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2016 DIGILAW 613 (RAJ)

State of Rajasthan v. Malli

2016-05-03

ARUN BHANSALI

body2016
ORDER Arun Bhansali, J. This writ petition has been filed by the State aggrieved against the judgment dated 5/7/2002 passed by the Board of Revenue, whereby, the appeal filed by the respondent no.1 has been allowed and the order passed by the Addl. Collector (Administration), Hanumangarh dated 18/3/2000 has been set aside. 2. Proceedings under Chapter - III B of the Rajasthan Tenancy Act, 1955 (old ceiling law) being case No.647/71 were initiated against the respondent no.1 and by order dated 29/12/1971, the Assistant Collector, Hanumangarh came to the conclusion that the land held by the respondent no.1 was not affected by the ceiling law and consequently dropped the proceedings. Where after, it appears that after coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (`the Act of 1973') another proceeding being Ceiling Case No.818/75 was initiated by the authorised officer against the respondent No.1 and by order dated 25/10/1975 the authorised officer came to the conclusion that the land held by the respondent no.1 was less than the ceiling limit and consequently again dropped the proceedings. 3. It appears that a notice under Section 15 (2) of the Act of 1973 dated 21/4/1979 was issued to the respondent no.1 seeking to reopen the ceiling proceedings, which culminated in the order passed on 29/12/1971 in case no. 647/71. After hearing the parties, the Deputy Secretary by his order dated 12/5/1982 ordered for referring the matter to the Additional Collector for proceedings. The Additional Collector by his order dated 18/3/2000, came to the conclusion that the adoption of Saheb Ram relied on by the respondent no.1 was of the year 1966 i.e. after the old ceiling law came into force and, therefore, the same was of no consequence and found that the respondent no.1 was holding 24.01 Bigha land in excess of the ceiling area and ordered for proceedings. 4. Feeling aggrieved, the respondent no.1 approached the Board of Revenue. The Board of Revenue by its judgment dated 5/7/2002 came to the conclusion that adoption of Saheb Ram on 25/10/1965 was proved on record, which was prior to the cut off date and that the proceedings initiated on 12/5/1980 under Section 15(2) of the Act of 1973 were barred by limitation and consequently allowed the appeal. 5. The Board of Revenue by its judgment dated 5/7/2002 came to the conclusion that adoption of Saheb Ram on 25/10/1965 was proved on record, which was prior to the cut off date and that the proceedings initiated on 12/5/1980 under Section 15(2) of the Act of 1973 were barred by limitation and consequently allowed the appeal. 5. It is submitted by the learned counsel for the petitioner that the Board of Revenue was not justified in coming to the conclusion that the proceedings were barred by limitation inasmuch as the notice was admittedly issued on 21/4/1979, which was before the cut off date i.e. 30/6/1979 and, therefore, the order cannot be sustained. It was further submitted that it was the consistent case of the respondents that the adoption of Saheb Ram took place in the year 1966, however, such plea was changed and date 25/10/1965 was adopted, which is contrary to the record and, therefore, on both the counts the order passed by the Board of Revenue cannot be sustained. 6. Learned counsel for the respondents, though conceded on the aspect of limitation, submitted that the finding regarding adoption is supported by documentary and oral evidence of relevant parties and, therefore, the said finding of the Board of Revenue does not call for any interference. 7. I have considered the submissions made by the learned counsel for the parties and perused the material available on record. 8. Though the respondent no.1 has not raised the issue of jurisdiction before any of the authorities below, from the material available on record and in view of the law laid down by the Full Bench of this Court, the proceedings initiated by the petitioner State are ex facie without jurisdiction. 9. As noticed hereinbefore, the proceedings under Chapter III-B of the old Ceiling Law were initiated against the respondent, which culminated in the order dated 29/12/1971 (Annex.1) and after the Act of 1973 came into force, again proceedings were initiated against the respondent no.1, wherein, again order dated 25/10/1975 (Annex.2) was passed holding that the respondent was not having land in excess of ceiling limit and, where after, the present proceedings by way of notice under Section 15 (2) of the Act of 1973 (Annex.3) were initiated qua order dated 29/12/1971, which culminated in the order passed by the authorised officer and set aside by the Board of Revenue. 10. 10. This Court in the case of Smt. Pari Devi v. State of Rajasthan : 1984 RLW 320 has observed and held as under: "It appears that two proceedings were taken against the petitioner : one under the old Ceiling Law and the other under the New Ceiling Law. Under the New Ceiling Law, the proceeding was dropped, or, in other words, it must be held that there was no excess land with the petitioner under the new Ceiling Law. In case No. 279 of 1973 under the new Ceiling Law, it was found that transfers were bona fide and the area, after the transfer, was not surplus. This order has become final as the State Government did not challenge the order by preferring an appeal as is incumbent under the law. Thereafter, the State Government, peculiarly enough, proceeded under Section 15(2) of the new Ceiling Law by which old ceiling cases can be reopened. After the proceedings had been initiated, and culminated in favour of the petitioner under Section 15(4) of the new Ceiling Law, it is not open to the respondent to proceed again the old Ceiling Law, or, in other words, both the old Ceiling Law and the new Ceiling Law cannot occupy the same field or in the same subject matter. Admittedly, in this case, new Ceiling Law case was in favour of the petitioner and, therefore, in my opinion, the proceeding under Section 15(2) was, on the fact of it, without jurisdiction. 2. I, therefore, set aside all the orders, including the orders of the Board of Revenue made under Section 15(2) of the new Ceiling Act for reopening an order passed under the old Ceiling Law. The rule is, therefore, made absolute to the extent indicated above. There will be no order as to costs." 11. The issue as to whether the judgment in the case of Smt. Pari Devi (supra) holds the field or other two conflicting judgments of Division Bench hold the field was referred to Larger Bench and the Larger Bench in the case of Sahas Karan v. State of Rajasthan & Ors. There will be no order as to costs." 11. The issue as to whether the judgment in the case of Smt. Pari Devi (supra) holds the field or other two conflicting judgments of Division Bench hold the field was referred to Larger Bench and the Larger Bench in the case of Sahas Karan v. State of Rajasthan & Ors. : S.B.Civil Writ Petition No. 2598/89 decided on 18/4/2011 observed as under:- "In the case of Pari Devi (supra) leave to appeal was granted and appellate jurisdiction of Supreme Court was invoked, thus, the order passed in appeal would certainly attract the doctrine of merger and that affirms the law laid down by this Court in the case of Pari Devi. That being the position of law, the law laid down in the case of Ram Gopal is not a correct one, that stands impliedly overruled and the law laid down in Pari Devi's case (supra) holds the filed in the subject matter." 12. In view of the law laid down by this Court in Pari Devi's case (supra), as affirmed by the Hon'ble Supreme Court, it is apparent that the proceedings under Section 15(2) of the Act of 1973 as initiated by the State Government, could not have been determined by the Collector after the order under the Act of 1973 had been passed on 25/10/1975 and those proceedings became final. 13. A submission was made by the learned counsel for the petitioner that the above issue was not raised before the authorities below. The issue herein is purely legal and based on the law laid down by this Court, the same could be taken note of by this Court at this stage as well, as the issue affects the very jurisdiction of the authorities to initiate the proceedings. 14. In view of the above discussion, as the authorities had no jurisdiction even to issue notice under Section 15(2) of the Act, the determination dated 18/3/2000 made by the authority under the Act of 1973 cannot be sustained and consequently there is no substance in the writ petition and same is, therefore, dismissed. No order as to costs.