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2018 DIGILAW 1662 (RAJ)

Dalpat Singh v. State of Rajasthan

2018-08-07

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. The petitioners before this Court were Jagirdar, whose land was resumed under the Rajasthan Land Reform Resumption of Jagir Act 1952 (hereinafter as the Act 1952). The Rajasthan Land Reform Resumption of Jagir Act 1952 came into force with effect from 16th February, 1952 on being published in Rajasthan Gazette as per Section 14, which was amended from time to time following provisions provided under Sections 14, 16, 18 & 19. The Rajasthan Land Reform Resumption of Jagir Act 1952 came into force with effect from 16th February, 1952 on being published in Rajasthan Gazette as per Section 14, which was amended from time to time following provisions provided under Sections 14, 16, 18 & 19. The present case mainly relates to Section 18 & 19 of the Act 1952, which has been the basis later on, for the petitioners who have assailed the order issued by the State Government dated 30th April, 2002, 22nd November, 2002 and also the order dated 9.6.2000 by way of this writ petition and have prayed as under: "(i) the direction of the State Government as contained in order dated 30.4.2002 and in the consequential orders to the effect that it shall be necessary for the Collectors to seek prior approval of the State Government before sending the allotment proposals to khudkasht/jagir Commissioner may be declared illegal, ultra vires of the Act and the same may be quashed and set aside with consequential directions; (ii) the directions of the State Government as contained in the order dated 22.11.2002 and in the consequential orders to the effect that allotment of the land as Khudkasht to the ex-jagirdars under the Act of 1952 shall be made by the Khudkasth Commissioner only in II Phase of Indira Gandhi Canal Project Area and not in any other district and that there will be no need of obtaining enquiry report from the District Collectors and that pending matters of allotment of land as Khudkasht to ex-jagirdars should be sent by the Collectors to the Khudkasth/jagir Commissioner without enquiry report, may be declared as illegal and against the provisions of the Act and said directions may be quashed and set aside; (iii) the directions contained in the order dated 9.6.2000 of the State Government to the affect that Khudkasht Commissioner should not allot the land for khudkasht in excess of agricultural ceiling limit may be quashed and set aside; (iv) the non-petitioners may be directed to process and decide the applications of the petitioners for allotment of the land as khudkasht in accordance with the Act and the Rules as early as possible as if no such impugned direction have been passed by the State Government, (v) Any other order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner, (vi) Costs may be awarded." 2. Vide impugned order dated 30th April, 2002, the Secretary Revenue issued an order to all District Collectors directing that in future before making allotment, Khudkasth/Jagir Commissioner shall take prior approval from the State Government. Learned Counsel submits that the said order goes contrary to the decision taken by the respondents, in the order sheet wherein it was decided that the land has to be allotted depending upon demand of the applicants and availability the said land and as per prayer made by the applicant. Decision in this regard was to be taken exclusively by Jagir Commissioner himself. Thus order dated 30.4.2002 could not have been passed after the decision had been taken by the Government as noted in the order sheet. Learned counsel further submits that the allotment was to be made in terms of the Act of 1952 and therefore, the same was to be made by the Commissioner himself and there is no provision for the prior permission to be taken from the State Government under the Act of 1952. 3. As regards order dated 22.11.2002 Government has in terms of the said order directed that the land has to be hence-forth allotted to ex-Jagirdars in Indira Gandhi Canal Project Area, Phase-II. Learned counsel for the petitioner submits that in terms of Section 19 of the Act 1952 the land was to be allotted as per order mentioned therein. Thus firstly, land surrendered by tenants, if available, could be allotted secondly; the land abandoned by the tenants, if available, could be allotted; thirdly; land which was in personal cultivation could be allotted; fourthly uncultural unoccupied land within the Jagir, if available, which required to be allotted and so on. The order dated 22.11.2002, thus, was issued beyond the power available under Section 19 and the Government had no authority to issue such an order. 4. However, learned counsel has pointed out that amendment was made in The Rajasthan Land Reforms and Resumption of Jagirs(Amendment) Act, 2011 and Section 19 as noted above, was substituted as under: Section 19: "19. Land to be allotted as Khudkasht.-Only the land situated within Stage-II of the Indira Gandhi Nahar Pariyojana shall be allotted as Khudkasht under this chapter" The said amendment was notified in Gazette on 1st April, 2011 and came into force w.e.f. 1st April, 2011 itself. Land to be allotted as Khudkasht.-Only the land situated within Stage-II of the Indira Gandhi Nahar Pariyojana shall be allotted as Khudkasht under this chapter" The said amendment was notified in Gazette on 1st April, 2011 and came into force w.e.f. 1st April, 2011 itself. Thus the amendment could not be applied to the petitioners who were entitled to be given the benefit of the unamended provision. 5. Learned counsel submits that the retrospective effect could not be made to the amended provision and would apply only to the Jagirdar whose Jagirdari is sought to be resumed after 2011 and would not apply to those persons whose Jagirdari was resumed earlier and who were to be governed u/s. 18 & 19 of the Act as it stood unamended. 6. Learned counsel has also cited in one of the cases decided by this Court after coming into force of the amendment in S.B. Civil Writ Petition No. 2006/2011 decided on 19.9.2017 wherein this Court has passed an order with direction to the respondents to consider the case of the petitioner therein for allotment of land in District Sikar in pursuance of the orders the of Jagir Commissioner with further directions that allotment of land in Indira Gandhi Nahar Pariyojna Area would not be made. 7. It is also stated that the orders were passed as consequence thereto and no appeal against the same has been preferred by the State. In the circumstances the submission of that the State Government itself has not put into effect the amendment 2011 on the Jagirdars whose land was resumed prior to the amendment. 8. Learned counsel has relied on judgment reported in 2001(8) SCC 24 "Shyam Sundar & Another vs. Ram Kumar & Another" to submit that a retrospective operation to a statute is not to be given. Retrospective operation can only be given wherein it is stated in express language and not in normal course of law. Paragraphs of interpretation of statute and other books relating to statutory interpretation have been quoted in the aforesaid judgments. 9. Learned counsel also relied on judgments reported in 2001 (RRD) 167" Smt. Mussvirnisa Begum vs. State of Rajasthan & Ors." wherein the Division Bench has directed for allotment of entire land to the petitioner. 10. Paragraphs of interpretation of statute and other books relating to statutory interpretation have been quoted in the aforesaid judgments. 9. Learned counsel also relied on judgments reported in 2001 (RRD) 167" Smt. Mussvirnisa Begum vs. State of Rajasthan & Ors." wherein the Division Bench has directed for allotment of entire land to the petitioner. 10. The third aspect which the learned counsel has raised relates to the order dated 9th June, 2000 wherein the Government has directed that the ex-jagirdar should not be allotted land in excess of ceiling limit as laid down under The Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 (herein after referred to Act of 1973). Learned counsel submits that the vested right as created u/s. 18 cannot be curtailed by Act of 1973 which was not in force at the time when the Act of 1952 had come into force and the said act would also not apply elsewhere as there is a maximum land allotment provided under the Act 1952 to the Jagirdars. 11. The said order of 9.6.2000 was also examined by Division Bench in Smt. Mussvirnisa Begum(supra) wherein the Court directed the allotment of land as per entitlement of the said Jagir and apart from 54 standard acres of land allotted to her in Tonk which was ceiling limit, the Division Bench has directed to allot the remaining 291 acres of land at place in terms as per provision of law. 12. It is also pointed out that another unreported case D.B. Civil Special Appeal (Writ) No. 476/2006 "Smt. Durgesh Kumari vs. State of Rajasthan" while the court directed that land to the extent permissible under the Ceiling Act 1973 could alone be allotted. However, the court directed the concerned various officer under the Ceiling Act 1973 to first examine the holdings permissible available for the concerned Jagirdar and thereafter take a decision relating to allotment. The order was passed on 4th October, 2007. 13. Learned counsel submits that the Ceiling Act 1973 would not apply to the Jagirdar who are to be allotted land and the provision of the ceiling limit would apply only after the land has been allotted and entered in the name of the concerned Jagirdar or persons thereto and thereafter there is no occasion to apply ceiling Act at the stage of allotment under the Act 1952. 14. 14. Per contra, learned counsel for the respondents-State submits that so far as the order dated 30th April, 2002 is concerned, same has not been made applicable and land are being allotted by Jagir Commissioner and thus, this court would not required to be examined the said order in light of the subsequent decision. As regards the order dated 22.11.2002 whereby the Court had directed to allot land in Indira Gandhi Canal Project Area, Phase-II. It is submitted that the order is now taken shape of amendment in terms of the Amendment Act 2011 whereby Section 19 itself has been amended and henceforth if any land is to be allotted, the same would have to be situated within the stage II of Indira Gandhi Nahar Pariyojna Area. Further, learned counsel points out that some of the petitioners have already been allotted the land and remaining land which they seek for allotment in their favour can only be allotted in Stage II of Indira Gandhi Nahar Pariyojna Area. So far as the petitioner No. 1 is concerned land of 51 bighas and 9 biswas of land has already been allotted and 9 Bighas was already in his possession and thus, he is already in possession 60 Bighas of land and remaining land to which he is entitled under the Ceiling Act would be allotted to him at Indira Gandhi Nahar Pariyojna Area. As regards the petitioner No. 7, he already possess 55 bighas land and the remaining entitlement to which he is entitled, can be allotted to him at Indira Gandhi Nahar Pariyojna Area in terms of the Amendment u/s. 19. Learned counsel submits that there is no retrospective effect of section 19. The same have given effect for allotment of land to Jagirdar after 2011 alone. Those, who have been allotted land earlier, have not been disturbed. 15. It was further contended that the order dated 9.6.2000 is correct as allotment has to be within ceiling limits, excess allotment beyond ceiling limit would serve no purpose and therefore, the order dated 9.6.2000 does not call for any interference. 16. Additional affidavits have been filed by the petitioners as well as the respondents. 15. It was further contended that the order dated 9.6.2000 is correct as allotment has to be within ceiling limits, excess allotment beyond ceiling limit would serve no purpose and therefore, the order dated 9.6.2000 does not call for any interference. 16. Additional affidavits have been filed by the petitioners as well as the respondents. The additional affidavits was filed by Umed Singh(the petitioner No. 7) stating that after resumption of his land under the Jagir Act he applied for allotment of "Khudkash" land and two separate proceedings were initiated for allotment of land at Dausa & at Jaipur. The Khudkash Commissioner vide its order dated 30.1.2002 held him entitled for allotment for 389 bighas of land in District Dausa against which only 25 bigha land was allowed to him at Alwar on 6th February, 2002. At Jaipur, the land was not allotted. He claims that he is entitled for 500 acres of land and as on today he possess 30 bighas of land. After resumption of Jagir and 25 Bighas of land allotted on 6th Feb, 2002 and is thus entitled for allotment of 466 acres of land which he is claiming for last 63 years. Similarly Saubhaya Singh petitioner No. 3 has filed additional affidavit wherein he has pointed out that Smt. Prem Kanwar was independent Jagirdar and upon resumption of her jagir, she was entitled to 112 acres of land. Since the deponent was son of Smt. Prem Kanwar he alongwith his brothers-Sangram Singh, Hanuman Singh, Jitendra Singh, Virendra Singh & Mahendra Singh were entitled to the said land and the land was available at Sirohi at Village Jawal where 62 acres of land was allotted vide order dated 18.4.2002 but the same was not handed over and submits that 325 bighas of land and 300 bighas of land bearing separate khasra numbers is still available in Village Malgaon, Tehsil Ravdhar, District Sirohi. He has also cited instances where other Jagirdars have been allotted land in several districts. With regard to the petitioner No. 3, it has been stated that legal heirs of Prem Kanwar have already been allotted one Murabba of land and in view of Ceiling Limit no more land can be allotted to respondents. He has also cited instances where other Jagirdars have been allotted land in several districts. With regard to the petitioner No. 3, it has been stated that legal heirs of Prem Kanwar have already been allotted one Murabba of land and in view of Ceiling Limit no more land can be allotted to respondents. The respondents have also filed additional affidavit and it is stated that in terms of the circular dated 22.11.2002, land can only be allotted to Ex-Jagirdar in second phase of project area of Indira Gandhi Nahar Project. Similar reply has been given in relation to the other affidavit with regard to petitioner No. 3. However legal heirs of Prem Kanwar have claimed that they have allotted land to independent Jagidrar and not legal heirs. 17. Heard learned counsel, when the petition was filed in 2003 three orders passed by the State Government were challenged. However, in the meanwhile, the amendment has also come into force. In view of the amendment, the case has to be examined. 18. Firstly, so far as the order dated 30.4.2002 is concerned the same stands answered in view of the statement of the counsel for the respondents that allotment is made by Jagir Commissioner at his level. Keeping in view of the decision taken by the State Government and thus there is no interference of State Government while making allotment. 19. As far as the order dated 22.11.2002 is concerned as per unamended section 19 sequential order of allotment of land has been laid down. The respondents in reply have not come out to show whether they conducted any exercise to show that allotment of land was not available in category mentioned in sub-clause 1 of Section 19 before taking a unilateral decision to allot the land only in Indira Gandhi Nahar Pariyojna Area vide order dated 22.11.2002. The order dated 22.11.2002 has not taken into consideration the provisions of section 19 and as such was passed contrary to said section and deserves to be quashed. 20. However, different situation arises after coming into force of the amendment wherein the Section 19 has been amended and the land can only be allotted within the stage II of Indira Gandhi Nahar Pariyojna Area as Khudkast land. 20. However, different situation arises after coming into force of the amendment wherein the Section 19 has been amended and the land can only be allotted within the stage II of Indira Gandhi Nahar Pariyojna Area as Khudkast land. Provisions of the Rajasthan Land Reform Resumption of Jagir Act 1952 are required to be read as a whole and interpretation only with relation to one section cannot be taken in isolation. Process is a continuous process and firstly the calculation has to be done in terms of Section 18 as to the total area of Khudkast to which the Jagirdar is entitled to. Once the said exercise has been made, an exercise was required to be conducted as per the old provision u/s. 19 and land was to be earmarked and as per the provision therein the land was to be allotted. 21. This Court is an agreement with the Learned Sr. Counsel for the petitioner that the vested right had accrued to the Jagirdar for allotment of land in terms of the unamended section 19 and right was created in his favour for getting land as per the sequence laid down therein. Thus, if the land is available as per the sequence mentioned u/s. 19 unamended, the same has to be allotted to petitioner. Thus, the exercise under the unamended Act of 19 was required to be done. However, neither it has been stated before this court nor from any document on record it is revealed as to what were the reasons the concerned Collector or Jagir Commissioner did not complete the exercise at relevant time for the purpose of allotment. It is only after the concerned Jagir Commissioner reaches to the conclusion that no land is available as per the sequence mentioned in unamended section 19 that a decision can be taken of allotting the land in Indira Gandhi Canal Project. It is also seen as per affidavits filed before this Court that such Jagirdar have also been allotted Khudkast land in various districts in Rajasthan other than Indira Gandhi Nahar project even after the issuance of order dated 22.11.2002. The rejoinder to this effect has already been filed before this Court which have not been controverted. 22. It is also seen as per affidavits filed before this Court that such Jagirdar have also been allotted Khudkast land in various districts in Rajasthan other than Indira Gandhi Nahar project even after the issuance of order dated 22.11.2002. The rejoinder to this effect has already been filed before this Court which have not been controverted. 22. Thus, before the State takes Umbrage of the amendment made in Section 19 w.e.f. 1st April, 2011, the exercise has to be conducted whether land was available prior to 1st April, 2011 in categories and sequence mention in unamended section 19. After having conducted the said exercise if at reaches to conclusion that land was not available in any area mentioned under unamended section 19, the land has to be allotted in second phase of Indira Gandhi Nahar Pariyojna. 23. While conducting such an exercise for the said purpose, the petitioners would be free to point out if any land is available under the said categories u/s. 19 prior to coming into force of 1st April, 2011 for the purpose of allotment. The decision has taken at the level of the Jagir Commissioner in this regard. If land is found to be available, the same shall be allotted in terms of the provision of the Act 1952. 24. The third question relating to the ceiling Act 1973 is also required to be answered. Admittedly, the provision of Ceiling Act 1973 applies to the persons who are in possession of land and whose name are entered in the revenue records. Once Khatedari rights exists the provision of Ceiling Act will come into question. Ceiling Act would therefore not be applied to the facts of the present case as it is seen that both, land is yet to be allotted in favour of the petitioners and after the land is allotted in favour of the petitioners their names are to be recorded in the revenue record. The provision under the Ceiling Act as well as any other act would only thereafter come into operation treating the said petitioners as Khatedars. If thereafter, any land falls in ceiling the said Khatedars/Khudkast would thereafter be free to take up their remedies relating to the provision of Ceiling Act. It is thereafter, to be examined by the concerned authority under the act as to how much land is found to be excess in name of the concerned Khatedar. If thereafter, any land falls in ceiling the said Khatedars/Khudkast would thereafter be free to take up their remedies relating to the provision of Ceiling Act. It is thereafter, to be examined by the concerned authority under the act as to how much land is found to be excess in name of the concerned Khatedar. Since rights relating to the individuals under the Act of 1952 will have to be examined as per the law of inheritance. 25. The judgment passed in case of S.B. Civil Writ Petition No. 2006/2011 "Man Singh Dhabai vs. State of Raj." whereby this court directed that no land allotted in Indira Gandhi Nahar Pariyojna does not take into consideration the Amendment Act 2011 and would therefore be not applicable to the present case and parity on the said basis would not be available. 26. Accordingly, Jagir Commissioner/Khudkast Commissioner is directed to conduct the exercise within the period of three months from the date of submission of certified copy to the concerned Jagir Commissioner/Khudkasth Commissioner as per above. 27. With the said observations, the writ petition is partly allowed.