PRASAD, J. - (1.) THE present special appeal has been filed by the petitioner appellant against the judgment of the learned Single Judge dated 11. 5. 2000, whereby the writ petition filed by the petitioner has been dismissed.
(2.) THE Collector, Pali issued a notice to the petitioner as to why the allotment made in her favour be not cancelled because she in her application for allotment has not disclosed that there is already existing land in favour of her husband to the tune of 43 bighas 5 biswas land. THE said notice was issued to the petitioner. But the petitioner failed to appear pursuant to the notice. THE matter was adjudicated ex parte and the land allotted in favour of the petitioner was cancelled. An appeal was preferred by the petitioner before the Revenue Appellate Authority and the Revenue Appellate Authority observed that the appellant in her application has not disclosed the holding of her husband. Since her husband was having a holding in his name, she cannot be considered to be a landless person. THErefore, she is not entitled to be allotted the land and maintained the order of cancellation of allotment made in her favour. A revision petition was preferred before the Board of Revenue and the Board of Revenue considered the question raised by the petitioner that no notice was served on her and, therefore, the cancellation was bad. She also claimed that she is living separately from her husband and, therefore, the allotment should not be cancelled. THE Board of Revenue came to the conclusion that there is nothing on the record to sustain that the petitioner had obtained any divorce to live separately from her husband and this has been further observed by the Board of Revenue that the allotment was obtained by concealing the fact that land is existing in her husband's name. THErefore, it was by misrepresentation that the land was got allotted. She was not entitled as a landless person to get the allotment made in her favour. Learned Member of the Board of Revenue was of the opinion that the Collector and the Revenue Appellate Authority have appreciated the fact rightly and no illegality was committed. It was urged before the learned Single Judge that the notice was not served on the petitioner. The petitioner was having strained relations with her husband and she was living separately. It was also urged before the learned Single Judge that after the acquisition of khatedari rights and after expiry of a period of 10 years from the date of allotment the allotment could not have been cancelled after a lapse of 30 years and placed reliance on Brij Lal vs. Board of Revenue & Ors (1) and also on Pat Ram & Ors. vs. State of Rajasthan & Ors. The learned Single Judge after considering the case of the petitioner came to the conclusion that the petitioner is not entitled to get any advantage of the aforesaid judgments for the simple reason that the allotment itself was obtained by her by misrepresentation. The learned Single Judge has held that it is settled proposition of law that anything obtained by misrepresentation or fraud can never be sanctified as making misrepresentation itself amounts to moral turpitude. Learned Single Judge has further observed that anything obtained by misrepresentation or fraud cannot be allowed to be sustained. The learned Single Judge has also said that this Court in its Full Bench decision in Chiman Lal vs. State of Rajasthan & Ors. (3), vide judgment and order dated 18. 2. 2000, has considered the aspect of interference in allotment at a very belated stage and held that the revisional powers can be exercised at any time provided (i) the order has been obtained by fraud; (ii) order is obtained by mis-representation or collusion with public authority by the private party; (iii) order is against public interest; (iv) the order is without jurisdiction; (v) order is in clear violation of the statutory rules or provisions of the Act; and (vi) order is void/void ab initio being against public policy or otherwise and thus, dismissed the writ petition. Learned counsel for the appellant before us emphasised that the approach of the learned Single Judge is not correct. The learned Single Judge has not correctly appreciated the decisions cited before him. According to the learned counsel, the learned Single Judge has not correctly appreciated Pat Ram's case (supra ). According to the learned counsel for the appellant after the conferment of the khatedari rights in favour of a tenant no recourse could be held to the rules because the powers could only be exercised under the Rajasthan Tenancy Act as has been held by the learned Single Judge in Pat Ram's case (supra ). Learned counsel for the appellant has further urged that in Tej Singh vs. State of Rajasthan & Others (4), the Hon'ble Supreme Court had an occasion of considering the allotment made by misrepresentation and had condoned the fault committed by the allottee. Learned counsel for the appellant has further stressed that in Brij Lal's case (supra) the Hon'ble Supreme Court has refused to cancel the allotment made earlier because of the time factor. Thus, according to the learned counsel for the appellant the allotment made in favour of the petitioner should also be saved. We have considered the submissions made by the learned counsel for the appellant and have also perused the record. The case considered by the Hon'ble Supreme Court in Brij Lal's case (supra) was in the back-ground that the allottee Brij Lal was holding the land on temporary lease. His temporary lease was obtained by making false declaration. No effort was made to get that lease cancelled ever. Neither there was any attempt on the part of the authorities to get the temporary lease cancelled that the same was obtained on misrepresentation or fraud. Subsequently land came to be allotted to Brij Lal permanently and in this back-ground the Hon'ble Supreme Court observed that the High Court fell into a patent error in cancelling the permanent allotment made in favour of Brij Lal. The purport of the law laid down in Brij Lal's case is that it was not the permanent allotment which was obtained by fraud. If at all the fraud was committed it was committed when the temporary allotment was made in favour of Brij Lal. That was never sought to be cancelled by the State. Therefore, the question of misrepresentation was not considered relevant by the Hon'ble Supreme Court to reject the claim of Brij Lal for permanent allotment because in the proceedings for permanent allotment no misrepresentation was committed.
(3.) IN the instant case, the allotment in question was obtained on misrepresentation. Therefore, Brij Lal's case is of no assistance in the present case. Further the arguments of the learned counsel for the appellant are based on the decision of Pat Ram's case (supra ). The learned Single Judge has noticed the implication of misrepresentation and observed as under:- "after the lapse of about sixteen years, when the allotment was not obtained either on misrepresentation or fraud, the exercise of powers by the Collector for cancellation of the allotment made in favour of the petitioners was not justified. " These are thoughtful observations of the learned Single Judge in Pat Ram's case, which clearly means that as and when there is an allotment obtained by misrepresentation or fraud, the cancellation can be held to be justified. The case made out by the Collector is a case of misrepresentation. Therefore, the observations of the learned Single Judge in Pat Ram's case supports the action taken by the Collector. The observations of the learned Single Judge regarding the enforceability of the Rules does not appear to be observations made after considering the language of the Rules which conferred the powers on the Collector to cancel the allotment and the rules give powers to the Collector to cancel the allotment made under the Rules. Rule 14 (4) of the Rules of 1970 reads as under:- " (4) The Collector shall have the power to cancel any allotment made by a Sub-Divisional Officer or a Tehsildar under the Rules repealed by rule 21 of the Rules either suo moto or on the application of any person in case the allotment has been secured through fraud or misrepresentation or has been made against rules or in case the allottee has committed breach of any of the conditions of allotment: Provided that no such order to the prejudice of any person shall be passed without giving such person an opportunity of being heard". ;