- (1.) HON'ble J. R. CHOPRA, J.- By this writ petition the petitioner has challenged Annex. 1 dated 1. 6. 1981 the order of the Deputy Secretary Revenue (Ceiling) whereby ceiling case which was earlier closed has been reopened and Annex. 2 the order of the Addl. Collector, Sri Ganganagar dated 12. 11. 1984 whereby the learned Addl. D. M. has held that deceased Agriram was possessed of 115 bighas and 8 Biswas of the land in excess of the ceiling area and, therefore, that stands vested in the Government. He was given a choice to disclose his option within 7 days as to which particular land he wants to surrender and if he does not do so, then the Tehsildar Bhadra will be free to attach his unencumbered land according to his own wisdom. In pursuance of the aforesaid order as also the order of the learned Member of Board of Revenue passed in appeal dated 3. 7. 1989 marked as Annex. 3 whereby it has been held that the assessee Shri Agriram was in possession of 57 Bighas and 14 biswas of land in excess of the ceiling area instead of 115 bighas and 8 biswas of Nehari land as held by the Addl. Collector, Sri Ganganagar. The Tehsildar has attached and acquired the aforesaid land of the petitioners on 3. 1. 1990 and here this writ petition to challenge this attachment.
(2.) FACTS necessary for the disposal of this writ petition briefly stated, are that Shri Agriram was the father of petitioner Shri Amilal and grand-father of respondent no. 5 Nathuram son of Rajas who has now been ordered to be transposed as petitioner- It is alleged that Shri Agriram was possessed of 290 bighas and 4 biswas of land out of which the 75 bighas land was uncommand land which was equated by the Additional Collector to 25 bighas of Nehari land and consequently it was held that the assessee was possessed of 240 bighas and 4 biswas of command land. The Additional Collector held that the family of Agriram was entitled to retain 124 bighas and 16 biswas of command land, therefore, he ordered for the acquisition of 115 bighas and 8 biswas of land which was reduced to 57 bighas and 14 biswas by the Revenue Board vide Annex. 3. Against that order the petitioner earlier filed a Division Bench writ petition No. 341/90 on 25. 8. 1989 but that later on came to be withdrawn on 19. 1. 1990 with permission to file fresh writ petition. Hence this writ petition. It is alleged that Annex. 1 dated 1. 6. 1981 is against the principles of natural justice and void as Agriram has expired in the year 1974. The State Govt. issued no notice under section 15 (2) to the petitioner & respondent no. 5 before the reopening of order passed by the Dy. Secretary Revenue (ceiling) dated 2. 11. 1972. The Additional Collector after repening of the case ignored the Tehsildar's report and the Revenue Board also committed an error in not dividing the land in three shares. The land is governed by Chapter III-B of the Rajasthan Tenancy Act and the Rajasthan Tenancy (Fixation of ceiling on Land) Government Rules, 1963, hereinafter referred to Rules of 1963. It has been claimed that rule 19 of these Rules is ultra vires to the Constitution. The Additional Collector has directed the Tehsildar to take possession of unencumbered land of petitioner Agriram. This order is illegal and without jurisdiction. The Additional Collector has no authority to delegate his powers conferred upon him by law to the Tehsildar and to take possession of the land of his choice from Agriram and Tehsildar and no jurisdiction to decide the nature of the unencumbered and encumbered land to be acquired from Shri Agriram. The Patwari has attached the petitioner's 57 bighas and 14 biswas land and its crop has been ordered to be auctioned on 22nd Jan. , 1990. This order of the Additional Collector is against sub-rule (9) & sub-rule (13) of Rule 21 of the Rules of 1963 & sec. 30e of Chapter II1-B of the Rajasthan Tenancy Act. The Tehsildar has also not taken any steps under sec. 91 of the Land Revenue Act against the petitioner and therefore, it has been claimed that firstly rule 19 of the Rules of 1963 be declared invalid and ultra vires and orders Annex. 1, 2 & 3 be quashed & the respondents be restrained from interfering with the cultivatory possession of the petitioner. Later on amendment application was filed by Nathuram to transpose himself as a petitioner. One more application was filed by Shri B. L. Purohit on behalf of petitioner Amilal to quash the order of the Tehsildar dated 1. 1. 1990 Annex. 5. It has been prayed that proceedings for taking possession of land dated 3. 1. 1990 Annex. 6 be quashed. An amendment was sought in the prayer adding relief No. 3 for quashing Annex. 5 & 6. Although the copy of this application was supplied to the Government Advocate on 14. 10. 1992 and the application was presented in the Court on the same day but it was not dealt with by the office. Only the application filed on behalf of respondent no. 5 Nathuram to transpose him as petitioner was dealt with by the office on 19. 10. 1992 and it was ordered by the office that it be listed before the court on 22. 10. 1992. It was that application for amendment which was allowed. No orders have been passed on the application dated 14. 10. 1992. It has not been dealt with by the office. However, no compliance of the order on the application filed by Nathuram has been made and amended cause title has not been filed and instead the amendment application incorporating amendments sought through the application dated 14. 10. 92 has been filed. This is a mistake apparent on the face of the record. Be that as it may, a fourth stay application was also filed with a prayer to restrain the Tehsildar from auctioning the crop of the petitioner on the disputed land. On 8. 7. 93 it was ordered that the crop may be attached and possession of crop be retained with the Tehsildar but he will not cut it and auction it without obtaining orders from the court. This was an order passed on the fourth stay petition. On the third stay petition an order came to be passed on 4. 6. 1990 that land in question shall not be put to auction. By this order no restraint was put on the Tehsildar not to auction the crops. No restrain was also put on the Tehsildar not to hold this land under attachment. Only restraint put was not to auction the land. In this view of the matter, the Division Bench authority cited on behalf of the petitioner i. e. Hiralal Sharma Vs. Railway Sahakari Bank Ltd. (1) has no application to the facts of the present case. No order was passed on the second stay petition. On the first stay petition on 22. 1. 1990 it was ordered that meanwhile the standing crops on the land may be released provided the petitioner furnishes security to the extent of the valuation of the crops to the satisfaction of the presiding officer. That pertains to the standing crop on the disputed land in the year 1990. The attachment order was not disturbed. No reply has been filed on behalf of the State. However, the case was finally heard alongwith the fourth stay petition. The first contention of the petitioner is that before reopening the case no notice was served on him. This contention is negatived by Annex. 1 dated 1. 6. 1981 in para 2 of which it has been mentioned that before reopening the case a notice under section 15 (2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was given to the non-petitioners and they participated in those proceedings as will be clear from the order dated 1. 6. 81. In para 3 it has been recorded that in reply to the notice the respondents have claimed that the ceiling proceedings which were earlier decided have been rightly decided. The notice is against law and the proceedings should not be reopened. Thus it is futile to contend that no notice of the reopening of the proceedings was given to the petitioners. It may be true that Shri Agriram died in the year 1974 but notices were issued to his legal representatives i. e. Shri Amilal and Shri Nathuram. Thus this contention has no legs to stand. It has been contested before us that the judgment of the learned Member Board of Revenue is wrong in so far as it has ordered the acquisition of 57 bighas and 14 biswas of Barani land. It was contended by Mr. Purohit as also by Mr. Acharya that no compliance of Section 13 of the Act of 1973 has been made. No final statement has been published and, therefore, the taking of possession is against the rules and in this respect relian-e has been placed on a decision of this Court rendered by Division Bench in Mukhtiar Singh vs. State (2) wherein it has been held that the compliance of provisions of section 13 is mandatory and the land does not vest in the State Government till the final statement is prepared under section 13. It may be stated here that this contention is devoid of any force because these ceiling proceedings have not been initiated under the Act of 1973. Therefore, the proceedings which have been initiated under Chapter III-B of the Rajas-than Tenancy Act are governed by the Rules of 1963 and, therefore, Mukhtiar Singh's case (supra) has no application to the facts of the present case. The petitioner has himself come with a case that the case is governed by Rules of 1963 and Chapter III-B of the Rajasthan Tenancy Act and the order of reopening has also been passed in pursuance of section 15 (2) of the Act of 1963. Accordingly no such contention could have been canvassed on behalf of the petitioner, much less pressed. Be that as it may, it has to be admitted that these proceedings are governed by Chapter III-B of the Rajasthan Tenancy Act because the ceiling proceedings pertain to period prior to the year 1973 and the acquisition of the land has to be determined on the basis of the possession of the land as on 1. 4. 1966. Section 30e of the Rajasthan Tenancy Act governs his ease and it reads as under:- "30-E. Maximum land that can be held and restriction on future acquisition. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, no person shall, as from a date notified by the State Government in this behalf- (a) Continue to hold or retain in his possession in any capacity and under any tenure whatsoever land in excess of the ceiling area applicable to him, or (b) Acquire, by purchase, gift, mortgage, assignment, lease, surrender or otherwise or by devolution or bequest, any land so as to effect an increase in the extent of his holding over the ceiling area applicable to him: Provided that different dates may be so notified for different areas of the State. (2) Every person, who, on such date, is in possession of land in excess of the ceiling area applicable to him or who thereafter comes into possession any land by acquisition, under clause (b) of sub-section (1), shall within six months of such date or within three months of such acquisition, as the case may be, make a report of such possession or acquisition to, and shall have to surrender such excess land to the State Government and place it at the disposal of, the Tehsildar within the local limits of whose jurisdiction such land is situate : Provided that if any person holding or acquiring land in excess of the ceiling area applicable to him holds land in more than one Tehsil he shall have the option to choose which of the lands held by him in different Tehsils should be surrendered so as to leave with him the land upto the ceiling area applicable to him : Provided further that the option afforded by the foregoing provisoes shall be subject to the limitation that where the person surrendering excess land under this sub-section holds lands, of which some are encumbered lands, shall so far as may be, be surrendered in preference to encumbered lands. (3) Any person failing intentionally to make a report or to surrender land as required by sub-section (2) shall on conviction, be punishable with fine which may extend to one thousand rupees. (4) Without prejudice and in addition to such conviction and fine the person retaining possession of any land in excess of the ceiling area applicable to him shall be deemed to be a trespasser liable to ejectment from such excess land and to pay a penalty in accordance with clause (a) of sub-section (i) of section 183: Provided that the lands, from which a person shall be so ejected shall as far as may be, unencumbered lands. (5) All lands coming to the State Government by surrender under sub -section (2) or by ejectment under sub-section (4) shall vest in it free from all encumbrances. (6) Nothing contained in this section shall operate as against the transferor to the extent his transfers are recognised under section 30dd.
(3.) A bare reading of Section 30e will show that a duty is cast on the assessee that from the date notified by the State Government in this behalf which happens to be 1. 4. 1966 in this case he cannot hold or retain land in his possession in any capacity or under any tenure whatsoever in excess of the ceiling area applicable to him and it is his duty to surrender that land which is in excess of the ceiling area and if he fails to do so intentionally and fails to make a report about it or surrender the land as required by sub-section (2) of section 30e of the Rajasthan Tenancy Act, he is not only liable to conviction under Sub-section (3) of section 30e but sub-section (4) of section 30e further provides that without prejudice and in addition to the conviction and fine which may be imposed on the assessee retaining possession of any such land in excess of the ceiling area applicable to him, he shall be deemed to be a trespasser on such land liable to ejectment from such excess land and to pay a penalty in accordance with clause (a) to sub-section (1) of section 183 of the Rajasthan Tenancy Act. Thus a duty has been cast on the assessee to surrender the land. Rules have been framed to carry out the mandate of Chapter 1i1-B of the Rajasthan Tenancy Act and they are Rules of 1963. Rule 21 pertains to contents of the Sub-Division Officer's order. Reference has been made to sub-clause (9) of rule 21, That pertains to sub-section 1 (b) of section 30e and that has no application to the facts of the present case. It is not the case of an acquisition or purchase or gift, mortgage or assignment by the assessee. Sub-clause (12) of Rule 21 of Rules of 1963 however provides that if the assessee is liable to ejectment under sub-sec. (4) of sec. 30e the particulars of the land from which he is to be ejected shall be given and the Sub-Divisional Officer shall see these are unencumbered lands. Sub-clause (12) and (13) of rule 21 of the Rules of 1963 provides that the Sub-Divisional Officer should carefully specify the area inordinary aeres, khasra numbers, soil classification etc. of the surplus land that will vest in the State under sub-sec. (5) of sec. 30e of the Rajasthan Tenancy Act. Although the section imposes a duty on the assessee to surrender the land and not to retain it and if he retains it he is treated as a trespasser liable to be ejected under section 183 of the Rajasthan Tenancy Act but still a duty has also been imposed on the SDO to specify the land which he hold to be surplus land over and above the ceiling area and that has to be specified by him i. e. from which particular land the assessee has to be ejected. So far as possible that land should not be an encumbered land. The S. D. O. should specify its area in ordinary acres, the khasra numbers of land to be acquired, soil classification of the land etc. Of course when the Additional Collector passed the order he did give a choice to the petitioner to surrender unencumbered land to the extent of 115 bighas 8 biswas within a period of 7 days, but it was further ordered by him that if the petitioner does not surrender his land or submits his option, the Tehsildar Bhadra was ordered to attach his land to that extent as per his own wisdom. Keeping in view the fact that the land which is attached should be unencumbered land. This could not have been done as per sub-clause (12) & (13) of Rule 21 of the Rules of 1963 which read as under:- " (12) Whether he is liable to ejectment under sub-section (4) of Section 30e; the particulars of the land from which he is to be ejected shall be given and the Sub-Divisional Officer shall see whether these are unencumbered lands. (13) The Sub-Divisional Officer should carefully specify the area, in ordinary acres, Khasra numbers, soil classes etc. of the surplus land that will vest in the State under sub-section (5) of section 30e. " It is true that the Additional Collector thought that the petitioners who are legal representatives of late Shri Agriram, are possessed of 115 bighas and 8 biswas of land in excess of the ceiling area but the Revenue Board ultimately held that there is no dispute about the fact that late Agriram was possessed of 240 bighas and 4 biswas canal irrigated land; the transfers made by him were not recognised and these facts have also not been challenged before us. It has not been contested before us that the decision of the Revenue Board that the petitioners who are legal representative of late Shri Agriram are in possession of 57 bighas and 14 biswas of land in excess of the ceiling area and, therefore, it has to be treated that the petitioner who are in possession of this land are in its possession as trespassers because sub-clause (4) of sec. 30e provides that they be treated as trespassers on this excess land. They have to be treated as trespassers on this land under the deeming clause at least with effect from the date of judgment was rendered by the learned Additional Collector Shri Ganganagar on 12. 11. 1984. The petitioners had no right to use this land but inspite of the fact that they have to be deemed as trespassers on this land were obliged to surrender it but as the land to be acquired i. e. its khasra number and area with soil classification has not been specified in his order by the learned Addl. Collector and no notice as required by section 91 of the Rajasthan Land Revenue Act has been issued by the Tehsildar for ejecting the unauthorised occupants from the land, the order of the Addl. Collector or for that matter the S. D. O. asking the Tehsildar to attach the land and the order of the Tehsildar dated 1. 1. 1990 given to the land Records Inspector and marked as Annex. 5 ordering him to take possession of the land and the possession of the land taken in pursuance of that order on 3. 1. 1990 marked as Annex. 6 cannot be sustained. The Addl. Collector Sri Ganganagar must specify the khasra number and the area along with the soil classification to be acquire being in excess of the ceiling area. That land which has to be acquired should be unencumbered as provided by the Rules. That however does not mean that the petitioners are not bound to surrender the land in excess of the ceiling area in pursuance of the order of the learned A. D. M. or the Revenue Board and if they do not do so they have to be treated as trespassers on the excess land as per sub-clause (4) of section 30e of the Rajasthan Tenancy Act but they cannot be ejected from the land in the manner it has been done vide Annex. 5 & 6. They have to be ejected from this land as per provisions of section 91 of the Land Revenue Act in compliance of the orders that are passed by the learned A. D. M. Sri Ganganagar as per sub-clause (12) and 13) of Rule 21 of the Rules of 1963. However for the period the petitioners remain in occupation of this 57 bighas & 14 biswas of land as trespassers, the petitioners will be liable to pay penalty in the shape of compensation for the illegal possession of this land to the extent of fifty times the Annual Rent as per Rules with effect from 12. 11. 1984 when the order in the ceiling case was passed against the petitioners by the learned A. D. M. marked as Annex. 2, The petitioners be restored back into possession of the disputed land which has been attached vide Annex. 6 if they have been actually evicted from the land vide Ann. 6 prepared in pursuance of the order Annex. 5 because this attachment is against clause (52) & (13) of Rule 21 of the Rules of 1963 and the A. D. M. , Ganganagar is directed thereafter to take proceeding of eviction of the petitioners from 57 bighas & 14 biswas of land and fine/ compensation be recovered from them as aforesaid as per law. Accordingly, the writ petition alongwith the fourth stay petition and all other stay applications stand decided on merits as aforesaid. . ;