GULAB SINGH Vs. STATE OF RAJASTHAN & ORS.

JUDGEMENT

(1.) This intra Court appeal is directed against order dated 29.7.2002 of the learned Single Judge of this Court, whereby the writ petition preferred by the respondents No. 7 to 10 herein, questioning the legality of proceedings initiated against them under Sec. 91 of Rajasthan Land Revenue Act, 1956 (for short "Act of 1956 ") in respect of the agriculture land, ad measuring 819.09 bighas, comprising Khasra Nos. 1364, 38, 34 and 36, situated at village-Nimbasar, Tehsil-Shiv, District-Banner and seeking directions to open mutation in respect of the said land in their name, has been allowed.

(2.) The relevant facts in nutshell are that the ceiling proceedings were initiated against Sagat Singh, Chandan Singh, Kanwraj Singh and Gemar Singh, under the Chapter 111 B of Rajasthan Tenancy Act, 1955 ('Old Ceiling Law'), who were joint khatedars of a chunk of land. The ceiling proceedings were concluded vide order dated 17.9.1971, whereby 13-3/4 Standard Acre (S.A.) land was declared surplus and 133-3/4 S.A. land was given to the assesses being in the prescribed ceiling limit. On 22.2.1983, the Government of Rajasthan directed to reopen the ceiling case against the assessees under Sec. 15 (2) of Rajasthan Imposition of Ceiling on Agriculture Holdings Act, 1973 ('New Ceiling Law') and the Collector, Barmer was authorised to proceed afresh after reopening of the ceiling proceedings. After extending an opportunity of hearing to the assessees, the Collector, Barmer vide order dated 2.12.1992 arrived at the conclusion that Sagat Singh and Kanwraj Singh were not having the land in excess of the prescribed ceiling limit whereas, 20.5 S.A. land of Gemar Singh and 74.5 S.A. land of Chandan Singh were declared surplus. The order passed by the Collector, Barmer was not challenged by the assessees and the same attained finality. In the meanwhile, the father of the respondents No. 7 to 10 herein, filed a suit for declaration in respect of the land ad measuring 819.09, comprising Khasra Nos. 1364, 38, 34 and 36 in the Court of Assistant Collector, Barmer, wherein Chandan Singh, Gemar Singh and Sagat Singh were the defendants. By way of written statement, the defendants admitted the claim of the plaintiffs as set out in the plaint. Consequently, the suit was decreed on 13.7.1971 and pursuant thereto, the mutation of the above land was open in the name of the respondents No. 7 to 10 on 2.2.1973 and they remained in possession of the said land thereafter. After conclusion of the ceiling proceedings under the New Ceiling Law, the assessees, Chandan Singh and Gemar Singh, surrendered the surplus land comprising Khasra Nos. 34, 36 and 1364 for vesting in the State Government, which have been in possession of the respondents No. 7 to 10 herein, by virtue of the decree passed in their favour by the Revenue Court of competent jurisdiction. The respondents No. 7 to 10 came to know about the factum of their land being surrendered by Chandan Singh and Gemar Singh, when they were served with the notices under Sec. 91 of the Act of 1956, for their eviction front the land alleging it to be in their unauthorised occupation. The respondents No. 7 to 10 appeared before the Sub Divisional Officer, Barmer, on 14.9.1995 and made an application stating that the assessees are holding unencumbered land and therefore, instead of taking their land, the Tehsildar be directed to take unencumbered land in possession of the assessees, but to no avail. Since, the Tehsildar, Shiv was pressing hard for taking possession of the land occupied by the respondents No. 7 to 10, they preferred the writ petition before this Court, questioning the legality of the proceedings initiated under Sec. 91 of the Act of 1956 and prayed for reopening of the mutation of the land in their name as also to take possession of unencumbered land of inter alia the appellant herein to the extent the land held by them is declared surplus in the ceiling proceedings.

(3.) The writ petition was contested by the State, taking the stand that during the ceiling proceedings, it was prayed on behalf of Sagat Singh and others that the decree passed in favour of Basta (the father of the respondents No. 7 to 10 herein), Gokula and Chhota may be recognised and the land covered under the decree measuring 819.09 bighas be exempted from the land held by Sagat Singh, however, the Collector after due consideration opined that the land in question cannot be exempted for the reason that the said ex parte decree was passed in collusion without hearing the persons affected. Precisely, the stand of the State was that the ex parte decree passed being collusive, the transfer of mutation were not recognised for the purpose of Sections 30D and 30DD of the Old Ceiling Law by the Collector and since, the said land was surrendered by the land holders and taken possession of and mutated in the revenue record in favour of the State Government as siway chak, the writ petitioners, respondents No. 7 to 10 herein, were rightly treated as trespasser over the land and thus, the proceeding initiated under Sec. 91 of the Act was well within the jurisdiction of the Tehsildar, Shiv.