AMILAL Vs. STATE OF RAJASTHAN & ORS

JUDGEMENT

(1.) 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 Add1. Collector, Sri Ganganagar dated 12.11.84 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 3.7.89 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 Nahari land as held by the Addl. Collector Sri Ganganagar. The Tehsildar has attached and acquired the aforesaid land of the petitioners on 3.1.90 and hence 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 25.8.1990 but that later on came to be with drawn on 19.1.1990 with permission to file fresh writ petition. Hence this writ petition.

(3.) It is alleged that Annex. 1 dated 1.6.81 is against the principles of natural justice and void as Agriram has expired in the year 1974. The State Govt, issued no notice under section 15(2) to the petitioner & respondent No. 5 before the reopening of order passed by the Dy. Secretary Revenue (ceiling) dated 2.11.72. The Additional Collector after reopening of the case ignored the Tehsildar's report and the Revenue Board also committed an error in not dividing the land in three shares. The land is governed by Chapter III-B of the Rajasthan Tenancy Act and the Rajasthan Tenancy (Fixation of Ceiling on Land) (Government) Rules, 1963, hereinafter referred to Rules of 1963. It has been claimed that rule 19 of these Rules is ultra vires to the Constitution. The Additional Collector has directed the Tehsildar to take possession of unencumbered land of petitioner Agriram. This order is illegal and without jurisdiction. The Additional Collector has no authority to delegate his powers conferred upon him by law to the Tehsildar and to take possession of the land of his choice from Agriram and Tehsildar had no jurisdiction to decide the nature of the unencumbered and encumbered land to be acquired from Shri Agriram. The Patwari has attached the petitioner's 57 bighas and 14 biswas land and its crop has been ordered to be auctioned on 22nd Jan., 1990. This order of the Additional Collector is against sub-rule (9) and sub-rule (13) of Rule 21 of the Rules of 1963 and section 30E of Chapter III-B of the Rajasthan Tenancy Act. The Tehsildar has also not taken any steps under section 91 of the Land Revenue Act against the petitioner and therefore, it has been claimed that firstly rule 19 of the Rules of 1963 be declared invalid and ultravires and orders Annex. 1, 2 and 3 be quashed and the respondents be restrained from interfering with the cultivatory possession of the petitioner. Later an amendment application was filed by Nathuram to transpose himself as a petitioner. One more application was filed by Shri B.L. Purohit on behalf of petitioner Amilal to quash the order of the Tehsildar dated 1.1.1990 Annex. 5. It has been prayed that proceedings for taking possession of land dated 3.1.1990 Annex. 6 be quashed. An amendment was sought in the prayer adding relief No. 3 for quashing Annex. 5 & 6. Although, the copy of this application was supplied to the Government Advocate on 14.10.1992 and the application was presented in the Court on the same day but it was not dealt with by the office. Only the application filed on behalf of respondent No. 5 Nathuram to transpose him as petitioner was dealt with by the office on 19.10.1992 and it was ordered by the office that it be listed before the court on 22.10.1992. It was that application for amendment which was allowed. No orders have been passed on the application dated 14.10.92. It has not been dealt with by the office. However, no compliance of the order on the application filed by Nathuram has been made and amended cause title has not been filed and instead the amendment application incorporating amendments sought through the application dated 14.10.92 has been filed. This is a mistake apparent on the face of the record. Be that as it may, a fourth stay application was also filed with a prayer to restrain the Tehsildar from auctioning the crop of the petitioner on the disputed land. On 8.7.93 it was ordered that the crop may be attached and possession of crop be retained with the Tehsildar but he will not cut it and auction it without obtaining orders from the court. This was an order passed on the fourth stay petition. On the third stay petition an order came to be passed orr 4.6.90 that land in question shall not be put to auction. By this order no restraint was put on the Tehsildar not to auction the crops. No restraint was also put on the Tehsildar not to hold this land under attachment. Only restaint put was not to auction the land. In this view of the matter, the Division Bench authority cited on behalf of the petitioner i.e. Hiralal Sharma Vs. Railway Sahakari Bank Ltd.,1983 WeeklyLawNotes 301 has no application to the facts of the present case. No order was passed on the second stay petition. On the first stay petition on 22.1.1990 it was ordered that meanwhile the standing crops on the land may be released provided the petitioner furnishes security to the extent of the valuation of the crops to the satisfaction of the presiding officer. That pertains to the standing crop on the disputed land in the year 1990. The attachment order was not disturbed.