The land in this lot was cancelled from one Abdul Aziz and allotted to Hashim on 30-12-1966.
2. The Assistant Commissioner/Collector reviewed this allotment, with the permission of the Commissioner, and cancelled the order of allotment, dated 30-12-1966 by his order dated 5-6-1971.
3. Hashim went to the Civil Court against this order of cancellation and obtained a decree against the State on 4-4-1974 from the Civil Judge.
4. Under this decree the sale-deed was executed in his favour on 13-1-1975.
5. On 3-10-1983 the Deputy Commissioner moved the Board of Revenue to take cognisance of this case under section 30(2)(6) of Colonization of Government Lands Act, 1912, to cancel the allotment of Hashim which was against the policy of the Government.
6. The policy of the Government conveyed to the Deputy Commissioner on 12-9-1962 was that the additional area up to the total allotment of 25 acres could be allotted to the existing allottee provided the area was undeveloped land which was to be irrigated with tubewells.
7. I would decide this case on the following arguments:
(i) The respondent Hashim first went to the Commissioner against the order of cancellation dated 5-6-1971. The Commissioner refused to interfere because he was not empowered to review the decision of his predecessor. After failing with the Commissioner Hashim went to the Civil Court against the State and obtained a decree in his favour on 4-4-1974. When a decree had been passed by the Civil Court against the State, it was necessary for the State to get this decree set aside, or move the Board of Revenue under the section now being invoked. The State did neither.
However, if this provision was not available in 1974, it was added to the statutory book soon after 1978. But again the State did not take advantage of this.
(ii) As a result of this acquiescence of the State the respondent continued to remain in possession between 1974 and 1983 when the present application was moved. Now the State wishes the Board of Revenue to help it by invoking section 30(2)(6), disregarding the facts that the respondent had obtained a decree against the State which was not appealed against, and also disregarding the fact that the new law was not taken advantage of between 1978 and 1983. In other words, the Board of Revenue is desired to interpret section 30(2)(6) so liberally as to cover any inaction on the part of the Government of whatever duration and whatever nature. If the Board of Revenue consents to interfere under this section after 8 years of silence by the Government, both administrative and judicial (a decree has been obtained against it), the Board of Revenue will have to interfere in the future under this section without regard to any lapse of time, thereby virtually making this provision of law open-ended, a Sword of Damocles hanging over the allottee and his future generation. In the present case too the original allotee is dead and his next generation has been dragged before the Board of Revenue. There is a maxim of the law which says that the law helps the vigilant, and our superior Courts have respected it. To give one example of how the lapse of time changes the nature of the case is the law relating to mutation; if a mutation is allowed to stand on the record for considerable period of time the forum and procedure to assail it change
(iii) I have seen the record. The respondent did instal a tubewell on the land in 1975, and doing so he did oblige the underlying spirit of the instructions of the Government issued on 12-9-1962.
(iv) A perusal of the record further says that even at the time of allotment of this lot to Hashim in 1966 some area at least was `Banjar'.
(v) Particularly noteworthy in this case is the fact that there is no allegation of fraud or misrepresentation against the respondents.
8. In view of the above, the Board of Revenue would hesitate to invoke section 30(2)(b) in favour of the State in the present case. Two generations have remained in occupation of this land for almost 30 years, installing a tube--well and presumably making other investment. Between the State and the individual in the present case the balance of convenience is on the side of the individual.
9. I would reject the petition.