1 D.B. CIVIL SPECIAL APPEAL (WRIT) NO.791/2002 (State of Rajasthan & Anr. Vs. L.R.s of Shanker Lal & Ors.) DATE OF ORDER:16.04.2007 HON'BLE MR.JUSTICE RAJESH BALIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.L.R.Upadhyaya, Government Advocate Mr.D.R.Bhandari, for the respondents BY THE COURT(PER HON'BLE MR.BALIA J.) Heard learned counsel for the parties. This appeal is directed against the order of learned Single Judge dated 14th May, 2002 allowing the writ petition filed by respondents petitioners and setting aside the order of the Board of Revenue. This litigation is off-shoot of ceiling proceedings taken in the case of Shambu Singh, the original holder of agricultural lands. Since deceased he is represented by non-petitioner No.s 5 & 6 in the writ petition. In terms of Chapter III-B of the Rajasthan Tenancy Act by order dated 31st July 1971, it was held that the said Shambu Singh had 116 standard acres of land in excess of ceiling limit. The present petitioners respondents were all transferees of said Shambu Singh and held registered sale deeds 2 in their favour. All the said sale deeds were executed and registered prior to 31st December, 1969. After the determination of ceiling proceedings in the case of Shambhu Singh, he had given option for surrendering the lands transferred by him and which were in possession of the petitioners. Since in the case of determination of ceiling area of Shambhu Singh, the transferees were not required to be served with notice, the petitioners had not been served with notice but when Shambhu Singh had surrendered the land held by these transferees under registered sale deeds, they had raised objections to such surrender, which included objection on the ground of having not been given any notice before determining the holdings for ceiling purposes held by the holder Shambhu Singh and that reasonable opportunity was not given to them; that the transfers made before 31st December, 1969 by registered sale deeds in favour of petitioner, who were bonafide agriculturists, could not be included in the holdings of Shambhu Singh under Chapter III-B of Rajasthan Tenancy Act, 1955 and that even if the ceiling determination was not liable to be interfered under the provisions of the ceiling law, the holder was bound to give option and the State was bound to acquire in the first instance only encumbered lands of the holder before they could reach the lands in the hands of the transferees. 3 The Board of Revenue in the first instance rejected the revision on 6.7.79. The review petition filed by the petitioners against the order dated 6.7.79, as well as the revision filed by Shanker Lal and 15 others were also dismissed by the order of the Board dated 5.12.86. The order dated 6.7.79 was passed by the Board in a revision filed against the order of the Revenue Appellate Authority dated 22.6.76, who had dismissed the appeal of the transferees against the order dated 9.3.76 by which the lands were identified for acquisition on the basis of report of the Tehsildar. The order dated 5th December, 1986 was passed in the revision preferred directly against the order dated 31st July, 1971 and also review petition against order dated 6th July, 1979 referred to above. The petitioners before the Board were a mixed lot having land transferred from the original holder under the registered sale deeds as well as under agreements to sale prior to 31st December, 1969. However, the petitioners-appellants before us are all transferees from Shambhu Singh under registered sale deeds prior to 31.12.69 and are bonafide agriculturists. These facts are not disputed before us. 4 The Board of Revenue held that the provision relating to surrender of unencumbered land being not mandatory and directory, the surrender of transferred land by the holder cannot be challenged by the transferees. The learned Single Judge has found firstly that in terms of Full Bench decision of this Court in Kesa vs. the State of Rajasthan reported in 1987 RLW 1, the transferees from the holder of the land were not required to be served with notice while the ceiling case was in progress and therefore the order dated 31st July 1971 cannot be indicted on the ground that the notices were not given to the transferees. The second question learned Single Judge framed for its consideration was whether the acquisition of land under the Ceiling Law was without authority of law, which he also answered in favour of the State. However, considering the fact that all the petitioners were transferees prior to 31st December, 1969 under registered sale deeds and were in possession of the land since before that time allowed the writ petition following the decision of the Supreme Court Brij Lal vs. Board of Revenue & Ors. (AIR 1994 SC 1128) and an unreported Division Bench decision of this Court in D.B.Civil Writ Petition No.1229/1980 – Smt. Gatudi vs. The Board of Revenue & Ors decided on 17.7.1995 keeping in 5 mind the principle of equity, justice and good conscience. However, he did not examine the effect of admitted position about transfers prior to 31.12.69 on determination of holding for ceiling purposes and the question of requirement of surrendering unencumbered land before surrendering encumbered lands by the holder, which include transferred lands. Hence this appeal by the State. It would be appropriate here in the first instance to briefly notice that Chapter III-B of the Rajasthan Tenancy Act was first introduced by Section 3 of the Rajasthan Tenancy Amendment Act,1960. Ultimately the ceiling laws under the Tenancy Act became effective from 1.4.66 the date on which the holdings of the tenants were required to be declared surplus and were required to be acquired. In the first instance under Section 30-D of the Scheme, any voluntary transfer affected by the holder on or after 25th February, 1958, otherwise than by way of partition or in favour of a person who was a landless person before the said date and continued to be so till the date of transfer, were not to be recognized for the purposes of determining the lands held by the holder. It further provides that apart from partition no other transfers even in favour of the landless person fulfilling the conditions mentioned in clause (ii) of Sub-Section (1) of Section 30-D were to be recognized if it had 6 been made after 9th day of December, 1959. However, subsequent thereto Section 30-DD was inserted in the Rajasthan Tenancy Amendment Act, 1970, which reads as under:- “30DD. Certain transfers to be recognised.- Notwithstanding anything to the contrary contained in Section 30-D, for the purpose of determining the ceiling area in relation to a person under Section 30-C- (i) Every transfer of land not exceeding thirty standard acres made by a person upto the thirty first day of December, 1969 in favour of an agriculturist domiciled in Rajasthan or in favour of his son or brother intending and capable of cultivating land personally and take to the profession of agriculture and who had attained the age of maturity on or before the said date; and (ii) every transfer to the extent as aforesaid made by a person before the first day of June, 1970 of land comprised in groves or farms of the nature referred to in clauses (a), (b), (d) and (e) of sub-section (1) of section 30-J as it stood prior to the commencement of the Rajasthan Tenancy Act (Second Amendment) Act, 1970 and acquired before the first day of May, 1959 in favour of his son or brother fulfilling the conditions mentioned in clause (i) and who attains the age of majority on or before the first of the aforementioned dates, shall also be recognised. Explanation I.- The expression “agriculturist” in this section shall mean a person who earns his livelihood wholly or mainly from agriculture and cultivates land by his own labour or by the labour of any member of his family or 7 alongwith such labour as aforesaid with the help of hired labour or servant on wages payable in cash or in kind and shall include an agricultural labourer and a village artisan. Explanation II. - The expression “domiciled in Rajasthan” in this section shall mean a person who permanently resides in Rajasthan since before the commencement of this Act.” According to this newly inserted provision, which is a non obstantale clause, having over-riding effect over Section 30- D, every transfer of land not exceeding 30 standard acres made upto 31st December, 1969 in favour of an agriculturist domiciled in Rajasthan or in favour of son or brother intending and capable of cultivating land personally and take to the profession of agriculture and who had attained the age of maturity on or before the said date were recognized for the purpose of determining ceiling area of a person under Section 30-C of the Act of 1955. In other words lands under such transfers were not to be included at all in the holdings of any person as on 1.4.1966. The petitioners who were all transferees under the registered sale deeds prior to 1969 on various different dates were governed by Section 30-DD and lands under such transfers could not have been included in the lands held by Shambhu Singh for the purpose of Chapter III-B. Inclusion of such lands on admitted facts in the holdings of Shambhu Singh under Chapter III-B was per se contrary to provisions of Ceiling Law. 8 It is writ large from the order of the competent authority and the successive orders passed by the Board of Revenue that this provision is conspicuously ignored. Undoubtedly, the petitioners as transferees from the holder were not entitled to be heard, but the authorities under the Act were equally under an obligation to discharge their functions strictly in accordance with the provisions of ceiling laws and were required to take notice of the amendment in law and could not have acted in ignorance of amended law while holding ceiling proceedings and render such bonafide transferees remediless by making an apparent erroneous order on undisputed facts and claim their fault to be beyond reach of repair. Apparently, notwithstanding the fact that the petitioners transferees were not entitled to get notice to be heard at the time of determining the ceiling proceedings, when their rights were affected by an apparently erroneous order in patent contravention of the provisions of statute, they could come out with the plea to bring the error apparent on face of record to the notice of the appellate authority and get a relief. It is one thing to say that the transferees were not entitled to notice and participate in the ceiling proceedings but it does not entail that the provisions of ceiling law render them remediless against patently illegal order passed by ceiling authority affecting 9 their right adversely, else law would become unreasonable. A person who has been affected could maintain challenge not on the ground of lack of notice but on the ground that order is contrary to the statute on merits. This issue was squarely raised before the authority concerned. The fact that petitioners are all transferees under the registered sale deeds prior to 31.12.69 is not in dispute as noticed by the learned Single Judge. The other conditions of Section 30-DD were not fulfilled is not the case of the appellants either. In these circumstances, we are of the opinion that the order of the learned Single Judge is sustainable on this ground alone, even if it can be said that in giving effect to the ceiling proceedings if a person who is holding land contrary to the ceiling laws he cannot be allowed to hold the land on the ground of equity, justice and good conscience arising merely from long possession. Secondly, it is equally true that under the provisions relating to surrender of surplus land, the holder of the land was under an obligation to surrender in the first instance unencumbered lands in his possession and it is only if after surrender of unencumbered lands the requisite surplus land is 10 not available for acquisition, that the encumbered land can be reached by the authorities for acquisition. It is also not in dispute or doubt that the lands under a valid transfer are deemed to be encumbered lands for the purpose of exercising option to surrender surplus holdings can not be allowed in violation of said rule so as to obliterate the mutual rights existing between the transferor and transferees. In case land is not ultimately acquired, the contractual rights between the contracting parties are not altogether vanished, but they exist. In other words after surrender of the land if there is no surplus land required for further surrender by the holder, the transferor cannot recover back the possession from the transferees on the ground that such transfer is not recognisable under ceiling law while computing his holdings. By no provision of law the transfers are declared invalid or void but the same are merely not recognized for the purpose of determining holdings of transferor for ceiling purposes else their mutual rights and obligation remain unaffected. In case the land so transferred is acquired in ceiling proceedings because the holder had no other unencumbered lands to surrender as surplus land, the compensation payable to the holder is first to be applied to return of consideration received from transferees on the principle of frustration of contract under the provisions of Contract Act, under specific provisions made under Ceiling Law. The transferees are entitled 11 to protect their possession over the disputed land until they become liable to be dispossessed strictly under the provisions of ceiling law. It is on this anvil that legislation has made this provision in the Act that the holders shall be required to surrender firstly unencumbered land and only thereafter the encumbered land. The provision in this regard is mandatory in character and not directory and cannot be defeated by unscrupulous holders of land or by authorities under ceiling law. In the aforesaid circumstances, the conclusion arrived at by the Board in holding that revision of respondent petitioners as time barred was also erroneous. The petitioners were not parties to ceiling proceedings, hence they could not have come to know about the original order in ceiling case of Shambhu Singh unless they got notice to surrender lands in their possession under registered sale-deeds. They did file revision immediately thereafter within reasonable time raising all issues discussed above, albeit without mentioning it to be revision against order of competent officer determining ceiling case of Shambhu Singh. Review was filed against the order dismissing revision in time. The review challenging order of ceiling determination too was made subject to challenge to come on that technical difficulty. At any rate, Board had power to suo moto revise the erroneous order & for the exercise of such power no period is prescribed. It was a fit case in view of settled legal position of law in which 12 Board ought to have exercised its suo moto power to correct patent illegality in making the order determining ceiling area in clear violation of statutory provision which has affected valuable rights of petitioners through an illegal order. This Court in Mahesh Kanwar & Anr. vs. State & Ors reported in Western Law Cases(Raj) 560 has noticed that a holder under the provisions of the ceiling laws who has been found to be holding surplus land under ceiling law, under an obligation to surrender in the first instance those lands which are unencumbered by giving an option in that regard whether with reference to the requirement under second proviso to sub- section (2) of Section 30-E of Chapter III-B of the Rajasthan Tenancy Act, 1955 or under Section 16(4) read with Section 18 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. It was also observed that for the purposes of satisfying the claim of the State to acquire surplus lands of the holder, the State can be compelled in the first instance to acquire the unencumbered lands before reaching the encumbered lands, in the hands of transferees or other person who hold such land where such encumbrance or burden has been created by the act of transferor. Similarly, in the aforesaid decision the Court also 13 considered the meaning of `encumbrance', that 'encumbrance is not confined to operation of right in land but include right to land which subsists in a person other than the present and that results in diminution of its value'. The Court concluded, “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 are encumbrance or burden or clog or restraints the rights of transferor in relation to exercise of his rights in relation to 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.” In coming to this conclusion the Court also approved the view taken in the judgment of the learned Single Judge in Banwari Lal Nagpal vs. State of Rajasthan & Ors. (1983 RLR 1), wherein the Court said after referring to the provisions of Sec. 16 & 18 of the Act of 1973 that if the two provisions are read together, the scheme of law clearly appears to be that although the transfer of the land is not recognised and the transferred land will be considered to be land of the transferor and thereafter surplus land would be declared but in connection with the surrender of the surplus land, the transferor is required first to 14 surrender the unencumbered land and it is only when unencumbered land is not available then the balance of surplus land can be recovered from the transferee and in that event the transferee shall be paid the price out of the amount of acquisition payable to the transferor. Repelling the contention of the counsel for the State that there is no provision empowering the Authorised Officer to compel the person first to surrender the un- transferred land and if there still remains the balance of surplus land to be delivered to the State, then the transferred land can be surrendered by him and that in absence of such a provision, the transferee has no right to seek any relief by moving the authorised officer, whereby the possession over that land can be taken by the Authorised Officer, which has been retained by the transferor, the Court said, “I am unable to agree and accept the same. From the scheme of Sec.16(4) and Sec.18 of the Act, it is clear that first, that surplus land is to be surrendered, which is with the transferor and 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 meaning thereby that when the entire land remaining in possession of 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 in my opinion, is implicit in the very scheme of things. There reason is that there is unequivocal positive obligation of the transferor to 15 surrender the land. Such an unequivocal positive obligation, in my opinion, can be enforced by the Authorised Officer. It cannot be conceived that the legislature would have provided such unequivocal , positive and mandatory obligation which could be enforced under the law and the transferee would simply be driven to an action for refund of the consideration and damages. If such would have been the intention of the legislature, there was no need for the legislature to have made it imperative for the transferor to surrender the surplus land out of the land remaining with him. The Authorised Officer is empowered to recover the balance of surplus land from the transferee. This implies that he will first recover possession of the surplus land out of the land remaining with the transferor and it is in this way, that obligation provided under sub-section (4) of Section 16 of the Act is enforceable against the transferor. If this view is not taken then the object of these provisions would be defeated.” The principle was approved by this Court in Sukhvendra Singh & Ors. vs. Board of Revenue & ors. reported in 1991(2) RLR 543. In another Division Bench judgment in Badri Lal vs. State & Ors. reported in 1992 RRD 317 the court reiterated the same view. A Division Bench of this Court in Iftikhar Ali vs. State of Rajasthan - (1992) (1) RLW 616 said, “The question is as, to whether the State Govt. could compel him to offer unencumbered land first and only when the same was acquired than the balance of surplus land has to be recovered from transferees. That appears to be clear from Section 30-E(2) Second proviso and Sections 16(4) and 18 of the New Ceiling Law.” We are of the opinion that in view of the aforesaid authoritative pronouncements of this Court the view of the Board 16 of Revenue that provisions of acquiring unencumbered land is directory and he cannot be compelled to surrender unencumbered land in the first instance cannot be sustained and the error is apparent on record. For the aforesaid discussions the appeal deserves to be dismissed though not on the grounds that weighed with the learned Single Judge but on grounds discussed above. Accordingly, the appeal is dismissed. No order as to costs. (BHANWAROO KHAN) J. (RAJESH BALIA) J. BKS/-