BHERA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE 26 are writ, petitions where in orders passed by he Sub -Divisional Officer, Sojat, (respondent No. 3) dated 18.9.75 and the Revenue Appellate Authority, Jodhpur (respondent No. 5). dated 26.3.76 in ceiling proceedings in relation to the lands held and transferred by respondent No. 4 in favour of the petitioners, have been sought to be quashed.

(2.) THE petitioners have averred in their writ petitions that they are agriculturists domiciled in Rajasthan within the defnition of the term as given in explanation to Section 30DD of Chapter III of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act') They are permanently residing In Rajasthan since birth and earn their livelihood wholly from agriculture and cultivate their lands by their own labour and the labour of the members of their family They being landless cultivators as defined in the Act purchased Agricultural lands described in para 2 of the writ petitions not exceeding 30 acres from respondent No. 4. Except in four writ petitions, in all the other writ petitions, the lands are said to have been purchased on 28.3.61. In writ petitions Nos. 1462/76, 1572/76, 1590/76 and 1600/76. the dates of purchase are said to be 18 6 61, 26 6 66, St. 2023 and St. 2023 respectively. If was alleged that after the purchase of the land, possession was handed over by respondent No. 4 to the petitioners and the lands were duly mutated in their names and their names were entered and recorded in the records of rights as well, in place of respondent No. 4 and thus the petitioners became 'khatedar' tenants of the land. It was also averred by the petitioners that they are In possession of less than thirty standard acres within the ceiling limit. The petitioners in their writ petitions gave the history of the litigations wherein vires of the provisions of Chapter III B were challenged and stated that on coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973, replaced by the Raj. Imposition of Ceiling on Agricultural Holdings Act, 1973, the writ petitions were dismissed by a common short order on submissions of the counsel that they had become in fructuous. It is common ground between the panics in view of the settled portion of law that the old cases would be governed by the old law and as such it is not necessary to go into various grounds on the basis of which the impugned orders were sought to be challenged The petitioners have alleged that respondent Mo. 3 initiated ceiling proceeding against respondent No. 4 in respect of lands held by hi n including the petitioners' lands The respondent No. 4 -mentioned in his declaration form etc. that, he had sold the lands described In para two of the writ petitions to the present petitioners and they are in possession of the same as 'Khatedar' tenants. Their lands should not be included in his lands and those lands are entered in their names in the record of rights. The learned Sub -Divisional Officer, Sojot, respondent No. 3, by his order dated 18 9 75 did not recognize the transfers on the ground that respondent No. 4 led no evidence and failed to prove the transfers The respondent No. 4 preferred an appeal against the order of the Sub -Divisional Officer, bat his appeal was dismissed by the learned Revenue Appellate Authority and the learned Revenue Appellate Authority did not allow the application under Order 41, Rule 27 CPC, for production of additional evidence. The respondent No. 4 made a prayer to produce and prove mutations, sale -deeds etc., but the respondent No. 4 was not allowed to adduce any additional evidence. The respondent No. 4 thereafter did not avail of any further remedy against the order of the learned Revenue Appellate Authority and he opted the surrender of the lands including the petitioners lands sold by him to the petitioners. The only ground of attack made on behalf of the petitioner in these writ petition before me is that the petitioners were not afforded any opportunity of being heard. No notice what so ever was issued to the petitioners. The petitioners can not be deprived of their lands in pursuance of the orders passed at their back whereby the transfers effected by respondent No. 4 in favour of the petitioners, though valid under the law were not recognized. According to the petitioners the provisions of Chapter IIIB of the Act were amended from time to time and with effect from August 18, 1970 a new provision Section 30DD was added by Act No. 14 of 1970 Section 30D makes a provision for non -recognition of certain transfers for fixing ceiling area under Section 30D Voluntary transfer on or after 25 -2 -1958 by way of partition, or in favour of person who was landless person before the said date and continued to be so till he date of transfer, only were saved. All other transfers shall be deemed to be transfer calculated to defeat the provisions of this Chapter. The petitioners case is that be introduction of Section 30DD, the legislature gave a mandate for recognition of certain transfers under this provision. The petitioners have averred that their transfers are covered under this provision and transfers ought to have been recognised as transfers of lands not exceeding thirty standard acres were made prior to 31 -12 -69, and they were made in favour of agriculturists domiciled in Rajasthan The petitioners were not given an opportunity to prove transfers in the it favour and the Sub -Divisional Officer and the Revenue Appellate Authority passed the impugned orders in complete disregard of the accepted principle of natural justice audi alteram patter The petitioner Bhera Ram and two others along with their writ petitions submitted a photostate copy of the registered sale deed dated 18 6 64 and a certified copy of the 'jamabandi' si. 2031 to st 2034 In the other writ petitions the petitioners submitted certified copies of the mutations and certified copies of the 'jamsbandis' in their favour. The Sub -Divisional Officer in disregard of the statutory presumption of correctness of the entries in the records of rights under Section 140 of the Rajasthan Land Revenue Act without holding an inquiry, as contemplated under Rule 14 of the Rajasthan Tenancy (Fixation of Ceiling of land) Government Rules, 1963 (hereinafter referred to as 'the Ruhs') after notice to the petitioners, did not recognize the transfers, which has highly prejudiced the petitioners' rights and interests in the lands. The petitijeers have prayed for quashing of the orders on the grounds stated above.

(3.) MR . M.L. Shrimali, learned Counsel for the petitioners, vehemently and strenuously contended that the Sub Divisional Officer, while enforcing and functioning under the ceiling law is required to act quasi judicially. He referred to the scheme of the Rules contained in Chap. Ill regarding fixation of ceiling on land and Urged that the land holders and tenants are required to file their declarations under Rule 9 and under Rule 10 the Sub Divisional Officer may issue notice to any land holder or tenant calling for declarations within such time as may be specified in the notice and under Rule 12 after receipt of the declarations either under Rule 9 or Rule 10, the Sub Divisional Officer is required to forward to the tehsildars concerned the declarations with instructions to check the particulars given in the declarations with reference to the entries in the various records mentioned in Rule 12. The Tehsildar then is required to submit a report in respect of the accuracy or inaccuracy of such entries. Then under Rule 14 the Sub Divisional Officer is required to issue notice to the land -holders and tenants informing them of the receipt of the Tehsildar's report and calling them to appear if they wish to be heard before he (Sub -Divisional Officer) determines the ceiling area applicable to such person. If the land -holder or tenant appears, he shall be given a hearing, otherwise the Sub Divisional Officer shall, on the basis of the tehsildar's report and 'such further inquiry, if any, as he may deem fit to make' proceed to determine the ceiling area, in accordance with Rules 15 to 21. The learned Counsel then referred to Rule 21, which lays down the contents of the Sub -Divisional Officer's order. The Sub -Divisional Officer is required to state in the order the particulars of the transfers as detailed in Clause (5) and he is also required to mention as to whether the transferee has claimed the refund of the consideration money, if so, his decision thereon. The learned Counsel submitted that it is true that under Section 30D of the Act the burden is placed on the transferor to prove the transfer falling under Clause (i) or Clause (ii) of Sub -section (1) of Section 30D, but no such provision is embodied in Section 300 Besides that from the provision of the burden of proof it should not be taken that inquiry in respect of transfer is not required to mike in the presence of the transferee. Rule 14 does not prohibit holding of an inquiry in the presence of the transferee. This provision keeps open for the Sub -Division a! Officer to hold such further inquiry as he may deem fit to make and under this provision it was essential for the Sub -Divisional Officer to hold an inquiry after notice to the transferees, as they were vitally interested, being in possession of the lands which, stand already matured in their names and entered so in the records of right. The learned Counsel urged, firstly, Rule 14 should be so construed Secondly, even if it is not so construed, still it was obligatory for the Sub -Divisional Officer, white functioning as a quasi judicial tribunal to have afforded an opportunity to the transferees of being heard, so that their rights and interest in the lands may not be prejudiced After the lands having been transferred, as provided under Section 30DD, the transferor ceased to have any interests, whatsoever, in the lands transferred and the transferees cannot be made to suffer far inaction, and negligence on the part of the transferor. If an opportunity would have been afforded to the transferees they would have established that the transfers in their favour were in conformity with the provision of Section 30 D and are valid and legal transfers. The learned Counsel urged that in Bhera Ram's case, Bhera, Ram, Bhanwara Ram and Rajaram purchased 39 'bighas' 10 'biswas' land for a sum of Rs. 1000/ - through a registered site -deed on 18 -6 -64 and their names were entered in the records of rights in pursuance of the sale -deed. Similarly the other transfers were also valid The Revenue Appellate Authority did not even afford an opportunity to produce additional evidence to the transferor. The learned Counsel urged that this could not be the intention of the legislature that the transferees of lands under valid transfers may be deprived of their lands on account of inaction or slackness on the Dart of the transferor The learned Counsel supported his submissions by reference to decisions on analogous laws of Punjab and Hiryana High Court and Assam and Nagaland High Court, which are, S. Balwant Singh Chopra and Ors. v Union of India and Ors. (FB); Hirnek Singh and Anr. vi The State of Punjab and Ors. ( FB); Associated Industries Assam Ltd. v. Sub -Divisional Officer (Sadar), Gouhati and Ors. AIR 1972 Assam and Nagaland 4 and Gurcharan Singh and Ors. v. Prithi Singh and Ors. : AIR1974SC223 . Support has also been taken from the exposition of principles of natural justice made by the Supreme Court in A.K. Kraipak and Ors. v. Union of India and Ors. : [1970]1SCR457 .