SHETHNA, J. - (1.) - What a way to get the allotment of land and, thereafter, to remain in possession of the same.
(2.) THIS is a petition of 1990, wherein, even no notices are issued so far for all these nine years and the petitioner, who is found to be minor of aged 12 years at the time of allotment in 1977 by all the courts below, managed to remain in po- ssession of the land only because the Division Bench of this Court called for the record of the concerned court and authority on 4. 1. 1991 without issuing notice to the respondents. Record could not reach even in 1998 for more than 7 years and when the matter was placed before my learned Brother Hon`ble Dr. B. S. Chauhan, J. on 12. 10. 1998, his lordship observed that, "record was summoned but it has not come. Put up after four weeks. " Office was supposed to place this matter after four weeks, but it has been placed for admission only today after nine months of the passing of the order by my learned Brother on 12. 10. 1998. There is noting on record in the form of School leaving certificate of the petitioner which clearly goes to show that the petitioner was minor and hardly aged 12 years at the time of allotment made in his favour on 26. 3. 77. It is interesting to note that earlier application for allotment of the petitioner was dismissed on 26. 5. 76 on the ground that as per the family register the petitioner was only 12 years and he was staying with his father. Photograph of the petitioner was also there on the application form. Bare perusal of the photograph shows that he is minor and hardly aged 12 years, still, second time in 1977 with the collusion of the authority the allotment of land in question was made in his favour by the authorities on 26. 3. 77. When the allotment file was placed before the Addl. Colonisation Commissioner, he was fully convinced that the petitioner was minor at the time of allotment, therefore, allotment should not have been made in his favour and liable to be cancelled under Rule 22 (3) of the Rules. From the record it is clear that there is a order sheet dated 29. 10. 1979 drawn by the Addl. Colonisation Commissioner on the file. Accordingly, case was registered and show cause notice was issued to the petitioner on 13. 1. 1980. Considering the reply of the petitioner, the Addl. Colonisation Commissioner by his order dated 6. 3. 1982 cancelled the allotment made in favour of the petitioner under Rule 22 (3) of the Rules. Aggrieved by that order the petitioner filed a revision petition before the Board of Revenue in 1982. The same came to be decided only 8. 10. 1990 after a period of almost 8 years because the record called for by the Board of Revenue did not reach in time. Some how or the other the Board of Revenue decided the case on whatever material avai- lable with it and dismiss the revision petition on 8. 10. 1990. The said order was challenged by way of this petition by the petitioner way back in 1990 under Article 226 of the Constitution of India. At the cost of repetition, I may say that instead of arguing the matter for admission against the order passed by the Board of Revenue, learned counsel Shri C. R. Jakhar on 4. 1. 1991 appeared before the Division Bench of this Court and simply prayed to summon the record from the lower court. The record did not reach till 1998 and it had reached this Court only in 1999, and, thereafter, the matter is placed today for admission. Whether the petitioner was minor at the time of allotment or not is a question of fact. On the material available before the Board of Revenue, the Board of Revenue clearly found against the petitioner and held that the petitioner was not 20 years old at the time of allotment of land, but he was only 12 years of age. Thus, by concealing his age and mis-representing the authority for the second time he could manage to get allotment in his favour which was against the provisions of law, therefore, it was liable to be quashed. In support of his case, the learned cou- nsel for the petitioner has placed reliance upon the documents like voter list and ration card etc. , to show that he was major, but when there was authentic certificate in the form of school leaving certificate, in my opinion, the Board of Revenue has rightly not placed reliance upon such documents like voter list and ration card etc. and preferred to rely upon the school leaving certificate, according to which the petitioner was minor aged 12 years only at the time of allotment made in his favour in 1977. Though this petition is labelled as a petition under Article 226 of the Constitution of India, but strictly speaking this is a petition under Article 227 of the Constitution of India, the scope of which is very narrow and limited. This court cannot correct the error committed on facts by the lower court in its supervisionary jurisdiction under Article 227 of the Constitution, therefore, I would not like to interfere with the order passed by the Board of Revenue in this case. At this stage, learned counsel Shri Bishnoi for the petitioner has relied upon the judgment of this Court (Hon`ble P. P. Naolekar, J.) dated27. 1. 1997 in case of Smt. Sudesh Choudhary vs. Civil Judge (Sr. Div.) and Addl. Chief Judicial Magis- trate, Raisinghnagar and another (1) and submitted that the Board of Revenue has committed an error in relying upon the school leaving certificate of the petitioner. According to Mr. Bishnoi, merely because the document is admissible in evidence, it cannot be held that contents thereof are proved. The entire contents of the admission form or school register must be prove that such information was given by the parents or persons having special knowledge about the date of birth or person concerned. In support of his submission, he has relied upon a Supreme Court Judgment in case of Birad Mal Singhvi vs. Anand Purohit (2), which has been relied upon by the learned Single Judge in para 6 of the aforesaid judgment. Copy of the aforesaid judgment is produced on record by learned counsel Shri Bishnoi for the petitioner.
(3.) THERE cannot be any quarrel with the law laid down by the Hon`ble Supreme Court in Birad Mal Singhvi`s case (supra ). However, in this case, there were two sets of evidence, one in favour of the petitioner and another in the form of School leaving certificate and also oral evidence of his father, who has clearly stated that in certificate age of his son was shown 12 years, however, he did not go for getting admission of his son- present petitioner and somebody else from the village had gone and he gave the date of birth because according to the teacher he was over age. Obviously this is a false explanation because there cannot be any di- fficulty in getting admission for a boy who is over age, the real difficulty would be when he is under age. That apart, at the cost of repetition, I must state that when the revisional authority, on appreciation of evidence, if it was not satisfied with the case of the petitioner that he was major aged 20 years at the time of allotment and on the basis of school leaving certificate it has come to the conclusion that the petitioner was minor aged 12 at the time of allotment then this Court would certainly interfere with which finding of fact recorded by the Board of Revenue in its jurisdiction under Article 227 of the Constitution of India. At this stage, it was submitted by the learned counsel for the petitioner that petitioner was in possession of the land in question since 1977 and he has developed and nourished the land for all these years, therefore, in view of Hon`ble Supreme Court Judgment in case of Brij Lal vs. Board of Revenue (3), this court should protect the possession of the petitioner. It is true that the petitioner has remained in possession for all these 22 years. It is also true that petitioner himself has developed and nourished the land, but the question is if his original allotment is against the provisions of law then merely because he remained in possession for all these 22 years should he be allowed to continue with the possession of the land, and, should it be a factor to interfere with the finding arrived at by the Board of Revenue? ;