1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.1021/1998 Onkarnath Bhargava Vs. Board of Revenue, Ajmer & Ors. Date of Order :: 11th February, 2010 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.N.K. Joshi for petitioner. Mr.Parag Rastogi] Mr.L.N. Boss ] for respondents. ***** By way of this writ petition, a challenge has been made to the orders at Annexures-4,5,6, & 8 of the writ petition. It is submitted that petitioner was subjected to Old Agricultural Ceiling Law and after due consideration, matter was decided in his favour holding that he is not having excess land to the ceiling limit. In those proceedings, it was mainly considered that major portion of the land is under the urban area. The petitioner was then subjected to proceedings under the New Agricultural Ceiling Law i.e. pursuant to the provisions of Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short 'the Act of 1973'). It is stated that New Act for agricultural ceiling was brought in the year 1973 and thereupon petitioner was served with a notice under Section 11 of the Act of 1973. This was precisely with the allegation that petitioner failed to submit information/return as per the 2 provisions of Section 10 of the Act of 1973. The matter was thereafter decided by the Sub Divisional Officer vide its order dated 31.3.1992 holding that petitioner is in possession of 22.85 acres land in excess of ceiling. Thus, leaving the aforesaid area, petitioner can retain the remaining land. The aforesaid order was challenged by maintaining an appeal before the District Collector wherein vide order dated 26.2.1996, it was held that 22.29 acres of land in excess of ceiling area may be acquired. The petitioner thereafter moved to Board of Revenue by maintaining an appeal. However, the said appeal was also dismissed vide order dated 27.12.1996 followed by rejection of the review petition. It is contended that out of the total holding of the land by the petitioner being 82.69 acres, 63 bighas of land was urban land and could not have been computed in the total land holding for the purpose of agriculture ceiling. The aforesaid position was accepted while matter was proceeded under the provisions of Old Agricultural Ceiling Laws. While initiating the matter on a notice under Section 11 of the Act of 1973, respondents should not have ignored the aforesaid aspect. The Sub Divisional Officer as well as appellate authority failed to consider the aforesaid aspect and thereby only 15 bighas and 14 biwas of the land was taken as Abadi land. According to learned counsel for petitioner, once an issue was concluded on facts under the provisions of Old 3 Agricultural Ceiling Law, then on same facts, a new issue could not have been taken up. Thus, the matter is hit by the principle of res-judicata and therefore, on the aforesaid ground, all the four orders impugned herein have been challenged. Learned counsel for respondents, on the other hand, submits that a decision under the provisions of Agricultural Ceiling Law cannot effect the proceedings under the Act of 1973 i.e. under New Ceiling Law. The issue as to how much is the Abadi land was considered by the competent authority and principle of res-judicata does not apply in such a case. The 'Abadi' land was 4.8 acres, thus it has incorrectly stated that urban land was around 15 acres and odd. The total description of the land has been given in the order of the Collector also. It is, thus, prayed that writ petition is devoid of merit, hence, dismissed. My attention was also drawn towards the judgment of this Court in the case of Kuldeep Singh Vs. State of Rajasthan reported in RLR 1988 (I) 282 wherein it has been held that principle of res-judicata does not apply if the matter is taken up afresh under the New Ceiling Law. A further reference of the judgment in the case of Smt. Gopi Bai Vs. State of Rajasthan reported in RLR 1988(I) 243 has also been made to strengthen the argument. 4 I have considered the submissions of the parties and scanned the matter carefully. The only issue raised by learned counsel for petitioner is that while closing the ceiling proceedings under the Old Ceiling Law, petitioner was not found to possess excess land than to the ceiling limits. In a proceeding under Section 11 of the Act of 1973, aforesaid issue could not have been opened and otherwise matter is hit by res-judicata. The aforesaid issue has been considered by me. It is true that it is not a case of reopening of the case decided under the Old Ceiling Law. However, in this case, notice under Section 11 of the Act of 1973 was given to the petitioner, which was for the reason that petitioner failed to submit his return as per Section 10 of the Act of 1973. In view of the judgment in the case of Smt. Gopi Bai and others (supra), Division Bench of this Court held that even after decision of a case under the Old Ceiling Law, the Government is having not only power to reopen the case. It is having further power to take action as per Sections 11 & 12 of the Act of 1973. In view of the aforesaid, the matter was rightly taken up by the competent authority by issuing notice under Section 11 of the Act of 1973 when the petitioner failed to submit his return. The matter was thus rightly proceeded to see as to whether petitioner is in possession of excess land to the ceiling limit fixed under the 5 New Act. If the petitioner would have submitted the return in time as mandated under Section 10 of the Act of 1973, the respondents making a primary assessment of facts regarding holding of the land by the petitioner could have served a notice even for reopening of the case. It was not done because petitioner failed to submit the return. In such a case, provisions of Section 11 of the Act of 1973 is attracted and accordingly petitioner was served with notice with follow up proceedings, thus such proceedings cannot be said to be illegal. The issue now remains that if the matter once decided under the provisions of Old Ceiling Law on certain facts is hit by res-judicata while it is taken up under the New Agricultural Ceiling Law. The aforesaid issue has also been dealt with by Division Bench of this Court in the case of Kuldeep Singh (supra) wherein it has been held that the principle of res- judicata does not apply in such cases. Thus, even second argument of learned counsel for petitioner cannot be accepted. At this stage, learned counsel for petitioner submits that petitioner may at least be given a chance to surrender the land of his choice pursuant to Section 16 of the Act of 1973. To aforesaid, learned counsel for respondents has no objection. It is prayed by learned counsel for petitioner that petitioner will surrender the excess land as per his choice. 6 In view of the discussion made above and last submission made by learned counsel for petitioner for surrendering the land, while dismissing the writ petition, petitioner is given liberty to surrender the land as per the provisions of Section 16 of the Act of 1973 with consequential benefits as provided under the law. No order as to costs. (M.N. BHANDARI), J. Sunil,JrPA