incorrect statement of facts made in the application or in affidavit or any other document produced by an allottee, the allotting authority, may order cancellation of such allotment and may also order entry upon and taking possession of the land . Therefore,an allotment obtained by misrepresentation, fraud or upon incorrect statements made, is liable to be cancelled by the allotting authority itself, after giving an opportunity of hearing to the persons likely to be affected thereby. 10. That apart, as per Rule 22(3) of the Rules of 1975 , the Colonisation Commissioner is empowered to cancel any allotment made by the allotting authority under the Rules either suo motu or on application of any person, in a case where the allotment has been made against the Rules. Thus, the provisions of Rule 22(3) casts an obligation upon the Colonisation Commissioner to set at naught the allotments made in favour of any person against the Rules. It goes without saying that the Colonisation Commissioner is empowered to cancel an allotment if it is found to be against the Rules even if, the allotment has not been obtained by the person concerned by committing fraud, misrepresentation or concealment of the relevant facts. Thus, the scope of the power to cancel the allotment conferred upon the Commissioner Colonisation is much wider than the power 11 vested with the allotting authority , who is authorised to cancel the allotment only if, the same is found to be obtained upon an incorrect statement of the fact made in application or in affidavit or any other document produced by an allottee. Since, in the instant case, apart from the question that there was concealment of the material facts in the application preferred for the allotment of the land, the question as to whether the appellant , who was admittedly a government servant at the relevant time when a permanent allotment was made in his favour can at all be considered to be a bona fide agriculturist having agriculture as his primary source of income so as to include him within the definition of “landless person” is also required to be determined, which can only be determined by the learned Commissioner under the provisions of Rule 22(3) of the Rules of 1975. There is nothing on record to show that the aforesaid questions were ever determined by the learned Commissioner in the earlier proceedings. Thus,on the facts and in the circumstances of the case, in our opinion, the learned Single Judge has committed no error in holding that the proceedings under Rule 22(3) initiated by the Commissioner at the instance of the respondent no. 4 was barred by principle of res judicata. That apart, in our opinion, the aforesaid facts which goes to the root of the matter regarding the entitlement of the appellant for allotment of the land under the provisions of Rules 12 of 1975 having been brought to the notice of the learned Commissioner, it is his bounden duty to examine the validity of the allotment made inasmuch as, even without there being any application, the Commissioner is empowered to examine the validity of the allotment suo moto. For the aforesaid reason, in our view, the learned Single Judge has committed no error in remanding the matter to the learned Commissioner for decision afresh. 11. Coming to the order passed in proceedings under Rule 21 of the Rules of 1975 initiated on the basis of the complaint lodged on behalf of the respondent no. 4 and one Shri Luna Ram, it is to be noticed that vide order dated 21.12.06 , the application preferred by the respondent no. 4 has been rejected only on the ground that earlier the proceedings were initiated under Rule 22(3) against the appellant and the same were dropped by the learned Commissioner and the revision petition preferred against the same was rejected by the Board of Revenue. Further, the learned Sub Divisional Officer has declined to proceed with the matter on account of the pendency of present special appeal before this Court. Likewise, vide order dated 26.4.08 passed by the Revenue Appellate Authority, Bikaner , the appeal preferred by the appellant herein against the order dated 28.1.08 passed by the Sub Divisional Officer, Khajuwala on an application being preferred by Shri Luna Ram 13 cancelling the allotment made in favour of the appellant has been allowed on the ground that with regard to the land in question, the present special appeal is pending before this Court wherein, a stay order passed in favour of the appellant is operative, therefore, nothing turns on the question that on the application being preferred by the respondent no. 4 and Shri Luna Ram under Rule 21 of the Rules of 1975 , the orders as aforesaid have been passed by the Revenue Authorities . In our view, till the matter is decided by the learned Commissioner in terms of the directions issued by this Court, any proceedings arising from the proceedings under Rule 21 of the Rules of 1975 need not be continued and the same deserves to be kept in abeyance inasmuch as, all the questions involved can be decided by the learned Commissioner effectively after giving an opportunity of hearing to the parties. Further more, against the order passed by the Commissioner under Rule 22(3) in terms of the directions issued by this Court , the remedy of revision before the learned Board of Revenue under Rule 23(2) of the Rules shall be available to the person aggrieved . 12. In view of the discussion above, we are not inclined to interfere with the order impugned passed by the learned Single Judge. 13. In the result, the special appeal fails, it is hereby dismissed. However, on the facts and in the circumstances 14 noticed above, keeping in view the fact that the parties are litigating on the issues involved for last long, it is considered appropriate that the directions are issued to the learned Commissioner to decide the matter expeditiously. Accordingly, it is directed that both the parties shall appear before the learned Commissioner on 15th September, 08 and the learned Commissioner shall decide the matter in accordance with law, after hearing both the parties at the earliest, preferably, within a period of three months thereafter. Till the matter is decided by the learned Commissioner, all other proceedings arising from the order passed by the Sub Divisional Officer, Khajuwala under Rule 21 of the Rules of 1975 pending before the appellate or revisional authorities, shall be kept in abeyance. No order as to costs. (SANGEET LODHA),J. (NARAYAN ROY),C.J. Aditya/-