1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 139 of 2002 STATE OF RAJ. V/S BABU SINGH & ORS Mr. SANDEEP BHANDAWAT, AGC, for the appellant / petitioner None is present for the respondent Date of Order : 3.11.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI GOVIND MATHUR,J. ORDER ----- This appeal seeks to challenge the order of the learned Single Judge dt. 29.4.1998, allowing the writ petition, setting aside the order of the authorities below, and remanding the matter to the Authorised Officer for deciding afresh, about the extent of land that can be held by the petitioner under the provisions of the Ceiling Act, after taking into consideration the fact, that the lands being ancestral in nature should be considered, after following the law in that regard, and after determining the share, that the petitioner is entitled to acquire in those ancestral land, then the extent of land which could be held by the petitioner be determined. A look at the order shows, that the order proceeds on the basis, that “Admittedly the land sought to be included by the impugned order dated 27.8.1985 is ancestral land and consequences of such nature of land were liable to be taken into consideration for determination of the permissible holdings of the petitioner”. 2 Since the order proceeds on the basis of admitted situation, and since it was sought to be contended, in the appeal, that no such admission was ever made on behalf of the present appellant; We asked the learned counsel for the appellant, that in that situation, the proper remedy lies before the learned Single Judge himself, by filing appropriate review petition; to which it was contended, that a review petition being S.B. Civil Review Petition No. 10/2000 was filed, which was dismissed on 5.4.2000. We therefore called the file of review petition, and found that this specific objection was taken in the review petition that admission was not made. In the above background a look at the order dt. 29.4.1998 shows that nobody appeared on behalf of the State on that day, and a look at the order-sheet shows that on 25.4.1998 the matter was simply adjourned to 29.4.1998, and on 29.4.1998 the order was passed. However, by a subsequent Misc. Application no. 78/1998 that order was sought to be corrected to be read as 6.5.1998, and in this application also it was contended that the matter was heard and decided on 6.5.1998. It was also contended in this application that the counsel Shri B.S. Bhati did appear on behalf of the State. It was also contended in this application that no such admission was made by the counsel. This application was allowed to the extent of correcting the date of the order only. In this background a look at the orders of the Board of Revenue, and that of the learned Additional Collector shows, that it was a specific controversy, as to whether the land is ancestral, or not, and the positive 3 finding has been recorded, to the effect, that the writ petitioner failed to lead any evidence, or to produce any document. In such circumstances, the positive finding was recorded in para-7 by the Board of Revenue, to the effect, that precise burden was on the appellant before it to show that the land was ancestral, but then the appellant did not lead any evidence to prove this. Therefore, the question was decided against the appellant before the Board of Revenue. Obviously, in such circumstances, in our view, the learned Single Judge was in error in proceeding on the basis, about admittedly the land being ancestral. The question then is as to what further course of action should be adopted. Since the order impugned was passed way back on 29.4.1998/6.5.1998, and the appeal filed by the State was barred by time, which delay was condoned only on 7.3.2002. Then, the appeal was admitted on 19.3.2002, and interim stay was granted. We are not informed as to what further proceeding has been taken by the learned authorities below in pursuance of the impugned order of the learned Single Judge, during this interregnum period. In such circumstances, to settle the equities, we think it appropriate, while allowing the appeal, and setting aside the order of the learned Single Judge, to direct the learned Authorised Officer to decide the matter afresh, pursuant to the remand order passed by the learned Single Judge, with a direction, to pointedly record 4 evidence of the parties, on the aspect, as to whether the land in question is ancestral, or not, and then to decide the ceiling proceedings. If the Authorised Officer concludes that the land is not ancestral, then obviously the order of the Board of Revenue shall stand revived, and if he concludes in favour of land being ancestral, then the effect shall be given to the order of the learned Single Judge. The appeal is accordingly allowed as above. ( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/