State of Rajasthan Vs. Hanuman Singh and ors. - Court Judgment

Excerpt:
rajasthan tenancy act, 1973 - sections 15(1), 15(2)--land ceiling--reopening of decided case--where the landowner did not disclose his land or members of family fully and truly under the old ceiling law, the government was competent to reopen the case under the new act.;writ petition allowed - - (3), wherein a controversy as to whether reopening of the case under section 15 of the new ceiling act after the decision in ceiling proceedings under the new ceiling act was authorised had been decided by considering pari devi's case as well. under sub-section (1) of section 15, the state government after calling for the record or otherwise is satisfied that any final order passed in any matter arising under the ceiling law is in contravention of the provisions of that act and is prejudicial to the state government or on account of the discovery of new and important matter or evidence which has come to the notice, is required to be reopened. sub-section (1) of section 15 will be attracted in case, the state government, after calling for the record or otherwise is satisfied that any final order passed in any matter arising under the new ceiling law is in contravention of the provisions of that act and is prejudicial to the state government or on account of the discovery of new and important matter or evidence which has come to the notice, is required to be re-opened. sub-section (2) of section 15 is applicable if the state government is satisfied that final orders passed in any mailer arising under the old ceiling law is in contravention of that law and is prejudicial to the state government, it may direct any officer subordinate to it to re-open such decided case and to decide it afresh in accordance with the old ceiling law. a bare reading of sub-section (2) of section 15 of the act will show that power can be exercised if the state government is satisfied that any final order passed under the old ceiling law is in contravention of the provisions of that law and is prejudicial to the stale government. (1) and (2) of section 15 of the new ceiling law have been made to meet two different fact situations, and therefore, we are of the opinion that despite the fact that the ceiling area has been determined under the old ceiling law as well as the new ceiling law, the state government can order to reopen also under sub-section (2) of section 15 of the new ceiling law, no doubt subject to other conditions and within the prescribed period of limitation as contained therein'.(13). the division bench after noticing the case of chittar lal (supra) and also of amarjeet kaur vs. therefore, even if a case under the old ceiling law as well as new ceiling law has been decided and no appeal or revision is pending, it will be open for the state government to re-open a case decided under old ceiling law by virtue of powers vested under sub-section (2) of section 15 of the act. in our opinion the determination of the ceiling area and decision of the case both under the old ceiling law as well as under the new ceiling law does not debar the state government from re-opening the case under sub-section (2) of section 15 of the new ceiling law.orderverma j.(1). the state has come up in this writ petition challenging the orders passed by the board of revenue dated 21.11.1985 (annexure-3) with the prayer that the judgment passed by the additional collector, ajmer dated 6.2.1984 (annexure-2) be ordered to be maintained.(2). the sdo kekri initiated ceiling proceedings under chapter iii of the rajasthan tenancy act (hereinafter called as the old law) against the respondent no.1 hanuman singh and the declared certain area to be surplus vide its order dated 27.3.1971. aggrieved against this order the respondent no.1 had filed an appeal before the revenue appellate authority which was decided in favour of the respondent no.1, but lateron on 29.9.1978 in exercise of the powers conferred u/sec. 15(2) of the new act, the state govt. ordered reopening of the case of the respondent and directed the additional collector, ajmer for taking necessary action and in pursuance of the order passed by the state government the land matter of the respondent no. 1 was reopened.(3). the state had felt the necessity of re-opening the case on the reason that the land belonging to the wife had not been clubbed and that some other members of the family should have been considered to be the members of the family as per the definition of the family as per the definition of the family n/s. 30-b of the act and their properly should have been dubbed with the property of the petitioner. necessity was also fell on the reason that the transfers as enumerated u/ser. 30-d and 30-dd were not properly considered. it was found that as a matter of fact the petitioner was holding a land of 124.52 standard acres instead of 70.46 standard acres and thus the subordinate officers had wrongly recorded about the total holding of the land of the petitioner.(4). vide annexure-2 order dated 6.2.1984, the addl. collector had held that the non-petitioner was holding a land of 124.52 standard acres on 1.4.1966 and after taking into consideration the members of the family, he was allowed to retain 50 standard acres of land and the remaining land measuring 74.52 standard acres was ordered to be acquired as surplus.(5). the order annexure-2 was challenged by way of an appeal filed before the hoard of revenue. vide annexure-3 dated 21.1.1985, bar had set aside the order of the additional collector (annexure-2). the board of revenue had held that the ceiling proceedings were initiated against the appellant under the new act by the authorised sdo kekri and had decided the matter on 23.12.1974 which is said not to have been challenged by the state and therefore, the board of revenue relying on pari devi's case (1) was of the opinion that the matter could not be reopened u/sec. 15(1) or 15(2) of the new act.(6). the state has come up in the writ petition with the submission that the respondent no.1 had nine members in the family and was entitled to 15 standards acres of land over and above the permissible surplus area and the additional collector vide its order annexure-2 had passed a legal order in accordance with law and the board of revenue had set aside the order annexure-2 without there being any cogent reason to set aside and in violation of the law as laid down by this court.(7). it is further submitted that the land of the wife and the non-petitioner was clubbed together as was held by the hon'ble supreme court in the case of state of maharashtra vs. vyasendra (2). it is further submitted that pari devi's case relied upon by the board of revenue had been distinguished by this court by the division bench of this court. a prayer has been made to set aside the order of the board of revenue annexure-3 and to restore the order dated 6.2.1983.(8). no reply was filed by the contesting respondent.(9), the only question which is to he determined by this court is whether according to the pleadings, once the case has been decided even under the new act, whether the powers can be exercised by the state in reopening the ceiling matter under the provisions of section 15(1) and 15(2) of the act of 1973.(10). in the case of chittar lal vs. state of rajasthan & ors. (3), wherein a controversy as to whether reopening of the case under section 15 of the new ceiling act after the decision in ceiling proceedings under the new ceiling act was authorised had been decided by considering pari devi's case as well.(11). it was held by the division bench in chittar lal's case (supra) that the court will have to lift the veil to view the reality or substance and further it was held that where the ceiling case had been decided under the old ceiling law and subsequently under the case under the new ceiling law has also been decided after considering implications of second proviso to sub-section (1) of section 4 of the new ceiling act, then and only then the government is not authorised to reopen the case under section 15(2) of the new ceiling law. however, it was observed that if a case under the new ceiling law is decided without considering the implications of second proviso to sub-section (1) of section 4 of the new ceiling law, then, the state government will be competent to reopen the case decided under old ceiling law. if a case is reopened under section 15(2) of the new ceiling act, then the person authorised to decide the case afresh has to apply the provisions contained in the old ceiling law. but, when in a case pendign under the new ceiling law, the provisions of old ceiling law would also be applied with the aid of second proviso to sub-sec. (1) of section 4 of the new ceiling law.(12). chittar lal's case (supra) again came for consideration before the division bench of this court in the case of ram gopal vs. state of rajasthan & ors. (4). it was held that section 15(1) and (2) have been made to meet two different situations. under sub-section (1) of section 15, the state government after calling for the record or otherwise is satisfied that any final order passed in any matter arising under the ceiling law is in contravention of the provisions of that act and is prejudicial to the state government or on account of the discovery of new and important matter or evidence which has come to the notice, is required to be reopened. under sub-section (2) of section 15 the state government is authorised to reopen the matter arising under the old ceiling law if it is in contravention of the law and is prejudicial to the state government, it may direct any officer subordinate to it to reopen such decided case and to decide it afresh in accordance with the old ceiling law. it was observed as under:-'a bare reading of the aforesaid extracted provisions will be that sub-section (1) and (2) of section 15 have been made to meet two different situations. sub-section (1) of section 15 will be attracted in case, the state government, after calling for the record or otherwise is satisfied that any final order passed in any matter arising under the new ceiling law is in contravention of the provisions of that act and is prejudicial to the state government or on account of the discovery of new and important matter or evidence which has come to the notice, is required to be re-opened. sub-section (2) of section 15 is applicable if the state government is satisfied that final orders passed in any mailer arising under the old ceiling law is in contravention of that law and is prejudicial to the state government, it may direct any officer subordinate to it to re-open such decided case and to decide it afresh in accordance with the old ceiling law. this power can be exercised after giving a show cause notice to the person concerned. again a limitation has been prescribed for the exercise of powers under sub-section (1) and (2) of section 15 of the new ceiling law. under sub-section (1) a ceiling case decided under the new ceiling law can be re-opened whereas under sub-section (2) of section 15 the ceiling case decided under the old ceiling law can be reopened. the power to reopen the case under either of those provisions can only be exercised once. there can be no dispute that while deciding the ceiling area under section 4(1) of new ceiling law, by virtue of the provisions contained in proviso 2 to sub-section (1) of section 4 of the act, if exceeds the ceiling arc applicable under the old ceiling law, then it shall be same, as applicable under that law. a bare reading of sub-section (2) of section 15 of the act will show that power can be exercised if the state government is satisfied that any final order passed under the old ceiling law is in contravention of the provisions of that law and is prejudicial to the stale government. therefore, as stated earlier both the provisions of sub-sec. (1) and (2) of section 15 of the new ceiling law have been made to meet two different fact situations, and therefore, we are of the opinion that despite the fact that the ceiling area has been determined under the old ceiling law as well as the new ceiling law, the state government can order to reopen also under sub-section (2) of section 15 of the new ceiling law, no doubt subject to other conditions and within the prescribed period of limitation as contained therein'.(13). the division bench after noticing the case of chittar lal (supra) and also of amarjeet kaur vs. state of rajasthan (5), further observed as under:-' with due respect to the court which decided the case, we are of the opinion that the construction of a provision does not depend on different facts situation and while constructing the provisions of fact whether the case of the petitioner under the new ceiling law was or was not considered under the old ceiling law by virtue of the second proviso to sub-section (1) of section 4, will not make any difference. in our opinion it is not permissible in law to interpret a section depending on different fact situations. we have already said earlier that both sub-section (1) and (2) of section 15 of the act have been made to meet two different situations. sub-section (1) will apply to a case decided under new ceiling law whereas the sub-section (2) of section 15 will apply to a case which has been decided under old ceiling law. therefore, even if a case under the old ceiling law as well as new ceiling law has been decided and no appeal or revision is pending, it will be open for the state government to re-open a case decided under old ceiling law by virtue of powers vested under sub-section (2) of section 15 of the act. we may state that the purpose of the ceiling laws is to determine the ceiling area and to take excess land. if within the period prescribed the state government for the reasons contained in that sub-sections comes to the conclusion that the case decided under the old ceiling law is in contravention of the provisions of that act or any new evidence has been discovered then for reasons to be stated, it can re-open the case so decided.in our opinion the determination of the ceiling area and decision of the case both under the old ceiling law as well as under the new ceiling law does not debar the state government from re-opening the case under sub-section (2) of section 15 of the new ceiling law.(14). it is not disputed that once the matter has been decided under the old act, the government has power to reopen the matter u/sec. 15(2) of the new act.(15). in my opinion if the state has reasons to believe that the proper declaration was not made by the petitioner correctly in regard to the holding of his land or in regard to the family members or in regard to clubbing of the land of the family members, the state government was within its competent to pass the order annexure-1 under section 15(1) or u/sec. 15(2) of the act as has been held in ram gopal's case (supra). the additional collector vide annexure-2 had gone into matter by passing a detailed order. even assuming that some order dated 23.12.1974 might have been passed, but in view of the law laid down in ram gopal's case, reliance made by the board of revenue on paridevi's case (supra) cannot be sustained in the eyes of law and is likely to be set aside.(16). in view of the facts mentioned above, the writ petition filed by the state deserves to be allowed. the order annexure-3 passed by the board of revenue is set aside with a direction that the board of revenue shall decide the appeal of the respondent hanuman singh on merits within six months of the receipt of a certified copy of this order. parties shall appear before the board of revenue on 3rd april, 2000.(17). the writ petition is allowed. no costs.

Judgment:
ORDER

Verma J.

(1). The State has come up in this writ petition challenging the orders passed by the Board of Revenue dated 21.11.1985 (Annexure-3) with the prayer that the judgment passed by the Additional Collector, Ajmer dated 6.2.1984 (Annexure-2) be ordered to be maintained.

(2). The SDO Kekri initiated ceiling proceedings under Chapter III of the Rajasthan Tenancy Act (hereinafter called as the old law) against the respondent No.1 Hanuman Singh and the declared certain area to be surplus vide its order dated 27.3.1971. Aggrieved against this order the respondent No.1 had filed an appeal before the Revenue Appellate Authority which was decided in favour of the respondent No.1, but lateron on 29.9.1978 in exercise of the powers conferred u/Sec. 15(2) of the New Act, the State Govt. ordered reopening of the case of the respondent and directed the Additional Collector, Ajmer for taking necessary action and in pursuance of the order passed by the State Government the land matter of the respondent No. 1 was reopened.

(3). The State had felt the necessity of re-opening the case on the reason that the land belonging to the wife had not been clubbed and that some other members of the family should have been considered to be the members of the family as per the definition of the family as per the definition of the family n/S. 30-B of the Act and their properly should have been dubbed with the property of the petitioner. Necessity was also fell on the reason that the transfers as enumerated u/Ser. 30-D and 30-DD were not properly considered. It was found that as a matter of fact the petitioner was holding a land of 124.52 standard acres instead of 70.46 standard acres and thus the subordinate officers had wrongly recorded about the total holding of the land of the petitioner.

(4). Vide Annexure-2 order dated 6.2.1984, the Addl. Collector had held that the non-petitioner was holding a land of 124.52 standard acres on 1.4.1966 and after taking into consideration the members of the family, he was allowed to retain 50 standard acres of land and the remaining land measuring 74.52 standard acres was ordered to be acquired as surplus.

(5). The order Annexure-2 was challenged by way of an appeal filed before the Hoard of Revenue. Vide Annexure-3 dated 21.1.1985, Bar had set aside the order of the Additional Collector (Annexure-2). The Board of Revenue had held that the ceiling proceedings were initiated against the appellant under the new Act by the authorised SDO Kekri and had decided the matter on 23.12.1974 which is said not to have been challenged by the State and therefore, the Board of Revenue relying on Pari Devi's case (1) was of the opinion that the matter could not be reopened u/Sec. 15(1) or 15(2) of the New Act.

(6). The State has come up in the writ petition with the submission that the respondent No.1 had nine members in the family and was entitled to 15 standards acres of land over and above the permissible surplus area and the Additional Collector vide its order Annexure-2 had passed a legal order in accordance with law and the Board of Revenue had set aside the order Annexure-2 without there being any cogent reason to set aside and in violation of the law as laid down by this court.

(7). It is further submitted that the land of the wife and the non-petitioner was clubbed together as was held by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Vyasendra (2). It is further submitted that Pari Devi's case relied upon by the Board of Revenue had been distinguished by this court by the Division Bench of this Court. A prayer has been made to set aside the order of the Board of Revenue Annexure-3 and to restore the order dated 6.2.1983.

(8). No reply was filed by the contesting respondent.

(9), The only question which is to he determined by this court is whether according to the pleadings, once the case has been decided even under the New Act, whether the powers can be exercised by the State in reopening the ceiling matter under the provisions of Section 15(1) and 15(2) of the Act of 1973.

(10). In the case of Chittar Lal vs. State of Rajasthan & Ors. (3), wherein a controversy as to whether reopening of the case under Section 15 of the new Ceiling Act after the decision in ceiling proceedings under the New Ceiling Act was authorised had been decided by considering Pari Devi's case as well.

(11). It was held by the Division Bench in Chittar Lal's case (supra) that the court will have to lift the veil to view the reality or substance and further it was held that where the ceiling case had been decided under the old Ceiling Law and subsequently under the case under the new Ceiling Law has also been decided after considering implications of second proviso to sub-section (1) of Section 4 of the New Ceiling Act, then and only then the Government is not authorised to reopen the case under Section 15(2) of the New Ceiling Law. However, it was observed that if a case under the new Ceiling Law is decided without considering the implications of second proviso to Sub-section (1) of Section 4 of the New Ceiling Law, then, the State Government will be competent to reopen the case decided under Old Ceiling Law. If a case is reopened under Section 15(2) of the New Ceiling act, then the person authorised to decide the case afresh has to apply the provisions contained in the Old Ceiling Law. But, when in a case pendign under the new ceiling law, the provisions of old Ceiling Law would also be applied with the aid of second proviso to sub-sec. (1) of Section 4 of the new Ceiling Law.

(12). Chittar Lal's case (supra) again came for consideration before the Division Bench of this court in the case of Ram Gopal vs. State of Rajasthan & Ors. (4). It was held that Section 15(1) and (2) have been made to meet two different situations. Under sub-section (1) of Section 15, the State Government after calling for the record or otherwise is satisfied that any final order passed in any matter arising under the Ceiling Law is in contravention of the provisions of that Act and is prejudicial to the State Government or on account of the discovery of new and important matter or evidence which has come to the notice, is required to be reopened. Under sub-section (2) of Section 15 the State Government is authorised to reopen the matter arising under the old Ceiling Law if it is in contravention of the law and is prejudicial to the State Government, it may direct any officer subordinate to it to reopen such decided case and to decide it afresh in accordance with the old Ceiling Law. It was observed as under:-

'A bare reading of the aforesaid extracted provisions will be that sub-section (1) and (2) of Section 15 have been made to meet two different situations. Sub-section (1) of Section 15 will be attracted in case, the State Government, after calling for the record or otherwise is satisfied that any final order passed in any matter arising under the new ceiling law is in contravention of the provisions of that Act and is prejudicial to the State Government or on account of the discovery of new and important matter or evidence which has come to the notice, is required to be re-opened. Sub-section (2) of Section 15 is applicable if the State Government is satisfied that final orders passed in any mailer arising under the old ceiling law is in contravention of that law and is prejudicial to the State Government, it may direct any officer subordinate to it to re-open such decided case and to decide it afresh in accordance with the old ceiling law. This power can be exercised after giving a show cause notice to the person concerned. Again a limitation has been prescribed for the exercise of powers under sub-section (1) and (2) of Section 15 of the new Ceiling law. Under sub-section (1) a ceiling case decided under the new Ceiling Law can be re-opened whereas under sub-section (2) of Section 15 the ceiling case decided under the old Ceiling Law can be reopened. The power to reopen the case under either of those provisions can only be exercised once. There can be no dispute that while deciding the ceiling area under Section 4(1) of new ceiling law, by virtue of the provisions contained in proviso 2 to sub-section (1) of Section 4 of the Act, if exceeds the ceiling arc applicable under the old Ceiling law, then it shall be same, as applicable under that law. A bare reading of sub-section (2) of Section 15 of the Act will show that power can be exercised if the State Government is satisfied that any final order passed under the old ceiling law is in contravention of the provisions of that law and is prejudicial to the Stale Government. Therefore, as stated earlier both the provisions of sub-sec. (1) and (2) of Section 15 of the new Ceiling Law have been made to meet two different fact situations, and therefore, we are of the opinion that despite the fact that the ceiling area has been determined under the old ceiling law as well as the new Ceiling Law, the State Government can order to reopen also under sub-section (2) of Section 15 of the New Ceiling Law, no doubt subject to other conditions and within the prescribed period of limitation as contained therein'.

(13). The Division Bench after noticing the case of Chittar Lal (supra) and also of Amarjeet Kaur vs. State of Rajasthan (5), further observed as under:-

' With due respect to the Court which decided the case, we are of the opinion that the construction of a provision does not depend on different facts situation and while constructing the provisions of fact whether the case of the petitioner under the New Ceiling Law was or was not considered under the old ceiling law by virtue of the second proviso to sub-section (1) of Section 4, will not make any difference. In our opinion it is not permissible in law to interpret a section depending on different fact situations. We have already said earlier that both sub-section (1) and (2) of Section 15 of the Act have been made to meet two different situations. Sub-section (1) will apply to a case decided under new ceiling law whereas the sub-section (2) of Section 15 will apply to a case which has been decided under old ceiling law. Therefore, even if a case under the old ceiling law as well as new ceiling law has been decided and no appeal or revision is pending, it will be open for the State Government to re-open a case decided under old ceiling law by virtue of powers vested under sub-section (2) of Section 15 of the Act. We may state that the purpose of the ceiling laws is to determine the ceiling area and to take excess land. If within the period prescribed the State Government for the reasons contained in that sub-sections comes to the conclusion that the case decided under the old ceiling law is in contravention of the provisions of that Act or any new evidence has been discovered then for reasons to be stated, it can re-open the case so decided.

In our opinion the determination of the ceiling area and decision of the case both under the old ceiling law as well as under the new ceiling law does not debar the State Government from re-opening the case under sub-section (2) of Section 15 of the New Ceiling Law.

(14). It is not disputed that once the matter has been decided under the old Act, the Government has power to reopen the matter u/Sec. 15(2) of the New Act.

(15). In my opinion if the State has reasons to believe that the proper declaration was not made by the petitioner correctly in regard to the holding of his land or in regard to the family members or in regard to clubbing of the land of the family members, the State Government was within its competent to pass the order Annexure-1 under Section 15(1) or u/Sec. 15(2) of the Act as has been held in Ram Gopal's case (supra). The Additional Collector vide Annexure-2 had gone into matter by passing a detailed order. Even assuming that some order dated 23.12.1974 might have been passed, but in view of the law laid down in Ram Gopal's case, reliance made by the Board of Revenue on Paridevi's case (supra) cannot be sustained in the eyes of law and is likely to be set aside.

(16). In view of the facts mentioned above, the writ petition filed by the State deserves to be allowed. The order Annexure-3 passed by the Board of Revenue is set aside with a direction that the Board of Revenue shall decide the appeal of the respondent Hanuman Singh on merits within six months of the receipt of a certified copy of this order. Parties shall appear before the Board of Revenue on 3rd April, 2000.

(17). The writ petition is allowed. No costs.