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1995 DIGILAW 197 (RAJ)

Bhagwan Singh v. State of Rajasthan

1995-02-21

R.R.YADAV

body1995
JUDGMENT 1. :- The petitioners have filed the instant writ petition seeking a relief to quash the show cause notices dated 7.4.1986 and 10.8.1989 Annexures 7 and 9 to the writ petition on the ground inter-alia that the petitioners are agriculturists and the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (in short the Act of 1973) is made applicable to their agricultural land in dispute. 2. It is alleged in para 4 of the writ petition that after coming into force of the Act of 1973 the petitioner No.1 submitted the return under section 10 of the Act of 1973 before the respondent No.2 The respondent No.2 under section 11 of the Act of 1973 issued a notice to the petitioner No.2 that the petitioner No.2 is holding excess land. 3. It is further alleged in Para 9 that the ceiling case of the petitioners was decided by order dated 11.7.74 and it was held that the petitioners are holding only 85 Bighas and 16 Biswas of land. 4. It is also alleged that against the order dated 11.7.74 the State Government filed an appeal before the ADM, Ganganagar and the said appeal was dismissed on 12.8.75 and it was held that the petitioners are holding land less than the ceiling limit. A certified copy of the order dated 12.8.75 is filed as Anx.3 to the writ petition. It is also alleged that the respondent No.2 issued notice on 5.8.81 to the petitioner No.1 under section 11(1) of the Act of 1973 to appear on 7.9.81, copy whereof is filed as Anx.4 to the writ petition. 5. It is also alleged that in pursuance of the aforesaid notice the petitioner No.2 appeared on 28.12.81 and on objection was raised that the petitioners are not holding the excess land and their case has already been decided by the comptent authority. It is also alleged that there is no provision for review under the Act, therefore, the respondent No.2 has no authority in law to reopen the case which can only be opened by the State Government. A copy of the explanation submitted by the petitioner is also filed as Anx.5 to the writ petition. After receiving the aforesaid explanation the proceedings were alleged to have been dropped by the respondent No.2 on 28.2.86 vide Anx. 6 to the writ petition. 6. A copy of the explanation submitted by the petitioner is also filed as Anx.5 to the writ petition. After receiving the aforesaid explanation the proceedings were alleged to have been dropped by the respondent No.2 on 28.2.86 vide Anx. 6 to the writ petition. 6. The main grievance of the petitioners before me is that after dropping the proceedings, the respondent No.2 has no authority to issue fresh show cause notices Anx. 7 and 9 to the writ petition to the petitioners, therefore, these subsequent show cause notices are required to be quashed by this Court. 7. After service of notices the respondent Nos. 1 and 2 is represented by the learned Additional Government Advocate Shri B.S. Bhaty but no reply has been filed. 8. I have heard the learned counsel for the parties at length and have critically gone through the material available on record. 9. The main thrust of the argument of the learned counsel for the petitioners is that once the ceiling matter was decided up to the appellate stage and the appeal filed by the State Government was dismissed on 12.8.75 vide Anx.3 to the writ petition, the respondent No.2 has no authority to reopen the matter. 10. The learned counsel for the petitioners invited my attention towards Section 15 of the Act of 1973 which empowers the State Government to reopen a case or cases under this Act if State Government is after calling for the record or otherwise satisfied that any final order passed in any matter arising under this Act is in contravention of the provisions of this Act and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be reopened and it may direct any officer subordinate to it to reopen such decided matter, and to decide it afresh in accordance with-the provisions of this Act. Section 15 of the Act of 1973 reads as under:-15. Section 15 of the Act of 1973 reads as under:-15. Power to re-open cases.-(1) Notwithstanding anything contained in this Act, if the State Government, after calling for the record or otherwise is satisfied that any final order passed in any matter arising under this Act is in contravention of the provisions of this Act and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be reopened, it may direct any officer subordinate to it to reopen such decided matter, and to decide it afresh in accordance with the provisions of this Act: Provided that no such direction shall be issued unless a notice to show cause against the proposed action has been served upon the person concerned: 1[Provided further that no notice referred to in foregoing proviso shall be issued after the expiry of five years from the date of the final order sought to be re-opened or after expiry of the 30th day of June, 1979, whichever is later]. (2) ................. (3) ................... 11. The last submission of the learned counsel for the petitioners before me is that the respondent No.2 has no jurisdiction to review his earlier decision dropping of the proceeding on 28.2.86 vide Anx.6 to the writ petition. According to the learned counsel for the petitioners the power of review is of creation of statute and since there is no provision of review, therefore, the respondent No.2 has no authority to review its earlier order. 12. Learned counsel appearing on behalf of respondent Nos.1 and 2 Shri B.S. Bhati refuted the aforesaid arguments and urged before me that in pursuance of the show cause notices Anx.7 and 9 to the writ petition the petitioners have already shown the cause vide Anx.8 to the writ petition, therefore, instead of entering into the disputed questions of fact alleged in the petition it would be expedient in the interest of justice that the explanation to show cause submitted by the petitioners should be allowed to be decided on merit by the respondent No.2. 13. I have given my thoughtful consideration to the rival contentions raised at the Bar. 13. I have given my thoughtful consideration to the rival contentions raised at the Bar. In my considered opinion it is a settled principle of law that a writ can be entertained under Article 226 of the Constitution of India if the error is apparent on the face of record. It is further true that a point which can be made out by the learned counsel for the petitioners by his strenuous argument is not acceptable under Article 226 of the Constitution of India. 14. A close scrutiny of the averments made in the writ petition leads towards an irresistable conclusion that the petitioners have not led proper factual foundation in their writ petition for attracting the mandatory provisions contemplated under section 15 of the Act of 1973. Therefore, it would not be proper for this Court to enter into disputed question of fact which requires a thread bare finding by the subordinate authority i.e. the respondent No.2. In my considered opinion since the petitioners have given explanation to show cause notices Anx.7 and 9, therefore, the respondent No.2 is required to decide the aforesaid explanation submitted by the petitioners by speaking order after affording an opportunity of being heard to the petitioners. 15. The learned counsel for the petitioners in support of his argument placed reliance upon a decision rendered by a learned Single Judge of this Court in the case of Ram Pratap v. State of Raj. & Ors. reported in 1982 RLR 571. In the aforesaid judgment it is ruled that if a show cause notice is issued by the authority who has no jurisdiction to issue such notice, this Court can entertain and quash such show cause notice in exercise of its extra-ordinary jurisdiction under Article 226-of the Constitution of India. In my considered opinion the facts of the aforesaid case are not attracted in the present case. 16. In the instant writ petition the learned counsel for the petitioners have failed to satisfy this Court as to why the non obstante mandatory provision of Section 15 of the Act of 1973 are either attracted or not attracted. No foundation has been laid in writ petition showing as to why the State Government is not entitled to reopen the matter even after decision by appellate court if the condition precedent under the said Section is satisfied. 17. No foundation has been laid in writ petition showing as to why the State Government is not entitled to reopen the matter even after decision by appellate court if the condition precedent under the said Section is satisfied. 17. As regards the point argued by the learned counsel for the petitioners that the power of review is a creation of statute therefore the respondent No.2 after dropping the proceedings on 28.2.86 vide Anx.6 to the writ petition has no authority to review his order. As a matter of fact in my humble opinion it is not a case of review. But as a matter of fact in the present case the controversy is about invoking the power under Section 15 of the Act of 1973. The argument which are being advanced before me for attracting the mandatory provisions contemplated under Section 15 of the Act of 1973 should be urged before the respondent No.2 who will decide the same after giving an opportunity of being heard to the petitioners by speaking order. This Court cannot afford to enter into roving and fishing factual inquiry about applicability or non-applicability of Section 15 of the Act of 1973 under Article 226 of the Constitution of India. 18. In order to demonstrate that the facts alleged in the writ petition are not correctly stated, paragraphs 5 and 7 are quoted below to illustrate the facts:- (5) That the non-petitioner No.2 under section 11 of the Ceiling Act issued a notice to the petitioner No.2 that the petitioner No.2 is holding excess land than the ceiling-limit as prescribed under the Ceiling Act. This notice was issued on the information and report of the Tehsildar. (7) That the petitioner No.1 submitted his return under section 10 of the Ceiling Act, and enquiry was made by the non-petitioner No.2. 19. The averments made in pragraphs 5 and 7 are mentioned by way of illustration that only notice under Section 11 was given to the petitioner No.2 and at another place in paragraph 7 the petitioner No.1 has submitted return while the present writ petition is filed by the petitioner Nos.1 and 2. It is not explained that under what circumstances the notice was issued to the petitioner No.2 and under what circumstances the petitioner No.1 filed return under Section 10 of the Act of 1973 while there are two petitioners before the Court. 20. It is not explained that under what circumstances the notice was issued to the petitioner No.2 and under what circumstances the petitioner No.1 filed return under Section 10 of the Act of 1973 while there are two petitioners before the Court. 20. As a matter of fact the petitioners were under obligation to disclose the correct facts about petitioner Nos.1 and 2 both but in para 5 of the writ petition the petitioner No.2 received the notice under section 11 and in para No.7 the petition No.1 submitted his return. Such incorrect averments can be seen and examined from paragraphs 11 and 12 as well. In view of these facts and circumstances the averments made in writ petition do not inspire confidence. It is a matter of common knowledge that writ petitions are ordinarily decided on the basis of affidavit, counter affidavit and rejoinder. Hence the averments made in writ petition supported with an affidavit should be prepared correctly with due deligence and not otherwise which may erode the confidence of the court with the averment made in the writ petition. 21. It is established principle of law that a person who is seeking equity must be prepared to do equity to others. In the present case it would be equitable that whatever points are being raised before this Court for quashing show cause notices Anx.7 and 9 to the writ petition should be raised before the respondent No.2. All the facts and material should be brought to the notice of the respondent No.2 as to how Section 15 of the Act of 1973 is attracted or not attracted in the present case. Once the case is reopened the State Government has jurisdiction to direct any officer subordinate to it to reopen such decided matters and to decide it afresh in accordance with the provisions of this Act. Admittedly the respondent No.2 is subordinate to the State Government therefore respondent No.2 can be conferred with the jurisdiction to issue show cause to the petitioners to decide the matter afresh irrespective of the fact that appeal filed by State has been dismissed earlier. It is not brought to my notice by the learned counsel for the petitioners as to whether the State Government has delegated its power to any other authority to exercise its power of reopening under Section 15 of the Act of 1973. It is not brought to my notice by the learned counsel for the petitioners as to whether the State Government has delegated its power to any other authority to exercise its power of reopening under Section 15 of the Act of 1973. It is to be noticed that Section 15 of the Act of 1973 begins with "notwithstanding anything contained in this Act" with a view to give the enacting part of the Section in case of conflict an oversiding effect over the provisions of the said Act. (See 1984 (Supp.) 1996; AIR 1984 SC 1022 , 1986(4) SCC 447 ; AIR 1987 SC 117 ). It is not clear on which date the case of the petitioners was re-opened under Section 15 of the Act of 1973. 22. A scrutiny of the averments made in the writ petition reveal that there is no allegations of malafide against the respondent No.2. In absence of any allegation about malafide against respondent No.2 it cannot be presumed by this Court that if the actual facts are brought to his notice he will not decide the controversy in accordance with the mandatory provisions contemplated under Section 15 of the Act of 1973. As a result of the aforementioned discussion the instant writ petition is finally dispossed-off directing the respondent No.2 to decide the explanation submitted by the petitioners Anx.8 to the writ petition within a period of two months from the date of receipt of a certified copy of this order after giving them an opportunity of being heard by speaking order. If the explanation Anx.8 to the writ petition is not traceable in the office of the respondent No.2 in abundant caution the petitioners are hereby directed to make available a true copy of their explanation Anx.8 to the writ petition submitted by them in pursuance of show cause notices Anx.7 and 9 to the writ petition issued from the office/court of respondent No.2. After dictation of judgment in open Court the learned members of Bar present in the Court made a request to make this judgment reportable. The request is allowed and the judgment is made reportable. *******