1 S.B. Civil Writ Petition No.320/2009. (Saiyad Mohd. Vs. Stateof Rajasthan & Others) DATE OF ORDER : January 27th, 2009 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Mr. J.L. Purohit for the petitioner. Mr. R.L. Jangid, Addl. Advocate General. Reportable : BY THE COURT : In this writ petition, the petitioner has prayed for quashing order passed by the Collector dated 15.09.1987 and order passed by the Board of Revenue dated 03.10.2008, Annex.-8 and order dated 01.01.2009, Annex.-9. Further, it is prayed that the respondents may be restrained from dispossessing the petitioner from the land in question. As per facts of the case, an allotment was made in favour of the petitioner as landless person upon his application after following the procedure and consultation with the Advisory Committee and, in all, 9 bigha 12 biswa command land situated in Chak 4 LSM Sq. No.303/394, Killa 16 to 19, 20, 21 and 22 to 25 vide allotment order dated 26.05.1976. After allotment, the petitioner was appointed on the post of Patwari vide order dated 02.04.1979 and joined the 2 duties as such. Contention of the petitioner is that he continued to cultivate the land through his family members. A complaint was filed before the Addl. Collector Colonisation (Vigilance), Bikaner, in which, an allegation was made that the petitioner got allotment made in his favour by concealment of the fact that he is government employee and posted as Patwari in revenue tehsil Anoopgarh and government employees are not entitled for allotment. The allotment so made was cancelled vide order dated 25.09.1987. As per the assertion in the writ petition, the Collector relied upon the report of the Tehsildar that the petitioner is not cultivating the land personally and, so also, installments of the land cost were not paid by the petitioner and the petitioner is working at present as Patwari. The said order was challenged by the petitioner before the Revenue Appellate Authority, Sriganganagar; but, the said appeal filed by the petitioner was returned to him for presentation before the proper Court. As per the petitioner, said appeal was returned to him on 28.05.97 but the same was not communicated to the petitioner by his counsel till 07.11.1998. Contention of the petitioner is that after having 3 the knowledge on 07.11.1998 through another Advocate, he obtained copy of the order dated 28.05.1997 and preferred revision petition before the Board of Revenue along with application under Sections 5 and 14 of the Limitation Act. The Board of Revenue rejected the said revision petition on the ground of limitation as well as on merit vide order dated 23.10.2008. In the said judgment, the Board of Revenue held that this revision petition has been filed after one and half years and delay has not been explained satisfactorily. Further, it is observed that the petitioner is posted as Patwari, therefore, the allegation of not cultivating the land personally is forceful and, further, installments of land have also not been deposited. The order dated 03.10.2008 passed by the Board of Revenue was challenged by the petitioner by way of filing review application. But, the learned Revenue Board dismissed the review application also vide order dated 01.01.2009. The petitioner also submitted that an enquiry was conducted under Rule 16 of the RCS (CCA) Rules for the said allotment; but, he was exonerated vide order dated 09.11.1989. Therefore, the allegation against the petitioner levelled by the 4 respondents that he has obtained the allotment by concealment of fact was incorrect. Learned counsel for the petitioner while challenging the orders impugned vehemently argued that for the first the District Collector cancelled the allotment without providing opportunity of hearing to the petitioner, therefore, the order is illegal and against the principles of natural justice. Secondly, it is argued by learned counsel for the petitioner that though no installments was deposited by the petitioner since 1978- 79; but, a request was made by him before the Board of Revenue that he is ready to deposit the entire amount of installments but the learned Board of Revenue did not accept the petitioner's contention which is in contravention of the adjudication made by this Court. Learned counsel for the petitioner further vehemently argued that admittedly the allotment was made in favour of the petitioner as landless person in the year 1976 and he was appointed as Patwari on temporary basis in the year 1979; and, as such, the reason for cancellation of allotment is totally baseless and he is ready to deposit the entire amount of the installments of the land and he can hold the land 5 allotted to him as landless person prior to his appointment as Patwari; but, all these aspect of the matter were not considered by the District Collector as well as Board of Revenue, therefore, all the orders impugned deserve to be quashed and set aside. With regard to limitation, it is submitted that the learned Board of Revenue gave wrong finding while not accepting the petitioner's contention for explaining the delay in filing the revision petition after one and a half years. It is contended that the petitioner specifically mentioned in the application that no information was given to him by his counsel with regard to order dated 28.05.1997 passed in appeal filed before the Revenue Appellate Authority by the petitioner, therefore, the ground of not accepting the explanation for delay is also not tenable and, accordingly, the order passed by the Board of Revenue is illegal and deserves to be set aside. Learned counsel for the petitioner invited my attention towards certain judgments of this Court reported in 1997 (2) RLR 104, Khima Ram Vs. State of Rajasthan; another Division Bench judgment reported in 1980 RLW 17, Mohan Lal Vs. State of Rajasthan and 1998 (1) WLC (Raj.) 636, Gopi Ram Vs. State of Rajasthan & Others. It is contended by learned 6 counsel for the petitioner that in these judgments it has been held that the government employee in whose favour land was allotted prior to his appointment can hold the land and it cannot be cancelled on the ground that remained in service after allotment. Further, the District Collector has passed order without providing opportunity of hearing to the petitioner which is against the principles of natural justice. I have perused the entire pleadings of the writ petition and, so also, the judgments cited by learned counsel for the petitioner. It is true that the land was allotted in favour of the petitioner on 26.05.1976. On that date, the petitioner was not in service. He was later on appointed as Patwari in the year 1979, therefore, the allegation of concealment of fact against the petitioner is not sustainable. It is admitted position of the case that the petitioner did not deposit any installments after 1978- 79 and a request was made by the petitioner before the Revenue Board that he is ready to deposit the entire amount of installments which have not been paid by him since 1978-79. In my opinion, the said request made by the petitioner for depositing the amount after 7 40 years cannot be accepted. More so, on the ground that admittedly after 1979 the petitioner was appointed as government servant. Therefore, after 1979, the petitioner cannot be treated as agriculturist for the purpose of depositing the installments of the land price because he has lost his right after seeking appointment and it is not open to the petitioner to say that he is ready to deposit the entire amount, therefore, the argument of learned counsel for the petitioner is totally baseless that no notice was given by the District Collector prior to cancellation of his allotment. In my opinion, a person like the petitioner who is holding the post in the revenue department is having such courage to say that he is entitled to restoration of allotment of agricultural land on the ground that prior to appoint as Patwari he was agriculturist and, after his appointment, he did not pay the installments. The conduct of the petitioner speaks that no indulgence can be given upon the conduct of such type of person because he was holding the post in the Revenue Department and did not pay the installments after 1978-79 and, while holding the post of Patwari, he is making prayer before the Revenue Board that he is ready to pay the entire amount of installments now. Such type of person is 8 not entitled to invoke jurisdiction of this Court under Articles 226 and 227 of the Constitution of India upon his conduct. Undisputedly, after 1979, the petitioner is holding the post of Patwari and he has not deposited single penny towards the installments which were to be paid by him in pursuance of allotment made in his favour as per Annex.-1. Therefore, even if according to law automatic cancellation is not permissible in the event of non-payment of the installments, conduct of the petitioner does not require any interference in this case. Consequently, the writ petition is dismissed. No order as to costs. (Gopal Krishan Vyas) J. Ojha, a.