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2010 DIGILAW 601 (RAJ)

Narain Singh v. State of Rajasthan

2010-03-16

SANGEET LODHA

body2010
Hon'ble LODHA, J.—This writ petition is directed against order dated 20.2.2007 of the Board of Revenue, Rajasthan, whereby an appeal preferred by the petitioner u/S. 23(2) of Rajasthan Imposition of Ceiling on Agriculture Holdings) Act, 1973 (hereinafter referred as "New Act") against the order dated 1.8.96 of Additional Collector (Vigilance) Sriganganagar, stands dismissed. 2. The relevant facts in nutshell are that the ceiling proceedings were initiated the petitioner under Chapter IIIB of Rajasthan Tenancy Act, 1955 (hereinafter referred as "Old Act") in respect of agriculture land held by him on appointed dated i.e. 1.4.66. After due consideration, the Deputy Collector, Sriganganagar found that the petitioner was holding 150 bighas land and since he is having three sons, therefore, considering the share of each member of family as 37.5 bighas of land, the Authorised Officer opined that the land held by the petitioner is less than ceiling limit. Accordingly, by an order dated 20.3.1970 the ceiling proceedings were ordered to be dropped. 3. However, the ceiling proceedings were reopened by the State Government under the New Act and the matter was referred to the Additional Collector (Vigilance), Sriganganagar to decide it afresh after due inquiry. The details of land held by the petitioner was obtained by the Authority Officer. The parties led their evidence. After due consideration, the Authority Officer opined that the petitioner is entitled to have only 46.08 bighas of agriculture land and accordingly, 12.14 bighas of land held by him was found to be in excess of the ceiling area i.e. surplus land. Accordingly, vide order dated 8.1.96, 12.14 bighas land held by the petitioner was ordered to be acquired and directions were issued to the Tehsildar to resume the unencumbered surplus land. 4. Aggrieved by order dated 8.1.96 of the Authorised Officer, the petitioner preferred an appeal before the Board of Revenue, Rajasthan. 5. The petitioner contended before Board of Revenue that 36 bighas 15 bigwas land was purchased by him out of the income from 62 bighas land in Chak 10 Q and therefore, the said land has to be treated to be ancestral. That apart, it was submitted that out of the 62 bighas land in Chak 10 Q, 37 bighas 9 biswas land had already been transferred in favour of petitioner's three sons vide registered sale deed dated 14th August, 1959 which was a recognized transfer under Section 30DD of the Old Act. That apart, it was submitted that out of the 62 bighas land in Chak 10 Q, 37 bighas 9 biswas land had already been transferred in favour of petitioner's three sons vide registered sale deed dated 14th August, 1959 which was a recognized transfer under Section 30DD of the Old Act. Accordingly, it was submitted that if the transfer of 37 bighas and 9 biswas land in favour of the petitioner's sons is accepted then in the remaining 25 bighas land, the petitioner's share comes to 6.20 bighas and accordingly, the excess land comes to 3 bighas and 12 biswas which is only a fragment and need not be acquired by virtue of provisions of Section 30(1)(2) of the Old Act. 6. The Board of Revenue arrived at the finding that in the ancestral land, the petitioner and his sons were having equal share and therefore, the alleged transfer made in favour of the petitioner's sons cannot be recognized and therefore, their share in 62 bighas land has to be determined treating it to be ancestral land and accordingly the share of each of the co-sharers determined as 15.05 bighas was held to be just and proper. Regarding purchase of 37-15 bighas land by the petitioner in the year 1940, the Board of Revenue arrived at the finding that the contention of the petitioner that the said land was purchased out of the income from the ancestral land which came in their possession in the year 1936, does not appear to be rational and therefore, the Authorised Officer has committed no error in treating it to be self acquired land of the petitioner. Accordingly, the determination of the land held by the petitioner as 59.02 bighas and surplus land as 15.14 bighas made by the Authorised Officer has been affirmed by the Board of Revenue and consequently the appeal preferred by the petitioner has been dismissed. Hence this writ petition. 7. It is contended by learned counsel for the petitioner that the State Govt. had no jurisdiction to re-open the proceedings under Section 15(2) of the New Act after 1.1.1979. It is submitted that the proceedings concluded under the Old Act could no be re-opened after expiry of the period of six years from the date of commencement of the Act i.e. 1.1.1973. Accordingly, it is submitted that the order dated 25.7.1980 passed of the State Govt. It is submitted that the proceedings concluded under the Old Act could no be re-opened after expiry of the period of six years from the date of commencement of the Act i.e. 1.1.1973. Accordingly, it is submitted that the order dated 25.7.1980 passed of the State Govt. directing re-opening of the ceiling proceedings is without jurisdiction and consequently, the order passed by the Authorised Officer dated 8.1.1996 and order dated 20.2.1997 of the Board of Revenue are also absolutely without jurisdiction. In support of his contention, learned counsel for the petitioner has relied upon a Bench decision of this Court in Dhanraj vs. State of Rajasthan, 1995 RRD, 115. 8. It is next contended by learned counsel for the petitioner that the Authorised Officer has illegally rejected the petitioner's contention that 37-15 bighas of land in Chak No. 9-H purchased by the petitioner out of the income of 62 bighas land in Chak No. 10-Q has to be treated as ancestral land. It is submitted by the learned counsel that the purchase of the land does not depend upon the income of the ancestral lands alone but it depends upon number of factors such as expansion of the family etc. The learned counsel submitted that the land in the hands of the petitioner purchased in Chak No. 9-H was also an ancestral land and the share of the petitioner in the said land was required to be determined as per Rule 17 of the Rules of 1963. Accordingly, it is submitted by the learned counsel that the assessment of the ceiling area of the petitioner is based on erroneous view of the law and facts and therefore, the same stands vitiated. 9. Per contra, learned counsel appearing for the respondents submitted that the question with regard to the re-opening proceedings being barred by time was never raised by the Petitioner before the Authorised Officer or the Board of Revenue and therefore, he cannot be permitted to raise the question without there being any foundation of facts in this regard before this Court for the first time. It is submitted by the learned counsel that the proviso to Sub-Section (2) of Section 15 of the New Act stands further amended vide Rajasthan Imposition of Ceiling on Agriculture Holdings (Amendment & Validation) Act, 1979 (in short "Amendment Act, 1979") whereby the period of limitation for re-opening the ceiling proceedings in terms of Sub-Section (2) of Section 15 of the New Act stands extended to seven years from the date of the final order sought to be re-opened or expiry of 30th June, 1979 whichever is later. It is submitted by learned counsel that before re-opening the proceedings, a notice dated 7.4.1979 (Annex. R/1) was issued to the petitioner, therefore, the contention of the petitioner that the re-opening proceedings are barred by limitation is devoid of any merit. It is submitted by learned counsel that even otherwise, the petitioner cannot be permitted to challenge the re-opening order for the first time before this Court after a lapse of about 17 years. 10. The learned counsel submitted that on the basis of material on record, the authorities below have arrived at the finding that 37-15 bighas land in Chak No. 9-H is not an ancestral land but it is the self acquired land of the petitioner. It is submitted by learned counsel that the finding of fact arrived at by the Authorised Officer and affirmed by the Board of Revenue does not warrant any interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 11. I have considered the rival submissions and perused the material on record. 12. It is not in dispute that the question with regard to the re-opening proceedings being barred by limitation was never raised by the petitioner at any stage of the proceedings. However, since, the question with regard to the limitation goes to the very root of the jurisdiction of the State Govt. to re-open the proceedings, therefore, this Court consider it appropriate to examine it on merit even at this stage. 13. The contention of the learned counsel for the petitioner is that the ceiling proceedings concluded under the Old Act could not have been re-opened by invoking the power under Section 15(2) after expiry of period of six years from the date of commencement of the Act i.e. 1.1.1973. 14. 13. The contention of the learned counsel for the petitioner is that the ceiling proceedings concluded under the Old Act could not have been re-opened by invoking the power under Section 15(2) after expiry of period of six years from the date of commencement of the Act i.e. 1.1.1973. 14. It is to be noticed that as per the provisions of the New Act as originally framed, the cases finally decided under the Old Act could be re-opened within a period of five years from commencement of the New Act. The New Act came into force with effect from 1.1.1973, thus the time limit prescribed for re-opening of the proceedings concluded under the Old Act expired on 31.12.1977. However, looking to the pendency of large number of cases, it was considered necessary and expedient by the State Legislature to extend the limitation provided for re-opening the proceedings and therefore, vide Rajasthan Imposition of Ceiling on Agriculture Holdings (Amendment) Act, 1978, (in short "Amendment Act, 1978") Section 15 of the Old Act was substituted. The first and second proviso to Sub-Section (2) of Section 15 substituted by the aforesaid Amendment Act which are relevant for the present controversy are as follows:- "Provided that no such direction shall be issued unless a notice to show cause against the proposed action has been served upon the person concerned:" "Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of six years of the commencement of this Act." 15. In Dhanraj's case relied upon by learned counsel for the petitioner while interpreting second proviso to Section 15 as substituted by the Amendment Act, 1978, this Court opined that the expression "commencement of this Act" relates to commencement of the principal Act and therefore, by virtue of said proviso, the concluded proceedings under the Old Act could have been re-opened within a period of six years from the date of commencement of the Act i.e. 1.1.1973. Accordingly, it was held that the period of limitation for re-opening of the proceedings in terms of Section 15(2) of the New Act expired on 31st December, 1978. 16. Accordingly, it was held that the period of limitation for re-opening of the proceedings in terms of Section 15(2) of the New Act expired on 31st December, 1978. 16. But then, Section 15 of the New Act was further substituted by the Amendment Act, 1979 whereby the second proviso to Section 15(2) of the Principal Act was substituted as under:- "Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of seven years from the date of the final order sought to be re opened or after the expiry of 30th day of June 1979, whichever is later." 17. In the instant case, the final order in ceiling proceedings under the Old Act was passed by the Authorised Officer on 20.3.1970 accordingly the period of five years expired on 19.3.1975 but by virtue of second proviso to Section 15(2) substituted by Amendment Act, 1979, the notice to show cause for re-opening the proceedings could have been issued by the State Govt. upto 30.6.1979. It has come on record that the notice in this regard was issued by the State Govt. on 7.4.1979 (Annex. R/1) which is not controverted by the petitioner by placing any material on record showing that no such notice was ever issued by the State Govt. It is in these circumstances, in the considered opinion of this Court, the re-opening proceedings initiated by the State Govt. by issuing notice in terms of provisions of Section 15(2) of the New Act was well within the time limit prescribed and cannot be said to be without jurisdiction. 18. Coming to the next contention of the learned counsel that out of the 62 bighas ancestral land, 37-15 bighas of land was transferred by the petitioner to his sons by way of registered sale deed and therefore, the same has to be recognized as valid sale, to say the least, is absolutely devoid of any merit. Admittedly, 62 bigha of land in Chak No. 10-Q was ancestral land and the petitioner and his sons were having equal share in the said land i.e. 1/4 share each and therefore, the question of petitioner transferring the land to his sons owned by them jointly cannot be recognized as valid sale in terms of the provisions of Section 30-DD of the Old Act. 19. 19. The last contention of the learned counsel that 37-15 bighas of land was purchased by the petitioner out of the income from 62 bighas ancestral land has to be treated to be ancestral land in also not supported by any evidence on record worth the name. It is not in dispute that in the revenue record the said land is recorded in the name of the petitioner in his own name and not in the capacity of Karta of the joint Hindu family. If according to the petitioner, the same was purchased by him out of the income from 62 bighas of ancestral land as alleged then nothing prevented the petitioner to lead evidence in this regard before the Authorised Officer. In considered opinion of this Court, on the facts and in the circumstances of the case, the finding arrived at by the Authorised Officer affirmed by the Board of Revenue holding the aforesaid 37-15 bighas land in Chak-9H to be the petitioner's self acquired land cannot be said to be perverse so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 20. For the aforementioned reasons, the writ petition preferred by the petitioner lacks merit and deserves to be dismissed. 21. Accordingly, the writ petition is dismissed. No order as to costs.