George Paul vs Administrative Officer

Kochu Thommen, J.—The Petitioner is an assignee of land under the Wynad Colonisation Scheme Rules, 1969. These Rules are made u/s 3 read with Section 7 of the Kerala Government Land Assignment Act, 1960. An area of 1.42 acres was assigned to the Petitioner on 16th December 1970 by order of the Administrative Officer in terms of Rule 7. Pattayam was issued to him on 19th January 1970. The assignment was however cancelled by order of the Administrative Officer dated 29th February 1972 (Ext. P-1). Ext. P-2 is the order of the District Collector rejecting an appeal against Ext. P-1. The Petitioner filed a revision before the Board of Revenue against Exts. P-1 and P-2. That was also rejected. These orders were challenged in revision before the Government, but the Government by Ext. P-3 rejected the revision application and confirmed Exts. P-1 and P-2 as well as the order of the Board of Revenue.

The reason mentioned in Ext. P-1 for cancellation of the assignment is that the Petitioner did not disclose that an area of 88 cents forming part of the total area of 1.42 acres was covered by a lease granted by the Government in favour of the Petitioner''s father and the period of the lease had not run out. This is what the officer says in Ext. P-1:

... he did not mention anything about the lease of the land in favour of his father.... The action of Shri George was wrong representation of facts....

In Ext. P-2 the District Collector gives a totally different reason. He says:

His arguments only indicate the efforts made by the Appellant''s father to get the lands assigned to his son so as to escape from the ceiling provisions of the K.L.R. Act.

There was no whisper to that effect in Ext. P-1. In Ext. P-3 yet another reason is for the first time given by the Government. It says:

The alienation of the land to the Petitioner by his father is not valid and the Petitioner can therefore have no right upon the land which was leased out to his father for a specific purpose for a period of 12 years.

I have extracted the reasons given in Exts. P-1 to P-3 only to show that as the case of the Petitioner progressed from the Administrative Officer to the Government, the reason for the cancellation changed in character. The validity of the cancellation is challenged by the Petitioner.

The only provision relied upon by the authorities for the cancellation of the assignment is Rule (2), which reads:

Conditions of assignment. --

....

(2) The assignment on registry shall be liable to be cancelled for contravention of the provision in Sub-rule (1A). An assignment on registry shall also be liable to be cancelled within a period of five years from the date of assignment if it is found that the assignment was grossly inequitable or was made under a mistake of fact or owing to wrong representation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure for such assignment.

....

The only part of the above provision relied on by the Respondents is the portion underlined, viz., wrong representation of facts. The wrong representation of fact alleged to have been made by the Petitioner is his omission to disclose the lease granted in favour of his father by the Government in respect of a portion of the total area assigned to him.

The purpose of the rule is to enable the Government to cancel the assignment obtained by a person fraudulently by means of a wrong representation of fact. The fact wrongly represented must be a material fact, the omission to correctly mention which is relevant to the consideration for making an assignment. If a person wrongly mentioned a relevant fact or failed to mention a relevant fact he would have made a wrong representation so as to attract Rule 13(2). The fact wrongly stated or omitted to be stated must be of such a character as to reasonably influence (sic)mind of the decision maker.

Apart from the fact that the lease in favour of the father was known to the authorities, as it was a part of the records, the only person who is aggrieved by the assignment of land under lease is the lessee himself. The lessee has no complaint. In fact nobody other than the Government seems to have any complaint.

The Respondents have no case that the land in question was not set apart for assignment and/or that it was assigned on account of a wrong representation. Nor have they a case that the Petitioner was not qualified to receive an assignment under the rules. No fact mentioned by the Petitioner or omitted to be mentioned by him appears to have had any effect on the decision to assign the land in favour of the Petitioner. The land in question is covered by the Wynad Colonisation Scheme. It was meant for allotment to persons qualified to receive the allotment. On the basis of the application filed by the Petitioner the officer considered the Petitioner''s case on merits and made the allotment to him. The fact that a part of the land was under lease to the Petitioner''s father would not have, in the absence of any objection from his father, reasonably influenced the mind of the authority.

The facts disclosed by the Respondents in their counter-affidavit give a clear indication as to the reason for cancellation and the circumstances in which it was done. These facts show that the Administrative Officer (the 1st Respondent) passed Ext. P-1 under an order of the District Collector who is the Appellate Authority. The Administrative Officer did not therefore exercise his mind independently. What led to the cancellation was not a judicious exercise of his discretion. He was motivated by totally extraneous consideration, viz., the dictates of a superior officer who under the Act is the Appellate Authority. Assignment and cancellation of the assignment are matters of great importance to an assignee. They vitally affect his civil rights. The power for cancellation under Rule 13(2) is a judicial or a quasi-judicial power vested in the Administrative Officer. He shall exercise this power only in accordance with the well-known principles of law. If he has been taken into account matters which he ought not to have taken into account, or refused to take into account matters which he was required to take into account or allowed his mind to be biased by the command of a superior officer, his order cannot be considered to have been made in good faith and it will have no validity.

I shall now extract the relevant portion of the counter-affidavit which indicates the circumstances in which Ext. P-1 was made. This is what the Respondents say:

Afterwards, it was found that the assignment was made without considering the fact that the 88 cents of land out of the 1-42 acres of land leased out to the Petitioner''s father Sri T.C. Paily for a period of 12 years for a specific purpose was also included in the pattayam issued for 1-42 acres of land. It was ordered to be cancelled in the District Collector''s (Kozhikode) Proceedings No. 27383/70 dated 8th July 1971 after giving the affected party a reasonable opportunity as per Rule 13(2) of the Government Land Assignment (W.C.S.) Rules, 1969 to represent his case as there were mistake of facts and irregularity in procedure. (italics supplied)

The District Collector, who is the Appellate Authority under Rule 20, ordered the Administrative Officer to cancel the assignment. Ext. P-1 was thus passed under compulsion.

I am convinced that Ext. P-1 is vitiated by an error apparent on the face of the record for the reason that Rule 13(2) was applied for a reason which is not justified in terms thereof. I am also satisfied that Ext. P-1 which was passed by a biassed officer who acted under the orders of a superior officer is not a valid cancellation of the assignment and it is void. [See the principles stated in Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C 147 at 171 and 207]

For the reasons stated above Ext. P-2 is equally unsustainable. Ext. P-3 is an order of the Government in revision. I do not see any provision in the rules conferring power upon the Government to entertain the revision. Whatever that be, Ext. P-3 is also invalid for the reasons mentioned above.

Exts. P-1 to P-3 are accordingly set aside. The Original Petition is allowed. No costs.