AMIL LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HON'ble J. R. CHOPRA, J.- By this writ petition the petitioner has challenged Annex. 1 dated 1. 6. 1981 the order of the Deputy Secretary Revenue (Ceiling) whereby ceiling case which was earlier closed has been reopened and Annex. 2 the order of the Addl. Collector, Sri Ganganagar dated 12. 11. 1984 whereby the learned Addl. D. M. has held that deceased Agriram was possessed of 115 bighas and 8 Biswas of the land in excess of the ceiling area and, therefore, that stands vested in the Government. He was given a choice to disclose his option within 7 days as to which particular land he wants to surrender and if he does not do so, then the Tehsildar Bhadra will be free to attach his unencumbered land according to his own wisdom. In pursuance of the aforesaid order as also the order of the learned Member of Board of Revenue passed in appeal dated 3. 7. 1989 marked as Annex. 3 whereby it has been held that the assessee Shri Agriram was in possession of 57 Bighas and 14 biswas of land in excess of the ceiling area instead of 115 bighas and 8 biswas of Nehari land as held by the Addl. Collector, Sri Ganganagar. The Tehsildar has attached and acquired the aforesaid land of the petitioners on 3. 1. 1990 and here this writ petition to challenge this attachment.

(2.) FACTS necessary for the disposal of this writ petition briefly stated, are that Shri Agriram was the father of petitioner Shri Amilal and grand-father of respondent no. 5 Nathuram son of Rajas who has now been ordered to be transposed as petitioner- It is alleged that Shri Agriram was possessed of 290 bighas and 4 biswas of land out of which the 75 bighas land was uncommand land which was equated by the Additional Collector to 25 bighas of Nehari land and consequently it was held that the assessee was possessed of 240 bighas and 4 biswas of command land. The Additional Collector held that the family of Agriram was entitled to retain 124 bighas and 16 biswas of command land, therefore, he ordered for the acquisition of 115 bighas and 8 biswas of land which was reduced to 57 bighas and 14 biswas by the Revenue Board vide Annex. 3. Against that order the petitioner earlier filed a Division Bench writ petition No. 341/90 on 25. 8. 1989 but that later on came to be withdrawn on 19. 1. 1990 with permission to file fresh writ petition. Hence this writ petition.

(3.) A bare reading of Section 30e will show that a duty is cast on the assessee that from the date notified by the State Government in this behalf which happens to be 1. 4. 1966 in this case he cannot hold or retain land in his possession in any capacity or under any tenure whatsoever in excess of the ceiling area applicable to him and it is his duty to surrender that land which is in excess of the ceiling area and if he fails to do so intentionally and fails to make a report about it or surrender the land as required by sub-section (2) of section 30e of the Rajasthan Tenancy Act, he is not only liable to conviction under Sub-section (3) of section 30e but sub-section (4) of section 30e further provides that without prejudice and in addition to the conviction and fine which may be imposed on the assessee retaining possession of any such land in excess of the ceiling area applicable to him, he shall be deemed to be a trespasser on such land liable to ejectment from such excess land and to pay a penalty in accordance with clause (a) to sub-section (1) of section 183 of the Rajasthan Tenancy Act. Thus a duty has been cast on the assessee to surrender the land. Rules have been framed to carry out the mandate of Chapter 1i1-B of the Rajasthan Tenancy Act and they are Rules of 1963. Rule 21 pertains to contents of the Sub-Division Officer's order. Reference has been made to sub-clause (9) of rule 21, That pertains to sub-section 1 (b) of section 30e and that has no application to the facts of the present case. It is not the case of an acquisition or purchase or gift, mortgage or assignment by the assessee. Sub-clause (12) of Rule 21 of Rules of 1963 however provides that if the assessee is liable to ejectment under sub-sec. (4) of sec. 30e the particulars of the land from which he is to be ejected shall be given and the Sub-Divisional Officer shall see these are unencumbered lands. Sub-clause (12) and (13) of rule 21 of the Rules of 1963 provides that the Sub-Divisional Officer should carefully specify the area inordinary aeres, khasra numbers, soil classification etc. of the surplus land that will vest in the State under sub-sec. (5) of sec. 30e of the Rajasthan Tenancy Act. Although the section imposes a duty on the assessee to surrender the land and not to retain it and if he retains it he is treated as a trespasser liable to be ejected under section 183 of the Rajasthan Tenancy Act but still a duty has also been imposed on the SDO to specify the land which he hold to be surplus land over and above the ceiling area and that has to be specified by him i. e. from which particular land the assessee has to be ejected. So far as possible that land should not be an encumbered land. The S. D. O. should specify its area in ordinary acres, the khasra numbers of land to be acquired, soil classification of the land etc. Of course when the Additional Collector passed the order he did give a choice to the petitioner to surrender unencumbered land to the extent of 115 bighas 8 biswas within a period of 7 days, but it was further ordered by him that if the petitioner does not surrender his land or submits his option, the Tehsildar Bhadra was ordered to attach his land to that extent as per his own wisdom. Keeping in view the fact that the land which is attached should be unencumbered land. This could not have been done as per sub-clause (12) & (13) of Rule 21 of the Rules of 1963 which read as under:- " (12) Whether he is liable to ejectment under sub-section (4) of Section 30e; the particulars of the land from which he is to be ejected shall be given and the Sub-Divisional Officer shall see whether these are unencumbered lands. (13) The Sub-Divisional Officer should carefully specify the area, in ordinary acres, Khasra numbers, soil classes etc. of the surplus land that will vest in the State under sub-section (5) of section 30e. "