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Rajasthan High Court · body

2014 DIGILAW 768 (RAJ)

SOBHAG SINGH v. BOARD OF REVENUE

2014-03-25

SANGEET LODHA

body2014
ORDER 1. These petitions directed against judgment dated 7.2.13 of Board of Revenue, Rajasthan, dismissing the revision petitions preferred by the petitioners herein, aggrieved by order dated 26.5.07, passed by the Divisional Commissioner, Jodhpur allowing the appeals preferred by the private respondents, were heard together and are being disposed of by this common order. 2. Briefly stated that the relevant facts are that late Shri Ajit Singh was a khatedar tenant of different categories of agriculture land situated in revenue villages namely, Bisalpur, Chawandia (Tehsil-Jaitaran) and Narlai (Tehsil-Desuri). The ceiling proceedings were initiated against him under Chapter IIIB of Rajasthan Tenancy Act, 1955 ( for short “the Act of 1955”) by the Sub Divisional Officer (SDO), Jodhpur, who while accepting the declaration in Form-Ceiling IV furnished by Shri Ajit Singh under Rule 9 of Rajasthan Tenancy (Fixation of Ceiling on Land) (Government) Rules, 1963, vide order dated 4.10.71 determined the land in excess of ceiling area in the hands of Shri Ajit Singh and directed the Tehsildars, Jodhpur, Jaitaran and Desuri to take possession of the land surrendered. However, the State Government, after calling for the record of the ceiling case and for the reasons recorded in writing, vide order dated 1.7.76 being satisfied that the order passed by the authorised officer dated 4.7.71 was in contravention of the provisions of Chapter III of the Act of 1955 and was prejudicial to the State Government, directed reopening of the ceiling case against late Shri Ajit Singh under Section 15(2) of Rajasthan Imposing of Ceiling on Agriculture Holdings Act, 1973 (for short “the Act of 1973”) and referred the matter to the Additional Collector to decide it afresh in accordance with law. The Additional Collector vide order dated 28.12.81 determined the lands in excess of the ceiling limits in the hands of late Shri Ajit Singh and directed to acquire surplus land ad measuring 4020-13 bighas, situated in different revenue villages. Aggrieved thereby, two sons of late Shri Ajit Singh namely Sobhag Singh and Swaroop Singh (since deceased) and 26 transferees claiming themselves to be bona fide purchasers, preferred in all 27 appeals before the Board of Revenue, which stood disposed of by a common judgment dated 31.7.84, whereby the decision of the Additional Collector, Jodhpur dated 28.12.81 was set aside and the matter was remanded for further inquiry and decision afresh with the directions in the following terms: “27. I, therefore, allow all these 2 appeals by this common judgment, set aside the decision of the Additional Collector, Jodhpur dated 28.12.81 and remand this case to him with the directions that he shall give a reasonable appertunity of being heard to the transferees-appellants in Ceiling Appeals Nos. 38 to 44 of 1982 Ceiling appeals Nos.61 to 78 of 1982 and ceiling appeal No.108 of 1982 of this Board. He shall further enquire and decide as to who were the members of the family of deceased Ajit Singh as on 1.4.1966 in accordance with the definition of term family as given in section 30B(a) of the Rajasthan Tenancy Act, 1955. He shall further decide whether the alleged transfers by Ajit Singh in favour of the transferee-appellants should be recognised or not having regard to the previous contained in section 30DD of the Rajasthan Tenancy Act, 1955. In deciding the question of recognition or non-recognition of the alleging transfers, he shall give a definite finding if the transferees were agriculturist as explained in Explanation 1 to Section 30DD and whether they were domiciled in Rajasthan. He shall also examine the question of the necessity of registration of the sale-deeds keeping in view section 54 of the Transfer of Property Act 1882 and the provisions of the Registration Act and other relevant circumstances. Thereafter, he shall decide the ceiling case of Ajit Singh only considering Swaroop Singh and Sobhag Singh as legal representatives of Ajit Singh. He is further directed to decide this ceiling case within six months of the receipt of this record by him. All the appellants including the transferees-appellants have been intimated through their counsel Shri D.S.Dashora and the State of Rajasthan through the Government Advocate to appear before the Additional Collector, Jodhpur on 27.9.84.” 3. Pursuant to the remand order, the Additional Collector, Jodhpur after hearing the sons of late Shri Ajit Singh, namely Sobhag Singh and Swaroop Singh as also the transferees, passed an order on 3.3.86 determining 418.48 standard acres land in excess of the ceiling limit in the hands of land holders namely, late Shri Ajit Singh, Sobhag Singh and Swaroop Singh and accordingly, directed to submit the option for surrender of the land to be acquired. Aggrieved thereby, Sobhag Singh and Swaroop Singh, preferred an appeal before the Board of Revenue, Rajasthan. Aggrieved thereby, Sobhag Singh and Swaroop Singh, preferred an appeal before the Board of Revenue, Rajasthan. The appeal was partly accepted by the Board of Revenue vide order dated 13.8.91, holding that the lands being ancestral, two sons of late Shri Ajit Singh namely, Sobhag Singh and Swaroop Singh have equal share therein. The share of the members of the family was determined as 149.49 acres each and since, each member was held entitled to retain 30 acres land, the land in excess of the ceiling limit in the hands of late Shri Ajit Singh was determined as 119.49 standard acres. Accordingly, on 2.1.92, the Additional District Collector, Jodhpur directed Tehsildar to acquire the land in terms of order dated 13.8.91 passed by the Board of Revenue and submit the compliance report. However, the order passed as aforesaid was not complied with by the Tehsildar and therefore, later, vide order dated 23.2.2000 passed by the Additional Collector, the Tehsildar was again directed to make compliance of the order passed by the Board of Revenue. 4. In the meantime, Sobhag Singh and Swaroop Singh preferred an application before the Board of Revenue under Section 151/152 of CPC for rectification of order stating that the total land being 418.48 acres, the land falling in the share of each member of the family comes to 139.49 standard acres and therefore, there being apparent error in the order dated 13.8.91 passed by the Board of Revenue, the same deserves to be rectified. The application was allowed vide order dated 31.5.02 by the Board of Revenue and it was clarified that in the order dated 13.8.91, the reference of 149.49 standard acres shall be read as 139.49 acres. In compliance of the orders passed as aforesaid, while excluding the land validly transferred, the Tehsildar ordered acquisition of 109.49 acres land and directed to effect the mutation of the remaining land as specified. Accordingly, a mutation no.1518 was sanctioned by the Naib Tehsildar, Jodhpur on 18.6.05 wherein out of 3843.08 bighas of land of village Bisalpur, 2614.12 bighas of land was entered in the khatedari of Sobhag Singh and Swaroop Singh and only 1228.17 bighas land was acquired in consequence of ceiling proceedings initiated against them. Accordingly, a mutation no.1518 was sanctioned by the Naib Tehsildar, Jodhpur on 18.6.05 wherein out of 3843.08 bighas of land of village Bisalpur, 2614.12 bighas of land was entered in the khatedari of Sobhag Singh and Swaroop Singh and only 1228.17 bighas land was acquired in consequence of ceiling proceedings initiated against them. Being aggrieved by the said mutation, the private respondents herein preferred appeals before Collector, Jodhpur which were dismissed by a common order solely on the ground that the mutation has been sanctioned in compliance of the court order passed in ceiling proceedings and therefore, the parties if aggrieved, should file appeal or writ petition against the final judgment passed in ceiling proceedings. Being aggrieved by the judgment passed by the Collector, the private respondents herein preferred appeals before the Divisional Commissioner, Jodhpur, which were allowed and order dated 28.8.06 passed by the District Collector, Jodhpur and mutation no.1518 sanctioned by Naib Tehsildar were quashed and set aside. The Divisional Commissioner remanded the matter to the Tehsildar, Jodhpur with the directions to acquire the land in terms of the directions issued by the Board of Revenue, after giving opportunity of hearing to both the parties. 5. Being aggrieved by the judgment passed by the Divisional Commissioner, Jodhpur, the petitioners herein preferred revision petitions before the Board of Revenue, which stand dismissed by the Board of Revenue by the order impugned. However, while dismissing the revision petitions, the Board observed that in terms of the order passed by the Board of Revenue, the Additional Collector was required to acquire the surplus 329.47 standard acres land in the hands of Ajit Singh, Sobhag Singh and Swaroop Singh, however, interpreting the judgment passed in favour of the petitioners erroneously, just 119.49 standard acres out of total land 418.48 standard acres was acquired and thus, the assessees were wrongly benefited. Accordingly, the Board has issued directions to the Collector, Jodhpur to get the judgment implemented in right spirit and acquire 329.47 acres land and further to ensure that first the unencumbered vacant land shall be taken possession of, in compliance of orders passed by the Board of Revenue dated 13.8.91 and 31.5.02. Hence, these petitions. 6. Learned counsel for the petitioners submitted that the order impugned passed by the Board of Revenue is ex facie without jurisdiction. Hence, these petitions. 6. Learned counsel for the petitioners submitted that the order impugned passed by the Board of Revenue is ex facie without jurisdiction. Learned counsel submitted that the private respondents had never challenged order dated 2.7.84 and 7.7.84 whereby the names of the respondents were deleted from the revenue record and the mutation was effected in the name of the State Government. Learned counsel submitted that the Board of Revenue has not considered the relevant aspect of the matter that the Divisional Commissioner had no jurisdiction to entertain the appeal against the mutation entries which were sanctioned in compliance of the order passed by the Board of Revenue. Learned counsel submitted that respondents cannot claim any right on the basis of the unregistered sale deeds which have not been recognised as valid transfer in the ceiling proceedings and therefore, the order impugned passed by the Board of Revenue, affirming the order passed by the Divisional Commissioner, deserves to be set aside. Learned counsel submitted that it is the duty of the transferor to prove that the transfer effected by him is recognizable and if the transfer is not recognized, such transferee cannot claim opportunity of hearing. In this regard, learned counsel has relied upon a Full Bench decision of this court in the matter of “Kesa vs. The State of Rajasthan”, 1987 RLW, 1 and a Bench decision of this court in the matter of “Mata Deen & Ors. vs. Board of Revenue”, 2009(1) RRT, 155. Learned counsel submitted that the Board of Revenue has also ignored the fact that the appeal preferred not accompanied by an application under Section 96 CPC was not maintainable. 7. On the other hand, learned counsel appearing for the private respondents submitted that order dated 2.7.84 and 7.7.84 were only the letters written by Tehsildar to Patwari for recording the land in the khata of State Government in compliance of order dated 28.12.81, which stood set aside by the Board of Revenue on 21.7.84 and therefore, the mutation proceedings conducted in compliance of order dated 28.12.81, is of no consequence. Learned counsel submitted that the mutation no.1518 was not sanctioned in compliance of the order of the Board of Revenue inasmuch as, the Board of Revenue never passed an order for recording 2614.12 bighas land in the name of the petitioners herein. Learned counsel submitted that the mutation no.1518 was not sanctioned in compliance of the order of the Board of Revenue inasmuch as, the Board of Revenue never passed an order for recording 2614.12 bighas land in the name of the petitioners herein. Learned counsel submitted that the mutation no.1518 entered was net result of gross negligence and inefficiency of the revenue officer. Learned counsel submitted that the Board of Revenue while passing the judgment determined equal share of late Shri Ajit Singh and his two sons namely, Sobhag Singh and Swaroop Singh in the land in question and therefore, it was for the Additional Collector, Jodhpur to carry out the order in its true spirit. Learned counsel submitted that the appeal was preferred by the respondents alongwith an application under section 96 of CPC seeking permission of the court for filing of appeal, however, this aspect of the matter appears to have lost sight of the petitioners herein. Learned counsel submitted that the sale deed executed may be registered or unregistered, only unencumbered land can be acquired and therefore, the order passed by the Divisional Commissioner, affirmed by the Board of Revenue does not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 8. Learned Government Counsel fairly submitted that it was an error on the part of the revenue officers in not carrying out the directions of the Board of Revenue in letter and spirit, with utmost expedition. Learned Government Counsel submitted that the land falling in the share of late Shri Ajit Singh, Sobhag Singh and Swaroop Singh, having been determined 139.49 acres each, the Additional Collector was required to acquire the lands in their hands in excess of the ceiling limit i.e. 329.47 acres and thus, 109.49 acres land was to be acquired from each of the land holders. Learned Government Counsel submitted that the matter having been remanded to the authority concerned, the order passed by the Board of Revenue shall be given effect to and the possession of the land in excess of the ceiling limit in the hands of the assessees shall be taken expeditiously, in compliance of the judgment dated 13.8.91 of the Board of Revenue, rectified vide order dated 31.5.02, as directed by the order impugned. 9. 9. I have considered the rival submissions and perused the material on record. 10. Indisputably, the land in excess of the ceiling limits in the hands of Shri Ajit Singh and his two sons namely, Sobhag Singh and Swaroop Singh, the petitioners herein, stands determined vide order dated 13.8.91 as rectified vide order dated 31.5.02 passed by the Board of Revenue. It is not disputed before this court that in terms of the order passed by the Board of Revenue as aforesaid, three members of the family namely, Ajit Singh, Sobhag Singh and Swaroop Singh had 1/3rd share in the lands in their hands, ad measuring 418.48 standard acres, which comes to 139.49 standard acres each. It is also not in dispute that each of the family members was entitled to retain only 30 standard acres land and thus, the surplus land 329.47 acres is to be acquired by the Government being in excess to the ceiling limit. 11. It is really strange that misconstruing the order passed by the Board of Revenue, the Additional Collector instead of acquiring 329.47 standard acres land from the assessees Ajit Singh, Sobhag Singh and Swaroop Singh, acquired only 119.49 standard acres of land in total and accordingly, mutation of 2614.12 bighas land was made in favour of the petitioners herein and only 1228.17 bighas land was directed to be recorded as Government land, which was surrendered by the petitioners herein. 12. Having gone through the material on record, this court is in agreement with the finding recorded by the Board of Revenue that the ceiling proceedings in the instant case have been decided by the authorities concerned in a most casual and negligent manner. Rather, the close scrutiny of the material on record reveals that it is a glaring case of grabbing of the land by the petitioners herein with encouragement and support by the revenue authorities, which admittedly stands vested in the State Government, as a result of the order passed in the ceiling proceedings, which has attained finality. Rather, the close scrutiny of the material on record reveals that it is a glaring case of grabbing of the land by the petitioners herein with encouragement and support by the revenue authorities, which admittedly stands vested in the State Government, as a result of the order passed in the ceiling proceedings, which has attained finality. As a matter of fact, the tendency to ignore the callous negligence and favouritism extended by the public authorities, is creating a breeding ground for corruption and therefore, it is high time that same are viewed seriously and stern actions are taken against the unscrupulous officers who are responsible for causing wrongful loss to the State by acting in negligent manner and extending undue favour. 13. It is true that under the Scheme of Chapter III B of the Act of 1955, while determining the land in the hands of the assessee in excess of the ceiling limit unrecognized transfers are to be ignored and therefore, the application of principle of natural justice in favour of such transferees stands excluded. But then, as per second proviso to sub-section (2) of Section 30E of the Act of 1955, the option to be afforded to the assessee to surrender the surplus land is subject to the limitation that where the person surrendering excess land holds lands of which some are encumbered and some are not encumbered, the unencumbered land shall be surrendered in preference to encumbered lands. Further, when an assessee fails intentionally to make report or to surrender the land in terms of provisions of sub-section (2) of Section 30E, he is deemed to be a trespasser liable for ejectment and as per proviso to sub-section (4) of Section 30E, while taking proceedings for ejectment, the lands, from which a person shall be so ejected shall as far as may be unencumbered lands. It is true that it is not the law that only unencumbered land be surrendered but the law clearly envisage that the encumbered land shall be surrendered only to the extent unencumbered land is not available. In the considered opinion of this court, permitting an assessee to surrender the encumbered land and retain the unencumbered land shall be against the spirit of the ceiling law as framed. 14. In the considered opinion of this court, permitting an assessee to surrender the encumbered land and retain the unencumbered land shall be against the spirit of the ceiling law as framed. 14. It is pertinent to note that though the transfers made by late Shri Ajit Singh in favour of the private respondents herein are not recognized, but then, the fact remains that the transfers made were admitted by the land holder before the authorised officer and as a matter of fact, while giving effect to the transfer made even the mutations were effected in favour of the transferees . In this view of the matter, when the matter with regard to the land being surrendered by the petitioners herein, while giving effect to the order of the Board of Revenue determining the land in excess of the ceiling limit in their hands, stands remanded to the revenue authority concerned and the mutation effected in favour of the petitioners also stands set aside, there is absolutely no reason why the transferees cannot be permitted to contend before the authority concerned that the land in their possession being encumbered land cannot be permitted to be surrendered by virtue of provisions of Section 30E of the Act of 1955 inasmuch as the unencumbered land is available with the petitioners herein. 15. The contention of the learned counsel for the petitioners that the private respondents have never challenged order dated 2.7.84 and 7.7.84 whereby their names were deleted from the revenue record and the mutation was effected in the name of the State Government, suffice it to say that the said letters were issued by the Tehsildar in compliance of order dated 28.12.81, which stood set aside by the Board of Revenue vide order dated 21.7.84 and thereafter, in compliance of the remand order passed by the Board of Revenue, a fresh order was passed by the Additional Collector on 3.3.86, which was subject matter of appeal before the Board of Revenue, which stands decided vide order dated 13.8.91 and therefore, nothing turns on the question that the respondents did not challenge the directions issued by the Tehsildar vide communications dated 2.7.84 & 7.7.84. 16. 16. The next contention raised by the petitioners that the appeal preferred by the respondents being not accompanied by an application under Section 96 CPC, the same was not maintainable, it is pertinent to note that the specific stand has been taken by the respondents in their reply that the appeals preferred were accompanied by an application under Section 96 CPC seeking permission of the court for filing the appeal, which is not disputed by the petitioners by filing any counter thereto. In any case, the appeals having been decided by the Board of Revenue on merits after due consideration of the matter in its entirety and objectivity, the leave is deemed to have been granted and this court is not inclined to interfere with the order passed by the Board of Revenue on such technical objection, in exercise of its supervisory jurisdiction, which is always exercised for the sake of justice. 17. In the result, the writ petitions fail, the same are hereby dismissed. The District Collector, Jodhpur is directed to ensure the full compliance of the order passed by the Board of Revenue with utmost expedition. The District Collector, Jodhpur shall submit the compliance report before the Board of Revenue as well as before this court within a period of two months from the receipt of certified copy of this order. It is made clear that any further lapse on the part of the revenue authorities in complying with the directions shall be viewed seriously and dealt with sternly. 18. The Deputy Registrar (Judicial) is directed to send a certified copy of this order to the District Collector, Jodhpur forthwith. 19. Though the writ petitions stand disposed of, the same shall be listed before the court on 7.7.2014, for perusal of the report to be submitted by the District Collector in compliance of the directions issued as above.