JUDGMENT 1. - This petition is directed against the order of the Board of Revenue dated 23.2.1989 setting aside the order passed by the Additional Colonisation Commissioner, Bikaner dated 27.3.1985 and upholding the order passed by the Assistant Colonisation Commissioner, Gharsana dated 19.1.1979 (Annex.l), cancelling the allotment made in favour of the petitioner. 2. The brief facts giving rise to this petition are that the petitioner was allotted 20 bighas 10 biswas of land on permanent basis in the year 1974 and latter a small patch of 4 bighas 10 biswas was allotted on 9.7.1976. This land was allotted out of Khasra No. 108 which measured 50 bighas and had been allotted to the petitioner on temporary cultivation/lease in the year 1960 under the Rajasthan Colonisation (Temporary Cultivation Leases) Conditions, 1955 and this lease continued to be renewed from time to time till 1967, where-after the petitioner had applied for permanent allotment under the Rajasthan Colonisation Post-55 Rules and it was out of this land that the land in question was finally allotted to him on 24.8.1974 on permanent basis and khatedari rights were also conferred. 3. The allotment made in favour of the petitioner was cancelled on 19.1.1979 vide the order passed by the Assistant Colonisation Commissioner Annex.l on record and appeal taken to the Additional Colonisation Commissioner-cum-Revenue Appellate Authority was allowed vide the order dated 27.3.1985 Annex.2 and the order Annex.l was set aside. It was against this order of the Additional Colonisation Commissioner that the State filed a revision petition before the Board of Revenue and vide order dated 23.2.1989 passed by the Board of Revenue Annex.3 on record the order Annex.2 was set aside and the order passed by the Allotting Authority dated 19.1.1979 was upheld. 4. A review petition was also filed against the order of the Board of Revenue which also was dismissed in limine vide order dated 21.7.1989 (Annex.4). 5. The allotment of the petitioner was cancelled on the ground that the petitioner was in the service of the Government and was not entitled/eligible to seek the allotment and further that he obtained this allotment by fraud and concealment. Since this fact was not disclosed by him at the time of allotment therefore, both the allotment orders were cancelled. 5. The allotment of the petitioner was cancelled on the ground that the petitioner was in the service of the Government and was not entitled/eligible to seek the allotment and further that he obtained this allotment by fraud and concealment. Since this fact was not disclosed by him at the time of allotment therefore, both the allotment orders were cancelled. The learned Member of the Board further took notice of the provisions of Section 101(3) of the Rajasthan Land Revenue Act, 1956 which provides that no land could be allotted to the Government employee without the sanction of the Government or the Collector in the case of non-gazetted employee and further that in the year 1982, Section 2(xiii) was amended to provide that the Government employee shall not be treated as 'landless person' thereby the land could not be allotted under the Allotment Rules of 1975. It may, however, be relevant to state here that the desired sanction was given by the Collector in the present case though after a considerable period i.e. in the year 1985 and it was further stated in the order that on the date of allotment the requisite sanction had not been granted. In short, the learned Board cancelled the allotment on the aforesaid grounds. 6. Learned counsel appearing for the petitioner has vehemently argued that the petitioner and his family depended on agriculture and at the time when the temporary allotment had been made i.e. in the year 1960 the petitioner was not a Government employee as he joined the services in the year 1971, that too as a temporary employee. It is further not disputed that initially the land measuring 50 bighas had been allotted to him and it was out of that land that the present allotment was permanently made in the year 1974 and then a small patch was also added to it in the year 1976. It was further stressed that the petitioner could not be treated as a 'landless person', since he already held the land as temporary cultivation lease holder prior to his joining the Government service and, thus, he has to be accepted and treated as an agriculturist. It was further submitted that the requisite sanction from the Collector had been obtained and has been taken notice of by the authorities while examining the case in question. It was further submitted that the requisite sanction from the Collector had been obtained and has been taken notice of by the authorities while examining the case in question. It is further stated that the amendment in the definition of 'landless person' was carried out on 28.12.1992 and the same would be deemed to be operative prospectively and not retrospectively. There was no such law at the time when the allotment was made. It is further argued that the land had been allotted after full enquiry and having found the petitioner eligible for allotment on the strength of his temporary allotment earlier which continued to be held by him having been renewed from time to time and nothing has been placed on record to show that the same was not cultivated by him or his family members. 7. We have also perused the judgment passed by the Additional Colonisation Commissioner Annex. 2 and therein the learned Revenue Appellate Authority appears to have gone into the matter minutely and carefully scrutinised the documents and recorded a finding to the effect that since the rules were amended in the year 1982 bringing in fold in its definition a 'Government employee' and the 'Government employee' was taken out of the fold of the 'landless person', but the amendment carried out in the year 1982 would not affect the allotment having been made in the year 1974 and, therefore, this amendment has no effect on the rights of the petitioner. It was further held that the petitioner was occupying the land in question since 1958 when it was allotted to him he was an agriculturist. It was further held that upto the year 1971 the petitioner remained as an agriculturist and had not joined the Government job. Even in the year 1971 he was employed temporarily. It is not disputed that under the rules governing the allotment earlier a Government servant was not precluded from allotment. 8. The matter can be examined from another angle also. In case the petitioner was holding the land for more than 10 years before his actually joining the services and, therefore, this land has remained with the family members who have been cultivating the same, it could not be a ground for the authorities to non-suit the petitioner saying that he himself was not cultivating the land personally being in service. 9. 9. Our attention has further been invited to the provisions contained in Section 2(xiii) which describes the 'landless person'. The same is reproduced hereunder:- "2(xiii)-Landless Persons means a person who,- (i) is a resident of Rajasthan, and (ii) has been by profession a bonafide agriculturist or a bonafide agricultural labourer, having agriculture as a primary source of his income and who either docs not hold any land anywhere in India or holds land less than 25 bighas, but it does not include temporary cultivation Land 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. Provided further that the following categories of persons shall not be deemed to be landless person, 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 a landless person." 10. Rule 5 of the Rules of 1975 has also been brought to our notice which reads as under:- "R.5. Rule 5 of the Rules of 1975 has also been brought to our notice which reads as under:- "R.5. Eligibility and Extent of Allotment.-(1) The following person shall be eligible for allotment of Government land for agricultural purposes under these rules, namely:- (1) X X X (ii) Landless persons, and (iii) XXX (iv) XXX (2) Each such person may be allotted Government land upto 25 bighas (6.32 hectares) : Provided that if such person holds any land anywhere in India, he will be allotted only so much Government land as together with his existing holding does not exceed 25 bighas : Provided further that if such person is eligible for allotment of small patch, such small patch shall be allotted to him only if it is available adjacent to his existing holding." 11. Lastly, learned counsel appearing for the petitioner has brought to our notice a judgment of the Supreme Court reported in Brij Lal v. Board of Revenue & ors., (1993 R.R.D. 596) wherein their Lordships of the Supreme Court had an occasion to deal with the Rajasthan Colonisation (Allotment and Sale of Govt. Land in Rajasthan Canal Colony Area) Rules, 1975 and held that where a person who was holding temporary allotment, could not be refused permanent allotment on the ground that he was a minor and had given a false declaration at the time of temporary allotment of land. It was further held that temporary cultivation lease holder could not be denied permanent allotment under the rules. Their Lordships Were dealing with the case of a minor. Applying the ratio of this judgment to the facts of the present case, the allotment made in favour of the petitioner could not be cancelled and it would amount to injustice to up-root him from the land which he had held for over 34 years now. The petitioner being a 'landless person' under the rules having been granted a temporary cultivation lease hold rights and as such being eligible for entitlement to permanent allotment of land on priority basis under the rules having been rightly allotted the said land, could not be said to have made any misstatement or concealment as projected by the learned Board and by the allotting authority while cancelling the allotment. 12. Learned counsel appearing for the State has reiterated the twin grounds adopted by the learned Board. 13. 12. Learned counsel appearing for the State has reiterated the twin grounds adopted by the learned Board. 13. We have already considered that aspect hereinabove and find no force in the contention to non-suit the petitioner. 14. The petition is consequently allowed, the order of the Board of Revenue dated 23.2.1989 (Annex.3) as well as that of Assistant Colonisation Commissioner dated 19.1.1979 (Annex.l) cancelling the allotment made in favour of the petitioner are hereby quashed and the order passed by the Additional Colonisation Commissioner-cum-Revenue Appellate Authority, Bikaner dated 27.3.1985 (Annex.2) is upheld. 15. No orders as to costs.Petition Allowed. *******