Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2265 (RAJ)

Ranjeet v. Board of Revenue

2005-08-26

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-An agricultural land measuring 16 bighas and 5 biswas in Khasra No. 113 of village Gorkhana was allotted to the petitioner on 112.1975. A complaint was made that the petitioner was not a landless person and was minor at the time of allotment. Thereupon, the Additional Collector, Sri Gangangar by his order dated 03.05.1979 cancelled the allotment and remanded the matter to the Sub-Divisional Officer, Nohar to make an enquiry after hearing both the parties. After enquiry, the Sub-Divisional Officer, Nohar proceeded to hold that the land in question was not in possession of the petitioner before allotment and that at the time of allotment, he was minor and was not entitled to allotment and, therefore, the said land was declared as Government land by the order dated 21.05.1984 (Annexure-1). An appeal taken by the petitioner to the Revenue Appellate Authority also remained unsuccessful and was dismissed on 15.03.1990 (Annexure-2). A further appeal taken to the Revenue Board being Appeal No. LR/25/90/Ganganager was also dismissed by the learned Member of the Board on 24.07.1995 (Annexure-3). The petitioner-Ranjeet stating his age to be 39 years has submitted this writ petition on 010.1995 against the orders Annexure-1, 2, and 3 with further paryaers that his application may be directed to be decided by the SDO, Nohar and the respondents may be directed not to dispossesses him from the land in dispute. 2. The allotment of 16 bighas and 5 biswas of land in Khasra No. 113 of Village Gorkhana on 112.1975 to the petitioner was initially complained against on the ground that he was minor at the time of allotment and, therefore, the allotment could not have been made. According to the petitioner, when the Additional Collector passed the order dated 03.05.1979 on the complaint and cancelled the allotment made on 112.1975 and remanded the case back for enquiry and fresh decision to the SDO, Nohar, then he was required to have considered the matter for allotment afresh and on the later date of consideration, the petitioner had admittedly attained majority and the allotment ought to have been made to him. The petitioner has further taken the ground that according to Rule 20, even a trespasser was not to be dispossessed and the land is provided to be regularised in his name if he is otherwise entitled for the land and the status of the petitioner cannot be said to be worst than a trespasser. It has also been contended in the writ petition that there was no proof available with the SDO, Nohar to arrive at the conclusion that the petitioner was minor at the time of allotment and further that the learned Member of the Board has acted wholly illegally in replying upon a fact of petitioners grand father holding 200 bighas of land without any reason or basis thereof and without the same being subject matter of enquiry. It has also been contended that petitioner is in possession of the land right from the date of allotment and he was cultivating the same. 3. When this writ petition was taken up for motion hearing, it was urged on behalf of the petitioner that no statement was ever made by his father regarding any land held by his grand father and the Board of Revenue wrongly made observations about 200 bighas of land. On these contentions, notice of motion was issued and the status quo regarding possession was ordered to be maintained. However, thereafter, respondents having failed to submit reply in time, the petition was admitted and interim order was confirmed to last till the decision of this writ petition. 4. Arguing the matter on behalf of the petitioner, learned Counsel after looking into the basis of the findings by the authorities below regarding the fact that the petitioner was minor at the time of allotment, frankly conceded that so far the finding of fact that the petitioner was minor at the time of allotment dated 112.1975, the same could not be validly assailed in this writ petition. However, the thrust of the submission of learned Counsel for the petitioner was that the learned Member of the Board has acted illegally in taking into consideration the fact regarding 200 bighas of land with grand father of the petitioner without the same being subject matter of enquiry and in relying upon a statement of petitioners father which was never put to the petitioner and was not recorded in this enquiry. Learned Counsel further vehemently contented that leaving aside all other aspects of the matter, it is but apparent that right from the year 1975, the petitioner is in possession of the land in question and has cultivated and nourished the land and applying the principles emanating from Brij Lal vs. Board of Revenue & Ors., AIR 1994 SC 1128 , and Tej Singh vs. State of Rajasthan & Ors., 1994 (4) SCC 575, the cancellation of allotment deserves not to be maintained after this length of time and the petitioner deserves to be permitted to hold and cultivate the land. Learned Counsel has also referred to the decisions of this Court in Gopi Ram vs. State of Rajasthan & Ors., 1998 (1) WLC (Raj) 363; Naga Ram & Anr. vs. State of Rajasthan & Ors., 2001 (2) RLW 804; and Amar Singh vs. State of Rajasthan, 1997 WLR 342 (Raj) and contended that consistently, this Court has maintained the position following the principles in Brij Lals case that after a long lapse of time, it would not be serving the cause of justice to cancel or maintain the cancellation of allotment. 5. The learned Additional Government Advocate has opposed these contentions and submitted that when admittedly the petitioner was minor at the time of allotment and thereby he was not entitled, the allotment was obtained by fraud or misrepresentation and its cancellation deserves to be maintained. 6. Having given a thoughtful consideration to the rival submissions and having scanned through the entire record, this Court is satisfied that the present writ petition is totally groundless and deserves to be dismissed. 7. The allotment in question was made to the petitioner on 112.1975 and the overwhelming evidence on record shows it clearly that the later attempt on the part of the petitioner and his father to assert his age to be 27 years in the statement dated 30.08.1983 and thereby suggesting that his birth year was approximately 1956 was not correct. Such assertion stood contradicted by the statement made by the father of the petitioner on 05.01.1983 in the revenue drive in the public hearing wherein he stated the age of the petitioner to be 23 years. The Panchayat certificate stated his age to be 20 years in the year 1980 which also takes him to about 15 years of age in the year 1975. The Panchayat certificate stated his age to be 20 years in the year 1980 which also takes him to about 15 years of age in the year 1975. The father of the petitioner alleged the petitioner to have studied in school but no certificate from the school was obtained. In these circumstances, the SDO, Nohar while passing the order dated 21.05.1984 (Annexure-1) did not countenance the submissions of the petitioner and holding him to be minor, maintained the cancellation of allotment. Before the Revenue Appellate Authority, it was candidly admitted by the Counsel for the petitioner that the petitioner was 15 years of age at the time of allotment in the year 1975 but the contention was raised to the effect that when the matter was remanded back, then his age ought to have been considered at the time of passing of fresh order after remand. Such contention was not accepted, and rightly so, by the Revenue Appellate Authority for the reason that it was the initial allotment which was under enquiry and his eligibility at the time of initial allotment was to be seen and, therefore, the order passed by the SDO, Nohar was maintained. In view of the available evidence on record and specific concession made before the Revenue Appellate Authority, this Court finds that learned Counsel for the petitioner has rightly not persisted with this ground and further finds that this particular fact that the petitioner was minor in the year 1975 at the time of allotment could not be put to dispute. 8. Before the Board of Revenue, a contention in the alternative was made on behalf of the petitioner that even if he was minor at the time of allotment, the same could not have been cancelled because there was no prohibition under the Rules for allotment to a minor. Such a contention has rightly been rejected by the learned Member of the Board with reference to the provisions of Rule 12 which specifically prohibit allotment of land to the minor except in one eventuality with reference to Rule 11 and it is not the case of the petitioner that his case was covered under the exception contemplated by Rule 12. It is true that the Board of Revenue has also proceeded to refer to the fact emerging from the statement of father of the petitioner that there was about 200 bighas of land with the grand father of the petitioner although this particular fact was not earlier made the basis of cancellation of allotment or of the order dated 21.05.1984 (Annexure-1). This Court finds that even without reference to this particular fact, of the holdings of the grand father of the petitioner as stated by the petitioners father, the position remains the same inasmuch as the fundamental ground of cancellation of allotment has been misrepresentation about his age. 9. The fundamental fact remains that at the time when allotment was made to the petitioner, he was a minor and no allotment could have been made to the petitioner and, therefore, there appears to be no error or illegality in the orders Annexure-1, 2 and 3. In view of the aforesaid undeniable position, learned Counsel for the petitioner put much emphasis on the principles of Brijlals case (Supra) and relying heavily thereupon, vehemently contended that the petitioner is in possession of the land for the last about 30 years and has developed the same and he should not be deprived of the land at this juncture. However, this Court is of opinion that in the fact situation of present case, such contention cannot be accepted. 10. It is apparent on the face of record that the allotment could not have been made to the petitioner as he was minor at the time the allotment was obtained on 112.1975. Obviously, the allotment was obtained by him by clear misrepresentation about the particulars of his age and the allotment was granted to him on the basis of such misrepresentation only. Such misrepresentation has continued even while making statements before the SDO, Nohar on 30.08.1983 and although the fact was rightly conceded before the Revenue Appellate Authority, yet it was again taken up before the Board of Revenue and in the same fashion, it was suggested before this Court in the petition and his age was stated to be 39 years as on 010.1995 (date of filing of petition) again suggesting as if he was born in the year 1956 and was about 19 years of age in the year 1975. It is clear that the petitioner has regularly attempted to make misstatement of fact about his correct date of birth and age. This Court is clearly of opinion that the present one remains specifically a case where the allotment has been obtained on the basis of misrepresentation and the action taken for cancellation of such allotment cannot be faulted with, nor deserves any interference in this writ petition. 11. The main plank of the submissions of the learned Counsel for the petitioner has been on the basis of decision of the Honble Supreme Court in Brij Lals case (Supra). It shall, therefore, be useful to consider in detail the facts involved in the case of Brij Lal and its ratio decidendi. Brij Lal was allotted the land in the year 1970 on temporary basis and in the year 1974, he applied for permanent allotment of said land but his application was rejected on the ground that from the photo affixed on the application form, it appeared that he was a minor. His appeal was dismissed but the Board of Revenue in revision remanded the case back for fresh enquiry and decision in accordance with the Rules of 1975 which had been enforced in the meantime. On remand, the Assistant Colonisation Commissioner rejected his application on 19.01.1976 on the ground that he was a minor at the time of temporary allotment. The appellant had produced a date of birth certificate from the school, according to which, his date of birth was 18.03.1952 and he also filed a certificate from the doctor showing that on the date of temporary allotment, he had attained majority. These pieces of evidence were rejected. The appeal was also dismissed by the Additional Colonisation Commissioner on the ground that even if his date of birth was taken to be 18.03.1952 as the temporary allotment was made in the year 1969, he was minor on that date. The revision was also rejected by the Board of Revenue and the writ petition was also dismissed by this Court and hence Brij Lal was in appeal before the Hon;ble Supreme Court which had stayed dispossession of the appellant while granting leave to appeal. 12. The revision was also rejected by the Board of Revenue and the writ petition was also dismissed by this Court and hence Brij Lal was in appeal before the Hon;ble Supreme Court which had stayed dispossession of the appellant while granting leave to appeal. 12. In the backdrop of the aforesaid facts, the Honble Supreme Court considered that earlier the Board of Revenue had remanded the case for consideration afresh in accordance with the Rules and that the appellant was indisputably a landless person and was a temporary cultivation lease holder and as such he was eligible and entitled to permanent allotment on priority basis under the Rules. As noticed above, the claim for permanent allotment was sought to be rejected by the authorities below only on the ground that he was a minor at the time of temporary allotment. In those circumstances, the Honble Supreme Court found that if he had obtained temporary allotment by giving false declaration, then such temporary allotment should have been cancelled but it was not. The Honble Supreme Court observed,- “.....If the appellant had procured temporary allotment by giving false declaration regarding age then proceedings for cancellating 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.” 13. The Honble Supreme Court found the authority under the Rules and so also this Court to have been in error in rejecting the claim of the appellant for permanent allotment. Dealing with the evidence on record, the Honble Supreme Court found that there was no justification for the authorities to reject the school certificate and the medical certificate and then it was held,- “....There was not even an iota of evidence on the record to show that the appellant was minor on the date of temporary allotment” 14. The Honble Supreme Court further found that the onus was on the authorities to show that the appellant has made misrepresentation regarding his age. The Honble Court held,-“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. The Honble Court held,-“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 temporary allotment.” 15. Therefore, it is apparent that in Brij Lals case, the Honble Supreme Court specifically held that the onus to show the applicant to be minor at the time of allotment was on the authorities and that there was not even an iota of evidence on record to show his being minor and that there was no justification to reject the relevant evidence produced by the appellant. The Honble Court, therefore, clearly found that even imputations of the temporary allotment having been obtained by misrepresentation were fundamentally baseless and in that context, it was also observed that now the permanent allotment could not be denied when the temporary allotment was never cancelled. In the same context, the observations were made by the Honble Supreme Court in Para 5 of the decision in Brij Lals case that the appellant was in cultivatory possession of the land since the year 1970 and it would be travesty of justice to dispossess him from the land which he is nourishing for over a period of two decades. The submissions of the learned Counsel for the petitioner based on the said observations of the Honble Supreme Court but detached from their context cannot be countenanced. When the very fundamentals of the imputed misrepresentations were specifically held to be non-existence, the very bottom of the action of the authorities in seeking to question the temporary allotment was knocked out and when otherwise a temporary cultivation lease holder was to have a priority in permanent allotment denial of the same by the authorities on the basis of a non-existent ground and thereby attempting to deprive the person of land which he developed for two decades was leading to travesty of justice. It may be noticed that so far Amar Singhs case (Supra) is concerned, it appears that in the said case also, an application for permanent allotment of the land was sought to be rejected only on the ground that the petitioner was minor at the time of allotment of temporary lease and, therefore, following Brij Lals case, the Division Bench of this Court held that the allotment could not have been rejected on such grounds. 16. In Tej Singhs case (Supra), it was found that on the date of making application i.e. 111.1968, the applicant was Gram Sewak, a public servant and he could not be said to be a bona fide agriculturist. The Honble Supreme Court, therefore, found it to be suppression of material fact and, therefore, cancellation was held to be valid. However, thereafter, the Honble Supreme Court considered as to whether that was a fit case to interfere under Article 136 of the Constitution of India and it was considered that though the appellant was temporary Gram Sewak in the year 1968 admittedly he resigned in the year 1973 and took up his avocation as an agriculturist and for more than 20 years, he was personally cultivating the land and developed it from the loans obtained for the purpose. The Honble Supreme Court observed that in view of the special facts of that case, although the cancellation order was held to be valid, the same was set aside and the earlier order passed by the Honble Court not to dispossess the petitioner from the land was made absolute. 17. In Naga Rams case (Surpa), the Division Bench of this Court found that all the authorities below had over looked the oral evidence about the date of birth of the petitioners and it was not the case of anyone that horoscopes produced were concocted or forged and when there was a specific evidence in the form of horoscope, then the balance should have been tilted in favour of the appellants. This Court applied the principles of Brij Lal particularly with the observations that it would be travesty of justice to dispossess them after 25 years only on the ground that when the lands were allotted to them, they were minors and that, when that question itself was in doubt, then the benefit should have been given to the allottees. 18. This Court applied the principles of Brij Lal particularly with the observations that it would be travesty of justice to dispossess them after 25 years only on the ground that when the lands were allotted to them, they were minors and that, when that question itself was in doubt, then the benefit should have been given to the allottees. 18. Similarly, in the case of Gopi Ram (Supra) the imputed misrepresentation itself was of the petitioner not disclosing his being a Government servant at the time of allotment on 30.07.1974 whereas specific amendment was made in the rules in the year 1983 only excluding Government servants from the category of applicants and, therefore, the factum of misrepresentation itself was in doubt. It was also considered that the respondents took unreasonably long period to cancel the allotment in favour of the petitioner where for an allotment made on 30.07.1974, the petitioner was served with a show cause notice on 19.02.1979 and then a notice was served for cancellation of the allotment on 04.06.1980 which was replied by the petitioner and thereafter, the allotment was ultimately ordered to be cancelled by the order dated 22.05.1982. 19. Having considered the decisions sought to be relied upon by the learned Counsel for the petitioner closely, this Court is clearly of opinion that on the basis of principles emanating therefrom, the petitioner in the present case cannot be permitted to continue with the allotment nor the cancellation deserves to be interfered with. 19. Having considered the decisions sought to be relied upon by the learned Counsel for the petitioner closely, this Court is clearly of opinion that on the basis of principles emanating therefrom, the petitioner in the present case cannot be permitted to continue with the allotment nor the cancellation deserves to be interfered with. The present one is neither a case having facts akin to Brij Lals case where there was no evidence of the applicant being minor at the time of allotment and temporary lease was allowed to be continued; nor the case of the petitioner has any similarity with Naga Rams case where again the benefit of doubt was extended in favour of the allottee with the finding that the balance of evidence about the age should have tilted in his favour; nor the petitioners case is comparable with Gopi Rams case where the imputed misrepresentation of not disclosing Government service was itself in doubt for want of any such requirement in the rules at the time of allotment and then there was long delay in taking up cancellation of the allotment; nor the petitioner is benefited by the special facts considered by the Honble Supreme Court in Tej Singhs case of the Gram Sewak although making misrepresentation in the year 1968 but having resigned in the year 1973, having taken up his avocation as agriculturist and personally cultivating the land and developing it from the loans obtained for this purpose. 20. Squarely contrary to the fact situation of the decisions aforesaid, the present one remains a case of undeniable fact that the petitioner was minor at the time of allotment. There is no doubt about the factum of misrepresentation nor it is a case of want of evidence nor there is any evidence which could tilte the balance in favour of the petitioner. The petitioner has not shown any additional fact or factor which could be considered even for the purpose of special equity except making a cursory statement in the grounds of the writ petition that he was in possession of the land right from the allotment and was cultivating the same and further that he became entitled for allotment according to Rule 20 of the Rules. On these considerations, this Court is clearly of opinion no special equity could be extended for the petitioner in the face of fact that allotment was obtained by misrepresentation. On these considerations, this Court is clearly of opinion no special equity could be extended for the petitioner in the face of fact that allotment was obtained by misrepresentation. 21. So far as continuous possession in the present case is concerned, the allotment was made on 112.1975 and it seems that the complaint was made whereupon the Additional Collector ordered cancellation of allotment by the order dated 03.07.1979 and remanded the matter back for enquiry fresh. Therefore, no such abnormally long time was taken by the authority to pass the order on the complaint and to cancel the allotment. Thereafter, the proceedings have continued from one stage to another for enquiry, first appeal and second appeal where consecutively the petitioner has lost and it is apparent that he has continued in possession only under the interim orders of the authorities and lastly under the orders of this Court in this writ petition. 22. The special equity sought to be suggested by the petitioner with reference to principle of Brij Lal’s case and the other decisions based on the same principle is non-existent so far the case of the petitioner is concerned where the initial allotment was obtained by misrepresentation. It cannot be ignored that by obtaining such allotment by way of misrepresentation, the petitioner has deprived a bona fide landless agriculturist who otherwise would have been allotted the land. This Court is of considered opinion that special equity deserves not to be extended in favour of the present petitioner and in that context of equity, the said statement of the father of the petitioner and otherwise, the grand father of the petitioner was holding 200 bighas of land also operates against the petitioner. 23. Having regard to overall facts and circumstances of the case, this Court is satisfied that there is no special equity available for the petitioner so as to countenance his continuing in possession of the land in question and on the contrary, special equity deserves to be specifically disallowed to the petitioner who has already utilised the land in question, at the expense of other bona fide landless persons for nearly thirty years largely spent in this litigation only. 24. As a result of the aforesaid, the writ petition fails and is dismissed, however, with no order as to costs.