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Rajasthan High Court · body

2006 DIGILAW 910 (RAJ)

State of Rajasthan v. Kishan Lal

2006-03-21

R.P.VYAS, RAJESH BALIA

body2006
Honble BALIA, J.—We have heard learned Counsel for the parties. This appeal is directed against the order of learned Single Judge dated 9.5.1997. 2. The petitioner Respondent No. 1 is an adopted son of Manphool Ram. The ceiling proceedings in the case of Manphool were initiated in the first instance under the Chapter III-B of the Rajasthan. Tenancy Act, 1955. Those proceedings were dropped by the competent officer under the said provisions by holding that said Manphool was not holding land in excess of ceiling applicable to him in the year 1971. 3. Thereafter on commencement of Rajasthan Imposition of Ceiling on Agriculture Holdings Act, 1973 the matter was again examined under the Act of 1973 and by order dated 8.7.1975 the competent officer again dropped the proceedings against Manphool Ram by holding that the land which is held surplus falls within the definition fragment and, therefore, it cannot be acquired under ceiling law. 4. After initiating proceedings under Section 15 (1) vide notice dated 23.11.1977, the matter was reopened vide order dated 23.11.1977. The proceedings were reopened under Section 15(1) on the ground that the holder has transferred 25 Bigha of land on 05.04.1972 in favour of Shri Devi Lal which was not bonafide transfer and without holding inquiry into it has been incorrectly excluded by the competent officer from the holding of Manphool Ram. Secondly, it was opined that the competent officer has not examined whether Kishan Lal, the present Respondent No. 1 was really an adopted son of Manphool Ram and whether the adoption was not bonafide having been made to circumvent or to avoid ceiling law. It was also one of the grounds for reopening of the dropped proceedings by considering that the view the fragment of land is not subject to acquisition under ceiling law was also erroneous. 5. In pursuance of the aforesaid order, at the first instance, by order dated 22.4.1980 the Additional Collector found that the said Manphool Ram held 79 Bigha and 10 Biswa of land in excess of ceiling, limit applicable to him and directed to remove such surplus land in favour of the State. 6. On appeal, the case was remanded by the Board of Revenue vide order dated 2.1.1981. 7. 6. On appeal, the case was remanded by the Board of Revenue vide order dated 2.1.1981. 7. The competent officer by his order dated 8.10.1985, after the aforesaid remand held that the sale deed in pursuance of the decree for specific performance passed on 11.9.1971 was executed on 5.4.1972. The contention of the holder that the execution of sale deed in pursuance of the decree must relate back to the date of execution of agreement of sale was not sustained. The fate was held to be not recognizable having been executed after the relevant date. However, the adoption of Kishan Lal to Manphool evidenced by registered deed dated 5.10.1970 was held to be bonafide, but he opined that because of this adoption, no change is affected in the ceiling proceedings of Manphool Ram. He found that said Manphool Ram held 125.19 bighas canal land. Considering the ceiling limit of 46.08 bigha the remainder of 79.11 biswa of land held to be surplus as on 1.1.1973. 8. In appeal before the Board of Revenue, the Board of Revenue found the transaction made in 1972 in pursuance of the decree of civil Court, was germane and bona de and recognizable transfer under the Act of 1973. He also found the adoption to be bonafide and, further found that the holder Manphool did not have excess land in accordance with the provisions of Act 1973. However, he referred to second proviso to Section 4 which provides that if the ceiling area applicable to any person or family in accordance with Section 4 of Act of 1973 exceeded ceiling area applicable to such person according to the provisions of law repealed by Section 40, in that case ceiling area applicable to such person or family shall be as was under the repealed law. In other words on drawing comparative statement of the ceiling area, applicable to the holder, as on 1.4.1966 under Chapter III-B of the Act of 1955, and under Section 4 of the Act of 1973, whichever is less will be allowed to be retained by the holder and more surplus land to be made available to the State. 9. In other words on drawing comparative statement of the ceiling area, applicable to the holder, as on 1.4.1966 under Chapter III-B of the Act of 1955, and under Section 4 of the Act of 1973, whichever is less will be allowed to be retained by the holder and more surplus land to be made available to the State. 9. On this premise, the Board o Revenue found that as on 1.4.1966, the sale transacted in 1972 cannot be recognized as it fall beyond the last date up to which the transactions of transfer was recognizable in the circumstances stated in the Section 30 DD of the Act of 1955. Thus, for the purpose of finding the ceiling limit under Chapter III-B of the Rajasthan Tenancy Act and in terms of Section 4 of the new ceiling Act, the Board of Revenue sustained the order of the competent officer about the determination of the surplus land in the hands of holder Manphool. 10. It is the order of the Board of Revenue dated 22.8.1989 which was made subject matter of Writ Petition No. 3180/89 out of which this appeal arises. 11. Learned Single Judge relying on he decision of this Court in Pari Devis case reported in 1984 RLR 93 1, that once the proceedings are conducted under the Ceiling Act, 1973, no proceedings can be reopened under the old ceiling law u/S. 15(2). Since the proceedings under at the Old Ceiling Law could not be reopened while computing ceiling area u/S. 4 of the Act of 1973, the comparative ceiling area applicable to the holder in terms of Chapter III-B of the Rajasthan Tenancy Act also could not have been taken into consideration. Thus, finding the order of reopening to be incompetent, the petition was allowed and the orders of the Board of Revenue dated 22.8.1989 as well as competent officer dated 8.10.1988 were set aside. Hence, this appeal. 12. We have heard learned Counsel for the parties. 13. Thus, finding the order of reopening to be incompetent, the petition was allowed and the orders of the Board of Revenue dated 22.8.1989 as well as competent officer dated 8.10.1988 were set aside. Hence, this appeal. 12. We have heard learned Counsel for the parties. 13. The reasoning adopted by the learned Single judge cannot be sustained in as much as there was no direction to reopen Ceiling proceedings under Section 15 (2) of the Act of 1973, the proceedings were directed to be reopened under Section 15 (1) only for determining ceiling proceedings in terms of Section 4 of the Act of 1973 of which determination of ceiling area under Chapter III-B of repealed law is an integral part. Therefore, reopening of the proceedings under the Act of 1973, were within time after the order was originally passed under the Act of 1973 and were valid proceedings. Once the proceedings under the Act of 1973 came to be instituted, the provisions of Act of 1973 in its entirety govern the proceedings including proviso to Section 4. By no amount of reasoning, any provision of the Act of 1973, which operates independently for determining the ceiling area applicable to a person under Section 4 of the Act of 1973 in relation to computation of ceiling area could be ignored on the assumed ground that because reopening of the proceedings in Chapter III-B of the Rajasthan Tenancy Act was not permissible, therefore, the second proviso to sub-section 4 of the Act of 1973 could not be given effect to. It is essential under the Act of 1973 to determine the comparative ceiling area applicable to the holder as on 1.4.1966, relevant date for the purpose of Chapter III-B, which was repealed by the Act of 1973. Determination of ceiling area under Section 4 of the Act of 1973 envisages that lesser of the ceiling area which could be permissible to be retained by holder under the Act of 1955 or Act of 1973 will be the ceiling area applicable to the holder under the Act of 1973. In giving effect to this provision one cannot say that the provisions of Section 15 (2) are invoked indirectly. We are, therefore, unable to sustain the order passed by the learned Single Judge for its own reasoning. 14. In giving effect to this provision one cannot say that the provisions of Section 15 (2) are invoked indirectly. We are, therefore, unable to sustain the order passed by the learned Single Judge for its own reasoning. 14. This takes us to consideration of the legality of the order passed by the Board of Revenue in excluding the transfer made in favour of Devi Lal in pursuance of an agreement to sale which was entered between parties to agreement on 6.8.1968 before the relevant date 31.12.1969 under the Act of 1955. The decree was passed by the Court for giving effect to that agreement only. It was the contention of the holder throughout that a sale executed in pursuance of decree passed by the civil Court in pursuance of an agreement to sale having entered before the relevant date, if otherwise bonafide, cannot be included in the holding of the person whose ceiling case is being determined. The matter was decided on literal interpretation of Section 4 or Section 30 DD of Chapter III-B of the Act of 1955 by referring to the last date up to which the transaction of transfer were made recognizable, by adopting the view that it is the date of execution of document of sale which alone is relevant for the purpose of determining whether transaction fell within the domain of Section 30 DD or not? 15. Ordinarily it is trite to say that when a document of sale is registered it relates back to the date of its execution and not to the date of mere a execution of agreement to sale. However, ceiling law is a special law with a specific object and, therefore, an alternative position has to be considered in the light of provisions of Ceiling law itself and if there is some dichotomy it be resolved in a way that which further the object of the provision sought to be interpreted. Emphasis of Section 30-D was not so much on the actual date of transfer but was on the bona fide nature of transaction obligation under which were incurred prior to 31.12.1969. Therefore, it is contended by the learned Counsel for the respondent that ratio of decision of Supreme Court in Paras Nath Chaubey vs. State of Uttar Pradesh, reported in 1982(3) SCC 384 fully applied to the facts of the present case. 16. Therefore, it is contended by the learned Counsel for the respondent that ratio of decision of Supreme Court in Paras Nath Chaubey vs. State of Uttar Pradesh, reported in 1982(3) SCC 384 fully applied to the facts of the present case. 16. Having considered the aforesaid judgment, we find force in the arguments. It was a case which has arisen under the UP Imposition of Ceiling on Land Holdings, Act, 1960. The date after which the transactions of sale were not recognizable was 24.1.1971. In the case before the Supreme Court the agreement to sale was entered between the holder and the buyer on 10.6.1969 that is to say prior to 24.1.1971 and suit was also filed prior to January, 1971. The decree however was passed after 24.1.1971 and in pursuance of which the sale deed was executed only on 12.3.1973 in favour of the named buyer in the agreement to sale. If the date of transfer was to be taken on 12.3.1973, it was apparently much later than 24.1.1971 and fell outside the pail of recognition. However, the contention was raised as before us and was rejected by the authorities under the UP Ceiling Act that the sale-deed executed on 12.3.1973, after 24.1.1971 could not be considered to have been made before 24.1.1971 hence was not recognizable. The only ground on which the subject matter of sale dated 12.3.1973 was not excluded form the holdings of the person whose ceiling case was to be determined that it was after the relevant date. Reversing the judgment of the High Court the Court said:- "Since the sale deed was executed in enforcement of an agreement which was entered into on 10.5.1969, long before 24.1.1971 and the suit in which the decree was passed was also filed in 1970, prior to 29.1.1971, it is difficult to appreciate how the sale deed could be said to be lacking in bona fides. So far as the consideration is concerned, it was no ones case that the sale deed was for a consideration which was not adequate. The only ground on which the sale was ignored by the authorities and in the High Court was that it was effected subsequent to 24.1.1971. So far as the consideration is concerned, it was no ones case that the sale deed was for a consideration which was not adequate. The only ground on which the sale was ignored by the authorities and in the High Court was that it was effected subsequent to 24.1.1971. But in taking this view the authorities as well as the High Court overlooked the fact that the genesis of the sale deed was the agreement dated 10.5.1969 followed by a suit filed in 1970, prior to 24.1.1971". 17. As a result of the aforesaid, the Court remanded the case back to the competent officer of the appellant before the Supreme Court by excluding the land sold by the appellant under the sale deed executed in pursuance of decree of the civil Court. 18. The facts of the present case are parallel to the facts in Paras Nath Choubey case (supra), and the ratio laid in the said case must apply to the facts of the present case. Like in Parasnath Choubeys case the agreement to sale was executed in 1968 much prior to 31.12.1969 up to Which date sales were recognizable, suit too was filed prior to that date but decree was passed only in 1971 and the sale deed was executed in pursuance thereof in 1972. The board has found the transaction to be bona fide and recognizable as per provision of Act of 1973. There is no dispute before us that after excluding the land subject matter of the transfer in question in pursuance of decree for specific performance passed by the civil Court was founded on an agreement t o sale entered prior to 31.12.1969 and otherwise, the finding of bona de is in favour of the Respondent No.1 by both the authorities under the ceiling law. The transaction was bona fade, said Manphool Ram did not hold the land in excess of ceiling law applicable to him. 19. Consequently, the appeal fails and is hereby dismissed.