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2006 DIGILAW 59 (RAJ)

Durgadan v. State of Raj.

2006-01-04

GOVIND MATHUR

body2006
Honble MATHUR, J.—This writ petition is arising out of the judgment dated 6.1.1989 passed by Board of Revenue affirming the judgment dated 20.9.1984 passed by the Collector and District Magistrate, Jalore exercising powers under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 (hereinafter referred to as "the Act of 1973"). (2). The authorised officer under Chapter-III-B of the Rajasthan Tenancy Act initiated proceedings against Shri Nathudan and held that he was having 4.64 standard acres land in excess to the ceiling limits for holding agricultural land. The State Government under the Act of 1973 reopened ceiling proceedings by an order dated 16.6.1980. The Collector, Jalore accordingly adjudicated the issue with regard to determination of agricultural land holding by Shri Nathudan. During pendency of aforesaid proceedings Shri Nathudan died, therefore, Legal Representatives of Shri Nathudan viz. Smt. Mohan Kanwar and Smt. Santosh Kanwar both widows of Shri Nathudan and Durgadan son of Shri Nathudan were taken on record. The Collector, Jalore by order dated 20.9.1984 held that Shri Nathudan was having 21.39 standard acres land in excess to the excess to the agricultural land holding ceiling prescribed by Government of Rajasthan. Accordingly an order was passed to resume surplus land. The Collector reached on the conclusion aforesaid by holding that Shri Durgadan at the time of determination of agricultural holding by Shri Nathudan was minor and he was shown as dependent to Nathudan in the return submitted by Shri Nathudan, as such partition of immovable property in favour of Durgadan on 8.3.1968 is shum. On basis of it the Collector treated the land share of Durgadan as part of the land of Nathudan and on that basis 21.39 standard acres of land was treated in excess. The Collector, Jalore also held that principle of co-parcenery rights do not apply in present case as there was no question of any partition during lifetime of Shri Nathudan. It is pertinent to mention here that there is no dispute with regard to the fact that land in question was ancestral land. (3). The Board of Revenue while rejecting the appeal preferred by Shri Durgadan and Smt. Santosh Kanwar against the judgment dated 20.9.1984 passed by the Collector, Jalore also held that Durgadan was dependent to Shri Nathudan as this fact is mentioned in return itself submitted by Nathudan. (4). (3). The Board of Revenue while rejecting the appeal preferred by Shri Durgadan and Smt. Santosh Kanwar against the judgment dated 20.9.1984 passed by the Collector, Jalore also held that Durgadan was dependent to Shri Nathudan as this fact is mentioned in return itself submitted by Nathudan. (4). While giving challenge to the orders passed by the Board of Revenue as well as by the Collector, Jalore the contention of the Counsel for the petitioners is that the Courts below erred while holding that Shri Durgadan was dependent to Shri Nathudan merely on basis of an assertion in return submitted. According to Counsel for the petitioners the Collector, Jalore by judgment dated 20.9.1984 treated petitioner Durgadan dependent to Shri Nathudan being minor on 1.4.1966. It is urged that question of dependence is having no relation with the ate of person concerned. It is required to be determined by taking into consideration the existing facts. It is also contended by Counsel for the petitioners that the land being ancestral, the co-parcenery rights vested with Shri Durgadan from the date of his birth. In totality the argument of Counsel for the petitioners is that petitioner Durgadan on 1.4.1966 was co-parcener and, therefore, was having rights in the land in question. It is emphasised that Durgadan was not at all dependent to Shri Nathudan as he was having his own share in the land. To substantiate the contention Counsel for the petitioners has placed reliance upon a judgment of this Court in the case of Jaganath vs. S.D.O. & Ors., reported in 1985 RLR 557. In the aforesaid case this Court while relying upon a judgment of Honble Supreme Court held that no co-parcener in a Hindu Undivided Family is a dependent if in the family he is an owner of the entire property of the family in common with the other co- parceners. His rights arise on birth into the family and so long as the family remains joint, his interest in the property is not a bit less than the interest of any other co-parcener. In the case of Jaganath (supra), this Court also held that dependency is a material circumstance determining the question as to whether children or grand-children would be considered to be members of family or would be excluded by treating them as independent units. The question of dependence is required to be proved with a definite finding. In the case of Jaganath (supra), this Court also held that dependency is a material circumstance determining the question as to whether children or grand-children would be considered to be members of family or would be excluded by treating them as independent units. The question of dependence is required to be proved with a definite finding. The dependency cannot be inferred merely on basis of minority of children or grand-children. (5). In the instant petition learned Board of Revenue held Shri Durgadan as dependent to Shri Nathudan only on the count that on 1.4.1966 he was minor and Shri Nathudan shown Shri Durgadan as minor in the return submitted by him. I am of the considered opinion that the Courts below inferred that Shri Durgadan was dependent to Shri Nathudan described Durgadan as his dependent in the return, he could not be treated as dependent to Shri Nathudan. The Courts below were required to adjudicate this issue by considering all relevant facts specially the fact that Shri Durgadan was co-parcener as the land in question is ancestral land. He acquired co-parcenery rights from the day he born. The Collector, Jalore as well as the Board of Revenue erroneously treated Shri Durgadan a dependent to Shri Nathudan and, therefore, wrongly included his share while determining agricultural land holding by Shri Nathudan. (6). In view of whatever discussed above the writ petition deserves acceptance. The same, therefore, is allowed. The order impugned passed by the Collector, Jalore dated 20.9.1984 and by Board of Revenue dated 6.1.1989 are hereby quashed. (7). No order as to costs.