1. These are three connected writ petitions under Article 226 of the Constitution of India. The petitioners in these petitions are brothers end since the main points urged arc common to all of them, we propose to dispose them of by a single order.
2. Briefly stated, the facts of these cases are that 25 Bighas of land situate in 11 S. B. D. was allotted to each of the petitioners in the year 1959 under the provisions of the Rajasthan Temporary Cultivation (Leases Conditions) Act, 1955 and subsequently, on the application by the petitioners, the land inquestion was allotted to the petitioners permanently on December 16, 1972, However, the allotting authority, having come to know that the petitioners had got land allotted in their favour by making incorrect statement of facts, cancelled the allotment on January 8, 1975. Aggrieved by the orders of cancellation, the petitioners filed appeals and the appellate authority, by its order dated December 29, 1976, remanded the case to the allotting authority for deciding the matter afresh in the light of the provisions of the Rajasthan Colonisation Allotment (Sale of Government Land in the Rajasthan Canal Project Area) Rules, 1975, which will hereinafter to be referred to as 'the Rules of 1975'. Again, the allotting authority, by its order dated March 23, 1970 (Ex. 1) cancelled the allotment in favour of the petitioners. Thereupon, the petitioners again filed appeals before the Revenue Appellate Authority-cum-Colonisation Commissioner, Bikaner, who, by his order dated December 29, 1976 (Ex. 2) dismissed the petitioners' appeals and upheld the order of the allotting authority. Dissatisfied with the order of the appellate authority, tbe petitioners filed revision petitions before the Board of Revenue for Rajasthan, but the revisions were also dismissed by the orders dated June 21, 1978 and February 1, 1977 (Ex. 3). In these circumstances, the petitioners have filed these writ petitions praying that the orders passed by the allotting authority as well as by the appellate authority and the Board of Revenue for Rajasthan be set aside and the allotment made in favour of the petitioners be declared legal and valid.
3. It appears that on January 2S, 1979, Shri M. D. Purohit, Additional Government Advocate, put in appearance on behalf of the State of Rajasthan, even though there was no order for issue of notice and this is how Shri Shishodia, Government Advocate, has put in appearance before us today also, to oppose the admission of these petitions. He has raised two preliminary objections. It is submitted by him, in the first instance, that Writ Petitions Nos. 898 and 899 of 1978 are inordinately delayed inasmuch as the matter was decided by the Revenue Board on February 1, 1977 and these writ petitions have been filed as late as on December 15, 1978, The other preliminary objection is that only one point was argued before the Board of Revenue, namely, that under 1971 Rules, there was a provision, namely, Rule 16, enabling the allotting authority to cancel the allotment, but no such provision exists in 1975 Rules. It is submitted that all other points having been given up before the Board of Revenue, the petitioners are not entitled to urge these points in a petition under Article 226. Here, we may state that since these preliminary objections are not applicable to the case of Om Prakash (D. B. Civil Writ Petition No. 900 of 1978), we shall deal with it separately even though one set of arguments was advanced by the learned counsel for the petitioners in respect of all the three writ petitions.
4. The learned counsel for the petitioners has argued that a petition under Article 226 of the Constitution cannot be said to be a delayed one so long as it is filed within the period of limitation prescribed for a suit in respect of the same subject-matter. We are unable to accede to this proposition. No doubt, it depends upon the facts and circumstances of each case whether delay in filing of a particular petition under Article 226 of the Constitution is justified and should be condoned. No such hard and fast rule can be laid down that a petition under Article 226, which is within the period of limitation prescribed for a suit in respect of the same subject-matter, should be enter-gained. Now, in the present case, the impugned order by the Board of Revenue was passed as far back as on February 1, 1977 and these petitions have been filed after one year and ten months. The reason given for this delay (para 9 of the petition) is 'that the petitioner did not receive any information about the dismissal of his revision petition nor the authorities took any proceedings against him till the month of October 1978 and hence the petitioner remained under the impression that his revision is pending'. In our opinion, this is not a sufficient ground for excusing the delay. It may be pointed out that the revision was decided by the Board in the presence of the counsel for the petitioner Shri R. K. Goyal, as is apparent from the order of the Board of Revenue dated February 1, 1977. The petitioner, therefore, will be presumed to have knowledge of the date of this decision. No affidavit of either Shri R. K. Goyal or any other proof has been put on the record to show that for inevitable reasons Shri R. K. Goyal could not inform the petitioner of the result of the revision application before the Board. We are, therefore, of opinion that these writ applications are liable to be dismissed on the ground of delay,
5. However, we have heard the learned counsel for the petitioners on merits also. There is force in the submission made by the learned Additional Government Advocate that the petitioners are not entitled to urge those points which have been expressly given up by the petitioners before the Board of Revenue. On perusal of the order by the Board we find that it has been expressly recorded that but for one point referred to above, 'no other point was raised before me (learned member of the Board) by the learned counsel'. Consequently, we are of opinion that the petitioners are not entitled to urge before us those points which they had expressly given up before the Board. The only point argued before the Board that there is no provision in 1975 Rules corresponding to Rule 16 of the 1971 Rules enabling the allotting authority to cancel the allotment, has, of course, not been raised before us. But, what the learned counsel for the petitioners has sought to argue here is that the finding arrived at by the allotting authority and confirmed by the Revenue Appellate Authority and the Board that the petitioners are not bona fide agriculturists is erroneous and is based on no evidence. In our opinion, it is not open to the petitioners to urge this point when it has been expressly given up before the Board.
6. Faced with this situation, the learned counsel for the petitioner urged that he had moved an amendment application for taking a new legal point in the writ petitions that Rule 21 of the Rules of 1975 is ultra vires Sections 11 and 14 of the Rajasthan Colonisation Act, 1954, (which will hereinafter be referred to as 'the Act of 1954,.' In our opinion, there is no substance in this contention also. Section 11 of the Act provides that 'if any person who, after the commencement of this Act, has been put in possession of the land in theColony as a tenant, shall have given false information intending or having reason to believe that any officer of the State Government may be thereby deceived regarding his qualifications to become a tenant, he shall be deemed to have committed a breach of the conditions of his tenancy'. Section 14 provides penalty for breach of conditions. It says that when the Collector is satisfied that a tenant has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objection, impose on the tenant a penalty not exceeding Rs. 500/- or order resumption of the tenancy. On the other hand, Rule 21 of the Rules provides for cancellation of allotment, when an allotment has been made under the Rules and provides that if at any time it is discovered that any allotment of government land made under these Rules was on an incorrect statement of fact made in the application or in the affidavit, the allotting authority may order cancellation of such allotment. In our opinion, there is no inconsistency between the Rule and Sections 11 and 14 of the Act of 1954. Rule 21 deals with the question of cancellation of allotment with respect to the allotment made under the Rules. In other words, it is a special provision made with respect to the allotments made under the Rules and deals with the question of cancellation and not with the breach of any condition of tenancy, whereas Section 11 is a general provision for all sorts of tenancies under the Colonisation Act. In this view of the matter, the new legal objection taken by the petitioners by an amendment application has also no force.
7. Another contention urged by the learned counsel for the petitioners is that Rules 3 (2) and 4 (3) of the Rules of 1975 be declared ultra vires the provisions of the Rajasthan Colonisation Act, 1954, as they are retrospective in nature. In other words, the argument of the learned counsel is that since the Act does not empower the State Government to make Rules retrospectively, Rules 3 (2) and 4 (3) are bad because they operate retrospectively. The argument is to be stated only to be rejected. Rule 3 (2) reads as under:--
'Notwithstanding any such repeal under sub-rule (1), anything done orany action taken or deemed to have been done or taken under the said repealed conditions and the said Rules shall, if they are not inconsistent with these rules, be deemed to have been done or taken under these rules'.
Rule 4 (3) runs as follows,--
'Where an application as is referred to in sub-rule (1) has already been decided by any competent authority and the allotting authority finds that the allotment order passed on such application is inconsistent with the provisions of these rules, it shall, of its own motion, review the order and shall, after giving the affected person an opportunity of being heard, decide the application under and in accordance with the provisions of these rules.'
It may be observed that as a consequence of the judgment of the Supreme Court declaring certain provisions in the Rules of 1971 void and leaving it open to the State to frame new Rules applicable to both pre-1955 and post-1955 tenants, the Rules of 1975 were framed. In these circumstances, Sub-rule (2) of Rule 3 and sub-rule (3) of Rule 4 can neither be said to be retrospective nor can they be characterised as ultra vires the provisions of the Act. This contention is also devoid of force.
8. Coming to the writ petition No. 900 of 1978 filed by Om Prakash, of course, this writ petition is not inordinately delayed inasmuch as the Board of Revenue decided the case on June 21, 1978 and the writ petition was filed on December 15, 1978 i. e., after about six months. It further appears that no point was expressly given up by the learned counsel for the petitioner before the Board and therefore, the petitioner is entitled to urge all those points which may go to show that the Board had acted erroneously in exercise of its jurisdiction. The Board has found that the allotting authority had jurisdiction to cancel the order of allotment provided it came to the conclusion that the allotment had been obtained on incorrect statement of facts. No just exception can be taken to this finding. Another point urged before the Board was that no adequate opportunity was given to the petitioner to prove that he was an agriculturist. The Board has, however, come to the conelusion that sufficient notice was given to the petitioner and the same was served through his brother Hansraj and that the petitioner had ample opportunity to produce all the evidence which he wanted to produce. Then again, the Board agreed with the concurrent finding of fact arrived at by the allotting authority and the appellate authority that the petitioner was an employee in the Life Insurance Corporation of India and was not a bona fide agriculturist inasmuch as agriculture was not his primary source of income. It is indisputable that only an agriculturist or a person whose primary source of income is agriculture or one who is a bona fide agricultural labourer, is entitled to get permanent allotment in his favour. It is significant that even in the writ petition filed before us, the petitioner has nowhere disclosed as to at what point of time he joined service in the Life Insurance Corporation. Be that as it may, the fact remains that the finding is one of mixed question of fact and law and the petitioner has failed to show how this concurrent finding of all the three authorities, viz., the allotting authority, the appellate authority and the Board is erroneous in law. There is no error in exercise of its jurisdiction by the Board,
9. All other points urged in connection with this writ petition have already been determined while dealing with the writ petitions Nos. 898 and 890 of 1978.
10. The result is that we do not find any force in all the three writ petitions and the same are dismissed summarily.