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2002 DIGILAW 1811 (RAJ)

Gordhan v. State of Rajasthan

2002-11-08

B.B.MOHANTY, M.L.JAIN

body2002
MOHANTY, Member – This is a special appeal filed under Section 10 of the Rajasthan Land Revenue Act, 1956 against the order of the Board of Revenue dated 7.9.94 passed by the learned Member Shri U.P. Mathur in appeal No. 42/89/LR/Bikaner. (2). The brief facts of the case are that the allottee late Shri Rampratap S/o Shri Gopaldas Acharya applied for the allotment of the land in question under the provisions of the Rajasthan Colonisation (Allotment of Government Land to Post 1955 Temporary Cultivation Lease Holders and Other Landless Persons in RCP Area) Rules, 1971 on 27.3.74. The appellant Gordhan is the real brother of allottee Rampratap and there is a will of allottee Rampratap in favour of appellant No.2 Bajrang Lal who is the brothers son of the allottee. The appellant No.2 is also the adopted son of the allottee Rampratap. A report was called from the Tehsildar concerned vide order dated 24.3.75 and photo-form was sent to the concerned Tehsildar. In the photo-form, it was reported by the Colonisation Tehsildar that Rampratap had a depot in ward No. 18 and has 5.10 bighas of Barani land. The application was rejected on 25.4.75 holding that the allottee was a shopkeeper, but the application of the allottee was dismissed without affording any opportunity of hearing to him. (3). Therefore, aggrieved against the order of the allotting authority-A.C.C., Chhatargarh, an appeal was filed before the Additional Colonisation Commissioner, Bikaner. During the pendency of the appeal, the erstwhile Rules of 1971 were struck down by the Honble Supreme Court of India and new rules called Allotment Rules of 1975 which were framed by the Rajasthan Legislature and therefore, the case was remanded to the allotting authority to re-decide the case in the light of 1975 Rules. After the remand order, the petitioner filed certificate of the competent authority to the fact that he has no depot in his name, but on the contrary, he is an agriculturist by profession and consequently after detailed enquiry, the petitioner Rampratap was declared eligible for allotment of land in question vide order dated 24.3.77. The allotment was made on 12.4.79 and the possession of the land was also handed over to allottee Shri Rampratap. (4). Thereafter, stranger to the proceeding one Amar Chand on 28.6.88 made a complaint to the Colonisation Commissioner that allotee Rampratap was not a landless person nor a temporary lease-holder. The allotment was made on 12.4.79 and the possession of the land was also handed over to allottee Shri Rampratap. (4). Thereafter, stranger to the proceeding one Amar Chand on 28.6.88 made a complaint to the Colonisation Commissioner that allotee Rampratap was not a landless person nor a temporary lease-holder. He was a shopkeeper, previously his application was rejected on this ground by A.C.C. himself on 25.4.75, but this fact was ignored while allotting the land to Rampratap vide order dated 24.3.77. The Colonisation Commissioner conducted another enquiry and vide order dated 6.11.89, cancelled the allotment u/Sec. 22(3) of the Rajasthan Colonisation (IGNP) Rules, 1975; which has given rise to the present special appeal. (5). The learned counsel for the appellants argued that Rampratap was a T.C. holder and therefore his application for permanent allotment could not be cancelled. The allotment was cancelled by the Colonisation Commissioner on the ground that Rampratap was allotted 75 bighas of land on temporary cultivation lease for 10 years on 4.11.70 and khatedari rights were conferred on 10.8.80. The second ground for cancellation of allotment was that there is a joint land in the name of Nirmal kumar S/o Satyanarain, Balveer Singh S/o Shanker Lal, Abdul Gaffur S/o Abdul Rahman, Rampratap S/o Gokuldas, Vijay Kumar S/o Laxmi Swaroop and the share of Rampratap is equal to 8 bighas. The third ground was that 5.10 bighas of land is in the name of allottee and therefore he holds 88 bighas of land i.e. 75 bighas of T.C. land plus 8 bighas plus 5.10 bighas equals to 86 bighas and therefore he is not a landless person. The last ground for cancellation of land is that in the certificate issued by the competent authority it has been written that there is no depot in the name of the allottee, but it may be that the depot may be in the name of other person and he works there and therefore held that he has concealed the facts. (6). The appellants submitted that the first ground for cancellation of land is not the valid ground because land measuring 75 bighas was a T.C. land and no rights are created on temporary lease land in the definition of tenure tenant given in rule 2(16) which provides that tenure land shall mean land held under the khatedari rights or the land allotted on a permanent basis. Furthermore, it was submitted that khatedari rights were conferred on 10.8.80, whereas the petitioner applied for permanent allotment in the year 1974 and the permanent allotment was made to the appellant in the year 1979 and therefore, till the permanent allotment of land in question, he was having no tenure land in his khata and therefore, the Colonisation Commissioner erred seriously in cancelling the allotment on the ground that allottee has 75 bighas of khatedari land. The next ground for cancellation of allotment is that the 39.6 bighas of land is in the name of five persons and Rampratap had 8 bighas in his share. In this respect, it was submitted by the learned counsel for the appellants that the land situated in village Kishmidesar was purchased in the year 1988 and therefore there was no concealment of the time of making application for the permanent allotment. Further, the counsel for the appellants submitted that the fact that the allotment has been cancelled on the presumption that he is not a bonafide agriculturist. There are certificates of the competent authority to the fact that the allottee has no depot in his name, so the Colonisation Commissioner erred seriously in cancelling the allotment on the basis of presumption and therefore cannot be sustained. (7). The order of the Colonisation Commissioner was challenged before the Board of Revenue in appeal No. 42/89 which was dismissed by the learned Member on 7.9.94. The learned Member also dismissed the appeal on the ground that the appellant may not have depot in the year 1976 but he had in 1974. (8). On the other hand, the Govt. Advocate argued that the allotment made was rightly cancelled by the Colonisation Commissioner as the allottee late Shri Rampratap was not a bonafide agriculturist and a landless person. (9). On perusal of the record, it seems that there is no evidence available in the file in support of the fact that the allottee was having a depot in the year 1974. Moreover, the land allotted on temporary cultivation lease for 10 years to Rampratap cannot be considered at all for the definition of landless person given in rule 2(13) of the Rajasthan Colonisation (Allotment and Sale of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975. The temporary cultivation lease was made permanent in the year 1980 when the khatedari Sanad were issued to Rampratap. The temporary cultivation lease was made permanent in the year 1980 when the khatedari Sanad were issued to Rampratap. The land in question was allotted in the year 1977 on the application for permanent allotment which was filed in the year 1974 and therefore, the question of disclosing 75 bighas of T.C. land cannot be considered valid ground for cancellation by the Colonisation Commissioner. In the year 1977 when the land in question was allotted to the allottee late Shri Rampratap, he was only holding 75 bighas of land as T.C. holder for 10 years and no khatedari rights had accrued to him at that point of time; therefore, the impugned order of the Colonisation Commissioner deserves to be quashed and set aside. Furthermore, a piece of land was purchased in the year 1988 which cannot be taken into consideration as this land in question was purchased subsequent to the allotment and therefore, there is no question of disclosing the land which was not in existence of the time of making application for permanent allotment i.e. in the year 1974; and hence, the impugned order of the Colonisation Commissioner deserves to be quashed & set aside. Only tenure land can be taken into consideration for the purpose of deciding the eligibility of a person as a landless person. Tenure land has been defined in rule 2(xviii) which provides that tenure land, tenure khata, tenure tenant shall respectively mean that land held under khatedari rights or land allotted on a permanent basis, a khata comprising of such land and a person holding such land under any of the aforesaid rights. The definition of land has been given in Section 2(v) of the Colonisation Act, 1954 and T.C. land is not included in the list. (10). The Colonisation Commissioner if at all to proceed the cancellation of allotment, he must proceed u/Sec. 11/14 of the Colonisation Act, if there is a concealment of fact and not under rule 22(3) of the Allotment Rules of 1975. Under the provisions of rule 22(3) of the Allotment Rules, 1975, the allotment cannot be cancelled on the grounds of concealment. In the judicial pronouncement of Jas Raj Vs. Board of Revenue & others (1), the Honble Rajasthan High Court has held that non- disclosure of fact may not amount to misrepresentation and the cancellation of allotment after an unreasonable delay is not justified. In the judicial pronouncement of Jas Raj Vs. Board of Revenue & others (1), the Honble Rajasthan High Court has held that non- disclosure of fact may not amount to misrepresentation and the cancellation of allotment after an unreasonable delay is not justified. In the present case, there is no concealment and the cancellation has been made after considerable delay of 12 years. The apex court as well as the Honble Rajasthan High Court had held that old allotment should not be cancelled without giving reasonable opportunity. In the present case, already khatedari rights have been conferred and lot of improvements have been done by the allottee-khatedar as held in RRD 2001 page 184, 377, 441 & 497 (2); RBJ 2001 page 125, 353, 463 (3). The Colonisation Commissioner cannot exercise the power of cancellation after lapse of such a long time. The allotment is quite old and therefore it is very clear that the Colonisation Commissioner has exercised the powers under rule 22(3) of the Allotment Rules, 1975 after a delay of about 12 years and no explanation has been given for such a delay. Under these circumstances, it shall be the travesty of justice to dispossess a person from land in question which he is nourishing for about three decades (1993 RRD page 596) (4). (11). In view of the above discussions, the special appeal is allowed and the order of the Colonisation Commissioner, Bikaner dated 6.11.89 as well as that of the learned single Member of the Board of Revenue dated 7.9.94 are quashed & set aside, and that of the allotting authority dated 24.3.77 is upheld. Pronounced in open court.