SBCWP NO.884/00. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.884/2000. Prabhudayal Sharma & Anr. Vs. Board of Revenue & Ors. Date of Order:- April 15, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Mathur for the petitioners. Shri K.K. Mehrishi for respondents No.4, 6 & 10. ****** BY THE COURT:- This writ petition has been filed challenging the order passed by the Board of Revenue dated 30/10/1999 by which revision petition filed by private respondents was partly accepted and the order dated 4/7/1980 vide which the ceiling proceedings which were earlier closed on 30/8/1972, were ordered to be reopened. 2) Shri R.K. Mathur, learned counsel for the petitioners has submitted that late father of the SBCWP NO.884/00. 2 petitioners was not keeping well therefore he was virtually not in a position to take a correct decision. He gave his consent for surrendering 10 standard hectares of the surplus land and owing to abovesaid circumstances, that consent cannot be deemed to be accepted as voluntary consent. Learned counsel submitted that petitioners had filed review petition before the District Collector, Alwar seeking review of the order dated 4/7/1980 by which cealing proceedings which were earlier closed vide order dated 30/8/1972 was reopened. Additional Collector did not decide the review petition and in fact did not make any mention thereabout in his subsequent order dated 2/9/1997 whereby he directed Tehsildar Rajgarh to make spot inspection and report as to if land of Khasra No.3393 and 3655 could be sufficient to satisfy the requirement of 10 hectares. Learned counsel relied on the judgment of Division Bench of this Court in Kesrilal Vs. Board of Revenue : RRD 1997 150 in support of his argument. Learned counsel for petitioner submits that the learned Board of Revenue has also failed to appreciate the law and facts in their true perspective. The Board of Revenue erred in law while holding that land bearing Khasra No.3933 is an encumbered land. SBCWP NO.884/00. 3 3) Shri K.K. Mehrishi, learned counsel appearing for respondents No.4, 6 & 10 has opposed the writ petition and argued that land of Khasra No.3933 (total 37.14 bighas) was wrongly entered in the revenue record in the khatedari of the petitioners during settlement which land was purchased by the private respondents. Private respondents were khatedars of that land and subsequently they filed suit for correction of entries which was decreed. That land was correctly taken as encumbered land under the provisions of Section 30E(2) proviso second of Ceiling Area (Old Ceiling Law) (Chapter III-B) of the Rajasthan Tenancy Act, 1955 and was rightly excluded by the Board of Revenue leaving it open to the Government to take measures for acquiring other unencumbered land. Learned counsel submitted that the order dated 4/7/1980 was passed on the basis of the consent given by the father of the petitioners and that this order for the first time has been challenged before this Court in the writ petition filed in 2000. Petitioner did not file any appeal before the Board of Revenue nor filed any cross appeal in appeal filed by the private respondents. 4) Shri R.K. Mathur, learned counsel for the petitioners has rejoined and submitted that SBCWP NO.884/00. 4 petitioners were completely unaware of the order passed on 4/7/1980 and no notice was given to them prior to reopening of the ceiling proceedings and that once petitioners were accepted as the khatedar of the said land and the consent was given by their father behind their back, the very right of the petitioners to remain in the possession of land bearing Khasra No.3393 cannot be taken away. The review petition remained pending and undecided before the Additional Collector till 20/8/1996 and which is why the writ petition was filed in the year 2000, which cannot be said to suffer from delay and latches. 5) I have heard learned counsel for the parties and perused the documents forming part of the record. 6) Contention of the learned counsel for the petitioners that review petition before the Additional Collector remained pending till 20/8/1996 and therefore even if they did not challenge the order dated 4/7/1980 before the Board of Revenue, they can straightway challenge such order before this Court while questioning the correctness of the subsequently passed order dated 30/10/1999 by the Board of Revenue, cannot be accepted because the submission that petitioners SBCWP NO.884/00. 5 were unaware of all these proceedings during all this time, does not inspire confidence. In any case, fact is that order that was passed on 4/7/1980 was an order passed on the consent given by the father of the petitioners who was head of the family and that in whose name, the lands were earlier recorded. That order was never questioned by the petitioners before any forum known to law till the present writ petition was filed in the year 2000, and now after 20 years, such order cannot be allowed to be questioned particularly when petitioners even in the appeal filed before the Board of Revenue in 1998 did not raise any whisper about the correctness of the same. So far as the option given by the father of the petitioners with regard to land of Khasra No.3355 is concerned, same has been found to be beyond the span of old ceiling land in which cut-off date was 31/12/1969 and the transaction of sale was of 1976 and no one came forward at that time to challenge that part of the judgment of the Board of Revenue. No interference with that part of the judgment is called for. Regarding land of Khasra No.3393, the Board of Revenue, in my view, has rightly held that land being an encumbered land is covered by the provisions of Section 30E(2) proviso second of SBCWP NO.884/00. 6 Ceiling Area (Old Ceiling Law) (Chapter III-B) of the Rajasthan Tenancy Act, 1955 and therefore rightly excluded the same from the purview of ceiling. I therefore do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. anil