1 S.B.CIVIL WRIT PETITION NO.3657/1997 Veer Singh v. Board of Revenue & Ors. Date of Order :: 18th July, 2007 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. T.S.Champawat, for the petitioner. Mr. S.N.Tiwari, Dy.Govt.Advocate. .... As a consequent to proceedings under the provisions contained in Chapter-III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as “the Act of 1955”), a decision was given by the competent authority in Ceiling Case No.195/72 relating to Shri Jeevraj Singh on 20.10.1975 holding 198.98 standard acres of land in excess to the agricultural land holding limits. The land was accordingly acquired but no acquisition of land beyond 32.18 bighas was made in survey No.385. The ceiling case aforesaid was reopened in accordance with the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as “the Act of 1973”) and by an order dated 20.9.1984, 112.10 bighas of land in survey No.385 was ordered to be acquired being in excess to the limits prescribed for holding agricultural land. While deciding the ceiling case as 2 above, the competent authority did not recognise transfer of 79.10 bighas of land for the purpose of determining holding of agricultural land to one Shri Dalpat Singh being not a resident of Rajasthan. According to the petitioner, the land that was sold to Shri Dalpat Singh was subsequently transferred to Smt. Bharti Devi and Prakash Kumar from whom he purchased the land aforesaid and was having peaceful possession thereon. The proceedings under Section 91 of the Rajasthan Land Revenue Act were initiated against the petitioner by treating him a trespasser and on 30.6.1989 an order to dispossess the petitioner from the land in question was passed by the authority competent. An appeal preferred under Section 76 of the Rajasthan Land Revenue Act assailing validity of the order dated 30.6.1989 also came to be rejected by the Revenue Appellate Authority, Jodhpur on 29.8.1992. The Board of Revenue also affirmed the orders dated 30.6.1989 and 29.8.1992 by rejecting the revision petition under an order dated 28.2.1996, hence this petition for writ was preferred. The contention of counsel for the petitioner is that as per provision to sub-section(2) of Section 30-E of the Act of 1955, preference should have been given to acquire unencumbered land vis-a-vis encumbered land while executing an order passed under 3 the Act of 1973 or under Chapter-III-B of the Act of 1955. According to learned counsel it was wrong to acquire land from possession of the petitioner who is a transferee while permitting the transferor to hold possession of the land upto the ceiling area. To substantiate the contention a reliance is placed by counsel for the petitioner upon a judgment of this Court in the case of Banwari Lal Nagpal v. State of Rajasthan (1982 RLW 663), holding as under:- “From the scheme of section 16(4) and section 18 of the Act, it is clear that first, that surplus land is to be surrendered, which is with the transferor ad it is only the balance of surplus land, which shall be taken possession of from the transferee by his ejectment. The transferee comes into picture, only in connection with taking possession of the balance of surplus land meaning thereby that when the entire land remaining in possession the transferor has been surrendered and there still remains the balance of surplus land to be taken possession of, then possession of that balance of surplus land can be taken from the transferee. It is true that there is no specific provision empowering the Authorised officer either to compel the transferor to surrender the surplus land out of the land, which is with the transferor, but this in my opinion, is implicit in the very scheme of things. The reason is that there is an unequivocal positive obligation of the transferor to surrender that land. Such an unequivocal position obligation, in my 4 opinion, can be enforced by the Authorised Officer.” Reliance is also placed by counsel for the petitioner upon the judgment of this Court dated 3.5.2001 in the case of Chuni Ram & Ors. v. State & Ors. (SBCivil Writ Petition No.692/95), wherein this Court while relying upon the law laid down by this Court in the case of Banwari Lal Nagpal (supra), held as under:- “The principle enunciated by this Court in Banwarilal's case (supra) has been approved and followed by a Division Bench of this Court in Badri Lal & Ors. Vs. State of Raj. & Ors. (1992 RRD 317) which is turn was followed by another Division Bench in Iftekhar Ali Vs. State of Rajasthan & Ors. (1992 RRD 320). Thus, for this Court, the matter stands concluded that so long as the transferor remains in possession of the lands, the acquisition of the surplus lands cannot be from the lands held by the transferees whose transfers have not been recognised. It is only after acquiring the lands in possession of the holder, by forcing him to surrender such land if any land still remains to be acquired as surplus land as per the determination, the lands in possession of the transferees can be reached.” A Division Bench of this Court affirmed the judgment given in the case of Chuni Ram (supra) in the 5 case of Gulab Singh & Anr. v. State & Ors. (2004(4) WLC (Raj.) 680). Hon'ble Division Bench while rejecting an appeal preferred by the State Government giving challenge to the judgment dated 3.5.2001 in the case of Chuni Ram (supra) held as under:- “17.This takes us to the appeal of the appeal of the State Government filed in this relation. The State Government has challenged the order of the learned Single Judge because they were proceeding under Section 91 of the Rajasthan Land Revenue Act against the purchasers. May be that the action of the State Government was right but before determining the case of surrender of unencumbered land, it would not be proper for the State to proceed under Section 91 of the Rajasthan Land Revenue Act against the purchasers. Therefore, after taking possession of unencumbered land, if thereafter any land remains to be acquired, then only the State can proceed under Section 30E of the Act against the purchasers whose transfer has not been recognised and in that view of the matter, to that extent, no interference is made in this appeal.” On basis of the law settled by this Court as above, it can be safely said that the land under possession of a transferee should not have been acquired while permitting the transferor to hold agricultural land upto ceiling limits. The land under possession of a transferee could have been acquired, if, the surplus land determined by the competent 6 authority was much more than the land in possession of the transferor. In the instant matter the respondents while permitting the transferor to hold agricultural land upto ceiling limits choose to acquire land from the transferee i.e. the petitioner and proceeded under Section 91 of the Rajasthan Land Revenue Act. In view of the law laid down by Division Bench of this Court in the case of Gulab Singh (supra), I am of the opinion that the proceedings under Section 91 of the Rajasthan Land Revenue Act against the petitioner should not have been initiated without first acquiring the land from the transferor. The writ petition, for the reasons mentioned above, deserves acceptance, hence, the same is allowed. The proceedings initiated against the petitioner under Section 91 by treating him trespasser, therefore, are quashed. The respondents may proceed against the transferor to acquire the land declared surplus than the agricultural land holding limits prescribed under the relevant provisions of the Ceiling Act. No order to costs. ( GOVIND MATHUR ),J. Kkm/ps.