Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1949 (RAJ)

Dattar Singh v. State of Rajasthan

2017-09-01

INDERJEET SINGH, K.S.JHAVERI

body2017
JUDGMENT : K.S. Jhaveri, J. By way of this appeal the appellant has challenged the judgment and order dated 15.03.2007, whereby the learned Single Judge has dismissed the petition preferred by the petitioner confirming the order of Board of Revenue, RAA and the Original Authority under the Ceiling Act. 2. The facts of the case are that initially ceiling proceedings were dropped by the SDO concerned on 31.12.1970, However, the same were re-opened vide order dated 06.07.1978 on the ground that earlier the SDO concerned had not enquired about number of family members as also actual measurement of the land possessed by the petitioners on the cut off date i.e. 01.04.1966. After hearing both the parties the Additional Collector on the basis of material available on record held that the petitioner were having 70.80 Acres of land as on 01.04.1966. Since under the Ceiling law they were not entitled to retain more than 35 standard acres of land, the remaining 35 standard acres of land was ordered to acquired vide order dated 30.11.1987. The above order passed by the Additional Collector further came to be affirmed by the Board of Revenue vide order dated 29.05.1989. 3. Taking into consideration total number of family members and the land possessed by the petitioner, the authority has passed the order that the excess land is 70 Acres and since under the Ceiling Act 35 Acres was standard acres which is entitled to be retained. In that view of the matter, 35 Acres of land was ordered to be excess land and acquired by order dated 30.11.1987. The above order came to be challenged before the Board of Revenue and the Board of Revenue after considering the same has also confirmed the order of the lower authority. The learned Single Judge, has also upheld the same. 4. Counsel for the appellant has also relied upon the following decisions:- "State of Rajasthan and another v. Amarjeet Kaur (Smt) and others (2003) 2 SCC 247 . 6. For these reasons, no useful purpose would be served by re-opening the old proceedings, particularly, in view of the fact that the determination of the area under the 1973 Act even if found to be more is of no consequence and would not accrue to the benefit of the respondents. 7. 6. For these reasons, no useful purpose would be served by re-opening the old proceedings, particularly, in view of the fact that the determination of the area under the 1973 Act even if found to be more is of no consequence and would not accrue to the benefit of the respondents. 7. Learned counsel for the appellants relied upon the judgment of the High Court of Rajasthan in Sumitra Kaur v. Authorised Officer (SDO) and the judgment of a Constitution Bench of this Court in Bansidhar v. State of Rajasthan in support of her contention that parallel proceedings under the 1955 Act as well as the 1973 act can continue simultaneously. We find no support from the said judgments for the proposition urged by the leaned counsel. Smt. Durga Devi & ors. v. Board of Revenue & ors., (D.B. Civil Writ Petition No. 1492 of 1995) decided on 13/11/1996. 12. The same view was reiterated by the Division Bench of this Court in : Raja Ratan v. State of Raj. & Ors., RLR 1982 939 and the Division to the ceiling area have to be determined with respect to the notified date and not with respect to the date of decision of the case. 13. In the present case the Additional Collector (Administration), Sri Ganganagar as well as the Board of Revenue have taken into consideration the land acquired by Sada Lal and his family in the year 1968-69 and clubbed the same with the land which the claimants were having on 01.04.1996. The land acquired by the person or the family after the notified date cannot be taken into consideration for determination of the ceiling area. For determination of the land, the position existing on 01.04.1966 had to be taken into consideration. On the appointed date, Sada Lal and his family members were having 72 Bighas 15 Biswas of land and the number of family members was eight. The family was entitled to have 69 Bighas 12 Biswas of land and, thus, the family was having 3 Bighas 3 Biswas of surplus land. As this was only a fragment, therefore, the family was entitled to retrain the possession over this land. The family was entitled to have 69 Bighas 12 Biswas of land and, thus, the family was having 3 Bighas 3 Biswas of surplus land. As this was only a fragment, therefore, the family was entitled to retrain the possession over this land. If any lad has been acquired by the person or the family after 1.4.1996 then the proceedings can be taken against them under section 30-E of the Act but the land acquired after 01.04.1996 cannot be included for determination of the ceiling area. The judgment Annexure 3 passed by the Board of Revenue, affirming the order Annexure 2 passed by the Additional Collector (Administration), Sri Ganganagar and determining the ceiling area of Sada Lal and the family, declaring 27 Bighas 3 Biswas of land as 'surplus land', deserves to be quashed and set-aside. Noonda Ram & Others v. Addl. Collector, Nagaur & Ors. (D.B. Civil Special Appeal Nos. 223 & 257 of 2000) decided on 08.03.2006. 10. The appeal was dismissed by the Board of Revenue on 15.3.1985. A review petition was filed for bringing on record the copies of Jamabandies of Samwat 2010 to 2030, in reference to which in the order of review, we have noticed above which supported the case of the petitioners that the land was originally held by Mangla. It was not the case of the Board of Revenue that Jamabandi which has been produced before it and which is part of the public record was of doubtful origin. In view of this evidence the factual position of the order passed by the Board of Revenue was apparently erroneous and review ought to have been granted. It is also proved on record that the land in question was ancestral. These findings, in our opinion, sufficient for the Board of Revenue to grant the review and to have considered the case of the petitioners in the light of the revenue record which was relied on by the competent authority and which was before it. 11. Be that as it may, the learned Single Judge also did not notice the facts of existing decree of partition of land and dismissed the writ petition on the ground that the petitioners have not proved their case of land being ancestral. 12. 11. Be that as it may, the learned Single Judge also did not notice the facts of existing decree of partition of land and dismissed the writ petition on the ground that the petitioners have not proved their case of land being ancestral. 12. Having considered the contentions raised and record that has been placed before us, it is apparently clear firstly that the authorities of Ceiling Act had discarded the decree of the competent court on his own by ignoring it as a collusive decree. This is not given to any authority much less any statutory authority to discard the validity of a decree of a competent court partitioning the suit property. Merely because it happened to be based on compromise, it cannot be assumed to be collusive and ineffective. Collusion is a question of fact and had to be proved as any other question of fact. The rights between the parties were declared and the partition between co-sharers took palace in recognition of any pre-existing right and that is why the partition is not considered to be a transfer. Therefore, if a valid decree which has not been impeached by any one at any time, the competent authority under Ceiling Law could not by ignoring a decree of competent court reach its conclusion contrary to that. 13. It is not in dispute that the property if held to be ancestral no members of coparcenary have surplus land. 14. In view of the above, both the appeals are allowed. The judgment under appeal is set aside. Writ petitions are allowed and the impugned orders of the competent officer and the Board of Revenue in appeal are set aside. No order as to costs. 5. Counsel for the respondent contended that in view of the concurrent findings and the contentions which are now raised were considered by the authorities and both the sons were held to be dependent under the Act. 6. In that view of the matter, firstly the sons were shown to be dependent and part of the family under the Act was rightly considered by the authorities. 7. We have heard counsel for the parties. 8. 6. In that view of the matter, firstly the sons were shown to be dependent and part of the family under the Act was rightly considered by the authorities. 7. We have heard counsel for the parties. 8. Taking into consideration the factual matrix, concurrent finding, in the intra court appeal, we have limited power and the finding which has been arrived at by the Appellate Authority confirmed by the Board of Revenue and also by the learned Single Judge, is not required to be disturbed. Both the sons declared themselves to be dependent as a family member therefore taking a contrary view by the last fact finding authority and the learned Single Judge is not just and proper. 9. In that view of the matter, the appeal being devoid of merit, is dismissed.