1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 471 of 1999 KISHORE LAL V/S STATE & ORS Mr. SUDHIR SHARMA, for the appellant / petitioner Mr. HEMANT CHOUDHARY, Mr. NL JOSHI, for the respondent Date of Order : 16.7.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. JUDGMENT -------- The appellant seeks to challenge the order of the learned Single Judge dated 12.3.1999 dismissing the writ petition. The necessary facts are that for committing breach of condition of allotment made to the original allottee- petitioner, the allotment was cancelled. Then pursuant to the judgment of the Hon'ble Supreme Court passed in the case of Pradesh Pong Bandh Visthapit Samiti Rajasthan & Ors. Vs. Union of India & Ors., the matter was again considered by the learned Special Judge, who found that the cancellation order was proper and legal, as such, the review petition was dismissed vide Annex.4, which was challenged by the petitioner before the learned Single Judge by way of filing writ petition. Learned Single Judge has found that there is sufficient evidence on record to show that the original allottee was not staying on the said land for several years, 2 and also was not cultivating the land personally, then no interference can be made in favour of the petitioner. The contention was raised by the petitioner-appellant about the order having been passed by the SDO ex-parte was also examined, and it was held that all efforts were made and care was taken to see that the petitioner is served so much so the notices were issued time and again and were also published in the newspaper. Thus no fault can be found with the alleged exparte decision either. Assailing the impugned judgment learned counsel invited our attention to the statement of the appellant, which was recorded in the proceedings, and which has been produced in the writ petition as Annex.3, to show that he has clearly deposed that he is personally cultivating the land and the cancellation could not have been ordered. Before reading that statement we may observe that vide order dated 16.4.2009 the Court directed the State to place on record the actual position about possession of the property in dispute as the appellant claimed to be in possession. This was also called with a view to take note of the subsequent event, if any relief can be granted to the appellant by way of regularisation for his long period of possession, within which he had alleged to have invested huge amount of money in improving the land. In compliance of that order the affidavit on behalf of the State has been filed being the affidavit of Tehsildar Anoopgarh on 21.5.2009, who has deposed that it is Shri Resham Singh son of Makhan Singh, who is in cultivatory 3 possession over the land in question, in the capacity of the power of attorney holder of the petitioner. The copy of the report of the Patwari has also been produced, which also shows that there is no constructed house situated on the land in question. It is also reported that the appellant Kishore Lal is neither residing on the land nor he is in continuous cultivatory possession, rather it has been given out that it was Resham Singh, who informed that the appellant comes once in an year or two. The copy of the power of attorney has also been produced along with the affidavit. From a look at the power of attorney, which is of 25.7.1996, it is clear, that therein the attorney has been authorised to acquire khatedari rights, to enter into an agreement to alienate the land, execute the agreements, and obtain loans from financial institutions under his own signatures or thumb mark etc. Though not written in so many words, but the proper comprehension of the power of attorney shows, that it is an indirect subterfuge resorted to by the appellant, to alienate all his right, title and interest in favour of the alleged power of attorney, without executing any appropriate document of alienation, in an attempt to evade payment of stamp duty and registration charges. This is one aspect of the matter. Then coming to the statement of appellant relied upon by the appellant being Annex.3, a reading thereof shows, that therein the appellant has deposed that after one month of receiving possession he started cultivating the land, and cultivated for 11 years, which goes to show that 4 he alleges to have cultivated upto the year 1984, as the allotment was made in 1973. According to him he then fell ill, and got it cultivated on labour for 4 years, this comes to year 1989. According to him, thereafter he got it cultivated from Naresh, and from Pyara Singh, on share crop basis. It may be observed, that getting cultivated on share crop basis is in clear violation of Rule 6 of the Rajasthan Colnisation (Allotment and Sale of Government Land to Pong Dam Oustees and Their Transferees in Indira Gandhi Canal Colony) Rules, 1972 read with Section 2 VI of the Colonisation Act. Thus, admittedly, he had committed breach of Rule 6. Then in the statement he has further deposed that Pyara Singh did not leave possession, whereupon he filed application before the SDO Court, thereupon he left possession. Thereafter he again got it cultivated by Makhan Singh on share crop basis. We repeat that even this getting cultivated from Makhan Singh was also in violation, as noticed above. He has then deposed that thereafter, he got cultivated from Resham Singh on share crop basis, and that on the site, land is in his possession. He has not stated that Resham Singh has been removed, obviously therefore, admittedly it is Resham Singh, who is cultivating the land, and as deposed in Annex.3 that Resham Singh is cultivating on share crop basis. This statement was recorded on 16.7.1998, but significantly, in this statement, the appellant even did not make a whisper about power of attorney, which was executed in 1996, though the writ was filed supported by the affidavit of Resham Singh, and copy of power of attorney was filed along with the writ petition itself. From the affidavit in support of the writ, it appears that in 1996 Resham Singh mentioned his age to be 60 5 years, and has stated to be son of Makhan Singh, which gives an indication, that the land was got cultivated by appellant from Makhan Singh, as deposed in Annex.3, before getting cultivated from Resham Singh, might mean, that the land was being got cultivated by the family, through family of Makhan Singh, on share crop basis. In this background, as is clear from the affidavit of Tehsildar, filed in this Court, as above, that it is Resham Singh, who is in cultivatory possession of the land, and as deposed in Annex.3, he has been given land for cultivation on share crop basis, the petitioner cannot be said to be in actual cultivatory possession. Thus the petitioner had admittedly violated the conditions of Rule 6. At this place, we are constrained to notice and observe one more thing that the writ petition so also the appeal have been filed by Kishore Lal son of Guljari Lal, and Resham Singh is not party in the writ petition or in the appeal, but the affidavit of Resham Singh filed in support of writ, stay application, etc., and that filed in this appeal, all depose about Resham Singh himself being petitioner in the case, which he is not, though in the covering language of the affidavit, is mentioned to be power of attorney holder of the petitioner, but then this also additionally indicates that things are not that clear as intended to be projected by the appellant. In the totality of circumstances, the findings of fact arrived at by the authority below and the learned Single Judge, require no interference in appeal. 6 The appeal thus, has no force and is dismissed. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /tarun/