CW 70/98 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.70/1998 Kalyani Bai Versus State & Others /Reportable/ Date of Order ::: 29/05/09 Hon'ble Mr. Justice Ajay Rastogi Mr. K K Mehrishi, for petitioner Ms RajSharma, Addl.Govt.Counsel, for respondent State Instant petition is directed against re-opening of ceiling proceedings at the instance of Deputy Secretary (Ceiling) Revenue Department Government of Rajasthan, Jaipur vide order dt.22/06/1982 (Ann.1A) making Reference for inquiry to the District Collector, Bundi who declared 24 bighas 15 biswas of land as surplus vide order dt.11/12/95 (Ann.2) duly affirmed by Board of Revenue in revision vide judgment dt.31/07/97 (Ann.7), which the petitioner seeks to quash. Chapter III-B of Rajasthan Tenancy Act, 1955 (“Old Ceiling Law”) came into force on 01/04/1963, under which every land holder having been in possession of land in excess of ceiling area as prescribed under Chapter III-B of Old Ceiling law was required to file written statement of his agricultural holdings before the Sub-Divisional Officer. Pursuant to which, Ram Narain, husband of petitioner, having khatedari rights over his agricultural CW 70/98 //2// holdings measuring 84 bighas 15 biswas of land in village Kheriya Durjan Chambal Irrigation Area Group-I village, Tehsil Keshorai Patan, District Bundi, filed declaration U/r 9 of Rajasthan Tenancy Fixation of Ceiling of land on Agricultural Holdings Rules (“Fixation Ceiling Rules”) before SDO Bundi. The authority held that as on 01/04/1966, Shankerlal, one of the sons of land holder, was major and was entitled for a separate unit and accordingly proceedings were dropped vide order dt.03/05/72. Thereafter, in view of S.15 (2) of Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (“New Ceiling Law”) which was introduced by repealing Chapter III-B of Old Ceiling Law & published in Official Gazettee on 29/03/1973, Dy Secretary (Ceiling), Department of Revenue issued notice to husband of petitioner on 06/06/79 and after affording opportunity of hearing to him, ordered re-opening of ceiling proceedings vide order dt.22/06/82 (Ann.1A) and while making Reference authorised Additional Collector, Bundi to conduct inquiry and decide ceiling proceedings afresh. Pendente proceedings, on 15/11/83 land holder & husband of petitioner died whose legal heirs CW 70/98 //3// were brought on record who filed their reply to show cause notice on 14/08/85 but they failed to appear in proceedings and accordingly, ex parte proceedings were ordered on 07/07/89. However, Additional Collector, Bundi vide order dt.11/12/95 (Ann.2) held that on 01/04/1966, family of husband (land holder) of petitioner was consisting of five members; and there was no evidence brought on record that any of his sons including eldest son Shankerlal had attained majority on 01/04/66 and was entitled to hold a separate unit; and family being consisted of five members was entitled to retain 60 bighas of land under ceiling law and accordingly declared 24 bighas & 15 biswas of land as surplus. However, petitioner, claiming herself as widow of land holder (Ramnarain), after passing of the order dt.11/12/1995 (Ann.2) filed two applications on 19/06/96 (Ann.3) for setting aside ex parte proceedings and another on 06/07/96 (Ann.5) for re-calling order dt. 11/12/95 & for conducting proceedings afresh on the premise that despite being legal heir and necessary party, she was not afforded opportunity of hearing; which were rejected vide order dt.11/09/96 (Ann.6) holding that her husband was duly represented by her sons CW 70/98 //4// and her rights were not at all in any manner adversely affected – against which she preferred revision (No.174/96/T/A/Bundi) before Board of Revenue and which too was dismissed vide judgment dt.31/07/97 (Ann.7). Counsel for petitioner submits that u/s 15(2), limitation has been prescribed of six years from the date of commencement of new ceiling law (Ceiling Act, 1973) viz. 01/01/1973) and six years being expired on 01/01/1979 their case could not have been reopened U/s 15(2) of the Act, 1973 thereafter and thus very notice issued on 06/06/79 for re-opening of proceedings were without jurisdiction and deserves to be set aside. In support, Counsel relied upon decision of this Court (DB) in Dhanraj Vs. State (1995 RRD 15). Besides legal objection raised, Counsel for petitioner submits that she being widow is also legal heir & representative of deceased land holder but no opportunity of hearing was afforded either by Deputy Secretary or Additional Collector on re- opening of proceedings under new ceiling law, which has caused prejudice to her and her application against ex parte order was arbitrarily rejected by Additional Collector and also by the Board of Revenue, Rajasthan CW 70/98 //5// under orders impugned. Counsel further submits that having failed to consider submissions of petitioners in right perspective, how far re- opening of ceiling proceedings could be said to be sustainable in the eye of law. Contrarily, Government Counsel while supporting orders impugned submits that after Act No.6 of 1979 came into force from 30/12/78 whereby second proviso to sub-section (2)of S.15 of new ceiling law was substituted; according to which notice could have been issued for re-opening of ceiling proceeding within seven years from the date of final order sought to be re-opened or upto 30th June, 1979, whichever is later. Taking note thereof, Government Counsel submits that in instant case, notices were issued indisputably on 06/06/79 which was much within period of limitation; and duly covered under 2nd proviso to sub-section (2) of S.15 of new ceiling law duly amended by Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment & Validation) Act (No.6 of 1979). Government Counsel further submits that family of petitioner was consisting of five members as on 01/04/1966 entitled for one unit which has been finally upheld even under orders impugned and her right in all respect CW 70/98 //6// has been protected and as regards other children, no documents came on record by which it could be inferred that either of them had attained majority on 01/04/66; certainly there was excess land in their holdings which have rightly been declared surplus vide orders impugned and petitioner being duly represented by co-legal heirs/representatives of deceased land holder, her cause has not been prejudiced even in case of alleged ex parte proceedings initiated during re-opening of ceiling proceedings; as such order impugned does not call for any interference. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. Before examining legal issue which the petitioner has raised for the first time, this Court would like to look at the old & new ceiling laws. Indisputably, after Chapter III-B of Rajasthan Tenancy Act (Old ceiling law) came into force on 01/04/1963, all such land holders having in possession of excess land over ceiling area were required to file declaration before SDO concerned; pursuant to which, petitioner's husband as he then was, also submitted his declaration which was CW 70/98 //7// accepted and finally proceedings were dropped on 03/05/1972; however, notices were issued for re-opening of ceiling proceedings by Dy. Secretary (Ceiling) Revenue Department, Jaipur on 06/06/79 and after hearing the parties, proceedings were reopened for fresh decision U/s 15(2) of new Ceiling law vide order dt.22/06/82 (Ann.1A). Pending proceedings on account of death of land holder (her husband) on 15/11/83, his legal heirs/representative were brought on record and they submitted their written reply on 14/08/85. Ceiling Act, 1973 (New ceiling law) (Act No.11 of 1973) was introduced vide notification dt.01/01/1973 but was published in official gazette on 29/03/73 on having received the assent of the President on 28/03/1973 and as per Rajasthan Act No.12 of 1974 substituting S.1(3) of Act, 1973, it shall be deemed to have come in force in whole of the State of Rajasthan with effect from the 1st day of January, 1973. The Ceiling Act, 1973 was basically introduced by State Government with the object that area of agricultural land available for cultivation in the State is limited and there had been disparity in holding of agricultural land which necessitated to adopt land reforms CW 70/98 //8// & acquisition of lands from the hands of persons with whom large chunk of lands is concentrated, and it was considered necessary to acquire agricultural land in excess of ceiling area and to distribute such lands to landless & other persons among rural population as it would sub serve common good, increase agricultural production & promote justice, social and economic. With a prime object to reduce such disparity & to refix ceiling area on agricultural holdings, Act of 1973 was enacted and with regard to period of limitation for re-opening of ceiling procedings either under Old or New ceiling law, suitable amendments were made so that purpose of enactment (Act, 1973) could be served. Let me advert to provisions of Act, 1973 which are relevant for deciding the controversy raised herein since matter pertains to re-opening of proceedings of old ceiling law U/S 15(2) of Act, 1973 which came into force from 01/01/73.- “15. Power to re-open Cases: (1) Notwithstanding anything contained in any provision of this Act, if the State Government at any time, within three years of publication of the final statement under section 13, is satisfied that, the ceiling area in relation to a person has been determined in CW 70/98 //9// contravention of the provisions of this Act, is may direct any officer subordinate to it to re-open a decided case and inquire into it and to determining the ceiling area and the surplus area afresh in accordance with provisions of this Act. (2) Notwithstanding anything contained in section 40, if the State Government, at any time within three years of the commencement of this Act, is satisfied that the ceiling area in relation to a person as fixed under the law repealed by the said section has been determined in contravention of the provisions of such repealed law, it may direct any officer subordinate to it, to re-open a decided and inquire into it and to determine the ceiling area and the surplus area, afresh in accordance with the provisions of such repealed law. U/s 15(2) of Act, 1973, powers vest with State Government to reopen ceiling cases of old ceiling law (Chapter III-B of Tenancy Act). However, for re-opening cases decided under old ceiling law, initially in the principal Act, of 1973, period of limitation was three years from commencement of this Act 1973 i.e. from 01/01/1973, which was amended vide Rajasthan Imposition of Ceiling on Agricultural Holding Amendment) Ordinance, 1975 (Ordinance NO.12 of 1975) making it effective w.e.f. 15/08/1975 ad infra: “3. Amendment of Section 15, Rajasthan Act 11 of 1973 – For section 15 of the principal Act, the following section shall be, and CW 70/98 //10// shall be deemed always to have been substituted, namely : “15. Power to re-open cases.- (1) XX XX XX (2) Without prejudice to any other remedy that may be available to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important or evidence which has since come to its notice, such order is required to be re- opened, it may, at any time, within five years of commencement of this Act, direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions: 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 re-opened on account of its discovery of new and importance matter or evidence which has since come to its notice or due to some mistake or error apparent on the face of the record.” Thus, by virtue of amendment Ordinance No.12 of 1975 (supra), Section 15(2) of Ceiling Act, 1975 came to be substituted as quoted (supra) – according to which, for re-opening cases decided under old ceiling law, period of CW 70/98 //11// limitation was increased from Three to Five years. Since Ceiling Act, 1973 came into force on 01/01/1973, period of limitation provided therein was going to expire on 31/12/1977, and by that time, large number of cases remained pending where order of re- opening ceiling cases were due to be passed, and the Rajasthan Legislative Assembly was not in session, Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Ordinance, 1977 (No.4 of 1977) was promulgated and came into force on 29/12/1977 making amendment in S.15 ad infra: “2. Amendment of section 15, Rajasthan Act No.11 of 1973. - In section 15 of the Rajasthan Imposition of Ceiling on agricultural Holdings Act, 1973 (Rajasthan Act No.11 of 1973) - (i) in sub-section (1), for the expressions “three years” and “two years” the expressions “four years” and “three years” respectively shall be and shall be deemed always to have been substituted. (ii)In sub-section (2), for the words “five years” the words “six years” shall be substituted.” Thus, in S.15(1) expressions “three years” & “two years”, were substituted by “four years” and “three years” respectively while in S.15 (2), the words “five years”, were substituted by “six years”, which became effective a day CW 70/98 //12// prior to period of limitation being expired viz. 29/12/1977; and immediately when Rajasthan Legislative Assembly came into session, amendment was introduced by Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Act, 1978 (Act NO.6 of 1978) making it effective from 08/04/78 and its S.2 provided substitution of S.15 of Rajasthan Act NO.11 of 1973 (Principal Act) ad infra: “2. Substitution of Section 15, Rajasthan Act 11 of 1973 – Section 15 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Rajasthan Act-11 of 1973, hereinafter referred to as the principal Act, shall be substituted by the following, namely :- “15. Power to re-open cases. - (1) Notwithstanding anything contained in this Act, if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under this Act is in contravention of the provisions of this Act and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re-opened, it may direct any officer subordinate to it to re- open such decided matter and to decide it afresh in accordance with the provisions of this Act. CW 70/98 //13// Provided that no such direction shall be issued unless a notice to show cause against the proposed action ha been served upon the person concerned: Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of four years from the date of the final order sought to be re- opened or after the expiry of three years of the commencement of Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Ordinance, 1975, whichever is later. (2) Without prejudice to any other remedy that may be available to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important or evidence which has since come to its notice, such order is required to be re- opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions: Provided that no such direction shall be issued unless a CW 70/98 //14// notice to show cause against the proposed action has been served upon the person concerned. Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of six years of commencement of this Act; 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 re-opened on account of its discovery of new and importance matter or evidence which has since come to its notice or due to some mistake or error apparent on the face of the record.” As a result of substitution (supra) of S.15 of Principal Act 1973, itself, by amendment Act NO.6 of 1978 making it effective w.e.f. 08/04/1978, in case of re-opening of ceiling case decided under New ceiling law, no notice as referred to in 1st proviso to S.15(1) can be issued after expiry of four years from the date of final order sought to be re-opened or after expiry of three year from commencement of amendment Ordinance No.12 of 1975, whichever is later, as provided in 2nd proviso to S.15(1); and similarly, in case of re- opening of ceiling case decided under repealed law (old ceiling law), no notice under 2nd proviso to S.15(2) can be issued after expiry of six years of commencement of this Act, CW 70/98 //15// 1973. Followed thereto, Rajasthan Imposition of Ceiling on Agricultural Holding (2nd amendment) Ordinance, 1978 was promulgated on 14/08/1978 whereby amendment was made and expression “three years of commencement of Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment) Ordinance, 1975” was substituted by expression “the 31st day of December, 1978” in 2nd proviso to sub- section (1) of S.15 of Act, 1973, which was taken note of while Rajasthan Imposition of Ceiling on Agricultural Holdings (Amendment & Validation) Act, 1979 (Act No.6 of 1979) received the assent of the President on 07/04/1979 so as to further amend the Ceiling Act, 1973 and as per S.1(2) of Amendment Act NO.6 of 1979, it shall be deemed to have come in force on 30/12/1978; by which S.15 of Principal Act of 1973 was further substituted ad infra in relation to the period (a) from 01/01/73 to 07/04/78 and (b) from 08/04/78 to 13/08/78: - “2. Amendment of section 15, Rajasthan Act-11 of 1973. - (1) Section 15 of Rajasthan Imposition of Ceiling on Agricultural HOldings Act, 1973 (Rajasthan Act-11 of 1973), herein after referred to as the principal Act, - CW 70/98 //16// (a) in relation to the period from the 1st day of January, 1973 to the 7th day of April, 1978 shall be deemed to have been substituted by the following, namely : “15. Power to re-open cases. - (1) Notwithstanding anything contained in this Act, if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under this Act is in contravention of the provisions of this Act and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re-opened, it may, at any time, within four years of the date of such final order or within three years from the 15th day of August, 1975 whichever is later, direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with the provisions of this Act.” (2) Without prejudice to any other remedy that may be available to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any CW 70/98 //17// final order passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important or evidence which has since come to its notice, such order is required to be re-opened, it may, at any time within six years from the commencement of this Act, direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions: 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 re-opened on account of its discovery of new and importance matter or evidence which has since come to its notice or due to some mistake or error apparent on the face of the record.” (b) in relation to the period from the 8th day of April, 1978 to the 13th day of August, 1978 shall be deemed CW 70/98 //18// to have been substituted by the following, namely : “15. Power to re-open cases. - (1)Notwithstanding anything contained in this Act, if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under this Act is in contravention of the provisions of this Act and that such order is prejudicial to the State Government or that on account of the discovery of new and important matter or evidence which has since come to its notice, such order is required to be re-opened, it may direct any officer subordinate to it to re- open such decided matter and to decide it afresh in accordance with the provisions of this Act. Provided that no such direction shall be issued unless a notice to show cause against the proposed action ha been served upon the person concerned: Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of four years from the date of the final order sought to be re- opened or after the expiry of three years of the 15th day of August 1975 whichever is later. (2) Without prejudice to any other remedy that may be available CW 70/98 //19// to it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if the State Government, after calling for the record or otherwise, is satisfied that any final order passed in any matter arising under the provisions repealed by section 40, is in contravention of such repealed provisions and that such order is prejudicial to the State Government or that on account of the discovery of new and important or evidence which has since come to its notice, such order is required to be re- opened, it may direct any officer subordinate to it to re-open such decided matter and to decide it afresh in accordance with such repealed provisions: Provided that no such direction shall be issued unless a notice to show cause against the proposed action has been served upon the person concerned. Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of six years of commencement of this Act; 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 re-opened on account of its discovery of new and importance matter or evidence which has since come to its notice or due to some mistake or error apparent on the face of the record.” As per S.2(2) of Amendment Act, 1979, 2nd proviso to Sub-sections (1) & (2) in Section CW 70/98 //20//