1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT 1. Pema & Ors. Vs. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL WRIT NO.522/1997 2. Moola Ram & Ors. Vs. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL WRIT NO.523/1997 3. Achla Ram & Anr. Vs. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL WRIT NO.524/1997 4. Lachha Vs. State of Rajasthan & Anr. D.B.CIVIL SPECIAL APPEAL WRIT NO.525/1997 5. Sensa & Ors. Vs. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL WRIT NO.526/1997 6. Pokar & Anr. Vs. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL WRIT NO.527/1997 Date of Judgment : 2-12-2008 PRESENT HON'BLE MR. JUSTICE N.P. GUPTA HON'BLE MR. JUSTICE K.S.CHAUDHARI,J. Mr. PP CHAUDHARY, for the appellants. Mr. OP BOOB, GOVERNMENT COUNSEL, for the respondents. BY THE COURT (PER HON'BLE CHAUDHARI,J.): REPORTABLE: Appellants have filed these appeals, against the 2 common order dt. 4.3.1997 passed by learned Single Judge in S.B.Civil Writ Petitions No.1535 to 1540 of 1987. In all the above appeals, common questions of facts and law are involved. Hence, they are being decided by a common order. For convenience, the facts in this judgment are being taken from Special Appeal Writ No.522/1997, Pema & Ors. Vs. State of Rajasthan & Ors. In this case, Fateh Singh son of Prithvi Singh, resident of Kotari, Tehsil Desuri, District Pali was holding agricultural land measuring 7751/3 bighas Chahi as well as Barani. Out of this land, he had transferred some land in favour of his family members and some land by way of different registered sale-deeds to appellants and other persons. Fateh Singh filed returns, as required under the Ceiling Law. Legality of the transfer made by Fateh Singh was examined by SDO, Bali, Revenue Appellate Authority and Revisional Court up to the final stage, and transfers made by Fateh Singh were ignored and not recognized and ultimately, it was held that Fateh Singh was entitled to hold only 30 standard acres of land. The appellants submitted, that Fateh Singh originally transferred the land on 14.6.1968 by way of registered sale-deeds to number of transferees, and name of the said transferees were effected in the revenue record since the date of transfer, and the said transferees, who were agriculturists and domiciled in Rajasthan, remained in possession of the land. The appellants purchased the land from the said transferees by registered sale-deeds and after that, the appellants remained in possession of the land and their names were entered in the revenue record. Fateh Singh 3 furnished returns of agricultural land in excess of the ceiling area, which was already transferred by him and had also submitted particulars of additional land on 2.2.1970 mentioning therein names of transferees as well as annexed copies of the sale-deeds. The aforesaid transfers were ignored by the Board of Revenue vide order dt. 24.4.1976, holding therein, that the transfers, so made in favour of the family members were not valid. Some of the transferees, who had been left with some land after selling the land to the appellants, filed objections before SDO, Bali, who vide order dt. 6.1.1977, exempted the agricultural land from the purview of the ceiling area of Fateh Singh as mentioned in the order of SDO Annexure-3. Fateh Singh challenged this order before the Revenue Appellate Authority and the Revenue Appellate Authority vide order dt. 15.3.1980, dismissed the appeal. Fateh Singh preferred a revision before the Board of Revenue against the order of Revenue Appellate Authority, which was dismissed by the Board of Revenue vide Annexure-4 dt. 31.3.1987. It was held by the Board of Revenue that under section 30-E(ii) of the Land Ceiling Act, the land which is unencumbered should be taken first and rest of the order of the Revenue Appellate Authority was not interfered with. In compliance of the order of the Revenue Appellate Authority, vide order dt. 29.4.1987, SDO, Bali passed an order Annexure-5 for taking possession of the land so involved. Appellants being aggrieved by the order Annexure-5, when they had been threatened to be dispossessed, approached this Court for quashing of the impugned orders dt. 29.4.1987, 6.1.1977 and 31.3.1987 after serving notice for demand of 4 justice Annexure-6 on the ground that they are subsequent transferees of the land and their names having been recorded in the revenue record but they were not impleaded as party before passing of any order. Appellants also alleged that some of the Khasra numbers, which have been transferred by some sale- deeds have been exempted from the purview of ceiling area, though appellants' Khasra numbers have been treated to be in the purview of ceiling area and thus, without any reasonable basis, the appellants have been treated differently and unequivocally and have been denied equality of law and equal protection of law guaranteed under Article 14 of the Constitution of India. They further alleged that they have never been informed by Fateh Singh or by their sellers that the land in question is in ceiling affected area. It was also alleged that some land transferred by Fateh Singh subsequent to 14.6.1968 but before 1.12.1969 had been exempted. It was further alleged that transfers made before 1.12.1969 were recognized by way of amendment after the introduction of amended section 30-DD in the Rajasthan Tenancy Act, 1955. It was further alleged that under the provisions of section 30-E(ii), the land, which is unencumbered, is to be taken in preference to the encumbered land. It was further alleged that the appellants are bonafide agriculturists as well as landless persons at the time of transfer in their favour. Hence, the appellants' land is exempted from the purview of ceiling area and they are being deprived of their right to property without any authority of law, which contravences the mandate of Article 300-A of the Constitution of India. Appellants prayed that respondents may 5 be directed not to acquire/dispossess the appellants from the disputed land and order dt. 29.4.1987 may be quashed and in case appellants have been dispossessed from the disputed agricultural land, their possession may be restored, as if they were never dispossessed. Respondents No.1 and 2 filed reply and alleged that appellants being subsequent transferees from the transferees, have no locus standi to file writ petition and they are not entitled to any right of hearing. It was further alleged that appellants were not at all necessary parties at any given point of time in any of the impugned orders. Fateh Singh's surplus land had already been declared finally and appellants have purchased some land from transferees. To defeat the provisions of law itself, appellants cannot challenge the declaration made by Fateh Singh. It was further alleged that orders dt. 6.1.1977, 31.3.1987 and 29.4.1987 Annexure-P/3, P/4 and P/5 respectively had already become final between the parties and had not been challenged by any party. Hence, transfers made by Fateh Singh were not recognized and ignored vide aforesaid orders, and possession of the appellants is that of trespassers and such possession cannot be considered to be possession with encumbrance on the land. It was further alleged, that Fateh Singh was allowed to retain only 30 standard acres of land within ceiling limit and rest of his entire land was declared to be surplus, so State Government is entitled to take its possession. It was further alleged, that exempted land constitutes only the land which the original holder is entitled to hold and retain 6 under the ceiling law and thus denied any discrimination. It was denied that appellants are bonafide agriculturists and landless persons and thus, the order passed by the SDO in pursuance to the order passed by Board of Revenue is in accordance with law, and prayed that petitions be dismissed with costs. After hearing both the parties, learned Single Judge held, that appellants had no locus standi to challenge any of the orders, passed by the Revenue Authorities, and further held, that appellants had no right of being heard before Revenue Authorities. It was further held, that appellants transferees were not domiciles of Rajasthan at the time of transfer. It was further held, that declaration of surplus land of Fateh Singh has attained finality and notice Annexure-P/6 to handover the possession to the State was a consequential corollary and further found that writs are without merit and thus the writ petitions were dismissed. Respondent No.3 was impleaded as party vide order dt. 2.5.1997 and even after service, he did not appear. Heard learned counsel for the parties and perused record. Learned counsel for the appellants argued, that the appellants, who are transferees of the land have locus standi to institute proceedings and further submitted, that they had a right of being heard and the order passed by Revenue 7 Authorities, without giving them an opportunity of being heard, deserves to be set aside. It was further argued that the appellants are bonfide landless purchasers of the land and domiciles of Rajasthan and cultivating the land since last 30 years, hence, they are entitled to retain possession of the land. He further argued, that vide order dt. 6.1.1977, certain transfers have been recognized and discriminatory orders cannot be passed against the appellants by non-recognizing transfers and thus, the learned Single Judge committed error in dismissing the writs. Hence, appeals may be accepted and notice Annexure-P/6 along with other orders may be quashed and appellants' possession may be protected. On the other hand, learned counsel for the respondents argued, that appellants being transferees of land had no locus standi to file the writ petition and had no right of being heard, hence, orders passed by the Revenue Authorities and by learned Single Judge are in accordance with law. He further argued, that appellants are subsequent transferees and original transferees were not landless persons and domiciled in Rajasthan and the declaration of surplus land has been settled by Revenue Courts and thus, the learned Single Judge has not committed any error in dismissing the writs, so appeals may be dismissed. Learned counsel for the appellants argued, that appellants had locus standi to file writs. It is admitted position that Fateh Singh, who was original owner of the land, had 8 transferred some of his agricultural holdings in favour of other persons vide registered sale-deed dt. 14.6.1968 and appellants purchased the land from those transferees in 1978, and are in possession of land since last 30 years. If the possession of land is taken by the State Government in pursuance to the order Annexure-P/6, appellants' right is directly affected and thus they have locus standi to challenge the orders passed by Revenue Authorities. In D.B.Civil Special Appeal No.910/2007, Chunni Lal & Ors. Vs. State of Rajasthan & Ors., this Court held that in ceiling proceedings, transferees have locus standi to challenge the determination of ceiling area qua recognition/non- recognition of transfer made in his/their favour when acquisition of surplus land reaches his rights. Thus it becomes clear, that order Annexure-P/6 is directly going to affect the right of the appellants. Hence, appellants have locus standi to file writs, challenging those orders, and the learned Single Judge has committed error in holding, that appellants have no locus standi to challenge earlier orders passed by the Revenue Authorities under the Ceiling Act. Learned counsel for the appellants further argued, that Revenue Authorities have passed the orders without giving an opportunity of being heard to the appellants, and thus have committed error in passing those orders and, therefore, the orders may be set aside. He placed reliance on a decision of this Court in Bhera Ram & Ors. Vs. State of Rajasthan & Ors., 1979 WLN 224, wherein learned Single Judge has held, that transferees are entitled to notice and opportunity of being heard 9 in ceiling proceedings and orders passed without notice are vitiated and ineffective. Learned counsel for the appellants himself placed reliance on the decision of this Court in Chunni Lal & Ors. Vs. State of Rajasthan & Ors. and two others (supra), in which, it has been held, that they are undoubtedly precluded from raising the ground that the determination of ceiling area without notice to them is invalid. Learned counsel for the respondents placed reliance on a decisions of this Court in Nandlal vs. State of Rajasthan, 1978 RLW 198 and Rajeshwar Singh vs. S.D.O., Amber & Ors., 1980 WLN 592, in which, Division Bench of this Court held, that transferees are not entitled to an opportunity of hearing or notice. This matter was further decided by Full Bench in Kesa Vs. State of Rajasthan, 1987 RLW 1 in which, it was observed as under:- “The scheme of the Act indicates the intention of Legislature that unrecognised transfers are to be ignored. That the transferor is to prove that the transfer effected by him is recognisable. As stated earlier Legislature was conscious of the interest of the transferee and made provision that the transferee is entitled to reimbursed and transferor is bound to restore to him the advantage obtained by him and that the farmer can claim reimbursement from the compensation money payable to the transferor by the State Government u/s. 30C of the Act. This being the position of law it was held in NandLal's case (1) that under the scheme of Chapter IIIB of the Act Legislature by necessary implication 10 excludes the application of the principles of natural justice regarding audi alteram partem in favour of the transferees and we fully agree with the opinion so expressed by the Division Bench of this Court.” It was further observed that :- “In view of the above discussion, we arrive at the conclusion that there is no provision in Chapter III B or the Rules framed under the Act for issuing notice to the transferees. The Act and the Rules framed thereunder by necessary implication exclude principle of natural justice in proceedings under Chapter III B of the Act and as such the transferees cannot claim notice in ceiling proceedings under Chapter III B of the Act.” Thus, it becomes clear, that appellants, who are transferees from earlier transferees vide sale-deed dt. 29.5.1978, are not entitled to an opportunity of hearing or notice and thus, the learned Single Judge has not committed any error in rejecting the plea of appellants that the appellants had right of hearing or notice. Learned counsel for the appellants argued, that appellants are landless agriculturists and domiciles of Rajasthan and are in possession of the land since last 30 years. It is admitted case, that the appellants are transferees from earlier transferees and the earlier transferees are admittedly not domiciles of Rajasthan. The law prohibits the transfer of land to non-agriculturists and non-domiciles of Rajasthan. Learned 11 counsel for the appellants could not place any evidence on record, by which it can be presumed that earlier transferees were not non-agriculturists and domiciles of Rajasthan and in such circumstances, the transfer made, in favour of the earlier transferees, was not protected by section 30DD of the Rajasthan Tenancy Act, which reads as under:- “30-DD. 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 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 (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 12 “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 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.” Merely because of assertion, that appellants are agriculturists and domiciles of Rajasthan, cannot defeat the mandate of law as enshrined in section 30-DD of the Act. Had earlier transfer been in favour of landless agriculturist domiciled in Rajasthan, determination of ceiling area of Fateh Singh would have been different, but as the earlier transferees are admittedly not domiciled in Rajasthan, appellants, being subsequent transferees, cannot take benefit of section 30-DD of the Act. Apparently, the appellants are in possession of disputed land since last 30 years but merely because they are in possession of the land, no right accrues to them to retain unauthorised possession. Learned counsel for the appellants placed reliance 13 on a judgment dt. 17.7.1995 passed in D.B.Civil Writ Petition No.1229/1980, Smt. Gaudi vs. The Board of Revenue & Ors., in which, in ceiling proceedings, land transferred in favour of Gatudi's husband Hajari was recognized by Revenue Authorities, and in such circumstances, it was ordered that the possession of Gatudi, over the land in question, will not be disturbed. The aforesaid decision in Smt. Gaudi vs. The Board of Revenue & Ors. (supra) does not help to the appellants because in the present appeals, transfers of the land were not recognized and have been finally settled by the order dt. 24.4.1976, which order became final on further being challenged by Fateh Singh. The SDO, Appellate Authority and the Board of Revenue have also affirmed the order in regard to the declaration of the surplus land and also in regard to the recognising or not recognising the certain transfers and in compliance of the final orders passed by the Revenue Authorities, notice Annexure-P/6 to handover the possession was issued, which is in accordance with law. Learned counsel for the appellants submitted, that as the appellants are in possession of disputed land since last more than 30 years and surplus land taken in ceiling proceedings are to be distributed in landless agriculturists domiciled in Rajasthan, disputed land may be ordered to be regularized in the name of appellants. Looking to the long possession of the appellants 14 over the disputed land, we deem it proper to direct the concerned Revenue Authorities to sympathetically consider the case of appellants and give preference in allotment of land to the appellants, if they apply to the concerned authority for allotment of land and at the time of purchase by them are found to be landless agriculturists domiciled in Rajasthan. In the light of aforesaid discussion, these appeals are devoid of force, and deserve to be dismissed. Hence, the appeals of the appellants are dismissed. However, it is clarified, that if the appellants apply for allotment of land in dispute to them, or regularisation in their favour within a period of four weeks from today, the concerned authorities shall consider their application sympathetically, and the other things being equal, will give preference in allotment of land to the appellants provided that the concerned authorities are satisfied, that at the time of purchase of the land by the appellants, they were landless agriculturists domiciled in Rajasthan. In case the applications are filed within aforesaid time, the possession of the appellant shall not be disturbed for a period of one month after decision of the application for allotment, in case the application for allotment is decided against the appellants. In case, the appellants fail to apply within a period of four weeks from today, this direction, given for protection of possession, shall not be available to the appellants. [ K.S.CHAUDHARI ],J. [ N P GUPTA ],J. /m.asif/