SBCWP NO.951/01. { 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.954/2001. Deen Mohammed Vs. Ram Pyari & Ors. Date of order:- May 19, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.L. Goyal for the petitioner. Shri K.K. Mehrishi for the respondents. **** BY THE COURT:- Petitioner has challenged the order of Board of Revenue dated 29/8/2000 whereby his appeal was dismissed reversing the order of the revenue appellate authority dated 11/1/1994 and upholding the order of the Collector dated 7/1/1991. Petitioner has therefore also challenged the order of Collector dated 7/1/1991 and the order dated 26/12/2000 by which his review petition was dismissed by the Board of Revenue. 2) Shri M.L. Goyal, learned counsel for the petitioner has argued that the Collector was not SBCWP NO.951/01. { 2 } legally competent to cancel the allotment because Rule 17 of the Rajasthan Colonization (Chambal Project government Lands Allotment and Sale) Rules, 1957 provides that any person aggrieved by order of allotment made by the Allotting Authority may, within 30 days from the date of such order, to prefer appeal to the Revenue Appellate Authority. Learned counsel submitted that allotment was made in favour of the petitioner on recommendation of the advisory committee vide order dated 17/11/1997 and khatedari rights were conferred upon the petitioner on 21/10/1989. After conferment of the khatedari rights, Collector had no legal competence to cancel the allotment on 7/1/1991 even by recourse to Rule 22 of the said rules. Learned counsel submitted that merely because petitioner possess 15 bighas of land elsewhere would not mean that he cannot be treated as landless person within the definition of Rule 2 (viii) of the rules. The revenue appellant authority was perfectly justified in reversing the order of the Collector. Board of Revenue has erred in law in applying the provisions of Section 63 (ix) of the Rajasthan Tenancy Act, 1955 which was for the first time inserted by way of amendment on 26/3/1987. Such amended provision could not be SBCWP NO.951/01. { 3 } retrospectively applied to the case of the petitioner. Learned counsel for the petitioner further submitted that allotment made in favour of the petitioner on 17/11/1977 merely remained on paper and it could not be given effect to. On 28/6/1989 when for the first time petitioner was put in possession in consequence to the order so passed by the SDO on 27/7/1991. It is therefore prayed that writ petition be allowed and the impugned order be quashed and set-aside and the allotment made in favour of the petitioner vide order dated 17/11/1977 be restored with restoration of the khatedari rights to the petitioner. Reliance was placed on the Division Bench judgment of this Court in Sohan Vs. Board of Revenue : 2002(1) WLC (Raj.) 41 and para 82 of 2006(9) SCC 1. 3) Shri K.K. Mehrishi, learned counsel appearing for the respondents opposed the writ petition and argued that allotment was secured by the petitioner concealing the fact that he was already in possession of 15 bighas of land. As per definition of “landless persons” given in Rule 288, therefore, petitioner could not be treated as a landless person. Besides, manner in which allotment was made was also absolutely illegal. SBCWP NO.951/01. { 4 } Allotment Advisory Committee even though made allotment in favour of the petitioner but without verifying whether he was landless person on the date of such allotment was made. Allotment was conditional that the action shall be taken to make allotment of the land to the petitioner after it has been verified by the Patwari concerned that petitioner was landless person. Such a course was wholly uncalled for and unreasonable. Collector was perfectly justified in making interference. It is contended that even otherwise, original allotment to the petitioner was proposed to be made out of the land bearing Khasra No.832 which later was struck off and Khasra No.81 was indicated in its place. There was hardly any ground to justify the allotment secured on the strength of fraud or misrepresentation. 4) Having heard learned counsel for the parties and perused the impugned orders, I find that bone of contention to both the parties is whether petitioner is a landless person and on that basis, he could be treated as eligible for allotment under the Rules of 1957. Definition of ‘landless person’ is enumerated in Rule 2(viii) of the Rules of 1957 which provides that “landless tenant” means a bona fide agriculturist by SBCWP NO.951/01. { 5 } profession who cultivates or can reasonably be expected to cultivate land personally and who doesw not hold any land in his own name or in the name of any member of his joint family for cultivation. It appears that rigor of the rule or in somewhat is not referred by subsequent amendment in proviso to sub-rule (ii) of Rule 12 vide notification dated 11/1/1983 to say that landless tenancy which does not held any landless person identified as Beneficiary of the Integrated Rural Development Programme. But that amendment was made on 11/1/1983 and obviously, cannot be applied retrospectively. It is not disputed even by the petitioner that as on the date on which allotment was made to him on 17/11/1977, he already held 8 bighas and 12 biswas of land in Khasra No.21-ka-1 of 1 bighas 7 biswas of land of Khasra No.81 thus, total 10 bighas which he purchased from one Nanda S/o Sanvla on 6/2/1974 and subsequently he further purchased 5 bighas of land from the government in Khasra No.831 on 30/6/1976. These facts have been noticed by the Board of Revenue in para 7 of its judgment. Delay in the present case cannot be said to have occasioned any prejudice to the petitioner because the allotment though on paper was made in favour SBCWP NO.951/01. { 6 } of the petitioner on 17/11/1977, it was actually implemented on 28/6/1989 when the petitioner was put in possession and thus allotment order even though technically made on 17/11/1977 but actually it was made effective on 28/6/1989 and counting from that date, it was less than two years when the Collector passed order of cancellation on 7/1/1991. Even otherwise, no period of limitation can be said applied in the case of allotment which is shown to have been secured on the strength of fraud or misrepresentation. The allotment advisory committee in the present case acted contrary to the spirit of the rules and the law by making allotment to the petitioner subject to verification by the Patwari concerned whether or not petitioner was landless which in fact was the condition precedent for making such allotment. The whole exercise was thus vitiated by non application of mind. 5) In view of above discussion, I do not find any merit in this writ petition, which is accordingly dismissed. No order as to costs. (MOHAMMAD RAFIQ), J. anil