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State of Rajasthan Vs. Prithvi Singh and 8 ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal Nos. 152, 158, 166, 167 to 170, 171 and 181 of 1985
Judge
Reported in1986(1)WLN200
AppellantState of Rajasthan
RespondentPrithvi Singh and 8 ors.
DispositionAppeal allowed
Cases ReferredSumitra Kaur v. Authorised Officer
Excerpt:
rajasthan imposition of ceiling on agricultural holdings act, 1973 - proviso 2 to section 4(1) and section 40--ceiling area-determination of--ceiling under new ceiling law exceeding ceiling area under old ceiling law--held, it will be determined under repealed old ceiling law--authorised officer shall apply provisions of repealed law;in case the ceiling area applicable to any person or family in accordance with new ceiling law exceeded the ceiling area under the old ceiling law, in that case, the ceiling area shall be determined as applicable under the old ceiling law, though repealed by the new ceiling act.;the authorised officer shall apply the provisions of the repealed law when it arrives to a finding that the ceiling area applicable to any person or family in accordance with section.....narendra mohan kasliwal, j.1. as identical questions of law are involved in all the above special appeals, the same are disposed of by one single order.2. in order to appreciate the questions of law arising in these cases, we would like to narrate the facts of one case in sb. civil writ petition no. 1274/75 prithvi singh v. state of rajasthan.3. the petitioner held 47 bighas, 7 biswas of land in village palkiya, tehsil sangod, district kota. the petitioner filed a return on 3-1-1974 under section 10 of the rajasthan imposition of ceiling on agricultural holdings act, 1973, here in after referred to as 'new ceiling law'. the sub-divisional officer, ramganj mandi passed an order on 10-4-1975 (annexure-2) that the matter was to be decided under the old ceiling law and as the case had not.....
Judgment:

Narendra Mohan Kasliwal, J.

1. As identical questions of law are involved in all the above special appeals, the same are disposed of by one single order.

2. In order to appreciate the questions of law arising in these cases, we would like to narrate the facts of one case in SB. Civil Writ Petition No. 1274/75 Prithvi Singh v. State of Rajasthan.

3. The petitioner held 47 Bighas, 7 Biswas of land in Village Palkiya, Tehsil Sangod, District Kota. The petitioner filed a return on 3-1-1974 under Section 10 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, here in after referred to as 'new ceiling law'. The Sub-Divisional Officer, Ramganj Mandi passed an order on 10-4-1975 (Annexure-2) that the matter was to be decided under the old ceiling law and as the case had not been registered under the old ceiling law, the same be registered now, and proceedings be taken up separately. It was further directed that the petitioner should file a return under the old ceiling law taking the appointed date as 1-4-1966 and granted time to file the return upto 28-4-1975. It was further directed that proceedings under the new ceiling law may be kept pending till the final determination of the proceedings under the old ceiling law.

4. The petitioner aggrieved against the order of the Sub-Divisional Officer, filed an appeal before the Revenue Appellate Authority, Kota. The Revenue Appellate Authority dismissed the appeal by order dated 31-5-1975 ( Annexure-3 ). The petitioner, then, filed a return on 26-6-1975 and the S.D.O. Ramganj Mandi after receiving an enquiry report from the Tehsildar, issued a notice to petitioner under Rule 14 of Rajasthan Tenancy (Fixation of Ceiling of Land), Government Rules, 1963 (here in after referred to as 'Rules of 1963)'. The S.D.O. fixed 7.-8-1975 for further proceedings in the case. The petitioner, in the meanwhile, filed a writ petition on 2-8-1975 and obtained an order on the stay application for res-traing the respondents from taking proceedings under the 'provisions of Chapter III-B of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963. The above interim stay order was subsequently confirmed to last till the final disposal of the writ petition.

5. The above writ petition and other identical matters, then, came up for hearing in May, 1984. The learned Single Judge, after taking into consideration several other decisions of this court, held, that after the old Act, i.e., Chapter III-B contained in the Rajasthan Tenany Act, 1955, having been repealed by Section 40 of the new ceiling law, notice under the old Act after repeal, was patently illegal and cannot be sustained. It was however, observed by the learned Single Judge that 'whether the respondents can give notice under the New Act and decide the matter under the old Act, is not for him to decide, because it has been already decided by Division Bench of this court in Sumitra Kaur v. Authorised Officer (Sub-Divisional Officer), Sri Ganganagar 1977 RLW 423. The learned Single Judge as such, set aside Annexures-2, 3 and 4 and some other Annexures in the other identical writ petitions.

6. The learned Single Judge, by order dated May 23, 1984, decided 8 writ petitions by one common order and the State of Rajasthan, aggrieved against the aforesaid judgment, has filed these special appeals.

7. In order to appreciate the controversy raised in the present case, which is of great importance, and will affect large number of cases, we deem it proper to mention the relevant law and the cases decided by this court.

8. The Rajasthan Tenancy Act, 1955 was enacted to consolidate law relating to tenancy of agricultural lands, and to provide for certain measures of land reforms. The law imposing ceiling on agricultural holdings was first introduced in Rajasthan in the Tenancy Act by the Amending Act No. 4 of 1960. This Tenancy Amendment Act No. 4 of 1960 was brought into force on 15th December, 1953. The law relating to ceiling was incorporated in the Rajasthan Tenancy Act, 1955 by introducing Chapter III-B and not by a separate law on ceiling of agricultural holdings. Though, this amending Act came into force on 15-12-1963, but its provisions could not be made operative in absence of notification for the notified date as was required by Section 30-E Thereafter, the notified date was fixed as 1-4-66 by the State Government vide notification dated February 11, 1966. The date so notified for the purpose of Section 30-E was in respect of areas except the Rajasthan Canal Project area. The directions were contained in the said notification to the effect that declaration in accordance with Rule 9 of the then ceiling rules should be filed within six months from the notified date (1-4-66). As this proved of no avail, the State Government further isssued order to all Collectors for acquisition of land from land holders who had land in their possession in excess of 90 standard acres, vide notification dated 7-6-1968. The amending act, however remained in abeyance in respect of 30 standard acres and it was enforced for acquisition of lands in excess of 30 standard acres vide notification dated March 7, 1970 whereby the said notification of 7th June, 1966 imposing ceiling upto 90 standard acres was superseded.

9. Thereafter, the law as contained in Chapter III-B and Section 5(6A) of the Rajasthan Tenancy Act, 1955 was replaced by the Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973 (Rajasthan Ordinance I of 1973), except as provided in the second proviso to Sub-section (1) of section (4) and in Sub-section (2) of Section 15 of the Ordinance. This Ordinance provided a new scale of ceiling area. It was promulgated by the Governor on the first day of January, 1973. Thereafter, the above Ordinance was replaced by the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 by the Rajasthan Legislative Assembly as Rajasthan Act No. 11 of 1973. This Act was brought into force with effect from the First day of January, 1973 in the whole of the State, except the Rajasthan Canal Project area where it seems into force with effect from the 6th day of April, 1973. We would reproduce Section 4 and Section 40 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 as the same would have direct bearing on the controversy raised in these cases.

Section 4. Ceiling Area--(1) In the case of every person not being a family and in the case of every family consisting of five or less than five members (here in after referred to as 'the primary unit' of family), the ceiling area applicable to such person such family shall be in respect of:

(a) land under secured irrigation capable of growing at least two crops in a year (here in after referred to as the 'land under assured irrigation';), 18 acres;

(b) land under assured irrigation capable of growing at least one crop in a year, 27 acres;

(c) land under orchard existing on 23rd July, 1972, 54 acres;

(d) land not within categories specified in clauses (a) to (c) and falling in fertile zone as described in the Schedule, 48 acres;

(e) land not within categories specified in clauses (a) to (d) and falling in semi-fertile zone as described in the Schedule, 54 acres;

(f) land not within categories specified in clauses (a) to (e) and falling in hilly zone as described in the Schedule (54 acres);

(g) land not within categories specified in clauses (a) to (f) and falling in semi desert zone as described in the Schedule 125 acres; and

(h) land not within categories specified in clauses (a) to (g) and falling in desert zone as described in the Schedule, 175 acres.

Explanation : Land irrigated by a well shall not be deemed to fall within the categories of land specified in Clause (a) and Clause (b) of this sub-section and shall be deemed to fall within the categories specified in Clause (d) thereof;

Provided that where members of a family exceed five, the ceiling area in relation there to shall be increased by one-fifth for each additional member so however, that the total ceiling area applicable to such family does not exceed twice the ceiling area applicable to a family consisting of five or less than five members:

Provided further that if the ceiling area applicable to any person or family in accordance with this section exceeds the ceiling area applicable to such person or family according to the provisions of law repealed by Section 40, in that case, the ceiling area applicable to such person or family will be the same as was under the provisions of the said repealed law,

(2) A person may also select land for a separate unit upto the ceiling area of the primary unit for each separate unit:

Provided that where the separate unit also holds any land or share in land, the same shall be taken into account for calculating the ceiling area;

(3) The question whether any land is assured of irrigation from Government or private source capable of growing two crops or one crop in a year shall be determined by the Authorised Officer in such manner as may be prescribed;

Section 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 (6 A) 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;

(2) The Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973 (Rajasthan Ordinance 1 of 1973) is hereby repealed;

(3) Not with standing the repeal of the said Ordinance, under Sub-section (2), anything done or any action taken or any rules made under the said Ordinance, shall be deemed to have been done, taken or made under this Act and Section 27 of the Rajasthan General Clauses Act, 1955 (Rajasthan Act 8 of 1955) shall apply to such repeal and re-enactment.

10. There is no controversy that if proceedings are pending and not disposed of when the new ceiling law came into force, the proceedings must be disposed of in accordance with the old ceiling law. There is also no controversy that if the proceedings were initiated & disposed of before the new ceiling law came into force, the State Government was entitled to reopen such case under Section 15(2) of the new ceiling law. The controversy only rests on the question that where no proceedings were pending at the time when new ceiling law came into force, was it open to the Authorised Officer to initiate proceedings under the old repealed ceiling law.

11. We would now consider the cases decided by this court which have bearing on the controversy raised in these cases. Banshidhar and Ors. v. State was decided by a Full Bench consisting of five Hon'ble Judges of this court. 27 special appeals arising out of the judgment of learned Single Judge were decided in the above case. The learned Single Judge had held that the proceedings commenced under Chapter III-B of the Rajasthan Tenancy Act, 1955 (here in after referred to as the 'old law', for the determination of the ceiling and the surplus area of the land holder, shall even after the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (here in after called 'the new ceiling law') came into force,be governed by the old law and the new law shall have no effect on such proceedings. The argument of Mr. Hasti Mal, learned counsel for the land holders, before the Full Bench was that in view of Section 40 of the new law, Chapter III-B stood totally repealed w.e.f. 1-1-1973 and therefore, on coming into force of 1973 Act, the provisions of Chapter III-B stood completely obliterated from the statute book and therefore, the provisions of old law cannot be made applicable for determination of ceiling. In reply, it was contended by learned Advocate General that the rights and the liabilities accrued and incurred under Section 30-E of the old law, were saved by the operation of Section 6 of the Rajasthan General Clauses Act and therefore, to that extent, the rights and liabilities accrued or arisen under the old law, were to be perfected and the provisions of Chapter III-B of the Rajasthan Tenancy Act would govern the cases of the land holders. The full Bench in the above case, held as under:

Para 27-

In the light of these observations we may now proceed to examine whether provisions of Section 30-E(1)(a) and 30-E(2) created a vested right in the surplus land which may be quantified in accordance with the provisions of the Act at a later date, in favour of the State or whether these provisions created only the rights to the property viz. the jus in rem. It is true that on the date when the declaration was to be filed by the land-holder under Rule 9 of the old Rules it could not in all cases be said what exact area of the land shall ultimately be surrendered as a surplus land by the land-holder to the State but it hardly makes any difference and has little relevance to determine the question whether the rights created in favour of the State under Section 30-E of the old Law were rights 'accured' or vested right. The procedure to finally determine the quantum of the surplus area is given in the status and the rules made there under but this procedure hardly affects the rights created in favour of the State. As soon as the exact amount or 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 30-E(1)(a) and 30-E(2) vest in the State when the period prescribed under Sub-section (2) of Section 30-E 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 and to surrender the same to the Tehsildar. However, if it is not done by the land holder, 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 under Rule 9 of the old Rules. The theory of 'relating back' would undoubtedly be attracted when the question of the right of the State in the surplus land is to be determined'

Para 28:

Our views are fortified by the provisions of Sub-section (4) of sectrn 30-E of the old Act wherein it has been laid down that a person retaining possession of any land in excess of ceiling area applicable to him, shall be deemed to be a trespasser liable to ejectment from such excess land. In the scheme of this section, Sub-section (4) makes the land-holder by virtue of a legal fiction a trespasser 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 but he will be treated as a trespasser right from the date when that person unauthorisedly retained the possession of the land in excess of ceiling area after a declaration under Rule 9 of the old Law was made by him, It is not necessary that on the day of the filing of the declaration the computation of the excess land is factually completed. It is true that till the land holder 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 land holder when by virtue of a legal fiction introduced by the legislature in Sub-section (4) of Section 30-E 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 & from that date the rights of the State are perfected and cannot therefore be called inchoate rights. The landholder 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 land-holder incurred under the statute shall be governed but the provisions of clauses (c) and (e) of Section 6 of the General Clauses Act;

'The matter may also be viewed from another angle. 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 whatsoever 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 land holders to surrender their surplus lands within six months of the notified date or three months of the acquisition. The State acquired a corresponding right to enforce the liability. The land holders filed in their returns in Form IV claiming that they were entitled to retain lands in excess of the ceiling area on the ground that the lands fell within any of the exempted classes under Section 30-J, or that the transfers effected by them should be taken into account because they were permitted transfers under Section 30-DD. At the time of repeal, the pending case necessarily involved an investigation into these claims. The repeal of the old Law does not effect such investigation under Section 6 (e) of the Rajasthan General Clauses Act, and the investigation into the claims made by the land holders had still to be adjudicated upon. For without such investigation and adjudication, there could be no quantification of the ceiling area of the landholders in these pending cases. Lord Morris in delivering the judgment of their Lordships in Director of Public Works v. Ho Po (1961)2 All ER 721, observed:

It may be, therefore, that, under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. On a repeal, the former is preserved by the Interpretation Act. The latter is not.'The next argument of the appellants is that the provisions of the new Act clearly manifest the intention that after the passing of the new Rate, it is only the Act of 1973 that will govern the proceedings regarding the fixation of ceiling and the surplus area and no other law will hold the field in that matter. The first point advanced in this direction is that the repealing clause of Section 40 itself indicates that except as provided in second proviso to Sub-section (1) of Section 4 and in Sub-section (2) of Section 15 of the Act, the provision of Clause 6(A) of Section 5 and Chapter III-B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) stand repealed. On the strength of this provision of 1973 Act. all the learned counsel who addressed the court on behalf of the appellants, went on to assert that the provisions of the old Act which have been repealed by the new Act cannot be used for any other matter except for two matters, namely, when the question is to be determined under the second proviso to Section 4 of the new Act or when the old cases were reopened under Section 15 within three years from the commencement of the new Act, and if authorities come to the conclusion that the ceiling area, as determined under the old Law, was in contravention of the provisions of the repealed law (old law) then the case when reopened shall be decided in accordance with the provisions of the old Law.'

'When Section 40(1) is read with the second proviso to Section 4(1) and Section 15(2) of the new Act, no doubt is left in our mind that the legislature was conscious of the fact that such a provision was to safeguard the policy of the new Law that the ceiling are which was prescribed under the old law should firstly be reduced and if the ceiling area determined under the provisions of Section 4 of the new law exceeds the ceiling area as determined under the provisions of the old Law then the area determined under the old Law shall prevail and to that extent the proceedings taken under the old Law shall not be given a go-bye because such a provision was found necessary to be introduced in the new Law so that the legislature could stick to its policy mentioned in the Statement of Objects and Reasons that the disparity in the holdings of the agricultural land be reduced and the ceiling area be re-fixed in such a manner that most of agricultural lands be made available for the distribution to landless persons. The legislature by enacting this provision in Section 40(1) of the new Act never meant to do away with the provisions of the old Law in respect of such rights as were accrued or liabilities incurred under; he old Law which were automatically protected after the repeal of the old Law by virtue of Section 6(c) and (e) of the Rajasthan General Clauses Act. The only purpose for incorporating this provision was to see that if under the scheme of new Act the land-holder gets a larger ceiling area than what he could have otherwise got if his ceiling area had been determined under the old Law then in that event the legislature wanted to reduce that ceiling area and it is only for this purpose that the first portion of Section 40(1) was introduced in the enactment. From this provision of the law, it is difficult to infer that by introducing this provision in the new Law the legislature intended that old Law cannot be used for any other purpose except the one mentioned in Section 40(1) of the 1973 Act.'

As regards the application of the old Law in cases re-opened under Section 15 of the new Act, it is obvious that it is only an enabling section which empowers 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 celing 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. This provision, therefor, does not throw any light on the intention of the legislature and it cannot be said that the legislature by introducing Section 15(2) in the Act wanted to rule out the application of Section 6(c) an (e) of the General Clauses Act. We therefore, do not find any substance in this argument either.

12. Learned counsel for the land-holders submitted that the above case dealt only with the point whether the proceedings already commenced under Chapter-III B of the Rajasthan Tenancy Act, l955 could be governed by the old Law or the new Law. It was submitted that though they challenge even the correctness of the view taken by the Full Bench in the above case and that appeal against the said decision is pending before the Hon'ble Supreme Court, but even if the above full bench authority maybe considered as binding before this court, the ratio decidendi of the above case only applied to to such cases where proceedings had been commenced and pending under the old Law. It was submitted that the above authority is distinguishable and is not an authority for the controversy raised in the cases in hand in which admittedly no proceedings had commenced under the old Law and on the other hand, have been commenced for the first time after coming into force of the new ceiling law.

13. It was also argued by learned counsel for the land holders that the argument raised by Dr. Singhvi learned Advocate General in the above case was repealed by the court in para 25 which reads as under:

Dr. Singhvi went to the extent in making his submission that if the right created in favour of the State by the statute under Section 30-E(1)(a) without a right which really vested in the State even then such a right cannot be taken away by a subsequent legislation and on the basis of such inchoate right the State could claim protection under Section 6(c) and (e) of the General Clauses Act. We regret we cannot accept this wide contention of learned Advocate-General. This question whether Section 6 of the General Clauses Act protects the inchoate right or not under the repealed law, has been elaborately discussed by the Punjab High Court in Amar Singh Uttam Singh v. R.L. Agarwal . Justice Tek Chand has dealt with this question very elaborately and has observed:

The next argument which may be examined relates to the effect of an unqualified repeal of a statute. It is a well settled rule of interpretation, that an unqualified repeal of a statute, conferring civil rights or powers, operates to deprive the citizen of all such rights or powers which at the time of the repeal are inchoate, incomplete or unperfected or which have not accrued or become vested. Of course, rights which have become vested, are not extinguished in the absence of express words to that effect and construction of a statute is always avoided, where the result would be to impair contracts or vested rights, and for this purpose, a repealing statute would not be given a retrospective operation.

If the right acquired under a repealed Act has not developed, into a jus in rem and has not yet fully matured and is merely continuing as a jus ad rem not having progressed beyond an inchoative state, it cannot survive the repealed Act, and must fall with it unless expressly saved. The distinction between a jus in rem a right in a thing which implies an absolute dominion, and a jus ad rem a right to a thing which signifies an imperfect right, assumes considerable importance in relation to survival, when the statute under which such a right has been created is unconditionally repealed.

14. It is no doubt correct that in the Full Bench case the facts were that the proceedings had commenced under the old law, but we cannot ignore the weighty observations made in the above case as extracted above It has been clearly observed in the above case that under the provisions of Sub-section (4) of Section 30-E of the old Act, the land-holders, by virtue of legal fiction became a trespasser in respect of the excess land even though such 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, but he will be treated as a trespasser right from the date when that person unauthorisedly retained the possession of the land in excess of ceiling area after a declaration under Rule 9 of the old Law was made by him. It has been further observed that the obligation not to retain land in excess of the ceiling area arose 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 rights. The land holder also incurs a liability to part with the land and to surrender it to the Tehsildar under the provisions of the old law on the expiry of the period mentioned in Sub-section (2) of Section 30-E. Such rights of the State which have perfected today and the liability of the land holders incurred under the Statute shall be governed by the provisions of Clause (c) and (e) of Section 6 of the General Clauses Act.

15. The argument of Dr. Singhvi, learned Advocate in para 25 of the above report was repealed by the court on the ground that Dr. Singhvi had made a statement that even an inchoate right of the State could be protected under Section 6(c) and (e) of the General Clauses Act. The court repelled the above argument by observing that such wide contention of the learned Advocate General could not be accepted. However; as already discussed above, the court positively held that the right accruing in favour of the State Under Sub-section (2) of Section 30 of the Old Act was a perfected right and could not be an inchoate right.

16. In Smt. Brij Kanwar Bai v. State of Rajasthan 1978 RRD page 120 (Full Bench), proceedings under Chapter III-B of the Rajasthan Tenancy Act were instituted in the court of SDO Ramganj Mandi. It was contended before the SDO that since the old ceiling Act had been repealed by Section 40 of the new Ceiling Act, therefore, fresh proceedings could not be instituted under the old Ceiling Act after 1-1-1973 on which date, the new ceiling law had come into force. The learned SDO rejected the above contention and held that by virtue of the provisions of Section 6 of the Rajasthan General Clauses Act, fresh proceedings under the old ceiling law could be instituted even after 1-1-1973. The above decision of the SDO was set aside by a Single Bench of the Board of Revenue. Thereafter, a review application was filed and the learned Member hearing the review application, was in agreement with the view taken by the SDO but in view of the fact that contrary views had been expressed on this point by various Benches of the Board, he felt it necessary to refer the question to a larger bench. Following question was referred for decision of the larger bench 'Whether proceedings under the old ceiling law as contained in Chapter III-B of the Tenancy Act instituted after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 are valid',

17. The Full Bench of the Board of Revenue, placing reliance on the full bench decision of the High Court in Bansidhar and Ors. v. State of Rajasthan (supra) held that the question referred to them was fully covered by the decision of the Full Bench of the High Court. It was further held that the proposition that the institution of fresh proceedings under a repealed enactment, so distinguished from the constitution of pending proceedings, is also permitted by virtue of Section 6 of the General Clauses Act. The Full Bench of the Board of Revenue also considered another aspect of the matter which was raised before them. It was considered whether, apart from the provisions of the old Ceiling Act, the procedural aspects of the old Ceiling Act and the Rules made thereunder can also be saved or not by virtue of Section 6 of the Rajasthan General Clauses Act. It was held 'to begin with it may be mentioned that Section 6 of the Rajasthan General Clauses Act states that any 'investigation on legal proceeding or remedy may be instituted, continued or enforced...as if the repealing law had not been passed.' The term 'investigation', legal proceeding' and 'remedy' would cover the procedural provisions of the old law also, in as far as these are not incompatible with similar provisions in the new law. The Full Bench of the Board of Revenue, thus, answered the question referred to them as follows:

Legal proceeding under the old ceiling law, as contained in Chapter III-B of the Rajasthan Tenancy Act, can be instituted after coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 and such proceedings are valid.

18. In Pala Singh v. State of Rajasthan and Ors. 1982 RRD Page 55. Hon'ble D.P. Gupta, Acting C.J. (as he then was) held that the notice issued on 1-12-1980 under the provisions of Chapter III-B of the old ceiling law was without jurisdiction. It was held that all cases initiated under the old law and pending before competent authorities at the time when the Act of 1973 came into force, would have to be disposed of in the manner and under the provisions of the old law, but after the coming into force of the Act of 1973, the provisions of Chapter III-B of the Act were repealed and thereafter, fresh proceedings could not be initiated under Chapter III-B of the said Act. The writ petition was allowed and the notice Ex. 2 issued by the SDO (Revenue). Srikaranpur dated 1-12-1980 was quashed and the SDO was prohibited from taking any proceedings against the petitioner on the basis of the aforesaid notice.

19. Reliance was placed by learned counsel for the land holders on a Division Bench decision of the court in Chhaganlal v. The State of Rajasthan 1982 RLW Page 609 to which one of us was a party. Our attention was drawn to the following observations made in the above case:

It was contended in this regard by the learned counsel for the petitioners that before coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, the provisions relating to ceiling matters were incorporated in Chapter III-B under the Rajasthan Tenancy Act itself. It is contended that in view of the fact that Chapter III-B of the ceiling law being part of the Rajasthan Tenancy Act, all the provisions of the Rajasthan Tenancy Act should be made applicable to the proceedings arising relating to ceiling matters. In our view, there is no force in this contention as well. The Rajasthan imposition of Ceiling on Agricultural Holdings Act, 1973 which came into force on 1-1-1973 repealed the provisions contained in Chapter III-B under the Rajasthan Tenancy Act. The matter has been decided after the remand by the Assistant Collector, Baran on 27-4-1979 and obviously on this date, provisions of Chapter III-B cannot be applied. The matter would be governed by the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. This Act is a self contained Act and deals with the matter relating to ceiling on agricultural holdings. There is no question of applying any provisions of Tenancy Act specially Section 239 of the Tenancy Act in determining the question of ceiling area under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973.

20. The facts of the above case were entirely different. In the above case, the question of adoption was decided by the Assistant Collector, Baran in ceiling proceedings. Right Upto the Board of Revenue, it was held that adoption was not proved. The writ petition under Article 226 of the Constitution of India was filed against the judgment of the Board of Revenue. It was contended by Mr. Luhadia, learned counsel for the petitioner that the question of adoption was a civil right and the authority under the Ceiling Act had no right to determine this question. It was contended that under Section 207 of the Rajasthan Tenancy Act only suits and applications of the nature specified in the third schedule could be heard and determined by the revenue courts. Attention was also invited to Section 239 of the Rajasthan Tenancy Act which laid down that if in any suit or proceeding in a revenue court, a question of proprietory right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction, the revenue court shall frame an issue on the question of proprietory right and submit to the competent civil court for the decision of that issue only. The court repelled the above contention by making observations quoted above. Thus, there was no controversy in the above case with regard to the question raised in the case in hand, before us and the only controversy was whether the provisions of Sections 207 and 239 of the Tenancy Act could be made applicable or not in matters arising under the ceiling law.

21. The facts in Mehant Srinath v. S D.O. S.B. Civil Writ Petition No. 113/76, decided by P.K. Banerjee, C.J. on 13-1-1984, were that two notices being Annexure-8 under the new law and Annexure-9 under the old law were issued. It was held that the old law had been omitted and repealed by new Ceiling Act of 1973. Thereafter, another notice was given under the new law. The respondent cannot proceed both under the old law and new law at the same time and more so, when Ch. III-B of the Rajastan Tenancy Act was omitted. It was further observed that in this view of the matter, the only course open to the respondent was to issue notice as they have done in Annexure-8 under the new law. The petitioner was held entitled to file objections to the notice claiming exemption under Section 22 of the new law.

22. In Smt. Pari Devi v. State Rajasthan RLW 1984 Page 320 decided by P.K. Banerjee, C.J. the facts were that ceiling proceedings were initiated under the old ceiling law and were dropped by the SDO, Ganganagar, by order dated 17-3-1972. Subsequently, the proceeding was initiated under the new ceiling law. All these were also dropped on 19-11-1975. The State Government ordered re-opening of proceedings under the old ceiling law on 19-10-78. It was held by the court 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 proceedings under the new ceiling law, it was found that transfers were bonafide and the area after the transfer was not surplus. This order had become final as the State Govt. did not challenge the order by preferring an appeal as was incumbent under the law. Thereafter, the State Government, proceeded under Section 15(2) of the ceiling law by which old ceiling cases could be re-opened. It was held by the court that after the proceedings had been initiated and culminated in favour of the petitioner under Section 15(4) of the new ceiling law, it was not open to the respondent to proceed again under 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. It was thus held that proceeding under Section 15(2) was on the fax of it, without jurisdiction.

23. In Pratap Singh v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 913/76 decided on July 27, 1984 by D.P. Gupta, J, the facts were that on November 27, 1973, a notice (Annexure-5) was issued to Pratap Singh s/o Chhagan Singh deceased under Section 11 (1) of the new Ceiling Act. Thereafter, another notice was issued to Pratap Singh on February 15, 1975 (Annexure-6) under Rule 10 of the Rajasthan Tenancy (Fixation of Ceiling on Agricultural Land) Rules, 1963, calling upon him to file a declaration for the purpose of determination of the ceiling area applicable to him under Chapter III-B of the old ceiling law. A return was filed by Pratap Singh on December 1, 1975 in pursuance of the aforesaid notice issued under the old ceiling law. The Assistant Collector determined the ceiling area under the old ceiling law. The contention was raised that after the repeal of the old ceiling law and on the promulgation of the new ceiling law, proceedings under the old ceiling law could not have been initiated by a notice dated February 15, 1975. It was held that after the repeal of the old ceiling law, the notice could not have been given to the petitioner and proceedings could not have been initiated against him for the determination of the ceiling and surplus area under the repealed law. At the time when the notice Annexure-6 was issued, Chapter III-B of the old ceiling law had already been repealed and notice could not have been issued under the repealed law. It was thus held that the entire proceedings taken by the Assistant Collector on the basis of aforesaid notice, were without jurisdiction. The proceedings were thus quashed and the Assistant Collector, Kota was prohibited from taking any proceedings against the petitioner on the basis of the notice Annexure-6. However, the Assistant Collector was held to he free to take any proceeding against the petitioner under the new ceiling law.

24. In Gopal and Anr. v. The Sub-Divisional Officer and Ors. S.B. Civil Writ Petition No. 1006/76 decided on Sept 27, 1984 by M.C. Jain, J., the facts were that the petitioner Gopal had submitted a declaration in respect of his holdings that the total land consisted of 183 bighas and 2 biswas. The petitioner had half share and the remaining half belonged to his son Janki-lal. The SDO hold that there were 2 units, one of the declarant Gopal and the other of his co-tenant Jankilal and on this basis, after excluding 60 standard acres of land, it was ordered that 30 standard acres may be resumed. An appeal was preferred before the Revenue Appellate Authority. The Revenue Appellate Authority remanded the case back to the SDO by order dated May, 14. 1975 with a direction that notice may be issued to Jankilal under Rule 14 of the Rajasthan Tenancy (Fixation of Ceiling on Land) Government Rules, 1963. After notice to Jankilal, the SDO ordered to resume 5.65 standard acres of land each of Gopal and Jankilal. The appeal before the Revenue Appellate Authority and the revision before the Board of Revenue were dismissed. M.C. Jain, J. placed reliance on Prithvisingh's case decided by Hon'ble the Chief Justice, which is subject matter of challenge in these special appeals, and held that even if the petitioner Jankilal was a trespasser over the excess land, still, he had to be dealt with in accordance with law. It was further held that the proceedings taken against the petitioner were void as the same could not be initiated under the old ceiling law after the coming into force of the new ceiling law. The writ petition of Gopal was dismissed but the writ petition filed by Jankilal was allowed. It was directed that ceiling proceedings against him, under the old law, be quashed. However, it would be open to the competent authority to determine the ceiling area of the petitioner Jankilal in accordance with law.

25. We have given our thoughtful consideration to the arguments advanced by learned counsel for the parties, and have considered the cases decided by this court referred to above and the relevant provisions of law in this regard. The entire controversy hinges in the interpretation and scope of proviso 2 to Sub-section (1) of Section 4 of the new ceiling law read with Section 40. Section 40 is a repealing as well as saving section. It clearly saves the provisions of second Proviso to Sub-section (1) of Section (4) and Sub-section (2) of Section 15 of this Act, while repealing the provisions of Chapter III-B of the Rajasthan Tenancy Act, 1955. Exception has also been provided for the Rajasthan Canal Project Area with which we are not concerned. The provision of second proviso to Sub-section (1) of Section 4 has been expressly saved. According to this proviso it has been clearly provided that if the ceiling area applicable to any person or family in accordance with this section, exceeded, the ceiling area applicable to such person or family, according to the provisions of law repealed by Section 40, in (hat case, the ceiling area applicable to such person or family will be the same as was under the provisions of the said repealed law. In our view, there is no difficulty in applying the provisions of this proviso even in a case initiated, for the first time, under the new ceiling law. The intention of the legislature in laying down this proviso in the new ceiling law is very clear, that in case the ceiling area applicable to any person or family in accordance with new ceiling law exceeded the ceiling area under the old ceiling law in that case, the ceiling area shall be determined as applicable under the old ceiling law, though repealed by the new ceiling Act.

26. In our view, much of the controversy raised by learned counsel for the land holders, and decided by learned Single Judges of this court, in cases referred to above, is unnecessary and un-real. If the proceedings had already been initiated or commenced, under the old ceiling law, the Full Bench of this court in Bamhidhars case (supra) has already decided that the would be completed and decided under the old law, and even learned counsel for the land holders before us were not assailing that position. So far as the proceedings, having already been initiated under the old ceiling law and also completed, have been permitted to be re-opened under Section 15(2) of the new ceiling Act, not with standing the provisions of repeal contained in Section 40. It. cannot be the intention of the legislature to put at a more advantageous position, such land-holders who had failed to file returns under the old ceiling law though it was their duty to do so, from such land holders who were law abiding and had filed returns under the old ceiling law. In order to remove such anamolous situation, the legislature itself has laid down proviso two to Sub-section (1) of Section 4 in the new Act. In the cases before us, the petitioners have themselves filed returns under Section 10 of the new ceiling law. Section 11 of the new ceiling law gives a power to the authorised officer to collect information in cases where a person fails to furnish the return under Section 10 or furnishes an incomplete or incorrect return. The SDO, Ramganj Mandi had issued notice (Annexure-4) and had fixed 7-8-1975 for deciding the question of land in excess of ceiling area. According to this notice the SDO had received report from the Tehsildar and thereafter, he had issued notice. In this notice, the SDO had mentioned that on the aforesaid date, the petitioner should appear and in case the petitioner would not appear, then orders in accordance with law shall be passed under the provisions of Chapter III-B of the Rajasthan Tenancy Act, 1955 and the Ceiling Rules of 1963. Thus, in case the SDO, after receiving the report from the Tehsildar thinks it proper to determine the ceiling area under proviso 2 to Section 4(1), he can do so even under the new law. Mention of any particular Rule or Section in such notice is not of much substance and the entire proceedings cannot be quashed merely on the ground of wrong mention of any Rule or Section in such notice. If the intention of the petitioners by filing these writ petitions is that their ceiling area cannot be determined under the old law, even if such area was less under the old ceiling law and more under the new ceiling law, they cannot succeed in violation of the clear provisions contained in the proviso. It makes no difference whether the proceedings are called as being continued under the old ceiling law or the new ceiling law, but the substance of the matter is whether the authorised officer can apply or not the provisions of the proviso 2 to Section 4(1) of the new ceiling law. If in the opinion of the authorised officer, the ceiling area applicable to such person under the new ceiling law exceeds the ceiling area applicable to such person or family under the old ceiling law, then, he is certainly entitled to make an enquiry and ask the petitioner to submit a reply or other information as clearly laid down in proviso 2 to Section 4(1). Even the learned Chief Justice while deciding all these cases in the impugned order has observed that whether the respondents can given notice under the new Act and decide the matter under the old Act, was not for him to be decided because it has been already decided by Division Bench of this court in Sumitra Kaur v. Authorised Officer, Sriganganagar 1977 RLW 423. It was further observed that he could take proceeding under the new Act, but the same must be decided under the old Act and in the matter of computation of the quantum, the old Act must be given effect to in proceeding under Section 11 of the new Act of 1973. In the last portion of the impugned order it was further observed that the respondents will be at liberty to take such proceedings if they are entitled to for the purpose of deciding the ceiling area of the petitioners. The notice and orders thus passed by the Dy. Secretary to Government, Revenue (Ceiling) Deptt. and the Authorised Officer cannot in our view be quashed in toto and the direction should have been given to continue the proceedings under the new ceiling Act, but to allow the authorised officer to act under proviso 2 to Sub-section (2) of Section 4 of the new ceiling law, if he chose to do so.

27. We may further make it clear that there is no force in the contention of learned counsel for the land holders that even if proviso 2 to Sub-section (1) of Section 4 is applied, the authorised officers can only determine the ceiling area applicable to him according to old law, but the question of definition of 'family', recognition of transfers etc., should be determined according to the provisions of the new ceiling law. In other words, the contention of the learned counsel for the land holders is that the provision of the proviso 2 to Sub-section (1) of Section 4 of the new ceiling law is only restricted for the purpose of calculation of ceiling area according to new or old law, but all other matters like definition of family, recognition of transfers, vesting of surplus land, selection of land within ceiling area, determination of amount for acquisition, should all be governed by the provisions of the new ceiling law. We find no force in this contention. In our view, so far as the provisions which have direct bearing in the calculation of the ceiling area like, who can he included in the definition of family, recognition or non recognition of certain transfers etc. will be applied as contained in the old ceiling law if the authorised officer wants to bring the case under proviso 2 to Sub-section (1) of Section 4. If the contention of learned counsel for the land holders is accepted, this would make the provisions of the second proviso totally redundant and otiose. If their contention is accepted and the area is calcuated by taking the definition of family and recognition of transfers under the new Act, the question of applying the provisions of old ceiling law will be out of question. This would also result in giving un-fair advantage to the petitioners and other land holders who had failed to file their returns under the old ceiling law even though they had become trespassers over the excess land and in which the right of the State Government had perfected. It is, however, made clear that the authorised officer shall apply the provisions of the repealed law when it arrives to a finding that the ceiling area applicable to any person or family in accordance with Section 4 of the new ceiling law exceeds the ceiling area applicable to such person or family according to the provisions of law repealed by Section 40.

28. It may be mentioned that the ceiling law on agricultural holdings is a socio-economic law. The main object of the Ceiling Act is not to acquire property to dispose it of at a profit, but to acquire land from the persons in whose hands the land is concentrated, and for fair distribution of such land to landless agriculturists and other deserving persons with a view to remove disparity in the holding of agricultural lands. Thus, ceiling law is one of the additions in the series of legislations adopted for land reforms and acquisition of lands from the hands of persons with whom large chunk of lands is concentrated. The motive behind the Act is to advance socialism and ensure equitable distribution of agricultural lands as laid down in Article 39 of the Constitution of India for securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. Determination of ceiling area and surplus area is the main back-bone of the entire ceiling law. Thus, it cannot be the intention of the legislature that those persons who were required to surrender more land under the old ceiling law, may get benefit of surrendering less land under the new ceiling law.

29. In the result, we allow all these special appeals and set aside the judgment of the single Judge and direct that the entire proceedings pending before the concerned authorised officers shall not be quashed, but the same will continue under the new ceiling law and the authorised officer would be competent to determine the ceiling area under the old ceiling law if they chose to do so, in accordance with the observations made above. The parties shall bear their own costs throughout.


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