Research › Browse › Judgment

Rajasthan High Court · body

1984 DIGILAW 155 (RAJ)

Prithvi Singh v. State of Rajasthan

1984-03-23

P.K.BANERJEE

body1984
P.K. BANNERGEE, C.J.— In all these eight writ petitions, common question of fact and law are involved and therefore, they are being disposed by this common order. 2. So far as the facts in S. B. Civil Writ Petition No. 1274/75, Prithvi Singh Vs. The State of Rajasthan are concerned, they are as under: 3. The petitioner is a holder of 47 bighas 7 biswas of land under various Khasra numbers in village Palkiya in Tehsil Sangod. The land is barren. It falls, however, in the fertile zone described as in the Schedule appended to the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, which received the assent of the President on March 28, 1973 and has come into force with effect from January 1, 1973. By Section 40 of the said Act, Chapter IIIB of the Old Ceiling Law was repealed. It is stated that after coming into force of the New Act, the petitioner filed return on January 3, 1974 as required under Section 10 of the New Act. The petitioner had not been called upon to account for his land in any manner whatsoever under the Old Repealed Law. It appears that there were two circulars by the Board of Revenue, wherein the different Authorised Officers were directed that inspite of coming into force of the New Ceiling Law i. e. the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 hereinafter called the Act of 1973) Chapter III B of the Rajasthan Tenancy Act, 1955 will still hold the field and decisions should be taken by the appropriate authorities on the basis of Old Ceiling Law alleged to have been repealed in toto. It is stated that the petitioner must file return showing the agricultural land held by him on April 1, 1966 by April 28, 1975. So far as the return under the New Law is concerned, it is stated that the same would be kept pending. The petitioner preferred an appeal against the aforesaid order to the Revenue Appellate Authority, which was, however, rejected on May 31, 1975. Against that order, the appeal lay to the Board of Revenue, which alternative remedy was not availed by the petitioner and the petitioner moved this court and obtained the present rule. Similar are the facts in other cases. 4. Against that order, the appeal lay to the Board of Revenue, which alternative remedy was not availed by the petitioner and the petitioner moved this court and obtained the present rule. Similar are the facts in other cases. 4. The petitioners contention inter alia is based mainly on the Judgment of the Full Bench reported in Banshidhar vs. State (1). On the basis of that judgment, it is stated that the notice under the New Act of 1973 (sic Old Law) cannot be maintained and is not sustainable on different grounds, but I will deal with the different arguments of learned Advocates appearing for the petitioners and replied by Mr. Khan appearing for the respondents at the proper time. Affidavit was filed by the respondents. It is stated inter-alia in paragraphs 2 and 3 as follows : — "2. The contents of para 2 of the writ petition are admitted to the extent that the petitioner had filed return under section 10 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. It is submitted that the petitioner was holding land in excess of the ceiling area applicable to him on 1-4-66, the date notified under section 30-H of Chapter III B of the Rajasthan Tenancy Act, 1955. The petitioner was required to submit a declaration of his agricultural holdings within a period of six months from the above notified date and also liable to surrender the possession of the excess land. The petitioner was further liable to get punishment in accordance with the provisions of sub-section (3) of section 30-E and in addition he was liable to get punishment of fine also under sub-section (4) of section 30-E. The p2titioner is a trespasser as he had retained possession of land in excess of the ceiling area applicable to him and is liable to ejectment in accordance with the provisions of Section 30-E. 3. The contents of para 3 of the writ petition are admitted to the extent that the Sub-Divisional Officer, Ramganj Mandi has rightly decided to initiate proceedings under Chapter III B of the Rajasthan Tenancy Act, 1955 as the petitioner had retained possession of land in excess of the ceiling area applicable to him as a trespasser and was liable to ejectment and a subject of imposition of fine as well as punishment on conviction under Section 30-E of Rajasthan Tenancy Act, 1955 in view of Section 6 of the Rajasthan General Clauses Act, 1956. It is admitted that the Board of Revenue had issued a Circular letter dated 3-2-75 but the same has been withdrawn vide Board of Revenue letter No. BR/F/I/l/l/C/75/2137-62 dated 8-7-75. A copy of this letter is produced herewith as Annexure R/l." 5. I am not dealing with the different replies given by the respondents on different grounds urged in the petition because of the limited grounds on which this application alongwith other similar cases is argued, it is not necessary for me to refer to them at all. To the similar effect are the facts in other cases. 6. On the basis of these facts, it was argued by Mr. Garg and thereafter followed by Mr. Mehrish that after the repeal of the Old Law by section 40 of the Act of the 1973 if the proceeding is not pending under the Old Law, the proceeding cannot be initiated at all and no notice issued on the basis of the Old repealed Law was in existence at the time the notice was served. 7. In reply to the argument of Mr. Garg and Mr. Mehrish, Mr. M. I. Khan on behalf of the respondents contended firstly that under the New Act ceiling area will have to be determined under the Old Act if not already determined under the Old Act. Secondly, it was argued that if needed, ceiling area can be determined under the New Act also. It is again argued that the respondents are at liberty to proceed with the notice under the Old Law as well as under the New Act simultaneously. In elaborating the point, Mr. Khan contended that cases pending under the Old Law but not disposed of, the Old Law will apply. It is again argued that the respondents are at liberty to proceed with the notice under the Old Law as well as under the New Act simultaneously. In elaborating the point, Mr. Khan contended that cases pending under the Old Law but not disposed of, the Old Law will apply. He further contended that cases though covered by the Old Ceiling Law but no proceedings commenced when the New Act came into force, proceeding can be initiated and order made in accordance with the Old Law. Lastly, it was argued that both the Acts, Old and New, may act in the same field for different times and they are not affecting each other inasmuch as the object of the Old Act was to determine ceiling area as on April 1, 1966 whereas the object of the New Act was to determine ceiling area as on January 1, 1973 and as the New Act defines ceiling area it is argued that those who retain land on April 1, 1966 will still be reduced under the New Act. These are in fact the arguments advanced by Mr. Khan appearing for the respondents. 8. The three branches of arguments are squarely discern able from Mr. Khans contention. Firstly, there is no dispute to the petitioner that if proceedings are pending and not disposed of when the New Act came into force, the proceedings must be disposed of in accordance with the Old Law. Secondly, if the proceedings initiated are disposed of before the New Act of 1973 came into force, subject to the right of the State Govt. to reopen under Section 15(2) this will not be touched. The main contention where both the parties joined issue is where no proceedings were pending at the time when the New Act of 73 came into force, is it open to the respondents to initiate proceedings under the Old repealed Law. In order to decide this point, it is necessary for us to reproduce Section 4(1) Proviso (2) which is as under :— "4. In order to decide this point, it is necessary for us to reproduce Section 4(1) Proviso (2) which is as under :— "4. Ceiling area-(l) In the case of every person not being a family and in the case of every family consisting of five or less than five members (hereinafter referred to as the primary unit of family), the ceiling area applicable to such person or such family such be in respect of— (a) land under assured irrigation capable of growing at least two crops in a year (hereinafter referred to as the land under assured irrigation), 18 acres, (b) land under assured irrigation capable of growing at least one crop in a year, 27 acres, (c) land under orchard existing on 23rd July, 1972, 54 acres, (d) land not within categories specified in clauses (a) to (c) and falling in fertile zone as described in the Schedule, 48 acres, (e) land not within categories specified in clauses (a) to (d) and falling in semi-fertile zone as described in the Schedule, 54 acres, (f) land not within categories specified in clauses (a) to (e) and falling in hilly zone as described in the Schedule, 54 acres, (g) land not within categories specified in clauses (a) to (f) and falling in semi-desert zone as described in the Schedule, 125 acres, and (h) land not within categories specified in clauses (a) to (g) and falling in desert zone as described in the Schedule, 175 acres. Explanation—Land irrigated by a well shall not be deemed to fall within the categories of land specified in clause (a) and clause (b) of this subsection and shall be deemed to fall within the categories specified in clause (d) thereof: Provided further that if the ceiling area applicable to any person or family in accordance with this section exceeds the ceiling area applicable to such person or family according to the provisions of law repealed by section 40, in that case the ceiling area applicable to such person or family will be the same as was under the provisions of the said repealed law." Section 40 of the New Act by which the Old Act was repealed and which is saving clause saving inter-alia, except as provided in second proviso to sub-sec. (1) of Sec. 4 and in sub-sec. (1) of Sec. 4 and in sub-sec. (2) of Sec. 15 of this Act, the provisions of clause (6A) of Section 5 and Chapter 1II-B of the Rajasthan Tenancy Act, 1955 were repleaded. The Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973 was also repealed. It is also provided in the said repealing Section that notwithstanding the repeal of the said Ordinance under sub-sec. (2) anything done or any action taken or any rules made under the said Ordinance shall be deemed to have been done, taken or made under this Act and section 27 of the Rajasthan General Clauses Act, 1955 shall apply to such repeal and re-enactment. I will refer to the Old Act at proper place when considering different judgments given on this question. 9. The main controversy was decided by this Court in Full Bench in a case reported in Banshidhar Vs. State (supra). In paragraph 63 of the judgment at page 65 their Lordships of the Full Bench speaking through Honble Tyagi J., Acting Chief Justice held conclusively that the rights and liabilities created under Section 30-E of the repealed Ceiling Law have not, in any manner, been affected by the enactment of the New Law. Therefore, all the cases initiated under the Old Law and pending before the competent authorities shall be disposed of in the manner and under the provisions of the Old Law. About this proposition of law as enunciated by the Full Bench Mr. Khan cannot have any answer. Moreover, this question being decided by the Full Bench is binding on all the Honble Judges unless reversed by the Supreme Court and I am told the appeal is pending in the Supreme Court. 10. Next argument of Mr. Khan is that the proceeding which has been initiated and concluded before the New Act came into force, can only be reopened under section 15(2) of the New Act of 1973 is not disputed by the petitioners and cannot be disputed at all, because under section 15(2) of the New Act it is clear that the authorised officer has a right to re-open such matter and to decide the case and determine the ceiling area in accordance with the provisions of such repealed law. Section 15(2) of the Act of 1973 runs as follows:— "15. Power to re-open cases—(1).................................. ...... Section 15(2) of the Act of 1973 runs as follows:— "15. Power to re-open cases—(1).................................. ...... (2) Notwithstanding anything contained in section 40, if the State Government, at any time within 3 years of the commencement of this Act, is satisfied the ceiling area in relation to person as fixed under the law repealed by the said section has been determined in contravention of the provisions of such repealed law, it may direct any officer subordinate to it to re-open a decided case and enquire into it and to determine the ceiling area and the surplus area afresh in accordance with the provisions of such repealed law." It is, therefore, clear that Mr. Khans contention and concession by Mr. Garg is quite discernable from the section itself. 11. The bone of contention between the parties, however, is whether the proceedings, though not initiated before the New Act of 1973 came into force, can be initiated under the Old Law after the New Act has come into force from Jan. 1,1973. To this argument Mr.Khan has referred to the Full Bench judgment in support of his case in particular paras 27 and 28. which run as under :— "27. Section 30-E(l) (a) and 30-E(2) created a vested right in the surplus land which may be quantified in accordance with the provisions of the Act at a later date, in favour of the State or whether these provisions created only the right to the property viz., the jus in rem. It is true that on the date when the declaration was to be filed by the land-holder under R.9 of the Old Rules, it could not in all cases be said what exact area of the land shall ultimately by surrendered as a surplus land by the land-holder to the State but it hardly makes any difference and has little relevance to determine the question whether the rights created in favour of the State under Section 30-E of the Old Law were rights accrued or vested rights. The procedure to finally determine quantum of the surplus area is given in the statute and the rules made thereunder but this procedure hardly affects the rights created in favour of the State. The procedure to finally determine quantum of the surplus area is given in the statute and the rules made thereunder but this procedure hardly affects the rights created in favour of the State. As soon as the extact amount of surplus land is determined by taking resort to the procedure laid down in the Old Act or the rules made thereunder that would enable the land holder to pass on the possession of such surplus land to the State Government, but that right of the Government to take such land would relate back to the point of time when the right was actually created by the law in favour of the State. In our opinion the right under section 30E-(l)(a) and 30-E(2) vest in the State when the period prescribed under sub-section (2) of Section 30-E to surrender the surplus land is over because it is a statutory obligation for the land holder to surrender the surplus land to the State. If the land holder like an honest citizen acts in the manner prescribed by the law then there is no difficulty for him to find out the surplus land in his hand and to surrender the same to the Tehsildar. However, if it is not done by the land holder then the competent authority has a power under the statute to determine the excess land possessed by the land holder after declaration made by him under Rule 9 of the Old Rules. The theory of relating back would undoubtedly be attracted when the question of the right of the State in the surplus land is to be determined. 28. Our views are fortified by the provisions of sub-section (4) of Sec. 30-E of the Old Act where it has been laid down that a person retaining possession of any land in excess of ceiling area applicable to him, shall be deemed to be a trespasser liable to ejectment from such excess land. In the scheme of this section, sub-section (4) makes the land holder by virtue of a legal fiction a trespasser in respect of the excess land even though such a land had not vested in the State under the provisions of sub-section (5) of the said section. In the scheme of this section, sub-section (4) makes the land holder by virtue of a legal fiction a trespasser in respect of the excess land even though such a land had not vested in the State under the provisions of sub-section (5) of the said section. If a person is by virtue of the deeming clause to be declared a trespasser then he will assume that character of being a trespasser not from the date when that person unauthorisedly retained the possession of the land in excess of ceiling area after a declaration under Rule 9 of the Old Law was made by him. It is not necessary that on the day of the filing of the declaration the computation of the excess land is factually completed. It is true that till the land holder surrenders or is ejected from the surplus land it does not vest in the State (see sub-section(5) of Section 30-E) and till then according to Mr. Hastimal the land holder remains the khatedar of such land even though it may be found in excess of the ceiling area. But this assertion of Mr. Hastimal is hardly of any avail to the land holder when by virtue of a legal fiction introduced by the legislature in sub-section (4) of section 30-E of the Old Act he can be declared a trespasser in his own land and that he would be a trespasser in respect of such surplus land since the date when he should have surrendered the same to the State after making a declaration under Rule 9 of the Rules. In this view of the matter, we are of opinion that the obligation not to retain land in excess of the ceiling area arises from the time prescribed under sub-section (2) of section 30-E of the Old Act and from that date the rights of the State are perfected and cannot therefore be called inchoate right. The landholder also incurs a liability to part with the land and to surrender it to the Tehsildar under the provisions of the law on the expiry of the period mentioned in subsection (2) of Section 30-E. Such rights of the State which have accrued to it and the liability of the land holder incurred under the statute shall be governed by the provisions of clause (c) and (e) of Sec. 6 of the General Clauses Act." 12. Mr. Garg, however, also repelling the contention of Mr. Khan relied upon paragraph 25, in which their Lordships of the Full Bench did not accept the argument of Dr. Singhvi that if the right created in favour of the State by the statute under Section 30-E (1) (a) without a right which really vested in the State even then such a right cannot be taken away by a subsequent legislation and on the basis of such inchoate right, the State could claim protection under section 6 (c) and (e) of the General Clauses Act. Their Lordships of the Full Bench relied upon Amar Singh Uttam Singh Vs. R.L. Aggarwal (2) and replied as follows: — "If the right acquired under a repealed Act has not developed into a jus in rem and has not yet fully matured and is merely continuing as a jus ad rem not having progressed beyond an inchoative state it cannot survive the repealed Act, and must fall with it, unless expressly saved." In my opinion, the contention of Mr. Khan cannot be accepted to be correct in view of the Full Bench decision as hereinbefore stated. The Full Bench categorically stated in reply to the argument advanced by the Advocate General that only jus in rem is protected and not jus ad rem is protected when a right is taken away or repealed by subsequent legislation. 13. An argument was advanced by Mr. Khan that in Full Bench decision notices were issued under the Act of 1973 when it came into force. From the Full Bench case it is quite clear at paragraph 5 that the cases which were decided by the Full Bench were pending before the S.D.O. concerned when the New Law came into force. In the same paragraph it is stated that in some of the cases after the New Law was promulgated, various officers issued notices to the appellants under the provisions of the New Law and the Rules made thereunder, but later on these notices were withdrawn and the authorities proceeded to determine the ceiling area of the appellants under the Old Law. This Full Bench decision is in appeal from the judgment of the Single Bench reported in Banshi-dhar vs. State (3). This Full Bench decision is in appeal from the judgment of the Single Bench reported in Banshi-dhar vs. State (3). From the facts it is clear that the petitioners in the said cases filed return in response to a notice of the S.D.O., Kota under Rule 10 of the Rules of 1963. No progress was made in the proceedings for determination of the land in excess of the ceiling area and the proceedings initiated under the Act IV of 1960 remained pending. During the pendency of these proceedings New Act came into force. The question arose for the decision of the Full Bench as to whether the New Act will apply or the Old Act will apply. The Full Bench categorically said that proceedings for determination of ceiling and surplus area of land holder commenced under Chapter III-B prior to the repeal and pending when New Act came into force, the proceedings must be decided on the basis of the Old Act. 14. In elaborating the point Mr.Khan referred to Supreme Court decision reported in The State of Haryana vs. Sampuran Singh (4) and argued that while interpreting the Ceiling Law the Court may strike new grounds and take liberties with old jurisprudence. In para 13 on which Mr. Khan relied and wanted that because this is an agrarian reform legislation, we may strike new grounds and take liberties with old jurisprudence. It appears to me, however, if the words are not ambiguous and clear, question of taking liberty with law by the legislature is beyond the pale of the Courts. It is quite possible if there is any ambiguity in the legislation, we may see the object of the legislation and may interpret the law as law was enacted, but when the wordings are clear and do not call for and cannot entertain ambiguous interpretation, the Court has no power to go beyond the pale of law and strike new grounds or take liberties with old jurisprudence. In such cases, in my opinion, after the New Law came into force in 1973, the proceedings under the Old Law unless a proceeding has been initiated under Section 15(2) of the New Act, cannot be initiated. In the view I take, I am supported by the Division Bench decision of this Court reported in Sumitra Kaur vs. Authorised Officer (Sub-Divisional Officer) Sri Ganganagar (5). In the view I take, I am supported by the Division Bench decision of this Court reported in Sumitra Kaur vs. Authorised Officer (Sub-Divisional Officer) Sri Ganganagar (5). The Division Bench of this Court held interpreting Section 4 (1) proviso (2) after the coming into force of the New Act of 1973. It was held inter alia that even without deciding the matter under Section 4 (1) proviso (2) the authorities concerned must consider the Old Law as it was appearing before the repeal of the said Law by Section 40 of the New Act. The Division Bench held inter alia as follows: — "4. Then it was urged by the learned counsel, that under the Old Ceiling Law, contained in Chapter III-B of the Rajasthan Tenancy Act, the Sub-Divisional Officer (Ceiling) Sri Ganganagar computed the ceiling area applicable to the petitioner and by his order dated February 18, 1972 held that she did not passes land in excess of the ceiling area and that in face of the aforesaid findings fresh proceedings for computation of ceiling area were barred, so far as the petitioner was concerned. It is not possible to accept this contention of the learned counsel as well, because after the coming into force of the New Ceiling Law as contained in the Act, the Authorised Officer could not be precluded from taking proceedings against the petitioner under section 11 of the Act, if in his opinion the petitioner or the family of which she was a member held land in excess of the ceiling area, in accordance with the provisions of the Act. There might not be any provision in the Old Act for clubbing together the land held individually by the members of a family with the land held by the family, but after the coming into force of the Act, the ceiling area applicable to the family has to be computed in accordance with the provision of Sec. 5 of the Act and Sub-sec. (c) thereof is directly attracted to the case of the petitioner. The only condition which has been imposed by the second proviso to sub-sec. (c) thereof is directly attracted to the case of the petitioner. The only condition which has been imposed by the second proviso to sub-sec. (1) of Sec. (4) in this respect is that if the ceiling area computed in respect of any person or family under the Act is in excess of the ceiling area applicable to such person or family, as computed under the provisions of the Old Ceiling Law then the former determination shall hold good, but in case the ceiling area determined, as applicable to such person or family according to the provisions of Old Ceiling Law, then the computation made under the Act shall be applicable to such person or family from the date of coming into force of the Act." 15. Mr. Khans argument was based mainly on Section 4 (l)(b). In my opinion, apart from the reason I have given already, my view is supported by the Division Bench Judgment of this Court as hereinbefore quoted. Under Sec. 4 (1) proviso (2) it is clear that if the ceiling area applicable to any person or family in accordance with this section exceeds the ceiling area applicable to such persons or family according to the provisions of law repealed by section 40, in that case the ceiling area applicable to such person or family will be the same as was under the provisions of the said repealed Law. This, in my opinion, is the answer to Mr. Khans argument that because of Section 4(1) proviso (2) it is possible for the respondents to initiate proceeding under the Old Act by issuing a notice under the Old Act. In my opinion, this is not possible. Their Lordships held inter-alia that after coming into force of the New Ceiling Law as contained in the Act, the Authorised Officer could not be precluded from taking proceeding against the petitioners under Section 11 of the Act, but such proceeding must be decided under the Old Ceiling Law. He can take proceeding under the New Act, but the same must be decided under the Old Act and in the matter of computation of the quantum the Old Act must be given effect to in a proceeding under Section 11 of the New Act of 1973. 16. He can take proceeding under the New Act, but the same must be decided under the Old Act and in the matter of computation of the quantum the Old Act must be given effect to in a proceeding under Section 11 of the New Act of 1973. 16. In another Division Bench judgment in Chhaganlal vs. The State of Rajasthan:(6) it has been held as follows:— "It was contended in this regard by the learned counsel for the petitioners that before coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, the provisions relating to ceiling matters were incorporated in Chapter III-B under the Rajasthan Tenancy Act itself. It is contended that in view of the fact that Chapter III-B of the Ceiling Law being part of the Rajasthan Tenancy Act all the provisions of the Rajasthan Tenancy Act should be made applicable to the proceedings arising relating to ceiling matters. In our view there is no force in this contention as well. The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 which came into force on the first day of January, 1973 repealed the provisions contained in Chapter III-B under the Rajasthan Tenancy Act. The matter has been decided after the remand by the Assistant Collector, Baran on 27-4-1979 and obviously on the date provisions of Chapter III-B cannot be applied. The matter would be governed by the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973." 17. In a case reported in Pala Singh vs. State of Rajasthan (7) Honble the then Acting Chief Justice Mr. D.P. Gupta held that as the notice was issuedunder the provisions of the repealed Law, the notice must be quashed being ex facie invalid. 18. In that view of the matter, in my opinion, after the Old Act having been repealed by Sec.40 of the Act of 1973, notice under the Act after repeal is patently illegal and cannot be sustained. Whether the respondents can give notice under the New Act and decide the matter under the Old Act is not for me to decide because it has been already decided by Division Bench of this Court in Sumitra Kaur v. Authorised Officer, (Sub-Divisional Officer) Sri Ganganagar; (supra). Whether the respondents can give notice under the New Act and decide the matter under the Old Act is not for me to decide because it has been already decided by Division Bench of this Court in Sumitra Kaur v. Authorised Officer, (Sub-Divisional Officer) Sri Ganganagar; (supra). I therefore, set aside Annexures—2, 3 & 4 in S.B. Civil Writ Petition No. 1274 of 1975, impugned orders passed by the Deputy Secretary to the Government, Revenue (Ceiling) Department, Government of Rajasthan for re-opening the proceedings under the Old Law in S.B. Civil Writ Petitions Nos, 1976 of 1983, 1977 of 1983,1843/83, 2127/83,2128/83 and 2335/83 as well as Annexures-4 & 5 order of the Board of Revenue dated 17-8-1976 and the notice in S.B. Civil Writ Petition No. 1978/83. It is stated that the circular of the Board of Revenue has since been withdrawn by the Board of Revenue itself and, therefore, it is no longer necessary to set aside those circulars not being in existence. 19. The rules are, therefore, made absolute to the extent indicated above. There well be no order as to costs. The respondents will be, however, at liberty to take such proceedings, if they are entitled to for the purpose of deciding the ceiling area of the petitioners.