D. L. MEHTA, J. -
(1.)- All the three wings of the State viz. , Executive, Judiciary and Legislature are on trial, Judges are on trial. It is expected from the Courts that status quo time bound beurocrate approach should be given a good way People expects that Judges should have activist approach while interpreting the law and applying the law. If we apply the law in a way which may frustrate the object laid down in our Constitution then we are failing the discharge of our duties. Judiciary should always be non-committed. We cannot have. commitment towards the ideology of any political and social groups of parties. We are committed that the law should be applied in a way which is in conformity with the directives given in our Constitution. The preamble of the Constitution reads as under :- "we THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC AND to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation; IN OUR CONSTITUENT ASSEMBLY THIS TWENTY SIXTH DAY OF NOVEMBER, 1949 DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. Justice, social and economic can only be achieved, if we give good bye to the doctrine of status quo in the matter of implementation of the development schemes. If we adhere to the status quo, we cannot give justice to the teeming millions who are down trodden and starved. We have inherited a feudal system. There were big landlords who were exploiting the labour of the landless labourers. Agrarian reforms were introduced to strive towards providing social economic equality as far as practicable. Jagirs were resumed in the year 1954 and the present Tenancy Act came into force in the year 1955. The persons who were tilling land and were sub tenants were given Khatedari rights and to meet just demand of the landless labourers, provision relating to the Ceiling were introduced at a later stage by inserting Chapter III-B in the Rajasthan Tenancy Act. Chapter III-B has been introduced to resume the land of those persons who were having surplus land at their disposal and who were not capable of cultivating the land themselves. Agranan reforms were introduced so that the land may be resumed and the land can be distributed among the needy landless labourers and others who were really in the need of the land for the purpose of agriculture. With this in mind, the legislature introduced Chapter III-B in the Rajasthan Tenancy Act. To keep the balance and to avoid the hardship, subsequent amendments were made by introducing ss. 30-D & 30-DD. On January 1, 1973, the imposition of Ceiling on Agriculture Holdings Act came into force. Thus, the procedure which was provided under the Tenancy Act has now been provided altogether in a different enactment. The imposition of Ceiling on Agricultural Holdings Act, 1973 has been enacted to over come the difficulties which the State was facing in the implementation of the agrarian reforms. Protagonists of property rights have always placed impediments in the implementation of the ceiling law.
(2.)COURTS are meant to impart justice, as intended in our Constitution's preamble. Justice does not mean a justice of status quo for the benefit of an individual but justice means justice to the nation, justice to the unemployed justice to the economy of nation, justice to the society and so on Whenever there is a conflict between the cause of an individual and the cause of the nation or the society as a whole, then the justice to the society, to the economy and to the unemployed persons should prevail. We are neither to correct every irregularity or illegality in exercise of the discretionary powers vested under Art. 226 of the Constitution. When we feel that there is a just case and the development schemes have to be projected in a way which may provide the avenues of employment to the unemployed, which may lead to the production which is the backbone of the national economy then, in my opinion, we should refrain ourselves even in issuing directions or writs which may lead to increase the problems of unemployment and which may curtail the avenues of employment or which adversely affects the production.
It is a matter of agony of the fate of the teeming millions of the down trodden people that the beneficial agrarian reforms enacted in early sixties for their benefit could not be implemented in toto so far. Protagonists of property rights have always put the impediments in the implementation of the programme but they alone cannot be blamed. The State is not active in putting the case to the Court. Hundreds of writ petitions are pending before this Court, may be of the year 1976 or earlier. Stay orders have been granted years long back. Protagonists of the property rights are enjoying the stay orders and we have shut our eyes to the reality and the fact is that we are not deciding ceiling cases. The beneficial legislation enacted for the benefits of the millions of teeming down trodden people should be given priority in the matter of decision but we do not think of the reformative law and we do not take in hand the case which needs top most priority. People have a right to ask us why writ petitions are pending since 1976. If writ petitions fail, what the courts will do for those who have been deprived of their valuable rights of allotment of land. The people who are starving, who are agricultural labourers, who are deaf and dumb needs the real assistance of the Court.
The question of interpretation of the law and applying the law was considered by their Lordships of the Supreme Court in Mobarik Ali Ahmed V. State of Bombay (1 ). It was observed therein as under. "it is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions of criminal jurisprudence prevailing at the time when the Code was enacted. The notions relating to this matter have very considerably changed between then and now during nearly a century that has elapsed. It is legitimate to construe the Code with reference to the moderns needs, where this is permissible unless there is anything in the Code or in any particular section to indicate the contrary. " In State of Haryana V. Sampuran Singh (2) their Lordships of the Supreme Court observed. "the key though that pervades our approach is that if the constitutionally envisioned socio-economic revolution is not to be a paper tiger agrarian laws have to be meaningfully enacted, interpreted and executed and the court is not the anti hero in the drama of limping land reform. Much to the same, effect this court observed in Amarsingh's case (AIR 1974 SC-994) "we have to bear in mind the activity though inarticulate, major premise of statutory construction that the rule of law must run close to the rule of life and the Court must read into an enactment, language permitting that meaning which promotes the benignant intent of the legislation in preference to the one which overts the scheme of the statute on imputed legislative presumptions and assumed social values valid in a prior era. An aware Court, informed of this adaptation in the rules of forensic interpretation, hesitates to nullify the plain object of a land reforms law unless compelled by its language and the crux of this case is just that accent when double possibilities in the chemistry of construction crop up. " "the agrarian policy is equitable ownership on the reform philosophy is re-distributive justice the rural goal being small peasant proprietor ship. What difference does it make as to how you came by a large holding, from the stand point above outlined? The thrust of S. 19-B is that even if the source of the excess area is inheritance, bequest or gift the capacity to own is conditioned by the permissible limit. S. 10-A does not militate against this mandate of S. 19-B. Indeed, S. 19-B had to be enacted because the High Court took the view that area which became surplus subsequent to April 15,1983 was not hit by the ceiling set and land acquired by an heir by inheritance is saved from utilisation by the State. S. 10-A (a) is wide in its terms and encompasses all surplus area, howsoever obtained. Even S. 10a (a) strikes no discordant note. All that it says and means is that lands acquired by an heir by inheritance are saved in so far as dispositions of such lands are concerned. " Keeping this in mind, I will like to deal with the case in hand.
Petitioner No. 2 is the son of petitioner No. 1. Petitioner No. l's father late Shri Ramkishan gifted the agricultural land measuring 123 bighas 8 Biswas situated in village Patonda in the year 1944 to petitioner No. 2. After the property had been gifted to petitioner No. 1, petitioner No. 1 was recorded in Revenue Records as Khatedar thereof. Proceedings were initiated against petitioner No. 2 under the Ceiling laws. Mr. C. K. Garg, learned counsel for the petitioners submits that notice Annexure-1 was issued by the S. D. O. Baran under sub-s. 1 of s. 11 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (For short the Act' herein ). He submits that after the issuance of the notice, the S. D. O. decided the matter vide Annexure-2. He submits that notice was served under the new Ceiling Act and the S. D. O. was not competent to decide the Ceiling matter under the old Act of 1963. Being aggrieved with the order passed by the S. D. O. dated 26. 7. 1975, an appeal was preferred. Memo of that appeal has not been placed on record by any of the parties. The Revenue Appellate Authority rejected the appeal vide its judgment dated 14. 1. 1976. A revision petition was preferred before the Board of Revenue, the copy of that revision has been placed on record marked as Annexure 4. The Revenue Board vide its Judgment dated 28. 4. 1976 rejected the revision. Hence this writ petition by the petitioners.
I have heard Mr. C. K. Garg, learned counsel for the petitioners, Mr. M. I. Khan, learned Govt. Advocate and Mr. D. L. Badhadra for the Intervenor. Mr. C K. Garg, learned counsel for the petitioners has only raised two contentions before me; (1) That Annexure- 1 notice was given under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short 'the Act of 1973' herein) and as such, the S. D. O. was not competent to decide the case of ceiling under the old law and that the principles of natural justice have been violated and the order of the S. D. O. is without jurisdiction and it is bad in law. (2) That the land belongs to a Hindu Joint Family and the courts below have committed an error of law and fact in holding that the land in dispute was a personal land of petitioner No. 2. During the course of arguments, Mr. M. I. Khan, learned Government Advocate produced before me the file of the lower court to reverse the arguments made by the learned counsel for the petitioners. The material part of the proceedings of the lower court file is as under : 4-1-66 ********* The petitioner Mangilal submitted a declaration under r. 9 of the Rajasthan Tenancy Act on February 2, 1966, in which, he has stated that he is the Khatedar tenant and Vijay Kumar, Narendra Kumar, Kanta Bai, Krishna Kumari, Urmila Bai are his dependants and he is the son of Devi Shankar. The report was obtained on 22. 9. 1976. The second application was also submitted by Mangilal on 28. 1. 1978 wherein he has stated that his father Devi Shankar and his mother are his dependants. He has also added the names of his three issues Miss Sangeeta, Miss Kavita and Miss Neesha-who were not born at the time of filing of the earlier declaration. The age of Kumari has been shown as six years and the age of Kumari Kavita and Neesha has been shown as 3 years and 8 months respectively. Learned counsel for the petitioner after perusing the file of the lower court admits that the submission made by the petitioner in the writ petition that no proceedings under s. 36-B were initiated is not correct and he wants to submits that it is a case of over-sight and ignorance. The wrong facts have been mentioned in the writ petition.
(3.)MR. M. I. Khan, learned Govt. Advocate submits that in para 10 of the writ petition (in ground N. 2), it was stated that petitioner No. 2 has never submitted any return in the year 1966 or before the receipt of Annexure-1. Annexure-1 was issued on 283. 1975 and it was received by petitioner Mangilal on 19. 3. 85. Thus, the submission made by the petitioner in ground No. 2 of para 10 of the writ petition is not correct and have been falsified from the record of the lower court. In ground No. (iii) of para 10 of the writ petition, the petitioner has submitted that ceiling proceedings were initiated against the petitioner No. 2 only after the New Act had come in force. The submission made by the petitioner is also totally false and is against the record of the lower court. Learned Govt. Advocate submits that the petitioner by stating wrong facts before the court got the writ petition admitted and obtained the stay order from the Court and as such, the petitioner has made a false case before the court and he is not entitled to get any relief from this Court on the ground that material facts have been suppressed and wrong facts have been stated. It was obligatory on the part of the petitioner to state that after the issuance of the notice Annx.-I the Court directed that the proceedings taken under the old Act will continue. Thus, learned Govt. Advocate wants to submit that it is a case of suppression of material facts as well as placing wrong facts before the Court. MR. Garg submits that it is a case of inadvertance and illiteracy and as such, the correct picture could not be brought before the Court. He expressed regret for the same. The material facts have been suppressed and wrong facts have been placed before the Court. As the petitioner was a successful in getting the writ petition admitted and obtaining the stay order from the Court, in such circumstances, I think that the petitioner is not entitled to get any relief from this Court in exercise of the discretionary powers vested in the Court. The writ petition is liable to be rejected only on this ground. It may be mentioned here that MR. M. I. Khan, learned Govt. Advocate put his best ability and with all force at his command and has pleaded the case of the State, very vehemently.
Learned Govt. Advocate further submits that the question about the applicability of the provisions of second proviso to s. 4 and the provisions of Ss. 40 and 41 of the Act of 1973 has not been discussed in S. B. Civil Writ Petition No. 113 of 1976. He submits that the case of Banshidhar V. State (3) was not brought to the notice of the Court. He invited my attention to the case of Veshbai V. Ganpat (4 , wherein, it was observed as under : "now, a precedent is not binding if it was rendered in ignorance of statute or a rule having the force of statute. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand; such a mistake is again such incuria as to vitiate the decision. These are the commonest illustrations of decision, being given per incuriam. In order that a case can be decided per incuriam, it is not enough that it was inadequately argued. It must have been decided in ignorance of a rule of law binding on the court, such as a statute. (See the observation in Salmond on Jurisprudence" Twelth Edition, pages 150 and 169)". It appears that the provisions of law referred by Mr. Khan were not considered by the Bench and no other arguments were advanced. It is true that where the case was decided on the position of law which was assumed by the Court, the decision is not an authority for what was assumed. Therefore, decisions given sub silentio that is on assumed position of law and not on arguments will not be binding precedents. Mr. Garg is not in a position to dispute the facts that if the arguments have not been advanced in the earlier decision the decision has been given on the basis of assumption and it will not be a precedent. Mr. Garg has invited my attention to the case of Pala Singh v. State of Rajasthan (5), wherein, it was held that as the notice was invalid on account of the facts that it was issued under the provisions of a repealed law and further as the writ petition has been entertained by this Court, it would not be proper to dismiss the writ petition at this stage, merely on ground that the objection about validity of notice should have been raised before the S. D. O. The notice ex facie is invalid and deserves to be quashed. In the case in hand also, the question about the applicability of the second proviso to S. 4 and Ss. 40 and 41 have not been considered. Mr. Khan submits that for this reason, this judgment cannot be considered as a precedent as the question about the applicability of the second proviso to S. 4 and Ss. 40 and 41 needs the decision and no decision has been given in the judgment in S. B. C. W. 113 of 1976.
Mr. M. I. Khan, learned Govt. Advocate has referred the case of Chhaganlal v. State (6 ). The controversy in this case was about the applicability of SS. 207 and 239 of the Rajasthan Tenancy Act. The question was whether the question relating to adoption relevant for determination of ceiling area of the tenant can be determined by the revenue court or not ? The provisions of s. 239 was considered and so far s. 239 is concerned, that also related to the suits and applications arising under the Tenancy Act. It was contended in this regard by the learned counsel for the petitioners that before coming into force of the Rajasthan imposition of Ceiling on Agricultural Holdings Act, 1973, the provisions relating to ceiling matters were incorporated in Chapter III-B under the Rajasthan Tenancy Act itself. It was contended that in view of the facts that Chapter III-B of the ceiling law being part of the Rajasthan Tenancy Act all the provisions of the Rajasthan Tenancy Act should be made applicable to the proceedings relating to ceiling matters. In these facts and circumstances, it was observed as under : "in our opinion, there is no force in this contention as well. The Rajasthan Imposition of Ceiling of Agricultural Holdings Act, 1973 which came into force on the first day of January, 1973 repealed the provisions contained in Chapter III-B under the Rajasthan Tenancy Act. The matter has been decided after the remand by the Assistant Collector, Baran on 27. 4. 79 and obviously on this date the provisions of Chapter III-B cannot be applied. The matter would be governed by the provisions of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973". In that case, their Lordships were not considering the provisions of Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 and specially, the provisions provided under second proviso to s. 4 and ss. 40 and 41 of the Act of 1973. This case will not help to the learned counsel for the petitioner.