BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 1 BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) Dated: 26th May, 2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr.P.C.Sharma, for the petitioners. None present for the respondents even in second round. 1. This writ petition is directed against order dated 2.7.96 passed by the Board of Revenue, Rajasthan, Ajmer whereby two appeals, one preferred by respondent no.6 and another by Smt. Mahechji Gulab Kanwar widow of Shri Ummed Singh against order dated 21.1.91 of District Collector, Pali have been dismissed, however, the order impugned in the appeal has been quashed. By aforesaid order dated 21.1.91, the appeal preferred by the petitioners against the order dated 29.3.90 passed by the Sub Divisional Officer( in short “SDO” hereinafter) ,Bali rejecting their objections against the acquisition of the land purchased by them towards the surplus land in the hands of the respondent no. 6 vested in the State Government, was allowed. 2. Shri Ummed Singh, father of respondent no. 6 Shri Budhveer Singh was khatedar tenant of inter alia 200 bighas agriculture lands comprising khasra No. 380 in village Boya Chakla, Tehsil Bali, District Pali. After his death, ceiling proceedings were initiated against his son Shri Budhveer Singh, BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 2 respondent no. 6 herein and widow Smt. Gulab Kanwar. In response to the notice, the respondent no.6 filed a reply before the Authorised Officer taking the stand that he is holding only 69½ bighas of land, therefore, the land in his possession do not exceed the ceiling limit. It was stated that he had already transferred the rest of the land prior to cut off date 1.1.73, therefore, the lands which have already been transferred prior to cut off date cannot be taken into consideration while determining the ceiling area applicable to him. The details of the lands said to have been transferred prior to cut off date were given which includes the lands transferred to the petitioners by the respondent no. 6 as under:- Khasra No. Area Names of purchaser Date Agreement Registry 318 30 Bighas Bhera & Ors. 29.10.70 18.7.77 318 30 Bighas Kana Choudhary & Ors. 29.10.70 18.7.77 318 10 Bighas Kana Choudhary & Ors. 29.10.70 27.6.78 3. The Authorised Officer arrived at the finding that the transfers made by the respondent no.6 are not bona fide and accordingly, the lands covered by such transfers were taken into consideration in determining the ceiling area applicable to the respondent no.6. After due assessment 65 bighas land held by respondent no.6 was declared surplus. BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 3 4. The respondent no. 6 by way of an application preferred u/s 18 of the Rajasthan Imposition of Ceilings on Agriculture Holdings Act, 1973 ( in short “the Act of 1973” hereinafter) surrendered 30 bighas of land comprising Khasra no. 380 already transferred to the petitioners no. 1 to 3 and 35 bighas of land transferred to the petitioners no. 4 and 5, as detailed supra. 5. The petitioners objected against the acquisition of the lands in their possession on the ground that once holding in the hands of the respondent no. 6 was determined and he was found to be in possession of the land in excess of the ceiling limit then, in terms of Section 16(4) of the Act of 1973 , he was under an obligation to surrender the surplus lands vested in the State Government first out of the lands remaining with him after the transfer and the balance of surplus land remaining, if any, could be recovered from the transferees. The objection raised by the petitioners as aforesaid,was rejected by the S.D.O.,Bali vide order dated 29.3.90. 6. Aggrieved by the said order dated 29.3.90, the petitioners preferred an appeal before the District Collector, Pali which was allowed vide order dated 21.1.91 and the Tehsildar, Bali was directed that first the unencumbered land in possession of the respondent no.6 may be taken and thereafter, if more land is required to be acquired then, the land in possession of the BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 4 transferees to the extent needed may be acquired. 7. Aggrieved by the said order dated 21.1.91 , the respondent no. 6 preferred an appeal before the Board of Revenue, Rajasthan . The appeal was allowed by the Board of Revenue on the ground that in pursuance of the assessment order dated 17.4.89 , the possession of the land was taken way back on 8.9.89 and the validity of the said order having not been challenged by the petitioners by way of appeal, the same has attained finality and the petitioners could not have raised their grievance by way of an application before the S.D.O. Accordingly, the order passed by the District Collector, Pali was set aside by the Board of Revenue vide order dated 30.11.93 holding it to be without jurisdiction. 8. On a review petition being preferred by the petitioners, the order dated 30.11.93 was revoked by the Board of Revenue and the appeal was restored to its original number and was ordered to be heard afresh. 9. On remand,the learned Board of Revenue after hearing both the parties arrived at the finding that the proceedings under the Ceiling Act are issues for determination between the assessee and the State and accordingly, once the matter was finally adjudicated in the Board of Revenue, the proceedings came to a final conclusion whereby the order dated 17.4.89 and BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 5 resumption of 8.9.89 , both became final, therefore, the decision of the Collector is of no consequences. The Board held that those who are affected by resumption can at the most stake claim for receiving compensation amount that would be paid as consequence of the resumption process and for this they should approach the appropriate authority. By the order impugned, though the appeal has been dismissed by the Board of Revenue, the order of the Collector, Pali dated 21.1.91 has been quashed. Hence, this petition. 10. It is submitted by the learned counsel for the petitioners that the fact that the petitioners have purchased the lands in question in terms of agreement dated 29.10.70 by way of registered sale deeds dated 18.7.77/27.6.78 is not in dispute. The learned counsel submitted that admittedly, while determining the ceiling area applicable to the respondent no. 6 , the petitioners transferees were not afforded any opportunity of hearing, therefore, they could not have raised any objection before the Authorised Officer regarding acquisition of their land . The learned counsel submitted that as a matter of fact, in terms of Section 16 of the Act of 1973, the transferee in possession can claim the opportunity of hearing only if the transferor surrenders the lands in possession of the transferee against the surplus land vested in the State Government. Accordingly, it is BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 6 submitted by the learned counsel that before accepting the proposal of the transferor to surrender the land in possession of the petitioners transferred under the registered sale deeds , the Authorised Officer was under an obligation to afford an opportunity of hearing to the petitioners. The learned counsel submitted that the petitioners were not entitled to raise objection regarding the surplus land determined in the hands of the respondent no. 6 and since they were not parties to the proceedings, they could not have challenged the order determining the ceiling area applicable to the respondent no. 6 by way of an appeal. The learned counsel submitted that in terms of the provisions of Section 16(4) , the transferor was under an obligation to first surrender the land out of the land remaining with him after the transfer and the balance of surplus land remaining if any, could have been recovered from the transferees by their ejectment. The learned counsel submitted that admittedly before accepting the proposal for surrender of the land against the surplus land vested in the State Government in terms of provision of Section 16(4), no opportunity of hearing was afforded to the petitioners and their likes, therefore, they had rightly raised objections before the competent authority in terms of provisions of Section 16(4) of the Act of 1973. Accordingly, it is submitted by the learned counsel that the BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 7 objections raised by the petitioners against acquisition of the land duly transferred to them by the land holder were absolutely justified and the learned Board of Revenue has seriously erred in holding that the order dated 7.4.89 having attained finality, the petitioners could not have raised objections by way of an application before the SDO and, therefore, the order passed by the Collector, accepting the objections of the petitioners is of no consequence. In support of his contention, the learned counsel has relied upon the Bench decisions of this court in the matter of “Mahesh Kunwar vs. State”, 2003(1) RLR, 241 and “Sukhvendra Singh & Ors. Vs. Board of Revenue & Ors.” RLR 1991(2) 543. 11. I have considered the submission of the learned counsel for the petitioner and perused the material on record. 12. As per provisions of Section 6 of the Act of 1973 , the transfer of land by way of sale, gift , exchange, etc. made on or after 26.10.70 is deemed to have been made in order to defeat the provisions of the Act of 1973 and such transfer shall not be recognised or taken into consideration in determining the ceiling area applicable to a person. However, if the transfers are made before 1.1.73 and the same are found to be bona fide , the burden of proof whereof is on the transferor are recognizable. Admittedly, the transfers made by the respondent no. 6 detailed BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 8 supra were not found to be bona fide by the Authorised Officer and therefore, the lands covered by such transfers were taken into consideration while determining the ceiling area applicable to the respondent no.6 and accordingly, after due assessment 65 bighas land held by him was declared surplus. 13. As per provisions of Section 16(4) of the Act of 1973 where any transfer of any land is not recognised or taken into consideration in determining the ceiling area applicable to the transferor under sub section (1) of Section 6, the Authorised Officer is under an obligation to call upon the transferor to surrender the surplus land first out of the land remaining with him and thereafter, the balance of surplus land if any can be recovered from the transferees by their ejectment. Thus, the transferee comes into picture only when even after surrender of the entire land remaining in possession of the transferor, there still remains the balance of surplus land to be taken possession of. Obviously, before taking a decision to recover the land from transferees if there are more than one transferees then appropriate decision to recover the lands has to be taken after giving an opportunity of hearing to all the transferees in possession. However, if the requirement of the surplus land stands satisfied by acquisition of the land remaining in possession of the land holder, the question of acquiring the land BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 9 in possession of the transferee shall not arise. 14. In the matter of “Mata Din vs. Board of Revenue & Ors.” 2009(1) RRT, 155, a Bench of this court while relying upon a Full Bench decision of this Court in Kesa Ram vs. State of Rajasthan, 1987 RLW, 1, held that the transferees who are purchaser of the land before the cut off date i.e. 1.1.73 have no right to challenge the issue regarding declaration of the land to be surplus or not inasmuch as, the transfer made after the cut off date is otherwise unrecognised under the Act of 1973. 15. Thus, the petitioners as transferees had no right of hearing until the determination of ceiling area in the hands of respondent no. 6. But then, keeping in view the provisions of Section 16(4) of the Act of 1973, the petitioners had a right to contend that the lands in their hands has to be treated as encumbered lands and cannot be acquired in preference to the unencumbered land in possession of the respondent no. 4 therefore, while accepting the proposal of respondent no. 6 to surrender the land in possession of the petitioners transferres they were entitled for an opportunity of hearing. 16. In the matter of “Nand Kunwar(Smt.) & Ors. vs. Board of Revenue for Rajasthan & Ors.” 2004(9) SCC 510, while dealing with the provisions of Section 30 D of Rajasthan Tenancy Act, 1955 inserted vide Rajasthan Act of 1970 w.e.f. 18.8.70 BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 10 providing that the transfer made by a land holder upto 31.12.69 in favour of an agriculturist domicile in Rajasthan shall be recognised for the purpose of determination of ceiling area applicable to the land holder , the Hon'ble Supreme Court while dealing with the rights of the transferee before the cut off date observed that the authority concerned should have given notice to the transferee before determining their status as to whether they were domicile in Rajasthan or not and whether the land covered by the sale deed could have been offered as surplus land by the original holder. 17. In Mahesh Kanwar's case (supra), a Bench of this court considering the rights of the transferee in terms of Section 16(4) of the Act of 1973 held :- “In view of aforesaid discussion and keeping in view that obligation is cast on the holder to surrender unencumbered land and not the encumbered land in the first instance, the expression 'encumbered' must relate to burden or clog on right of the holder to deal with the holding in question which results in a clog or restraint on his rights in relation to such holdings as a result of any transaction made by him. Once we come to conclusion that rights created under Sec.53A in favour of transferor (sic transferee?) are encumbrance or burden or clog or restraints the rights of transferor in relation to exercise of his rights in relation of land against the transferees is an 'encumbrance' within the meaning of Sec.30E(2) of the Act of 1955 or Sec.18 of the Act of 1973, there is no impediment in reaching further conclusion that such an obligation of holder can be enforced and State can also be compelled to give effect to it.” xxxx......xxxxx.....xxxx 40. The object behind these provisions is clear. While BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 11 certain transactions made by a holder are not recognised for the purpose of ceiling proceedings so as to affect acquisition of certain lands and does not bind the State, the law does not favour to obliterate inter se rights and obligation of holder and his transferees or persons in whose favour there exist an encumbrance on the holding. 41. The provisions of the Ceiling Act, therefore, do not affect the inter-se relation between the transferor and transferee. So long as the lands are not acquired under the Ceiling Act, the rights existing between the transferor and transferee remain intact. Such rights extinguish only on acquisition of land under the Act in accordance method and mechanism provided thereunder. The transactions which are completed in all respects and have not been recognised remain intact if the lands transferred thereunder is not required by the State Govt. by giving effect to the provisions of Sec.16(4) or Sec.18, or Sec.30(E) (2) and the transfers which have not been recognised cannot be treated a void. Mere inclusion of certain land in his holding does not give the holder right to recover possession of property from transferee against whom he is debarred from enforcing his right. In the like manner, where a transferee under an unregistered contract or written agreement is in possession and is under the protection of Sec.53-A of the Transfer of Property Act, which applies to agricultural holdings also, if the said land is not acquired, the transferee retains his right to protect his possession from any claim made by the transferors. Those rights are not extinguished merely on the basis of determination of ceiling area or by declaring the extent of surplus land in the hands of the holder. 42. With these premise, when the law requires the holder of the land to give an option which are encumbered land and satisfy the claim of surrender, it is inherent that the law postulates as far as possible protection of inter se right between the transferor and transferee so far as its possession without effecting the right of the State to acquire surplus land from the holder of the land is concerned. 43. That is further apparent from the fact with the clear provisions enacted under sub-sec.(4) of Sec.16 that State must acquire the land remaining with the holder after the transfer and must acquire the balance from the transferee only such land which remain in balance after acquiring the BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 12 land remaining with the holder.”(emphasis added) 18. Similar view has been taken by a Bench of this Court in Sukhvendra Singh's case (supra). 19. Keeping in view the position of law settled as above and the fact that the respondent no. 6 was in possession of 69 ½ bighas of land at the time of initiation of the ceiling proceedings against him, in considered opinion of this court, the State was under an obligation to enforce the obligation of the respondent no. 6 , the land holder to first surrender the surplus land out of the land in his possession in terms of provisions of Section 16(4) of the Act of 1973. Indisputably, while determining the ceiling area applicable to the respondent no. 6 and so also while acquiring the land in possession of the petitioners accepting the proposal of the respondent no. 6 to surrender the petitioners land in preference to the land in his possession , the petitioners were not given any opportunity of hearing therefore, they were well within their right to raise objection in this regard before the authority concerned . The SDO had seriously erred in rejecting the objection raised on behalf of the petitioners without due consideration and even ignoring the unequivocal provisions contained in Section 16(4) of the Act of 1973. In these circumstances, the District Collector was absolutely justified in entertaining and allowing the appeal against the order dated BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 13 29.3.90 passed by the SDO rejecting the petitioners' objection and directing that first unencumbered land in possession of the respondent no. 6 may be taken and thereafter if more land is required to be acquired then the land in possession of the transferees to the extent needed may be acquired. 20. It appears to be strange that while dismissing the appeal preferred by the respondent no. 6, the Board of Revenue has quashed the order impugned dated 21.1.91 passed by the District Collector, Pali. However, a close scrutiny of the findings recorded by the Board of Revenue while passing the order as aforesaid it appears to be an inadvertent error that in operative portion of the order instead of the words “appeals are allowed”, “appeals are dismissed” have been recorded. Be that as it may the finding recorded by the Board of Revenue that in view of the order dated 17.4.89 and the resumption of the land vide order dated 8.9.89 having become final, the decision of the Collector is of no consequence, is ex facie erroneous in view of the settled position of the law discussed above. The Board of Revenue has seriously erred in holding that the land has been acquired according to the procedure laid down by law. As a matter of fact while passing the order impugned, the provisions as contained in Section 16(4) of the Act of 1973 have altogether been ignored by the learned Board of Revenue which has resulted in an BHERA RAM & ORS. VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO.251/1997) 14 erroneous finding being arrived at. 21. For the aforementioned reasons, in considered opinion of this court, the order impugned passed by the Board of Revenue is not sustainable in eye of law and deserves to be set aside. 22. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 2.7.96 passed by the Board of Revenue is quashed and order dated 21.1.91 passed by the District Collector, Pali is restored. The SDO, Bali is directed to to recover the surplus land within a period of two months from the date of this order in accordance with order dated 21.1.91 passed by the District Collector, Pali, keeping in view the provisions of Section 16(4) of the Act of 1973 . If the requirement of the surplus land is not satisfied by acquisition of the land in possession of the land holder at the time of initiation of the ceiling proceedings and remaining surplus land is required to be recovered from the transferees then, the appropriate order for acquisition of the land in possessions of the transferees shall be passed after giving an opportunity of hearing to the petitioners and their likes. No order as to costs. (SANGEET LODHA),J. Aditya/-