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Sajjansingh Vs. the State of Raj. and Two ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B Civil Writ Petition No. 570 of 1978
Judge
Reported in1979WLN(UC)32
AppellantSajjansingh
RespondentThe State of Raj. and Two ors.
DispositionPetition dismissed
Cases ReferredConstitution. In Romjilal v. The Income Tax Officer
Excerpt:
constitution of india - article 31(3) and rajasthan imposition of ceiling on agricultural holdings (amendment) act, 1978 section 15(2)--cases decided in contravention of provisions be reopened--held, it is not a law providing for acquisition of property--amendments have not substantially altered essential features of parent act to receive assent of president.;section 15(2) only laid down that the provisions of chapter iii-b of the tenancy act would be applicable for the purpose of disposal of cases which bad been decided on the basis of the aforesaid provisions and where the determination had been fund to have been made in contravention of the said provisions and had been directed to be reopened by the state govt. it cannot be said that the provisions of section 15(2) of the ceiling act.....s.c. agrawal, j.1. in this writ petition filed under article 226 of the constitution of india, the petitioner, sajjansingh, who is an ex-jagirdar of jagir bagri. has challenged the order dated 5th july, 1978, passed by the government of rajasthan, whereby, in exercise of the powers conferred on it tinder section 15(2) of the rajasthan imposition of ceiling on agricultural holdings act, 1973 (hereinafter referred to as the 'ceiling act'), the state government directed the additional collector, pali, to reopen the case relating to determination of the surplus land in excess of the ceiling area held by the petitioner and to redetermine the said matter2. the facts, briefly stated, are that after the resumption of the jagir of the petition in the year 1954, the petitioner, his son bhawani.....
Judgment:

S.C. Agrawal, J.

1. In this writ petition filed under Article 226 of the Constitution of India, the petitioner, Sajjansingh, who is an Ex-Jagirdar of Jagir Bagri. has challenged the order dated 5th July, 1978, passed by the Government of Rajasthan, whereby, in exercise of the powers conferred on it tinder Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as the 'Ceiling Act'), the State Government directed the Additional Collector, Pali, to reopen the case relating to determination of the surplus land in excess of the ceiling area held by the petitioner and to redetermine the said matter

2. The facts, briefly stated, are that after the resumption of the jagir of the petition in the year 1954, the petitioner, his son Bhawani Singh and his daughter Rajerdra Kumari were holding certain lands in their own names. By the Rajasthan Tenancy (Amendment) Act, 1960, the Rajasthan Tenancy Act, 1955, hereinafter referred to as the 'Tenancy Act') was amended and Chapter III-B (Section 30 B to 30-J) was inserted in the Tenancy Act whereby provision was made for the imposition of ceiling on agricultural holdings in Rajasthan and for acquisition by the State of land in excess of the ceiling area Proceedings were initiated under the provisions contained in Chapter III B of the Tenancy Act for determination whether the petitioner held any land in excess of the ceiling area and the Sub-Divisional Officer, Sojat, by his order dated 18th January, 1973 held that the petitioner did not have land in excess of the ceiling area with him. Shortly thereafter the State Legislature enacted the Ceiling Act, which, after receiving the assent of the President, was published in the Rajasthan Gazette dated 29th March, 1973 The Ceiling Act was brought into force with effect from 1st January, 1973 Section 4 of the Ceiling Act prescribes the ceiling area and Section 6 contains the provision with regard to non-recognition of certain transfers. Section 15 confer a power on the State Government to reopen decided cases. Sub-section (1) of Section 15 deals with orders passed in matters arising under the Ceiling Act, whereas Sub-section (2) of Section 15 deals with orders in matters arising under Chapter III-B of the Tenancy Act. Section 15 (2) of the Ceiling Act, as originally enacted in 1973 empowered the State Govt. to direct the reopening of a decided case within a period of three years of the commencement of the Ceiling Act, if the State Government was satisfied that the Ceiling area as fixed under the said order had been determined in contravention of the provisions of Chapter III-B of the Tenancy Act. Section 40 of the Act which provides for repeal, lays down that the provisions contained in Chapter III-B of the Tenancy Act shall stand repealed on the date on which the Ceiling Act comes into force in that area, except as provided in Second proviso to Sub-section (1) of Section 4 and Sub-section (2) of Section 15. By the Rajasthan imposition of Ceilings on Agricultural Holdings Amendment) Act, 1976, (hereinafter referred to as the 1976 Act), published in the Rajasthan Gazette dated 5th February, 1976, Section 15 was substituted and in Section 15 (2) it was provided that the power to direct the reopening of decided cases could be exercised within a period of 5 years of the commencement of the Ceiling Act. The grounds on which a decided case could be reopened were also changed and it was provided that an older directing the reopening of a case could be passed by the State Government where it was satisfied hat any final order passed in any matter arising under the provisions of Chapter III,B of the Tenancy Act is in contravention of the said provisions and that the said order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to the notice of the State Government such order is required to be reopened. The 1976 Act did not receive the assent of the President of Section 15 of the Ceiling Act was again, amended by the Raj Imposition of Ceiling on Agricultural Holdings (Amendment) Act, 1978, (hereinafter referred to as the 1978 Act; whereby Section 15 was again, substituted As a result of the aforesaid amendment, the time limit of five year's contained in Section 15 (2) for reopening of decided cases was Withdrawn and, instead thereof it was provided that no order reopening a case shall be parsed unless a notice to show cause against the proposed action has been served upon the person concerned and further that no notice for reopening of a case shall be issued after the expiry of Six years on from the commencement of the Act. The 1978 Act also did not receive the assent of the President.

3. It appears that on 7th November, 1976, the Deputy Secretary to the Government of Rajasthan, Revenue, (Ceiling), issued a notice calling upon the petitioner to show cause why the proceedings concluded under Chapter III-B of the Tenancy Act be not reopened in exercise of the powers conferred upon the State Government under Section 15 (2) of the Ceiling Act. In response to the said notice, the petitioner appealed before the Deputy Secretary to the Government of Rajasthan and opposed the reopening of the case. An order dated 5th July, 1978, has thereafter been passed in exercise of the powers conferred under Section 15 (2) of the Ceiling Act, wherein it is stated that the State Government has arrived at the conclusion that the order dated 18th January, 1973, passed by the Sub Divisional Officer, Sojat, was passed in contravention of the provisions of Chapter III-B of the Tenancy Act and the said order is prejudicial to the State Government, and the State Government has directed the Additional Collector, Pali to reopen the aforesaid case of the petitioner and to redetermine it in the light of points mentioned in the order in accordance with provisions of law after giving the prescribed notice to the petitioner. In pursuance of the aforesaid order of the State Government dated 5th July, 1978 the Additional Collector, Pali, reopened the case of the petitioner and issued a notice dated 7th August, 1978 to the petitioner calling upon him to file his reply on 6th September, 1976. Aggrieved by the aforesaid order of the State Government dated 5th July, 1978, the petitioner has filed this writ petition.

4. In the writ petition, the petitioner has challenged the validity of Section 15 (2) of the Ceiling Act as substituted by the 1978 Act, and has also challenged the order dated 5th July, 1978 on the ground that the said order has not been passed in accordance with the provisions of Section 15 (2) of the Ceiling Act as amended by the 1978 Act.

5. Shri B I,. Purohit, the learned Counsel for the petitioner, has urged the following contentions in support of the writ petition:

(1) The 1978 Act is unconstitutional and void in as much as it being a law providing for acquisition of property, required the assent of the President under Clause (3) of Article 31 of the Constitution and in the absence of the assent of the President, the said Act is

(ii) The 1978 Act is a legislation enacted under entry 42 of list III of the Seventh Schedule to the Constitution and the provisions of Section 15 (2) inserted by the said Act in the Ceiling Act are inconsistent with the provisions of Section 11 of the Code of Civil Procedure which is a Central enactment and in the absence of the assent of the President, the provisions of Section 15 (2; are unconstitutional and void in view of Article 254 of the Constitution.

(iii) The provisions of Section 15 (2) of the Ceiling Act as amended by the 1978 Act are violative of the provisions of Article 14 of the Constitution in as much as they result in discrimination amongst persons similarly situate.

(iv) The order dated 5th July, 1978 passed by the State Government was passed in contravention of the provisions of Section 15 (2) of the Act as amended by the 1978 Act in as much as no notice as required by the said provisions was given to the petitioner after the passing of the 1978 Act.

6. As to the first contention, the submission of the learned Counsel for the petitioner is that 1978 Act which substituted Section 15 in the Ceiling Act is a law providing for acquisition of property in as much as it makes applicable the provisions of Chapter II[ B of the Tenancy Act to certain proceedings on a date on which the said provisions hid ceased to be operative The submission of the learned Counsel is that by enacting Sub-section (2) of Section 15 the impugned Act has in substance renacted the provisions of Chapter III B of the Tenancy Act for the purpose of cases covered by the said Sub-Section. The learned Counsel has submitted that if the 1978 Act is regarded as a law providing for acquisition of land then in view of Clause (3 of Article 31 of the Constitution it was necessary that the said Act must have received the assent of the President before it could be operative and that the 1978 Act, having not received the assent of the President, is unconstitutional and void. In support of his aforesaid submissions, the learned Counsel for the petitioner has placed reliance on the decision of the Full Bench of this Court in Dalpat Raj v. The State of Rajasthan (D. B. Civil Reference No. 59 of 1961, decided on 3rd February, 1964).

7. The learned Advocate General, appearing for the respondents, has submitted that the 1978 Act which substituted Section 15 in the Ceiling Act, cannot be regarded as a law providing for acquisition of property enacted under entry 42 of List III of the Seventh Schedule to the Constitution. The submission of the learned Advocate General is that in so far as acquisition of the lands in excess of the ceiling area is concerned, the same were acquired under the provisions contained in Chapter III B of the Tenancy Act and Section 15(2) of the Ceiling Act, which only provides for reopening of certain decided cases and their re determination according to the Law on the basis of which they were earlier decided, is in the nature of power of review or revision and it cannot be regarded as a law providing for acquisition of property. According to the learned Advocate General, the provisions of Section 15(2) as substituted by the 1978 Act, do not provide for acquisition of any land and that the said provisions are in the nature of procedural provisions only. The learned Advocate General has submitted that if the 1978 Act is not a law providing for acquisition of land that there is no question of the said Act requiring the assent of the President under Article 311(3) of the Constitution.

8. From the aforesaid contentions urged by both the learned Counsel, it is clear that there is no dispute that assent of the President was necessary under Article 31(3) of the Constitution, if the 1978 Act can be regarded as a law providing for acquisition of property. A perusal of the 1978 Act shows that all that the said Act has done is to substitute Section 15 of the Ceiling Act. As the learned Counsel for the petitioner has confirmed his attack to Sub-section (2) of Section 15, the question which arises for consideration is as to whether the provisions of Sub-section (2) of Section 15, as substituted by the 1978 Act, can be regarded as a law providing for acquisition of property. The answer to this question will depend on the particular provisions contained in Sub-section (2) of Section 15, which have been substituted by the 1978 Act

9. Before proceeding to examine the provisions of Sub-section (2) of Section 15, as substituted by the 1978, it would be necessary to take note of the relevant provisions of the Rajasthan Tenancy Act, 1955 as well as the provisions of the Ceiling Act As noticed earlier provision for imposition of ceiling on agricultural holdings was first made by the Rajasthan Tenancy (Amendment) Act, 1960, which inserted chapter III B (Sections 30-B to 30 J) in the Tenancy Act. The said Act, which had received that assent of the President on March 12 1960, came into force on December 15, 1963. Section 30-C fixed a limit of a ceiling area of thirty standard acres for a family consisting of five or less than five members. Section 30E provided for vesting of the land in excess of the ceiling area in the State. Section 30D and 30DD contained provisions regarding recognition and non recognition of transfers for the purpose of determining the ceiling area. There is no dispute that the provisions contained in Chapter III-B which were inserted in the Tenancy Act by the Amendment Act of 1960 were a law providing for acquisition of land as the 1960 Act had received the assent of the President, the said provisions had been validly inserted into Tenancy Act. Section 30E of the Tenancy Act, which was part of Chapter III B, provided as under:

30 E. Maximum land that can be held and restriction on future acquisitions (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, no person shall, as from a date notified by the State Government in this behalf, -

(a) continue to hold or retain in his possession in any capacity and under any tenure what so ever land in excess of the ceiling area applicable to him, or

(b) acquire, by purchase, gift, mortgage, assignment, lease, surrender or otherwise or by devolution or bequests, any land so as to effect an increase in the extent of his holding over the ceiling area applicable to him;

Provided that different dates may be so notified far different areas of the State.

(2) Every person, who, on such date, is in possession of land in excess of the ceiling area applicable to him or who thereafter comes into possession of any land by acquisition under Clause(b) of Sub-section (1), shall, within six months of such date or within three months of acquisition, as the case may be make a report of such possession or acquisition to and shall 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.

Provided that if any person holding or acquiring land in excess of the ceiling area applicable to him holds land in more than one Tehsil he shall have the option to choose which of the lands held by him in different Tehsils should be surrendered so as to leave with him the land upto the ceiling area applicable to him;

Provided further that the option afforded by the foregoing proviso shall be subject to the limitation that, where the person surrendering excess land under this sub-section holds lands, of which some are encumbered and some are not encumbered, the unencumbered lands, shall so far as may be, surrendered in preference to encumbered lands.

(3) Any person failing intentionally to make a report or to surrender lands as required by nib-section (2) shall, on conviction, be punishable with fine which may extend to one thousand rupees.

(4) Without prejudice and in addition to such conviction and fine the person retaining possession of any land in excess of the ceiling area applicable to him shall be 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;

Provided that the lands, from which a person shall be so ejected shall, as far as may be, unencumbered lands.

(5) All lands coming to the State Government by surrender under Sub-section (2) or by ejectment under Sub-section (4) shall vest in it free from all encumberances.

(6) Nothing contained in this section shall operate as against the transferor to the extent his transfers are recognised under Section 30DD.

10. The provisions of Chapter III-B of the Rajasthan Tenancy Act were repealed by Section 40(1) of the Ceiling Act which came into force with effect from 1st January, 1973. Section 40(1) of the Ceiling Act provides as under:

40 Repeal and Savings--(1) Except as provided in Second proviso to Sub-section (1) of Section 4 and in Sub-section (2) of Section 15 of this Act, the provisions of Clause (6A) of Section 5 and Chapter III B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) are hereby repealed except in the Rajasthan Canal Project area wherein such provisions shall stand repealed on the date on which this Act comes into force in that area.

11. A perusal of the said section shows that the provisions of Chapter III-B of the Tenancy Act have been repealed except as regards matters covered by the Second proviso to Sub-section (1) of Section 4 and Sub-section (2) of Section 15 of the Ceiling Act. In other words the intention of Section 40(1) of the Ceiling Act appears to be that cases falling under the second proviso to Sub-section (1) of Section 4 and Sub-section (2) of Section 15 of the Ceiling Act would be dealt with in accordance with the provisions of Chapter III-B of the Tenancy Act on the footing that the said provisions continue to be in force. The Second proviso to Sub-section (1) of Section 4 of the Ceiling Act lays down that if the ceiling area applicable to any person or family in accordance with Section 4 exceeds the ceiling area applicable to such person or family according to the provisions of chapter III-B of the Tenancy Act, then in that case the ceiling area applicable to such person or family will be the same as was under the provisions of Chapter III-B of the Tenancy Act.

12. Sub-Section(2) of Section 15 of the Ceiling Act, as originally enacted, provided as under:

15. Bower to re-open casts:(1)....

(2) Notwithstanding anything contained in Section 40, if the State Government, at any time within three years Of the commencement of this Act, is satisfied that the ceiling area in relation to a person as fixed under the law repealed by the said section has been determined in contravention of the provisions of such repealed law, it may direct any officer subordinate to it, to reopen a decided case and enquire into it and to determine the ceiling area and the surplus area afresh in accordance with the provisions of such repealed law.

13. In enacting the aforesaid provisions in the Act, the legislature intended that in respect of pending cases the provisions of Chapter II-8 of the Tenancy Act would be preserved by Section 40 (I) read with second proviso of Sub-section (1) of Section 44 of the Ceiling Act and as regards decided cases, the said provisions of chapter II[-B of the Tenancy Act would be preserved by Section 40 (1) read with Sub-section (2) of Section 15 of the Ceiling Act. In respect of decided cases the legislature imposed a time limit of three years within which the power conferred by Sub-section (2) could be exercised. The Ceiling Act had received the assent of the President and it is also included in the Ninth Schedule to the Constitution.

14. By the 1976 Act Sub-section (2) of Section 15 was substituted by the following provision:

15. Power to reopen cases-(1)....

(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 Govt. 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 on that on account of the discovery of new and important matter or evidence which had since come to its notice, such order is required to be reopened, it may, at any time within five years of the commencement of this Act, direct any officer subordinate to it to reopen 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 reopened and decided-afresh under the fresh sub-sections unless the State Government is 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.

15. As a result of the aforesaid amendment the period within which the power conferred by Sub-section (2) could be exercised was increased to five years and it was also provided that the said power could also be exercised by the State Govt. in a case where on account of discovery of new and important matter or evidence which has since come to its notice, such order is required to be reopened. The 1976 Act did not receive the assent of the President but it has been included in Ninth Schedule to the Constitution.

16. By the 1978 Act Sub-section (2) of Section 15 was again substituted and now it provides as under:

15. Power to re open cases: (1)....

(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 provision and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its no ice, such order is required to be reopened, it may direct any officer subordinate to it to reopen such decided matter & to decide it afresh in accordance with such repealed provisions:

Provided that no such direction shall be issued unless a notice to show cause against the proposed action has been served upon the person concerned.

Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of six years of the commencement of this Act:

Provided that no final order passed by the Board in the matter referred to in Sub-section (1) or in Sub-section (2) shall be directed to be reopened and decided afresh under the said sub-sections unless the State Govt. is satisfied that such Older is required to be reopened; 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.

17. As a result of the aforesaid amendment the time limit of five years prescribed for the exercise of the power was withdrawn and in its place a provision has been made in the proviso that no direction shall be issued under Sub-section (2) unless a notice to show cause against the proposed action has been served upon the person concerned and that no notice shall be issued after the expiry of six years of the commencement of the Act.

18. Before coming to the provisions of Sub-section (2) of Section 15 of the Ceiling Act, as they stand today, let us first consider the question as to whether the provisions of Sub-section (2) of Section 15, as originally enacted, could be regarded as a law providing for acquisition of property If the question can be answered in the affirmative then the petitioner is entitled to succeed in his submission that the provisions contained in Sub-section (2) of Section 15, as substituted by the 1978 Act, constitute a law providing for acquisition of property. If the said question is answered in the negative then the further question which will arise for consideration is as to whether the amendments introduced in Sub-section (2) of Section 15 by the 1978 Act are of such a nature as to make the said provisions a law providing for acquisition of property.

19. In my view, the first question has to be answered in the negative for the reason that Section 15(2), as originally enacted was in the nature of a provision conferring a, power of review or revision on the State Government to examine the correctness of orders that had been passed by subordinate officers in cases relating to determination of ceiling area decided under the provisions of Chapter III-B of the Tenancy Act and to set aside orders which are found to have been passed in contravention of the provision of Chapter III-B of the Tenancy Act and to direct that the ceiling area provision of Chapter III-B of the Tenancy Act the said provisions (Section 15(2)) did not make a provision for acquisition of property. The provision for acquisition of the property had already been made in Chapter III-B of the Tenancy Act Section 15(2) only laid down that the provision of Chapter III-B of the Tenancy Act would be applicable for the purpose of disposal of cases which had been decided on the basis of the aforesaid provision and where the determination had been found to have been made in contravention of the said provision and had been directed to be reopened by the State Govt. It cannot be said that the provisions of Section 15(2) of the Ceiling Act which laid down that the cases which had been disposed of earlier and had been reopened, should be disposed of in accordance with the said provisions which were applicable to those cases on the date on which they had been earlier disposed of, i.e. in accordance with the provision contained in Chapter III-B of the Tenancy Act, is a law providing for provision for acquisition of property.

20. In this context reference may be made to the decision of the full Bench of this Court in Banshidar and Ors. v. The Rajasthan . In that case, the court had to deal with the question as to whether in a pending case provisions contained in chapter III-B of the Tenancy Act could be taken into consideration for the purpose of determining the land in excess of the ceiling area, after the repeal of the said provisions by Section 40 of the Ceiling Act and the court had to determine whether any, rights had accrued and any liabilities had been incurred under Section 30E of the Tenancy Act winch were saved by the operation of Section 6 of the Rajasthan General Clauses Act This Court has laid down that proceeding which had been commenced under Chapter III-B of the Tenancy Act for the determination of the ceiling and surplus area of the land holder and which were pending, when the Ceiling Act came into force would be governed by the provisions contained in Chapter III-B of the Tenancy Act and that the rights & liabilities created under Section 30E contained in Chapter III-B of the Tenancy Act, had not in any manner been affected by the enactment of the Ceiling Act This Court while determining the impact of the provisions contained in Section 30.E of the Tenancy Act on the rights of the land holder, has observed:

As soon as the exact amount of surplus, land is determined by taking resort to the procedure laid down in the old Act or the rules made thereunder that would enable the land-holder to pass on the possession of such surplus land to the State Government but that right of the Government to take such land would relate back to the point of time when the right was actually created by the law in favour of the State. In our opinion the right under Section 30E (1) (a) and 30-E(2) vest in the State when the period prescribed under Sub-section 30E(2) of Section 30E to surrender the surplus land is over because it is a statutory obligation for the land-holder to surrender the surplus land to the State, If the land holder like an honest citizen acts in the manner prescribed by the law then there is no difficulty for him to find out the surplus land in his hand & to surrender the same to the Tehsildar. However if it is not done by the landholder then the competent authority has a power under the statute to determine the excess land possessed by the land-holder after the declaration made by him u/R 9 of the old Rules. The theory of relating bads' would undoubtedly be attracted when the question of the right of the State in the surplus land is to be determined.

'In the scheme of this section, Sub-section (4) makes the landholder by virtue of a legal fiction a tresspasser in respect of the excess land even though such a land had not vested in the State under the provisions of Sub-section (5) of the said section. If a person is by virtue of the deeming clause to be declared a trespasser then he will assume that character of being a trespasser not from the date when such a declaration has been made out but he will be trespasser right from the date when that person unauthorisedly retained the possession of the land in excess of ceiling area after a declaration under Rules 9 of the old Law was made by him. It is not necessary that on the filing of the declaration the computation of the excess land is factually completed. It is true that till the landholder surrenders or is ejected from the surplus land it does not vest in the State (see Sub-section (5) of Section 30-(E) and till then according to Mr. Hastimal the land holder remains the Khatedar of such land even though it may be found in excess of the ceiling area. But this assertion of Mr. Hastimal is hardly of any avail to the landholder when by virtue of a legal fiction introduced by the legislature in Sub-section (4) of Section 30E of the old Act he can be declared a trespasser in his own land and that he would be a trespasser in respect of such surplus land since the date when he should have surrendered the same to the State after making a declaration under Rule 9 of the Rules.

'In this view of the matter we are of opinion that the obligation not to retain land in excess of the ceiling area arises from the time prescribed under Sub-section (2) of Section 30-E of the old Act and from that date the rights of the State are perfected and cannot therefore be called inchoate right. The land-holder also incurs a liability to part with the land and to surrender it to the Tehsildar under the provisions of the law on the expiry of the period mentioned in Sub-section (2) of Section 30 E Such rights of the State which have accrued to it and the liability of the landholder incurred under the statute shall be governed by the provisions of Clause (c) and (e) of Section 6 of the General Clauses Act.'

'The pending proceedings partake the nature of an investigation into a claim The State was not trying to take any advantage under the old Law. That advantage had accrued to the State by the legislation i. e. by Section 30-E(1). That section was nothing but a mandate that no land-holder shall, as from the notified date, continue to hold or retain in his possession in any capacity and under any tenure whatsover land in excess of the ceiling area applicable to him or acquire, by purchase, gift, mortgage, assignment, lease, surrender or otherwise or by devolution or bequest, any land so as to effect an increase in the extent of his holding over the ceiling area applicable to him. There was a liability imposed under Section 30-E (2) on the landholders to surrender their surplus lands within six months of the notified dace or three months of the acquisition. The State acquired a corresponding right to enforce that liability.

21. From the aforesaid observations it is clear that by virtue of the provisions contained in Sub-section (1) and (2) of Section 30E contained in Chapter III-B of the Tenancy Act certain rights that been acquired by the State and a liability had been imposed pathe land-holders in respect of the land in excess of the ceiling area on the notified, date i e. 1st April, 1966, and thereafter all that remained to be done was, the quantification of the surplus area in accordance with the procedure laid down in the Chapter III.B of the tenancy Act and the Rules framed thereunder. Merely because the said procedure for quantification of the surplus, area had not been completed prior to the coming into force 'of the Ceiling Act or that it was done under an order which was passed in contravention of the provisions of Chapter III-B of the Tenancy Act could not have any effect on the rights which had been acquired' by the State and the liability which had been imposed on the land-holders on the notified date, i.e. 1st April, 1966, and the said rights and liabilities would continue to be governed by the provisions of Chapter III-B of the Tenancy Act. The provisions of Section 40(1) of the Ceiling Act which provide for continuation, of Chapter III B. of the Tenancy Act with regard to 'the aforesaid proceeding have, done nothing more than lying down what is contained in Section 6 of the (General Clauses Act.

22. The learned Counsel for the petitioner has placed reliance on the observation's in Banshidhar's case to the effect that under Section 30E of the Tenancy Act, the surplus land, does not vest in the State till the land-holder surrenders or is ejected from, it and the learned Counsel has also submitted' that in a case where the matter is reopened under Section 5,2) and as a result there of surplus, land has been determined, 'the said 'surplus land can He said to have been acquired by virtue of the provisions contained in Section 15(2) only I am unable to accept the afore said 'contention in as much as in 'Banshidhar's case AIR 1977 Raj 46, this Court has laid down that the rights of the State are perfected from, the date, the obligation not to retain land in excess of the ceiling 'area arises under Section 30E(2) of the Tenancy Act and that the theory of 'relating back' would be attracted when the question of the right of the State in the surplus land is to be determined. In other Words in Banshidhar's case (1) this Court has clearly held that after the determination of the surplus land the 'landholder would. be treated as a trespasser' not from the date when the declaration of the. surplus land has been made but from the date when he unauthorisedly retained, the land in the excess of the ceiling area and the right of the state Government to take such land would relate back t6 the point of time When the right was actually created by the law in favour of the State.

23. Even if the contention urged by the learned Counsel for the petitioner that a law which provides for continuation of the provisions of Chapter III-B of the Tenancy Act after their repeal, is a law providing for acquisition of property, is accepted, it will be seen that such a law is contained in Section 40(1) of the Ceiling Act and not in Section 15(2)of the Ceiling Act. It is Section 40(1) which provides for continuation of the provisions of chapter III B of the Tenancy Act and it is not disputed that no amendment in the provisions has been made, after the enactment of the Ceiling Act and it is not oft open to challenge on the ground that the assent of the President under Article 31(3) of the Constitution was not obtained for its enactment.

24. It cannot, therefore, be said that Sub-section (2) of Section 15 of the' Ceiling Act, as it was originally enacted, was a law providing for acquisition of property.

25. If Sub-section (2) of Section 15 of the Ceiling; Act, as originally enacted, cannot be regarded as a law providing for acquisition of property, can it be said that the 1978 Act which repeals and reenacts the aforesaid provision after making some changes in it is a law providing for acquisition of property? One alteration that has been made by the 1976 Act in the provisions of Sub-section (2) of Section 15 of the Ceiling Act, as originally enacted, is that the time limit of three years which had been prescribed for the exercise of the power conferred by the said provision and which had been raised to five years by the 1976 Act, has been withdrawn and in its place it has been provided that the notice to show cause why the case be not reopened must be given before the expiry of six years from the date of commencement of the Act. The other alteration that has been made is that in Section 15 (2), originally enacted, an order passed prior to the coming into force of the Ceiling Act could be reopened only if the Ceiling area had been determined in contravention of the provisions of Chapter III B of the Tenancy Act and the amended provision imposes a limitation on the exercise of the power by providing that the power shall be exercised only in a case where the order is prejudicial to the State Government and a further provision has been made that the power conferred by Section 15 (2) can be exercised also in a case where on account of discovery of new and important matter or evidence which has since come to the notice of the State Government the order is required to be reopened. The second alteration had been introduced in Sub-section (2) of Section 15 as substituted by the 1976 Act and the 1978 Act reenacts it In my view the aforesaid amendments do not make any substantial alteration in the provisions contained in Sub-section (2) of Section 15 of the Ceiling Act, as originally enacted, and therefore, it cannot be said that as a result of the aforesaid amendment Sub-section (2) of Section 15 which, as originally enacted, was not a law providing for acquisition of property, has acquired the character of a law providing for acquisition of property.

26. The decision of the full Bench of this Court in Dalpatraj v. State of Rajasthan (Supra) has no application to the facts of the present case. In that case the court had to deal with the question as to whether Section 15 A of the Rajasthan jagir Decisions & Proceedings (Validation) Act. 1955 which was introduced in the said Act by the Rajasthan Decisions Jagirs Proceedings (Validation) (Amendment) Act, 1960, was ultra vires the Constitution By Section 15.A aforesaid, the State Govt. had been empowered to reopen a certain case relating to the recognition of succession to a Jagir. The validity of the aforesaid provision was challenged before this Court on the ground that the original Act had received the assent of the President whereas the amending Act by which Section 15-A was inserted in the original Act did not receive the assent of the President and that assent of the President was required under the proviso to Article 200 and Article 31(3) of the Constitution. This Court did no' examine the argument with regard to Article 31(3) of the Constitution but held that Section 15-A was unconstitutional on the ground that assent of the President was required in view of the proviso to Article 200 of the Constitution. The court has expressed the view that where an amendment alters the essential feature of a parent Act which had necessitated the parent Act itself to receive the assent of the President, then the amending Act must also receive the President's assent before it becomes law. In the facts and circumstances of the said case the Court found that the amendment introduced by Section 15 A in the original Act had substantially altered the overall pattern of the original Act. In the present case, however, we find that provisions for reopening of cases was contained in Sub-section (2) of Section 15 of the Ceiling Act, as originally enacted, which had received the assent of the President and the scheme of the Ceiling Act, as originally enacted, was that certain cases, in which orders had been passed before the commencement of the Act could be reopened by the State Govt. and after reopening these cases would be re-determined in accordance with the provisions of Chapter III-B of the Tenancy Act. The amendments which have been made in the provisions of Sub-section (2) of Section 15 by that 1978 Act have not substantially altered the essential features of the parent Act which had necessitated the parent Act itself receiving the assent of the President and therefore, in my view the decision of this Court in Dalpat Raj's case (supra) does not apply to the present case.

27. In this context reference may be made to the decision of the Supreme Court in Smt Lilavati Bai v. State of Bombay : [1957]1SCR721 . In that case the Bombay Land Acquisition Act, 1948, which was a law protected by Article 31(5)(a) of the Constitution, had been amended by Bombay Acts No. 2 and 39 of 1950 which had not received the assent of the President and the validity of the amending Acts was challenged on the ground that the provision of Article 31(3) of the Constitution had been contravened The Bombay Act No. 2 of 1950 extended the life of the parent Act by two years & by the Bombay Act No. 39 1950 the wards 'the purpose of the State or any other public purpose' were substituted for the words 'any purpose' in Section 5 of the parent Act. The Supreme Court held that the aforesaid amending Acts ware merely an extension or explanatory of the substantive Act and were not such laws as come within the purview of Clause (3) of Article 31 of the Constitution. Similarly it can be said that the amendments made by the 1978 Act in Sub-section (2) of Section 15 are of such a nature that the 1978 Act does not come within the purview of Article 31(3) of the Constitution. I, therefore, hold that the provisions of the 1978 Act whereby Sub-section (2) of Section 15 has been substituted cannot be regarded as a law providing for acquisition of properly & therefore, the provisions of Article 31(3) of the Constitution have no application to the said legislation & the said legislation cannot be attacked on the ground that it required the assent of the President under Article 31(3) and that in the absence of the said assent it is void and inoperative.

28. If the 1978 Act is held to be a law which does not provide for acquisition of property then it cannot be regarded as having been made in exercise of the legislative power under entry 42 of List III of the Seventh Schedule to the Constitution but is a law made under entry 18 of List II of the Seventh Schedule.

29. In Jagannath v. The Authorised Officer 1971 (2) SC 893 the Supreme Court while considering entry 18 in List II of the Seventh Schedule to the Constitution, has laid down:

In our view, Entry 18 in List II like any other entry in the three Lists only gives the outline of the subject matter of legislation and therefore the words in the entry are to be construed in their widest amplitude. The field of legislation covered by the entry is not to be narrowed down in any way unless there is anything in the entry itself which defines the limits thereof. Entry 18 in our opinion is meant to confer the widest powers on the State Legislature with regard to rights in or over land and such rights are not to be measured by or limited to the rights as between landlords and tenants of the collection of the rents. The words which follow the expression 'rights in or over land' are merely by Way of illustration. The specification itself shows that the genus of the rights mentioned is not the one which landlords have vis-a-vis their tenants' on vie- versa, All kinds Of legislation regarding transfers and alienations of agricultural land which may affect the rights therein of landlords and tenants are envisaged by the entry as also improvement of land and colonisation of such land. If the State Government seeks to enforce a measure by which the condition of barien or unproductive lands can be improved, it can do so even if the measure curtails the rights of landlords and tenants over them. If the State wants to enforce a measure of acquiring lands of people who hold areas ever a certain Ceiling limit so as to be able to distribute the same among the landless and other persons, to give effect to the directive principles in Article 39(b) and (c)of the Constitution, it not possible to say that the same would be outside the scope, of Entry 18 in List II, read with Entry 42 in List III. Such a measure can aptly be described as a measure or agrarian reform or land improvement in that persons who have only small holdings and work on the lands themselves would be more likely to put, in greater efforts to make the lard productive' than those who held large blocks of land and are only interested in getting a return without much effort. The measure does not' transgress the limits of the legislative, field because it serves to remove the disparity in the ownership of land.

30. In view of the aforesaid decision of the' Supreme Court Entry 18 of List II of the Seventh Schedule, to the Constitution is wide enough to cover every legislation made in respect of land and rights over land except a law providing for acquisition of lard which falls under entry 42 of list III of the Seventh Schedule. if the 1978 Act, is not a law providing for acquisition of property it docs not fall in Entry 42 of List III and is a legislation (covered by Entry 18 of List II. Article 254 of the Constitution has no application to 'a law made under List II of the Seventh Schedule land, therefore, the question of repugnancy of the 1918 Act with the provisions of any Central enactment made in exercise of the legislative power conferred by the entries in list III does not arise. In this view of the matter I do not cofnsidef4? necessary to examine the question, as to whether. the provisions of Section 15 (2) as substituted by the 1978. Act, are inconsistent with the provisions of Section 11 of the Code of Civil Procedure. Even of her wise. I find it difficult to appreciate how the provisions contained in Sub-section (2) of Section 15 of .the Ceiling Act, as substituted by the 1978 Act, which provide for reopening of a decided case by the State, Government, and are thus in, the nature of a power of review or revision, can be said to be inconsistent with the principle of res judicata contained in Section 11 of the Code of Civil Procedure.

31. In support of his submission that, Sub-section (2)'of Section 15 as substituted by the 1978 Act is violative of the provisions of Article 14 of the Constitution, Shri B L. Purohit, the learned Counsel for the petitioner, has submitted that the 1978 Act classifies land-Holders into 'two classes: (1) Landholders against whom proceedings for determination of the Ceiling area had been initiated' prior to the commencement of the Ceiling 'Act; and (ii) Landholders against whom, such proceedings had not been initiated prior to the commencement of the Act, The submission of the learned Counsel for the petitioner is that in respect of persons against whom proceedings for determination of the ceiling area had been initiated before the commencement of the Ceiling Act the provisions of Chapter III-B of the Tenancy Act would be applicable and under Section 30-D contained in Chapter III-B of the Tenancy Act transfers made after 25th February, 1958 are not to be recognised whereas in the case of person against whom proceedings for determination of the ceiling area had not been initiated under Chapter III-B of the Tenancy Act would be governed by the Ceiling Act & under Section 6 of the Ceiling Act all bonafide transfers made before 1st January, 1973 have been recognised. The submission of the learned Counsel for the petitioner is that there is no basis for the discrimination between land-holders, who are similarly situate, merely on the basis of the date on which proceedings for determination of the Ceiling area were commenced against them.

32. The submission of the learned Advocate General, on the other hand, is that the question of discrimination does not arise in the present case in as much as the land holders against whom proceedings for the determination of ceiling area had been initiated under Chapter III B of the Tenancy Act and the landholders against whom such proceedings had been initiated under the Ceiling Act, are not persons similarly situate. In this regard the learned Advocate General has submitted that in so far as the landholders against whom proceedings for the determination of the Ceiling area had been initiated under Chapter III B of the Act, the right of landholders in the surplus land in excess of the ceiling area had come to an end and the State had acquired rights in the said land. In support of the submission aforesaid, the Learned Advocate General has placed reliance on the decision of this Court in Banshidhar's Case. The submission of the Learned Advocate General is further that the discrimination, if any, between, landholders against whom proceedings had been initiated prior to the commencement of the Ceiling Act and landholders against whom the said proceedings were initiated after the commencement of the Ceiling Act, is not made by the Sub-section (V) of Section 15, as substituted by the 1978 Act, bat is done by Section 40 (1) of the Ceiling Act itself and the Ceiling Act, including Section 40 (1) having been included in the Ninth Schedule to the Constitution. Section 40 (1) is not open to challenge on the ground that it is violative of the provision of Article 14 of the Constitution The submission of the Learned Advocate General is that Sub-section (2) of Section 15 does no more than give effect to provisions of Section 40 (1) of the Ceiling Act and if Section 40 (1) cannot be challenged on the ground that it contravenes Article 14, Sub-section (2) of Section 15 also cannot be challenged on the said ground.

33. I am in agreement with the contention of the learned Advocate General that the classification of landholders into two categories, i.e. those against whom proceedings had been initiated under the provisions of Chapter III-B of the Tenancy Act and those against whom proceedings were initiated under the provisions of the Ceiling Act, has been made in Section 40(1) of the Ceiling Act itself in so far as the said section preserves the provisions of Chapter II[-B of the Tenancy Act with regard to the proceedings which had been commenced under the said provisions prior to the commencement of the Ceiling Act. Sub-section (2) of Section 15, which has been substituted by the 1978 Act by laying down that proceedings in which a final order had been passed under Chapter II[-B of the Tenancy Act, would, after reopening, be redetermined in accordance with the provisions of Chapter III-B of the Tenancy Act does no more than give effect to the intention of the legislature contained in Section 40(1) of the Ceiling Act. It cannot be disputed that Section 40(1) is a part of the Ceiling act, which has been included in the Ninth Schedule to the Constitution, and its validity cannot be challenged on the ground that it is violative of Article 14 of the Constitution. It will thus be seen that Section 40(1) as well as Section 15(2) of the Ceiling Act, both postulate that landholders against whom proceeding) for determination of the ceiling area were pending on the date of the commencement of the Ceiling Act should be regarded as failing in a category different from landholders against whom such proceedings were initiated after the commencement of the Ceiling Act. The aforesaid classification is not open to challenge and is protected by Article 31B of the, Constitution, in so far as Section 40(1) of the Ceiling Act is concerned. If the said classification, as provided by Section 40(1), is not open to challenge on the ground that it contravenes Article 14 of the Constitution, I fail to understand how the said classification can be challenged by attacking the validity of Section 15(2) on the ground of Article 14 of the Constitution.

34. Moreover, I am of the opinion that Sub-section (2) of Section 15 of the Ceiling Act, as substituted by the 1978 Act, in laying down that if the case has been reopened, the proceedings would be determined in accordance with the provisions of Chapter III B of the Tenancy Act does not contravene the right to equality, guaranteed under Article 14 of the Constitution. After the cast is reopened, it becomes a pending proceeding and it is a settled law that a provision laying down that pending proceedings should be concluded according 10 the law applicable at the time when the rights and liabilities accrue and the proceedings commenced is not open to challenge on the ground that it violates Article 14 of the Constitution. In Romjilal v. The Income Tax Officer, Mohinder Gath, the Supreme Court has observed:

In any case the provision that pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced is a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause and to which no exception can be taken. In cur opinion the grievance of the alleged infringement of fundamental right under Article 14 is not well founded at all.

35. It cannot be said that the classification of landholders against whom proceedings for determination of the ceiling area and surplus area had been commenced prior to the commencement of the Ceiling Act into a category different for landholders against whom such proceedings were initiated after the commencement of the Ceiling Act, for the purpose of applicability of the land to those proceedings is unreasonable. In Banshidhar's Case, the Full Bench of this Court, with reference to Section 15(2) of the Ceiling As has observed ; -

As regards the application of the old law in cases reopened Under Section 15 of the new Act, it is obvious that it is only an enabling section which empowers the authorities under the Act to determine the ceiling area in accordance with the provisions of the old law. It is but natural that if the ceiling area had once been determined by the authorities under the provisions of the old Law and if for one reason or the other, case is re-opened under Section 15 of the new Act then it is in all fairness that such a determination must be made in accordance with the provisions of the old ceiling law which were employed while determining the ceiling area.

36. In my view, therefore, there is no merit in the contention urged by the learned Counsel for the petitioner that Section 15(2) of the Ceiling Act, as substituted by the 1978 Act is violative of the provisions of Article 14 of the Constitution.

37. Lastly it has been urged by the learned Counsel for the petitioner that even assuming that Section 5(2), as substituted by the 1978 Act, is a vaild piece of legislation, the order dated 5th July, 1978, passed by the State Government could not be sustained in as much as no show cause notice as required by the proviso to Sub-section (2) of Section 15 of the Ceiling Act was given to the petitioner prior to the passing of the order dated 5th July 1978 Learned Counsel for the petitioner docs not dispute that a show cause notice was earlier given to the petitioner but the submission of the learned Counsel is that the said notice was given prior to the enactment of the 1978 Act and the said notice could not be regarded as a notice under the first proviso to Sub-section (2) of Section 15 of the Ceiling Act. in my view, there is no merit in the aforesaid contention. The first proviso to Sub-section (2) of Section 15 merely makes explicit that which was implicit in the provision of Sub-section (2) of Section 15, as it stood prior to the enactment of the 1978 Act. The provisions of Section 15(2), as they stood prior to the enactment of the 1978 Act, also involved an obligation on the part of the State Government to afford an opportunity to the landholder before an adverser order reopening a case which had been decided in his favour was passed against him. The grounds on which the order could be reopened under Section 15(2) as substituted by the 1978 Act, were the same as contained in Section 15(2), as substituted by the 1978 Act The nature of the notice which was, therefore, required to be given under the provisions of Section 15(2) as substituted by the I976 Act, was not different from the show cause notice which is required to be given under the first proviso to Sub-section (2) of Section 15 of the Act. In my view, therefore, the notice dated 7th November, 1976 which was given to the petitioner was a sufficient and proper notice and the order dated 5th July, 1978 cannot be held to be bad on the ground that a second show cause notice was not given to the petitioner under the first proviso to Sub-section (2) of Section 15 of the Act, after the enactment of the 1978 Act.

38. No other contention has been urged by the learned Counsel for the petitioner.

39. The result is that the writ petition is dismissed. But taking into consideration the circumstances of the case, I direct that the parties shall bear their own costs in this writ petition.


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