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2016 DIGILAW 1048 (RAJ)

Ram Narain v. State of Rajasthan

2016-07-22

NAVIN SINHA, VIJAY KUMAR VYAS

body2016
JUDGMENT : The present appeal arise from order dated 10.03.2004 in S.B.Civil Writ Petition No. 3367/1989. The learned Single Judge declined interference with the order of the Board of Revenue dated 29.03.1989 holding that 8.22 Standard Acres of lands belonging to the appellant were amenable to land ceiling proceedings. 2. Learned counsel for the appellant submitted that earlier final orders were passed by the competent authority on 25.05.1972 under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) holding that the appellant did not possess lands in excess of the ceiling area. The Deputy Secretary acting on behalf of the State Government reopened the proceedings under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter to be referred as the 'Act 11 of 1973') without notice to the appellant. The fact that the Additional Collector may have issued notice to the appellant is therefore inconsequential. If the order is bad from nativity any issue of notice by the Additional Collector will not cure the illegality. This objection was specifically taken before the Board of Revenue but was not decided. In the writ petition, this objection was again specifically reiterated in paragraph 9 and while dealing with it in paragraph 9 of the counter affidavit it was replied that it was not disputed. 3. The submission thus was that the order of the Deputy Secretary reopening the proceedings on 23.03.1981 was itself bad in law for non compliance with proviso to Section 15(2) of the Act of 1973. The fact that the Additional Collector pursuant to the same may have granted partial relief is irrelevant. Learned counsel further submitted that the Deputy Secretary himself noticed the illegality in reopening of the proceedings but took no corrective action. 4. Counsel for the State submitted that the appellant has not been prejudiced in any manner as he has been heard at length by the Additional Collector and all his objections have been considered. Partial relief has also been granted. No objection appears to have been taken before the Additional Collector with regard to absence of any notice under the proviso 1 to Section 15(2) of the Act of 1973. 5. We have heard counsel for the parties. 6. The relevant extract of provisio 1 to Section 15(2) of the Act of 1973 provides as follows :- "15. Power to reopen cases – (1) ---------- (2). 5. We have heard counsel for the parties. 6. The relevant extract of provisio 1 to Section 15(2) of the Act of 1973 provides as follows :- "15. Power to reopen cases – (1) ---------- (2). Without prejudice to any other remedy that may be available under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final orders passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter of evidence which has since come to its notice, such order is required to be re-opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions: 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 :" 7. The law stands settled that if the statue prescribed a particular procedure and mode for exercise of the power, it can be done only in the manner prescribed and all other methods of performance are necessarily forbidden. The reopening of a closed ceiling case is a serious matter. The Legislature therefore thought proper to incorporate a protection in favour of a land holder that before reopening the proceedings he must be heard. The purpose was salutary. An opportunity to convince the State Government that the ceiling proceedings ought not to be opened is different and distinct from the opportunity in a reopened case to contest on merits that there was no land in excess of ceiling or at least the entire land was not amenable to ceiling. The denial of opportunity at the former stage cannot be substituted by providing of opportunity at the later stage. If the reopening itself was contrary to law, the question of any opportunity granted at the secondary stage shall not result in a camouflage of legality as distinct from any irregularity at the former stage. 8. The denial of opportunity at the former stage cannot be substituted by providing of opportunity at the later stage. If the reopening itself was contrary to law, the question of any opportunity granted at the secondary stage shall not result in a camouflage of legality as distinct from any irregularity at the former stage. 8. The learned Single Judge proceeded on the assumption that all procedures prescribed in the law were followed and there was no occasion for judicial review particularly in view of the fact that partial relief had been granted. There is no discussion with regard to non compliance with the 1st proviso to Section 15(2) of the Act of 1973. 9. In the result the appeal has to be allowed on technical grounds. Appeal allowed on Technical ground.