- (1.) - Shortly stated the facts giving rise to this petition are as under : - Petitioner applied for temporary allotment of the lands in Rajasthan Canal Colony area, Tehsil Anoopgarh in the year 1970. The petitioner was allotted square No. 299/401 measuring twenty four bighas of agricultural land in Chak 2 ANM, subsequently re-named as Chak 2 LSM, on temporary cultivation lease in the year 1970. The tenancy in favour of the petitioner was renewed year to year until this land was permanently allotted in his favour vide order dated 21 st Jan. 1974 by the Land Allotting Authority-cum -Assistant Commissioner Colonisation, Rajasthan/canal Project, Shri Vijaynagar. The petitioner is personally cultivating the land since the date of his temporary allotment. A complaint was lodged by one Shri Nichhatar Singh that petitioner has obtained permanent allotment in his favour by not disclosing that petitioner's father had six bighas irrigated and eight bighas barani land in Chak 10/0 and that petitioner has also purchased three bighas irrigated land in Chak 10/0 in 1971. Vide order dated 7. 8. 79 (Ex. 2), the Allotting Authority after recording the evidence and statement of the petitioner cancelled the allotment made in favour of the petitioner in its entirety by having recourse to Rule 21 of the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules, 1975, hereinafter called as 'the Rules of 1975. ' The petitioner objected to the cancellation of the allotment on the ground that so far as the land held by his father is concerned, the same is self acquired property of his father and he has no share, therefore, the same cannot be considered for the purposes of determining whether the petitioner held any land at the time when allotment to him was made. Regarding the land held by the petitioner himself it was stated that land has been purchased by the petitioner on 28. 7. 1971 measuring three bighas and 1. 25 biswas in Chak 10/0 after he has already been allotted land on temporary basis. Therefore, when the land was first allotted on temporary basis, petitioner had no share or interest in any other land, therefore, there was no mis-statement on his behalf. Since the petitioner had applied for converting temporary lease holding into parmanent lease holding, therefore, the petitioner made an application on the basis of his temporary cultivation lease holding for permanent allotment as such without taking into account the land acquired by him after the temporary cultivation lease was granted in his favour in 1970. The petitioner contended that at any rate on the basis of his personal holding, allotment, if at all, has to be cancelled, can be cancelled only upto 3 bighas and 1. 25 biswas of land which he was allotted on permanent basis in excess of the maximum limit which could have been allotted to him and allotment made in favour of the petitioner should not have been cancelled in its entirety.
(2.) THE petitioner's appeal was dismissed by the Revenue Appellate Authority on 25/11/80 (Ex. 3 ). THE petitioner's revision before the Board of Revenue was also dismissed vide Ex. 4 order dated 20. 07. 1982. Hence the petitioner has challenged the orders Exs. 2,3 and 4 cancelling the allotment made in favour of the petitioner in its entirety. A return has been filed on behalf of the State by stating that the allotment has been obtained by suppression of facts about previous holding of land in his own name and in the name of his father, therefore the Allotting Authority was competent under section 11 read with 14 of the Rajasthan Colonisation Act, 1954 as well as rule 21 of the Rules of 1975. It has been contended before us that the lands held by father have to be disclosed only if the father holds the land as a 'karta of Joint Hindu Family in which the son has a share by birth. Only then the holding by father becomes relevant otherwise holdings of self acquired property in the name of father is not relevant for determining eligibility of the petitioner as a landless person. It has, therefore, been contended that unless there is a finding that the lands in the hands of father were Joint Hindu Family Property in which the petitioner has a share, the allotment made in favour of the petitioner cannot be cancelled on that ground. This contention of the petitioner is squarely covered by the decisions of this Court in which it has been held that it is only when the lands are held by the father as an ancestral property that the share of the son can be included while determining the application for temporary or permanent allotment. In this view of the matter, we are of the opinion that in the absence of any positive finding that the lands held by father were Joint Hindu Family Property in which petitioner had a share, the allotment, already made, cannot be cancelled merely because the father's holdings were not disclosed in the application. Since it is a matter of cancellation after allotment has already been made, it was for the authority who wanted to cancel the allotment on that ground, to have established prima facie that the lands in question were ancestral property of Joint Hindu Family. It was next contended that it is no doubt true that petitioner had purchased 3 bighas and 1. 25 biswas of land on 28. 7. 71 but since petitioner's application was merely for conversion of his temporary cultivation lease holding into permanent lease holding and temporary cultivation lease was granted in favour of the petitioner before he had acquired the said 3 bighas and 1. 25 biswas of land, for the purpose of converting temporary lease holding into permanent lease holding, the land acquired subsequent to the allotment or grant of temporary cultivation lease was not to be disclosed and, therefore, this cannot be a ground for cancellation of allotment. We are not impressed by this contention. It is true that when temporary cultivation lease was granted in favour of the petitioner, he was not possessed of 3 bighas and 1. 25 biswas of land and, therefore, the temporary cultivation lease granted will not be affected by the subsequent acquisition. However, it is undisputed that when petitioner moved an application for permanent allotment by that time he had acquired 3 bighas and 1. 25 biswas of land and the petitioner was under an obligation to disclose the said holdings in order to determine petitioner's eligibility as well as to determine the extent to which he is entitled to allotment, the petitioner cannot avoid the consequences of such non-disclosure.
(3.) THIS brings us to the next contention raised by the learned counsel for the petitioner that in the first instance, holding of three bighas and 1. 25 biswas of land on the date of application for permanent allotment does not render the petitioner ineligible for allotment of land and, therefore, any nondisclosure of this nature does not bring into operation section 11 of the Rajasthan Colonisation Act and such non-disclosure cannot be deemed to be a breach of condition of allotment and, therefore, section 14 has no application. In this connection it was also contended that even if section 14 is applicable, it gives option to the Allotting Authority either to cancel the allotment or to levy the penalty for such breach. It is further contended that by making allotment to the full extent of 25 bighas on permanent basis, petitioner has been allotted only 3 bighas and 1. 25 biswas of land in excess of the maximum land that could have been allotted to the petitioner and had the procedure prescribed under section 14 been followed, the petitioner would have rectified the breach by surrendering the excess land and would have avoided the extreme penalty of cancellation of allotment under section 14. The provisions of the Act and Rules may be looked at which are as follows : - "section 11, False information by the tenant - If any person who, after the commencement of this Act, has been put in possession of land in a colony as a tenant, shall gives false information intending or having reason to believe that any officer of the State Govt. may be thereby deceived regarding his qualifications to become a tenant, he shall be deemed to have committed a breach of the conditions of his tenancy. Section 14 : Penalty for breach of conditions - When the Collector is satisfied that a tenant in possession of land in a colony has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objection, (i) impose on the tenant a penally not exceeding five hundred rupees, or (ii) order the resumption of the tenancy : Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order the resumption of the tenancy, unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month to be stated in the notice and tenant has failed to comply with such notice. " The Rules of 1975 : "rule 2 (xiii) "landless person" 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 the primary source of his income and who either does not hold any land anywhere in India or holds land less than 25 bighas, but it does not include a temporary cultivation lease 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. Rule 5 : Eligibility and Extent of Allotment : (1) The following persons shall be eligible for allotment of Government land for agricultural purposes under these rules, namely :- (i) Ex-Service men, (ii) Temporary Cultivation Lease Holders, (iii) Agriculture Graduates. (iv) Landless persons, and (v) Bhakra landless persons. (2) Each such person may be allotted Govt. 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 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 holdings. Rule 10 (3): The applicant shall file with his application an affidavit containing true and correct factual information on the following points duly verified by a Magistrate or an Oath Commissioner, namely :- (a) Permanent place of his residence and the place where ordinarily resides, carries on his business or earns his livelihood specifying the name of his village, tehsil and district and showing that he is a resident of Rajasthan. (b) Whether he is landless person or whether he or any other member of his joint family holds any land anywhere in India in his own name or in the name of any other member of the family or as co-tenant with someone else, in which case the class of land held, its area, tenure and location and the exact share of the applicant in such joint family or co-ownership land shall be specifically stated. (c) Full particulars of the land, if any, which he or any other member of his joint family has transferred by sale, gift or otherwise on or after 15-10-1955, and (d) Such other information as is required in Form III. Rule 21 : Cancellation of allotment :if at any time it is discovered that any allotment of Govt. land was made under these rules upon an incorrect statement of facts made in the application or in the affidavit or any other document produced by an allottee, the Allotting Authority, may order cancellation of such allotment and may also order re-entry upon and taking possession of the land without payment of any compensation; Provided that no such order shall be made without giving the person, likely to be affected thereby, an opportunity of being heard. " From the perusal of the aforesaid provisions, it is apparent that a person in order to be eligible for allotment of land as landless person under the Rules of 1975 should have held land anywhere in India less than 25 bighas and in computing 25 bighas of land, the lands held under temporary cultivation lease are not included. Therefore, if the lands held by the petitioner under the temporary cultivation lease are excluded as we have found above, only land which could be taken into consideration is the land held by the petitioner himself on the date of application for permanent allotment, which in the present case measured three bighas and 1. 25 biswas only. Therefore, applying the test of a landless person, petitioner would still have remained landless and eligible for allotment even if he had disclosed the land held by him. Section 11 of the Act, 1954 becomes operative if the petitioner would have given a false information intending or having reason to believe, the authority may be deceived regarding his qualification to become a tenant then only he shall be deemed to have committed a breach of condition of his tenancy. Present is not a case of giving any false information but omission to give some relevant information. It also does not effect the petitioner's qualification to become a tenant, therefore, in our opinion, Section 11 could not have been invoked in the present case and consequently section 14 will also not apply because it is not a case of breach of condition after allotment of the permanent lease. ;