Singh Vs. State of Rajasthan  INSC 301 (10 May 1994)
K. Ramaswamy, K. Venkatachala N. (J)
1994 SCC (4) 575 1994 SCALE (3)74
appellant while being a Gram Sewak had applied for and was assigned on
18-11-1968, 5 bighas of land in Khasra No. 106 of Village Ramakhera, Tehsil Nimbahera
under Rajasthan Colonisation (Medium & Minor Irrigation Projects Government
Lands Allotment) Rules, 1968, for short 'the Rules'. By proceedings dated 20-6-1980, the 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 confirmed and in second appeal Board of Revenue confirmed the same. The
appellant filed the Writ Petition No. 2394 of 1990. The Division Bench by order
dated 12-7-1990 dismissed the same.
this appeal by special leave. It is not disputed that a person who wants to
obtain allotment of land under 'the Rules' must be a landless person.
Rule 3 (vi-A) defines "landless person" as:
'Landless person' means a resident of Rajasthan who is either 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 occupation like cattle breeding, provided such person does not hold
any tenure land anywhere in Rajasthan or such land that he holds is less than a
that a released Sagri as certified by the Sub-Divisional Officer will be
treated as landless person of that village.
Explanation.- For the purpose of this proviso
'Sari' means the bonded labourer as defined in the Bonded Labour System
(Abolition) Act, 1976 (Central Act 19 of 1976)."
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 occupation
like cattle breeding etc. provided that such person does not hold any tenure
land anywhere in Rajasthan or such land that he holds is less than a fragment,
he becomes eligible for assignment of land as a landless person. The proviso
577 and the explanation thereto were added by an amendment in 1976 with which
we are not concerned.
main contention raised in this case is that Rule 17-A under 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:
Cancellation of Allotment.- The Collector of the district shall have the power
to cancel any allotment made under these rules, either suo motu or on the
application of any person, in case the allotment has been secured through fraud
or misrepresentation, or has been made against the rules or in case the allottee
has committed breach of any of the conditions of allotment:
that no such order, to the prejudice of any person, shall be passed without
giving such person an opportunity of being heard." It is true that the
Rule was inserted on 23-5-1972 and it was not given retrospective
effect. However, under Section 23 of Rajasthan General Clauses Act, 1955 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 preserved in the authority, on
which, the power to take action has been invested. Though Section 17-A was not
given retrospective effect but when the order was obtained by suppression of
the material fact or misrepresenting 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 on the date of making the application and assignment namely, 18-11-1968, 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.
is the finding of fact recorded by all the authorities.
these circumstances, it would amount to 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.
next question is whether it is a fit case for us to interfere under Article 136
of the Constitution. It is seen that the appellant though 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.
stated in the grounds as well as in the affidavit filed in support thereto that
he had developed the land from 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 579 absolute. The appeal is disposed of accordingly.
The writ petition is allowed accordingly but without costs.