Rajasthan High Court - Jaipur
Rajeshwar Singh vs The Sub-Divisional Officer And Ors. on 1 November, 1980
Equivalent citations: 1980WLN592
JUDGMENT M.L. Shrimal, J.
1. This is a writ petition filed under Arts. 226 and 227 of the Constitution of India by Rajashwar Singh, Ex-Jagirdar of Samod, challenging the validity of the order, dated August 23, 1978 (Annexure-6), passed by the State Government under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as 'the 1973 Act'). The petitioner has also challenged the order, dated December 27, 1978 (Annexure-8), passed by the Additional Collector (I), Jaipur as well as the order, dated May 21, 1980 (Annexure-9), passed by the Board of Revenue for Rajasthan, Ajmer.
2. Agriculture is the key sector of our country. A large majority of our people live in rural areas and most of them make living through agriculture. It is generally true that a few individuals who own a large share of land dominate, local politics and through their roles as leaders, landlords and employers, they influence the day to day behaviour of their neighbours. The landless, the insecured tenants and those owing marginal plots too small to support a family constitute poorest of the poor. It is they who in many cases are born into debt and die in debt, who see upto half of their infants die before age five, who live chronically in a tight rope of survival from which they can quickly fall any day if the weather turns against them. As such before dealing with the facts of the case in hand, it would be beneficial to narrate the salient features of land legislation in Rajasthan.
3. "Land to the tiller" has been our cherished ideal since the days of struggle for freedom. Sometime by bullets, sometime by lathis and sometime by wordy warfare a debate regarding land reforms and allotment of land to landless tenants had been going on since August 15, 1947. A special committee appointed in 1947 headed by Pandit Jawahar Lal Nehru to work out directives for the congress economic policy stated among other matters relating to agriculture that, '"the maximum size of holding should be fixed. The surplus land over such maximum should be acquired and placed at the disposal of village co-operatives." This was perhaps the first policy statement regarding land reform by the ruling party. As early as on May 16, 1951, Pandit Jawahar Lal Nehru, the then Prime Minister of this country in a debate on First Amendment Bill to the Constitution observed:
.... a survey of Asia today will lead any intelligent person to swear that the basic and the primary problem is the land problem today in Asia, as in India. And every day of delay adds to the difficulties and dangers apart from being injustice in itself.
4. Having abolished intermediaries like Jagirdari, Zamindari, Biswadari the States of Rajasthan embarked upon another facet of the programme of agrarian reform. By the Rajasthan Tenancy (Amendment) Act, 1960 (Act No. 4 of 1960), Chapter III-B was inserted in the Rajasthan Tenancy Act, 1955 fixing a ceiling on agricultural holdings. The Act came into force on December 15, 1963. The object and purpose of the Act was to distribute surplus land to the landless and to remove disparity in the holding of agricultural land and to increase agricultural production. The motive behind this Act was to advance socialism and ensure equitable distribution of agricultural land as laid down in Article 39 of the Constitution of India for securing that the ownership and the control of the material resources of the community are so distributed as best to subserve the common good. The anxiety of the land-holders not to surrender surplus land led to the filing of a number of writ petitions and the constitutional validity of the amending Act was challenged, but ultimately the writ: petitions were dismissed by this Court vide Prithviraj v. State of Rajasthan 1965 R.L.W 506 and', thereafter the notified date was fixed as April 1, 1966, vide Notification No. F. 6(9) Rev./B/64, dated February 11, 1966. The Act fixed 30 standard acres of land as the ceiling area. Directions were issued by the said Notification that declarations in accordance with Rule 9 of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963 should be filed 'within six months from the notified date. The landowners' lobby, however, made active efforts as a result of which certain amendments were brought in Chapter III-B of the Rajasthan Tenancy Act. The effect of the amendment was that it maintained the ceiling area to the extent of 30 standard acres but recognised certain transfers effected after 1958 which could not be recognised under the unamended law. The law was again amended in 1970. The Parliament in order to avoid litigation bet-Ninth Schedule of the Constitution, placed the Rajasthan Tenancy Act, 1955 in the Ninth Schedule of the Constitution. As usual the landowners again unsuccessfully challenged its validity before the Supreme Court.
5. Thereafter, the law as contained in Chapter III-B and Section 5(6-A) of the Rajasthan Tenancy Act, 1955 was repealed by the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. There was some confusion regarding the procedure to be followed relating to the pending cases and in order to delay the acquisition of the surplus land again a number of writ petitions were filed before this Court which were ultimately dismissed by an unanimous decision of a Full Bench of this Court in Bansldhar and Ors. v. State of Rajasthan 1976 WLN 564.
6. Again the validity of Rule 19 of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963 was unsuccessfully challenged in D.B. Civil Writ Petition No. 424 of 1977, Ram Niwas v. The State of Rajasthan, decided on November 17, 1977.
7. Thereafter Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was substituted by Section 4 of the Rajasthan Amending Act No. 8 of 1976, published in Rajasthan Gazette, Extraordinary, Part IV-A, dated February 5, 1976. The validity of the amended provision was challenged in Sajjansingh v. State of Rajasthan 1979 WLN(UC) 32. Learned Single Judge after giving a careful thought to the arguments advanced before him, upheld the validity of the provisions of the Amending Act No. 8 of 1976.
8. The facts giving rise to the writ petition are that proceedings under Chapter III-B of the Rajasthan Tenancy Act, 1956 (hereinafter referred to as 'the Act'), were initiated against the petitioner as he failed to make a declaration and surrender excess land as required by the provisions of Section 30-E (2) of the Act. The Sub-Divisional Officer (hereinafter referred to as 'the S.D.O.'), after obtaining report from the concerned Tehsildar, held that the petitioner possessed 837 Bighas and 19 Biswas of land. Out of the transfers made by the petitioner on various dates in favour of different persons, the S.D.O. recognised the following transfers:
Name of Village To whom sold Area Mode of sale and Tehsil 1. Hasanpura N.B.C. 47.8 Regd. 26.3.67 Teh. Jaipur 2. Sodala, Girraj, Kishan, 3.12 Regd. 13.11.69 Teh. Jaipur Hariballabh 3. Samod Rameshwar 3.4 Sale 1.4-69, Teh. Amber Dhabi 4. Fatehpur 2.0 Teh. Amber 5. Govindpura 5.10 Teh. Jamwa Ramgarh
9. After recognising the above noted transfers, the'S.D.O., held that petitioner had 129.3 standard acres of land and after allowing 30 standard acres of land in favour of the petitioner, 99.3 standard acres of land was held to be resumable. Not being satisfied with the above order, dated October 30, 1971, the petitioner as well as the State Government raised dispute before the learned Appellate Authority by way of appeal and cross-objection. The cross-objections filed by the State Government were partly allowed and the transfer made in favour of Rameshwar Dhabi was not recognised. With this modification in the order of the S.D.O., learned Appellate Authority disposed of the appeal and cross-objections. The petitioner again went up in revision before the Board of Revenue, but met with no success and the same was dismissed: vide order, dated August 6, 1976 (Ann-4). While dismissing the revision petition, learned Member of the Board of Revenue allowed the petitioner to exercise option before the S.D.O., within two weeks in respect of the lands he might choose to retain upto the ceiling area, subject to the second proviso to Section 30-E(2) of the Act.
10. In pursuence of the above order of the Board of Revenue, the petitioner exercised his option. The S.D.O., vide his order, dated October 18, 1976 (Ann-5), travelled beyond the directions given by the Board of Revenue and held that 11 Bighas and 16 Biswas of land was not resumable, as it was abadi area. Beside this land, the petitioner was also entitled to 30 standard areas of land.
11. The State Government re-opened the ceiling case of the petitioner under Section 15(2) of the 1973 Act. Undoubtedly a notice was given to the petitioner and in response thereto the petitioner submitted his objection, but did not choose to appear before the concerned authority. The State Government by a detailed order (Annexure-6), running into 5 typed pages, decided the objections. A perusal of the order (Annexure-6) shows that the following objections were raised by the petitioner before the Government:
i) that the proceedings instituted under Section 15(2) of the 1973 Ac were barred by limitation;
(i) that transfers made by the petitioner were valid and the revenue authority had committed an error in not recognising the transfers;
iii) that the order passed by the S.D.O., dated October 18, 1976, was correct, and if the State Government wanted to challenge the order of the S.D.O., Amber, it ought to have filed an appeal against, that order, and it was not open to the State Government to institute proceedings under Section 15(2) of the 1973 Act.
12. All these objections have been considered and answered by the concerned officer. As regards the transfer made in favour of the N.B.C., it was observed that the transfer made in the year 1967 in favour of the National Ball Bearing Company, an industrial unit; could not have been recognised as it did not fall under the exception provided by Section 30-D or Section 30-DD of the Rajathan Tenancy Act. As regards the transfer made in favour of Rameshwar Dhabi, it was observed that in view of the provisions contained in Section 30-DD of the Act, it could not be recognised, because the sale-deed was registered on December 31, 1969. It was further observed that the S.D.O: had no jurisdiction to hold that 11 Bighas and 15 Biswas of land was exempted from resumption as the case was remanded to him by the Board of Revenue for giving a chance to the petitioner to exercise his option under proviso to Sub-section (2) of Section 30E and not to go into the merits of the case. In pursuance of the above noted order, the file was sent to the Additional Collector "(1), Jaipur, who issued a notice to the petitioner to submit his objection, if he so desired, but the petitioner did not choose to appear before the Additional Collector and, ultimately the Additional Collector, after taking into consideration the various authorities of the Board of Revenue, enumerated in details in the Order, held that 11 Bighas and 16 Biswas of land was, in fact, an agricultural land, covered by the definition given in Section 5(24) of the Tenancy Act. The Additional Collector also held that it was not within the jurisdiction of the S.D.O., to make a correction in an order which was upheld by the Board of Revenue. As regards the transfers made in favour of the above noted three persons, N.B.C., Girraj, and Rameshwar Dhabi, learned Collector held that as they did not fall within the exceptions, provided under the provisions contained in Section 30-DD of the Act, they could not be recognised.
13. Being dis-satisfied with the above order, the petitioner went up in appeal before the Board of Revenue, which after hearing the parties at length, partially allowed the appeal, filed by the petitioner. The order of the Additional Collector, so far as it related to transfers made in favour of Girraj and Harballabh, was set aside and the Additional Collector was directed to reconsider the matter after giving notice to the partiees and pass a fresh order in the light of the observations made by the Board. It has also been made clear in the impugned order that while allowing an option to the Khatedar, the concerned authority will bear in mind the second proviso to Section 30-E (2) of the Act.
14. The petitioner still feels unsatisfied and has come before this Court.
15. The petitioner has raised following contentions:
(i) That under the provisions of Section 15(2) of the 1973 Act, as amended by the amending Act, No. 6 of 1976, case could not have been opened, as there appears to be no error, or mistake apparent on the face of the record in the order of the Board of Revenue and no new material was discovered by the State Government. The order of the Board of Revenue (Annexure-8) is the final order and it could not have been opened unless a new important matter, material or evidence which escaped the notich of the Board, has come or developed. The Board of Revenue, vide'Ann-8, had passed a final order and there was nothing prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which had since come to its notice and had escaped its notice, at the time of the decision of Anrihxure-3.
(ii) While exercising the powers under the 1973 Act, authorised officers Cannot acquire any property which does not fall within the definition of the 'land' under Section 5(24) and Section 30-C of the Act.
(iii) That order of the S.D.O., passed on October 18, 1976 could not have been reopened under Section 15(2) of the 1973 Act as the State Government had not filed an appeal against that order.
(iv) That no notice has been given to the transferees though it was incumbent under the provisions of Section 15 of the 1973 Act.
16. Before dealing with the aforesaid contentions, it would be profitable to reproduce Section 15(2) of the 1973 Act as amended by the Amending Act No. 6 of 1976:
(2) Without prejudice to any other remedy that may be available to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under the provisions repealed by Section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidance which has since come to its notice, such order is required to be re-opened, it may, at any time within five years of the commencement of this Act, direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions;
Provided that no final order passed by the Board in the matter referred to in Sub-section (1) or Sub-section (2) shall be directed to be re-opened and decided afresh under the said Sub-sections unless the State Government satisfied that such order is required to be re-opened on account of the discovery of new and important matter or evidence which has since come to its notice or due to some mistake or error apparent on the face of the record." (emphasis added).
17. As regards the first contention it would suffice to say that under proviso to Sub-section (2) of Section 15 it cannot be held that the State Government can reopen the case only on the ground that new and important matter or evidence has come to its notice, but it can also re-open on the ground that some mistake or error apparent on the face of the record has appeared in the order of the Board of Revenue. The word, 'or' appearing in the ninth line of the above noted proviso cannot be read as 'and', otherwise it will destroy the very purpose of the enactment.
18. National Ball Bearing Company is admittedly an industrial unit manufacturing Ball Bearings. It has nothing to do with agricultural produce. It cannot be termed to be an agriculturist within the meaning of the Act. Section 30-DD of the Act provides that the transfer of land exceeding 30 standard acres of land made, by a person prior to the 1st December, 1969 in favour of an agriculturist domiciled in Rajasthan or in favour of his son or brother intending to take to the profession of agriculture and capable of cultivating land personally and who had attained the age of maturity on or before the said date, shall be recognised. The Expalnation 1 to Section 30-DD of the Act reads: "The expression, 'Agriculturist' means a person who earns his livelihood wholly or mainly from agriculture and cultivates land by his own labour or by the labour of any member of his family or along with such labour as afroesaid with the help of hired labour or servant on wages payable in cash or in kind and shall include an agricultural labourer and a villlage artison." By no stretch of imagination, National Ball Bearing Company, an industrial unit, can be termed to be an 'agriculturist'. It appears that the Revenue authorities, including the S.D.O., before whom the petitioner's case was argued, for the reasons best known to themselves, did not even care to read Section 30-DD of the Act, otherwise they could not have made such a mistake which is apparent on the face of the record. The order of the Revenue authority is laconic. Recognition of such transfers is against the very intent and purpose of the legislation.
19. The second contention raised by the petitioner with regard to 11 bighas and 16 biswas of land, is also without any merit. If the petitioner thought that out of 837 Bighas and 19 Biswas of land, 11 Bighas and 16 Biswas of land was not resumeable being abadi land, he ought to have raised this dispute before the S.D.O., in the year 1971 when ceiling proceedings were instituted against him under Rule 10 of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963 (hereinafter referred to as 'the Rules'). Admittedly this dispute was not raised before the S.D.O., it was neither raised before the Appellate Court nor before the revisional court. Judgment of the Board of Revenue (Annexure-4), could not have been revised by the learned S.D.O. He was required to carry out the directions given on August 6, 1970 by the Board of Revenue. It was neither open to the petitioner nor to the S.D.O., to sit upon the judgment of the Board of Revenue and subtract any piece of land either in favour of the petitioner or against the petitioner. The, subordinate officer was required to exercise the powers of an executing court. It was not open to him to question the validity of the order of the Board of Revenue. Gajendragadkar J., as he then was, in Harkishandas Lallubhai and Ors. v. Gulabdas Kalyandas and Anr. observed as vunder:
If the plea is that the decree is contrary to the law in the sense that in passing the said decree certain provisions of law have been ignored or contravened, that would not necessarily make the decree a nullity and allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings.
This case was read with approval by a Full Bench of the Madhya Pradesh High Court in Mool Chand v. Maganlal . No provision of law has been pointed out on the basis of which it can be said that the S.D.O., while passing the order Annexure-5, could have over looked the order of the Board of Revenue and could have said that out of the land ordered to be acquired, 11 Bighas and 16 Biswas of land was not acquireable because the jurisdiction of an officer executing an order passed by the superior authority is required to be determined with reference to and is circumscribed by the direction contained in the order.
20. Besides that the Additional Collector and the Board of Revenue, vide their orders (Annexures-8 & 9), have held that the disputed land is an agricultural land and it falls within the definition given in Section 5(24) of the Act. It is purely a finding of fact and it is not within the competence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India to re-determine the question of facts.
21. As regards third contention the effect of not filing the appeal by the State Government against the order Annexure-5 dated October 18, 1976, it would suffice to say that a bare perusal of the provisions of Section 15(2) of the 1973 Act clearly reveals that this section has been enacted with a specific purpose to give an authority to the State Government to re-open all those cases, in which the State Government is satisfied that the ceiling case in relation to a person as fixed under the Tenancy Act has been determined in contravention of the provisions of such repealed law and such order is prejudicial to the State Government. The State Government can direct an officer subordinate to it to re-open the case. The words, 'without prejudice to any other remedy', appearing in Section 15(2), gives overriding powers to the State Government to re-open any case which falls within the four corners of the restrictions mentioned therein, even if an order could have been appealed at the relevant time.
22. The fourth contention is that no notice was served on the N.B.C. This contention was not raised by the petitioner in the written objection to notice issued under Section 15(2) of the 1973 Act. Not only this, even in the proceedings instituted before the Additional Collector, Jaipur, petitioner did not choose to to appear before the Additional Collector. Therefore, we find no reason to permit the petitioner to raise this contention regarding non-giving of notice to N.B.C. in the writ petition.
23. Viewed from another angle, giving of notice to the transferee of the Khatedar tenant ofter April 1, 1966 is not the requirement of law, because for the purpose of determination of surplus land of the Khatedars, such transfers are required to be ignored, unless and until they are covered by exception provided in Section 30-D or Section 30-DD of the Rajasthan Tenancy Alt. Chapter 1II-B of the Rajasthan Tenancy Act, 1955 and the Rajasthan Tenancy (Fixation of Ceiling on land) Government Rules, 1963 made thereunder do not provide for the issuance of a notice to the transferees. Under Section 30-F (2) of the Rajasthan Tenancy Act, 1955, a duty has been cast on the person holding land in excess of the ceiling area to make a report of such possession and surrender such excess land to the State Government and place it at the disposal of the Tehsildar within the local limits of whose jurisdiction such land is situated. Under Sub-section (4) of Section 30 E of the Rajasthan Tenancy Act, 1955 the person i.e. the Khatedar retaining possession of any land in excess of the ceiling area applicable to him, after April 1, 1966, is deemed to be a trespasser liable to ejectment from such excess land and to pay penalty in; accordance with Clause (a) of Sub-section (1) of Section 183 of the Rajasthan Tenancy Act, 1955. The National Ball Bearing Company had purchased the land after April 1, 1966 and as such they1 were bound by the result of the ceiling proceedings between Rajeshwar Singh and the State Government. The law provides that where a transfer is not re-, cognised, the land covered by such transfer has to be treated as land of the Khatedar, whose land is being acquired. Thus, it is manifest that the Legislature by necessary implications exclude the right of transferees purchasers to be heard. The transferees are entitled to be reimbursed and the transferor is bound to restore to them the advantages, obtained by him. They can also claim reimbursement under Rule 22 of the Rules of 1963, out of the compensation money payable to the transferor by the State Government in respect of such land under Section 30-G of the Act. Thus under the scheme of Chapter III-B of the Rajasthan Tenancy Act, 1955, the Legislature, by necessary implications excludes the application of the principles of natural justice regarding audi alteram partem in favour of the transferee. In sum, they have no right to be heard. The State acquires land under the ceiling provisions not for making profit, but for distribution of land amongst landless agriculturists and other deserving persons with a view to remove the disparity in the holding of agricultural land and to increase agriculture products that is why the legislature in order to acquire expeditiously the surplus land, did not make any provision under Chapter III-B of the Rajasthan Tenancy Act or the Rules made thereunder regarding giving an opportunity or a notice to the transferees of the land whose transfers have not been recognised under the law of the land for ceiling purposes. The principles of natural justice cannot be stretched to defeat the very purpose and the object of the Act itself. Reference may be made to Union of India v. J.N. Sinha and Anr. .
24. In Menka Gandhi v. Union of India , Hon'ble Bhagwati J., at page 291 of the report has observed as under:
The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends, of justice, or to make the "law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation." Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands.
Reference may also be made with advantage to a Division Bench decision of this Court in Nandlal v. State of Rajasthan 1978 W.L.N. 272.
25. Moreover, the petitioner cannot be said to be an aggrieved person regarding not giving of notice to National Ballbearing Company. As already held above, it cannot be termed to be an 'agriculturist'. Admittedly, it is an industrial unit manufacturing ball bearings. It has been incorporated under the Indian Companies Act. It can sue in its own name and can very well safeguard its own interest and in no way needs the help of the petitioner.
26. The writ jurisdiction, as has been held in several sases, is an equitable jurisdiction. The exercise of discretion is mainly governed by the consideration of substantial failure of justice. (A.M. Allesen and Anr. v. B.L. Sen and Anr. A.I.R. 1957 Supreme Court 227).
27. We have given full consideration to the arguments advanced by the learned Counsel and examined the case from all points of view and we are satisfied that substantial justice has been done to the petitioner. The first order regarding question of surplus land was passed in the year 1971 and in between this period; the land must have been allotted to the landless persons who must have spent their labour and time in improving the land. All these factors cannot be brushed aside. We find no illegality, irregularity and nullity in the impugned orders passed by the Revenue authorities and, therefore, this writ petition deserves to be dismissed.
28. With the above observations, the writ petition being without merit, is dismissed summarily.