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2003 DIGILAW 1682 (RAJ)

Gian Singh v. State of Raj.

2003-12-17

RAJESH BALIA

body2003
Honble BALIA, J.-Heard learned counsel for the parties and perused the material placed before me. (2). The petitioners are legal representatives of deceased Dalip Singh. The proceedings arising out of ceiling proceedings initiated against Dalip Singh under the Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973. The petitioners father was holding 68 bighas and 19 biswas of land. However, in the return filed by him under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, he has shown 33 bighas of land in his name which was within the Ceiling Act. He also disclosed that by gift deeds dated 7.8.1972, he has transferred 6 bighas of land to each of his six daughters who have been married prior to 1972. (3). In the first instance, an enquiry was conducted by the competent officer under the Act of 1973 and a report from Tehsildar was sought. As per the report of Tehsildar dated 23.6.1975, it was found that the holder of the land i.e. Dalip Singh was an old man of about 70 to 75 years. He does not have any male issue and he has, in fact, gifted 6 bighas of land each in favour of each of his six daughters by registered gift deed. He also reported that since the date of gift, the daughters are in possession of the land and are either cultivating the land themselves or given on contract. The Irrigation Department has also issued the water slips in the names of respective daughters. (4). On this report, the competent officer recorded specific finding that the gift deeds have not been executed for avoiding the proceedings of the ceiling but it has been subject matter of bonafide transfers and consequently by order dated 14.7.1975, it was held by the competent officer that Dalip Singh did not hold the land in excess of ceiling limit as on 1.1.1973 and dropped the proceedings. (5). However, the State Government while exercising its powers under Section 15 of the Act of 1973 directed on 24.3.1979 to reopen the case of Dalip Singh under the Act of 1973. (5). However, the State Government while exercising its powers under Section 15 of the Act of 1973 directed on 24.3.1979 to reopen the case of Dalip Singh under the Act of 1973. The reasons which led to reopening of the ceiling proceedings about Dalip Singh are founded in Annex.3 dated 10.4.1980, the order passed by the Additional Collector (Vigilance) in which it has been stated that as on 1.1.1973 how much land was held by Dalip Singh, how many members were in his family on 1.1.1973 and whether the transfers made in favour of his daughters were bonafide or not be subjected to investigation. They should also have a comparison to minimum ceiling land applicable to be held by Dalip Singh under the old ceiling law as well as new ceiling law. However, it does not appear that there was any material with the authorities directing reopening to suggest that finding reached by the competent officer in the first instance, suffers from any infirmity. (6). The competent officer after reopening found that on 25.9.1970, Dalip Singh had 68 bighas and 19 biswas of land and on 7.8.1972, he transferred 36 bighas of land to his 6 daughters for their maintenance. Then he sought to consider whether such transfers are bonafide and has not been transacted for the purpose of avoiding the effect of ceiling law. He has referred to the orders of Board of Revenue published in RRD page 107 that if the transfer is made in favour of any of the relatives, it should be deemed to have been made for avoiding the provisions of ceiling law. On this premise, it was held by the Additional Collector that so far as the members of family of Dalip Singh are concerned, for the purposes of Act of 1973, as all the daughters were already married prior to 1972, only he and his wife, two persons constituted the family, because the transfer was made in favour of the daughters, they are not bonafide and consequently, 22 bighas and 13 bighas of land were held to be surplus land by ignoring the said transfer. (7). This order has been affirmed by the Board of Revenue vide order dated 26.3.1987, following the same decision of Board of Revenue in Jitender Singhs case. Hence, this petition. (8). The order under challenge suffers from error apparent from the face of record. (7). This order has been affirmed by the Board of Revenue vide order dated 26.3.1987, following the same decision of Board of Revenue in Jitender Singhs case. Hence, this petition. (8). The order under challenge suffers from error apparent from the face of record. It cannot be accepted as a principle of law and straight jacket formula that in all cases, where the transfers have been made in favour of relatives has to be considered as conclusive proof of its non-bonafide nature and for the purpose of avoiding ceiling law. There is nothing in ceiling law which finds relatives as persons non-grata and out of range of bonafide transaction. Transfer to relations, without consideration at best be only one relevant consideration in examining the question of bonafide but it cannot be a sole consideration. The consideration cannot be raised to an imperative dictact to hold all such transactions to be not bonafide. Had it been so, the statute would have made provisions for this. The Board of Revenue cannot assign itself the legislative function by laying down a rule of thumb as statute that because transferee is a relative it suffers from the voice of lack of bonafide or mens rea to avoid ceiling laws. Such as approach disclose a closed mind to facts and grounds realistic appearing from record. This is amply demonstrated in the present case. (9). It may be noticed that Section 6 of the Act of 1973 itself does not show or draw any such presumption much less any conclusive proof that transfer by gift made in favour of relative of the land holder between 26th Sept., 1969 and 1/07/1973 has to be treated non-bonafide and with intention to avoid provisions of ceiling law. It is rather unfortunate that what may be true in one case decided by the Board of Revenue have been taken to be indelible mark of statute for the ceiling authority to ad hear to irrespective of the surrounding facts and circumstances of the case. If that were so, the legislative intention would have been made clear by providing that any transfer made in favour of the relatives or near relative of the land holder between those dates shall not be recognised for the purpose of ceiling law but it is not so. (10). If that were so, the legislative intention would have been made clear by providing that any transfer made in favour of the relatives or near relative of the land holder between those dates shall not be recognised for the purpose of ceiling law but it is not so. (10). Moreover Sec. 6 also includes within its ambit gifts, if bonafide nature will fall outside the purview of its restriction. In ordinary course, a gift is transacted between the persons having near relation exuding love and affection. Nobody, ordinarily gifts away his or her properties to strangers. Apparently, the Board of Revenue has not tested the facts of the case on the touch-stone of requirement of law. (11). It is apparent that the only consideration that has prevailed with the Assistant Collector and Board of Revenue after reopening of the ceiling proceeding of Dalip Singh to hold the gift deeds to be non-bonafide because the donees were daughters of donor. In coming to this conclusion, most relevant facts have been ignored by both the authorities. Firstly, that gift deeds were made on the date when they purported to be made as the same were registered. There is no material to suggest that the gift deeds in question could be ante dated to avoid the provisions of Act of 1973. When the gifts were made, the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was not even in the offing. In the order passed by the competent officer on 14.7.1975, it was unequivocally noticed that after holding an enquiry and consideration the report of the Tehsildar, it was evident that land has been transferred to each of the daughter to provide for their maintenance to the extent of 6 bighas each by registered deed. It was also noticed that transferor had no made issue of his own and he was a man of 70 to 75 years and his only affinity is with his daughters. In such cases, if the old man at the twilight of his age has decided to gift a part of his estate to each of his six daughters, retaining part for his own livelihood, considering the fact that his estate was otherwise were to devolve on his daughters, the gift can only be attributed to defeat out come of love and affection and not to ceiling laws which was not affecting him on the date. Coupled with the fact, it is also evident that since the date of transfer respective daughters were put in physical possession of the land in question and were cultivating the same in their own right. There is nothing even to suggest that even after transfer late Dalip Singh continued to cultivate the said land. The Irrigation Department has also issued water slips in the name of donees recognising transfer. In these circumstances, the presumption raised under Section 6 did not survive and stood rebutted. There is no material to suggest ontrary to it. The Tribunal ignored that Section 6 gives rise only to a rebutable presumption as a rule of evidence but does not make the presumption absolute to be conclusive proof. In ignoring this clear position of law, the Board has not at all applied its mind to material on record which leads to only one conclusion that presumption stood rebutted and transaction in question cannot be held to be not bonafide or with intention to avoid ceiling law. (12). It is not in dispute that the petitioner Dalip Singh did not have land in excess of ceiling applicable to him. No attempt has been made even by the Assistant Collector in the first instance to show that if the ceiling case of Dalip Singh was to be considered under the Chapter III-B of the Tenancy act, he would have held less land. (13). In the result, the petition succeeds and the order of competent officer Annex.4 dated 26.3.1987, Annex.5 the order of the Board of Revenue dated 4.5.1990 are quashed. No rder as to costs.