- (1.) THIS special appeal is directed against the judgment of the learned single Judge of this Court dated 10. 12. 1986 passed in S. B. Civil Writ Petition No. 1469 of 1979, whereby the writ petition filed by the petitioner -appellant has been dismissed with costs of Rs. 1,000/ -.
(2.) THE facts necessary for the disposal of this special appeal briefly stated are: that the petitioner-appellant Devaram filed a Writ Petition on 13. 11. 1979 pleading inter aha that he is a bonafide agriculturist by profession and his only source of living is agriculture. His father Sardara Ram died in the year 1978 at the age of 118 years. His father had 10 issues (7 sons and 3 daughters) and he himself also has 5 sons who all are adults. After giving Pedigree of his family, the petitioner has submitted that his father Sardararam had 25 bighas of uncommand land, which he obtained somewhere in the year 1951-52 in village Motadar Tiba Tehsil Karanpur District Sriganganagar. He also obtained temporary allotment of the land prior to the year 1955 in Revenue Tehsil Raisinghnagar District Sriganganagar in village Satjhanda now known as Chak No 12 S. D. Colonisation Tehsil Suratgarh District Sriganganagar. It is alleged that the petitioner obtained 25 bighas of uncommand agricultural land in village Motasar Khuni, Tehsil Karanpur District Sriganganagar in the year 1951-52 separately in his own name, since he had separated from his father. It is further alleged that the petitioner's father Shri Sardararam applied for permanent allotment of the land in village Stjhanda now known as Chak 12 S. D. under Rajasthan Colonisation (Rajasthan Canal Project Pre 1955 Temporary Tenants Government land Allotment) Conditions, 1971. It appears that his application for permanent allotment under these conditions was not decided till 26. 8. 1975. According to the petitioner, he obtained 25 bighas of land in square No. 47/62 on temporary cultivation basis in Chak No. 4. M. L. D. , Rajasthan Canal Project, Tehsil Garsana, Revenue Tehsil Anupgarh on 31. 10. 1970. THE temporary allotment of the land in favour of the petitioner was renewed from year to year. THEreafter, he applied for permanent allotment of the said land under Rajasthan Colonisation (Allotment of Govt. land to Post 1955 Temporary Cultivation Lease Holders and other Landless persons in the Rajasthan Canal Project Area) Rules, 1971 (for short 'the Rules' ). That application was initially rejected on 27. 9. 1974. THErefore, the petitioner preferred an appeal before the Addl. Commissioner Colonisation and during the pendency of that appeal, the Assistant Colonisation Commissioner allotted 21 bighas of land out of the petitioner's land in favour of respondent No. 5 Shri Sukhdeo Singh. However, the appeal was decided in favour of the petitioner and the case was remanded back to the Allotting Authority on 23. 9. 1975 and the petitioner continued as temporary tenant of the land. According to the petitioner since 20. 9. 1975 he was temporary tenant of the land and the allotting authority had no jurisdiction to allot the land in favour of respondent No. 5 and, therefore, the order of allotment in favour of respondent No. 5 was a nullity in the eye of law. The Assistant Colonisation Commissioner, to whom the case was remanded back vide order dated 23. 9. 1975, passed a fresh order Ex. 1 dated 17. 1. 1976 dismissing the petitioner's application for permanent allotment. It has been alleged that on Malamsingh, respondent No. 6, who has made up his mind to allot land in favour of respondent No. 5 deliberately dismissed the application of the petitioner for permanent allotment by making wrong statement of facts on wrong assumptions. Aggrieved against this order, the petitioner preferred an appeal before the Revenue Appellate Authority and that appeal was dismissed vide order (Ex. 2) dated 8. 9. 1978. The petitioner preferred a revision petition before the Board of Revenue which was dismissed vide order Ex. 3 dated 23. 10. 1979. Thereafter, the petitioner filed a review petition and that too came to be dismissed on 8. 11. 1979. It may be stated here that an appeal was filed by the petitioner-appellant against the allotment of land in favour of respondent No. 5 but that came to be dismissed as having become time barred. No further appeal or revision has been filed against that order of allotment of 21 bighas of land in favour of respondent No. 5 and, therefore, that allotment has become final. Respondent No. 5 has filed a separate reply and has claimed that the order of the Board of Revenue is quite correct and does not call for any interference and hence, the writ petition filed by the petitioner may be dismissed. On behalf of the State Govt. a detailed reply has been filed and it has been claimed that while applying for permanent allotment, the petitioner has suppressed information about possession' of land by his father in village Motasar and Chak 12 SD. He has also suppressed information about 25 bighas of land possessed by him in village Motasar and, therefore, he is guilty of suppression of material facts. It was submitted that petitioner's father Shri Sardara Ram has transferred his land in favour of his grand sons after 1955. Likewise, it has been claimed by the petitioner that he has transferred 25 bighas of land allotted to him in village Motasar to his grand son in the year 1972 by gift-deed. Such transfers are against the provisions of r. 15 (2) of the Rules. It was contended that Condition No. 17 (11) makes it obligatory for the applicant to disclose in writing if he or any member of his family holding any land or not and an explanation appended to the said condition clarifies the expression 'member of his family', which includes father. It was further contended that the petitioner, while holding 20 bighas and 4 biswas of land in his share, could only be entitled to get the balance so as not to exceed 25 bighas of land only adjacent to his said holding as is provided in r. 5 (2) of the Rajasthan Colonisation (Allotment and Sale of Govt. land in Rajasthan Canal Colony Area) Rules, 1975. According to the respondents the land in dispute was temporarily allotted to the petitioner is not adjacent to his aforesaid holding. Even the temporary allotment was not valid as the same was sought by the petitioner by making wrong statement and concealment of true facts of the holdings. Only in case of a valid lease, the petitioner would have succeeded under rr. 4 (4) and 13 (5) of the Rules of 1975. The finding of the Appellate Authority was, therefore, valid and just in the facts & circumstances of the case. A counter affidavit to the writ petition was filed on behalf of respondent No. 6 Shri Malasingh. According to him, the petitioner did not mention the details of land held by him or by his father when he initially made an application in Form III alongwith an affidavit. Besides this, the petitioner's father had been holding land in village* Motasar Tiba, measuring 25 bighas Barani and in Chak 12 SAD measuring 49 bighas command. These holdings have also been admitted by the petitioner himself in his writ petition. Thus, the petitioner is guilty of suppression of material facts and, therefore, he has rightly been refused allotment. According to respondent No. 5, the petitioner's father Shri Sardararam died on 9. 2. 1977 but merely to create confusion, he has made the vain efforts to mention the years 1978 as the year of death of his father.
(3.) THE learned single Judge, after hearing both the parties came to the conclusion that it is a case of suppression of material facts from the allotting authority. He has also observed that the fact that the petitioner is a member of his father's family is a finding of fact and, therefore, the learned single Judge has refused to interfere with this finding of fact after noticing the provisions of s. 17 (4) (ii) of the Rajasthan Colonisation Temporary Cultivation Leases) Conditions, 1955 (hereinafter to be referred as 'the Conditions of 1955') and r. 4 (2) and r. 15 (2) of the Rajasthan Colonisation (Allotment and Sale of Govt. land in Rajasthan Canal Colony Area) Rules 1975 (to be referred to as the Rules of 1975) and has come to the conclusion that the petitioner has transferred his land on 27. 10. 1972 to his sons in order to show that he is eligible for allotment to the entire land on permanent basis. We have heard Mr. B. L. Purohit, the learned counsel appearing for the petitioner-appellant, Mr. U. C. S. Singhvi, the learned Addl. Govt. Advocate and Dr. S. S. Bhandawat the learned Addl. Govt. Advocate for respondents No. 1,2,3,4 and 6 and Mr. M. Shreemali, the learned counsel appearing for respondent No. 5 and have carefully gone through the record of the case. It was contended by Mr. B. L. Purohit,the learned counsel appearing for the petitioner-appellant that the finding of suppression of material facts by all the three courts i. e. Assistant Colonisation Commissioner, Addl. Colonisation Commissioner and the Board of Revenue are based on misreading of evidence and ignoring materials placed on record. He has contended that the land which was in his possession and in possession of the petitioner's father came to the knowledge of the allotting authority before he decided his case after remand on 17. 1. 1976 and, therefore, there was no suppression of material information. According to Mr. Purohit, even when temporary allotment was sought in Chak 4 MLD, it was disclosed in the application for temporary allotment that he possessed 25 bighas of land in village Motasar. However, he was not required to disclose the land of his father because he could not claim the share in his father's land. He has also claimed that the petitioner is not a member of his father's family and, therefore, he was not required to disclose the land possessed by his father. Thus, he has tried to challenge these findings of the courts below, which have been upheld by the learned single Judge that the petitioner is a member of his father's family and that he has suppressed information about possession of the land by him and his father at the time of making application for permanent allotment. ;