K.S. Lodha, J.
1. The facts giving rise to this writ application briefly stated are that the petitioner Rakha Singh holds agricultural land in Chak 4X in tehsil Karanpur district Sriganganagar. He filed his return under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter called 'the Act') before the Authorised Officer on 21-3-74 declaring that there were three members in his family, namely he himself, his wife and an adopted son Vijay Singh aged 25 years. In support of his claim, he produced some evidence, oral as well as documentary. So far as the documentary evidence was concerned, it was a decision in a suit filed by Anoop Singh, the real brother of Vijay Singh against Vijay Singh on the ground that Vijay Singh had gone in adoption to Rakha Singh and could not claim any share in his original family. That suit was decreed. The Authorised Officer did not accept this evidence and held that there were only two members in the family of Rakha Singh i.e. Rakha Singh himself and his wife and he, accordingly, determined the ceiling limit and refused a separate unit claimed for the alleged adult adopted son Under Section 4(2) of the Act. Aggrieved of this, Rakha Singh filed an appeal before the learned Collector, Ganganagar but failed. One of the objections raised in the appeal was that the Authorised Officer did not publish a draft statement as required Under Section 12 of the Act and, therefore, the petitioner did not have proper opportunity to lead evidence and establish the adoption of Vijay Singh. This contention was turned down by the learned Collector on the ground that in view of the proviso to Section 12 when the returnfiled by the petitioner had been accepted by the Authorised Officer, there was no necessity of the draft statement being published. The petitioner then went up in second appeal before the Board of Revenue and the question of adoption of Vijay Singh was again agitated. However, the Board also did not agree with the petitioner and was of the view that the evidence produced was insufficient and irrelevant to prove the adoption. The petitioner has, therefore, come up to this Court by way of this writ application. The non-petitioners have filed a return supporting the orders of the authorities concerned.
2. I have heard the learned counsel for the petitioner as well as the learned Deputy Government Advocate and have gone through the record.
3. There is no dispute that if the holder of land has an adult son, he is entitled to select land for a separate unit up to the ceiling area of the primary unit for each separate unit Under Section 4(2) of the Act. The contention of the learned counsel for the petitioner is that the petitioner has an adopted son but the courts below had without proper enquiry in accordance with the provisions of the Act refused to accept the adoption of Vijai Singh as an adopted son. In this respect, he contended that in the return filed by the petitioner, he had shown Vijay Singh as his adult adopted son and had claimed a separate unit for him. The Authorised Officer did make an enquiry as required by Section 12 but he failed to issue a draft statement as required by that section and this failure has resulted in the petitioner's not producing further evidence to establish the adoption, which was not being accepted by the Authorised Officer. His further contention is that the observations of the learned Collector that the publication of such a draft statement in the circumstances of this case was not necessary in view of the proviso to Section 12 are wrong on the face of it because in the first place, this proviso was not hi force when the matter was decided by the Authorised Officer on 22-1-76 as this proviso had been introduced on 5-2-76 and in the second place, even if for the sake of argument, it is accepted that the proviso was applicable, although it is not admitted, then also since the Authorised Officer had not accepted the return as correct and complate inasmuch as he was not prepared to accept the number of members of the familyand to grant a separate unit, he was bound to publish a draft statement as required by Section 12.
4. The learned counsel further contended that the Board of Revenue also was apparently in error in holding that the mere consent decree in the suit filed by Anoop Singh against Vijay Singh was no proof of the adoption as it appeared to be a collusive decree. His contention was that the decree could not be said to be collusive merely because it may have been a consent decree. There is absolutely nothing on the record to establish that it was a collusive decree. In these circumstances, the learned counsel prayed that the orders of the authorities under the Act may be set aside and the Authorised Officer may be directed to publish the draft statement as required by Section 12 of the Act so that the petitioner may file his objections and produce evidence to establish his case. The learned Deputy Government Advocate, on the other hand, tried to support the orders of the authorities.
5. I have given my careful consideration to the rival contentions. A bare perusal of Section 12 of the Act would go to show that the Authorised Officer before making a final order in respect of determination of the ceiling area has to proceed Under Section 12 of the Act and on the basis of the return furnished Under Section 12 or the additional particulars furnished Under Section 11(1) or on the basis of the information obtained by him under Sub-section (2) of section 11, and after making such enquiry as he deems fit, prepare a draft statement containing such particulars as may be prescribed in respect of each person holding land in excess of the ceiling area. The word used in Section 12 for the preparation and publication of the draft statement is 'shall'. The section also envisages that before preparing and publishing such draft statement, an Authorised Officer has to make some enquiry.
6. Under Sub-section (2) of Section 12, the draft statement has to be served on the persons concerned and on all other persons who, in the opinion of the Authorised Officer, are interested in the land to which such draft statement relates, together with a notice stating that any objection to the draft statement shall be preferred within fifteen days from the date of service of such notice. Then Sub-section (3) provides that the Authorised Officer shall consider any objection so received and he shall give reasonable opportunity of hearingto such persons and decide the objections by an order in writing. Therefore, it clearly appears that the Authorised Officer has to comply with these formalities before he publishes a final statement Under Section 13.
7. Now so far as the proviso is concerned, it has been added to Sub-section (1) to Section 12 by Amending Act No. 8 of 1976 published on 5-2-76 and, therefore, it could not be applicable to the present proceedings as the Authorised Officer had already decided that on 21-2-76 before this proviso was introduced. There is nothing in the Amending Act to show that this proviso had retrospective operation. However, for the sake of argument even if this proviso is considered to have retrospective operation, then also, in my opinion, in the circumstances, of this case, the publication of the draft statement could not have been dispensed with because according to this proviso, the Authorised Officer may instead of preparing the draft statement, proceed Under Section 13 to declare the ceiling area applicable to the persons concerned if he is satisfied that the return is correct and complete. Now as already stated above, the learned Authorised Officer did not accept the return as correct and complete. He did not accept the number of members of the family nor was he prepared to grant separate unit for the alleged adult adopted son. Rule 7 of the Rules framed under the Act provides that the draft statement required to be prepared by the Authorised Officer Under Section 12 of the Act shall be prepared and contain the particulars specified in Form 4 and in the said form, item 12 relates to the ceiling area applicable to the person and item 15 relates to the area and particulars of land to be declared surplus. Item 14 relates to the areas and particulars of the land selected for separate unit. Therefore, there is no doubt that a draft statement had to be punished in this case in accordance with the (sic) was not, as already stated above prepared to accept the return as filed by the petitioner to be correct and complete. The finding of the learned Collector that the publication of the draft statement was not necessary on account of the proviso to Sub-section (1) to Section 12 in these circumstances, is clearly untenable. Before the Board of Revenue, of course, the matter does not appear to have been placed in the manner in which it is now sought to be placed before this Court inasmuch as the non-publication of the draft statement does not appear to have beenattacked but all the same, the contention that the adoption was wrongly refused to be recognised and the separate unit was wrongly refused was placed before the Board and in order to appreciate that contention, the Board should and could have examined the provisions of Section 12 of the Act but the Board appears to have failed to examine the same.
8. It would also not be out of place here to mention that the Board proceeded on a wholly wrong assumption that the decree obtained by Anoop Singh against Vijay Singh was not relevant because it appeared to be a consent decree. A consent decree by itself cannot be said to be a collusive decree and, therefore, it cannot be said to be inadmissible or irrelevant piece of evidence. It has to be considered on its own merits as a relevant piece of evidence. The order of the Board, therefore, based on this wrong assumption also cannot be maintained. It would thus appear that the authorities under the Act have acted in disregard of the provisions of Section 12 of the Act and, therefore, their orders deserve to be set aside and the matter must go back to the Authorised Officer for a proper enquiry in-accordance with law.
9. I, therefore, accept this writ application and set aside the orders of the Authorised Officer dated 22-1-76, and of the learned Collector, Ganganagar, dated 9-3-76 and the Board of Revenue dated 6-4-76. The Authorised Officer shall now publish a draft statement Under Section. 12 of the Act and then proceedin the case in accordance with law keeping in view the observations made above. Lookingto all the facts and circumstances of the case, I shall leave the parties to bear their own costs. The parties are directed to appear beforethe Authorised Officer on 23-4-84.