1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1371/1998. (Madan Singh & Others Vs. State of Rajasthan & Others) DATE OF ORDER : March 05, 2009 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ None is present. BY THE COURT : In this writ petition, the petitioners are challenging order Annex.-2 passed by the Deputy Secretary, Revenue (Ceiling) Department, Government of Rajasthan, Jaipur, so also, the petitioners have prayed for quashing judgment rendered by the Addl. Collector, Pali (Annex.-6 and 13) and judgment passed by the Board of Revenue (Annex.- 18, 19 and 20) passed in connection with ceiling proceedings against late Kishan Singh. The petitioners have also prayed for quashing mutation Annex.-1. 2 Brief facts of the case are that the petitioners are legal representative of late Kishan Singh, more specifically petitioners No.1 and 2 are sons of Kishan Singh and other petitioners are wife and daughters of Kishan Singh. Respondents initiated ceiling proceedings against late Kishan Singh and his brother Bheek Singh under both old and new Ceiling Acts, however, no land was acquired in the said proceedings as there was no excess land. Proceedings under the old Ceiling Act was started in case No.231/71 which was decided on 29.05.1972 and proceedings under the new Ceiling Act was started in case No.348/75 which was decided on 29.06.1976. In para 2 of the writ petition, the petitioners have averred that on 08.09.1982 a notice under Section 15 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was issued to the legal representatives of Bheek Singh to show cause why the above cases may not be opened for the reasons mentioned therein. No notice under Section 15 of the Act was issued to Kishan Singh. Thereafter, respondent No.1 passed order dated 23.04.1983 against Bheek Singh and Kishan Singh in exercise of power under Section 15 (1) of the Act of 1973 and directed the Addl. Collector, Pali to reopen the ceiling cases and issue notice to the non-applicants for the 3 contemplated inquiry. However, no order was passed under Section 15 (2) of the Act of 1973. In para 4 of the writ petition, it is stated that the case was again initiated by the Addl. Collector, Pali and draft statement was again issued by him which was incomplete. The said draft statement was issued in pursuance of order dated 16.09.1987, which is placed on record as Annex.-4. Upon perusal of the order, it is clear that despite the report of the Patwari that Kishan Singh had seven members in the family as on 01.01.1973, number of family members of Kishan Singh was considered to be five. In the circumstances, therefore, late Kishan Singh had appointed counsel to plead his case; but, the counsel pleaded no instruction on 07.10.1987 and it was held that number of family members is five as per report of the Tehsildar. In this view of the matter, it was concluded by the respondents that about 28 bigha land was in excess and, accordingly, order was passed to acquire the said excess land. As per the petitioners, final draft statement was issued by the Addl. Collector, Pali which is placed on record as Annex.-7, but, that too, was incomplete. The case of the petitioners is that when final statement was received by late Kishan Singh, he again approached the counsel 4 and, as per his advice, application under Section 14 of the Act of 1973 was filed and it was said that he was ill, therefore, while praying for removal of the errors, it was further said that five family members were wrongly considered whereas in the previous proceedings seven family members were considered, therefore, considering number of family members to be five is incorrect. Certain other grounds were also raised in the application filed under Section 14 of the Act of 1973. Learned Addl. Collector, Pali entertained the application and vide order dated 16.09.1989 directed Kishan Singh to submit evidence if he so chooses. Thereafter, evidence of two witnesses was recorded on 20.09.1989 and, again, time for evidence was given. The Addl. Collector, Pali, however, dismissed the application filed by late Kishan Singh vide order dated 09.03.1995. Thereafter, the petitioners preferred two appeals before the Board of Revenue; one, against the original order dated 12.10.1988 and, another, against order passed upon the application filed by the petitioners under Section 14 of the Act of 1973. Application under Section 5 of the Limitation Act for condonation of delay was also filed. Learned Member, Board of Revenue, however, rejected both the appeals by separate orders dated 5 24.12.1996. The appeal was rejected as time barred without considering the petitioners’ reasons for the delay and the other appeal was dismissed on the ground that the learned Addl. Collector (Ceiling) had jurisdiction to decide the application within the scope of Section 14 of the Act of 1973 and there is no merit in the appeal for deciding the same on merit. The petitioners preferred review application against order Annex.-18 dated 24.12.1996 passed by the learned Member, Board of Revenue, in which, notices were issued. One of the petitioners Madan Singh appointed another counsel, therefore, counsel for the other petitioners did not argue the application, therefore, the learned Member, Board of Revenue Shri Dharam Singh Sagar dismissed the review application vide order dated 02.01.1998. Name of late Kishan Singh was deleted without giving any opportunity to surrender the land. Being aggrieved and dissatisfied by the orders passed by the Board of Revenue and Addl. Collector, Pali, the petitioners preferred this writ petition on various grounds. It is vehemently argued by learned counsel for the petitioners that the orders passed by the learned Board of Revenue and Addl. Collector, Pali are ex facie illegal and 6 against the law having been passed without jurisdiction, therefore, the same deserve to be set aside. As per the petitioners, no notice was issued under Section 15 of the Act of 1973 to late Kishan Singh, therefore, no proceedings against late Kishan Singh were initiated by the respondents; but, this aspect of the matter was not considered by the learned Board of Revenue. It is urged that the provisions regarding issuance of notice to the parties are mandatory in law, therefore, initiation of the proceedings against late Kishan Singh was totally without jurisdiction. Hence, the orders impugned passed against late Kishan Singh deserve to be quashed and set aside. Learned counsel for the petitioners submits that in fact there were seven members in the family of late Kishan Singh on the relevant date, therefore, the learned Addl. Collector, Pali was under obligation to consider seven family members at the time of deciding the matter; but, he has erroneously considered five members in the family for the purpose of determining the claim under the ceiling law. According to the petitioners, the Addl. Collector, Pali was bound to decide the case as per the directions and not on his own but no decision was given by the authority on the directions but order was passed on the grounds which is not tenable. As per the petitioners, the law is very well 7 settled that the poor litigants shall not suffer for the fault of the counsel. No order shall be passed against the party on the ground that the counsel has pleaded no instruction. In this view of the matter, the whole proceedings deserves to be quashed and set aside. Per contra, in the reply to the writ petition, it is submitted by the respondents that the contentions raised by the petitioners are not admitted in the manner as raised by the petitioners. It is submitted that although cases under old ceiling law as well as new ceiling law were decided but under Section 15 (1) of the Act of 1973, the State Government was having the power reopen the cases where, upon examination, it is found that the order passed is in contravention of the provisions of the Act and is prejudicial to the State Government or that on discovery of new and important evidence, it is necessary to reopen the case. Therefore, nothing wrong has been committed by the respondents while reopening the matter. The respondents refuted the allegation of the petitioners with regard to not deciding the matter in accordance with law. It is stated that as per order dated 23.04.1983 both Bheek Singh and Kishan Singh, sons of Asal Singh were given notice and it is correct that order to reopen the case was made under Section 15 (1) because the new ceiling law 8 provides under Section 4, especially under its second proviso, that if under the ceiling area under the new Act exceeds the ceiling area under the old repealed law, then, ceiling area of the repealed law, would be applicable. Hence, practically there is no need to reopen the case under Section 15 (2) to reopen specifically and separately under the old law. It is further submitted by the respondents that the contention of the petitioners is totally incorrect that the draft statement was incomplete. In fact, Annex.-4 is a detailed statement giving complete position of land held by the assessee wherein the number of members of the family was also incorporated. The petitioners themselves have relied upon the report of the Patwari which contradicts the petitioners’ case because out of seven members shown, one at S.No.2, Must. Dakh Kanwar is shown as “passed away”, leaving not seven but six members. The Tehsildar further verified the report and concluded that there were only five members. This fact is given in the order dated 17.12.1979 passed by the S.D.O. relying upon the report of the Tehsildar and, again, stated in his order dated 12.10.1998. On behalf of the State, it is replied that it will be useful to state that the assessee/petitioners chose to absent themselves almost throughout the proceedings 9 despite service of the draft statement and so was their counsel who pleaded no instructions as done by him on 07.10.1988 and the case was decided on 12.10.1988 implying that the petitioners conceded to the order, having no objection. Not objecting to “no instructions” or not demanding right to be further heard shows petitioners’ assent. Therefore, there is no force in this writ petition. More so, the S.D.O. has rightly observed in the order that five members can be reckoned in the family because dead persons were included in the number of family members by the Patwari and this fact was verified by the Tehsildar that there are five members in the family. In this view of the matter, no error has been committed by any of the authorities while deciding the matter in accordance with law. I have perused the entire record of the case. Admittedly, the first order was passed on 12.10.1988 and, against that order, the petitioner did not choose to file application for correction of the mistake. Thereafter, when the said application was rejected in the year 1995 vide order dated 09.03.1995, then, he chose to file appeal against order dated 12.10.1988 and order dated 09.03.1995, separately. Learned Board of Revenue considered all aspects of the matter and rejected the 10 appeal on the ground that the appellants had participated in the proceedings before the Courts below till 07.10.1998 and, subsequently, despite being aware of the order, when he filed application under Section 14 of the Act of 1973, the Board of Revenue dismissed the appeal as time barred since it was filed on 12.06.1995. In this view of the matter, while rejecting the appeal the learned Board of Revenue examined all the judgments from the angle of detecting any discrepancy which could be identified on the face of record; but, it is found that the matter was decided by the Addl. Collector (Ceiling) on the basis of the report relied upon by the S.D.O. and both the authorities reached conclusion that the matter pertained to the ceiling law, therefore, the learned Board of Revenue rejected the appeal filed against order dated 09.03.1995. I have perused both the orders as well as order passed by the Board of Revenue upon the review petition. In my opinion, in this case no error has been committed while rejecting the petitioners’ claim because on merit also it was found that there were only five member in the family and in the report of Patwari, dead persons were also included, therefore, the finding in this regard cannot be said to be perverse or illegal. In my opinion, no error has been committed by the courts below while rejecting the 11 petitioners’ claim that seven members should be treated in the number of family members. In this view of the matter, I see no reason to interfere in this writ petition. Hence, this writ petition is dismissed. (Gopal Krishan Vyas) J. Ojha, a. 12 Address : Chand Pole Chowka, Jodhpur, Rajasthan, India. Age : 52 years and ten months Sex : Male Nationality : Indian Home Telephone : +91 (0291) 2792003 Mobile Telephone : +91 98291 35167 E-mail address : arun_mamta1981@rediffmail.com Marital Status : married Occupation : Government Service The Director of Operation, Alliance and Leicester Credit Bank, 180 Balham High Road, London, SW12 9BL. Tel Number: +44 (703) 188-9835 Fax Number: +44 (700) 592-1296 Email: alliance_Leicester On Thu, 09 Apr 2009 Rev.Dr Frank Luis wrote : > 13