SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 1 SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 Dated of Judgment:- 24.02.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. Sudhir Sharma, for the appellant. Mr. Hemant Choudhary, Government Counsel for the respondents. BY THE COURT(PER HON'BLE MR.SANGEET LODHA,J.) 1. Heard learned counsel for the parties. 2. This special appeal is directed against order dated 11.07.02 passed by the learned Single Judge of this court , whereby the writ petition preferred by the appellant assailing the order dated 30.05.02 passed by the Board of Revenue,Rajasthan, Ajmer, stands dismissed. By the said order dated 30.05.02, the Board of Revenue has dismissed the revision petition preferred by the appellant against the order dated 15.04.02 passed by the Commissioner(Colonisation)-cum- District Collector, Sri Ganganagar cancelling the permanent allotment of the land made in his favour by the Assistant Colonisation Commissioner, Suratgarh. 3. The relevant facts in nutshell are that the appellant was allotted agriculture land ad measuring 25 bighas situated in Sq. SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 2 No. 13/1 of Chak No. 13 KND, Tehsil Gharsana, District Sri Ganganagar. The land was allotted on temporary cultivation lease in the year 1971 which was renewed in the years 1972 and 1973. Thereafter, permanent allotment was made in favour of the appellant vide order dated 22.04.74. The allotment made in favour of the appellant as aforesaid was cancelled by the Additional Commissioner (Colonisation) vide order dated 10.04.84. Aggrieved by the said order, the appellant preferred a revision petition before the Board of Revenue , which was later withdrawn and thereafter, assailing the cancellation order, a writ petition (No. 950/86) was preferred before this court. After due consideration, this court found that the controversy involved in the writ petition is covered by the decision of the Hon'ble Supreme Court in the matter of “Brij Lal vs. Board of Revenue” , AIR 1994 SC , 1128 and a decision of this court in the matter of “Khetaram vs. State of Rajasthan”, WLR, 1996(RAJ.), 84. Accordingly, the writ petition was allowed and aforesaid order dated 10.04.84 passed by the Additional Commissioner (Colonisation), Sri Ganganagar cancelling the allotment made in favour of the appellant was set aside with the observation that it will be open for the said authority to pass fresh order in accordance with law. 4. The allotment made in favour of the appellant was again SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 3 cancelled by the Additional Commissioner(Colonisation)-cum- District Collector, Sri Ganganagar vide order dated 15.4.02 on the ground that the appellant had sold 12 bighas and 10 biswas land held by him as 'gair khatedar' tenant in the year 1965 therefore, he is not entitled for allotment inasmuch, as under the provisions of Rajasthan Colonisation(Allotment & Sale of Agricultural Land in Indira Gandhi Canal Colony Area), Rules 1975 ( in short “the Rules of 1975” hereinafter), a person who has sold or otherwise transferred the whole or part of the land held by him or allotted to him is not considered to be a “landless person” . 5. Being aggrieved and dissatisfied with the aforesaid order dated 10.04.02 passed by the Additional Commissioner (Colonisation), Sri Ganaganagar, the appellant preferred a revision petition preferred before the Board of Revenue,Rajasthan, Ajmer which was also dismissed vide order dated 30.05.02. The revision petition was dismissed by the Board of Revenue observing that it contains the grounds which are self contradictory. 6. The writ petition preferred by the appellant has been dismissed by the learned Single Judge on the ground that the fact that in the year 1965 , the appellant had sold 12 bighas and 10 biswas agriculture land to become landless person was SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 4 withheld while obtaining the temporary allotment of the land in question in the year 1971. The learned Single Judge further observed that the appellant was a “gair khatedar” tenant of 12 bighas and 10 biswas land of Chak No. 2 EEA, Sq. No. 67 which could not have been sold by him for the reason that a “gair khatedar” tenant has neither inheritable nor transferable rights and therefore, even if the land was sold by a registered sale deed , it will not confer any right in the appellant to sell it or in favour of purchaser to procure the title. That apart, the learned Single Judge opined that during the period 1965 to 1971, the appellant cannot be said to be a bona fide agricultural labour or a bona fide agriculturist by profession. The learned Single Judge held that the persons like appellant who get allotment in their favour by withholding important information and by disposing of gair khatedari land through a registered sale deed, cannot be given indulgence. Hence, this appeal. 7. It is contended by the learned counsel for the appellant that the earlier cancellation made by the Additional Commissioner(Colonisation) was set aside by this court relying upon the decision of the Hon'ble Supreme Court in Brij Lal's case (supra) and decision of this Court in Khetaram's case (supra) therefore, after a lapse of about more than 28 years, the allotment made in favour of the appellant could not have been SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 5 cancelled on the ground that he was not a “landless person”. The learned counsel submitted that the learned Single Judge has seriously erred in not considering the earlier decision of this court dated 26.09.96 whereby the writ petition preferred by the appellant against the cancellation of allotment was allowed. It is submitted by the learned counsel that even if the transfer of the 12 bighas and 10 biswas agriculture land held by him as “gair khatedar” tenant is treated to be illegal and void , then too, the appellant was entitled for the allotment of the land inasmuch as , under the Rules of 1975, a person is entitled for allotment of the land to the extent of 25 bighas. The learned counsel for the appellant submitted that the appellant is ready to surrender 12 bighas and 10 biswas land, out of 25 bighas land allotted in his favour. 8. Per contra, the learned counsel appearing on behalf of the respondent submitted that the appellant had concealed the factum of the agriculture land held by him at the time of allotment which was illegally sold by him to some other person in the year 1965 therefore, the cancellation of his allotment is absolutely justified. However, it is not disputed by the learned counsel that under the Rules of 1975, a landless person is entitled for allotment of 25 bighas land therefore, even if the appellant is considered to be the gair khatedar tenant of 12 SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 6 bighas and 10 biswas land then, he could have claimed the allotment of the land under the Rules of 1975 so as to make his holding 25 bighas in total. 9. We have considered the rival submissions and perused the material on record. 10. In the instant case, the controversy revolves around the definition of “landless person” set out in clause xiii of Rule 2 of the Rules of 1975 which reads as under:- “(xiii) Landless Persons means a person who- (i)is a resident of Rajasthan; and (ii)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: Provided that a person holding continuously since before the 1st day of April, 1955 only barani land in a village may surrender that land in favour of Government free of cost and on acceptance of such surrender, he will also be treated as a landless person of that village. In case he is not allotted any command land within a year of such surrender, he can revoke the surrender of the land made by him: Provided further that a released “Sagri” as certified by the Sub-Divisional Officer will also be treated as landless person of that village. Explanation.- For the purpose of this proviso “Sagri” means the bonded labourer as defined in the Bonded Labour System (Abolition) Act, 1976 (Central Act 19 of 1976). SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 7 Provided further that the following categories of persons shall not be deemed to be landless persons, namely:- (a) an employee other than a casual or work charged employee of the Government or of a commercial or industrial establishment or concern, his wife and children dependent on him. (b) a person who has sold or otherwise transferred the whole or part of the land held by , or allotted to him other than land transferred to or acquired by the Government or statutory bodies and thereby reduces the size of his holding to become landless person.”(emphasis added). 11. A bare perusal of definition of the “landless person” supra, it is abundantly clear that a person holding the land less than 25 bighas is considered to be a “landless person” under the Rules of 1975 . Therefore, even if the transfer of the 12 bighas and 10 biswas land held by the appellant as 'gair khatedar' tenant is considered to be illegal and he continues to be the “gair khatedar” tenant of the said land , then too, he was entitled to be considered for allotment of the land as a “landless person” under the Rules of 1975. That apart, admittedly, the land held by the appellant as “gair khatedar” tenant was transferred by him in the year 1965 therefore, in no manner it can be inferred that the transfer was made by him so as to reduce the size of his holding and thereby to become a “landless person” , entitled for allotment under the Rules of 1975. Thus, the cancellation of allotment made in his favour on the ground of concealment of SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 8 the fact regarding the transfer of the land held by the appellant is not sustainable in eye of law. On the facts and in the circumstances of the case, in our considered opinion, if on account of 12 bighas and 10 biswas land held by the appellant as “gair khatedar” tenant, he was not entitled for permanent allotment 25 bighas of land under the Rules of 1975 then, the allotment of the land made in his favour in excess of his entitlement i.e. 12 bighas and 10 biswas only was liable to be cancelled. 12. There is yet another aspect of the matter. Indisputably, the appellant is cultivating the land in question continuously since 1971 therefore, in absence of any fraud or concealment on his part , it will be unjust to divest him from the land in question altogether at this stage. Moreover, in our view, this court while deciding the earlier writ petition preferred by the appellant in light of the decision of the Hon'ble Supreme Court in Brijlal's case and a Bench decision of this court in Khetaram's case, has already recognised the right of the appellant to retain the land to the extent of his entitlement . In Brijlal's case(supra), the Hon'ble Supreme Court while dealing with an issue of cancellation of allotment made in favour of a minor , held as under:- “3. As mentioned above, the Board of Revenue of Rajasthan had remanded the case for consideration SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 9 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 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.”(emphasis supplied) 13. For the aforementioned reasons, we are of the considered opinion that the allotment made in favour of the appellant was SURESH CHANDRA @ SURESH CHAND VS. BOARD OF REVENUE & ANR. (D.B.CIVIL SPECIAL APPEAL(W) NO.519/02 10 liable to be cancelled only to the extent 12 bighas and 10 biswas land and thus, the Additional Commissioner(Colonisation) was not justified in cancelling the allotment made in favour of the appellant in toto. Thus, in our view, the learned Single Judge has committed an error in declining to interfere with the order passed by the Board of Revenue dismissing the revision petition by the appellant. 14. In the result, the special appeal succeeds, it is hereby allowed. The order under appeal is set aside. The order passed by the learned Board of Revenue dated 30.05.02 and the order dated 15.04.02 passed by the Additional Commissioner (Colonisation), Sri Ganganagar are set aside. The matter is remanded to the Additional Commissioner(Colonisation), Sri Ganganagar to pass an appropriate order cancelling the allotment of land made in favour of the appellant to the extent of 12 bighas and 10 biswas and resume the possession thereof. The appropriate order in compliance of the aforesaid directions shall be passed within a period two months from the date of this order and in terms of the order to be passed as aforesaid by the said authority,the appellant shall hand over the possession of the land to the authority concerned forthwith. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J.