Arjun Singh vs Board of Revenue, Ajmer and Others

Arun Bhansali, J.—This writ petition is directed against the order dated 29.11.2000 passed by the Board of Revenue (''the Board''), whereby the appeal filed by the petitioner against the order dated 05.04.1995 passed by the Additional Collector (Administration), Sriganganagar (''the Collector'') has been rejected.

The facts in brief may be noticed thus: the case of the petitioner was decided under Chapter - III B of the Rajasthan Tenancy Act, 1955 (old ceiling law) by order dated 18.05.1973 by the SDO, Raisinghnagar and it was held that he was in possession of 65 Bigha land in excess of ceiling limit. Whereafter, the order dated 18.05.1973 was reviewed by order dated 17.09.1973 and it was held that though the petitioner was in possession of 4 Bigha 16 Biswa excess land, but the same being fragment, he was entitled to retain the same.

Whereafter under provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (''the Act of 1973''), the proceedings were initiated and by order dated 18.08.1987 passed by the Additional Collector, the petitioner was held to be holding 166 Bighas excess land. Feeling aggrieved, the petitioner filed an appeal before the Board, the Board by its order dated 08.07.1994 allowed the appeal and set aside the order passed by the Additional Collector.

Whereafter, in the reopened proceedings under Section 15(2) of the Act of 1973 qua order dated 17.09.1973. By order dated 05.04.1995 the Collector came to the conclusion that the petitioner was in possession of 46 Bigha 6 Biswa of land in excess of ceiling area. The petitioner against approached the Board and the Board by its order dated 29.11.2000 (Annex.-7) dismissed the appeal filed by the petitioner.

It is submitted by learned counsel for the petitioner that once the proceedings initiated under the Act of 1973 had already culminated by order dated 08.07.1994 passed by the Board in petitioner''s favour, it was not open for the respondents to invoke the provisions of Section 15(2) of the Act of 1973 and, therefore, the Board fell in error in upholding the same.

Reliance was place on a judgment of this Court in the case of Smt. Pari Devi v. State of Rajasthan : 1984 RLW 320 and full Bench judgment of this Court in Sahas Karan v. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 2598/1989 decided on 18.04.2011.

Vehemently opposing the submissions made by learned counsel for the petitioner, learned counsel for the respondents submitted that issue as sought to be raised by the petitioner was not raised before any of the authorities below and, therefore, now it is not open for the petitioner to raise the issue. It was submitted that the order passed by the Collector and the Board are justified in the facts and circumstances of the case and the same does not call for any interference by this Court.

I have considered the rival submissions made by learned counsel for the parties.

From a bare look at the material available on record, it is apparent that the ceiling proceedings against the petitioner were initiated under the old ceiling law and the same came to an end by order dated 17.09.1973 (Annex.-2) passed by the SDO. Whereafter, under the Act of 1973 the proceedings were initiated and the said proceedings culminated by order dated 08.07.1994 passed by the Board again in favour of the petitioner. Whereafter, in the pending proceedings, wherein by order dated 02.01.1980, the matter was reopened under Section 15(2) of the Act of 1973, was decided on 05.04.1995 by the Collector and it was held that the petitioner was in possession of excess land and finally the appeal filed by the petitioner against the order passed by the Collector was rejected by the Board by its judgment dated 29.11.2000.

This Court in the case of Smt. Pari Devi (supra) has observed and held as under:-

"It appears that two proceedings were taken against the petitioner : one under the old Ceiling Law and the other under the New Ceiling Law. Under the New Ceiling Law, the proceeding was dropped, or, in other words, it must be held that there was no excess land with the petitioner under the new Ceiling Law. In case No. 279 of 1973 under the new Ceiling Law, it was found that transfers were bona fide and the area, after the transfer, was not surplus. This order has become final as the State Government did not challenge the order by preferring an appeal as is incumbent under the law. Thereafter, the State Government, peculiarly enough, proceeded under Section 15(2) of the new Ceiling Law by which old ceiling cases can be reopened. After the proceedings had been initiated, and culminated in favour of the petitioner under Section 15(4) of the new Ceiling Law, it is not open to the respondent to proceed again the old Ceiling Law, or, in other words, both the old Ceiling Law and the new Ceiling Law cannot occupy the same field or in the same subject matter. Admittedly, in this case, new Ceiling Law case was in favour of the petitioner and, therefore, in my opinion, the proceeding under Section 15(2) was, on the fact of it, without jurisdiction.

I, therefore, set aside all the orders, including the orders of the Board of Revenue made under Section 15(2) of the new Ceiling Act for reopening an order passed under the old Ceiling Law. The rule is, therefore, made absolute to the extent indicated above. There will be no order as to costs."

The issue as to whether the judgment in the case of Smt. Pari Devi (supra) holds the field or other two conflicting judgments of Division Bench hold the field was referred to Larger Bench and the Larger Bench in the case of Sahas Karan (supra) observed as under:-

"In the case of Pari Devi (supra) leave to appeal was granted and appellate jurisdiction of Supreme Court was invoked, thus, the order passed in appeal would certainly attract the doctrine of merger and that affirms the law laid down by this Court in the case of Pari Devi. That being the position of law, the law laid down in the case of Ram Gopal is not a correct one, that stands impliedly overruled and the law laid down in Pari Devi''s case (supra) holds the filed in the subject matter." 12. In view of the law laid down by this Court as affirmed by the Hon''ble Supreme Court, it is apparent that the proceedings under Section 15(2) of the Act of 1973 as initiated by the State Government, could not have been determined by the Collector after the order under the Act of 1973 had been passed and those proceedings became final by passing of the order by the Board on 08.07.1994.

So far as the argument of learned counsel for the respondents that the issue was not raised before the authorities below is concerned, the issue raised herein being purely legal, and based on the law laid down by this Court, the same can be permitted to be raised at this stage as well and as the issue raised affects the very jurisdiction of the authorities to initiate the proceedings, it cannot be said that in absence of raising the issue before the authorities below, the same could not have been raised in the present proceedings.

In view of the above discussions, the writ petition filed by the petitioner is allowed. The judgment dated 29.11.2000 (Annex.-7) passed by the Board as well as the judgment dated 05.04.1995 (Annex.-4) passed by the Collector are set aside.

No order as to costs.