JUDGMENT
B.J. Shethna, J.
1. Respondent No. 4 Smt. Jayana is a wife of Patwari Foota Ram, who was the Government servant and daughter of Shri Lekh Ram. In 1965, the land in question was allotted to her as a daughter of Lekh Ram and not wife of Foota Ram, though she was married. Her husband was Patwari at the relevant point of time. When this fact came to the notice of the allotting authority, the allotment made in her favour was cancelled under Section 101(3) of the Rajasthan Land Revenue Act. However, she managed to retain the possession even after the allotment was cancelled for number of years. In 1975, she applied for regularisation before the S.D.O. and the same was regularised. Meanwhile, in 1974, the said land was allotted to the present petitioner Smt. Nanu wo/o Suraja Ram. Out of 42 bighas of land allotted to her, she was given possession of 23 bighas and the possession of remaining jan of 29 bighas remained to continue with the respondent No. 4. The petitioner applied before the Collector under Rule 14(4) of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (for short, ‘the Rules, 1970). The Collector by his order dated 25.8.81 cancelled the allotment as he was of the view that the S.D.O. did not carefully examined the case and ordered regularisation, though a fraud was plated by the respondent No. 4. Aggrieved by that order, the respondent No. 4 filed a second appeal before the Revenue Board, which was allowed vide order dated 13.8.81 (Annex. 2) and the order passed by the Collector setting aside the regularisation, was set aside. Against which the petitioner preferred a review petition which was also rejected by order at Annex.l dated 25.10.91 Aggrieved by the impugned orders Annex. 1 and 2, the petitioner has filed this petition under Articles 226/227 of the Constitution of India.
2. Learned Counsel Shri Parihar vehemently submitted that the Collector had rightly passed the order on 25.8.81 and cancelled the regularisation order passed by the S.D.O. and the Revenue Board ought not to have interfered with the same in the second appeal. He submitted that the Revenue Board was in clear error in allowing the second appeal filed by the respondent No. 4 on the ground that there is a prohibition of allotment made to the family members of the Government employee under Section 101 of the Act, but there is no bar in regularising the possession. He, therefore, submits that the impugned order at Annex. 2 and Annex. 1 passed in review petition be set aside.
3. Mr. Bishnoi appearing for the respondent No. 4 has supported the order passed by the Revenue Board at Annex. 2 & 1 respectively. He also pointed out that when the land was regularised, at that time, the husband of respondent No. 4 was no more in service as a Patwari as he retired by that time. Therefore, he submitted that it will not be proper to set aside the order passed by the Revenue Board and dis-possess the petitioner after more than 32 years as she is in continuous possession of the land till today. In support of his submission, learned Counsel Shri Bishnoi relied upon the judgment of the Supreme Court in Brij Lal v. Board of Revenue and Ors. .
4. In Brij Lal’s case, facts were totally different. Only similarity is that the respondent No. 4 is in possession for more than 32 years. Except that there is no similarity. While cancelling the regularisation made by S.D.O., the Collector found that a fraud was played by the husband of respondent No. 4 in getting the allotment in her favour and the S.D.O. failed to carefully examined the matter and granted regularisation.
5. Rule 2(iii)(B) of 1970 Rules clearly provides that the Government servant or his wife or any family member, who is dependent upon the Government servant will not be entitled for allotment. Such rule appears to have been framed in view of the provisions of Section 101(iii) of the Rajasthan Land Revenue Act under which the Government servant is not entitled for allotment of land. To avoid such contingency where the Government servant, who is not entitled to get allotment of land will try to get the same land in the name of his family members. Unfortunately, this aspect of the case has not at all been taken into consideration by the Revenue Board while setting aside the order passed by the Collector. Revenue Board has held that under Section 1’01 there is a prohibition of allotment of land to any government servant but there is no ban in allotment or regularisation. The statement of Mr. Bishnoi was that when the regularisation was made, her husband was no more in service as he had already retired by that time. It may be stated that though here allotment was cancelled in 1966, she managed to remain in illegal possession over the land and applied for regularisation in 1975 only after the retirement of her husband and got the regularisation immediately by the hands of S.D.O. Her husband being a Patwari, a Government servant, it was his duty to see that the possession is handed over to the Government immediately once the cancellation order is passed. But it is clear that because of his influence only his wife remained in illegal possession for several years. If a person is not entitled for allotment then there is no question of he or she being entitled for regularisation as a trespasser. There is a difference between a trespasser who commits trespass and becoming trespasser by virtue of cancellation of his allotment. First to get the allotment by hook or crook and if it is cancelled subsequently then claimed to be a trespasser and then applied for regularisation, is not at all permissible.
6. This court cannot ignore the fact that the respondent No. 4 is in possession since last 32 years. If the respondent No. 4 had not come in possession of the land in a dis-honest manner then this Court would have certainly considered the same. It may also be stated that her regularisation came to be cancelled way back in 1981 but she continued to remain in possession by the interim order passed by the Revenue Board till 1991. For ten years, the Revenue Board did not find time to decide such cases which is most unfortunate. When it decided the case, it decided the case wholly against the law. It is pity that this petition of 1992 could only be heard today after a period of five years. Under these circumstances, she remained in possession for 32 years. The courts are there to protect poor, needy and honest persons and not dis-honest or influential persons who managed to get allotment and continue to remain in possession even after cancellation and boldly come before the Court claiming to be a trespasser over the land once the cancellation order is passed. If this Court will not exercise its powers under Article 226 & 227 of the Constitution in such case then it will be failing in its duty and paying premium to the dis-honesty, which will never be in the interest of justice.
7. Under the circumstances, when this Court found that the order passed by the Revenue Board is wholly illegal and unsustainable then there is no question of holding that the respondent No. 4 was entitled for regularisation
8. At this stage Mr. Bishnoi half heartedly submitted about the locus of the petitioner. He submitted that the petitioner has no locus to challenge the order passed by the Revenue Board in view of the documents at Annexures 4 and 5. There is no substance in the submission made by Mr. Bishnoi. The petitioner has got right to’ challenge the impugned orders. Even assuming for the sake of arguments that the petitioner had no locus then also once the fact of passing illegal order comes to the notice of this Court then this Court would certainly exercise its powers under Articles 226/227 of the Constitution of India.
9. In view of the above discussion, this petition is allowed, the impugned orders passed by the Revenue Board at Annexures 2 & 1 respectively, are hereby set aside. The respondent No. 4 is directed to hand over the possession within three months from today.