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2006 DIGILAW 248 (RAJ)

Narain Singh v. State of Rajasthan

2006-01-24

R.S.CHAUHAN, S.N.JHA

body2006
Judgment S.N. Jha, CJ.-The writ petition arises from a proceeding under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as the Ceiling Act) 2. The petitioner has approached this Court for quashing the order of the State Government dated 23.05.1981 reopening a proceeding disposed of earlier under Chapter III-B of the Rajasthan Tenancy Act, and the resultant orders of the authority determining the ceiling area of the petitioner and the appellate order upholding the same. Facts of the case, briefly stated, are as follows. 3. On 08.01.1971 pursuant to notice under the Rajasthan Tenancy (Fixing of Ceiling on Land) (Government) Rules, 1963 (hereinafter refered to as the Rules) read with Chapter III-B of the Rajasthan Tenancy Act a return of lands was filed by Narain Singh By order dated 01.07.1971 the Sub Divisional Officer, Gangapur while determining his entitlement to hold land within the ceiling area as fixed by the said Rules and the Act found 1½ acres land as surplus which in course of time vested in the State in terms of the Rules/Act. It is relevant to mention here that ceiling area was so determined taking into account, among others, Munni Bai and Chhoti Bai as members of the family of Narain Singh. It is also relevant to mention here that under Section 30-C of Chapter III-B of the Act the ceiling area for a family consisting of five or less than five members was thirty standard acres of land under that Act. Where members of the family exceed five, the ceiling area was to be increased for each additional member by five standard acres-not exceeding sixty standard acres of land. The term family was defined in Section 30-B to mean "a family consisting of husband and wife, their children and grand children being dependent on them and the widowed mother of the husband so dependent." 4. Case of the petitioner is that after the ceiling area was determined vide order dated 01.07.1971, on 02.08.1971 he sold 14 bighas of land to one Bhambhal, and another 15 bighas to one Sugniya and Shriya. 5. On 01.01.1973, the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 came into force. Section 40 repealded Chapter III-B of the Rajasthan Tenancy Act with certain exceptions. 5. On 01.01.1973, the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 came into force. Section 40 repealded Chapter III-B of the Rajasthan Tenancy Act with certain exceptions. Section 15 of the said Act which provides for reopening of the cases decided earlier either under Chapter III-B of the Tenancy Act or the new Act i.e., the Ceiling Act, empowers the Government, on being satisfied after calling for record or otherwise or on discovery of new and important matter and evidence which has since come to its notice, that final order passed in any matter was in contravention of the provisions of the Act and it was prejudicial to the State Government, to "direct any officer subordinate to it to reopen such decided matter and decide it afresh." Whereas proceeding decided under the new Act i.e., Ceiling Act is to be decided afresh in accordance with the provisions of that Act, proceeding decided under Chapter III-B of the Tenancy Act is to be decided afresh in accordance with the repealed provisions. The reopening order can be passed within the period of limitation. The limitation clause was amended from time to time. 6. In exercise of power conferred under Sub-section (2) of Section 15, the proceeding disposed of by order dated 01.07.1971 in the case of the petitioner was reopened by the State Government after serving show cause notice dated 03..06.1979 on 23.05.1981. Case of the petitioner is that rights accrued to him could not be taken away. In other words, the amended provisions cannot be given retrospective effect. This was the main submission of the Counsel for the petitioner. In course of hearing a question also arose as to whether in view of the inclusion of the Ceiling Act in the Ninth Schedule of the Constitution of India, the validity of the provisions can be challenged? 7. We are not inclined to go into the question as to whether the reopening order suffered from any error, for, as indicated at the out set, pursuant to the reopening order the Additional Collector i.e., the authority under the Act determined the ceiling area of the petitioner vide his order dated 30.04.1984. Thereafter he filed appeal before the Board of Revenue, and after the same was dismissed, an application seeking review of the order which was dismissed vide orders dated 012.1989 and 30.10.1991. Thereafter he filed appeal before the Board of Revenue, and after the same was dismissed, an application seeking review of the order which was dismissed vide orders dated 012.1989 and 30.10.1991. Copies of these orders are Annexures 9, 10 and 12 respectively to the writ petition. 8. We are of the view that the reopening order had merged in the said orders, and the petitioner not having challenged the reopening order and taken chance of success by participating in the resultant proceeding, he cannot question the validity of the reopening order. By the said order dated 30.04.1984 the petitioner was held entitled to 35 acres of land. In addition to 1½ acres already declared surplus vide order dated 01.07.1971 (Supra), additional 10 acres land was declared surplus-which is subject matter of dispute in the writ petition. 9. It may be recalled that ceiling area of the petitioner was determined by order dated. 01.07.1971 treating Munni Bai and Chhoti Bai as members of family of the petitioner. The age of Munni Bai was shown in the return filed on 08.01.1971 as three years whereas Chhoti Bai was shown to be two months old. While scrutinizing the case of the petitioner the State Government found that Munni Bai and Chhoti Bai were born after the cut off date i.e., 01.04.1964 and thus they could not be included in the family of the petitioner and, therefore, the petitioner was not entitled to hold additional land as provided in Section 30-C of the Tenancy Act. The ceiling area determined by including them as members of the family was, therefore, in contravention of the provisions of the Act. Accordingly, notice to this effect was sent to the petitioner to which he submitted reply in which he took the stand that he had declared the age with reference to the cut off date. 01.04.1964. He examined two witnesses in support of his case. Rejecting his case the Additional Collector held that the age declared in the return was with reference to the date of its submission i.e., 08.01.1971 and not 01.04.1964. 10. We have perused the return dated 08.01.1971, copy of which is enclosed as Annexure 1 to the writ petition. The return does not give any indication that the age declared therein was with reference to 01.04.1964. 10. We have perused the return dated 08.01.1971, copy of which is enclosed as Annexure 1 to the writ petition. The return does not give any indication that the age declared therein was with reference to 01.04.1964. We are of view that the ground of reopening being inclusion of Munni Bai and Chhoti Bai as members of the family of the petitioner - as stated in the show cause notice, the question which eminently arose for consideration was whether Munni Bai and Chhoti Bai were born before 01.04.1964 or after? The statements of the two witnesses examined in support of the petitioners case do not inspire much confidence. According to us, having regard to the nature of the controversy the petitioner should have produced some contemporaneous documentary evidence such as school leaving certificate or even Horoscope to prove his case. Some medical evidence such as ossification test report would have clinched the issue. 11. Be that as it may, the case of the petitioner having been rejected by the Additional Collector and the rejection having been upheld by the Board of Revenue it is not possible to take a different view in writ jurisdiction. Once Munni Bai and Chhoti Bai are excluded from the family of the petitioner it would appear that ceiling area was not correctly determined by order dated 01.07.1971. Therefore, the petitioner has no basis to challenge the validity of the reopening order. As a matter of fact, the reopening order does not suffer from any error nor the impugned orders determining the ceiling area after excluding Munni Bai and Chhoti Bai from the family of the petitioner can be said to be erroneous. 12. As regards the case of the petitioner that he had sold 29 bighas of land on 02.08.1971, we may observe that such a case has been pleaded for the first time in this Court. It was not said so in response to the notice under Section 15 (2) or in the objection filed before the Additional Collector or even in the petition of appeal or review before the Board of Revenue. Needless to say that the question as to whether the petitioner really sold the land to the alleged vendees and if so, the transfers were bonafide or not are questions of fact which cannot be determined in the present proceeding. 13. Needless to say that the question as to whether the petitioner really sold the land to the alleged vendees and if so, the transfers were bonafide or not are questions of fact which cannot be determined in the present proceeding. 13. In the above premises, we find no error in the impugned order to warrant interference by this Court. The writ petition is, therefore, dismissed, but without any order as to costs.