Holding

The cancellation order under Rule 17‑A is valid under Section 23 of the Rajasthan General Clauses Act, but it is set aside on the ground of the appellant's special circumstances, and he is not to be dispossessed.

Summary

Tej Singh, a Gram Sewak, obtained an allotment of five bighas of government land in 1968 under the Rajasthan Colonisation (Medium & Minor Irrigation Projects Government Lands Allotment) Rules, 1968. In 1980 the Additional Collector cancelled the allotment under Rule 17‑A, alleging that Singh had concealed his employment and was not a bona‑fide agriculturist or landless person. The High Court upheld the cancellation and the matter reached the Supreme Court on a special leave petition. The Court held that although Rule 17‑A was not given retrospective effect, an allotment obtained by fraud or misrepresentation can be cancelled under Section 23 of the Rajasthan General Clauses Act, 1889, making the cancellation order valid. However, considering that Singh had possessed and cultivated the land for over twenty years, the Court set aside the cancellation and directed that he not be dispossessed. The appeal was disposed and the writ petition allowed without costs.

Issues considered

Whether the Collector has jurisdiction to cancel a land allotment under Rule 17‑A when the rule is not retrospective.
Whether Section 23 of the Rajasthan General Clauses Act, 1889 empowers cancellation of an order obtained by fraud or misrepresentation.
Whether the cancellation order should be set aside in view of the appellant's long possession and cultivation of the land.

Legislation cited

Bonded Labour System (Abolition) Act, 1976
Constitution of Indias. Article 136
Rajasthan Colonisation (Medium & Minor Irrigation Projects Government Lands Allotment) Rules, 1968s. Rule 17‑A, s. Rule 3(vi‑A)
Rajasthan General Clauses Act, 1889s. Section 23

Subjects

land allotmentcancellationfraudmisrepresentationretrospective ruleSection 23Rajasthan General Clauses Actlandless personGram SewakSupreme Courtspecial factsnon‑dispossession

Judgment

TEJ SINGH A
v.
STATE OF RAJASTHAN AND ORS.

MAY 10, 1994

[K. RAMASWAMY AND N. VENKATACHALA, JJ.] B

Rajasthan Colonisation (Medium & Minor lnigation Projects Govern-
ment Lands Allotment) Rules,196/J--Rule 3(Vl-A) and Rule 17-A-Land-
Allotment of-Concealment of fact while making application-Held Rule 17-
A though not retrospective yet when assignment is obtained by fraud the same C
is vitiated-Cancellation held valid-Section 23 of the Rajasthan General
Clauses Act, 1889 held applicable-However direction given not to dispos-
sess-Mode absolute in view of the special facts of the case.
<
' The land allotted to appellant under Rajasthan Colonisation
(Medium & Minor Irrigation Projects Government Lands Allotment) D
--'•
Rules, 1968 was subsequently cancelled by Additional Collector, under
Rule 17-A, on the ground that in his application for allotment of land, the
appellant had concealed the materials fact that he was working as a Gram
Sewak which was his main source of income and that he was neither a bona
fide agriculturist nor a landless person. The cancellation order, confirmed E
in appeal as well as in second appeal, was upbeld by the High Court.

In appeal lo this Court, it was contended on behalf of the appellant
that the Collector has no power to cancel the allotment of land under Rule
17-A because the same was not retrospective.
_J F
Disposing the appeal, this Court

HELD : 1. Though Rule 17-A of the Rajasthan Colonisation
(Medium & Minor Irrigation Projects Government Lands Allotment)
Rules, 1968 was not given retrospective effect but when the order was
obtained by suppression of the material fact or misrepresenting the G
material fact or any other factor enumerated in Rule 17-A which vitiates
the passing of the _order of assignment of the Government land, the order
becomes illegal. Further, under section 23 of Rajasthan General Clauses
. ...j· Act, 1889 the power lo issue notifications or orders would include the
power of their cancellation. Therefore, the cancellation order passed by H
1013

j
1014 SU PREM I'. COURT REPORTS IJ994) 3 S.C.R.

A Collector cannot be said to be illegal and the power exercised by him y
cannot be said to be without jurisdiction. [1016-A·C, 1015-G]

2. However, in view of the special facts of this case, although the
cancellation order is valid, yet the same is set aside with a direction not
to dispossess the appellant from the land. [1016-E·F]
B
CIVIL APPELLATE JURISDICTION : Civil appeal No. 6088 of
1990.

From the Judgment and Order dated 12.7.90 of the Rajasthan High
Court in D.B.C. W.P. No. 2394 of 1990.
c
Rajendra Singhvi and Surya Kant for the Appellant.

Aruneshwar Gupta and K.S. Bhatti for the Respondents.

The following Order of the Court was delivered :
D 4,.
The appellant while being a Gram Sewak had applied for and was
assigned on November 18, 1968, 5 bighas of land in Khasra No.106 of
Village Ramakhera Tehsil Nimbahera under Rajasthan Colonisation
' t
(Medium & Minor Irrigation Projects Government Lands Allotment)
Rules, 1968, for short 'the Rules'. By proceedings dated June 20, 1980, the
E Additional Collector, Chittorgarh, cancelled the allotment on the ground
that the appellant had concealed the fact that he was working as a Gram
Sewak at the time of application and allotment and that he was not a bona .
fide agriculturist and he is not a landless person. On appeal it was con·

L,'
firmed and in second appeal Board of Revenue confirmed the same. The
F appellant filed the writ Petition No.2394/90. The Division Bench by order
dated July 12, 1990 dismissed the same. Thus, this appeal by special leave.
It is not disputed that person who wants to obtain allotment of land under
'the Rules' must be a landless person.

"Rule 3(vi-A) defines 1'Landlcss person" as: "Landless person''
G means a resident of Rajasthan who is either a bona fide agricul-
turist or an agricultural labourer, cultivating or likely to cultivate
the land personally and \Vho.se main source of income is agriculture
or any subsidiary occupation like cattle breeding, provided .such
per.son does not hold any tenure land. anywhe;-e in Rajasthan or ~···

H such land ·that he holds is less than a fragment."
TEJ SINGH v. STATE Of' RAJASTHAN 1015

Provided that a released Sagri as certified by the Sub-Divisional A
Officer will be treated as landb s person of that village.

Explanation-For the purpose of this proviso "Sagri" means the
bonded labourer as defined in the Bonded Labour System (Aboli-
tion) Act, 1976 (Central Act 19 of 1976).
B
A reading thereof clearly indicates that the following conditions
should be fulfilled for a person to be the landless person namely, (i) he
must be a resident of Rajasthan (ii) he must be a bona fide agriculturist or
an agricultural labourer cultivating or likely to cultivate the land personally
and whose main source of income is agriculture or any subsidiary occupa-
tion like cattle breeding etc. provided that such person does not hold any
c
tenure land anywhere in Rajasthan or such land that he holds is less than
a fragment, he becomes eligible in assigning land as a landless person. The
proviso and the explanation thereto were added by an amendment in 1976
with which we are not concerned.
D
The main contention raised in this case is that Rule 17-A under
..J which the cancellation was made by the Collector is not retrospective.
Therefore, the Collector is devoid of power and jurisdiction to cancel it.
/
Rule 17-A reads thus:-
E
"17-A Cencellation of Allotment - The Collector of the district
shall have the power to cancel any allotment made under these
rules, either suomoto or on the application of any person, in case
the allotment has been secured through fraud or misrepresenta-
tion, or has been made against the rules or in case the allottee has
committed breach of any of the conditions of allotment : F

Provided that no sue~ order, to the prejudice of any person,
shall be passed without giving such person an opportunity of being
11
heard.

It is ture that the Rule was inserted on May 23, 1972 and it was not G
given retrospective effect. However, under section 23 of Rajasthan General
Clauses Act, 1889 the power to pass an order or issue notification includes
.the power to take action to cancel an order so passed or notification issued
from time to time. Therefore, the power to issue notifications or orders
would include the power of their cancellation. This is the general power H
1016 SUPREME COURT REPORTS [1994] 3 S.C.R.

A preserved in the authority, on which, the power lo lake action has been
invested. Though Rule 17-A was not given retrospective effect but when
the order was obtained by suppression of the material fact or misrepresent-
ing the material fact or any other factor enumerated in Rule 17-A which
vitiates the passing of the order or assignment of the Government land, the
order becomes illegal. In this case, the facts found are that 011 the date of
B
making the application and assignment namely, November 18, 1968, the
appellant was a Gram Sewak, a public servant. Though he was a resident,
his main source of income was, from .service as Gram Sewak and hence he
cannot also be said to be a bona fide agriculturist. That is the finding of
fact recorded by all the authorities. Under these circumstances, it would '
c amount lo suppression of the material fact and of obtaining an order of
assignment of 5 bighas of land. Therefore, the cancellation of the order
cannot be said to be illegal. The power exercised by the Collector cannot
be said to be without jurisdiction.

The next question is whether it is a fit case for us to inter(er.e under
D Art. 136 of the Constitution. It is seen that the appellantJlmugfi was a
temporary Gram Sewak in 1968 admittedly in 1973 he had resigned from
the post and took up his avocation as an agriculturist and for more- than
20 years, he has been personally cultivating that land and by continuing to
be in occupation and enjoyment of the land. It is stated in the grounds as
E well as in the affidavit filed in support thereto that he had developed the
land on loans obtained by him for the purpose. In view of the special facts
of this case, although we have held that the cancellation order is valid, we
set aside that order of cancellation and restore the assignment and the
direction given earlier by this Court of not to dispossess him from the lands
is made absolute. The appeal is disposed of accordingly. The Writ Petition
F is allowed accordingly but without costs.

T.N.A. Appeal disposed ~f.