M.C.JAIN, J. - (1.) THIS writ petition raises a controversy as to whether a person can be compelled to surrender the surplus land out of the land retained by him instead of surrendering the land transferred by him, which is not recognizable in law.
(2.) I may recount a few material facts of the present case giving rise to the controversy that has arisen. The petitioner purchased 5 Bighas of land; 4 Bighas being Killas Nos. 22 to 25 in Chak 8 GGR and 1 Bigha being Killa No. 21 in Chak No. 6 GGR from respondent No. 3 Balbirsingh by a registered sale-deed dated April 18, 1972 for a sum of Rs. 10,000/-. Ceiling proceedings were initiated against the respondent No. 3 Balbirsingh in case No. 783 of 1975. Shri Balbirsingh, respondent No 3 filed his objection to the draft statement, served on him and in his objection, inter alia, he stated that he had sold the aforesaid land to the petitioner bona fide and with full consideration. The respondent No. 3 mentioned that he had built a pucca house and also got constructed a tube-well and in order to meet that expenditure he sold the land to the petitioner. The Authorised Officer, Hanumangarh, by his order dated May 27, 1976, decided the ceiling case of respondent No. 3, whereby, 75 Bighas 6 Biswas land of the respondent No. 3 was declared to be surplus land and liable to be acquired under the provisions of the Rajasthan (Imposition of Ceiling on Agricultural Holdings) Act, 1973 (for short 'the Act'). No notice of ceiling proceedings was served on the petitioner and the petitioner had no knowledge of these proceedings. The respondent No. 3 gave his option for surrender of the surplus land on July 10, 1976 and in that option, the respondent No 3 Shri Balbirsingh included the petitioner's land sold to him. Regarding this option as well the petitioner had no knowledge. On the option, given by the respondent No. 4 Tehsildar, Tibi reported that 5 Bighas of land is encumbered with the petitioner vide Ex. 4. The Tehsildar, Tibi reported that possession over 69 Bighas 5 Biswas of land has been taken over and 5 Bighas of land, which is with the petitioner is not free from encumbrance. He sought an order from the Authorised Officer by his letter No. 2562. Prior to this, he informed that the land in dispute i. e. 5 Bighas of land was sold by the respondent No. 3 to the petitioner Banwarilal in the year 1972 and the same had been mutated in his name in the Revenue Records and a tube-well exists therein. That land has been mortgaged by Shri Banwarilal with the State Bank of Bikaner and Jaipur and that mortgage was also shown in the Revenue Records. The Tehsildar by his report (Ex. 5) dated July 16, 1976 sought a direction whether possession over 5 Bighas of land is to be taken out of the land in possession of respondent No. 3 or not. When the petitioner came to know that the respondent No. 3 has given option for surrender of the land of the petitioner, the petitioner submitted an application to the Authorised Officer, Hanumangarh under section 6/18 of the Act on November 20, 1978 (Ex. 6). Notice of the application was given to the respondent Shri Balbirsingh and he filed a reply to the notice (Ex 7). The Authorised Officer, by his order dated August 21, 1979 rejected the petitioner's application. The petitioner has now sought the reliefs that the order Ex. 8 may be quashed and the respondents may be restrained from taking possession of the land in dispute from the petitioner. The challenge is, inter alia, on the ground that the respondent No. 3 had been given an option to select the land, which he wants to surrender, but he can not surrender encumbered land, if he has other land in his possession, which is available for being surrendered. Such an obligation of the transferor arises under Sec. 18 and sub-section (4) of Sec. 16 of the Act. It is only when the un-encumbered land is not available, then the encumbered land can be surrendered and the transferee in that situation is only entitled to the amount of compensation of acquisition payable to the transferor. One of the grounds of challenge is also this that the petitioner was not served with a notice of the ceiling proceedings and without giving him an opportunity of hearing, the ceiling, case of respondent No. 3 was decided, so the order passed at the back of the petitioner is a honest and a nullity in the eye of Law. According to the petitioner, notices ought to have been served on him under Sec. 12 of the Act as he was a person interested in the land. A return to the writ petition has been filed on behalf of the respondents No. 1 and 2, in which, the petitioner's claim has been resisted and it is averred that the transfer is not a bona fide one and was not a recognisable transfer, so the entire surplus land including the land of the petitioner was found to be the land of respondent No. 3. After the final order in the ceiling case, the respondent No. 3 has exercised his option to surrender the land in dispute and that option, cannot be challenged by the petitioner. The petitioner has an alternative remedy by way of suit for damages against the respondent No. 3. It was averred that the order of the Authorised Officer is neither illegal nor without jurisdiction. I have heard Mr. H.M. Parekh, learned counsel for the petitioner and Mr. R. Balia, learned Deputy Government Advocate for the State.
(3.) SO far as the first ground of challenge stated above is concerned, it is based on the provisions contained in Secs. 16 and 18 of the Act. It may be mentioned that under Sec. 6 of the Act, ail transfers of land made on or after 26th September, 1970 shall be deemed to have been made in order to defeat the provisions of the Act and such transfers shall not be recognised or taken into consideration in determining the ceiling area applicable to the transferor and an exception has been made with regard to the bona fide transfers made before 1st January, 1973 and the burden of proving the transfer to be bona fide has been placed on the transferor under sub-sec.(2) of section 6 of the Act. While determining the ceiling case of the respondent No. 3, the transfer in question was not recognised as it was not found a bona fide one. Although, it was decided without any notice to the petitioner and according to the respondents, the petitioner was not required to be served with any notice. This is the second ground of challenge, but I am not addressing myself on that ground, as it is not necessary to address on that ground. In my view, the petitioner can succeed on the first ground. The respondent No. 3. after service of the final statement on him, gave his option under section 18 of the Act. In that option, he included the petitioner's land to be surrendered by him. It may be stated that the surplus land would be deemed to have been acquired by the State Government under section 16 of the Act from the date of service of the final statement on the holder of the land and that surplus land from that date shall vest absolutely in the State Government free from all encumbrances as provided in sub-sec. (1) of section 16 of the Act. Sub-sec. (2) of section 16 requires that the holder of the land shall surrender or deliver possession of surplus land to the Stats Government by placing it at the disposal of the Tehsildar and under sub-sec. (3), if the holder of the land refuses or fails to surrender or deliver possession of the land vested in the State Government within three months as provided, he shall be deemed to be a trespasser on such land and shall be liable to ejectment therefrom and to the payment of penalty in accordance with section 91 of the Rajasthan Land Revenue Act, 1956. For the appreciation and adjudication of the controversy in question, after referring to the provisions of sub-sections (1) (2) and (3) of section 16 of the Act, it would be proper to reproduce the provisions contained in sub-sec. (4) of section 16 as well as the provisions contained in sub-sec. (1) of section 18 of the Act. "16. Vesting of surplus land - (1) ... (2) ... (3) ... (4) Notwithstanding anything contained in section 18 or in any other provisions of this Act, where any transfer of land is not recognised or taken into consideration in determining the ceiling area applicable to the transferor under sub-section (1) of section 6, surrender of surplus land vesting in the State Government shall be made by the transferor out of the land remaining with him after the transfer and the balance of surplus land remaining, if any shall be recovered from the transferee by his ejectment. In case surplus land or portion of it is recovered from the transferee, the price paid by him for such land or portion thereof shall be deducted from the amount of acquisition payable to the transferor and shall be paid to the transferee to an extent not 0xceeding such amount of acquisition. 18. Selection of land within ceiling Area- (1) A person holding or acquiring land in excess of ceiling area applicable to him shall have the right to select any land within the ceiling limit which he wants to retain in his possession; Provided that where a person holds or acquires land of which some are encumbered and some are not, the selection under this section so far as practicable, be made in favour of encumbered land in preference to unencumbered land. (2)............... Sec. 18 confers a right on the holder of the land to select any land within the ceiling limit, which he wants to retain in his possession, but the proviso to sub-section (1) places some restriction on the exercise of this right by him. That restriction is that be is required to make his selection as far as practicable, in favour of encumbered land in preference to unencumbered land. It is practicable in the present case to make selection in favour of encumbered land. Besides the proviso has to be read along with the provisions of section (16)4 of the Act. Sub-section (4) of section 16 of the Act over-rides section 18 or any other provisions Of the Act having any bearing on the matter contained in subsection (4) of Sec. 16 of the Act. Sub-section (4) of section 16, begins with the non-obstants clause. Under the provisions of sub-section (4) notwithstanding the provisions of section 18, a duty is cast on the transferor to surrender the surplus land out of the land remaining with him after the transfer and despite that, if there remains the balance of surplus land, then such balance of surplus land shall be recovered from the transferee. It is only when the surplus land or any portion thereof is recovered from the transferee, then the price paid by the transferee for such land or portion thereof shall be deducted from the amount of acquisition payable to the transferor and shall be paid to the transferee to an extent not exceeding such amount of acquisition. If the two provisions are read together, the scheme of the law clearly appears to be that although the transfer of the land is not recognised and the transferred land will be considered to be the land of the transferor and thereafter, surplus land would be declared but in connection with the surrender of the surplus land, the transferor is required first to surrender the unencumbered land and it is only when unencumbered land is not available, then the balance of surplus land can be recovered from the transferee and the transferee shall be paid the price out of the amount of acquisition payable to the transferor. ;