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2006 DIGILAW 128 (RAJ)

Madan Dan v. B. O. R.

2006-01-10

BHAGABATI PRASAD BANERJEE, S.N.JHA

body2006
Honble JHA, CJ.—This writ petition has come up before us on reference by a learned Single Judge. The order of reference dated 8.9.1999 is not speaking and does not set out the point of reference but from the order dated 14.12.1998 it appears that conflicting orders of this Court were brought to the notice of the learned Judge in view of which the learned Judge presumably thought it appropriate to refer the case to Division Bench. (2). The writ petition has been filed for quashing order of the State Government dated 5.6.1978 reopening a disposed of proceeding in terms of Section 15(2) of the Imposition of Ceiling on Agricultural Holding Act, 1973, the order of the Additional Collector (Ceiling) Pali/dated 28.9.1995 determining the ceiling area of the petitioner, and the order of the Board of Revenue dated 19.3.1996 upholding said order of the Additional Collector. (3). Before noticing the case of the petitioner, it may be stated that in order to provide for ceiling on agricultural holdings and acquisition of the excess land, Chapter III-B was inserted in the Rajasthan Tenancy Act, 1955 by amendment. Chapter III-B was repealed subject to certain exceptions by the Rajasthan Imposition of Ceiling from Agricultural Holdings Act, 1973 (in short, the 1973 Act), we shall notice the repeal and savings clause contained in Section 40 of the said Act later in this order. (4). Section 15 of the Ceiling Act confers power upon the State Government to reopen cases decided earlier under the Chapter III- B of Rajasthan Tenancy Act or the 1973 Act. It may be mentioned here that the provision relating to reopening of the proceeding decided under Chapter III-B of the Rajasthan Tenancy Act was inserted by amendment as Sub-section (2) by Rajasthan Act No. 6 of 1979. In other words, Section 15 as stood in the beginning provided for reopening of a disposed of proceeding under the Act i.e., the 1973 Act. (5). The case of the petitioner is that once a proceeding is initiated but dropped under the 1973 Act, it cannot be reopened under the old Act i.e., Chapter III-B of the Rajasthan Tenancy Act, though it can be reopened under the 1973 Act. (5). The case of the petitioner is that once a proceeding is initiated but dropped under the 1973 Act, it cannot be reopened under the old Act i.e., Chapter III-B of the Rajasthan Tenancy Act, though it can be reopened under the 1973 Act. It may be mentioned here that the provisions of 1973 Act are less favourable from the land-holders point of view inasmuch as the ceiling area provided thereunder is less than the area provided under Chapter III-B of the Rajasthan Tenancy Act and, therefore, prima facie, the stand of the petitioner, that the proceeding cannot be re-opened under Chapter III-B but it can be re-opened under the new Act is not understandable. However, this may not have much relevance in view of the interpretation put forward by the Supreme Court in State of Rajasthan vs. Amarjeet, 2003 (2) SCC 247 , wherein it was held "where the ceiling area determined under the 1973 Act exceeds the ceiling area determined under the 1955 Act, it will be the lesser area that would be applicable to a person. The 1973 Act places the State in an advantageous position irrespective of the extent of the ceiling area determined under the 1955 Act or the 1973 Act. Even if the area determined under the 1973 Act exceeds the ceiling area determined under the 1955 Act is more than the area determined under the 1973 Act the State alone will get the advantage." (6). Be that as it may, the point for consideration is whether in the instant case the State Government was competent to reopen the proceeding under Chapter III-B of the 1955 Act. It is to be kept in mind that the petitioner was subjected to the proceeding under the 1955 Act as well which was dropped. (7). At this stage, Section 15, so far as relevant, may be noticed as under:— 15. Power to re-open cases. It is to be kept in mind that the petitioner was subjected to the proceeding under the 1955 Act as well which was dropped. (7). At this stage, Section 15, so far as relevant, may be noticed 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 re-opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with the provisions of this Act:— (2) Without prejudice to any other remedy that may be available to it under 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 order 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 or 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:— (8). On a plain reading there is nothing in the section-express or implied-putting limitation on the power of the State Government to reopen any proceeding decided under the 1955 Act under Sub-section (2) of Section 15 merely because under the 1973 Act also, proceeding was initiated which was ultimately dropped. The section provides that where the State Government is satisfied that the final order passed in any matter is in contravention of the provisions of the Act and the order is prejudicial to the State Government, or on account of discovery of new important evidence subsequently coming to its notice, such order is required to be reopened, it may direct any officer to reopen decided matters and decide it afresh. Both Sub-sections (1) and (2) are worded in identical language. Both Sub-sections (1) and (2) are worded in identical language. If the proceeding to be reopened was under Chapter III-B of 1955 Act, the order would be passed under Sub-section (2) and if the proceeding was under the 1973 Act, the order of reopening would be passed under Sub- section (1). There is nothing in the section to suggest that where proceedings were initiated and decided under the old Act as well as the new Act, it cannot be reopened for fresh disposal in terms of the old Act under Sub-section (2). (9). It is relevant to mention here that even though Chapter III- B of the 1955 Act was repealed by the 1973 Act, the repeal was subject to certain exceptions as mentioned in Section 40 which reads as under:— "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 of which this Act comes into force in that area. (10). The repeal of Chapter III-B thus has to be read as subject to Section 15 as well the second proviso to Sub-section (1) of Section 4 of 1973 Act which may also be quoted as under:— "Provided further, that if the ceiling area applicable to any person or family in accordance with this section exceeds the ceiling are 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." (11). While considering the question whether proceedings could be continued under the provisions of Chapter III-B of 1955 Act notwithstanding its repeal by the 1973 Act, in the case of Banshidhar & Ors. vs. State of Rajasthan, AIR 1977 Raj. 46 a Full Bench of this Court observed:— "We have, therefore, to examine whether the new law expressly or otherwise manifests an intention to wipe out or sweep away those rights and liabilities which had accrued and incurred under the old law.... vs. State of Rajasthan, AIR 1977 Raj. 46 a Full Bench of this Court observed:— "We have, therefore, to examine whether the new law expressly or otherwise manifests an intention to wipe out or sweep away those rights and liabilities which had accrued and incurred under the old law.... Having carefully gone through all the authorities cited by the parties as referred to above, we are of the opinion that the new Act of 1973 does not have the sweeping effect of destroying all the rights accrued liabilities incurred under the old law......" The Court further observed:— "If transactions passed and closed have to be reopened and decided afresh under the provisions of repealed law, at the ceiling area under Chapter III of the Rajasthan Tenancy Act, 1955 has to be fixed under its repealed provisions then must follow as a necessary corollary, that the pending case must be decided under the old law." (12). Upholding the decision of this Court, the Supreme Court vide its decision in Banshidhar vs. State of Rajasthan, 1989 (2) SCC 557 , observed as under:— "23. One of the indicia that the old law was not effaced is in Section 15(2) of the new Act. It provides that if the State Government was satisfied that the ceiling area in relation to a person as fixed under the old law had been determined in contravention of that law, a decided case could be reopened and inquired into it and the ceiling area and the surplus area determined afresh in accordance with the provisions of the old law. Another indicium is in Section 40(1) read with the second proviso to Explanation to Section 4(1) of 1973 Act which provides that if the ceiling area applicable to a person or a family in accordance with the said Section 4(1) exceeds the ceiling area applicable to such person or family, under the old new, then the ceiling area applicable to such person or family would be the same as was provided under the provisions of the old new. 26. Sri Lodha, learned Counsel for the State of Rajasthan submitted that the ceiling area had to be fixed with reference to the Notified date i.e., 1.4.1966 by the statutory standards prescribed under the Chapter III-B of the 1955 Act. The two legislations are complementary to each other and constitute two tier provisions. 26. Sri Lodha, learned Counsel for the State of Rajasthan submitted that the ceiling area had to be fixed with reference to the Notified date i.e., 1.4.1966 by the statutory standards prescribed under the Chapter III-B of the 1955 Act. The two legislations are complementary to each other and constitute two tier provisions. So far as the cases that attracted and fell within Chapter III-B of 1955 Act, as on 1.4.1966, would continue to be governed by that law as the rights and obligations created by the said Chapter III-B amounted to create rights and incur liabilities. Sri Lodha submitted that the view taken by the High Court was unexceptionable. 27. On a careful consideration of the matter, we are inclined to agree with the view taken by the High Court on the point..... (13). Shri Manish Shishodia, Counsel for the petitioner placed reliance on a decision of Single Bench in Smt. Pari Devi vs. State of Rajasthan, 1984 RLR 931. In that case, the proceedings were taken against the petitioner under the old Act as well as under the new Act and dropped. The Court observed "that the proceeding having been initiated and culminated in favour of the petitioner under the new ceiling law is not open to the respondent to proceed again under the old ceiling law. The decision does not contain any logic to warrant the conclusion that the proceeding decided under the 1955 Act cannot be reopened in terms of Sub-section (2) of Section 15 nor it has said so in express words. (14). On behalf of the respondents, our attention was drawn to the decision of the Division Bench in Ram Gopal vs. State of Rajasthan, D.B. Civil Special Appeal No. 856/1988, decided on 17.1.1989 wherein a different conclusion was arrived in the following words:— "As stated earlier both the provisions of Sub-sections (1) and (2) of Section 15 of the new Ceiling Law have been made to meet two different fact situations, and, therefore, we are of the opinion that despite the fact that the ceiling area has been determined under the old ceiling law as well as the new ceiling law. The State Government, can order to re-opening also under Sub- section (2) of Section 15 of the new ceiling law. The State Government, can order to re-opening also under Sub- section (2) of Section 15 of the new ceiling law. Therefore, even if a case under the old ceiling law as well new ceiling law has been divided and no appeal or revision is pending, it will be open for the State Government to re-open a case decided under old ceiling law by virtue of powers vested under Sub-section (2) of Section 15 of the Act." (15). On behalf of the petitioner, it was submitted that in D.B. Civil Special Appeal No. 228/1984 State vs. Dakhan & Ors., decided on 20.7.1984, the Division Bench had taken a different view. It was also submitted that the decision in the case of Pari Devi (supra), was challenged by the State in Supreme Court which was dismissed. Copy of the order dated 18.2.1994 of the Supreme Court was produced from which it appears that the case was dismissed without giving reasons. (16). In our opinion, it is not necessary to resolve the apparent conflict of opinion in the instant case for the reason that pursuant to the order dated 5.6.1978, the proceeding was re- opened and disposed of, firstly, by the Additional Collector vide his order dated 29.8.1985, and thereafter by the Board of Revenue vide its order dated 19.3.1996 which are subject matter of challenge in this writ petition. We are of the view that reopening order merged in the aforesaid orders of the Additional Collector and Board of Revenue, and the question as to validity of reopening of the order does not arise for consideration at this stage. What is now relevant is whether the orders dated 29.8.1985 and 19.3.1996 are in accordance with law. (17). The writ petition was referred to the Division Bench for hearing on the limited point i.e., validity of reopening order dated 5.6.1978; it would be appropriate in the circumstances to send the case back to the Single Bench for decision on merit, so that in the event of adverse decision, the petitioner is not deprived of his right of special appeal. (18). The matter is accordingly sent back to the Single Bench for decision in accordance with law.