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2012 DIGILAW 1182 (RAJ)

Hari Raj Singh v. State of Rajasthan

2012-05-09

ARUN MISHRA, NARENDRA KUMAR JAIN I

body2012
JUDGMENT 1. - Heard the learned counsel for the petitioner. 2. The petitioner has preferred this writ petition before this Court on 18/23 August, 2011 challenging the impugned orders/judgments dated 6.3.1976 (Annex.12) passed by Dy. Secretary to the Government, 25.4.1995 (Annex.7) passed by Revenue Board, 20.5.2002( Annex.9) passed by Additional District Collector, Bundi and 25.2.2004 (Annex.10) passed by Revenue Board and to uphold the judgment dated 12.1.1971 passed by the Sub Divisional Officer. The petitioner has also made prayer No.(vi) that provisions of Act No.8 of 1976 and No.6 of 1978 of the Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Act be declared ultra-vires and unconstitutional. 3. Brief facts of the writ petition are that vide order dated 12.1.1971 passed by the Sub Divisional Officer, Nainwa, the land of petitioner measuring 328 Bighas & 10 Biswas was declared surplus under the provisions of the Ceiling Act for acquisition. The said order was reopened vide order dated 6.3.1976 by the State Government, while exercising powers under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred as "Act of 1973") and directed the District Collector, Bundi to pass fresh order in the matter. The District Collector, Bundi passed an order dated 10th August, 1976, which was set aside by Revenue Board, Ajmer and case was remanded back vide order dated 25th March, 1981. District Collector, Bundi again heard the matter and passed fresh order on 26th June, 1985, but the matter was again remanded back by Revenue Board vide order dated 25th June, 1990. Thereafter, the District Collector declared the total land of petitioner measuring 863 Bighas & 6 Biswas (276.3 standard Acres) and vide order dated 15.3.1993 passed an order to acquire the same. The order was challenged before the Revenue Board. The Revenue Board vide its order dated 25.4.1995 partly allowed the appeal and directed that while acquiring the land in pursuance of order dated 15.3.1993 passed by District Collector, the land of petitioner already acquired as per order of Sub Divisional Officer dated 12.1.1971 be adjusted. The remaining order of District Collector dated 15.3.1993 was maintained. Thereafter, special appeal was further filed before Division Bench of Revenue Board by sisters of petitioner, which was also dismissed vide order dated 19.11.1996 as not maintainable. 4. The remaining order of District Collector dated 15.3.1993 was maintained. Thereafter, special appeal was further filed before Division Bench of Revenue Board by sisters of petitioner, which was also dismissed vide order dated 19.11.1996 as not maintainable. 4. Thereafter, execution proceedings started and an order dated 20.5.2002 was passed by Additional Collector, Bundi, whereby earlier acquired land was adjusted. The said order was further challenged by petitioner by filing appeal before Revenue Board, but the same was dismissed by Revenue Board vide order dated 25th February, 2004, which is under challenge in this writ petition. The Revenue Board specifically observed that ceiling proceedings had already attained finality in the year 1993 when his appeal was dismissed by Revenue Board. The impugned order passed by Additional District Collector dated 20.5.2002 has been passed only in execution proceedings, which has been passed in execution of the original order. 5. It is relevant to mention that petitioner had earlier filed S.B. Civil Writ Petition No. 3574/2008 before Single Bench of this Court challenging the above referred impugned judgments dated 25.4.1995, 19.11.1996, 25.2.2004 and 20.5.2002, which have been challenged in this writ petition, but the same was dismissed as withdrawn, while allowing the application of the petitioner dated 15.7.2001 for withdrawal of the writ petition by Single Bench vide order dated 8th August, 2011. Now, the present writ petition has been preferred challenging the same orders along with challenge to vires of the Act No.8 of 1976 and Act No.6 of 1978 of the Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Act as ultra-vires to the provisions of Constitution of India. 6. The counsel for petitioner was asked as to whether he is challenging any specific provision of these Act as ultra-vires or the entire Act itself. His answer was that he is challenging the entire Act. In this connection, it is relevant to mention that proceedings were started under the Ceiling Act way back on 12.1.1971, the Act of 1973 came into force on 29.3.1973. The order of Sub Divisional Officer was reopened by the State Government while exercising powers under Section 15(2) of the Act of 1973 vide order dated 6th March, 1976. In this connection, it is relevant to mention that proceedings were started under the Ceiling Act way back on 12.1.1971, the Act of 1973 came into force on 29.3.1973. The order of Sub Divisional Officer was reopened by the State Government while exercising powers under Section 15(2) of the Act of 1973 vide order dated 6th March, 1976. Once, when the order of State Government was not challenged, the real cause of action to challenge the vires of the Act No.8 of 1976 (which came into force on 5.2.1976) arose to petitioner in the year 1976 when State Government reopened the ceiling case of the petitioner under Section 15(2) of the Act of 1973. The amended Act No.8 of 1976 and No.6 of 1978 also came into force in 1976 and 1978 itself, thereafter proceedings against petitioner continued under the said provisions and matter went before Revenue Board from time to time, but the amended Act of 1976 and 1978 were not challenged. Now, after a delay of 34 to 36 years, the petitioner has challenged the vires of amended Act of 1976 and 1978. 7. Counsel for the petitioner could not satisfy the delay of 34-36 years in challenging the vires of amended Act of 1976 and 1978 now in the year 2011. The petitioner lost long back and the ceiling proceedings attained finality against him in the year 1993 and execution proceedings were going on against him. He also filed a writ petition in the year 2008 challenging some of the orders passed in main and execution proceedings. Now, under the garb of challenge to amended Act of 1976 and 1978. The petitioner wants to challenge the original order passed under the provisions of Ceiling Act, which have already attained finality against the petitioner way back in the year 1993-95 and he wants to challenge those orders after a delay of about 17 to 20 years, which cannot be allowed to be permitted. In fact the filing of present writ petition on the pretext that he is challenging the vires of amended Act of 1976 and 1978 is a gross misuse of process of law. The orders under Ceiling Act, which attained finality in the year 1993 and 1995 cannot be allowed to be challenged after a delay of about 17 to 20 years. 8. The orders under Ceiling Act, which attained finality in the year 1993 and 1995 cannot be allowed to be challenged after a delay of about 17 to 20 years. 8. That apart, the Rajasthan Act No.8 of 1976 is "The Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Act, 1976", which came into force on 5th February, 1976 and by this Act No.8 of 1976, the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was amended. The new Sections 11A, 11B, 23A & 24A in the Act of 1973 were inserted in the Rajasthan Act of 1973. Sections 12, 15, 16, 18 & 23 of the principal Act of 1973 were amended. Similarly, by the Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Act, 1978 i.e. Act No.6 of 1978, the Rajasthan Act of 1973 was further amended. The amended provisions came into force w.e.f. 8th April, 1978. By Act No.6 of 1978, Section 15 of the Rajasthan Act of 1973 was substituted. The amended/inserted/substituted provisions vide Act Nos. 8 of 1976 and 6 of 1978 became part of Act of the Rajasthan Act of 1973. The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was placed under Ninth Schedule of the Constitution. As per provision of Article 31B, the validity of Acts and Regulations, placed in the Ninth Schedule of the Constitution, cannot be allowed to be challenged. Article 31B of the Constitution is reproduced as under:- "31B. Validation of certain Acts and Regulations.- Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal of the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force." 9. In view of above provision of Article 31B of the Constitution, the provisions of Act No.8 of 1976 and Act No.6 of 1978, which became part of the Rajasthan Act of 1973, which has been placed at Entry No.79 of Schedule Nine of the Constitution of India, cannot be allowed to be challenged. The jurisdiction of this Court of judicial review of such Act is very limited. 10. We have examined the provisions of the Act of 1976 and 1978 and we find that they do not fall within the scope of judicial review by this Court also. It is relevant to mention that Section 15 of the Act of 1973 was amended by Section 4 of Rajasthan Act No.8 of 1976. Section 15 of Rajasthan Act No.11 of 1973 was further amended and a new provision was substituted by Section 2 of the Rajasthan Act No.6 of 1978. The validity of Section 15 of the Act of 1973 was challenged and it was upheld by Hon'ble Apex Court in Sukhdarshan Singh & Ors. v. State of Rajasthan & Ors., 1989 Supp (2) SCC 671 . The order of Hon'ble Apex Court is reproduced as under:- ORDER 1. In these appeals the appellants have questioned the validity of Section 15(as amended) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. It is not disputed that this Act was enacted by the Rajasthan legislature for bringing about agrarian reforms in the State of Rajasthan. The validity of some of the provisions of the Act came up for consideration before this Court in Bansidhar v. State of Rajasthan, 1989 (2) SCC 557 before a Constitution Bench of this Court and this Court made a declaration that the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was a legislation which was made for the purpose of bringing about agrarian reform. In view of the above finding, it is clear that the provisions including Section 15 (as amended) contained therein are protected by Article 31-A(1)(a) of the Constitution notwithstanding the fact that some of these provisions contravened Articles 14 and 19. 2. The grounds urged in respect of the appeal are that Section 15(as amended) in question was violative of Article 14. Since the provisions of the Act as already stated are protected by Article 31-A(1)(a), the attack does not survive. 2. The grounds urged in respect of the appeal are that Section 15(as amended) in question was violative of Article 14. Since the provisions of the Act as already stated are protected by Article 31-A(1)(a), the attack does not survive. The High Court was therefore right in upholding the validity of Section 15 of the Act. Therefore, there is no ground to interfere with the judgment of the High Court. These appeals fail and are dismissed. Interim orders passed if any, in these cases stand vacated." 11. The constitutional validity of Section 15 of the Act of 1973 was further upheld by the Apex Court in Gurbax Singh And Atumal alias Atma Ram v. State of Rajasthan & Ors., 1992 Supp (3) SCC 24 . Paras 2 to 4 of the judgment are reproduced as under:- "2. The appellants in the present and the connected matter filed writ petitions before the High Court under Article 226 of the Constitution challenging validity of Section 15 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. The High Court by the impugned order dismissed the writ petitions upholding the validity of Section 15 of the Act. The appellants' grievance is that ceiling area in respect of their land had been determined by the ceiling authorities and those orders became final but the State Government directed the Additional Collector for reopening the appellants' cases and to decide the same afresh in accordance with law. Learned counsel for the appellants urged that once the ceiling authorities determined the ceiling area in accordance with the provisions of the Act, such decision had assumed finality under the Act, the same could not be reopened merely at the instance of the State Government which was a party to the proceedings before the ceiling authorities. It was urged that Section 15 confers arbitrary powers on the State Government to nullify the judicial decisions. He further urged that Section 15 is against the basic structure of the Constitution as it empowers the executive to nullify judicial order by executive action. 3. After hearing learned counsel for the parties, we are of the opinion that there is no merit in the appellants' contention. He further urged that Section 15 is against the basic structure of the Constitution as it empowers the executive to nullify judicial order by executive action. 3. After hearing learned counsel for the parties, we are of the opinion that there is no merit in the appellants' contention. Section 15 confers power on the State Government to call for the record of any case where final order may have been passed under the Act in contravention of the provisions of the Act and if the State Government is satisfied that the order is prejudicial to its interest or if it is vitiated on account of the discovery of new and important matter or evidence, it may direct the ceiling authority to reopen the case for determining the ceiling area in accordance with the provisions of the Act. The power conferred on the State Government is not a blanket power, its decision to reopen the case is subject to judicial scrutiny. If the order of the State Government for reopening the case under Section 15 is not founded on the relevant considerations as specified in section itself, the order would be liable to be struck down by courts. In our opinion, Section 15 does not in any way change the basic structure of the Constitution nor does it encroach upon the power of the judiciary. The appellants failed to point out any provisions of the Constitution in support of their contention that Section 15 is ultra vires the Constitution. 4. There is no dispute that the State legislature is competent under Entry 18 of the State List of Seventh Schedule of the Constitution to enact law prescribing ceiling on land. While enacting such a law, it is permissible to the State legislature to enact Section 15 to ensure implementation of the agrarian reform and to prevent evasion of the provisions of the Act. The Act seeks to implement agrarian reform and the same is protected under Articles 31-A and 31-C of the Constitution and further the act itself has been placed in the Ninth Schedule of the Constitution, therefore, it is immune from any challenge on the ground of violation of any fundamental rights. In Sukhdarshan Singh v. State of Rajasthan (supra), another bench of this Court has also upheld validity of Section 15." 12. Hon'ble Apex Court in Dattatraya Govind Mahajan & Ors. In Sukhdarshan Singh v. State of Rajasthan (supra), another bench of this Court has also upheld validity of Section 15." 12. Hon'ble Apex Court in Dattatraya Govind Mahajan & Ors. v. State of Maharashtra & Anr., 1977 (2) SCC 548 held that an Act relating to ceiling on land holding even if violative of the second proviso to clause (1) of Artile 31A is immune from attack by virtue of Article 318 when included in the Ninth Schedule. 13. In these circumstances, we find no force in this writ petition and the same is, accordingly, dismissed in limine.Writ Petition Dismissed. *******