P. K. BANNERGEE, C. J. -
(1.)IN all these eight writ petitions, common question of fact and law are involved and therefore, they are being disposed by this common order.
(2.)SO far as the facts in S. B. Civil Writ Petition No. 1274/75, Prithvi Singh Vs. The State of Rajasthan are concerned, they are as under:
The petitioner is a holder of 47 bighas 7 biswas of land under various Khasra numbers in village Palkiya in Tehsil Sangod. The land is barren. It falls, however, in the fertile zone described as in the Schedule appended to the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, which received the assent of the President on March 28, 1973 and has come into force with effect from January 1, 1973. By Section 40 of the said Act, Chapter IIIB of the Old Ceiling Law was repealed. It is stated that after coming into force of the New Act, the petitioner filed return on January 3, 1974 as required under Section 10 of the New Act. The petitioner had not been called upon to account for his land in any manner whatsoever under the Old Repealed Law. It appears that there were two circulars by the Board of Revenue, wherein the different Authorised Officers were directed that inspite of coming into force of the New Ceiling Law i. e. the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 hereinafter called 'the Act of 1973') Chapter III B of the Rajasthan Tenancy Act, 1955 will still hold the field and decisions should be taken by the appropriate authorities on the basis of Old Ceiling Law alleged to have been repealed in toto. It is stated that the petitioner must file return showing the agricultural land held by him on April 1, 1966 by April 28, 1975. So far as the return under the New Law is concerned, it is stated that the same would be kept pending. The petitioner preferred an appeal against the aforesaid order to the Revenue Appellate Authority, which was, however, rejected on May 31, 1975. Against that order, the appeal lay to the Board of Revenue, which alternative remedy was not availed by the petitioner and the petitioner moved this court and obtained the present rule. Similar are the facts in other cases.
The petitioner's contention inter alia is based mainly on the Judgment of the Full Bench reported in Banshidhar vs. State (1 ). On the basis of that judgment, it is stated that the notice under the New Act of 1973 (sic Old Law) cannot be maintained and is not sustainable on different grounds, but I will deal with the different arguments of learned Advocates appearing for the petitioners and replied by Mr. Khan appearing for the respondents at the proper time. Affidavit was filed by the respondents. It is stated inter-alia in paragraphs 2 and 3 as follows : - "2. The contents of para 2 of the writ petition are admitted to the extent that the petitioner had filed return under section 10 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. It is submitted that the petitioner was holding land in excess of the ceiling area applicable to him on 1-4-66, the date notified under section 30-H of Chapter III B of the Rajasthan Tenancy Act, 1955. The petitioner was required to submit a declaration of his agricultural holdings within a period of six months from the above notified date and also liable to surrender the possession of the excess land. The petitioner was further liable to get punishment in accordance with the provisions of sub-section (3) of section 30-E and in addition he was liable to get punishment of fine also under sub-section (4) of section 30-E. The p2titioner is a trespasser as he had retained possession of land in excess of the ceiling area applicable to him and is liable to ejectment in accordance with the provisions of Section 30-E. 3. The contents of para 3 of the writ petition are admitted to the extent that the Sub-Divisional Officer, Ramganj Mandi has rightly decided to initiate proceedings under Chapter III B of the Rajasthan Tenancy Act, 1955 as the petitioner had retained possession of land in excess of the ceiling area applicable to him as a trespasser and was liable to ejectment and a subject of imposition of fine as well as punishment on conviction under Section 30-E of Rajasthan Tenancy Act, 1955 in view of Section 6 of the Rajasthan General Clauses Act, 1956. It is admitted that the Board of Revenue had issued a Circular letter dated 3-2-75 but the same has been withdrawn vide Board of Revenue letter No. BR/f/i/l/l/c/75/2137-62 dated 8-7-75. A copy of this letter is produced herewith as Annexure R/l. "
I am not dealing with the different replies given by the respondents on different grounds urged in the petition because of the limited grounds on which this application alongwith other similar cases is argued, it is not necessary for me to refer to them at all. To the similar effect are the facts in other cases.
On the basis of these facts, it was argued by Mr. Garg and thereafter followed by Mr. Mehrish that after the repeal of the Old Law by section 40 of the Act of the 1973 if the proceeding is not pending under the Old Law, the proceeding cannot be initiated at all and no notice issued on the basis of the Old repealed Law was in existence at the time the notice was served.
(3.)IN reply to the argument of Mr. Garg and Mr. Mehrish, Mr. M. I. Khan on behalf of the respondents contended firstly that under the New Act ceiling area will have to be determined under the Old Act if not already determined under the Old Act. Secondly, it was argued that if needed, ceiling area can be determined under the New Act also. It is again argued that the respondents are at liberty to proceed with the notice under the Old Law as well as under the New Act simultaneously. IN elaborating the point, Mr. Khan contended that cases pending under the Old Law but not disposed of, the Old Law will apply. He further contended that cases though covered by the Old Ceiling Law but no proceedings commenced when the New Act came into force, proceeding can be initiated and order made in accordance with the Old Law. Lastly, it was argued that both the Acts, Old and New, may act in the same field for different times and they are not affecting each other inasmuch as the object of the Old Act was to determine ceiling area as on April 1, 1966 whereas the object of the New Act was to determine ceiling area as on January 1, 1973 and as the New Act defines 'ceiling area' it is argued that those who retain land on April 1, 1966 will still be reduced under the New Act. These are in fact the arguments advanced by Mr. Khan appearing for the respondents.
The three branches of arguments are squarely discern able from Mr. Khan's contention. Firstly, there is no dispute to the petitioner that if proceedings are pending and not disposed of when the New Act came into force, the proceedings must be disposed of in accordance with the Old Law. Secondly, if the proceedings initiated are disposed of before the New Act of 1973 came into force, subject to the right of the State Govt. to reopen under Section 15 (2) this will not be touched. The main contention where both the parties joined issue is where no proceedings were pending at the time when the New Act of 73 came into force, is it open to the respondents to initiate proceedings under the Old repealed Law. In order to decide this point, it is necessary for us to reproduce Section 4 (1) Proviso (2) which is as under : - "4. Ceiling area- (l) 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 (hereinafter referred to as 'the primary unit' of family), the ceiling area applicable to such person or such family such be in respect of - (a) land under assured irrigation capable of growing at least two crops in a year (hereinafter referred to as the 'land under assured irrigation'), 18 acres, (b) land under assured irrigation capable of growing at least one crop in a year, 27 acres, (c) land under orchard existing on 23rd July, 1972, 54 acres, (d) land not within categories specified in clauses (a) to (c) and falling in fertile zone as described in the Schedule, 48 acres, (e) land not within categories specified in clauses (a) to (d) and falling in semi-fertile zone as described in the Schedule, 54 acres, (f) land not within categories specified in clauses (a) to (e) and falling in hilly zone as described in the Schedule, 54 acres, (g) land not within categories specified in clauses (a) to (f) and falling in semi-desert zone as described in the Schedule, 125 acres, and (h) land not within categories specified in clauses (a) to (g) and falling in desert zone as described in the Schedule, 175 acres. Explanation - Land irrigated by a well shall not be deemed to fall within the categories of land specified in clause (a) and clause (b) of this subsection and shall be deemed to fall within the categories specified in clause (d) thereof: Provided further that if the ceiling area applicable to any person or family in accordance with this section exceeds the ceiling area applicable to such person or family according to the provisions of law repealed by section 40, in that case the ceiling area applicable to such person or family will be the same as was under the provisions of the said repealed law. " Section 40 of the New Act by which the Old Act was repealed and which is saving clause saving inter-alia, except as provided in second proviso to sub-sec. (1) of Sec. 4 and in sub-sec. (2) of Sec. 15 of this Act, the provisions of clause (6a) of Section 5 and Chapter 1ii-B of the Rajasthan Tenancy Act, 1955 were repleaded. The Rajasthan Imposition of Ceiling on Agricultural Holdings Ordinance, 1973 was also repealed. It is also provided in the said repealing Section that notwithstanding the repeal of the said Ordinance under sub-sec. (2) anything done or any action taken or any rules made under the said Ordinance shall be deemed to have been done, taken or made under this Act and section 27 of the Rajasthan General Clauses Act, 1955 shall apply to such repeal and re-enactment. I will refer to the Old Act at proper place when considering different judgments given on this question.
The main controversy was decided by this Court in Full Bench in a case reported in Banshidhar Vs. State (supra ). In paragraph 63 of the judgment at page 65 their Lordships of the Full Bench speaking through Hon'ble Tyagi J. , Acting Chief Justice held conclusively that the rights and liabilities created under Section 30-E of the repealed Ceiling Law have not, in any manner, been affected by the enactment of the New Law. Therefore, all the cases initiated under the Old Law and pending before the competent authorities shall be disposed of in the manner and under the provisions of the Old Law. About this proposition of law as enunciated by the Full Bench Mr. Khan cannot have any answer. Moreover, this question being decided by the Full Bench is binding on all the Hon'ble Judges unless reversed by the Supreme Court and I am told the appeal is pending in the Supreme Court.