1 S.B.CIVIL WRIT PETITION NO.4128/2002 Menaram alias Nenaram & ors. Vs. The State of Rajasthan & ors. Date of Order :: 21st August 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Vijay Bishnoi for the petitioners Mr.Sudhir Sharma for the respondents Nos.5 to 14 Mr.G.S.Sankhla for the respondents Nos. 15 to 19 Mr.O.P.Boob, Government Counsel .... BY THE COURT: The petitioners, said to be the allottees or the legal representatives of the allottees, of the parcel of land comprised in khasra No.103 of village Badi Sid, Tehsil Phalodi District Jodhpur after the same was surrendered in the ceiling proceedings against the assessee Shri Amar Singh (since deceased and represented by his legal representatives, respondents Nos.15 to 19 herein), have preferred this writ petition assailing the order dated 03.09.2002 (Annex.6) as passed by the Board of Revenue for Rajasthan, Ajmer ('the Board') dismissing the revision petition (No.114/1998) filed by them against the judgment dated 15.07.1993 (Annex.5) as passed by the Revenue Appellate Authority-II, Jodhpur ('the RAA'). 2 By the common order dated 15.07.1993 (Annex.5) the RAA proceeded to allow the appeals bearing Nos.15/1989 and 16/1989 as filed by the persons said to be the transferees from the assessee ( respondents Nos.5 to 14 herein) and to set aside the order dated 08.06.1971 (Annex.2) as passed by the Authorised Officer in the said ceiling proceedings insofar it related to acquisition of 550 bighas of land comprised in khasra No.103; and held that the said land shall remain unaffected by the ceiling proceedings for the same having been purchased by the appellants (respondents Nos.5 to 14 herein) under registered sale deeds prior to 31st day of December 1969. The petitioners' attempt to challenge the said order dated 15.07.1993 (Annex.5) by way of a revision petition before the Board has failed inasmuch as the revision petition has been dismissed by the impugned order dated 03.09.2002 (Annex.6) on the ground of delay and so also on merits with the finding that the land in question was not available for acquisition in the ceiling proceedings. In brief, the background facts and the relevant aspects of the matter are that by the order dated 19.05.1971 as passed in Ceiling Case No.52/1970, the Authorised Officer found that the assessee Amar Singh son of Nawal Singh had in all about 1600 bighas and 6 biswas of agriculture land of Class B-III and B-IV at village Badi Sid and under the relevant ceiling law, his family was entitled to retain 536 bighas and 3 13 biswas of Class B-III and B-IV land and, thus, found that 1063 bighas and 13 biswas of excess land was to be resumed. The assessee was directed to state his option for the land to be surrendered and also to file an affidavit that the land was free from encumbrance. Thereafter, on 08.06.1971, the authority concerned noted the option of surrender as stated by the assessee and ordered acquisition of 1063 bighas and 13 biswas of his holdings that included the land in dispute comprised in khasra No.103 measuring 678 bighas and 4 biswas. The case of the present petitioners is that from out of the land so surrendered in the said ceiling proceedings, allotments were made in their favour, or in favour of their predecessors, in the year 1976. It is maintained that the petitioners were put in possession of the land so allotted and are continuing with such possession and, as per the allotment rules, they have acquired khatedari rights. The petitioners have pointed out that the allotments as made in their favour were sought to be questioned by the present respondents Nos.5 to 14 by way of an appeal ( No.91/1989) before the RAA that came to be rejected by the order dated 19.12.1992 (Annex.3). It is further pointed out that the respondents Nos.5 to 14, however, preferred other appeals before the RAA questioning the said ceiling proceedings and assailing the aforesaid orders dated 19.05.1971 and 08.06.1971 without impleading the petitioners 4 as parties to such appeals. The learned RAA proceeded to condone the delay in filing the said appeals and found that by different mutations bearing Nos.51, 56, 57, 50, 55, 49, 54, 53, 52 and 58, the land in question had been mutated on 14.03.1969 on the basis of the sale deeds dated 06.07.1966 as executed by the assessee Amar Singh in favour of the appellants. The RAA was of the view that the said transfers having been made before the cut-off date, the transferees had acquired khatedari rights; and that all such sale deeds were of recognised transfers under the ceiling law. The RAA observed that if the assessee would have disclosed such sale deeds, probably, the decision would have been different but neither the assessee stated so nor the Tehsildar made any enquiry. The learned RAA further observed that only unencumbered land could have been offered in the ceiling proceedings and when the land of khasra No.103 had already been purchased by the appellants, the assessee had no right to surrender the same and hence, the order of acquisition of land in khasra No.103 could not be sustained. The learned RAA, therefore, proceeded to allow the said appeals and particularly held the land in question to remain unaffected by the ceiling proceedings and proceeded to set aside the order dated 08.06.1971 insofar as it related to 550 bighas of land of khasra No.103. 5 The present petitioners filed the revision petition only on 14.07.1998 before the Board of Revenue against the aforesaid order dated 15.07.1993 as passed by the RAA in Appeal No.15/1989 whereby the land in question was held unaffected by, and was released from, the ceiling proceedings. The petitioners prayed for condonation of delay in filing the revision petition with the submissions that they were not impleaded as parties to the said appeal before the RAA and came to know about the orders passed in the appeal only on 23.06.1998 when the Patwari concerned informed that they were to be dispossessed from the land in question. The petitioners asserted that they were allotted the land in question on 13.06.1976 after the same was acquired in ceiling proceedings as per the order dated 08.06.1971 and hence, they were the affected persons. The petitioners contended that said appeal before the RAA, filed about 18 years after passing of the order dated 08.06.1971, was hopelessly barred by limitation and delay in filing the appeal ought not to have been condoned. The petitioners further submitted that the appellants (the respondents Nos.5 to 14 herein) had no locus standi to question the orders made in the ceiling proceedings; and yet further contended that the RAA had already approved the allotments made in favour of the petitioners and, therefore, Appeal No.15/1989 was not maintainable. 6 The learned member of the Board did not feel satisfied with the reasons as stated by the petitioners for condonation of delay in filing the revision petition and observed that about five years' delay in filing could not be condoned. On merits too, the learned member was of the view that the appellants before the RAA (the present respondents Nos.5 to 14) were the bona fide purchasers under registered sale deeds dated 06.07.1966 and the land in question, having already been mutated in their name, was not available for acquisition. On the question of locus standi, learned member of the Board was of the view that the purchasers were definitely the aggrieved persons and the Revenue Appellate Authority did not commit any irregularity in passing the judgment after hearing the said purchasers. The learned member of the Board discarded the submissions as made on behalf of the present petitioners about the effect of the order as passed in other appeal challenging their allotment with the observations that the said appeal was not decided on merits but was dismissed as being not maintainable under Section 225 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955'). The revision petition as filed by the petitioners was, therefore, dismissed by the order dated 03.09.2002 (Annex.6) Assailing the order dated 03.09.2002 (Annex.6) as passed by the Board and the judgment dated 15.07.1993 (Annex.5) as passed by RAA, learned counsel for the petitioner has 7 referred to the documents placed on record and submitted in the first place that the RAA had been seriously in error in passing the order impugned without extending any opportunity of hearing to the petitioners though, as being the allottees from the State Government after the land was acquired under the ceiling proceedings, they were directly the affected persons and necessary parties to the proceedings. Learned counsel further submitted that the RAA acted illegally in proceeding to condone the delay of about 18 years in filing the appeal in a wholly cursory manner without even stating the satisfaction on the cause for delay and without any finding if sufficient reasons were assigned for condonation of such an inordinate delay. Learned counsel submitted on the merits of the case that the entire approach of the learned RAA had been contrary to the scheme of operation of the related provisions and, with reference to the then existing provisions of Chapter III-B of the Act of 1955, submitted that so far the respondents Nos.5 to 14 are concerned, even if they be treated to be the transferees from the assessee, they do not have indefeasible and unfettered right to question the ceiling proceedings and rather, their remedy, if any, had essentially been against assessee or his property. Learned counsel contended that in any case, on the grievance as stated by the alleged transferees, the allotments otherwise validly made in favour of the petitioners cannot be taken away. Learned 8 counsel assailed the order passed by the Board with the submissions that the valuable rights of the petitioners have not been considered and the revision petition has been dismissed in a cursory manner without appreciating the fact that the petitioners were not impleaded as parties before the RAA and they had filed the revision petition without loss of time after being informed of the decision so rendered by the RAA. Learned counsel for the petitioners also submitted that merely because the respondents Nos.5 to 14 claim to be having some transfer deeds in their favour, the same cannot ipso facto be treated to be those of bona fide and recognised transfers; and the approach of the RAA and the Board in assuming the transfers to be conclusive and valid cannot be said to be correct. Learned counsel has referred to and relied upon the decisions of this Court in the case of Kesa Vs. State of Rajasthan: 1987 (1) WLN 193, Bhava and others Vs. State of Rajasthan & others.: 2006 (3) WLC (Raj.) 274, and Mohan Lal and others Vs. State & others: 2005 (3) CDR 2379. Learned counsel also submitted, in the alternative, that in any case, when the petitioners were allotted the land in question way back in the year 1976 and they had been in its possession for more than 22 years and have nourished and developed the same, even if the respondents Nos.5 to 14 are able to suggest any right existing in them, all the considerations in equity stand in favour of the petitioners and 9 for that purpose has relied upon the decision of the Hon'ble Supreme Court in the case of Brij Lal Vs. Board of Revenue and others: AIR 1994 SC 1128. Learned counsel for the respondents Nos.5 to 14 has strenuously opposed with the submissions that undeniable fact situation on record is that the land in question was transferred to them under the registered sale deeds dated 06.07.1966 and then, the same was mutated in their favour on 14.03.1969. Learned counsel submitted that in the face of such crucial facts, obviously, the land was not available for allotment in the year 1976 and, on the contrary, the contesting respondents had acquired khatedari rights over the land in question; and unless such khatedari rights were taken away in lawful manner, no allotment could have been made. Learned counsel submitted that under the scheme of the provisions dealing with ceiling on agriculture holdings, the assessee was required to be compelled to surrender unencumbered land; and the land in question that had already been transferred to the contesting respondents being not an unencumbered land, could not have been taken in surrender nor could have been allotted further. Learned counsel further submitted that the right and title of the transferees as acquired under the valid documents of transfer, remain unassailable and have been recognised by the Courts; and has referred to the decisions in Mahesh Kanwar and another Vs. State & others: 2003 (1) 10 WLC (Raj.) 560; Gulab Singh and another Vs. State & others: 2005 (1) RRT 1; Badri Lal & others Vs. State of Rajasthan and others: 1992 RRD 317; and Ifhtekhar Ali Vs. State of Rajasthan and others: 1992 RRD 320. Learned counsel further submitted that the learned RAA did not commit any error in condoning the delay in filing the appeal particularly when there was no counter to the affidavit filed by the appellants. Learned counsel asserted that the land in question has continued in possession of the contesting respondents and also pointed out that the land in question had been mutated in their name with reference to the copy of mutation entries (Annex.R/1) as made after the decision of the Board of Revenue. Learned counsel also submitted that the petitioners have not been able to show any right existing in them and there is nothing on record to find if the land was at all allotted to them in accordance with law. Learned counsel submitted that the authorities concerned have not committed any error in protecting and safeguarding the rights of the contesting respondents and, therefore, the impugned orders, not leading to any failure of justice, do not call for any interference. Learned counsel for the petitioners rejoined with the submissions that the allotment had, indisputably, been made in favour of the petitioners; and such a fact is rather emphatically stated in the reply as filed by the State 11 Government in this writ petition. Learned counsel further submitted that even the mutation entries referred by the counsel for the respondents fortify the fact that the land had earlier been mutated in the name of the petitioners. Learned counsel appearing for the other respondents have chosen not to join the issues involved in this writ petition. Having given a thoughtful consideration to the rival submissions and having perused the material placed on record, this Court is clearly of opinion that the impugned orders cannot be sustained and this writ petition deserves to be allowed. The approach of the learned member of the Board in dismissing the revision petition as filed by the petitioners falls too short of the requirements of dealing with the matter objectively and with reference to the submissions of the parties. True it is that the revision petition was filed by the petitioners against the judgment dated 15.07.1993 only on 14.07.1998 i.e., after about five years but then, the indisputable position available on record had been that the petitioners were not joined as parties in appeal before the Revenue Appellate Authority. Nothing has been indicated in the order impugned wherefrom it could even be inferred that the petitioners were aware of the impugned decision of the Revenue Appellate Authority before 29.06.1998, the date on which they obtained a certified copy thereof. The observations 12 as made by learned member of the Board that when the petitioners had obtained the copy of the impugned judgment on 29.06.1998, they should have immediately filed the revision petition thereafter but they filed the same only on 14.07.1998 cannot be said to be those of a reasonable and judicious approach. It is beyond comprehension as to what promptitude was more expected of the petitioners by the learned member of the Board particularly when the revision petition was filed within 15 days of receiving of the certified copy of the impugned judgment. When the petitioners were not even afforded an opportunity of hearing by the Revenue Appellate Authority for having not been impleaded as parties; and when the petitioners were directly affected by the result of the judgment dated 15.07.1993 particularly when asserted to be the allottees of the land in question after the same was acquired in accord with the option as stated by the assessee; and when they wanted to assail the order passed by the Revenue Appellate Authority, there were all reasonable grounds available to condone the delay in filing the revision petition. The impugned order dated 03.09.2002 discloses an error apparent on the face of record where the learned member of the Board has chosen not to condone the delay in filing the revision petition. 13 After making the observations that delay was not to be condoned, the learned member has, of course, made certain cursory observations in relation to the merits of the case but then, seems to have proceeded on the assumption that when the assessee alienated the land to the present respondents Nos.5 to 14 by way of sale deeds dated 06.07.1966 and the record indicated that some mutations had been affected, the said sale deed and mutation entries were conclusive for all the questions involved in the matter; and the alienations have been treated ipso facto to be valid, bona fide, and recognised one without examining any other aspects of the matter. Even in relation to the question of locus standi, the learned member of the Board has dealt with only one part of the arguments advanced on behalf of the present petitioners that the appellants before the RAA had no locus standi and rejected the same with the observations that the said appellants were bona fide purchasers, for the land having been transferred before the cut off date and hence, they could be treated to be aggrieved persons and the Revenue Appellate Authority did not commit any irregularity in passing the orders after hearing the said transferees. However, another significant aspect of the matter as specifically put forward by the present petitioners and as also noted by the learned member that the petitioners were the directly affected persons and yet were not impleaded as parties in the appeals 14 before the Revenue Appellate Authority has simply been ignored; and such an argument of the petitioners has not been dealt with at all. The petitioners also pointed out that earlier, the transferees-appellants had in fact filed an appeal challenging their allotment and the said appeal was dismissed. The learned member merely observed in this regard that the said appeal was not dismissed on merits but only on the question of its maintainability before the Revenue Appellate Authority under Section 225 of the Rajasthan Tenancy Act. On whatever ground such an appeal as filed by the appellants- transferees (present respondents Nos.5 to 14) was dismissed, it was certainly borne out that the appellants were aware of the allotments made in favour of present petitioners; and were, obviously, aware of the fact that challenge to the ceiling proceedings, particularly the order dated 08.06.1971, was going to have a direct impact on the rights of these allottees. The learned member of the Board has totally failed to consider that the appellants (present respondents Nos.5 to 14) did not, yet, implead the present petitioners as parties in their appeals before the RAA and the petitioners were never heard by the RAA. The position was explicit and clear before the learned member that the impugned judgment by the RAA, though directly against the interests of the petitioners but was passed without hearing them. The entire approach of the learned 15 member of the Board falls too short of objective consideration of the matter and the impugned order (Annex.6) cannot be sustained. For being satisfied that the revision petition has not been dealt with in accordance with law, this Court would have set aside the impugned order (Annex.6) as passed by the Board of Revenue and remanded the matter for reconsideration but and further, after having examined the judgment as delivered by the Revenue Appellate Authority (Annex.5), this Court is satisfied that the same cannot be sustained either; and no useful purpose would be served merely by remanding the matter to the Board of Revenue. The impugned judgment as delivered by the Revenue Appellate Authority cannot be approved for several reasons. In the first place, as already noticed hereinbefore, the petitioners, though being the directly affected persons in the matter, were not impleaded as parties in the appeal. The appellants ( the present respondents Nos.5 to 14) were not justified in framing their appeal in the fashion that the same was maintained only against the assessee or his legal representatives and the State Government despite being aware of the fact that the land in question comprised in khasra No.103 of village Badi Sid had been allotted to the present petitioners. As noticed, the fact that they were precisely in knowledge of such allotments is not far to seek and is borne 16 out directly from the order dated 19.12.1992 (Annex.3) as passed by the same Revenue Appellate Authority in their Appeal No.91/1989. The said order makes it clear that the appellants were aware of the fact that on 13.06.1976 the Sub- Divisional Officer, Phalodi did make allotments to the present petitioner from out of the said land comprised in khasra No.103. Obviously, the appellants (respondents Nos.5 to 14) were not forthright in their conduct while not impleading the present petitioners in their other appeals before the Revenue Appellate Authority that were decided only on 15.07.1993; and the decision as rendered by the Revenue Appellate Authority without hearing the directly affected persons cannot be sustained. Moreover, the learned RAA, merely with reference to the sale deeds dated 06.07.1966 and the mutations dated 14.03.1969, assumed the alleged transfers as being recognised transfers but has failed to consider the other requirements of law before a transfer could be said to be valid and recognised one in the ceiling law. The learned RAA further failed to examine as to what were the legal rights and remedies of the alleged transferees. In any case, for the petitioners having not been joined as parties, the order as passed by the RAA in their absence in releasing 550 bighas of land in khasra No.103 cannot be sustained particularly when it is found that allotments had been made to the 17 petitioners from out of the same land after surrender by the assessee. Yet further, the contention as urged on behalf of the petitioners that even in respect of inordinate delay in filing the appeal, the approach of the learned RAA had fallen short of legal requirements cannot be dubbed as being altogether irrelevant. The learned RAA has merely observed that there was no counter affidavit to the application under Section 5 of the Limitation Act with affidavit as filed by the appellants and, therefore, for unrebutted facts, the appeal was to be treated within limitation. What were such unrebutted facts has not even been indicated in the impugned order. Noticeable it is that the order passed in the ceiling proceedings as back as on 08.06.1971 was sought to be questioned by way of appeals filed only in the year 1989. The delay in filing the appeal being inordinate, of about 18 years, it was definitely required of the learned RAA to have at least indicated the grounds and reasons on which it felt satisfied that the delay was required to be condoned. The attempt on the part of anyone including the authorities concerned to do away with the rights of the persons who are allotted the land from out of that acquired in the ceiling proceedings has not been countenanced by the Courts and learned counsel for the petitioner has rightly referred to the decision of this Court in the case of Mohan Lal (supra) 18 wherein, inter alia, this Court has pointed out the principles behind operation of