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2016 DIGILAW 679 (RAJ)

Gulab Singh v. State of Rajasthan

2016-05-13

KAILASH CHANDRA SHARMA, SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. 1. This intra court appeal is directed against order dated 29.7.02 of the learned Single Judge of this court, whereby the writ petition preferred by the respondents no.7 to 10 herein, questioning the legality of proceedings initiated against them under Section 91 of Rajasthan Land Revenue Act, 1956 (for short “Act of 1956”) in respect of the agriculture land, Ad measuring 819.09 bighas, comprising khasra no. 1364, 38, 34 and 36, situated at village-Nimbasar, Tehsil-Shiv, District-Barmer and seeking directions to open mutation in respect of the said land in their name, has been allowed. 2. The relevant facts in nutshell are that the ceiling proceedings were initiated against Sagat Singh, Chandan Singh, Kanwraj Singh and Gemar Singh, under the Chapter III B of Rajasthan Tenancy Act, 1955 ('Old Ceiling Law'), who were joint khatedars of a chunk of land. The ceiling proceedings were concluded vide order dated 17.9.71, whereby 13¾ Standard Acre (S.A.) land was declared surplus and 133-3/4 S.A. land was given to the assesses being in the prescribed ceiling limit. On 22.2.83, the Government of Rajasthan directed to reopen the ceiling case against the assessees under Section 15(2) of Rajasthan Imposition of Ceiling on Agriculture Holdings Act, 1973 ('New Ceiling Law') and the Collector, Barmer was authorised to proceed afresh after reopening of the ceiling proceedings. After extending an opportunity of hearing to the assessees, the Collector, Barmer vide order dated 2.12.92 arrived at the conclusion that Sagat Singh and Kanwraj Singh were not having the land in excess of the prescribed ceiling limit whereas, 20.5 S.A. land of Gemar Singh and 74.5 S.A. land of Chandan Singh were declared surplus. The order passed by the Collector, Barmer was not challenged by the assessees and the same attained finality. In the meanwhile, the father of the respondents no. 7 to 10 herein, filed a suit for declaration in respect of the land Ad measuring 819.09, comprising khasra no.1364, 38, 34 and 36 in the court of Assistant Collector, Barmer, wherein Chandan Singh, Gemar Singh and Sagat Singh were the defendants. By way of written statement, the defendants admitted the claim of the plaintiffs as set out in the plaint. By way of written statement, the defendants admitted the claim of the plaintiffs as set out in the plaint. Consequently, the suit was decreed on 13.7.71 and pursuant thereto, the mutation of the above land was open in the name of the respondents no.7 to 10 on 2.2.73 and they remained in possession of the said land thereafter. After conclusion of the ceiling proceedings under the New Ceiling Law, the assessees, Chandan Singh and Gemar Singh, surrendered the surplus land comprising khasra no.34, 36 and 1364 for vesting in the State Government, which have been in possession of the respondents no.7 to 10 herein, by virtue of the decree passed in their favour by the Revenue Court of competent jurisdiction. The respondents no.7 to 10 came to know about the factum of their land being surrendered by Chandan Singh and Gemar Singh, when they were served with the notices under Section 91 of the Act of 1956, for their eviction from the land alleging it to be in their unauthorized occupation. The respondents no. 7 to 10 appeared before the Sub Divisional Officer, Barmer, on 14.9.95 and made an application stating that the assessees are holding unencumbered land and therefore, instead of taking their land, the Tehsildar be directed to take unencumbered land in possession of the assessees, but to no avail. Since, the Tehsildar, Shiv was pressing hard for taking possession of the land occupied by the respondents no. 7 to 10, they preferred the writ petition before this court, questioning the legality of the proceedings initiated under Section 91 of the Act of 1956 and prayed for reopening of the mutation of the land in their name as also to take possession of unencumbered land of inter alia the appellant herein to the extent the land held by them is declared surplus in the ceiling proceedings. 3. The writ petition was contested by the State, taking the stand that during the ceiling proceedings, it was prayed on behalf of Sagat Singh and others that the decree passed in favour of Basta (the father of the respondents no. 3. The writ petition was contested by the State, taking the stand that during the ceiling proceedings, it was prayed on behalf of Sagat Singh and others that the decree passed in favour of Basta (the father of the respondents no. 7 to 10 herein), Gokula and Chhota may be recognized and the land covered under the decree measuring 819.09 bighas be exempted from the land held by Sagat Singh, however, the Collector after due consideration opined that the land in question cannot be exempted for the reason that the said ex parte decree was passed in collusion without hearing the persons affected. Precisely, the stand of the State was that the ex parte decree passed being collusive, the transfer of mutation were not recognized for the purpose of Section 30D and 30DD of the Old Ceiling Law by the Collector and since, the said land was surrendered by the land holders and taken possession of and mutated in the revenue record in favour of the State Government as siway chak, the writ petitioners, respondents no. 7 to 10 herein, were rightly treated as trespasser over the land and thus, the proceeding initiated under Section 91 of the Act was well within the jurisdiction of the Tehsildar, Shiv. 4. No reply to the petition was filed on behalf of the appellant herein and Gemar Singh, who were party respondent no.4 & 6 in the writ petition. 5. After due consideration of the rival submissions, the learned Single Judge relying upon a Bench decision of this court in the matter of “Iftekhar vs. State of Raj. & Ors.”, 1992 RRD 320, held that as per Second proviso to Section 30E of Old Ceiling Law, the assessee was under an obligation to surrender unencumbered lands in preference to encumbered lands. The court observed that in the instant case, the writ petitioners were not transferees rather, they had acquired the khatedari rights over the land in question on the declaratory suit filed by them being decreed and on that basis, mutation of the land was also done in their names and they were in possession thereof since then. The court observed that if the assessees were not having any unencumbered land, the matter would have been different and the encumbered land could also have been acquired after giving compensation to the writ petitioners decree holders. The court observed that if the assessees were not having any unencumbered land, the matter would have been different and the encumbered land could also have been acquired after giving compensation to the writ petitioners decree holders. Consequently, while allowing the writ petition, the notices issued by the Tehsildar, Shiv to the respondents no. 7 to 10 herein, under Section 91 of the Act of 1956, have been quashed by the learned Single Judge and the directions have been issued to the Authorised Officer to take unencumbered lands of the assessees. Hence, this appeal. 6. Learned counsel appearing for the appellant submitted that the respondents no. 7 to 10 did not place the copy of the decree or the suit filed on record, which could establish that they were declared khatedar of the land comprising khasra no. 1364, 38, 34 and 36. Learned counsel would submit that in absence of the decree passed in favour of Basta, the father of the respondents no. 7 to 10 and in absence of the evidence of the lands being in their possession, the learned Single Judge has erred in arriving at the conclusion that the notices issued under Section 91 of the Act of 1956, are without jurisdiction. Learned counsel would submit that in the ceiling proceedings, the decree passed in favour of the writ petitioners being found collusive and the land having been included in the land held by the assessees, no right could be claimed on the basis of such decree. Learned counsel would submit that the transfer made in favour of Basta and others having not been recognized, the disputed lands cannot be considered to be encumbered land. Learned counsel submitted that after death of Hathu Singh since his legal representatives were not brought on record and his name was deleted, the writ petition stood abated and therefore, the learned Single Judge has erred in deciding the writ petition on merits. 7. On the other hand, the counsel appearing for the respondents no. 7 to 10 submitted that nothing turns on the question that the lands in respect whereof the respondents no. 7 to 10 have acquired khatedari rights by virtue of the decree passed by the Revenue Court of competent jurisdiction in favour of their father and others, was not exempted while determining the excess land in the hands of the assessees, treating the said decree as collusive. 7 to 10 have acquired khatedari rights by virtue of the decree passed by the Revenue Court of competent jurisdiction in favour of their father and others, was not exempted while determining the excess land in the hands of the assessees, treating the said decree as collusive. Learned counsel submitted that notwithstanding the finding recorded in the ceiling proceedings as aforesaid, the decree passed by the court of competent jurisdiction inter se between the parties is binding and the same cannot be treated to be non est on the basis of observation made by the Authorised Officer in the ceiling proceedings as aforesaid. Learned counsel submitted that the appellant and the respondent no. 5 herein, having unencumbered lands available in their hands, they could not have surrendered the lands in respect whereof the respondents no. 7 to 10 have acquired khatedari rights by virtue of the decree passed in their favour. Learned counsel submitted that it is settled law that assessee is not entitled to surrender the encumbered land in preference of unencumbered land and thus, the order impugned passed by the learned Single Judge does not suffer from any error whatsoever. 8. We have considered the rival submissions and perused the material on record. 9. It is true that under the Scheme of Chapter III B of the Old Ceiling Law, while determining the land in the hands of the assessee in excess of the ceiling limit unrecognized transfers are to be ignored. But then, as per second proviso to sub-section (2) of Section 30E of the Old Ceiling Law, 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. It is not the law that only unencumbered lands be surrendered but the law clearly envisage that the encumbered lands shall be surrendered only to the extent unencumbered lands are not available and even the State is empowered to insist for surrender of unencumbered lands. We are firmly of the opinion that permitting an assessee to surrender the encumbered lands and retain the unencumbered lands shall be against the spirit of the ceiling law as framed. 10. We are firmly of the opinion that permitting an assessee to surrender the encumbered lands and retain the unencumbered lands shall be against the spirit of the ceiling law as framed. 10. It is a matter of record that the transfer of the lands in favour of the writ petitioners by virtue of the decree passed by the Revenue Court of competent jurisdiction was not recognized by the Authorised Officer while determining the excess land in the hands of assessees but the fact remains that the factum of passing of the decree on the basis of the consent written statement filed, was admitted and relied upon on behalf of the assessees before the Authorised Officer. Even before the writ court the factum of passing of the decree by the Revenue Court of competent jurisdiction and the respondents no.7 to 10, the legal representatives of Basta, having acquired khatedari rights over the lands in question, was not disputed by the appellant herein and co-respondents therein, by filing any counter to the writ petition and therefore, nothing turns on the question that the copy of the decree passed in favour of Basta and others was not placed on record by the respondents no.7 to 10 before the Writ Court. In our considered opinion, the decree passed in favour of Basta and others as also the order passed by the Authorised Officer in the ceiling proceedings have attained finality and therefore, the appellant herein cannot be permitted to contend that the decree passed having been considered as collusive decree and the land covered by the same having been refused to be exempted for the purpose of determining the excess land in the hands of the assessees by the Authorised Officer, the disputed land cannot be treated to be encumbered land. The decree passed by the court of competent jurisdiction is binding upon inter se between the parties and the same cannot be treated to be non est merely because while assessing the excess land in the hands of the assessees, the exemption prayed for has been disallowed by the Authorised Officer treating the said decree to be a collusive decree. It is pertinent to note that on the basis of the decree passed the land was mutated in the names of the respondents no. It is pertinent to note that on the basis of the decree passed the land was mutated in the names of the respondents no. 7 to 10 and thus, they being recorded khatedar of the lands, it was not open for the appellant herein and others to surrender the same towards the acquisition of the land in their hands in excess of the ceiling limit, when the unencumbered lands were available with them for surrender. 11. Coming to the contention of the learned counsel appearing for the appellant regarding legal representatives of Hathu Singh being not brought on record and deletion of his name from the array of the respondents, a perusal of the record reveals that Hathu Singh was not served despite efforts being made and thereafter, on request being made by the counsel for the writ petitioners, his name was ordered to be deleted from the array of the respondents by the learned Single Judge vide order dated 18.7.02. There is nothing on record suggesting that the name of Hathu Singh was deleted as he died during the pendency of the writ petition and his legal representatives were not brought on record. As a matter of fact even in the appeal filed, this is not the ground taken by the appellant herein, rather it is contended on behalf of the appellant that Hathu Singh was a necessary party to the writ petition but his name was got deleted from the array of the respondents and thus, the writ petition was liable to be dismissed on this ground alone. Admittedly, no such objection was raised by the appellant herein either at the time of deletion of the name of Hathu Singh from the array of the respondents or subsequent thereto, before the learned Single Judge during the course of hearing and therefore, this court is not inclined to permit the appellant to raise any such objection at this stage. Moreover, the respondent no. 7 to 10 have got deleted Hathu Singh as party to the proceedings, obviously, at their risk and peril and if it has any consequence, the grievance can be raised in this regard by Hathu Singh and not the appellant herein. 12. In view of the discussion above, we are in full agreement with the view taken by the learned Single Judge. No case for interference by us in intra court appeal jurisdiction is made out. 12. In view of the discussion above, we are in full agreement with the view taken by the learned Single Judge. No case for interference by us in intra court appeal jurisdiction is made out. 13. The appeal is therefore, dismissed. No order as to costs.