JUDGMENT
V.G. Palshikar, J.
1. This petition and four other petitions the number of which have stated in the schedule annexed challenge the same orders and all these cases arising out of the same set of facts and circumstances, they can be conveniently disposed of by single order for the purpose of facility. I will be referring to the facts in the writ petition No. 3153 of 1984.
2. On 23rd July, 1972, the petitioner was allotted 20 bighas of land by its Sub-Divisional Officer, Nagaur under the provisions of Rajasthan Land Revenue (Allotment of Land for Agricultural Purpose) Rules, 1970 (hereinafter referred to as the rules of 1970). The petitioner was put in possession of this land on 23.4.74. The delay in delivering the possession was probably a complaint filed on 17.7.73 objecting to the allotment of these lands on the ground that the lands are otherwise needed for the village.
3. On 5.11.74, yet another objection was filed that the petitioner was not a land-less person on 23.7.72 as his father owned 112 bighas of land, the petitioner had national share and he was not landless. The petitioner filed reply to this complaint on 20.5.75 specifically denying that he is joint with his father, he claimed independent status as an employee with the Government of India. On 2.6.76, an affidavit sworn by the father of the petitioner was also filed which stated that the petitioner is not a member of the family, he is serving in the arm forces and the extend of land is 56 bighas.
4. On 24.6.80, the petition was decided by the Collector, Nagaur. The allotment made in favour of the petitioner was cancelled Under Rule 14(4) of the Rules of 1970. The cancellation was ordered in view of the fact that the petitioner has made a representation that he was landless at the time of allotment, this representation is proved to misrepresentation in view of the fact that the father of the petitioner ownes undisputedly 56 bighas of land and on the basis of surmise that the land in the hands of the petitioner’s father is ancestral in his hand for the benefit of the sons. Their appears put no basis to this finding. The petitioner, therefore, challenges this order in appeal before the Appellate Authority, the Appellate Authority decided it on 20.7.81 and came to the conclusion that the findings of the Collector are correct. The appeal was dismissed.
5. On 10.8.81, the petitioner filed second appeal before the Board of Revenue and the Board of Revenue decided the second appeal on 2.1.84, it was also dismissed. It is this order along with other orders passed by the Authorities below which are challenged before this Court by this petition under Articles 226 and 227 of the Constitution of India.
6. Shri D.S. Shishodia, learned Counsel appearing on behalf of the petitioner submitted that the orders are unsustainable in law for the following reasons; (i) that the alleged violation of Rule 12 cannot be presumed to have notional share in the land of his father in the absence of proof that the land held by the father was ancestral in nature. There is no evidence on record according to the learned Counsel to prove that the property was ancestral in the hands of the father and that the petitioner was a member of the undevoided Hindu Family; (ii) it was an error of law to presume that the petitioner is not an agriculturist even if that is so being a non-agriculturist cannot be a ground for cancellation Under Rule 14(4) of the Rules, 1970; (iii) There is no proof on record that the land with the father was ancestral property, in the hands of the father in which the petitioner had share by birth according to his personal law. According to the learned Counsel, therefore, the Jurisdiction Under Rule 14(4) cannot be exercised in such circumstances.
7. It was submitted by Shri Shishodia that in order to exercise that powers Under Rule 14(4) of the 1970 Rules, it must be established that either of the requirements of that rule existed factually. The requirements of the Rules are; (a) that the allotment has been secured through fraud or misrepresentation; (b) that the allotment has been made against the Rule and (c) that the allottee has committed breach of any of the conditions of allotment. Admittedly, it is for misrepresentation alone that the cancellation is ordered, according to the learned Counsel, this misrepresentation or fraud is not proved.
8. The Dy. Government Advocate, Shri Dilip Singh and Assistant Government Advocate Smt. Raghuraj Kanwar appeared on behalf of the respondents. In these five petitions, they streneously oppose the petition and submitted that the orders are prefect and valid in law. The question as to whether a misrepresentation as contemplated by Rule 14(4) was made or not is a question of fact and cannot be interfered with In the writ jurisdiction. It was then submitted that in the present case, misrepresentation is established beyond reasonable doubt. Point out the affidavit on behalf of the petitioner, it was contended that the affidavit is very clavery worded it no where states that the petitioner is no a member of the Joint Hindu Family and therefore, the findings that the petitioner was guilty of misrepre-sentation in the matter of seeking an allotment is proved and being a finding of fact cannot be interfered with. It was then contended by the learned Counsel that the affidavit of the father of the petitioner itself proves that he had 56 bighas of land and that there is presumption under the Hindu Law that Hindu Family is a Joint Hindu Family, unless there is proof of unequivocally intention to separate. According to the learned Counsel, therefore, in the absence of such intention, the property in the hands of the petitioner’s father was liable to be calculated as nationally belonging to the petitioner and, therefore, the representation that he was landless on the date of allotment is false and hence, the petitioner is guilty of misrepresentation.
9. On a careful consideration of these submissions, I find that there is total failure on the part of the respondents to establish that the petitioner misrepresented before the State that at the time of allotment he was landless. The petitioner has stated in very clear terms in his reply to the objections that he was separate from his father factually. The affidavit of the father further corroborates this position, it is indisputed that the petitioner is a soldier in the Indian Army. In such circumstances there is unimpeachable evidence on record to show that the petitioner is not a member of Joint Hindu Family. Consequently even if it is held proved that the father had 56 bighas of land with him, it cannot lead to a conclusion with the statement of the petitioner that he was landless at the time of allotment is a misrepresentation.
10. There is no proof whatever on record to show that the land i.e. 56 bighas in the hands of the father of the petitioner in 1972 was an ancestral property, in his hands for benefit of his sons in the absence of and evidence to the fact that that properly was ancestral, it is not permissible in law to come to the conclusion that the petitioner had a national share in their property by reasons of his personal law. The premise that the petitioner had made misrepresentation, therefore, is impossible in the circumstances. It is not the case of the respondents that the cancellation is ordered for any other reason mentioned in Clause 4 of Rule 14 of the Rule 1970. There is thus, total lack of jurisdiction in the Collector to order cancellation of the allotment made by the Sub-Divisional Officer under the Rules of 1970 and his order, therefore, suffers from lack of jurisdiction, it is liable to be quashed.
11. The other orders passed by the Higher Authorities including the Board of Revenue are affirming orders and they also suffer for the same errors, they are also, therefore, liable to be quashed. The petition succeeds and is allowed. The impugned orders are quashed and set aside. The allotment made in favour of the petitioner is affirmed. There will be no order as to costs.