1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.73/ 1995 (Avtar Singh V/ s. Board of Revenue & Ors.) Date of Judgment : : 12.05.2009 HON'BLE MR.JUSTI CE R.S. CHAUHAN Mr. Kapil Gupta for the petitioner. Mr. Zakawat Ali, Dy. GA for the State. Repor t able Aggrieved by the order dated 31.07.1987 passed by the Additional Collector, Baran and aggrieved by the order dated 28.12.1989 passed by the Board of Revenue ('the Board', for short), the petitioner has challenged the same before this Court. By the former order, the Additional Collector, Baran after reopening the case under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (henceforth referred to as the, “New Ceiling Act”) held that 9.8 standard acres of land was above the ceiling limit. Therefore, the same should be resumed by the Government. By the latter order, the order dated 31.07.1987 was confirmed. 2 The brief facts of the case are that initially land ceiling proceedings were initiated against the petitioner's father, Ratan Singh under Chapter III-B of the Rajasthan Tenancy Act, 1955 (henceforth to be referred as “the Old Ceiling Act”). However, vide order dated 01.05.1972, the Dy. Collector had dropped the ceiling proceedings against Ratan Singh. Subsequently, it was discovered that the declaration made by Ratan Singh with regard to the number of family members was incorrect. According to the declaration submitted by him on 18.02.1966, his family consisting of seven persons including a daughter-in-law, Chindo. However, as a daughter-in- law was not included in the definition of “family” given under Section 30 of the Old Ceiling Act, the State Government decided to reopen the entire case. It referred the matter to the Additional District Collector Shahabad. Subsequently, the case was transferred from Additional District Collector, Shahabad to Additional Collector, Baran, district Kota. Notices were issued to Ratan Singh. Despite 3 the repeated opportunities given to him to file his reply, he failed to do so. However, he was represented through his counsel before the Additional District Collector Kota. After hearing both the parties, the Additional Collector concluded that Chindo, the daughter-in-law, could not be included in the definition of family. Therefore, there was only six mem bers in the family of Ratan Singh. A family consisting of five members was entitled to thirty standard acres of land, and every extra person was entitled to five standard acres of land. Thus, the family consisting of six members was entitled for thirty-five standard acres of land. Since, Ratan Singh had 44.80 standard acres of land, therefore 9.8 standard acres of land should be acquired by the Government. Since the petitioner was aggrieved by the said order, he filed an appeal before the Board. However, vide order dated 28.12.1989, the learned Board dismissed the appeal and confirmed the order of the Additional District Collector Baran. Hence, this petition before this Court. 4 Mr. Kapil Gupta, the learned counsel for the petitioner has vehem ently raised the following contentions before this Court : firstly, the second proviso to Section 15(2) prescribes the period of limitation i.e, that the case cannot be reopened after the expiry of seven years from the date of the final order. In the present case, the ceiling proceedings were dropped vide order dated 01.05.1972. Therefore, the said case could not be reopened after a period of eight years i.e., in 1980. Hence, the reopening of the case is hit by lim itation. In order to buttress his contention, the learned counsel has relied on the case of Dhanraj & Ors. V/ s. State of Rajasthan [ 1995 RRD 115] and on the case of Kishan Lal V/ s. State of Rajasthan & ors. [ 1997 RRD 547] . Secondly, the procedure for reopening of the case as given in Section 10 to Section 12 of the New Ceiling Act has not been followed. For, no notice was given to the petitioner's father. 5 Thirdly, since the land was ancestral one, not only the sons, but even the daughter-in-law would have a share in the said land. Therefore, the daughter-in-law would have to be included as a family member. Hence, the Additional Collector was not justified in excluding the daughter-in-law from the family. Forthly, the Board has not appreciated the nature of land which was involved. On the other hand, Mr. Zakawat Ali, the learned Dy. GA for the State, has contended that where a wrong declaration has been made by the land-holder in a proceeding under the Old Ceiling Act and subsequently the Governm ent discovers that a wrong declaration was made, the government would be within its power to re-open the case. In the present case, Ratan Singh had wrongly declared the number of family members. Although, a daughter-in- law was not included in the definition of family, yet she was declared by Ratan Singh to be a family 6 member. Thus, a fraud was played, a fraud which succeeded before the Deputy Collector. But, an order procured by practicing fraud is a nullity. In order to support this contention, the learned counsel relies on A.V. Papayya Sastry & Ors. V/ s. Govt. of A.P. & Ors. [ (2007) 4 SCC 221] , Jai Narain Parasrampuria (dead) & Ors. V/ s. Pushpa Devi Saraf & Ors. [ (2006) 7 SCC 756] and on T. Vijendradas & Anr. V/ s. M. Subramanian & Ors. [ (2007) 8 SCC 751] . Hence, the order dated 01.05.1972 is a nullity. Therefore, the concept of limitation is inapplicable to the re-opening of the case by the governm ent. Secondly, the procedure of show-cause notice to the land-holder was followed as is apparent from the order of the Additional Collector. Not only notice was issued to Ratan Singh, but also Ratan Singh engaged a counsel to represent his case. Therefore, sufficient opportunities were given to Ratan Singh. 7 Thirdly, the definition of family is given in Section 30B of the Old Ceiling Act. According to the said definition, a family consists of “husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent”. Since the definition of word “family” has been defined for the purpose of ceiling law, the fact that under Hindu law, a daughter-in- law is included in the family as a member cannot be brought into operation. Fourthly, even according to the Additional Collector, no evidence was produced to show that the land which belonged to Ratan Singh was ancestral in nature. Therefore, the daughter-in-law cannot claim to have an interest in the said land. Fifthly, the Board has discussed the nature of the land in detail. The nature of the land is question of fact. This Court under its jurisdiction under Article 227 of the Constitution of India cannot 8 disturb the finding of fact. Therefore, the learned counsel has supported both the impugned orders. Heard the learned counsel for the parties, and perused the impugned orders. Section 15 of the New Ceiling Law is as under : - “Pow er t o r e- open cases.- (1) Notwithstanding anything contained in this Act, if the State Government, after calling for the record or otherwise is satisfied that any final order passed in any matter arising under this Act is in contravention of the provisions of this Act and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re-opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with the provisions of this Act: Provided that no such direction shall be issued unless a notice to show cause against the proposed action has been served upon the person concerned : 9 [ Provided further that no notice referred to in foregoing proviso shall be issued after the expiry of five years from the date of the final order sought to be re-opened or after the expiry of the 30th day of June, 1979, whichever is later.] (2) Without prejudice to any other remedy that may be available to it under Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re-opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions : Provided that no such direction shall be issued unless a notice to show cause against the proposed action has been served upon the person concerned. [ Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of seven years from the date of the final order sought to be re-opened or after the expiry of 30th day of June, 1979, 10 whichever is later] : Provided that no final order passed by the Board in the matter referred to in sub-section (1) or in sub-section (2) shall be directed to be re-opened and decided afresh under the said sub- sections unless the State Government is satisfied that such order is required to be reopened on account of the discovery of new and important matter or evidence which has since come to its notice or due to some mistake or error apparent on the face of the record.] [ (3) Where any person challenges the direction issued by the State Government to re-open a decided matter under sub-section (1) or under sub-section (2) in any court and such direction is quashed by the court on account of any procedural defect or on a technical ground or on the ground that the authority who issued the directions had no jurisdiction, the period during which the proceedings remained pending in the court shall be excluded in computing the period of limitation provided by Second proviso to sub- section (1) or sub-section (2) for the purpose of making fresh directions for re-opening decided matters under the said sub-section.] A bare perusal of Section 15(2) clearly reveals that after calling of the record or otherwise, if the governm ent is satisfied that any final order 11 was passed in contravention of the repealed provisions, and such order is prejudicial to the State Government, or on account of the discovery of new and important matter, or evidence, which has since come to its notice, such order is required to be re- opened, it may direct a subordinate officer to do so. However, the said case cannot be re-opened until and unless a show-cause notice has been given to the affected persons. Furthermore, such a notice cannot be issued after the expiry of seven years from the date of the final order sought to be reopened. In the present case, according to the Additional Collector, a notice was issued to Ratan Singh on 16.08.1980. Subsequently, he had appeared before the Additional Collector through his counsel. Thus, the condition of the first proviso has been fulfilled, in the present case. As far as the lim itation is concerned in the case of Dhanraj (supra), this Court dealt with the 12 interpretation of the expression “within six years of the commencement of the Act'” The Division Bench of this Court held that the said expression meant “within six years of the commencement of the Act and not within six years from the amending Act”. It further held that : in case notice is issued beyond the period of six years, the Government has no power or jurisdiction under Section 15 of the New Ceiling Law to direct the re-opening of the case. Similar view was also expressed in the case of Kishan Lal (supra). However, neither of these two cases dealt with the situation where a mis- declaration has been made by the land-holder and subsequently mis-declaration is discovered by the Government. Therefore, these two cases are inapplicable to the present case. In the case of Prathvi Singh V/ s. State of Rajasthan & Ors. (2000 RRD 47), this Court dealt with a case of m is-declaration and held as under : - 13 “It is settled law that the Ceiling Act is a beneficial social legislation and if the authorities and the land holder khatedars did not file the correct return and if it is found lateron that the facts stated by the land holder were wrong, the case can always be re-opened if any such cogent evidence comes to the knowledge of the authorities. It is not disputed that the authorities had jurisdiction u/ s 15(2) of the New Act to reopen the case.” Fraud and justice are antagonistic to each other. Therefore, under the Roman law it was said that “fraud and justice never dwell together” (fraus et jus nunquam cohabitant). It was further held that fraud and deceit ought to benefit none (fraus et dolus nem ini patrocinari debent). Fraud is defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. 14 Therefore, in the case of A.V. Papayya Sastry (supra), the Hon'ble Supreme Court has held “It is a settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order – by the first court or by the final court – has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.” In the present case, the order dated 01.05.1972 was based on a fraud played by Ratan Singh as he had intentionally included the daughter- in-law as a fam ily mem ber, while knowing fully well that she could not be so included according to the old Ceiling Act. Thus, the order dated 01.05.1972 is a nullity, is non-est in the eye of law. Since, the order dated 01.05.1972 is non-existent, the question of application of limitation does not even arise. 15 Hence, the contention of the learned counsel for the petitioner, that the State Government could not re- open the case after a lapse of seven years from the date of the final order, is baseless. The said contention is, hereby, rejected. The learned counsel for the petitioner has also contended that the procedure given under Sections 10 to 12 has not been followed. Interestingly, this argument was neither raised before the Additional Collector, nor before the Board of Revenue. Therefore, the learned counsel for the petitioner cannot raise a plea which he had not raised before the subordinate Courts. Hence, the argument is only superfluous. It is rejected. The word “family” has been defined under 30B of the Old Ceiling Act. According to section, “family” shall mean a “family consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the 16 husband so dependent”. Clearly, for the purpose of ceiling law, the definition of the word “family” has been narrowed down from the concept of “family” under the Hindu Law. The Legislature, in its wisdom, has redefined the word “family” strictly for the purpose of Land Ceiling Laws. Thus, the contention of the learned counsel for the petitioner that as the land is ancestral in nature, therefore, the daughter- in-law would have interest in land, therefore, she should be considered as a member of the family, is obviously against the definition given under Section 30B. Therefore, the learned Additional Collector was justified in concluding that a daughter-in-law could not be included as a family member under Section 30B of the Old Ceiling Act. Moreover, according to Additional Collector, no evidence has been produced to show that the land in question was ancestral in nature. Therefore, the learned Additional Collector was justified in holding that the land was not ancestral in 17 nature. Hence, a daughter-in-law cannot claim to have any interest in the said land. The learned counsel for the petitioner has also contended that during the proceeding before the Additional Collector, Ratan Singh had expired and no opportunity was given to bring the legal representatives of Ratan Singh on record. Moreover, even before the Board, the petitioners could not place their case properly. Although the point was raised in the written pleadings that opportunity had not been given to them yet, the Board has not considered the said pleading. In fact, the Board has discussed the entire evidence on the basis of nature of the land and has confirmed the order of the Additional Collector. Neither a judicial authority, nor a quasi- judicial authority is bound by what is submitted in the written pleadings. The Courts are concerned with the oral arguments and oral contentions raised 18 before it. For while num erous grounds may be mentioned in the pleadings, only a few contentions may be raised before the Court. A bare perusal of the order dated 28.12.1989, reveals that the contention, with regard to an opportunity of hearing being not given, was not even raised. Thus, it can safely be presumed that although the point may have been mentioned in the memo of appeal, but it was not orally raised or marshaled out before the learned Board. Therefore, the Board cannot be castigated for not dealing with the said issue. Furthermore, in case the issue were raised orally before the Board, and yet the issue was not discussed by the Board, the petitioners were free to file a review petition before the Board. However, they have failed to do so. Therefore, at this belated stage, it is difficult to believe that the point of no opportunity of hearing being given to the petitioner was ever raised before the Board. 19 As far as the discussion made by the Board with regard to nature of the land, it is a question of fact which this Court cannot go into under its jurisdiction under Article 227 of the Constitution of India. In the case of Sham shad Ahmad & Ors. V/ s. Tilak Raj Bajaj (Deceased) through LRs & Ors. [ (2008) 9 SCC 1] , the Hon'ble Supreme Court has clearly held as under : - Though powers of a High Court under Articles 226 & 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law. 20 Thus, in the facts and circumstances of the case and for the reasons stated above, this petition is devoid of merits. Therefore, it is dism issed. There shall be no orders as to costs. [ R.S.CHAUHAN] J A.Asopa/