JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition, the petitioner has prayed for the following reliefs:- “1. To quash the order dated 22.9.87 passed by respondent No.2 regarding cancellation of the grant of land comprising Khasra Nos. 264/12 and 279/24/3, measuring 5-1 Bighas, situate in Mauja Rampur Majri, Hadbast No.156, Tehsil Paonta Sahib, District Sirmaur, HP having been passed illegally and in violation of the principles of natural justice as also the Constitutional provision enshrined in Article 300-A. 2. To send for the records of the case. 3. To award the costs of the petition in favour of the petitioner. 4. Any other relief to which the petitioner may be found entitled in the facts and circumstances of the case.” 2. The case of the petitioner is that he being landless person belonging to Scheduled Caste category was sanctioned Patta, Annexure P-1, of land comprising khasra Nos. 264/12 and 279/24/3 measuring 5-1 bighas, situate in Lohagarh estate, Mauja Rampur- Majari, Tehsil Paonta Sahib, District Sirmaur, HP under the Surplus Area Scheme, 1974 subject to deposit of token money amounting to Rs. 242.25/- and further subject to the terms and conditions as were contained in the Scheme. As per the petitioner, he deposited the requisite amount of Rs.242.25/- for the grant of Patta, vide receipt dated 29.9.1975 Annexure P-2. Further as per the petitioner, pursuant to the grant of said Patta, mutation of the land stood sanctioned in the year 1975, on the basis of which, he became owner of the land in issue, though possession of the same was not delivered to him by Halqua Patwari, as physical possession of the land was with someone else. 3. On 22.9.1987, the allotment of the Patta in favour of the petitioner was cancelled on the ground that as on the date of allotment of land, petitioner was in government job, therefore, he was not entitled for allotment of land under the Himachal Pradesh Utilisation of Surplus Area Scheme, 1974. 4. According to the petitioner, he was appointed as ‘Work- Mistry’ on temporary basis on 31.12.1973 in Giri Project Division No.1, Himachal Pradesh State Electricity Board, Girinagar and he was appointed on the said post on regular basis w.e.f. 3.10.1980. 4. According to the petitioner, he was appointed as ‘Work- Mistry’ on temporary basis on 31.12.1973 in Giri Project Division No.1, Himachal Pradesh State Electricity Board, Girinagar and he was appointed on the said post on regular basis w.e.f. 3.10.1980. Even otherwise, in the Scheme under which land stood allotted to him, there was no such stipulation that a person who was in government job was not entitled to the surplus land. It was further the case of the petitioner that pursuant to the payment of the token money, he stood recorded as absolute owner of the land and before passing the impugned order, neither any notice was issued to him nor was he heard in the matter and thus he was condemned unheard. In this background, he filed this petition praying for the reliefs, enumerated above. 5. In the reply so filed to the writ petition, the respondent- State inter alia justified its act on the ground that the land in issue was wrongly allotted to the petitioner. According to the State, before the vestment of the said land in Government under the Himachal Pradesh Ceiling on Land Holdings Act, 1972, the same was under possession of one Chuhara son of Sh. Sahab Ditta, who was recorded as ‘Gairmaurusi Lagan Mashkuk’ in the revenue records and he had purchased the said land from Smt. Rani Kalindra Devi. Further according to the State, father of the petitioner was alive at the time of allotment of the land and the petitioner was a regular government employee in Bhawa Project when the land was allotted to him. It is also mentioned in the reply of the State that as per paragraph 2(c) of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, the definition of the landless person excluded person like the petitioner from the same and therefore, there was no illegality in the act of the respondent-State, which stood challenged by way of writ petition. 6. 6. The averments made in preliminary objections of the reply, so filed by the respondent-State are being reproduced hereinbelow:- “That the present petition is bad due to delay and latches and is not maintainable because after having examined the report dated 4.2.1985 of Collector, Paonta Sahib regarding cancellation of Patta No. 783 of the land comprised in Khasra No. 405/279/24 and 264/12 measuring 5-1-0 bighas situated at mauza Rampur Majari issued to the petitioner as a landless person by the Collector, Paonta Sahib in the year 1975, the case was tried and heard by associating the petitioner in the said hearing by the Deputy Commissioner, Sirmaur and same was rightly decided on 20.5.1985 whereby Patta of the aforementioned land was cancelled because the land in question had wrongly been allotted to the petitioner and therefore the said land has rightly been reverted to the Govt. vide mutation No. 608 dated 19.8.1989. It is submitted that prior to the vestment of the above mentioned land in Govt. under the H.P. Ceiling on Land Holdings Act, 1972, it was in possession of Sh. Chuhara S/o Sh. Sahab Ditta who was recorded as “GAIRMAURUSI LAGAN MASHKUK” in the revenue record and he had purchased the said land from Smt. Rani Kalindra Devi. Moreover, father of the petitioner was alive at the time of allotment of said land to the petitioner and the petitioner himself was a regular Govt. employee in Bhawa Project while the land in question was allotted to him. As per paragraph-2 (c) of H.P. Village Common Lands Vesting and Utilization Act, 1974, the definition of landless person is as under:- “Landless person means a person who, holding no land for agricultural purposes, whether as an owner or a tenant, earns his livelihood principally by manual labour on land and intends to take the profession of agriculture and is capable of cultivating the land personally; provided that a person whose father is alive or whose annual income from all sources exceeds Rs. 3000/- shall not be deemed to be a landless person”. Therefore, it was proved on record that patta No.783 was wrongly issued to the petitioner as neither he was eligible to get such land allotted in his favour nor the land in question could have been allotted to him as the said land was purchased by Shri Chuhara prior to its vestment in Govt. Therefore, it was proved on record that patta No.783 was wrongly issued to the petitioner as neither he was eligible to get such land allotted in his favour nor the land in question could have been allotted to him as the said land was purchased by Shri Chuhara prior to its vestment in Govt. under H.P. Ceiling on Land Holdings Act, 1972 and possession of Shri Chuhara was recorded as “GAIRMAURUSI LAGAN MASHKUK” in the revenue record. Thus the claim of the petitioner is baseless and is not tenable in the eyes of law. Hence the petition deserves to be dismissed in the interest of justice.” 7. I have heard learned counsel for the petitioner as also learned Additional Advocate General for the respondent-State. 8. Factum of the grant of Patta to the petitioner under the provisions of the Himachal Pradesh Utilization of Surplus Area Scheme, 1974 is not in dispute. The factum of the petitioner having paid the amount as was determined by the State for allotment of the said land is also not in dispute. Annexure P-3 appended with the petition demonstrates that petitioner was not regularly engaged as Work-Mistry in Giri Project Division No.1, HPSEB, Girinagar when the Patta was so allotted to him, because as per this Annexure P-3, the services of the petitioner as such were regularized only w.e.f. 3.10.1980, though he was serving as such w.e.f. 31.12.1973. 9. Be that as it may, a perusal of the impugned order demonstrates that the Patta granted to the petitioner was cancelled, inter alia, on the ground that the land was in possession of one Chuhara and further that the petitioner was in government job and was not included in the definition of landless person. Further Annexure P-7 appended with the petition, which is a communication addressed to the petitioner by Deputy Commissioner, Sirmaur demonstrates that the Patta which was allotted by the government was cancelled in the year 1985 on the ground that the petitioner was in government job and thus he was not entitled for the same in his capacity of a government servant. 10. 10. At the cost of repetition, I reiterate that in the preliminary objections so filed to the petition by the respondent-State, the cancellation of Patta has been justified by the State by relying upon the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 by relying upon the definition of landless person in that Act. As already discussed above, in the present case, grant of Patta was made in favour of the petitioner under the provisions of the Himachal Pradesh Utilization of Surplus Area Scheme, 1974, the Patta was not allotted under the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. In fact a perusal of the Himachal Pradesh Utilization of Surplus Area Scheme, 1974 demonstrates that this scheme nowhere refers to the provisions of Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. In the definition clause of the Scheme, the ‘Act’ means the Himachal Pradesh Ceiling on Land Holdings Act, 1972 and ‘Allottee’ means a person who is allotted or is deemed to have been allotted land under this Scheme. Clause 2 of the definitions of the Scheme defines ‘eligible person’ to be a person, who is eligible for allotment of surplus land under Section 15 of the Act i.e. the Himachal Pradesh Ceiling on Land Holding Act, 1972. For ready reference Section 15 of the Himachal Pradesh Ceiling on Land Holding Act, 1972 is quoted hereinbelow:- “Disposal of surplus area-(1) the surplus area which has vested in the State Government under Section 11 shall be at the disposal of the State Government. For ready reference Section 15 of the Himachal Pradesh Ceiling on Land Holding Act, 1972 is quoted hereinbelow:- “Disposal of surplus area-(1) the surplus area which has vested in the State Government under Section 11 shall be at the disposal of the State Government. (2) The State Government may, by notification in the Official Gazettee, frame a scheme for utilising the surplus area vested in the State Government by allotment- (a) to a landless person or any other eligible person; or (b) for allotment of a site to a handicapped or houseless person for the construction of a house; and the allottee shall pay amount- (I) for the land allotted to him at the rate of ninety-five times the land revenue and rates and cesses, thereof; (ii) for building, structure or tube-well, if any, at 50% of the market price of such building, structure or tube-well: Provided that if the holding or part thereof comprising surplus area is not assessed to land revenue, the land revenue on such and shall be construed to be assessed as on similar land in the estate and if not available in the estate then on the adjoining estate or estates, as the case may be: Provided further that the waste land shall be treated as ‘banjar’ land for the purposes of assessment of land revenue and determination of the amount. [(2-A) for making the allotment of the surplus land under subsection (2), the first preference among landless persons shall be given to the members of the Scheduled Castes and Scheduled Tribes. (3) Any scheme framed by the State Government under subsection (2), may provide for the terms and conditions on which the land comprised in surplus area is to be allotted. (4) The State Government may, by notification in the Official Gazettee, add to, amend, vary or revoke any scheme made under this section.” 11. Clause 11 of the Himachal Pradesh Utilization of Surplus Area Scheme, 1974, which deals with the allotment is also quoted0 hereinbelow:- “Condition of allotment.- The allotment shall be subject to the following terms and conditions: (a) the allottee shall be liable to pay allow Government dues, including land revenue, rates and rents, from the date he takes possession of the land. (b) The allottee shall be liable to pay for that land an amount as prescribed in section 15 of the Act; (c) The allottee shall become full owner of the land allotted to him when all payments due in respect of such land have been made either in lump-sum or on payment of first instalment of such dues, as the case may be; (d) the allottee shall not transfer his rights in the land allotted to him to any person within a period of 20 years from the date of taking over the possession after allotment and in the event of violation of the provisions the land granted to him shall be liable to be resumed by the State Govt. and no further allotment of land shall be made to him thereafter. Provided that the allottee may transfer the land by way of mortgage without possession in favour of a Primary Agricultural Cooperative Credit Society, a bank as defined in the H.P. Agricultural credit Operations and Miscellaneous Provisions (Banks) Act, 1972 (Act No. 7 of 1973) for the purpose of issuing loans for development of such land, purchase of bullocks, seed, fertilizers etc. required for bringing the land under cultivation etc. (e) the land allotted under this scheme shall not be subject to fragmentation by way of partition, transfers or by any other mean; and (f) the Revenue Officer shall record the conditions laid down in sub para (d) and (e) above in the mutation orders to be passed by him. His orders shall further be recorded in the remarks column of the jamabandi in which the mutation pertaining to the land is incorporated.” 12. A perusal of Section 15 of the Himachal Pradesh Ceiling on Land Holding Act, 1972 as also the condition of allotment as contained in the Himachal Pradesh Utilization of Surplus Area Scheme, 1974 do not demonstrate that there was any bar that person who was in government job was not entitled for grant of Patta under the Himachal Pradesh Utilization of Surplus Area Scheme, 1974. In fact a harmonious reading of Section 15 of the Act as also the Clauses of the Scheme demonstrate that there was no embargo contained either in the Act or in the Scheme that a person who was in government job was not entitled for the allotment of land under the Scheme. In fact a harmonious reading of Section 15 of the Act as also the Clauses of the Scheme demonstrate that there was no embargo contained either in the Act or in the Scheme that a person who was in government job was not entitled for the allotment of land under the Scheme. This very important aspect of the matter has been completely ignored by the respondent-State while passing the impugned order. Authority concerned further erred in not appreciating that the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 were not applicable in the facts of the case because the land was not allotted to the petitioner under the provisions of the said Act. When the Patta was not allotted under the provisions of the Act supra its provisions could not have been invoked to hold the petitioner as ineligible for grant of Patta. Therefore, in my considered view the impugned act of the respondent-State is per se illegal and in contravention of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 as also the Himachal Pradesh Utilization of Surplus Area Scheme, 1974and is liable to be quashed and set aside. 13. In view of the above discussion, this petition is allowed and order vide which the Patta granted to the petitioner has been cancelled is quashed and set aside with all consequential effects. No order as to costs. With this observations, the writ petition is disposed of, so also pending applications, if any