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1980 DIGILAW 428 (RAJ)

Vinodi Ram Bal Chand v. State of Rajasthan

1980-12-19

M.L.SHRIMAL, N.M.KASLIWAL

body1980
SHRIMAL, J.—In the erstwhile State of Bundi, a dam, known as Burdha Dam was constructed in the year 1926 and therefrom irrigation facilities were provided to the nearby lands through a canal, its branches and distributaries. These facilities were also given to the agricultural farm, known as Alphanagar Farm. Shri Brij Narain purchased this farm after having obtained sanction of the Ruler of the erstwhile State of Bundi. The petitioners (M/s. Vinodi Ram Balchand) then purchased it vide registered sale-deed dated 2nd July, 1946 (Annexure. 3). The purchasers used to pay land revenue as well as irrigation charges at the rate of Rs. 2/- per Bigha. 2. With a view to promote agricultural occupancy of the State the Government of Rajasthan undertook the construction of a number of irrigation projects including Chambal Irrigation Project and its branches. This entailed enormous expenditure and heavy investment. The Government considered it expedient to levy special charges, known as betterment charges. The Legislature enacted the Rajasthan Lands Special Irrigation Charges Act, 1953 (hereinafter referred to as the Act). In exercise of the powers conferred by section 15 of the Act, the Government of Rajasthan made Rules, known as Rajasthan Land Special Irrigation Charges Rules, 1954 (hereinafter referred to as the Rules). In the year 1960-61 a branch of the left main canal of the Chambal Irrigation Project, known as Bundi Branch, was connected with the canal of the Burdha Dam. It cut the farm into two pieces, southern and northern portion. By a notification, dated 27th February, 1959, the State Government constituted a Board, within the meaning of Rule 2 (g) of the Rules, consisting of the Commissioner, Kota as the Chairman, Superintending Engineer, Canal Circle, Kota, Director, Colonisation Chambal Project, and the Collector Kota, Collector Bundi and the Settlement Officer, Kota. By a subsequent Notification, dated 2nd November, 1962, the Additional Chief Secretary to the Government of Rajasthan was appointed as the Chairman of the aforesaid Board in the place of the Commissioner Kota The Government of Rajasthan, in exercise of its powers under section 5(1) of the Act, declared through Notification, dated 13th June, 1962, its intention to levy betterment charges in respect of the lands, included in the Chambal Irrigation Project and situated in the Districts of Bundi and Kota This Notification (Annexure 15) was published in the Rajasthan Gazette, dated 28th June, 1962. The Notification relates to the land of Alphanagar Farm, including other lands mentioned therein. The land-holders and occupancy tenants likely to be affected by the proposed betterment charges were required to file objections (vide annexure 16) within 60 days from the date of the publication of the Schedule in the Official Gazette or at the conspicuous place or at the Tehsil headquarters. Thereafter the State Government determined the final Schedule of betterment charges and published the same in the Gazette, dated 15th December, 1964. A perusal of the Annexure 17 shows that a note was appended to the final Schedule of betterment charges, whereby certain lands, including the, Chahi land were exempted from levy of betterment charges. Through Notification, dated 18th May, 1968 (Annexure 18), the names of the villages were notified in which the lands situated were made liable to pay betterment charges. On 9th June, 1969 (Vide Annexure 19), a demand slip was issued in respect of betterment levy, regarding petitioners farm, known as Alphanagar. An amount of Rs. 73,903=50 was demanded as betterment levy if the money was to be paid in one instalment; and in case, it was to be paid in 10 instalments then a sum of Rs. 88.684/-20 was demanded from the petitioner. The petitioner under section 9(2) of the Act, submitted objections, which were rejected by the Divisional Canal Officer on 10th August, 1965. The petitioner, thereafter, filed an appeal before the Collector, Bundi, who accepted the same and remanded the case to the Divisional Canal Officer for deciding it afresh after hearing the petitioner. The Divisional Canal Officer again decided the matter against the petitioner. He was of the view that the capacity of the Chambal Project was much more as compared to the Burdha Dam and as it was constructed at considerable cost and the petitioners land was benefited by it, he was liable to pay the betterment charges. With these observations he dismissed the objection. The appeal filed by the petitioner before the Collector Bundi met with no success and it was dismissed on 26th August, 1967. 3. Not being satisfied with the order of the Collector, Bundi, the petitioner approached the Board of Revenue, Rajasthan, at Ajmer, which by its order, dated 24th September, 1971, dismissed the revision petition filed by the petitioner. 4. The appeal filed by the petitioner before the Collector Bundi met with no success and it was dismissed on 26th August, 1967. 3. Not being satisfied with the order of the Collector, Bundi, the petitioner approached the Board of Revenue, Rajasthan, at Ajmer, which by its order, dated 24th September, 1971, dismissed the revision petition filed by the petitioner. 4. The petitioner has challenged the validity of the orders passed by the Divisional Canal Officer, Collector, Bundi and the Board of Revenue by this writ petition. 5. The first contention raised by the petitioner that the rules are not in force as the Government of Rajasthan did not publish any notification mentioning therein as to the date of their enforcement need be mentioned only for being rejected. Under section 5 of the Rajasthan General Clauses Act, a law is deemed to have come into force on the date it was published in the Rajasthan Gazette, and as such, the demand slips issued under the Act and the rules cannot be challenged on this ground. 6. Admittedly, the notification proposing to levy betterment charges issued under section 5 (1) of the Act was published in the Rajasthan Rajpatra dated 26th September, 1963, but its publication was not made as required by Rule 3 of the Rules Non-publication of Annexure 16 at the office of the Collector and the Divisional Canal Officer concerned, in no way, affects the rights of the State Government to collect betterment charges. A close reading of section 5(1) of the Act reveals that the purpose of sub-section is to give notice to all land owners that the Government proposes to levy betterment charges on those persons whose land is being irrigated or is likely to be irrigated by irrigation projects made by the Government. A notification issued under this section discloses a tentative intention of the Government to levy betterment charges. Sub-section (2) requires that the Government would publish a schedule of betterment charges showing the rates at which the charges will be leviable on the lands and payable by the land holders and occupancy tenants thereof. Sub-section (3) provides that while proposing betterment charges, the court shall take into consideration, (a) the type of irrigation, (b) improvement in irrigation, (c) the extent of betterment occurring to the land. Sub-section (3) provides that while proposing betterment charges, the court shall take into consideration, (a) the type of irrigation, (b) improvement in irrigation, (c) the extent of betterment occurring to the land. Sub section (4) provides that a draft of a schedule prepared under sub-section (2) shall be published in the Official Gazette and in such other manner, as may be prescribed. Sub-section (5) provides that any land holder or occupancy tenant who may be affected by the proposed betterment charges may, within 60 days from the date of the publication of the schedule in the Official Gazette, present a petition in writing to the State Government, stating his objections, if any, to the levy of betterment charges or the rate thereof. Thus, it is clear that it is the draft schedule prepared under sub-section (2) of section 5 which creates liability on the land owner or the Khatedar tenant or the occupancy tenant, and its non-publication in the prescribed manner does affect a person having interest in the land which gets irrigation facilities. Sec.5(l)is couched in the language,which does not make it mandatory. When a public duty is imposed and the statute requires that it shall be performed in a certain manner or within a certain time, or under other specified conditions, such prescription may well be regarded as intended to be directory. In each case the Court is required to decide the intention of the legislature. To decide this the Courts are required to consider not only the actual words used, but the scheme of the statute, the intended benefit to the public of what is enjoined by the provisions and the material danger to the public by contravention of the scheme. The legislature, in its wisdom, has used the word "may" in sub-section (1) of section 5, of the Rajasthan Land Special Irrigation Charges Act, the language of which is almost similar to that of section 4(1) of the Rajasthan Acquisition Act. It came up for interpretation before the Division Bench of this Court in M/s Rajasthan Udyog vs. The State of Rajasthan (1), to which one of us was the party. The Court, after considering the relevant law on the point, held that section 4(1) of the Rajasthan Land Acquisition Act was directory and its violation could not annul the proceedings without proving prejudice to the affected party. The Court, after considering the relevant law on the point, held that section 4(1) of the Rajasthan Land Acquisition Act was directory and its violation could not annul the proceedings without proving prejudice to the affected party. It is the publication of the draft of the Schedule prepared under section (1) of section 5 of the Act which gives a right to the land-holder or occupancy tenant, likely to be affected by the proposed betterment charges, to make objections. On the parity of the reasons given by the Division Bench in the above-noted decision, we hold that provisions of section 5(1) of the Act are directory. 7. The declaration of the intention to levy betterment charges by the Government in no way adversely affects the rights of any party. It does not cast any duty upon the public or the affected party to do anything. The jurisdiction to raise objection arises only when a draft schedule is published under sub-section (4). Non-compliance with the manner of publication of the Notifi-cation published under section 5(1) is not vested by any penalty. It cannot also be said that the object of the Legislature would be defeated if the notice issued under section 5(1) of the Act is not published in the manner provided under rule 3 of the Rules. 8. The next contention is that the draft schedule prepared under subsection (2) was only published in the Official Gazette and was not published in the manner prescribed Under sub-rule (3), and as such, the amount of betterment charges is not leviable. This contention is without any substance. A perusal of Annexure (R.4), dated 1st October, 1963, reveals that 100 copies of the Hindi draft of the Schedule of betterment charges of the Chambal Irrigation Project, Kota, were sent to the Collector, Kota and Bundi, for being published and for giving wide publicity by beat of drum and by pasting them on the notice boards of the concerned Gram Panchayats of the Villages and at conspicuous places as well as at central places. Similarly Annexure R-5 also reveals that the publicity of the above Schedule was made in all the places as required by Rule 3 of the Rules. 9. Similarly Annexure R-5 also reveals that the publicity of the above Schedule was made in all the places as required by Rule 3 of the Rules. 9. The second limb of the same question is that the draft of the Schedule prepared under sub-section (2) of section 5 was published under the seal and signature of the Chief Engineer, and as such, it was illegal and the petitioner was not bound to file any objection. There appears to be no substance in this averment. A perusal of Ex. R.8, placed on record by the learned Government Advocate alongwith the affidavit, dated 24th September, 1980, clearly reveals that the Government of Rajasthan (vide letter No. F.D (62) Irrigation/61, dated September 1963) directed the Chief Engineer to publish the same. The letter stands authenticated by the Assistant Secretary to the Government of Rajasthan. In pursuance of this authority, Ex R 9 was published under the signature of the Chief Engineer Irrigation, Rajasthan, Jaipur. Thereafter, the final schedule of charges Annexure 17, was published by the Government of Rajasthan in the name of the Governor and the same stands authenticated by Z.S. Jhala, the then Secretary to the Government. This notification was published in the Gazette dated 15th December, 1964. The petitioner has not challenged the validity of Annexure 17. The demand created by Annexure 19 is the result of the quantification made on the basis of the principle laid down in Annexure 17, and as such on this ground also the petitioner is not entitled to claim any relief. 10. The next contention raised by the petitioner is that Alphanagar Farm was being provided with irrigation facilities from Burdha Dam prior to the connection of the branch of the left main canal with the Chambal Irrigation Project, known as Bundi Branch. As such before issuing a demand the authorities it was urged, ought to have complied with Rule 5(12) of the Act and as they failed to decide as to how much benefit actually accrued to the farm, the demand could not have been issued. As such before issuing a demand the authorities it was urged, ought to have complied with Rule 5(12) of the Act and as they failed to decide as to how much benefit actually accrued to the farm, the demand could not have been issued. The case of the State Government is that the betterment charges have been levied not on the entire land covered by the Alphanagar Farm but on the portion of the farm which is being supplied water through the canal which joins the Bundi Branch of the left main canal of the Chambal Irrigation Project, i.e. the northern portion of the farm. A perusal of the demand slip (Annexure 19) shows that the nature of the land which has been benefited by Bundi Branch of the left main canal of the Chambal Irrigation Project is Barani. The acting Diwan of Bundi issued sanction to sell land in dispute to Brij Narain (vide Annexure 1, dated 7.3.1946). A perusal of items No. 1, 2 and 3 at page 2 of this Annexure reveals that out of the total land, measuring 4506 Bighas, purchased by Brij Narain, 726 Bighas of land was Mal-I and 1190 Bighas was Mal-II and the rest of the land 2590 Bighas was Pela. Rules regarding soil classification have been made under section 150 of the Rajasthan Land Revenue Act. The entire land in Rajasthan has been divided into the following four heads : (a) Irrigated, (b) Dry cultivated, (c) Dry uncultivated, and (d) Dry unculturable. The Barani in Mal land has been included in the land known as dry cultivated. Thus, there is no merit in the submission of the petitioner that the entire land comprising Alphanagar Farm was Nahri and was being irrigated by canals. It was open to the petitioner to make representation before the Board within 60 days from the publication of the Notification under sub-section (3) of section 4 and sub-section (5) of section 5 of the Act. He could have very well submitted that the land included in Alphanagar Farm was already having irrigation facilities, and on doing so, the Board would have decided the case in accordance with sub-clause (12) of Rule 5. He could have very well submitted that the land included in Alphanagar Farm was already having irrigation facilities, and on doing so, the Board would have decided the case in accordance with sub-clause (12) of Rule 5. Rule 5 provides that prior to the fixation of the betterment charges the entire area included in an irrigation Scheme is required to be divided into blocks or assessment circles as per classification in the last settlement, duly amended by latest Jamabandi for the area under consideration The petitioner has failed to produce and document on the basis of which it could be said that on the date of the preparation and publication of the draft of the Schedule of betterment charges the land in dispute was recorded as chahi, Nahri, Talabi or Deegar. It was open to the petitioner to file objections under sub-section (5) of section 5 to the State Government. If he would have done so, the Board would have considered them under rule 8 and would have submitted the report. Sub-rule (2) of rule 8 of the Rules provides that objections shall not be entertained or considered if they are made after the expiry of the time limit specified in sub-section (3) of section 5 of the Act. Sub-section (6) of section 5 lays down that in case the objections are submitted, the Government may after making such further inquiry into the matter as it may think fit, shall determine the final Schedule of betterment charges and cause the same to be published in the Official Gazette. 11. Even otherwise, though no objections were raised by the petitioner against the draft schedule of betterment charges yet the Board while preparing the Schedule of betterment charges has taken care to consider the case of the petitioner on its merits. The betterment charges have been levied only on that portion of the land of Alphanagar Farm which gets irrigated by Chambal Project Distributory. 12. In the case on hand, the petitioner did not raise any objection regarding the rate of the levy of betterment charges till a demand slip was issued against him. The betterment charges have been levied only on that portion of the land of Alphanagar Farm which gets irrigated by Chambal Project Distributory. 12. In the case on hand, the petitioner did not raise any objection regarding the rate of the levy of betterment charges till a demand slip was issued against him. The Collector, Bundi rightly held that after the publication of the final Schedule of the betterment charges under sub-section (6) of section 5 of the Act, the assessee could make objections to the Divisional Canal Officer regarding the quantification, but he could not raise the objection regarding the validity of the levy itself. The reason is that under section 6 of Act special irrigation charges leviable under the Schedule, as published under sub-section (4) of section 4 and sub-section (6) of section 5, are final and no court can call in question the Schedule, so published or levy or rates of such charges. The Board of Revenue also agreed, in its judgment dated 24th September, 1971, with the view expressed by the Collector. 13. If the petitioner felt aggrieved on the point that while settling the Schedule of betterment charges his case was not considered under sub-rule (12) of Rule 5, the petitioner ought to have filed the writ petition soon after the final schedule of the betterment charges was published in the Gazette on 15th December, 1964 or soon after the demand slip, dated 9th June. 1965, (Annexure 19) was issued to him. This writ petition was filed on 23rd November, 1971 i.e. after the expiry of more than six years of the issuance of the demand slip and even if it be held that there was some mistake or irregularity in the publication of draft Schedule of betterment charges or the final Schedule of betterment charges, then also this writ petition is liable to be dismissed on the ground of laches. The fundamental and well settled rule that the delay defeats the rights of a party to seek redress by means of prerogative writ under Article 226 of the Constitution could not be held to be abrogated merely because the period of limitation would not have expired if the claim had been brought in a civil court. The fundamental and well settled rule that the delay defeats the rights of a party to seek redress by means of prerogative writ under Article 226 of the Constitution could not be held to be abrogated merely because the period of limitation would not have expired if the claim had been brought in a civil court. The question in such cases is that the relief under Article 226 could more justly and properly be given than by leaving the parties to the ordinary remedy of the suit where serious contested questions of fact are raised as in the case on hand, a proper way is to dismiss the writ because in such cases the suit for damages or injunction becomes more appropriate means to redress. In M/s Trilok Chand Moti Chand vs. H.B. Munshi (2), Mitter J. observed : "Though the Limitation Act does not in term apply, the period fixed by Limitation Act should be taken to be true measure of the time, within which a person can be allowed to raise a plea under Article 32, a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act for the enforcement of the right by way of suit as the petitioners have come to this court after the date when they could have filed a suit the application must be rejected." 14. Halsburys Laws of England, Vol. II page 73 (3rd Edition) and (1867) L.R. 2 H.L. 239, Mayor of London vs. Cox. where, as here, the party is unduly belated due to laches, the Court ordinarily denies redress. Long laches in filing writ application are not condonable : Vide AIR 1975 SC. 1816 , AIR 1972 SC. 2060 15. For the reasons mentioned above, the writ petition is dismissed. The parties are left to bear their own costs.