Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1162 (RAJ)

Bahadur Singh v. State of Raj.

2001-07-26

S.K.KESHOTE

body2001
Honble KESHOTE, J.–The petitioners by this petition under Art.227 of the Constitution are praying for quashing and setting aside of the orders of the Board of Revenue, Rajasthan, Ajmer dated 2.1.1984, 30.11.1987 and the order of Additional Collector (Ceiling) Kota, dated 9.11.1982. (2). The matter pertains to the determination of ceiling limit of the land of the petitioners. The facts of the case are that late Sardar Singh father of petitioners filed return of his holdings and submitted that he is the khatedar of the land measuring 110 bighas and 3 biswas which he had inherited from his father. He further stated that there are adult sons in the family and no land in his possession exceeds the ceiling limit. The Sub- Divisional Officer (Authorised Officer) called for the report of land as well as the members of the family from the Tehsildar concerned and after considering the same dropped the proceedings on 31.3.75. The land was ancestral, Nand Singh, one of the brothers of petitioners filed a suit for partition of the holding before the S.D.O., Kota. In this suit the State of Rajasthan was also a party. The suit came to be decreed by the S.D.O., Kota on 26.10.70 but by mistake in the judgment and decree the area of khasra No.13 was recorded to be 13 bigha 7 biswas in place of 11 bigha 7 biswa. An application was filed for correct of this mistake and accordingly it was corrected and amended decree was passed on 24.2.75. Sardar Singh died on 10.1.79. After his death the State Government reopened the ceiling case of late Sardar Singh on 11.3.81 and sent the papers to the Collector, Kota for re-determination of the ceiling area. (3). It was the case of the petitioners before the Additional Collector (Ceiling), Kota that on 1.4.66 the number of the family members were 9. In the year 1961, 10 bigha and 8 biswas of land had been acquired by the Canal Department and only 99 bighas and 15 biswas of land is in their possession. The plea has also been taken that the land among the sons co-sharers has also been divided under the decree of the competent court dated 26.10.70 and no land in excess of the ceiling area is with the petitioners. The plea has also been taken that the land among the sons co-sharers has also been divided under the decree of the competent court dated 26.10.70 and no land in excess of the ceiling area is with the petitioners. The petitioners have filed the documents, revenue record regarding he khatedari of the land in the name of Keshri Singh son of Nawal Singh, their grand-father. The revenue record has also been filed to show that the land has been inherited by Sardar Singh, father of petitioners from his father late Shri Keshri Singh. The Additional Collector (Ceiling), Kota called for the report of the Khata of Shri Sardar Singh as well as regarding the number of his family members as on 1.4.66 and 1.1.73. According to the report, 110 bigha and 1 biswa of land was found in the Khata of Sardar Singh and 10 members in the family on 1.4.66 and 11 members on 1.1.73. Before the Addl. Collector (Ceiling), Kota the petitioners submitted that the family members are 13 in number. However, the Additional Collector (Ceiling), Kota did not accept this plea of the petitioners on the ground that out of these 13 members, two sons wives cannot be taken to be family members. So far as 4 other persons are concerned, it is said that they were not born on 1.4.66. The petitioners filed the copy of the order of substitution as well as school leaving certificates regarding the age of the grand children but the same were not taken into consideration on the ground that original documents are not produced and the copies are not properly attested. The Additional Collector (Ceiling), Kota converted the total area of petitioners holding into 50.84 standards acres and allowed 40 standard acres for the 7 members of the family and passed an order of acquisition of 10.84 standard acres of land as an area excess to the ceiling. (4). The petitioners filed an appeal before the Board of Revenue, Rajasthan, Ajmer against the judgment of the Additional Collector (Ceiling), Kota but the same was rejected on 2.1.84. The petitioners filed review application for the review of the judgment aforestated but that was also dismissed by the Board of Revenue, Rajasthan, Ajmer on 30.11.87. Hence this petition. (5). (4). The petitioners filed an appeal before the Board of Revenue, Rajasthan, Ajmer against the judgment of the Additional Collector (Ceiling), Kota but the same was rejected on 2.1.84. The petitioners filed review application for the review of the judgment aforestated but that was also dismissed by the Board of Revenue, Rajasthan, Ajmer on 30.11.87. Hence this petition. (5). Learned counsel for the petitioners contended that the Authorised Officer has rightly dropped the ceiling proceedings since the land was ancestral as the adult independent sons had their own shares but the State Government has, reopened the case without there being any justification. The second contention raised is that u/s 30-D of the Rajasthan Tenancy Act partition of the agricultural holding has been recognised and in the instant case there is a valid decree of partition passed by a competent court in which the State of Rajasthan was also a party and it is binding on the State Government. The learned Additional Collector (Ceiling), Kota and the Board of Revenue, Rajasthan, Ajmer have committed jurisdictional error by not giving effect to the partition decree. The next contention has been raised that all the sons of Sardar Singh were major on the appointed date and none of them was employed in the Government Service and Board of Revenue has committed serious error in deciding this point against the petitioners. As per the term family includes children and grand- children and 4 grand-sons were born before 1.4.66 that has not been taken into consideration. (6). Further contention raised is that the notice of the proceedings before the Additional Collector (Ceiling), Kota was served for the date 16.6.82. This notice was received and the petitioners filed their reply on 16.11.82. No opportunity was given to the petitioners by the Additional Collector (Ceiling), Kota to produce the evidence in support of their case and the matter itself has been decided on 9.11.82. Another point has been raised that the Board of Revenue has erroneously refused to consider the copies of the school leaving certificates and not to permit the petitioners to produce the additional evidence on record. Another point has been raised that the artificial definition of family in the ceiling law deprived the married daughter of her right in the property which is against the basic fundamental right of equality before the law. Another point has been raised that the artificial definition of family in the ceiling law deprived the married daughter of her right in the property which is against the basic fundamental right of equality before the law. Lastly it is contended that the productive value of the land has been taken into consideration treating the unirrigated land as irrigated on 1.4.66. It is submitted that subsequent development of the land after the appointed date cannot be taken into consideration for the purpose of determination of the ceiling area. (7). Reply to the writ petition has been filed by the respondents but no body is present to make the oral submissions. Not only this even the officer in charge of the case with record is also not present. In this petition the petitioners have filed an affidavit and along with that they produced three documents. It is stated n the affidavit that the petitioners produced the school leaving certificates of Vimlesh Kumari, Arvind Singh and Prem Kumari before the Additional Collector (Ceiling), Kota but the same were not believed. So it became necessary for the petitioners to produce corrected certificates. It is averred that Vimlesh Kumari daughter of Nand Singh had taken admission in Vlth Class in Rajkiya Bafika Uchha Madhyamik Vidyalaya, Sultanpur on 20.8.76 and had left the school on 14.3.77. Her date of birth is 16.5.1961. (8). Arvind Singh son of Nand Singh passed his secondary examination in the year 1983 from the Board of Secondary Education, Rajasthan and therein his date off birth has been mentioned as 20.2.1965 i.e. prior to 1.4.66. (9). Prem Kumari daughter of deponent took admission in VIth Class in Rajkiya Uchha Madhyamik Vidyalaya, Amarpura, Tehsil Digod, District Kota on 8.7.80 and left the school on 10.5.83 after passing VIIIth class. Her date of birth is 4.8.64. (10). Along with the writ petition I find that the petitioner has also produced a document to show that Nand Singh is in service of the Government since 1958. (11). Having heard the learned counsel for the petitioner, I am satisfied that this matter deserves to be remitted back to the Additional Collector (Ceiling), Kota to reconsider and to give a decision afresh in the matter. Prima facie it appears that there is no dispute in this petition that the land in the hands of Sardar Singh was an ancestral property. Prima facie it appears that there is no dispute in this petition that the land in the hands of Sardar Singh was an ancestral property. Reference here may have to the pleadings of the petitioners made in para No.8 of the writ petition and the reply thereto. The averment made by the petitioners in para No.8 of the petition has not been denied by the respondents. His four sons were major as on 1.4.66 and on that point also there is no dispute. The contention raised by the petitioners that it is being the ancestral property the co-sharers/sons are to be treated separate unit, their land cannot be clubbed in the hands of their father for the purpose of determination of ceiling limit but this contention was not accepted by the Additional Collector (Ceiling), Kota and the Board of Revenue, Rajasthan, Ajmer on the ground that the petitioners have not proved to their satisfaction that these 4 sons were not dependent on their father. Similarly the plea taken regarding the share in ancestral property of the grand-sons has been rejected on the ground that the documents produced are the zerox copy and not the original. Document Annexure-13 has not been denied by the respondents in the reply. When document Annexure-13 is admitted by the respondents it is difficult to accept decision given by the Board of Revenue that the son of Sardar Singh was dependent on his father. Shri Nand Singh was in the Government service and he cannot be taken to be dependent on his father. So far as the documents regarding the school leaving certificates of Prem Kumari and two others are concerned, it is submitted that the correctness thereof has to be adjudged by the authorities below. (12). In para No.10 of the writ petition, the petitioners have made the following averments:- ``That the petitioners submitted before the Addl. Collector that the family members are 13 in number but the Addl. Collector did not accept this contention of the petitioners on the ground that 2 sons wife are not family members and 4 other persons were not born on 1.4.66. It is submitted that the petitioners filed the copy of the order of substitution as well as the school certificates regarding the age of the grand children, but the same was not taken into consideration on the ground that original documents are not produced and copies are. It is submitted that the petitioners filed the copy of the order of substitution as well as the school certificates regarding the age of the grand children, but the same was not taken into consideration on the ground that original documents are not produced and copies are. not properly attested. The petitioners are filing the original certificates before this Honble Court as Ann.9. (13). The reply to this para has been given by the respondents is as under:- ``That the contents of para No.10 of the writ petition are denied. It is submitted that the finding arrived at by the Additional Collector, respondent No.3 with regard to family members is correct. It is submitted that two sons wife, who were not member of family according to definition of family and one grand daughter and one grand son was shown in return filed by the petitioner on 29.9.66, which was included in seven members. The rest two grand children was not shown by the petitioner himself in return. It is also submitted that so far as the family members alleged by the petitioner is concerned, no such evidence was produced by the petitioner before Additional Collector and before this Honble Court also. The petitioner has failed to submit any document showing the members of family except with regard to one Prem Kumari grand daughter of Sardar Singh, daughter of Bahadur Singh, which is submitted by the petitioner with this writ petition as Annexure-9. It is submitted that name of the Prem Kumari is not mentioned in the return by the petitioner. In view of the above facts, it is submitted that after consideration of the documents produced by the petitioner finding has been arrived by the Additional Collector which is correct one. (14). The school leaving certificate of Prem Kumari was not denied by the respondents. The correctness of this document has also not been denied by the respondents. Otherwise also the document which comes from the record of the Government school correctness thereof could have been ascertained by the respondent State easily. Only defence has been taken that her name was not mentioned in the return filed by the petitioners. It may be correct but in case the unmarried grand-daughter was there on 1.4.66 certainly this aspect of the matter needs to be considered. Only defence has been taken that her name was not mentioned in the return filed by the petitioners. It may be correct but in case the unmarried grand-daughter was there on 1.4.66 certainly this aspect of the matter needs to be considered. Similarly the certificates produced regarding Arvind Singh and Vimlesh Kumari before this Court have also not been disputed by the respondents. One certificate is of Board of Secondary Education, Rajasthan and another from the Government school. These two persons as per their date of birth given in the certificates were born before 1.4.66 and are undisputedly the grand children of late Sardar Singh. (15). As a result of the aforesaid discussions this petition succeeds and the same is allowed. The judgment of the Additional Collector (Ceiling), Kota dated 9.11.82 in case No. 046/82/C/reopen (State of Rajasthan vs. Sardar Singh); the judgment of the Board of Revenue, Rajasthan, Ajmer dated 2.1.84 in Appeal No.8/83/Ceiling/Kota and its order dated 30.11.87 in Review No.2/84/Ceiling/Kota Annexures-10, 11 and 12 are quashed and set aside. The Additional Collector (Ceiling), Kota is directed to restore the reopened ceiling case of the petitioners to its original number and decide the same in accordance with law and after considering the documents viz. the service certificate of Nand Singh and school leaving certificates and Board certificate of three grand children of late Sardar Singh. The copy of these documents are to be filed by the petitioners. The Additional Collector (Ceiling), Kota is further directed to give opportunity to the petitioners if they so desire to produce any further documentary or oral evidence. The Additional Collector (Ceiling), Kota is free to make the inquiry regarding the genuineness and correctness of the document regarding the service certificate of late Nand Singh and school leaving certificates of three grand children. The matter is old one and the Additional Collector (Ceiling), Kota is directed to decide the same within a period of six months from the date of receipt of certified copy of this order. The office is directed to send a copy of this order forthwith to the Additional Collector (Ceiling), Kota. The petitioners are directed to present themselves before the Additional Collector (Ceiling), Kota on 27.10.2001. The compliance of this order is to be reported to the Court.