IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT DB. CIVIL SPECIAL APPEAL NO. 1239/97 IN SB CIVIL WRIT PETITION NO. 127/96. KALYAN Vs. THE STATE OF RAJASTHAN & ORS. DATE OF JUDGMENT : JANUARY 21, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. Sanjay Mehrishi for the appellant. Mr. Rajnish Gupta Dy. Govt. Advocate. BY THE COURT : (ORAL) Reportable The Dy. Secretary, Revenue Ceiling Department, Jaipur vide his order dated June 30,1987 issued direction to Additional Collector (Admn.), Bundi to reopen ceiling case of the appellant which was decided by the Board of Revenue, Rajasthan, Ajmer vide judgment dated July 14, 1976 under the Old Ceiling Law. In pursuance to the said order, the appellant appeared before the Addl. Collector (Admn.) Bundi, who after examining the material placed before him rendered the order dated June 4, 1994 deciding the matter against the appellant. The Board of Revenue vide order dated March 1, 1995 confirmed the findings of Addl. Collector (Admn.) Bundi. The appellant assailed the afore-quoted orders by filing writ petition before the learned Single Judge who vide order dated April 25, 1997 dismissed the writ petition. Hence this appeal. 2. We have heard the submissions advanced before us by the learned counsel for the parties and weighed the material on record. 3. In exercise of the powers conferred by sub-section (1) of Section 30E of the Rajasthan Tenancy Act, 1955 the State Government by notification dated February 11, 1966 notified the first day of April, 1966 as the appointed date for the purpose of the said section in respect of all areas other than the area covered by the Rajasthan Canal project. Every land-holder and tenant in such areas who was on February 25, 1958 or on December 9, 1959 or on December 15, 1966 in possession of land in excess of the ceiling areas applicable to him was required within six months from April 1, 1966 to furnish to the Sub Divisional Officer of the Sub Division in which his holding or any part thereof was situated, a declaration of his holding and particulars of his family in accordance with Rule 9 of the Old Ceiling Rules. 4. It is the case of the appellant that on coming into force of the Old Ceiling Law since the land in question stood in the khatedari of the appellant, the appellant submitted his declaration under Rule 9 of the Old Ceiling Rules before the Sub Divisional Officer, Bundi, who got the same checked by the Tehsil authorities. In the said declaration the appellant described his brothers Ram Niwas, Gauri Shanker and Babu, sons of Moti Meena as his co-sharers in the above lands. After hearing both the parties the Sub Divisional Officer, Bundi declared 39.5 standard acres of land as surplus wrongly taking the above lands to be of the sole khatedari of the appellant. After dissatisfied with the said judgment of the Sub Divisional Officer, the appellant filed an appeal in the Court of the Revenue Appellate Authority, Kota, who vide judgment dated March 3, 1976 dismissed the same. The judgments of the Sub Divisional Officer and Revenue Appellate Authority, were however set aside by the Board of Revenue on July 14, 1976 and it was held that the lands of Smt. Kesar had been held by all the four brothers including the appellant in common since 1946 and they could not be assessed as the exclusive holding of the appellant and no lands held by the appellant were liable to be acquired. 5. The State Legislature enacted the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short 'New Ceiling Law') which came into force from January 1, 1973. Section 15(2) of the New Ceiling Law authorises the State Government, if it is satisfied that any final order passed under the Old Ceiling Law is in contravention of the provisions of the Old Ceiling Law and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter of evidence which has since come to its notice, such order is required to be reopened, it may direct any officer subordinate to it to reopen such decided matter and to decide it afresh in accordance with the Old Ceiling Law. 6. During the year 1977, the Collector, Bundi placed the ceiling case of the appellant decided by the Board of Revenue on July 14, 1976 under the Old Ceiling Law before the Government. On receiving the same, the Dy. Secretary, Revenue Ceiling Department served a notice to the appellant stating thus - (i) that the disputed lands were not of joint khatedari of the appellant and his brothers but had been gifted out to the appellant in which his brothers had no share (ii) that the Revenue Board had contravened the provisions of Section 30E of Chapter III-B of the Rajasthan Tenancy Act, 1955 as the above lands had been entered into the sole khatedari of the appellant on April 1, 1966 and as such it was wrong on his part to have taken the other brothers of the appellant as co-sharers in the above lands, (iii) that the disputed lands were not ancestral property and as such there was no question of there being equal share of all the brothers of the appellant in the same and (iv) that the partition of the year 1970 was against the provisions of Sections 30-D and 30- DD of the Rajasthan Tenancy Act, 1955 and as such the same could not be recognised and requiring the appellant to show cause why his case decided by the Board of Revenue on July 14, 1976 be not reopened. 7. On receiving notice of the Dy. Secretary, Revenue Ceiling Department, Jaipur the appellant submitted his reply with the averment that the notice served by the State Government was barred by limitation. It was further stated that after the decision of the Board of Revenue for Rajasthan, Ajmer dated July 14, 1976 no new and important matter or evidence had come to the notice of the State Government nor was there any mistake or error apparent on the face of the record in the judgment of the Board of Revenue and as such the case was not liable to be reopened. It was further stated that the judgment of the Board of Revenue had been passed after considering all the facts and documents and law and the State Government had no jurisdiction to reopen the same. It was also submitted that in the disputed lands all the four brothers including the appellant had equal shares and this fact had been duly considered by the Board of Revenue before pronouncing the judgment on July 14, 1976. 8. After hearing both the parties the Dy. Secretary, Revenue Ceiling Department, Jaipur vide his judgment dated June 30, 1987 ordered reopening of the ceiling case of the appellant decided by the Board of Revenue vide judgment dated July 14, 1976 under the Old Ceiling Law and directed the Addl. Collector (Admn.), Bundi to reopen the same. 9. Mr. Sanjay Mehrishi, learned counsel appearing for the appellant vehemently criticized the finding of the learned Single Judge. The main plank of submission of learned counsel is that in view of the third proviso appended to sub-section 2 of Section 15 of the New Ceiling law, order of the Board of Revenue dated July 14, 1976, which was a final order, could not have been directed to be reopened. Our attention has been drawn to the third proviso to sub- section (2) of Section 15 which reads as under :- “ 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 fact of the record.” 10. Admittedly the order of the Dy. Secretary was not assailed by the appellant by filing appeal under Section 23 within sixty days from the date of decision as provided under the said section. Sub- section 2A of Section 23 of the New Ceiling Law provides as under :- “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.” 11. The order dated June 30, 1987 of the Deputy Secretary was challenged for the first time in the writ petition filed on August 21, 1995 i.e. after 9 years. Mr. Mehrishi made attempt to justify the delay in filing the writ petition by placing reliance on West Bengal Government Employees (Food & Supplied) Coop. Housing Society Ltd. & Ors. Vs. Sulekha Pal (Dey) & Ors. (2003) 9 SCC 253, where in para 10 their Lordships of the Supreme Court indicated as under:- “We have carefully considered the submissions of the learned counsel appearing on either side. We are of the view that the objection based on laches and delay is of no merit. Viewed in the context of the facts of the case, which are indisputable, the authorities of the State have not lawfully and factually dispossessed the petitioners herein, who are the heirs of the intermediary, of the khas possession of the lands in question. The right to vindicate and protect their interest in the lands in question in terms of the enabling provisions of the Act would ensure till they are dispossessed in the manner envisaged and by observing the formalities contemplated under the statutory provisions.” The contention of Mr. Mehrishi, learned counsel, is that since the appellant had not been dispossessed from the land, the delay in filing the writ petition was not fatal. We find ourselves unable to agree with the submission in view of mandate of Section 23 (2A) of New Ceiling Law. The ratio indicated in West Bengal Govt. Employees case (supra) is not applicable to the facts of the instant matter. 13. In so far as the factual findings arrived at by the Board of Revenue, Rajasthan, Ajmer, the same has been considered by the learned Single Judge and in this special appeal disputed question of fact can not be adjudicated upon. 14. As a result of our discussion, we find no merit in the instant appeal and the same accordingly stands dismissed without any order as to costs. ( R.S. CHAUHAN ) J. ( SHIV KUMAR SHARMA ) J. MRG.