RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 1 RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) Dated:- 09 .02.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr.Vijay Bishnoi, for the petitioner. None present for the respondents even in second round. 1. This writ petition is directed against order dated 23.5.90 passed by the learned Board of Revenue, Rajasthan, Ajmer in Revision Petition No. 20/84/Colonisation/Ganganagar, whereby revision petition preferred by the State of Rajasthan against the order dated 18.10.83 passed by the Additional Commissioner Colonisation,(Vigilance) cum Revenue Appellate Authority, Bikaner in case No.36/82, stands allowed and the order passed by the said authority maintaining the permanent allotment of land made in favour of the petitioner herein , stands set aside. 2. Precisely, the relevant facts are that in the year 1956, the disputed land was allotted to the petitioner on temporary cultivation lease for a period of one year. The temporary allotment made as aforesaid was renewed time to time upto the year 1972. Thereafter, vide order dated 30.12.72 passed by the Assistant Commissioner Colonisation, Bikaner, the permanent allotment was made in favour of the petitioner. In the year 1975, one Shri Lalu Ram resident of Bulawari made a complaint to the Dy.Commissioner Colonisation, Suratgarh stating therein that RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 2 the allotment was obtained by the petitioner concealing the material facts. 3. After due notice to the petitioner and hearing both the parties, the Dy.Commissioner Colonisation, Suratgarh arrived at the finding that while seeking allotment , the petitioner suppressed the facts relating to the land held by his parents wherein his share comes to 12 bighas . Accordingly, vide order dated 10.9.76, the allotment of the land made in favour of the petitioner to the extent of 12 bighas was cancelled. 4. Admittedly,the validity of the aforesaid order dated 10.9.76 was not assailed by the State and accordingly, the same attained finality. However, later it come to the notice of the revenue authority concerned that at the time of initial allotment, the petitioner was minor and that apart, the mother of the applicant was holding 26 bighas land but these facts were concealed by the petitioner. In this view of the matter, the proceedings under Section 22(3) of Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area), Rules, 1975( in short “the Rules of 1975” hereinafter) was initiated by the Additional Commissioner Colonisation, Bikaner for cancellation of the allotment. The notice issued was replied by the petitioner in terms that the matter has already been decided by the Dy.Commissioner, Suratgarh vide RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 3 order dated 10.9.76 and the same has attained finality therefore, the same cannot be reopened . That apart, it was submitted that even if it is assumed that in the year 1956 at the time of allotment of the land in his favour, the petitioner was minor then too, the permanent allotment made in the year 1972 cannot be faulted with inasmuch as the petitioner had already attained the age of majority in the year 1967. 5. After due consideration, the learned Additional Commissioner Colonisation, arrived at the finding that the matter has already been decided by the Dy.Commissioner Colonisation vide order dated 10.9.76 therefore, it will not be appropriate to review the same under Rule 22(3) of the Rules of 1975. The learned Additional Commissioner arrived at the finding that the temporary cultivation lease granted in favour of the petitioner was extended from time to time upto the year 1972 and the petitioner had attained age of majority in the year 1967 therefore, the permanent allotment made in his favour in terms of Rule 7(1)(a) of the Rules of 1975 after the lapse of 5 years from the date of attaining the age of majority does not suffer from any irregularity. Accordingly, the notice issued under Rule 22(1) of the Rules of 1975 was ordered to be withdrawn . 6. Aggrieved by the aforesaid order dated 18.10.83 passed by the Additional Commissioner Colonisation, Bikaner, the State of RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 4 Rajasthan preferred a revision petition before the Board of Revenue . The Board of Revenue arrived at the finding that admittedly at the time of temporary allotment, the petitioner being minor, was not eligible for allotment therefore, the permanent allotment made on the basis of such illegal temporary allotment cannot be sustained. Accordingly, the aforesaid order dated 18.10.83 passed by the Additional Commissioner Colonisation, Bikaner has been set aside by the Board of Revenue by order impugned in this writ petition and accordingly, the allotment made in favour of the petitioner has been cancelled. Hence, this petition. 7. It is contended by the learned counsel for the petitioner that the notice issued by the Additional Commissioner Colonisation, Bikaner in terms of Rule 22(3) of the Rules of 1975 was barred by principle of res judicata inasmuch as the matter with regard to the allotment made in favour of the petitioner had already been decided by the Dy.Commissioner Colonisation, Suratgarh vide order dated 10.9.76. The learned counsel submitted that the learned Board of Revenue has seriously erred in not considering this aspect of the matter. That apart, the learned counsel submitted that assuming that at the time of initial allotment in the year 1956, the petitioner was not eligible for the allotment but then, the temporary allotment made in his RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 5 favour was renewed time to time upto the year 1972 and the permanent allotment was made in his favour in the year 1972 after his attaining the age of majority in the year 1967, therefore, as per the provisions of Rules of 1975, the permanent allotment made in his favour cannot be faulted with. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Brij Lal vs. Board of Revenue & Ors.”, AIR 1994 SC, 1128. 8. I have considered the submissions of the learned counsel for the petitioner and perused the material on record. 9. It is not in dispute that the petitioner was “temporary cultivation lease holder” therefore, in terms of the provisions of Rule 7(1)(c) of the Rules of 1975, the petitioner was entitled to permanent allotment of the land on priority basis. The permanent allotment made in favour of the petitioner in excess of his entitlement has already been cancelled by the competent authority and that order has attained finality. From the material on record, it is apparent that no proceedings for cancellation of temporary allotment made in favour of the petitioner was ever initiated by the competent authority. It is also not in dispute that the petitioner is cultivating the land since 1956 therefore, it will be unreasonable and against the interest of justice to divest him from the land in question at this stage. RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 6 10. As a matter of fact, the controversy involved in the matter stands covered by the decision of the Hon'ble Supreme Court in Brij Lal's case (supra) and a Bench decision of this Court in the matter of “Amar Singh vs. State of Rajasthan”, WLR 1997 Raj., 342. 11. In Brij Lal's case (supra), the Hon'ble Supreme Court while dealing with a similar controversy arising from an order passed by this court, held as under:- “3. As mentioned above, the Board of Revenue of Rajasthan had remanded the case for consideration afresh in accordance with the Rules. It is not disputed that the appellant is a “landless person” under the Rules. It is further not disputed that the appellant was “temporary cultivation lease-holder” and as such he was eligible and entitled to permanent allotment of the land on priority basis under the Rules . On the date when the appellant applied for permanent allotment he was holding the temporary allotment. If the appellant had procured temporary allotment by giving false declaration regarding age then proceedings for cancelling temporary allotment should have been undertaken. The temporary lease of the appellant was never cancelled. The appellant being “temporary cultivation lease-holder”, permanent allotment could not be denied to him under the Rules. We are, therefore, of the view that the Authorities under the Rules and the High Court fell into patent error in rejecting the claim of the appellant for permanent allotment. 4.Even otherwise, there was no justification for the Authorities under the Rules to reject the school certificate and the medical certificate. There was not even an iota of evidence on the record to show that the appellant was minor on the date of temporary allotment. After making temporary allotment in favour of the appellant, if it was sought to be cancelled on the ground that the appellant was minor at the time of RAM PRATAP VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 1683/93) 7 allotment then, the onus was on the authorities to show that the appellant had made misrepresentation regarding his age. There was no basis at all for the authorities under the Rules to reach the finding that the appellant was minor on the date of the temporary allotment. 5. It is not disputed before us that the appellant is in cultivating possession of the land since 1970. It would be travesty of injustice to dispossess the appellant from the land which he is nourishing for over a period of two decades.” 12. Similarly, in Amar Singh's case (supra), the order rejecting the request for permanent allotment on the ground that the lease holder was minor on the date when the temporary cultivation lease of the land was granted in his favour, was set aside by a Bench of this court relying upon the decision of the Hon'ble Supreme Court in Brij Lal's case (supra). 13. In this view of the matter, in considered opinion of this court, the order impugned passed by the learned Board of Revenue is not sustainable in eye of law. 14. In the result, the writ petition succeeds , it is hereby allowed. The order impugned dated 23.5.90 passed by the Board of Revenue , Rajasthan, Ajmer is set aside and the order dated 18.10.83 passed by the Additional Commissioner, Colonisation, Bikaner is restored. No order as to costs. (SANGEET LODHA),J.