1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR COMMON ORDER SB CIVIL WRIT PETITION NO.3345/1995 Karnail Singh & Ors. V/s The Board of Revenue & anr. SB CIVIL WRIT PETITION NO.3344/1995 Ranjeet Singh & Ors. V/s The Board of Revenue & anr. SB CIVIL WRIT PETITION NO.3343/1995 Jasbeer Singh & Ors. V/s The Board of Revenue & anr. Date of order :: :: 12th January, 2007 PRESENT HON'BLE MR. JUSTICE P.S. ASOPA Mr.R.K. Goyal, for the petitioners. Mr.B.L. Avasthi, Addl. GA, for the State. Since the common set of facts and question of law relating to authority of the State Government to withdraw the notice issued under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter to be referred as “the Act of 1973”) are involved in all these three writ petitions, therefore, all the three petitions are heard together and further are being decided together. 2. By the aforesaid writ petitions, the petitioners have mainly challenged the judgment of Larger Bench of 2 Board of Revenue dated 19.6.1995 whereby it has been held that the State Government cannot stay/review/withdraw or rescind an order passed by it under Section 15 (2) of the Act of 1973, after the same has been complied with by the Additional Collector. The other ancillary / consequential prayers have also been made. 3. Briefly stated the relevant facts of the case are that the present petitioners are ultimate transferee of the land initially held by Narendra Singh, against whom the ceiling proceedings were initiated and the same were dropped on 19.4.1971. No appeal was filed by the State Government against the order dated 19.4.1971, but a notice / order under Section 15 (2) of the Act of 1973 was issued to Narendra Singh on 29.1.1980 for re-opening of the proceedings. The Additional Collector, Sriganganagar in pursuance of the order of the State Government dated 29.1.1980 passed an order on 25.1.1982 for declaring 623 Bigha 8 Biswa land surplus with a further direction to take the possession of the same. Against the said order dated 25.1.1982, the petitioners filed appeals under Section 23(2A) of the Act of 1973 before the Board of Revenue. In few cases, during the pendency of the proceedings before the Board of Revenue, the State Government by a detailed order of the Revenue Minister dated 29.6.1988 withdrew the notice/order dated 3 29.1.1980 on the ground that the same was issued without service of notice on the assessee Narendra Singh and the Hon'ble Minister vide its order dated 5.5.1991 held that Shri Narendra Singh did not hold any land in excess of the limit and the notice was dropped. In pursuance of the order of the Minister dated 5.5.1991, the State Government issued an order on 18.5.1991 that re-opening orders dated 29.1.1980 and 14.4.1980 are set aside. This order was addressed to the Registrar, Board of Revenue where appeals / review petitions were pending. Learned Single Member, who was seized with the appeal / review referred the matter to the larger bench of the Board of Revenue on the following point:- “Whether the State Government can stay / review / withdraw or rescind an order passed by it under Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 after the same has been complied with by the Additional Collector?” 4. Before the larger Bench of the Board of Revenue, the Government Advocate took the preliminary objection that the larger bench has no jurisdiction to hear this case and the single member has no jurisdiction to refer the matter to the larger bench. The larger bench of the Board of Revenue over-ruled the said objection of the State Government and decided the case and vide its order dated 19.6.1995 held that the State 4 Government has no power to withdraw its re-opening order under the Act of 1973. Against the said order, the present writ petitions have been filed. 5. The State Government has filed reply to the writ petition and admitted therein to the extent that cases of the petitioner were re-opened according to the order of the State Government under Section 15 (2) of the Act of 1973 and the same were sent to the Additional Collector, Sriganganagar for re-deciding. The State Government has not filed any writ petition against the judgment of the Board of Revenue dated 19.6.1995, which shows that the State has accepted the answer of the reference made by the Board of Revenue. 6. The counsel for the petitioners raised an objection that Government is estopped from challenging the order of withdrawal of reopening notice / order. The submission of counsel for the petitioners is that the Board of Revenue has no jurisdiction to adjudicate upon the proceedings under Section 15 (2) of the Act of 1973 either before notice or after order or after withdrawal of order of reopening, for the reason that as per Section 23 of the Rajasthan General Clauses Act, 1955 (hereinafter to be referred as “the Act of 1955”) the authority which issued the notice / notification / order can always stay, amend, vary or rescind such notice / notification / order, therefore, the Board of Revenue ought not to have heard the 5 matter arising out of the re-opening of the proceedings in respect of which the order of re- opening has been withdrawn. Further submission of counsel for the petitioner is that finding of the larger bench of the Board of Revenue that the State Government, which has issued the notice / order under Section 15(2) of the Act of 1973, has no authority to withdraw the same, is contrary to Section 23 of the Act of 1955, therefore, the Authorised Officer or any other court is bound by the same and withdrawal of re- opening notice / order of the ceiling proceedings is legal. 7. Counsel for the respondent State has initially not challenged the power of the State Government to withdraw the order of reopening before Board of Revenue and has simply submitted before this Court that the order of Authorised Officer has been acted upon and further the State has also not assailed the answer of the reference given by the Board of Revenue from which it appears that the Government has accepted the legal interpretation of power of withdrawal of reopening given by the Board of Revenue. 8. I have gone through the record of the writ petitions and further considered rival submissions of the parties. 9. I would like to deal first with the objection of the petitioners that the State is estopped from 6 challenging the order of withdrawal of reopening on account of their contention/conduct before the Board of Revenue. It is true that a party as a defendant cannot be allowed to attack their own order at the initial stage, but subsequently when a judgment is delivered by the competent court, they are free to accept or not to accept either by not filing the writ petition or assailing the same by filing independent writ petition. In this case the Government has submitted in para 10 of reply that after redeciding the case by Additional Collector, Sriganganagar, the assessee Narendra Singh was found entitled for 46.08 Bigha of land, the surplus land was acquired by the Government and has not assailed the order of reference of Board of Revenue dated 19.6.1995. In the prayer clause, the Government has prayed for dismissal of the writ petition, which categorically reveals that the Government has accepted the legality of aforesaid order of Board of Revenue. The said order of Board of Revenue has been assailed by the petitioners and the validity of which would be decided by this Court. 10. Before proceeding to give the finding on the issue raised in the present writ petitions, it would be useful to quote certain provisions of law. Section 15 (1), 15 (2) & 23 (2A) of the Act of 1973 and Section 23 of the Act of 1955 are reproduced hereunder:- 7 The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. 15. Power to re-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: 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 8 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, 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. 23. Appeals. - (2A) The State Government or any person aggrieved by the decision under section 15 of the officer referred to in that section may, within sixty days from the date of decision, appeal to the Board against such decision and the provisions contained in sub-section (3) to (6) shall mutatis mutandis apply to such appeal. The Rajasthan General Clauses Act, 1955 23. Power to make or issue to include power to add, to amend, vary or rescind orders,etc. - Where, by any Rajasthan law, a power to make or issue orders, rules, regulations, schemes, forms, bye-laws or notifications is conferred, then that power includes a power exercisable in the like manner and subject o the like sanction and conditions (if any), to add, to amend, vary or rescind any orders, rules, regulations, schemes, forms, bye-laws or notifications so made or issued. (emphasis supplied) 9 11. Section 23 of the Rajasthan General Clauses Act, 1955 is pari materia with Section 21 of General Clauses Act, 1897. 12. First submission of counsel for the petitioners is that Board has no authority to adjudicate upon withdrawal of notice / order of reopening. As per scheme of the Act of 1973, the State Government has only been given the authority under Section 15 (2) to re-open the case after notice to the assessee / LRs of the assessee on being 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 on account of discovery of new and important material of evidence, which has since come to its notice. Such matter if required to be re-opened, it may direct any officer subordinate to it to re-open such matter and to decide it afresh in accordance with such repealed provisions. The ceiling legislation is a beneficial legislation for the public at large having no piece of land in the State of Rajasthan, although they are by profession agriculturists or intend to adopt such profession. As per the scheme of the Act of 1973, neither any appeal nor revision has been provided against the order of re-opening passed by the State Government or its Deputy Secretary and even validity of the notice also 10 cannot be examined by the authorised officer or by the Board but here in the instant case, the question before the Board of Revenue was whether the proceeding before the authorised officer which culminated in final order and against which appeal has been filed before the Board of Revenue or decided in which review has been filed, can be terminated by the State Government by withdrawal of the notice. In the Scheme of the Act, there is no provision of further review after re- opening and the only remedy which was available to the petitioner at the relevant time was to file writ petition before the High Court against the order of re-opening. The issue before the Board of Revenue was whether the ceiling proceedings could have been terminated by an order of the State Government, after passing of final order by the Authorised Officer / Board, therefore, Single Member of the Board who was sitting as an Appellate/Reviewing Authority, had rightly referred the issue to the Larger Bench on the aforesaid question of law. Thus, the aforesaid submission is wholly misconceived. 13. Second submission of counsel for the petitioners is that under Section 23 of the Rajasthan General Clauses Act, 1955, the Government being the authority of issuing the notice/order, is competent to withdraw the same. The said provisions of General Clauses Act are not applicable in cases of judicial and quasi judicial authority where only the statutory provision of review is applicable. The Government while issuing the notice / order of reopening is exercising the power of 11 review in the interest of State, as indicated above. As per the scheme of the Act, no further power of review is available and that too in the case in which final order has been passed by the Authorised Officer. 14. Counsel for the petitioner has relied on a judgment of this Court reported in 1993 (1) RLR 697 – Rup Ram & Ors. V/s State of Rajasthan & ors. wherein in para 11, 13 & 16, it has been held that in view of Section 23 of the Rajasthan General Clauses Act,1955, the State Government, which has issued the notification for allotment, can always stay, amend, vary or rescind such order / notification. Para 11, & 13 of the said judgment are as follows:- “11. The writ petitions mentioned in Schedule B are those cases in which the money was not deposited because of the ban imposed by the Government. In these cases no enquiry was undertaken as required by Sub-rule (4) of Rule 13-A and no direction was given for depositing 35% of the amount in question. 13. I have gone through the provisions of the Colonisation Act and Rules and there is no specific provision conferring power on the State Government to pass an order of such nature staying the allotments. But nonetheless under Rule 13-A it is the State Government which has to notify in the Official Gazette the sale of certain Government land by way of special allotment. The notification has to be issued by the State Government that certain Government land is sold by way of special allotment. It is the State Government which decides that which Government land has to be sold by special allotment. The same authority can 12 revoke or withdraw the order. Section 23 of the Rajasthan General Clauses Act, 1955 confers a power on the authority who has issued the order to revoke, amend, vary or rescind any stay the order. Therefore, it is the State Government which issued the notification for allotment can always stay, amend, add, vary or rescind such order / notification. Therefore, to say that the State Government has no power to stay the allotment is not correct. By virtue of Section 23 of the Rajasthan General Clauses Act, 1955 the authority which issued the order can amend, add, vary or rescind the order. Therefore, the State Government was competent to issue stay order and revoke the order.” (emphasis supplied) 15. The Madras High Court in case of Municipal Council, Bezwada V/s Madras and Southern Maharattah Railway Co. Ltd. - AIR (31) 1944 Madras 355 while dealing with an order passed under Section 135 (2) of Railways Act and phrase “from time to time determine” in Section 21 of General Clauses Act, categorically held that provisions of these Acts do not apply to a decision as to the rights of the parties made by a particular quasi judicial, judicial or administrative authority. The relevant extract of page 358 of the said judgment is as follows:- “In India prior to the enactment of 1897 a doubt was felt whether the power to make orders and rules included a power to vary or rescind those orders or rules. Section 20 to 24, General Clauses Act, relate to powers conferred upon, what we may call, a subordinate legislative authority. In several cases the Legislature instead of making orders and rules and notifications in the Act itself, enacts that a particular 13 authority shall have, subject to the conditions mentioned in the enactment, the power to issue or make notifications, orders, or rules. In such cases the authority to which the power to issue or make orders or notifications is given is to have the power to modify, vary or rescind them. Some cases of delegated authority to issue orders and rules are set out in “Local rules and orders in the Madras Presidency,” published from time to time. It does not apply to a decision as to the rights of parties made by the particular judicial or quasi judicial or administrative authority. If S. 21 is held to apply to all cases where an order is passed under an enactment, the result would be startling. A District Munsif is authorized to pass several orders by the Code of Civil Procedure and if the interpretation urged by the appellant is accepted, then the same Court or officer can vary or rescind them. This certainly is not the law. It has been ruled by the Judicial Committee that except as provided by the statute there is no power in a Court to modify or vary a judgment once passed by it. We therefore hold that the Collector of Kistna district had no power to modify or alter an order once passed by him under S.135 (2) of the Act. The order passed under Ex. N must therefore be held to be ultra vires of Mr. Karamatullah.” 16. The Supreme Court in case of The Strawboard Manufacturing Co. Ltd. V/s Gutta Mill Workers' Union – AIR 1953 SC 95 while dealing with extension of time of award held that provisions of Section 21 are not applicable. Para 6 of the same is as under:- “Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U.P. General Clauses Act, 1904, and contends that the order of 26-4-1950 should be taken as an amendment or modification, within the meaning of that section, of the first order of 18.2.1950. It is true that the order of 26.4.1950 does 14 `ex facie' purport to modify the order of 18.2.1950 but, in view of the absence of any distinct provision in S. 21 that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation the order of 26.4.1950, viewed merely as an order of amendment or modification, cannot, by virtue of S.21, have that effect. If, therefore, the amending order operates prospectively, i.e. only as from the date of the order, it cannot validate the award which had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was `functus officio' and had not jurisdiction to act at all. We do not think the respondents can derive any support from S.21 of the U.p. General Clauses Act.” 17. Similarly, the Supreme Court in a case State of Bihar V/s D.N. Ganguly & Ors. - AIR 1958 SC 1018 held that provisions of Section 21 of the General Clauses Act cannot be invoked and the appropriate Government could not amend the reference originally made under Section 10 as the order made by the Government would amount to cancellation or supersession, which is not permissible once the reference is made. In sum and substance, Section 10 of the ID Act will have power to add or amplify a matter already referred for adjudication, but it will not have power to supersede or cancel the old reference in such a way to effect the withdrawal of reference validly referred nor can the jurisdiction of the Labour Court be taken away by the Government by canceling or superseding the reference once made to it. The 15 relevant para 8, 9 & 15 of the said judgment are as follows:- “8. Dr. Bannerjee for the appellant has urged before us that in dealing with the question about the powers of the appropriate government under Sec. 10 (1) of the Act, it would be necessary to bear in mind the facts which led to the cancellation of the first two notifications and the issue of the third impugned notification. He contends that in issuing the third notification the appellant has acted bona fide and solely in the interests of fair-play and justice; it came to the conclusion that it was necessary that the union should be heard before the disputes in question are adjudicated upon by the Industrial Tribunal and that it would be more convenient and in the interest of industrial peace and harmony that the dispute should be referred to the tribunal in a more comprehensive and consolidated from bringing before the tribunal all the parties interested in it. In our opinion, the bona fides of the appellant on which reliance is placed by Dr.Bannerjee are really not relevant for determining the appellant's powers under S. 10(1) of the Act. If the appellant has authority to cancel the notification issued under S. 10 (1) and if the validity of the canceling notification is challenged on the ground of malafides it may be relevant and material to inquire into the motives of the appellant. But, if the appellant has no authority to cancel or revoke a notification issued under S.10 (1), the bona fides of the appellant can hardly validate the impugned cancellation. That is why, we think, the appellant cannot base its arguments on the alleged bona fides of its conduct. 9. It is conceded by Dr. Banjjerjee that the Act does not expressly confer any power on the appropriate government to cancel or supersede a reference made under S.10(1) of the Act. He, however, argues that the power to cancel or supersede such a reference must be held to be implied, and in support of his argument he