KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 1 KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) Dated:- 23rd April,2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Sudhir Sharma, for the petitioner. Mr. Sundeep Bhandawat, Government Counsel for the respondents. 1. This writ petition is directed against order dated 20.6.96 passed by the Board of Revenue, Rajasthan, whereby the appeal preferred by the petitioner against the order dated 19.5.95 passed by the Additional Collector, Pali u/s 23(2) of Rajasthan Imposition of Ceiling on Agriculture Holdings Act, 1973( in short “the Act of 1973” hereinafter), has been partly allowed. However, the aforesaid order passed by the Additional Collector, Pali refusing to recognise the transfer of the land made by the petitioner prior to 1st January, 1973 and acquiring the excess land ad measuring 92 bighas 1 biswa , stands confirmed by the order impugned. Besides the aforesaid orders, the petitioner has also challenged order dated 21.11.96 passed by the Baord of Revene whereby the review petition preferred by the petitioner for review of the order dated 20.6.96 has been rejected. 2. The relevant facts in nutshell are that the ceiling proceedings against the petitioner under the Act of 1973 were initiated and dropped by the Sub Divisional Officer, Bali vide KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 2 order dated 23.9.75 holding that he did not possess any surplus land. Thereafter, the ceiling proceedings were reopened by the State Government u/s 15(1) of the Act of 1973 and the matter was referred to the Additional Collector, Pali for decision afresh. 3. The Additional Collector, Pali on the basis of the evidence on record found that the 227 bighas land was transferred by the petitioner to different person on the same day for a consideration of Rs.4,500/- which is just meager and therefore, the transfers made cannot be considered as bona fide. Accordingly, while refusing to recognise the transfers, the Additional Collector directed to acquire the excess land determined as 92 bighas and 1 biswa. 4. On appeal by the petitioner , the Board of Revenue opined that the burden to prove that the transfers are bona fide is upon the transferor and the petitioner has not been able to establish that the transfer effected prior to 1.1.1973 are bona fide. The learned Board opined that merely because the transfers have been made by registered sale deed, the same cannot be treated to be bona fide. The learned Board held that the petitioner has transferred 227 bighas land for a consideration of Rs. 4500/- only, which cannot be said to be bona fide. That apart, the learned Board observed that the entire land has been transferred by the petitioner on the same day and has not KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 3 retained even one bigha land for himself which also indicate that the transfers are not bona fide. Accordingly, the order passed by the Additional Collector has been confirmed by the Board , however, the petitioner has been granted one month time to give his option regarding the land beyond the ceiling limit to be acquired. 5. It is submitted by the learned counsel for the petitioner that the courts below have seriously erred in holding that the transfers effected by the petitioner prior to 1.1.1973 are not bona fide inasmuch as, the consideration of Rs. 4500/- for sale of 227 bighas of land is highly inadequate. The learned counsel submitted that in absence of any inquiry in respect of prevalent market price at the relevant time in the area, the assumption of inadequacy of the price is not sustainable in eye of law. In this regard, the learned counsel has relied upon a Bench decision of this Court in “Inder Kanwar vs. State of Rajasthan” 2006(2) CDR, 1859(Raj.). It is further submitted by the learned counsel that while passing the order impugned , the Board of Revenue has not taken into consideration that the evidence led by the petitioner to establish that the transfers are bona fide have not been considered by the original authority objectively. The learned counsel submitted that the petitioner got examined the witnesses Kesa, Kalu , Gumna, Dhana, Bhima and Sohan Singh, KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 4 Patwari however, their statements have been discarded by the Additional Collector so also the Board of Revenue without consideration. Accordingly, it is submitted by the learned counsel that the finding arrived at by the Additional Collector(Ceiling), Pali , affirmed by the Board of Revenue is ex facie perverse and therefore, the order impugned deserves to be quashed and set aside. 6. On the other hand, the learned Government Counsel submitted that the burden to prove that the transfers made prior to 1.1.1973 are bona fide is upon the transferor and he is under an obligation to prove them to be bona fide by producing cogent evidence. The learned counsel submitted that merely on the basis of the registered sale deed produced by the petitioner , it cannot be presumed that the transfers are bona fide. The learned counsel submitted that the findings arrived at by the courts below after appreciation of evidence on record cannot be said to be perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 7. I have considered the rival submissions and perused the record. 8. As per the provisions of 6 of the Act of 1973 , the transfer of land by way of sale , gift , exchange etc. made on or after 26th KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 5 September, 1970 is deemed to have been made in order to defeat the provisions of the Act of 1973 and such transfers shall not be recognised or taken into consideration in determining the ceiling area applicable to a person . However, if the transfers are made before 1.1.1973 and the same are found to be bona fide , the burden whereof is on the transferor are recognisable. Therefore, there is no quarrel on the preposition that if the transferor fails to prove the transactions as bona fide by producing the cogent evidence, the land covered by such transactions shall be taken into consideration in determining the ceiling area applicable to a person. 9. It is to be noticed that in the instant case, the transfers were effected by the petitioner by registered sale deeds in favour of Bhim Raj, Kalu and Dhana and Shri Gamna. Admittedly,the sale deeds were produced by the petitioner in the proceeding before the Additional Collector(Ceiling) and the transferees Kalu, Gamna, Dhana and Bhima were examined as witnesses. That apart, Sohan Singh, Patwari was also got examined as witness on behalf of the petitioner. However, a perusal of the order passed by the Additional Collector(Ceiling) goes to show that he found the transfers to be not bona fide solely on the ground that all the transfers were made on the same day and 227 bighas of land has been sold for consideration of Rs.4500/- which is highly KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 6 inadequate. However, while arrived at the finding as aforesaid, the statement of the witnesses have not simply been considered by the authority concerned. 10. In Inder Kanwar's case (supra) , a Bench of this court while examining an identical issue held as under:- “9. Having perused the orders, it is apparent that on admitted facts, the price has been assumed to be too low without any enquiry as to the question what was the prevalent price of the land in the area where the transferred land was situated as on the date of transfer or in the proximate time. Without holding any enquiry in respect of the prevalent price in the year 1972, the assumption of the inadequacy of the price in the year 1985 cannot be sustained. Without referring to any material and conclusion regarding the prevalent market price of the land in question in the area on or about the date of transfer, it cannot be said by any comprehension that the price fetched was too low so as to give an inference of lack of bona fide as is required to be established u/s 6 of the Act 1973. Undoubtedly, the burden of proving bona fide was on the holders during the period of 25.2.1970 to the commencement of the Act but whether the apparent consideration shown in the transfer was inadequate was for the authority to prima facie satisfy himself on the basis of any material that may be before him by making comparison of the prevalent market price of the area to raise assumption about inadequacy of price. The inadequacy of consideration stated in regard to transfer-deed cannot be assumed without any material in comparison. Raising presumption of inadequacy of price in respect of the transaction which has taken almost more than twenty years before the orders were passed, without any material merely on surmises and conjunctures cannot be sustained. 10. We are, therefore, of the opinion that it is error apparent on the face of record as the presumption about inadequacy of price has been raised by the KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 7 competent officer as well as Board of Revenue without any material onr ecord and without making any efforts to find out whether the price disclosed as consideration for transfer for the protection of land in question was inadequate. This finding could have been arrived at only after laying foundation for satisfying the competent authority about inadequacy of price on some existing material. Having not done so, the orders on its face cannot be sustained, as the protection has been provided to the transfer of the agricultural land between 25.7.1970 to the date of commencement of the Act of 1973 as recognisable transfers if transfers are bona fide and genuine, there is no presumption that such transfer must be presumed to be not bona fide and genuine without any material on the basis of which even subjective opinion can be framed. For framing subjective opinion about lack of bona fide of any transfer, bona fide and genuineness of the transaction has to be considered on the basis of material on record.”(emphasis added) 11. Thus, in view of the position of the law settled by this court as aforesaid, in my considered opinion, the orders impugned passed by the courts below holding the transfers effected by the petitioner as not bona fide solely on the ground that the consideration passed is grossly inadequate are not sustainable. 12. There is yet another aspect of the matter. While considering the issue as to whether the transfers made by the petitioner are bona fide or not , the court below was under an obligation to consider the entire evidence on record and could not have brushed aside the statements of the witnesses produced by the petitioner without consideration. Thus, the orders impugned passed ignoring the relevant evidence on KESHA VS. BOARD OF REVENUE & ORS. (S.B.CIVIL WRIT PETITION NO. 4537/96) 8 record cannot be countenanced by this court for this reason also. 13. For the aforementioned reasons, in considered opinion of this court, the orders impugned passed by the courts below without making proper inquiry and without considering the evidence on record cannot be sustained and deserves to be quashed and set aside. 14. In the result, the writ petition is allowed and order dated 19.5.95 (Annexure 3) passed by the Additional Collector(Ceiling), Pali ,order dated 20.6.96 (Annexure 4) and order dated 21.11.96 (Annexure 6) both passed by the Board of Revenue are quashed and set aside. The matter is remanded to the competent authority for decision afresh in respect of the bona fide and genuineness of the transfer in question after proper inquiry and giving an opportunity of hearing to the petitioner. No order as to costs. (SANGEET LODHA),J. Aditya/-