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2002 DIGILAW 534 (RAJ)

Vikram Singh v. State of Raj.

2002-03-06

ARUN KUMAR, PRAKASH TATIA

body2002
Honble TATIA, J.–An issue was raised before the learned Single Judge in this case that whether in view of the provisions of Sec. 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short ``the Act of 1973), the Collector has any jurisdiction to initiate proceedings for making a reference to the Board of Revenue in respect of an order passed on 30.6.1970 for determining the ceiling area of the lands that could be held by the petitioners under Chapter III-B of the Rajasthan Tenancy Act, 1955 (for short ``the Act of 1955). (2). The learned Single Judge, after hearing arguments considered the two judgments relied upon by the learned counsel for the petitioners, namely, Om Prakash and others vs. State of Rajasthan (1), and Hari Singh vs. State of Rajasthan & Ors. (2), which support the contentions of the petitioners but the learned Single Judge felt himself unable to agree with the view taken in the above two judgments. Therefore, the learned Single Judge, directed to place the matter before Honble the Chief Justice to resolve the issue. Thereafter, the matter came up for hearing before us. (3). The brief facts which are necessary for deciding the point in controversy are that Chapter III-B of the Act of 1955 was introduced by Section 3 of the Rajasthan Tenancy (Amendment) Act, 1960, published in Rajasthan Gazette Extraordinary Part IV-A dated 21.3.60 vide Notification No. F. 6(2) Rev. V/70(i) and this chapter came into force with effect from 15.12.1963. Chapter III- B provides ``Restriction of holding land in excess of ceiling area. Chapter III-B contains various sections providing for declaration of the extent of agricultural land which can be held by agriculturists and the mode of determination of excess agricultural land. The agriculturists were required to surrender excess land which shall vest in the State Government. As per the provisions of Chapter III-B of the Act of 1955, appointed date was fixed as 1.4.1966 and the land is to be assessed as held on 1.4.1966 by the Agriculturists in accordance with the provisions of Chapter III-B. (4). After coming into force of the above provisions of Chapter III-B, Ummaid Singh ancestor of the petitioners submitted a return before the Sub-Divisional Officer, Jalore upon which case No. 13/68 was registered. After coming into force of the above provisions of Chapter III-B, Ummaid Singh ancestor of the petitioners submitted a return before the Sub-Divisional Officer, Jalore upon which case No. 13/68 was registered. Ummaid Singh expired and his successors were taken on record and the proceedings were completed as per the above provisions. The Sub-Divisional Officer, vide its decision dated 30.9.1979, held that 514-1/2 standard acres of land were surplus in the hands of the agriculturists. In pursuance of above order the land was surrendered by the petitioner and the order dated 30.9.1970 was not challenged by the State Government by filing any appeal under the provisions of the Act of 1955, therefore, the order dated 3.9.1970 became final. (5). The above ceiling law (Chapter III-B of the Act of 1955) was repealed first by the Ordinance and then by ``the Rajasthan Imposition of Ceilings on Agricultural Holdings Act, 1973 which Act came into force on 1.1.1973. In the Act of 1973 the State Government has been given power to avail the remedies against case decided under old ceiling law of Chapter III-B by making provision under Section 15(2) of the Act of 1973. Old law of ceiling has been saved for this purpose by virtue of Sec.40 of the Act of 1973. (6). The Tehsildar concerned submitted an application before the District Collector, Jalore for initiation of proceedings under Section 232 of the Act of 1955 with a prayer that the mutation opened in pursuance of the decision given in ceiling case No. 13/68 of the petitioners predecessor deserves to be cancelled and, therefore, the matter may be referred to the Board of Revenue, upon which the District Collector issued notice dated 11.8.1999 fixing date on 8.9.1999. The back history of initiation of proceedings is not relevant for the purpose of decision of present writ petition except that the challenge to the proceedings is also on the ground of inordinate delay in initiation of proceedings under Section 232. (7). The petitioners aggrieved against the above proceedings preferred Writ Petition No. 2289/99 on earlier occasion challenging the order dated 11.5.1999 by which decision was taken to make a reference regarding the land in question. (7). The petitioners aggrieved against the above proceedings preferred Writ Petition No. 2289/99 on earlier occasion challenging the order dated 11.5.1999 by which decision was taken to make a reference regarding the land in question. The writ petition was dismissed holding it as premature, against which D.B. Civil Special Appeal No. 1004/99 was preferred which was dismissed by the Division Bench of this Court holding that notice dated 11.8.1999 had already been issued fixing date of 8.9.1999 under Section 232 of the Act of 1955 which is a subsequent event and, therefore, the petitioners may prefer a separate petition or take some other remedy available under the law against notice dated 11.8.1999. Thereafter, the petitioners have preferred the present writ petition challenging the notice dated 11.8.1999. (8). The learned counsel for the petitioners submitted that the order dated 30.9.1970 passed under Chapter III-B of the Act of 1955 became final as it was not challenged by the State till Chapter III-B was in force. Chapter III-B of the Act of 1955 was repealed by new ceiling law ``The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 which came into force from 1.1.1993, therefore, a matter decided under the repealed provisions of law cannot be reopened because of the reason that if the order dated 30.9.1970 is set aside then there will be no provisions of law in force under which the ceiling case of the petitioners can be decided. In support of it, the learned counsel for the petitioners submitted that as per the decision of the Full Bench delivered in : Banshidhar and others vs. State (3), and upheld by the Supreme Court in special appeal against the same judgment (Banshidhar vs. State (4), proceedings for determination of ceiling and surplus area of land holder commenced under Chapter III-B prior to repeal are governed by the old law and required to be determined under Chapter III-B only. The Full Bench of the Rajasthan High Court further held that it can be done when the proceedings initiated under Chapter III-B were pending when the new Act of 1973 came into force. According to the learned counsel for the petitioners, admittedly, no proceedings under Chapter III-B were pending in the matter of holding of the predecessor of title of the petitioners or against the petitioners when the new Act of 1973 came into force. According to the learned counsel for the petitioners, admittedly, no proceedings under Chapter III-B were pending in the matter of holding of the predecessor of title of the petitioners or against the petitioners when the new Act of 1973 came into force. Therefore, ceiling matter of the agricultural holding of the petitioners became final and cannot be challenged even under Sec.232 of the Act of 1955. (9). The learned counsel for the petitioners vehemently submitted that Section 40 of the Act of 1973 repealed the entire Chapter III-B of the Act of 1955 except for the purposes of second proviso to sub-section (1) of Section 4 and for the purpose of sub-section (2) of Section 15 of the Act of 1973. According to the learned counsel for the petitioners, it is clear from Section 40 of the Act of 1973 that the legislature, in its wisdom, saves Chapter III-B of the Act of 1955 specifically only for above two provisions and not for any other provision of the Act of 1955, therefore, in case, the District Collector thinks it fit to refer the matter decided on 30.9.1970 to the Board of Revenue under Section 232 of the Act of 1955 then the Board of Revenue will have no existing law (since Chapter III-B of the Act of 1955 stands repealed by Section 40 of the Act of 1973) under which the ceiling matter of the petitioners can be decided by the Board of Revenue. (10). The learned counsel for the petitioners further submitted that Section 15(2) of the Act of 1973 itself gives power to the State Government to reopen a ceiling matter decided under Chapter III-B by invoking Section 15(2) of the Act of 1973 by initiating proceedings within the precribed period of limitation as provided under second proviso to sub-sec. (2) of Sec. 15 of the Act of 1973. The State Government has not chosen to reopen the ceiling case decided on 30.9.1970 by invoking powers under sub-sec. (2) of Sec. 15 and the limitation for reopening has already expired long back and, according to the learned counsel for the petitioners, only remedy was available to the State Government under the Act of 1973 and no other remedy is available to State Government. (11). According to the learned counsel for the petitioners, the law was correctly interpreted in the judgments of Om Prakash (supra) and Hari Singh (supra). (11). According to the learned counsel for the petitioners, the law was correctly interpreted in the judgments of Om Prakash (supra) and Hari Singh (supra). (12). The learned Single Judge, in the order of reference dated 21.8.2000, considered the above judgments and the provisions of Section 15(2) and Section 40 of the Act of 1973 and Section 6 of the General Clauses Act. The learned Single Judge gave reason for taking a different view from the view taken in the above two judgments and observed that the judgments delivered in the above two cases have been rendered without noticing the language of Section 15(2) as well as Section 40 of the Act of 1973 and Section 6 of the general Clauses Act, therefore, the above judgments are per incuriam. (13). The learned counsel for the respondents tried to support the view taken in the order of reference dated 21.8.2000 by taking help of the above order dated 21.8.2000 itself relying upon the reasoning given by the learned Single Judge in the above order and also submitted that the Board of Revenue has power under Section 221 of the Act of 1955 which is the general power of superintendence and control over all revenue courts and which is in addition to power under Section 232 of the Act of 1955. The Board can correct the mistake committee by the competent authority while deciding ceiling case of the petitioners, for which, the learned counsel for the respondents relied upon the judgment of the Honble Apex Court delivered in : Surendra Pal Singh vs. Board of Revenue for Rajasthan and others (5), and further submitted that there is no limitation prescribed for initiating proceedings under Section 232 of the Act of 1955 and the Division Bench of this Court in the judgment delivered in : Chiman Lal vs. State of Rajasthan & Ors. (6), held that when no period of limitation has been prescribed by the legislature for preferring revision under the Rajasthan Panchayat Act, 1953 then the common law doctrine of public policy can be enforced wherever an action affects/offends the public interest or where harmful result of permitting the injury to the public at large is evident. Therefore, according to the learned counsel for the respondents, there is no bar of limitation for initiating proceedings under Section 232 of the Act of 1955. (14). Therefore, according to the learned counsel for the respondents, there is no bar of limitation for initiating proceedings under Section 232 of the Act of 1955. (14). In above facts, Section 15 is required to be considered, which reads as under:- ``15. Power to reopen 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 such order is prejudicial to the State Government or that on account of the discovery of new and important matter of evidence which has since come to its notice, such order is required to be re-opened, 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 : 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 the expiry of the 30th day of June 1979, whichever is later. (2) Without prejudice to any other remedy that may be available under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final orders passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter of evidence which has since come to its notice, such order is required to be re-opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions : 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 : Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of seven years from the date of the final order sought to be re-opened or after the expiry of 30th day of June, 1979, whichever is later. Provided that no final order passed by the Board in the matter referred to in sub-section (1) or in sub-section (2) shall be directed to be re-opened on account of the discovery of new and important matter or evidence which has since come to the notice or due to some mistake or error apparent on the face of the record. (3) Where any person challenges the direction issued by the State Government to re-open a decided matter under sub-section (1) or under sub-section (2) in any court and such direction is quashed by the court on account of any procedural defect or on a technical ground or on the ground that the authority who issued the directions had no jurisdiction, the period during which the proceedings remained pending in the court shall be excluded in computing the period of limitation provided by second proviso to sub-section (1) or sub-section (2) for the purpose of making fresh direction for re-opening decided matters under the said sub-sections. (15). (15). It is clear from sub-section (2) of Section 15 that sub- section (2) of Section 15 provides :- (i) saves remedy which may be available under the Rajasthan Tenancy Act, 1955 and (ii) power to reopen a case decided under Chapter III-B of the Act of 1955. As per first part of Section 15(2), in case the State Government decides to avail remedy under the Rajasthan Tenancy Act, 1955, the State may proceed under the provisions of the Rajasthan Tenancy Act, 1955 against the order passed under Chapter III-B of the Act of 1955. Since the remedy which is available under the Act of 1955 has been saved by first part of sub-section (2) of Section 15, therefore, there was no need to prescribe a separate procedure for availing the remedy under the Act of 1955, therefore, it has not been provided under the Act of 1973 whereas the complete procedure has been prescribed including the limitation for initiation of proceeding and exclusion of time in case any stay order is granted by the court in case the State wants to avail remedy under Section 15(2) of the Act of 1973 itself. It is further pertinent to mention here that in subsequent part of Section 15(2), proviso to sub-section (2) of Section 15 deals with the cases when the State Government intends to ``reopen the decided case and in provisions 2 and 3, there is a specific reference of the word ``re-open, the use of word ``re-open is significant at this place of Section 15(2) and the provisos thereunder whereas it is not used for the remedy under the Act of 1955. Therefore sub-section (2) of Section 15 deals with the remedy against erroneous orders passed under Chapter III-B of the Act of 1955 and does not cover the entire field of remedial action but only covers it partially. It merely provides additional measures and leaves the remedy against such orders under the Rajasthan Tenancy Act unaffected. (16). To further appreciate the legal position, it will be worthwhile to quote Section 40 of the Act of 1973, which reads :- ``40. It merely provides additional measures and leaves the remedy against such orders under the Rajasthan Tenancy Act unaffected. (16). To further appreciate the legal position, it will be worthwhile to quote Section 40 of the Act of 1973, which reads :- ``40. Repeal and savings.- (1) Except as provided in second proviso to sub-section (1) of section 4 and in sub-section (2) of section 15 of this Act, the provisions of clause (6-A) of section 5 and chapter III-B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) are hereby repealed except in the Rajasthan Canal project area wherein such provisions shall stand repealed on the date on which this Act comes into force in that area. (2) The Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973 (Rajasthan Ordinance 1 of 1973) is hereby repealed. (3) Notwithstanding the repeal of the said Ordinance under sub-section (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 (Rajasthan Act 8 of 1955) shall apply to such repeal and re-enactment. (17). It is clear from Section 40 of the Act of 1973 that Chapter III-B of the Act of 1955 has been repealed except for the purpose of proviso to sub-section (1) of Section 4 and for sub-section (2) of Section 15 of the Act of 1973. Here in this controversy, we are concerned with the interpretation of sub-section (2) of Section 15 of the Act of 1973. It is clear from Section 40 of the Act of 1973 that for purpose of sub-section (2) of Section 15 of the Act of 1973, Chapter III-B has not been repealed. Section 40 of the Act of 1973 saves Chapter III-B for the entire sub-section (2) of Section 15 which includes the saving of Chapter III-B of the Act of 1955 for availing the remedy available under the Act of 1955 also. It cannot be held that Chapter III-B has been saved only for the cases ``re-opened under Section 15(2). (18). Section 40 of the Act of 1973 saves Chapter III-B for the entire sub-section (2) of Section 15 which includes the saving of Chapter III-B of the Act of 1955 for availing the remedy available under the Act of 1955 also. It cannot be held that Chapter III-B has been saved only for the cases ``re-opened under Section 15(2). (18). The submission of the learned counsel for the petitioners is that the State Government had remedy under the Act of 1955 for challenging the order passed under Chapter III-B by preferring appeal against the order but has no power to invoke Section 232 of the Act of 1955 because of the reason that Section 232 cannot be said to be a remedy available to the State Government against any order passed under Chapter III-B of the Act of 1955. We are unable to accept the submission of the learned counsel for the petitioners because under Section 232 of the Act of 1955 the Board of Revenue is empowered to vary, cancel or reverse the order passed by the court subordinate to it. Therefore, when relief can be granted under this Section then it is certainly remedy available under the Act of 1955. (19). Sub-section (1) of Section 15 starts with non-obstante clause ``Notwithstanding anything contained in this Act, whereas sub-section (2) starts with ``Without prejudice to any other remedy that may be available under the Rajasthan Tenancy Act, 1955. The learned Single Judge in its order dated 21.8.2000, while dealing with Section 15 of the Act of 1973 considered the difference of language used under sub-section (1) and sub-section (2) of Section 15 and rightly observed that sub- section (2) is not an non-obstante clause but opens with expression ``without prejudice to any other remedy that may be available under the Rajasthan Tenancy Act, 1955 and held that there is no room to exclude the provisions of the Rajasthan Tenancy Act relating to remedy available under the Tenancy Act in any manner. We are in full agreement with the view taken by the learned Single Judge in its order dated 21.8.2000. The learned Single Judge further rightly held that the remedies available under the Tenancy Act are conditioned by the provisions of the Act of 1955 and not by the Act of 1973. (20). We are in full agreement with the view taken by the learned Single Judge in its order dated 21.8.2000. The learned Single Judge further rightly held that the remedies available under the Tenancy Act are conditioned by the provisions of the Act of 1955 and not by the Act of 1973. (20). The learned Single Judge in its order dated 21.8.2000 considered Section 6 of the General Clauses Act and, in our opinion, rightly held that :- ``In the absence of any context to the contrary the remedy provided under the repealed Act, which the affected party has right to pursue, proceedings for such remedy can be instituted in respect of the obligation arising under the enactment unless the context in the repealing Act otherwise provided. (21). The judgment which was relied upon by the learned counsel for the appellants delivered in : Banshidhar and Ors. vs. State (supra), is a decision of the Full Bench of this Court where controversy was with respect to the legal position that whether after coming into force of the Act of 1973, the proceeding which was pending under Chapter III-B of the Act of 1955 are governed by the new Act of 1973 or will be governed by the provisions of Chapter III-B. The Full Bench of this Court considered the various provisions of Chapter III-B of the Act of 1955 and the provisions of Ordinance of 1973 (subsequently Act of 1973) and held that the Ordinance of 1973 prescribed entirely a new scale and ceiling area and, after considering at length the various provisions of law on the point, held that :- ``The repeal of the old Law does not affect such investigation under Section 6(e) of the Rajasthan General Clauses Act, and the investigation into the claims made by the land- holders had still to be adjudicated upon. For without such investigation and adjudication, there could be no quantification of the ceiling area of the land-holders in these pending cases. Thereafter, held that :- ``The opening words of the section ``without prejudice to any other remedy that may be available to it under the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) clearly show that the pending cases have to be governed by the old Law. Thereafter, held that :- ``The opening words of the section ``without prejudice to any other remedy that may be available to it under the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) clearly show that the pending cases have to be governed by the old Law. If transactions post and closed have to be reopened and decided afresh under the provisions of the repealed Law, and the ceiling area under Chapter III of the Rajasthan Tenancy Act, 1955, he to be fixed under its repealed provisions, then it must follow as a necessary corollary, that the pending cases must be decided under the old Law. (22). The Honble Apex Court in the judgment delivered in : Banshidhar and Ors. vs. State of Raj. & Ors. (supra), while considering the above judgment of the Full Bench, held that the pending cases are required to be decided under the old Law (Chapter III-B of the Act of 1955) and took note of the observations which are as under :- ``It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should be or should not be given. On a repeal the former is preserved by the Interpretation Act. The latter is not. Thereafter, the Honble Apex Court held :- ``We agree with the High Court that the right of the State of the excess land was not merely an inchoate right under the Act, but a right ``accused within the meaning of Sec. 6(c) of the Rajasthan General Clauses Act, 1955, and the liability of the land-owner to surrender the excess land as on 1.4.1966 was a liability ``incurred also within the meaning of the said provision. There is no substance in contention (b) either. (23). The reasoning given in above two judgments makes it clear that the right accrued to the State Government under Chapter III- B of the Act of 1955 and the corresponding liability was incurred by the land holder agriculturist. The right accrued to the State is to acquire excess land from the assessee as on 1.4.1966. (23). The reasoning given in above two judgments makes it clear that the right accrued to the State Government under Chapter III- B of the Act of 1955 and the corresponding liability was incurred by the land holder agriculturist. The right accrued to the State is to acquire excess land from the assessee as on 1.4.1966. Determination of extent or measurement of the land is called quantification of the land. Accrual of right of the State over excess land is statutory, it accused to the State when Chapter III-B came into force and on the cut out date, rest all are the proceedings only for quantification of land in the hand of assessee. By exercising remedy under the provisions of Section 15(2) of the Act of 1955 or by proceeding of reopening of decided case, both (1) reopening by exercising power under Section 15(2) or (2) by availing the recourse under the Rajasthan Tenancy Act, 1955 are nothing but process of quantification of the land to be surrendered by the agriculturist land holder. Though the point in controversy in the above judgment of Banshidhar was with respect to only pending cases at the time of commencement of the Act of 1973 but the same reasoning fully applies to an already decided case under Chapter III-B when the State Government decides to avail the remedy under the provisions of the Act of 1955. For the reason as said above, by both the remedies, only quantification of the land has to be done for the already accrued right of the State and the liability incurred by the agriculturist. (24). We are unable to accept contention of the learned counsel for the petitioners that right accrued to the State in present case was upto the extent of 2466.9 Bighas of land and the action of the Collector in initiation of proceedings under Sec.232 of the Act of 1955 is in hope or expectation of acquiring a right. The extent of land or the measurement of the land is the quantity of the extent of benefit or extent of liability and not the right or liability itself, therefore, there is no force in the submission of the learned counsel for the petitioner that action of the Collector by initiation of proceedings under Sec.232 is in hope and expectation only and not an action for quantification of liability of petitioners. (25). (25). In view of the above discussion, it is held that the law laid down in the decision given in the above two judgments of Om Prakash (supra) and Hari Singh (supra) does not lay down the correct law. (26). So far as challenge to the action of the respondents for initiating proceedings u/Sec. 232 of the Act of 1955 on the ground of inordinate delay in initiating proceedings is concerned, the petitioners may raise this objection before the concerned authority in reply to the show cause notice so that the concerned authority may examine the matter after considering the facts of the case in the light of the decisions given by this Court in Full Bench decision delivered in : Chiman Lal vs. State of Raj. & Ors. (supra), as full factual material is not available before us to examine the reason for delay nor this Court will incline to investigate into the factual aspects of the matter for the reason of delay. (27). Therefore, reference is answered that Collector has jurisdiction to initiate proceedings for making reference to the Board of Revenue in respect of the order passed on 30.6.1970. The decisions in the case of Om Prakash and Hari Singh do not lay down the correct law. (28). The writ petition of the petitioners is dismissed with liberty to the petitioners to raise all or any defence before the Collector which may be available under law including defence on the basis of delay in initiation of proceedings.