Research › Browse › Judgment

Rajasthan High Court · body

1992 DIGILAW 60 (RAJ)

Devaram v. State of Rajasthan (76)

1992-01-16

JASRAJ CHOPRA, V.K.SINGHAL

body1992
CHOPRA, J.— This special appeal is directed against the judgment of the learned single Judge of this Court dated 10.12.1986 passed in S.B. Civil Writ Petition No. 1469 of 1979, whereby the writ petition filed by the petitioner -appellant has been dismissed with costs of Rs. 1,000/-. (2) The facts necessary for the disposal of this special appeal briefly stated are: that the petitioner-appellant Devaram filed a Writ Petition on 13.11.1979 pleading inter aha that he is a bonafide agriculturist by profession and his only source of living is agriculture. His father Sardara Ram died in the year 1978 at the age of 118 years. His father had 10 issues (7 sons and 3 daughters) and he himself also has 5 sons who all are adults. After giving Pedigree of his family, the petitioner has submitted that his father Sardararam had 25 bighas of uncommand land, which he obtained somewhere in the year 1951-52 in village Motadar Tiba Tehsil Karanpur District Sriganganagar. He also obtained temporary allotment of the land prior to the year 1955 in Revenue Tehsil Raisinghnagar District Sriganganagar in village Satjhanda now known as Chak No 12 S.D. Colonisation Tehsil Suratgarh District Sriganganagar. It is alleged that the petitioner obtained 25 bighas of uncommand agricultural land in village Motasar Khuni, Tehsil Karanpur District Sriganganagar in the year 1951-52 separately in his own name, since he had separated from his father. It is further alleged that the petitioners father Shri Sardararam applied for permanent allotment of the land in village Stjhanda now known as Chak 12 S.D. under Rajasthan Colonisation (Rajasthan Canal Project Pre 1955 Temporary Tenants Government land Allotment) Conditions, 1971. It appears that his application for permanent allotment under these conditions was not decided till 26.8.1975. According to the petitioner, he obtained 25 bighas of land in square No. 47/62 on temporary cultivation basis in Chak No. 4. M.L.D., Rajasthan Canal Project, Tehsil Garsana, Revenue Tehsil Anupgarh on 31.10.1970. The temporary allotment of the land in favour of the petitioner was renewed from year to year. Thereafter, he applied for permanent allotment of the said land under Rajasthan Colonisation (Allotment of Govt. land to Post 1955 Temporary Cultivation Lease Holders and other Landless persons in the Rajasthan Canal Project Area) Rules, 1971 (for short the Rules). That application was initially rejected on 27.9.1974. Therefore, the petitioner preferred an appeal before the Addl. Thereafter, he applied for permanent allotment of the said land under Rajasthan Colonisation (Allotment of Govt. land to Post 1955 Temporary Cultivation Lease Holders and other Landless persons in the Rajasthan Canal Project Area) Rules, 1971 (for short the Rules). That application was initially rejected on 27.9.1974. Therefore, the petitioner preferred an appeal before the Addl. Commissioner Colonisation and during the pendency of that appeal, the Assistant Colonisation Commissioner allotted 21 bighas of land out of the petitioners land in favour of respondent No. 5 Shri Sukhdeo Singh. However, the appeal was decided in favour of the petitioner and the case was remanded back to the Allotting Authority on 23.9.1975 and the petitioner continued as temporary tenant of the land. According to the petitioner since 20.9.1975 he was temporary tenant of the land and the allotting authority had no jurisdiction to allot the land in favour of respondent No.5 and, therefore, the order of allotment in favour of respondent No.5 was a nullity in the eye of law. (3) The Assistant Colonisation Commissioner, to whom the case was remanded back vide order dated 23.9.1975, passed a fresh order Ex.1 dated 17.1.1976 dismissing the petitioners application for permanent allotment. It has been alleged that on Malamsingh, respondent No. 6, who has made up his mind to allot land in favour of respondent No. 5 deliberately dismissed the application of the petitioner for permanent allotment by making wrong statement of facts on wrong assumptions. Aggrieved against this order, the petitioner preferred an appeal before the Revenue Appellate Authority and that appeal was dismissed vide order (Ex.2) dated 8.9.1978. The petitioner preferred a revision petition before the Board of Revenue which was dismissed vide order Ex. 3 dated 23.10.1979. Thereafter, the petitioner filed a review petition and that too came to be dismissed on 8.11.1979. It may be stated here that an appeal was filed by the petitioner-appellant against the allotment of land in favour of respondent No. 5 but that came to be dismissed as having become time barred. No further appeal or revision has been filed against that order of allotment of 21 bighas of land in favour of respondent No.5 and, therefore, that allotment has become final. No further appeal or revision has been filed against that order of allotment of 21 bighas of land in favour of respondent No.5 and, therefore, that allotment has become final. (4) Respondent No. 5 has filed a separate reply and has claimed that the order of the Board of Revenue is quite correct and does not call for any interference and hence, the writ petition filed by the petitioner may be dismissed. (5) On behalf of the State Govt. a detailed reply has been filed and it has been claimed that while applying for permanent allotment, the petitioner has suppressed information about possession of land by his father in village Motasar and Chak 12 SD. He has also suppressed information about 25 bighas of land possessed by him in village Motasar and, therefore, he is guilty of suppression of material facts. It was submitted that petitioners father Shri Sardara Ram has transferred his land in favour of his grand sons after 1955. Likewise, it has been claimed by the petitioner that he has transferred 25 bighas of land allotted to him in village Motasar to his grand son in the year 1972 by gift-deed. Such transfers are against the provisions of r. 15 (2) of the Rules. It was contended that Condition No. 17 (11) makes it obligatory for the applicant to disclose in writing if he or any member of his family holding any land or not and an explanation appended to the said condition clarifies the expression member of his family, which includes father. It was further contended that the petitioner, while holding 20 bighas and 4 biswas of land in his share, could only be entitled to get the balance so as not to exceed 25 bighas of land only adjacent to his said holding as is provided in r. 5 (2) of the Rajasthan Colonisation (Allotment and Sale of Govt. land in Rajasthan Canal Colony Area) Rules, 1975. According to the respondents the land in dispute was temporarily allotted to the petitioner is not adjacent to his aforesaid holding. Even the temporary allotment was not valid as the same was sought by the petitioner by making wrong statement and concealment of true facts of the holdings. Only in case of a valid lease, the petitioner would have succeeded under rr. 4 (4) and 13 (5) of the Rules of 1975. Even the temporary allotment was not valid as the same was sought by the petitioner by making wrong statement and concealment of true facts of the holdings. Only in case of a valid lease, the petitioner would have succeeded under rr. 4 (4) and 13 (5) of the Rules of 1975. The finding of the Appellate Authority was, therefore, valid and just in the facts & circumstances of the case. (6) A counter affidavit to the writ petition was filed on behalf of respondent No. 6 Shri Malasingh. According to him, the petitioner did not mention the details of land held by him or by his father when he initially made an application in Form III alongwith an affidavit. Besides this, the petitioners father had been holding land in village* Motasar Tiba, measuring 25 bighas Barani and in Chak 12 SAD measuring 49 bighas command. These holdings have also been admitted by the petitioner himself in his writ petition. Thus, the petitioner is guilty of suppression of material facts and, therefore, he has rightly been refused allotment. According to respondent No.5, the petitioners father Shri Sardararam died on 9.2.1977 but merely to create confusion, he has made the vain efforts to mention the years 1978 as the year of death of his father. (7) The learned single Judge, after hearing both the parties came to the conclusion that it is a case of suppression of material facts from the allotting authority. He has also observed that the fact that the petitioner is a member of his fathers family is a finding of fact and, therefore, the learned single Judge has refused to interfere with this finding of fact after noticing the provisions of s. 17 (4) (ii) of the Rajasthan Colonisation Temporary Cultivation Leases) Conditions, 1955 (hereinafter to be referred as the Conditions of 1955) and r. 4 (2) and r. 15 (2) of the Rajasthan Colonisation (Allotment and Sale of Govt. land in Rajasthan Canal Colony Area) Rules 1975 (to be referred to as the Rules of 1975) and has come to the conclusion that the petitioner has transferred his land on 27.10.1972 to his sons in order to show that he is eligible for allotment to the entire land on permanent basis. (8) We have heard Mr. B.L. Purohit, the learned counsel appearing for the petitioner-appellant, Mr. U.C.S. Singhvi, the learned Addl. Govt. Advocate and Dr. (8) We have heard Mr. B.L. Purohit, the learned counsel appearing for the petitioner-appellant, Mr. U.C.S. Singhvi, the learned Addl. Govt. Advocate and Dr. S.S. Bhandawat the learned Addl. Govt. Advocate for respondents No. 1,2,3,4 and 6 and Mr. M. Shreemali, the learned counsel appearing for respondent No. 5 and have carefully gone through the record of the case. (9) It was contended by Mr. B.L. Purohit,the learned counsel appearing for the petitioner-appellant that the finding of suppression of material facts by all the three courts i.e. Assistant Colonisation Commissioner, Addl. Colonisation Commissioner and the Board of Revenue are based on misreading of evidence and ignoring materials placed on record. He has contended that the land which was in his possession and in possession of the petitioners father came to the knowledge of the allotting authority before he decided his case after remand on 17.1.1976 and, therefore, there was no suppression of material information. According to Mr. Purohit, even when temporary allotment was sought in Chak 4 MLD, it was disclosed in the application for temporary allotment that he possessed 25 bighas of land in village Motasar. However, he was not required to disclose the land of his father because he could not claim the share in his fathers land. He has also claimed that the petitioner is not a member of his fathers family and, therefore, he was not required to disclose the land possessed by his father. Thus, he has tried to challenge these findings of the courts below, which have been upheld by the learned single Judge that the petitioner is a member of his fathers family and that he has suppressed information about possession of the land by him and his father at the time of making application for permanent allotment. (10) In this case, a counter affidavit has been filed on behalf of respondent No. 6 Malamsingh alongwith application for permanent allotment filed by the petitioner. In the application for permanent allotment the petitioner has only disclosed the land temporarily allotted to him in Chak 47/62 in Chak 4 MLD. He has failed to disclose the land which was allotted to him in village Motasar. He has also not disclosed the land possessed by his father in village Motasar and 12-SAD . In the application for permanent allotment the petitioner has only disclosed the land temporarily allotted to him in Chak 47/62 in Chak 4 MLD. He has failed to disclose the land which was allotted to him in village Motasar. He has also not disclosed the land possessed by his father in village Motasar and 12-SAD . Thus, it requires no further evidence to show that these facts have been deliberately withheld from mention in the application filed for permanent allotment. From the reply filed on behalf of the State Govt. it transpires that a complaint was made by one Loonaram as regards allotment of temporary basis to the appellant and his father and the matter was enquired into by the Deputy Colonisation Commissioner, which is clear from the judgment of the Revenue Appellate Authority. Thus, it is a finding of fact recorded by the courts below that the petitioner has deliberately withheld the informations regarding holding of land by himself as also by his father, which cannot be interfered in this special appeal. The learned single Judge has also concurred with the conclusions arrived at by the courts below that it is a finding of fact that the appellant formes part of his fathers family. Rather, it has been admitted before the Revenue Appellate Authority as also before the allotting authority by the counsel for the petitioner-appellant that the petitioner is entitled to get 7 bighas and 14 biswas of land as his share in his fathers land. Meaning thereby, that it was not disputed before the courts below that the petitioner still forms part of his fathers family. The Revenue Appellate Authority after discussing the entire evidence has recorded it as a finding of fact that the petitioner forms part of his fathers joint Hindu Family. Thus, about this fact, a concurrent finding of fact has been recorded by the courts below, which cannot be gone into in this special appeal. (11) Mr. B.L. Purohit, the learned counsel appearing for the petitioner-appellant has drawn our attention to a decision of their lordships of the Supreme Court in Rukmanand vs. State of Bihar (1), wherein it has been held that the finding of the Revenue authorities based on pure assumptions and conjectures and on no evidence whatsoever should be quashed. In this case, a counter affidavit has been filed by respondent NO. In this case, a counter affidavit has been filed by respondent NO. 6 Shri Malamsingh the application for allotment of land on permanent basis filed by the petitioner has also been annexed with the affidavit which clearly shows that the land belonging to the petitioner situated in village Motasar as also by his father has not been shown in the application made for permanent allotment. It is an admitted case of the appellant that he has not disclosed this information in the application for permanent allotment. He however, contends that this information regarding the land held by him has been disclosed by him when he made an application for temporary allotment. It is not known why he has withheld that information when he made an application for permanent allotment. May be that he has gifted away that land to his grand son but even then he was required to disclosed that information specially when such a transfer could not be recognised as per r. 16 (2) of the Rules of 1975. When this has been admitted as a fact by the learned counsel appearing for the petitioner before the allotting authority as also before the first appellate authority i.e. Addl. Colonisation Commissioner that the petitioner is entitled, to 7 bighas and 14 biswas of irrigated land as a share in the property of his father. Thus, it cannot be said that the finding of the Revenue Appellate Authority that the petitioner happens to be a member of his fathers joint Hindu Family is a perverse finding. It further cannot be held that the finding of the courts below that the petitioner has deliberately withheld the material information regarding holding of land by him in village Motasar as also by his father in the application made for permanent allotment is based on no evidence. (12) On the basis of the decision of their lordships of the Supreme Court in A.R. Antulay V. R.S. Nayak (2) that nobody should suffer from the act of the Court, an argument was canvassed before us that although material information was in possession of the allotting authority but it overlooked it. We have already discussed above that this information was brought to the notice of the Deputy Colonisation Commissioner when he enquired the matter on a complaint filed by one Loonaram. We have already discussed above that this information was brought to the notice of the Deputy Colonisation Commissioner when he enquired the matter on a complaint filed by one Loonaram. However, this fact still remains true that this material information has not been furnished in the application for permanent allotment and no explanation has been furnished for suppression this material information in that application. Thus, it cannot be said that this is a case where the petitioner suffers on account of the act of the Court. If at all suffers, he suffers on account of his own faults. (13) Mr. Purohit has next drawn our attention to a decision of their lordships of the Supreme Court in Radha Nath vs. Haripada (3). That was a case where the first appellate Court has failed to consider the material evidence in the shape of documents and made good deal of assumptions as regards fact. This authority has no application whatsoever to the facts of the present case. (14) Mr. M.L. Shreemali, the learned counsel appearing for respondent No. 5 has argued that it is well settled that in a special appeal under s. 18 of the Rajasthan High Court Ordinance, 1949, when the learned single Judge has refused to issue a writ in exercise of his discretion then until and unless it is shown that that discretion has not been properly, reasonably or judiciously exercised or there are other strong reasons to justify the interference, it should not be interfered with. In this respect, he has placed reliance on a decision of this Court in Charansingh Vs. State of Raj. & Ors. (4). The learned single Judge, after considering the judgment of the courts below has come to a definite finding that the petitioner is a member of his fathers joint family and he has deliberately withheld the information regarding the land possessed by him as also in the application made by him for permanent allotment by his father. From the discussion made hereinabove, we are firmly of the view that there are no strong reasons, which justify interference with these findings, recorded by the learned single Judge. (15) Mr. Shreemali next placed reliance on a decision of this Court in Dr. R.N. Singh v. State of Raj. From the discussion made hereinabove, we are firmly of the view that there are no strong reasons, which justify interference with these findings, recorded by the learned single Judge. (15) Mr. Shreemali next placed reliance on a decision of this Court in Dr. R.N. Singh v. State of Raj. (5) wherein it has been held that this being a special appeal, this Court should not go into detailes of all the findings of the learned single Judge. In Hanuman & Others V. Hariram & Others (6), a Division Bench of this Court has held that the balanced and reasoned judgment of the learned single Judge calls for no interference. (16) B.L. Purohit, the learned counsel appearing for the petitioner-appellant has next contended that one legal aspect of the matter does arise in this case out of these admitted facts. According to him as per r. 5 of the Rules of 1975, a landless person is entitled to 25 bighas of land. It is true that a landless person is entitled to the maximum 25 bighas of land to be allotted to him. It is nowhere provided that in all cases, a landless person should be allotted 25 bighas of land. According to Mr. Purohit, it has come on record the petitioner possesses 25 bighas of uncommand land situated in village Motasar which equivalent to 12 1/2 bighas of irrigated land and further, he is entitled to 7 bighas and 14 biswas of irrigated land from his fathers property and thus, in all, he is in possession of 20 bighas and 4 biswas of land and he is still entitled to allotment of 4 bighas and 16 biswas of irrigated land. He has been refused allotment of 25 bighas of irrigated land on account of suppression of material facts. He can move afresh for allotment of additional 4 bighas and 16 biswas of land to the allotting authority by stating all relevant facts but this allotment , which has been refused to him for suppression of material information does not entitled him to any allotment in pursuance of this application for permanent allotment wherein material facts were suppressed. (17) Thus, taking an over all view of the matter, we are convicted that the learned single Judge was perfectly justified in dismissing the writ petition filed by the petitioner-appellant. (17) Thus, taking an over all view of the matter, we are convicted that the learned single Judge was perfectly justified in dismissing the writ petition filed by the petitioner-appellant. (18) In the result, we find no force in this appeal and it is hereby dismissed with no order as to costs.