LAL SINGH Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) This special appeal is directed against the judgment of the learned single Judge dated Feb. 17, 1984, whereby the judgment of the learned Member, Board of Revenue, was sustained, the writ petition was dismissed, and the ad interim order was vacated.

(2.) The facts necessary to be noticed for the disposal of this appeal briefly stated are that the petitioner was a temporary cultivation lease holder for the year 1972-73. That temporary cultivation was extended for one more year, i.e. 1973-74. On expiry of that period, he applied for permanent allotment of that land in his favour. That application came to be dismissed on the ground that he is not a bona fide resident of Rajasthan as is provided by Rule 2(1)(xiii) of the Rajasthan Colonisation (Allotment of the Government land to Post 1955 Temporary Cultivation Lease Holders and other Landless persons in Rajasthan Canal Project Area) Rules, 1971. Clause (xiii) of Rule 2(1) defines a landless person to be a person who is resident of Rajasthan since before 1st day of April 1953. The vires of the Rules of 1971 (hereinafter referred to as The Rules), were challenged in Jaila Singh Vs. State of Rajasthan. AIR 1975 SC 1436, and their Lordships of the Supreme Court struck down those rules and thereafter the Rules of 1975 were framed. They are The Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Colony Area) Rules, 1975, Clause (xv) of Rule 2 of the Rules of 1975 define the resident of Rajasthan to be a person who is ordinarily residing in Rajasthan since the 1st day of April 1955. Since before, this clause of 1st day of April 1955 was struck down by a learned single Judge of this Court in Kum. Jani Bai Vs. State of Rajasthan, ILR (1980) 30 Raj 306. This was affirmed by a Division Bench presided over by Honourable the Chief Justice Shri J. S. Verma (as he then was), and Hon. N. C. Kochhar. J. in the case of Kumari Jam Vs. State of Rajasthan, 1989 (1) Raj LR 139. Thus, the application of the petitioner was wrongly rejected on the ground that he is not a resident of Rajasthan in the year 1974, according to Rules of 1971. Those rules have been held ultra vires in Jaila Singh's case quoted (supra) and, therefore, that rejection, not treating him to be a bona fide resident of Rajasthan, cannot be sustained and the application has to be decided, keeping in view the provisions of the Rules of 1975.

(3.) It is true that the application was rejected prior to the coming into force of the Rules of 1971 but when the Rules of 1971 have been held ultra vires, it will mean as if they do not exist on the statute book and, therefore, whether the lease was got extended or not will not become material. What is material is that the petitioner applied for a permanent allotment of land, of which he was a temporary cultivation lease holder and that application has to be disposed a according to law, by treating it to be pending. Under these circumstances, that application has to be decided afresh as per the Rules of 1975 and his application for grant of permanent allotment has to be considered as against the land which was in his temporary cultivation lease, if he is still in possession of that land and if he is not in possession of that land then that application should be considered for permanent allotment as against the land which is available for allotment to him as per rules.