SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) 1 SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) Date of Judgment:- 20.2.09 HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Rajiv Purohit , for the appellant. 1. This special appeal is directed against order dated 27.1.09 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant assailing the validity of order dated 25.9.87 passed by District Collector and orders passed by the Board of Revenue dated 3.10.08 and 1.1.09 , stands dismissed. 2. The relevant facts in nutshell are that the appellant was allotted 9 bighas 12 biswas command land situated in Chak 4 LSN,Sq. No. 303/394 Killa Nos. 16 to 19 , 20, 21 and 22 to 25 as landless person vide order dated 26.5.96 issued by the allotting authority. 3. As per the terms of the allotment the cost of land a sum of Rs. 11,340/- was to be paid by the appellant in ten yearly installments as specified in the order itself. It was a condition incorporated in the allotment letter itself that on failure to deposit two consecutive installments , the allotment made shall be liable to be cancelled and the land shall revert back to the SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) 2 State Government. 4. The appellant was temporarily appointed on 2.4.79 on the post of Patwari in the Department of Revenue, Government of Rajasthan, however, it is alleged that he continued to cultivate the land through his family members. 5. On 14.1.86 one Shri Shivkaran submitted a complaint before the Additional Commissioner, Colonisation (Vigilance), Bikaner that the appellant got the land allotted in his favour by concealment of the fact that he is a government employee whereas, a government employee is not entitled for allotment of agriculture land. The file was transferred by the Department of Colonisation to the District Collector, Sri Ganganagar for the necessary action. On inquiry being made, it was revealed that the appellant is not cultivating the land personally , he is employed as Patwari in the Department of Revenue and further that he has not deposited the due installments in terms of the allotment order since 1978-79. The appellant did not appear before the District Collector despite service therefore, after due consideration of the matter, in view of the aforesaid factual position,the allotment made in favour of the appellant was cancelled by the District Collector,Sri Gangangar vide order dated 25.9.87. That apart, the recommendations were made for disciplinary action against the appellant. SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) 3 6. Aggrieved by order dated 25.9.87 , the appellant preferred an appeal before the Revenue Appellate Authority, Sri Ganganagar which was later returned to the appellant for proper presentation on an application being preferred by him, vide order dated 28.5.97 passed by the Revenue Appellate Authority, Sri Ganganagar. Thereafter, the appellant preferred a revision petition under Rule 23(2) of Rajasthan Colonisation (Allotment of Land in Canal Area) Rules, 1975 before the learned Board of Revenue on 9.12.98. 7. The revision petition preferred by the appellant as aforesaid, was dismissed by the Board of Revenue vide order dated 3.10.08 as barred by time so also on merits . It was not disputed before the Board of Revenue on behalf of the appellant that being posted as Patwari, presently, he is not cultivating the land . It was also not disputed on behalf of the appellant that the due installments in terms of the allotment letter were not paid. 8. A review petition preferred by the appellant for review of aforesaid order dated 3.10.08 was also rejected by the Board of Revenue vide order dated 1.1.09. 9. The validity of the aforesaid orders was assailed by the petitioner by way of writ petition before this court which has been dismissed by the learned Single Judge by the order impugned in this appeal. SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) 4 10. After due consideration, the learned Single Judge has found that the land was allotted in favour of the appellant on 26.5.76 and he was appointed as Patwari in the year 1979 therefore, the allegation that he has obtained the allotment by concealment of fact is not sustainable. However,in view of the admitted position that the appellant has not deposited the installments in terms of the allotment order , the learned Single Judge found that the cancellation of allotment is justified. 11. It is contended by the learned counsel that on account of non payment of installments, there cannot be any automatic cancellation of allotment. It is submitted by the learned counsel that before proceeding to cancel the allotment for the breach of the condition of tenancy, the Collector was required to take proceedings u/s 14 of the Colonisation Act, 1954 ( in short “the Act of 1954” hereinafter). It is submitted by the learned counsel that the appellant is ready to deposit the installments and an offer in this regard was made by the appellant before the Board of Revenue. Accordingly, it is submitted by the learned counsel that the order of cancellation has been passed by District Collector, Sri Ganganagar is bad in law. It is submitted that the order as aforesaid was passed by the District Collector, Sri Ganganagar in ignorance of the relevant provisions of the Act of 1954 and in violation of the principle of natural justice. In SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) 5 support of his contentions, the learned counsel has relied upon a Bench decision of this Court in the matter of “Sohan Lal vs. State of Rajasthan” 1980 RLW, 17. 12. It is to be noticed that in terms of the allotment the appellant was required to deposit the due installments within the period specified in the allotment letter itself. Under the condition no. 2 of the allotment letter , the allotment made was liable to be cancelled on failure of the appellant to pay the two consecutive installments. It is not in dispute that the appellant has not paid due installments after the year 1978-79. The appellant did not choose to appear before the Collector , Sri Ganganagar despite due service of the notice and therefore, he cannot raise the grievance that the order of cancellation dated 25.9.87 has been passed without affording an opportunity of hearing to him. Be that as it may, the fact remains that admittedly, the appellant has failed to deposit the due installments for all these years therefore, the cancellation of the allotment for this reason, cannot be faulted with. It is really strange that the appellant, an employee of Department of Revenue, Government of Rajasthan knowing fully well about his obligation to deposit the due installments has enjoyed the fruits of the land without making due payments to the State Government for all these years. After the cancellation of the SAIYAD MOHD. VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.237/09) 6 allotment, the offer made by the appellant before the Board of Revenue, if any, showing his willingness and readiness to deposit the installments, is of no consequence. In our considered opinion, the learned Single Judge was absolutely justified in holding that the conduct of the appellant disentitles him from invoking extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 13. For the aforementioned reason, we do not find any error in the order impugned passed by the learned Single Judge warranting interference by us in this intra court appeal. 14. In the result, the special appeal fails, it is hereby dismissed. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-