Rajasthan High Court – Jodhpur
Pratap Singh vs B.O.R. And Ors on 16 January, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:44345-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Special Appeal Writ No. 21/2020
1. Raghvendra Singh son of late Shri Bheem Singh Ji, aged
about 58 Years, resident of Beenawas, Tehsil Bilara,
District Jodhpur, Rajasthan.
2. Manvendra Singh son of late Shri Bheem Singh Ji, aged
about 52 Years, resident of Beenawas, Tehsil Bilara,
District Jodhpur, Rajasthan.
----Appellants
Versus
1. The Board of Revenue, Rajasthan, Ajmer.
2. The Additional Collector, Jodhpur.
3. The authorized Officer Jodhpur (SDO, Jodhpur).
4. The State of Rajasthan, through Revenue Secretary,
Government of Rajasthan, Jaipur.
5. Pratap Singh son of late Shri Bheem Singh Ji, aged about
55 Years, resident of Beenawas, Tehsil Bilara, District
Jodhpur, Rajasthan.
----Respondents
With
D.B. Special Appeal Writ No. 64/2017
Pratap Singh son of late Shri Bheem Singh Ji, Beenawas, Tehsil-
Bilara, District-Jodhpur.
----Appellant
Versus
1. Board of Revenue, Rajasthan, Ajmer.
2. Additional Collector, Jodhpur.
3. The authorised Officer, Jodhpur SDO, Jodhpur.
4. State of Rajasthan through Revenue Secretary,
Government of Rajasthan, Jaipur.
5. Raghvendra Singh son of late Shri Bheem Singh Ji,
resident of Beenawas, Tehsil-Bilara, District-Jodhpur.
6. Manvendra Singh son of late Shri Bheem Singh Ji,
resident of Beenawas, Tehsil-Bilara, District-Jodhpur.
----Respondents
For Appellant(s) : Mr. Satya Prakash Sharma,
Mr. Abhimanyu Khatri,
Mr. D.S. Rajvi, and
Mr. Vikas Joshi, Advocates
For Respondent(s) : Mr. S.S. Ladrecha, AAG assisted by
Mr. Ravindra Jala, Advocate
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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON’BLE MR. JUSTICE KULDEEP MATHUR
Judgment
Reserved on : 30/08/2024
Pronounced on : 16/01/2025
Per, Shree Chandrashekhar, J.
These Special Appeals are directed against the writ Court’s
decision not to interfere with the orders passed by the Board of
Revenue on 26th October 1993 and 9th September 1997 whereby
the decision of the authorized Officer to resume 336 bigha and
4 biswa land from the appellants was approved by it.
2. Raghvendra Singh and Manvendra Singh both son of late
Bheem Singh Ji claiming themselves to be the residents of
Beenawas within Tehsil Bilara in the district of Jodhpur have
approached this Court through D.B. Special Appeal (Writ) No.21 of
2020 to question the order dismissing S.B. Civil Writ Petition
No.3930 of 1997. By filing D.B. Special Appeal No.64 of 2017,
Pratap Singh who was the respondent no.5 in the aforementioned
writ proceedings has also laid a challenge to the said decision of
the writ Court rendered on 16th August 2016.
3. Briefly stated, a proceeding was drawn against Bheem Singh
Ji and his family members under the Rajasthan Imposition of
Ceiling on Agricultural Holding Act 1973 (in short, ‘Rajasthan
Ceiling Act’) the provisions of which had come into force with
effect from 1st January 1973. Pursuant thereto, an inquiry was
caused and a report was submitted whereunder Bheem Singh Ji
and his family members were shown to have surplus agricultural
land at Beenawas and Kaparda; more particularly, in the landed
property measuring about 527 bigha belonging to the Salt
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Company. As per this inquiry report, Bheem Singh Ji could retain
certain portions of the lands at village Beenawas and Kaparda and
about 190 bigha and 16 biswa land out of the aforementioned
lands recorded in the name of the Salt Company was to be
resumed. By filing Ceiling Appeal No.118 of 1976, Bheem Singh Ji
challenged the order dated 20th January 1976 passed by the
authorized Officer for acquiring the said piece of land which
according to him was non-irrigated land and thus could not have
been considered as surplus land. On 31 st March 1976, the
aforesaid appeal preferred by Bheem Singh Ji was dismissed by
the Additional Collector who held that the lands recorded in the
name of the wife and minor sons of Bheem Singh Ji cannot be
excluded and the ceiling limit was to be decided taking them as
the part of joint family. The said order was challenged in Ceiling
Review Appeal No.329 of 1976 before the Board of Revenue which
disposed of the Review Appeal vide order dated 14 th July 1976 with
an observation that the Final Settlement order should include a
total of only 190 bigha and 16 biswa land and the rest of the land
out of 527 bigha belonging to the Salt Company was to be left out
of the ceiling proceedings. The Board of Revenue clarified that the
order dated 14th July 1976 shall be without prejudice to the final
decision in the Assessment File of the Salt Company which was
reportedly pending separately at that time.
4. More than six years thereafter, the authorized Officer under
the Rajasthan Ceiling Act was directed by the State Government
by passing the order dated 23rd February 1983 to re-open the
ceiling proceedings against Bheem Singh Ji and his family. In
compliance thereof, the Additional Collector who is the authorized
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Officer under the Rajasthan Ceiling Act passed an order on
29th August 1985 for acquiring 336 bigha and 4 biswa land which
was excluded from the ceiling proceedings by virtue of the order
dated 14th July 1976 passed by the Board of Revenue and the
Tehsildar was directed to take possession over that piece of land.
This decision of the Additional Collector, Jodhpur to acquire 336
bigha and 4 biswa land was approved by an order dated
26th October 1993 passed in Ceiling Appeal No.88 of 1991 and so
also in Ceiling (Review) Petition No.13 of 1994 which came to be
dismissed on 9th September 1997 by the Board of Revenue.
5. The Rajasthan Ceiling Act was enacted to secure the
ownership and control of the material resources and, in particular,
the agricultural lands available for cultivation in the State of
Rajasthan to sub-serve the common good as envisioned under
clauses (b) and (c) of Article 39 of the Constitution of India. The
Preamble to the Rajasthan Ceiling Act recites that there is great
disparity in the holding of agricultural lands leading to the
concentration of such lands in the hands of certain persons and
therefore it was felt necessary to acquire the agricultural lands in
excess of the ceiling area, and to distribute such lands to the
landless and other persons among the rural population. In “Ram
Pratap v. State of Rajasthan & Anr.“1 and “State of Rajasthan v.
Mathura Lal“2, this Court held that the Rajasthan Ceiling Act is a
special law and shall have overriding effect over the Rajasthan
Tenancy Act 1955 and the Rajasthan Land Revenue Act 1956. This
was held so as section 3 of the Rajasthan Ceiling Act mandates
that the provisions of the Rajasthan Ceiling Act shall have effect
1 [1982] SCC OnLine Raj 27.
2 [1983] RRD 308.
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notwithstanding any inconsistency in any other law for the time
being in force or any custom, usage or contract or decree or order
of a Court or other authority to the contrary. Section 6 starts with
an overriding expression, “notwithstanding anything contained in
any law for the time being in force”, and makes every transfer of
land whether by way of sale, gift, exchange, assignment,
surrender, bequest, creation of trust or otherwise made on or after
26th September 1970 invalid and deemed to have been made in
order to defeat the provisions of the Rajasthan Ceiling Act; except,
a bonafide transfer made prior to the commencement of the
Rajasthan Ceiling Act. Section 10 provides for furnishing of returns
by the persons holding land in excess of the ceiling limit. Under
section 10, every person who on the date of commencing of the
Rajasthan Ceiling Act held lands in excess of the ceiling area
applicable to him was required to furnish to the authorized Officer
a return in such form and containing such particulars as may be
prescribed. Under section 12, the authorized Officer shall prepare
a draft statement in respect of each person holding land in excess
of the ceiling area on the basis of the return furnished under
section 10, or the additional particulars furnished under sub-
section (1) of section 11 or on the basis of the information
obtained by him under sub-section (2) of section 11. The
furnishing of the draft statement together with a notice seeking
objection under section 12 requires a reasonable opportunity of
being heard. Section 13 provides that after the disposal of
objections, the authorized Officer shall prepare the Final
Statement and cause a copy of the same to be served on the
person concerned and shall also cause it to be published for
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information of the general public, and such service and publication
shall be conclusive evidence of the facts stated in the Final
Statement.
6. The most important provision for the present purpose is
contained in section 15 which initially provided that the State
Government may direct any Officer subordinate to it to re-open a
decided case and make inquiry to determine the ceiling area and
the surplus area afresh any time within three years of the
publication of the Final Statement under section 13. Under sub-
section (2), it was provided that the ceiling area in relation to a
person fixed under the repealed law by section 40 of the new law
could also have been re-opened at any time within three years of
the commencement of the new Act. The provisions of section 15
as originally enacted were drafted in the following manner :-
“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 the publication of the final
statement under section 13, is satisfied that the ceiling area in
relation to a person has been determined in contravention of the
provisions of this Act, it may direct any officer subordinate to it to
re-open a decided case and enquiry into it and to determine the
ceiling area and the surplus area afresh in accordance with the
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 case and enquire into it and to determine the
ceiling area and the surplus areas afresh in accordance with the
provisions of such repealed law.”
7. Section 15 was amended to the effect that the State
Government may direct re-opening of any final order which in its
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opinion was passed in contravention of the provisions of this Act
and that such order was prejudicial to the State Government, any
time within four years of the date of such final order or within
three years from 15th day of August 1975 whichever was later.
Subsequently, section 15 was further amended to the effect that
no notice for re-opening the concluded ceiling proceeding shall be
issued after the expiry of five years from the date of the final
order or after the expiry of 30th June 1979 whichever is later. The
amended provisions under section 15 as on 23 rd February 1993,
that is, on the day of re-opening of proceedings in the present
case read as under :-
“15. Power to reopen cases. -(1) Notwithstanding anything
contained in this Act, if the State Government, after calling for
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 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 matter 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 of the commencement of this
Act, direct any officer subordinate to it to re-open such decided(Downloaded on 16/01/2025 at 09:47:28 PM)
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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 the discovery of new
and important matter or evidence which has since come to its
notice or due to some mistake or apparent on the face of the
record.”
8. The order dated 23rd February 1983 for re-opening the
ceiling proceedings was passed by the State Government on the
ground that the decision of the authorized Officer dated
20th January 1976 and the Board of Revenue dated 14 th July 1976
were against the provisions of the Rajasthan Ceiling Act as also
against the State’s interest. According to this order, 336 bigha and
4 biswa land held by the Salt Company was wrongly declared not
fit for acquisition and sale of 21 bigha and one biswa land to
Ghevarchand was not permissible. This has been the stand taken
by the State-respondents that the order dated 23 rd February 1983
was passed on the premise that a new fact had come to the
knowledge of the State Government that there was no decision in
File No.1240 of 1975 in respect to 336 bigha and 4 biswa land
belonging to the Salt Company. The order dated 23 rd February
1983 gives the following reasons for exercising the power under
section 15(1) of the Rajasthan Ceiling Act :-
“4. The decision of the authorized Officer, the report of the
District Magistrate and the reply submitted by the non-
applicant were perused. The non-applicant, his wife and
minor son had 341/18 bigha land in village Beenawas out of
which 40/10 bigha was arable, 289/13 bigha was rainfed
and 1/15 bigha was non-cultivable. Apart from this, there
was separate land in the name of Salt Company in village
Kaparda. This total land was 5379/8 bigha. The non-
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applicant’s share in this land was 1/16 out of this land
which amounts to 336/4 bigha. This land of Salt Company
is marked as cultivable in the records of settlement. In his
decision, the authorized Officer has not included 336/4
bigha land and thus in the order issued, the land belonging
to Salt Company held by the non-applicant was left out.
The argument of the counsel for the non-applicant that this
land is not cultivable is not valid because as has been
stated above that the type of land is marked as Barani
(rainfed) and the type of land marked in the settlement
records will be considered final. Contrary to this, any
classification of land is not valid. The second question
remains regarding the transfer of 21/1 bigha land being
bonafide. This transfer has been done on 16.05.72 in
favour of a person named Ghevarchand. This land has been
marked in favour of Ghevarchand. A copy of the Jamabandi
has been presented as a proof of this. Also, this sale has
been stated to have been done due to the need of money.
In view of this situation, there is no doubt in considering
this transfer as bonafide. Therefore, the notice issued on
this point is cancelled. As has been stated above that the
land of the non-applicant situated in Kaparda has not been
included by the authorized Officer in his order of
acquisition. In such a situation, the decision given by the
authorized Officer is contrary to the provisions of law and
against the State’s interest. Hence, there are sufficient
grounds to cancel it.
5. From the above analysis, it is found that the decision of
the Sub-Divisional Officer, Jodhpur dated 20.01.76 is not in
accordance with the Rajasthan Imposition of Ceiling on
Agricultural Holding Act, 1973 and is against the State’s
interest. Therefore, using the powers conferred in Section
15 of the said Act, the Additional District Magistrate,
Jodhpur is authorized and directed to reopen the said
ceiling case in the light of the above decision and give
notice to the applicants as per the Rules and after detailed
investigation on all the points mentioned, give his decision
as per the legal provisions.
6. A copy of this decision along with the related file has
been sent to the Additional District Magistrate, Jodhpur for
appropriate action.”
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9. Pertinently, the order dated 20th January 1976 in Ceiling
Appeal No.118 of 1976 which was passed in 1st ceiling proceedings
referred to the inquiry report of the Tehsildar according to which
the family of Bheem Singh Ji consisted of his wife and three minor
sons. Under section 2(d) of the Rajasthan Ceiling Act, the
expression ceiling area has been defined to mean the maximum
area of agricultural land that a person or a family is entitled to
hold under section 4 anywhere throughout the State. Sub-
section(o) to section 2 provides that “surplus land” means the
land held by a person in excess of the ceiling area applicable to
him and declared to be surplus under section 13. It is further
provided under section 4 that in the case of every person not
being a family and in the case of every family consisting of five or
less than five members which shall be taken as “primary unit” of
family, the ceiling area applicable to such person or such family
shall be decided as per the provisions under section 4. The order
of the authorized Officer passed in 1st ceiling proceedings is quite
significant for the reason that no evidence was produced on behalf
of the State respondents to controvert the stand taken by Bheem
Singh Ji. Before the authorized Officer, Bheem Singh Ji and
Ghevarchand who was the purchaser from Bheem Singh Ji
tendered their statements and their evidence was accepted by the
authorized Officer. At that time, Bheem Singh Ji had declared 678
bigha and 2 biswa land in his possession out of which 21 bigha
and 1 biswa land was sold to Ghevarchand. By this order, the
authorized Officer held that Bheem Singh Ji and his family were
holding excess land to the extent of 190 bigha and 16 biswa out of
527 bigha recorded in the name of the Salt Company, and this is
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the order which was ultimately affirmed by the Board of Revenue.
In that round of litigation, the Board of Revenue had held as
under :-
“3. It has been shown that 336 bigha 4 biswa of land situated at
Kaparda is not agricultural land. It is in the possession of and use
of Salt Company in which the present appellant has also a share.
The learned Counsel for the appellant says that u/s 16(1) the very
inclusion of the above land in the final statement has the legal
effects of its acquisition and hence the final order of acquiring only
190 bigha 16 biswa is inconsistent with the provisions of this
section. His client suffers the disadvantage of his rights being in
that land extinguished through acquisition and still not getting any
compensation thereof under the provisions of Ceiling law. This is
manifestly illegal and unauthorised vis-a-vis him.
4. I see the point well made out. It is clear that the authorised
Officer has not intended to acquire this land under this order
independently of the decision regarding the other lands vesting in
salt company, even though it has stood in the land records in the
name of the appellant. Hence the present appeal succeeds to the
extent that the final statement shall stand amended to include a
total of only 190 bigha 16 biswa as chosen to be acquired. This is
without prejudice to whatever final decision is there for the land
vesting in the salt company to be decided in the assessment file of
the company, reportedly pending separately.”
10. Notwithstanding the fact that the State Government has
power to re-open any concluded proceeding, the Board of Revenue
being the statutory appellate Authority was not required to
mechanically approve the order of the authorized Officer which
was passed pursuant to the decision of the State Government to
re-open the ceiling proceedings. While dismissing Ceiling Appeal
No.88 of 1991 and Ceiling (Review) Petition No.13 of 1994 filed by
Bheem Singh Ji, the Board of Revenue reviewed its own order
passed in Ceiling (Review) Appeal No.329 of 1976. However, the
Rajasthan Ceiling Act does not provide a power in the Board of
Revenue to review its decision and such power is vested only in
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the authorized Officer under section 23A which was incorporated
in the Act through an amendment. The power conferred to the
authorized Officer under section 23A extends to dropping of the
proceedings on its own motion or an application of the Tehsildar.
Section 23 A further provides that the authorized Officer may
review or rescind or alter or confirm any order passed under this
Act. But no such power has been given to the Board of Revenue to
review its order passed under the Rajasthan Ceiling Act.
Therefore, the absence of a provision for review by the Board of
Revenue in the Rajasthan Ceiling Act must be held as a conscious
decision of the Legislature particularly in view of the power of
review vested in the authorized Officer under section 23A. This is
a settled law that the power of review can be exercised by a quasi
judicial authority or the Court only when the statute provides for
the same. In “Kalabharti Advertising v. Hemant Vimalnath
Narichania & Ors.“3 the Hon’ble Supreme Court held that a review
application is not maintainable against a judicial/quasi judicial
order if there is no provision in the statute granting an express
power of review. In “Patel Narshi Thakershi & Ors. v. Shri
Pradyumansinghji Arjunsinghji“4 the Hon’ble Supreme Court held
that the power to review is not an inherent power and it must be
conferred by law either expressly or by necessary implication.
Section 114 of the Code of Civil Procedure which is a substantive
provision for review provided to a person aggrieved by a decree or
by an order of the Court does not lay down any condition
precedent for exercising the power of review. However, the Court
can review its order only on the prescribed grounds mentioned in
3 [2010] 9 SCC 437.
4 [1971] 3 SCC 844.
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Order 47 Rule 1 of the Code of Civil Procedure. In “Meera Bhanja
v. Nirmala Kumari Choudhary“5 the Hon’ble Supreme Court
observed that the review proceedings are not by way of an appeal
and have to be strictly confined to the scope and ambit of Order
47 Rule 1. Under the said provision, a judgment is open to review
if there is a mistake or an error apparent on the face of the
record, but then, an error which is not self-evident and has to be
deciphered by a process of reasoning can hardly be said to be an
error apparent on the face of the record. In a catena of
judgments, the Hon’ble Supreme Court held that it is not
permissible while exercising the jurisdiction under Order 47 Rule 1
of the Code of Civil Procedure to re-hear and correct an erroneous
decision.
11. No matter that in 2nd round of litigation, the order passed by
the State Government for re-opening the ceiling proceedings and
the order of the authorized Officer for acquiring 336 bigha and 4
biswa land belonging to the Salt Company were under challenge,
the Board of Revenue was required to give reasons for differing
from its own order and thereby reviewing the order dated 14 th July
1976 passed in 1st round of litigation. The power to re-open cases
under section 15(1) of the Rajasthan Ceiling Act is confined to the
cases where (i) a final order was passed in contravention of the
provisions of the Rajasthan Ceiling Act, or (ii) the final order was
prejudicial to the interest of the State Government. The State
Government may also be entitled to re-open any case on account
of the discovery of new and important matter or evidence which
came to its notice after passing of any final order under the
5 [1995] 1 SCC 170.
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Rajasthan Ceiling Act. But even on these grounds, the power
under section 15(1) of the Rajasthan Ceiling Act cannot be
exercised beyond the period of limitation. In its order dated
14th July 1976, the Board of Revenue recorded a finding that 336
bigha and 4 biswa of non-irrigated land was in possession and use
of the Salt Company in which the present appellant had 1/16 th
share. This finding of the Board of Revenue was found erroneous
by the State Government on the ground that the land of the Salt
Company was recorded as cultivable land in the Records of
Settlement and the entries in the settlement records are
considered conclusive and final. However, there was no record
before the State Government except the inquiry report of the
Tehsildar and the recommendation of the District Collector to
establish that the subject land was rainfed or agricultural land
suitable for agriculture. This was also not brought on the record
that the Salt Company or the appellants were in occupation of the
subject land for agricultural purposes or were in fact carrying
agricultural activities over the subject land.
12. It is in the context of the cryptic orders passed by the Board
of Revenue which were rendered primarily taking note of identical
stand taken by the State-respondents that we are inclined to
make an observation that the salutary public policy behind res
judicata and issue-estoppel should also be kept in mind by the
statutory Authorities even while dealing with an appeal under the
Rajasthan Ceiling Act. This is necessary for maintaining certainty
in the legal system that the statutory authority which is not vested
with the power to review its own decision adheres to its previous
decision in a subsequent or co-lateral proceeding; at least to its
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decision on a question of fact. The importance of binding nature of
the decision of a Court of law was emphasized by Lord Coke who
once said “otherwise great oppression might be done under the
color and pretence of law”. The Latin maxim interest reipublicae ut
sit finis litium which means “it is in the interest of the state that
there be an end to litigation” incorporates the public policy of
great importance. Indeed the binding character of judgments
pronounced by the Court of competent jurisdiction is itself an
essential part of the rule of law. In our opinion, the provision
under section 11 of the Code of Civil Procedure which embodies
the rule of conclusiveness of the judgments of a Court of law shall
extend to a large measure to the decisions rendered or orders
passed by the statutory authority under the Rajasthan Ceiling Act,
even at the appellate stage. The application of the rule of res
judicata or issue-estoppel does not create any right or interest in
the property but merely operates as a bar to try the same issue
once over. Else, there would be endless proceedings and finality to
a litigation may become an illusion. In “Sulochana Amma v.
Narayanan Nair“6 the Hon’ble Supreme Court observed that the
provisions under section 11 of the Code of Civil Procedure are
based on public policy and provide private justice as well. These
provisions apply to all judicial proceedings and quasi judicial
proceedings of the Tribunals as well. Under the Explanations to
section 11 of the Code of Civil Procedure, we may gather further
insights to the public policy behind granting finality of a decision.
Explanation IV provides that any matter which might or ought to
have been made a defence or a ground of attack in a former suit
6 [1994] 2 SCC 14.
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shall be deemed to have been a matter directly and substantially
an issue in the latter suit. Therefore, a matter which the parties
might or ought to have litigated in connection with the subject
matter of the litigation shall also constitute res judicata between
the parties.
13. We are conscious of the fact that in 2 nd round of litigation the
Board of Revenue was seized with the matter by virtue of the
appeal filed under the statutory regime and it has all the powers
of the appellate Authority but the manner in which the Board of
Revenue dealt with the matter was a kind of abdiction of its duty
as the appellate Authority. Section 23 under Chapter VI of the
Rajasthan Ceiling Act provides the forum for appeal to the
Collector of the concerned district against a decision or order of
the authorized Officer under sub-section (3) of section 12 or sub-
section (3) of section 11B or under sub-section (3) of section 19
or any decision or order passed under section 21. Sub-section
(2A) to section 23 provides that an appeal shall lie to the Board of
Revenue against the decision of the authorized Officer under
section 15. The appellate power conferred on the Collector of the
concerned district under sub-section (1) and under sub-section
(2A) of section 23 to the Board of Revenue seem to be wide
enough to (i) decide the case finally (ii) remand the case or (iii)
take additional evidence or require such evidence to be taken by
the authorized Officer for the purpose of deciding the case finally.
The power of the Collector or that of the Board of Revenue further
extends to granting an order of stay of execution of any decision
or order under challenge till a final decision is taken in the appeal
There is absolutely no cogent reason given by the Board of
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Revenue in its orders dated 26th October 1993 and 09th September
1997 and the petitions filed by Bheem Singh Ji were dismissed on
untenable grounds.
14. Besides the aforementioned aspects, the main ground of
challenge laid to the order dated 23rd February 1983 passed by the
State Government, that the powers under section 15(1) of the
Rajasthan Ceiling Act could not have been exercised by the State
Government after the lapse of the limitation period to direct
re-opening of the concluded ceiling proceedings, was ignored by
the Board of Revenue and the writ Court. Mr. Satya Prakash
Sharma, the learned counsel for the appellants contended that the
State Government’s decision to re-open the orders passed by the
authorized Officer and the Board of Revenue was not backed by
any statutory provision in this behalf and, rather, hedged with the
restrictions under proviso to section 15(1) which provided four
years’ limitation for re-opening a concluded ceiling proceeding
from the date of the final order or within three years from 15 th day
of August 1975, whichever is later. The learned counsel for the
appellants contended that the power to re-open a concluded
ceiling proceeding is further circumscribed by the restriction that
the decision to re-open the concluded proceeding within the
prescribed limit of time must be based on discovery of a new and
important matter or evidence but that ground is not available in
the present case.
15. The purpose of the ceiling law is to determine the ceiling
area and to resume the excess lands in possession of the
landholder but the power of the State Government to re-open any
concluded ceiling proceedings on any of the aforementioned
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[2024:RJ-JD:44345-DB] (18 of 28) [SAW-21/2020]
grounds must be exercised within the prescribed limitation period;
an exception being the case of fraud, misrepresentation, etc. The
validity of section 15 of the Rajasthan Ceiling Act has been upheld
by the Hon’ble Supreme Court7. In “Gurbax Singh & Atumal alias
Atma Ram v. State of Rajasthan & Ors.” 8, the Hon’ble Supreme
Court held that the State Legislature was competent under Entry-
18 in the State List of Seventh Schedule of the Constitution of
India to enact a law prescribing ceiling on land and, while enacting
such a law it was permissible for the State Legislature to make a
provision such as section 15 of the Rajasthan Ceiling Act to ensure
the implementation of the agrarian reforms and to prevent
evasion of the provisions of the Rajasthan Ceiling Act. However, to
achieve the object behind the Rajasthan Ceiling Act the State
Government cannot act in an arbitrary manner and exercise the
power under section 15 on such grounds which are not available
and cannot be considered as discovery of a new fact. Section 15
which vests power in the State Government to re-open cases talks
of satisfaction of the State Government which must be based on
objective analysis of the materials before the State Government.
First proviso to sub-section (1) restricted the power of the State
Government to re-open any case without issuing a notice to show
cause against the proposed action upon the person concerned.
Second proviso put further embargo on the power of the State
Government that no notice to show-cause against the proposed
action 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 from 15th day of August 1975 whichever was later.
7 “Sukhdarshan Singh & Ors. v. State of Rajasthan & Ors.” [1989] Supp.(2) SCC 671.
8 [1992] Supp.(3) SCC 24.
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To recapitulate, section 15 was amended through the Rajasthan
Imposition of Ceiling on Agricultural Land Holdings (Amendment
and Validation) Act 1979 and came into force on 30 th day of
December 1978 and the prescribed period of limitation was
extended upto “five years” through section 2 of the amending Act.
Before that, the prescribed period of limitation was “three years”
and that was also extended to “four years” by an amendment.
Just to indicate, the order of the State Government for re-opening
the ceiling proceedings was however even beyond the extended
period of five years. The statement of objects and reasons for
bringing amendment in the Rajasthan Ceiling Act states that it
was necessary to extend the time limit because the period of four
years for re-opening the cases had expired on 31 st December
1978. The statement of objects and reasons in the amending Act
provided the following reasons :-
“Section 15 of the Rajasthan Imposition of Ceiling on Agricultural
Holdings Act, 1973 (Act No. 11 of 1973) empowers the State
Government to direct re-opening of the cases finally decided
under the old ceiling law contained in the relevant provisions of
the Rajasthan Tenancy Act as also under the new ceiling law. For
the cases under the new law, the time limit was four years from
the date of passing of the final order or upto 31st December,
1978 whichever was later. No case decided more than four years
prior to the said date could be available for re-opening. The cases
finally decided under the old law could be re-opened within period
of six years from the commencement of the new law contained in
the Act of 1973. The Act came into force on 1-1-1973. The time
limit thus expired on 31-12-1978 it became necessary to extend
the time limit.”
16. The statement of objects and reasons for amending section
15 of the Rajasthan Ceiling Act provides a very useful insight to
the legislative intentment that the limitation prescribed under
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section 15 is not extendable and if a re-opening proceeding was
not initiated within four years (or, five years after 2 nd amendment
in section 15) the State Government shall lose its power and
jurisdiction vested in it by virtue of sub-section (1) to section 15.
As to the question of limitation, we may also refer to the
discussions in “Daulat Singh (D) through Lrs. v. State of
Rajasthan & Ors.”9 wherein the Hon’ble Supreme Court held that
the relevant date for counting limitation shall be the date of the
order sought to be re-opened and the date of show-cause notice
under section 15 of the Ceiling Act. The Hon’ble Supreme Court
held as under :-
“13. Section 15 of the Ceiling Act of 1973 confers upon the
State Government the power to reopen the cases, if it is
satisfied that the earlier order was in contravention with the
provisions of the Act and is prejudicial to the State interest.
The aforesaid direction to reopen cases must be preceded by a
show cause notice served upon the person concerned.
However, the proviso clause states that no notice can be
issued after the expiry of five years from the date of the final
order sought to be reopened or after the expiry of 30 th June
1979, whichever is later.
14. Therefore, the provision mandates that, after the expiry of
five years from the date of final order sought to be reopened,
or after the expiry of 30th June 1979, whichever is later, no
notice for reopening of such cases can be issued. Therefore,
the relevant dates for determination of the issue of limitation
is the date of order sought to be reopened and the date of
issuance of show-cause notice under Section 15 of the Ceiling
Act of 1973.”
17. However, overlooking the statutory prohibition in the
Rajasthan Ceiling Act and the settled legal position the writ Court
did not accept the plea of limitation taken by the appellants that
the power of the State Government under section 15(1) of the
9 [2021] 3 SCC 459.
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[2024:RJ-JD:44345-DB] (21 of 28) [SAW-21/2020]
Rajasthan Ceiling Act for re-opening the concluded ceiling
proceedings cannot be exercised beyond the prescribed period. On
behalf of the appellants, it was contended that within the period of
four years from the date of order passed by the Board of Revenue,
that is to say from 14th July 1976, the State Government could
have exercised its power to re-open the concluded ceiling
proceedings but not after that. On the other hand, the stand taken
by the State-respondents was that the re-opening proceedings
were initiated well within the limitation period of four years on the
ground of discovery of a new fact. Interestingly, the plea of
limitation set up by the appellants before the writ Court was
sought to be avoided also by taking a stand that no such plea was
taken by the appellants before the Board of Revenue and the writ
Court approved such objection. The writ Court held as under:-
“…11. Indisputably, the contention sought to be raised by the
petitioners regarding the reopening proceedings being barred
by limitation was not raised before the Board of Revenue. In
the instant petition, the petitioners have questioned the
legality of order dated 23.2.83 passed by the State
Government reopening the ceiling proceedings in exercise of
the power conferred under Section 15(1) of the Act, but there
is no foundation of facts or the ground raised in the petition
filed in terms that the proceeding initiated by the State
Government for reopening of the ceiling proceedings was
barred by limitation. It is not even the case of the petitioners
in the petition filed that the notice referred to in first proviso to
Section 15(1) of the Act was issued by the State Government
after expiry of the period of limitation as provided for under
second proviso to Section 15(1) of the Act. Thus, to say the
least, the contention sought to be raised on behalf of the
petitioners in this regard without there being any foundation of
facts in the petition, is absolutely misconceived and devoid of
any merit.
12. Coming to the contention of the petitioners that the order
dated 20.1.76 having been merged in the order dated 14.7.76(Downloaded on 16/01/2025 at 09:47:28 PM)
[2024:RJ-JD:44345-DB] (22 of 28) [SAW-21/2020]passed by the Board of Revenue, the ceiling proceedings could
not have been reopened, it is to be noticed that in terms of
provisions of Section 15(1), the State Government is
empowered to reopen the ceiling proceedings on being
satisfied that the final order passed in the matter under the
Act, is in contravention of the provisions of the Act or such
order is prejudicial to the State Government or on account of
discovery of new and important matter or evidence which has
since come to the notice, such order is required to be
reopened. In this view of the matter, the State Government is
not precluded from reopening the ceiling proceedings
concluded by the order passed by the Board of Revenue in
appeal.
13. It is pertinent to note that in the instant case, in the
original ceiling proceedings, the authorised Officer determined
527 bighas land in excess of the ceiling area in the hands of
the petitioners, however the Board of Revenue proceeded to
exclude the 336 bighas 4 biswas land observing that the
authorised Officer has not intended to acquire the said land
under the order passed by him independently of the decision
regarding the other lands vested in the Salt Company. There
was nothing on record suggesting that the said land was
subject matter of the proceedings to be decided in the
assessment file of the Salt Company and therefore, there was
no occasion for the Board of Revenue to exclude the said land
while assessing the land in excess of the ceiling area in the
hands of the petitioners. In this view of the matter, on noticing
the fact regarding the erroneous view taken by the Board of
Revenue without ascertaining the correct factual position, the
State Government was absolutely justified in directing
reopening of the proceedings.
14. It is not even the case of the petitioners in the petition
that the disputed land i.e. the land measuring 336 bighas and
4 biswas standing in their names in the revenue record was
subject matter of assessment in the file of the Salt Company,
which was reported to be pending separately. Suffice it to say
that the petitioners have not been able to make out any case
as to why the land standing in their names in the revenue
record, which was not even subject matter of the assessment
in file of the Salt Company should be excluded while assessing
the land in excess of the ceiling area in their hands.
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15. In view of the discussion above, in the considered opinion
of this court, the order impugned passed by the Board of
Revenue does not suffer from any jurisdictional error so as to
warrant interference by this court in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India……”
18. Quite contrary to the aforesaid findings recorded by the writ
Court, there was a definite stand taken by the appellants in the
writ pleadings that the ceiling proceedings had concluded on
14th July 1976 by the order of the Board of Revenue and it could
not have been re-opened by the order dated 23 rd February 1983
exercising the power under section 15(1) of the Rajasthan Ceiling
Act. In paragraph no.13 of the writ petition, the appellants stated
that a specific objection was raised before the Board of Revenue
that the State Government could not have re-opened the ceiling
proceedings concluded by the order dated 14th July 1976 but that
objection was over-ruled by the Board of Revenue. The relevant
portions of the writ pleadings in this behalf are reproduced herein
below :-
“….13. Aggrieved of this appeal was preferred before the
Board of Revenue wherein a specific objection was raised that
the State Govt cannot reopen the case decided by Ann.1 after
the decision of the Board of Revenue because the order dated
20.1.76 was not a final order and it merges into Board of
Revenue and ultimately Board of Revenue’s order becomes
final. This objection was over ruled by the Member of the
Board of Revenue and the learned Board of Revenue rejected
the appeal by the order dated 26.10.93, copy of the same
order is Ann.6.
14. That a review was also filed before the Board of Revenue
but the same has been rejected by the order dated 9.9.97,copy
of the same order is annexed herewith as Ann.7.
15. That, the petitioners’ only contention in this case is that the
State Govt. can only direct the reopening of any final order(Downloaded on 16/01/2025 at 09:47:28 PM)
[2024:RJ-JD:44345-DB] (24 of 28) [SAW-21/2020]passed in any matter arising under this Act and in this case the
final order is Ann.3 dated 14-7-76.
16. That, the order dated 20.1.76 Ann.1 cannot be said to be a
final order. According to proviso appended to clause (2) of
section 15 the State Govt. cannot direct the reopening of a
matter decided by the Board on account of discovery of new
and important matter or evidence which has since come to its
notice. The relevant proviso is reproduced as under:-
“Provided that no final order passed by the Board in the matter
referred to in sub section (1) or in subsection (2) shall be
directed to be reopened on account of the discovery of new and
important matter or evidence which has since come to its notice
or due to some mistake or error apparent on the face of
record.”
17. That, the State Govt. has directed the reopening of the
order dated 20.1.1976 on the ground that the share of the
petitioners in 336 bighas of land of salt company was not taken
into consideration. This action of the State Govt. is without
jurisdiction.”
19. We further find that there were specific grounds pleaded
before the writ Court which refer to the plea of limitation in
exercising the power under section 15(1) of the Rajasthan Ceiling
Act. In this context, we may profitably reproduce the relevant
portions of the grounds taken before the writ Court which read as
under :-
“(i) That the order dated 23.2.83 Ann.4 passed by the State
Govt. under section 15.(1) of the act and further orders Ann.5,
6 and 7 passed in pursuance of this order Ann.4 are without
jurisdiction and deserves to be quashed.
(ii) That the order dated 20.1.76 stands merged in order
14.7.76 passed by the Board of Revenue and thus the order
Ann.1 cannot be termed as final order in the case. The final
order in the matter is ann.3 passed by the board of Revenue
and the Sate Govt. has not directed to reopen the order Ann.3
dated 14.7.76 but it has directed order Ann.1 dated 20.1.76
passed by the authorised Officer Jodhpur.
(iii)That, bare reading of section 15(1) of the Act makes it clear
that the final order can be directed to be reopened and in this(Downloaded on 16/01/2025 at 09:47:28 PM)
[2024:RJ-JD:44345-DB] (25 of 28) [SAW-21/2020]view of the matter order Ann.1 dated 20.1.76 was not the final
order in this case.
(iv) That proviso appended to subsection (2) of section 15
makes it very clear that no final order of the Board can be
passed on the basis of some new evidence. Thus if the order
would have been in respect of Ann.3 dated 14.7.76 even then it
would have been also without jurisdiction.”
20. In our opinion, the writ Court committed a serious error of
records in refusing to take note of the plea of limitation raised on
behalf of the appellants and proceeded to examine the matter on
merits which was not permissible in the face of the bar under
section 15(1) of the Rajasthan Ceiling Act. Section 16 of the
Rajasthan Ceiling Act provides that the surplus land held by a
person and shown in the Final Statement shall be deemed to have
been acquired by the State Government from the date of service
of the Final Statement and the same shall from the said date vest
absolutely in the State Government free from all encumbrances.
The legislative intention to prevent escapement or avoidance of
the ceiling laws by a landholder is further manifest under section
17 which provides that it shall not be lawful for any person to
acquire by purchase, gift, mortgage, assignment, lease, surrender,
devolution, bequest or otherwise any land so as to affect and
increase the extent of his holding over the ceiling area applicable
to him on and from the commencement of the Rajasthan Ceiling
Act, subject to the other provisions contained under section 17.
Therefore, the State of Rajasthan shall have an accrued or vested
right to the excess land as available on the appointed date and the
substantive rights of the State of Rajasthan must be protected but
the State Government cannot exercise the power under section
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15(1) of the Rajasthan Ceiling Act after lapse of the period of
limitation purportedly in the exercise of power of protecting the
State’s interest.
21. The laws of limitation are founded on public policy. Section
2(j) of the Limitation Act, 1963 defines the period of limitation as
to mean the period of limitation prescribed for any suit, appeal or
application under the schedule to the Limitation Act and the
prescribed period would mean the period of limitation computed in
accordance with the provisions of law. Section 3 of the Limitation
Act casts a duty upon the Courts to dismiss a suit if made after
the prescribed period even though limitation was not set up as a
defence. In “Maqbul Ahmed & Ors. v. Onkar Pratap Narain
Singh“10 the Privy Council held that the Court is bound under
section 3 of the Limitation Act to ascertain for itself whether the
suit before it is within time and if the Court fails to do so and
entertains a suit or claim which is barred by limitation, the Court
acts without jurisdiction. This is in the common parlance that most
of the times the plea of limitation turns out to be a mixed question
of law and fact but where the factual basis has been determined
the High Court should exercise its power of judicial review under
Article 226 of the Constitution of India. The law is quite well-
settled that the writ Court can entertain a plea based on pure
question of law and it is not necessary that such a ground is
specifically pleaded by the aggrieved party provided there was
sufficient pleadings in that regard and a fair opportunity was given
to the opposite party to meet such a ground of challenge.
10 AIR 1935 PC 85.
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Therefore, it shall be open to the Court to pronounce the
judgment based on admitted facts, that is to say, in a case where
the foundational facts necessary for determining limitation are
admitted. The present case is of that kind.
22. Though the writ petition filed by the appellants was labeled
under Articles 226 and 227 of the Constitution of India, the writ
Court declined to interfere with the order dated 26 th October 1993
as if the writ petition was filed under Article 227. The power under
Article 226 of the Constitution of India is plenary and without any
fetters. The language used in Article 226 of the Constitution of
India is very wide and the powers of the writ Court extend to issue
of orders, writs or directions. Under Article 226, the High Court
issues directions, orders and writs to any person or authority
including any Government. Whereas, the High Court exercises the
power of superintendence over all Courts and Tribunals throughout
the territory in relation to which it exercises jurisdiction under
Article 227. The power to issue writs is definitely not the same as
the power of superintendence inasmuch as a writ of habeas
corpus, mandamus, quo warranto, prohibition or certiorari cannot
be equated with the power of superintendence exercisable by the
High Court. While the writs are directed against persons,
authorities or the State, the supervisory jurisdiction under Article
227 is intended to ensure that the subordinate Courts and
Tribunals act within the limits of their authority and according to
law. It would be really too hyper-technical an approach to assume
that the order passed by the statutory authorities under the
Rajasthan Ceiling Act can only be challenged under Article 227 of
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[2024:RJ-JD:44345-DB] (28 of 28) [SAW-21/2020]
the Constitution of India. A certiorari may be granted where the
statutory authority acted without or in excess of its jurisdiction.
The object of writ of certiorari is to secure by authority of a
superior Court that the jurisdiction of the inferior Tribunal should
be properly exercised. The statutory authority may be competent
to enter upon an inquiry but while making the inquiry it cannot act
in flagrant disregard of the rules of procedure or in violation of the
principles of natural justice. The writ Court in exercise of its power
under Article 226 of the Constitution of India is entitled to embark
upon an exercise to test legality of the order passed by a statutory
authority under the Rajasthan Ceiling Act where the order is
challenged on the ground of lack of jurisdiction. In our opinion, a
decision based on clear ignorance or disregard of the provisions of
law or where there is a manifest error apparent on the face of the
record is certainly amenable to a writ of certiorari.
23. The order of the State Government for re-opening the Final
Settlement order was without jurisdiction and palpably wrong.
Having in our mind the Latin maxim “sublato fundamento cadit
opus”, which means when foundation is removed the
superstructure falls, we hold that the orders passed by the
authorized Officer and the Board of Revenue are bad in law.
24. In the result, the writ Court’s order dated 16th August 2016 is
set aside and these Special Appeals are allowed.
(KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J
Arjun/Ajay/-
Whether fit for reporting:- Yes/No
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