VERMA, J. - (1.) -
(2.) THE petitioners Chhitar Lal and Ratan Lal, sons of Govind Lal are aggrieved against the orders passed by Addl. Collector, Baran dated 31.3.1981 (Annex. 2) and order dated 26.6.1982 (Annex. 3) and finally the order of the Board of Revenue dated 11.9.1985 (Annex. 7). It is stated by the petitioners that in a joint Khatedari they own 185 Bighas and 7 Biswas of land in village Seesawali, Tehsil Mangrol, District Kota. The proceedings u/s 3 of the Rajasthan Tenancy Act, 1955 (hereinafter called as 'old Ceiling Act') were started by the Sub-Divisional Officer but were dropped on 8.5.1972. A report was made to the Government by the Collector to the effect that the S.D.O. Baran by passing the order dated 8.5.1972 had acted illegally and his or- der was in contravention of the provisions of Chapter III-B of the Old Ceiling Act and, therefore, the same was likely to be reopened and consequently a notice was issued to the petitioners for re-opening of the ceiling case against them. However, the petitioners took up the objections that their case under the New Ceiling Law already stood decided and, therefore, no proceedings can be started under the Old Ceiling law. It is further stated that the objection was taken that their land does not fall under the Canal Irrigation and, therefore, were not in excess of the ceiling limit fixed by the old ceiling law. It is stated that the Deputy Secretary to the Government of Rajasthan had rejected the contention of the petitioners in regard to the fact that the old ceiling law could be made applicable against them, but however, had dire- cted the Additional Collector, Baran to hold further proceedings vide order Annexure 1. It was held by the Deputy Secretary vide Annexure 1 dated 6.12.1978 that the Sub-Divisional Officer had passed an illegal order. The ceilings were re- opened by exercising powers under Section 15(2) of 1973 ceiling law primarily on the ground that it was to be ascertained whether the land was irrigated or otherwise. On such remand having been made by Annex. 1 the Government had issued notice to the petitioners and after hearing both the parties, the Additional Collector, Baran had come to the conclusion that the petitioners actually possess 185 Bighas and 7 Biswas of land equivalent to 100.53 standard acres of land in the said village. After making certain deductions of 2.85 standard acres it was ultimately held vide Anne- xure 2 dated 31.3.1981 that the petitioners were in possession of 181 Bighas 12 Biswas of land and by converting the same, the possession was held to be of 97.98,standard acres. The petitioners allowed the permissible area of 30 standard acres each. 8.70 standard acres were held to be surplus. The Additional Collector had found that village Seesawali is situated in Chambal Command Area and taking the intensity of irrigation as 79% each of the petitioners was entitled to retain only 30 standard acres. However, according to the petitioners they had already surrendered 29 bighas and 8 biswas of land under the New Ceiling Law and, therefore, on the application having been moved by them on 8.7.1981 the Additional Collector had made certain corrections in its order to the effect that if any land remaining 29.8 Bigha has already been surrendered by the petitioners that land would be taken into consideration. Copy of the order is attached as Annexure 3 dated 24.6.1982. The petitioners were still aggrieved on the ground that there was nothing in the record to show that the land had fallen within Chambal Command area. However, their plea was not accepted and the Board of Revenue dismissed the ap- peal vide order dated 11.9.1985. It is stated by the petitioners that there was nothing on record to show that the area of the petitioner fall under the Irrigation Command Area and, therefore, the finding against the petitioners that the land held by them fall under the Ceiling Group II of Chambal Command Area should not have been sustained and could not be sustained. It is further submitted that for the reason that the proceedings were pending against the petitioners under the new ceiling law, therefore, the provisions of old ceiling law could not be resorted to. It is further stated that the Rajasthan Government had initiated proceedings against the petitioner Chhitar Lal in the year 1975 under new ceiling law and a declaration of surplus area was made on 18.9.1975 in this regard. Appeal against such order dated 18.9.1975 was also rejected by the Assistant Collector on 16.2.1976. It is stated that the State Government had reopened the case of Chhitar Lal petitioner by order dated 27.4.1981 and first proceedings were ordered to be held under the new ceiling law and, therefore, the Additional Collector vide its order dated 4.7.1983 had declared 13.02 acres of land as surplus against which the petitioner Chhitar Lal filed an appeal before the Board of Revenue which is said to have been accepted on 3.6.1985 and the case was remanded to Add]. Collector for deciding afresh in accordance with law. It is the submission that the case of the petitioner Chhitar Lal is still pending before the Additional Collector, Baran. The relevant orders dated 18.9.1975, 4.7.1983 and 3.6.1985 had been attached as Annexures 4, 5 and 6, however, the petitioners are challenging the orders Annexures 2, 3 and 7 primarily on the grounds; (i) that the proceedings under the new ceiling law had already been initiated against the petitioner Chhitar Lal which is pending before the Additional Collector as per the remand order made by the Board of Revenue vide its order dated 3.6.1985 and, therefore, ft was not open to the State to re-open the ceiling case of the petitioner decided under the old ceiling law. (ii) that the respondent cannot initiate the proceedings under the old as well as new ceiling law. (iii) that the court below had erred in holding that the disputed land fall within the Chambal Command Area or that the lands were irrigated from perannial sources of irrigation on 1.4.1966. Even though certain other grounds have been mentioned in the petition, but no argument has been addressed either on vires of the rules or Act except the grounds enumerated above.
(3.) VIDE Annexure 2 the Additional Collector after deciding the case under Section 15(2) of 1973 Act had come to a definite finding after going through the revenue record i.e. Khasra Girdawari etc. that the petitioners were jointly holding on 25.2.1958, the land 185 bighas 7 biswas equal to 100.53 standard acres as per Jamabandi for the year Samvat year 2014 to 2023 and from Khasra Girdawari it is also revealed that the land is irrigated. It was further found that certain land is to be excluded for being included under road area etc. and ultimately it was found that the petitioners were in possession of 97.98 standard acres and each of the pe- titioner was in possession of 48.99 standard acres. It was further found that none of the petitioner had more than 5 members of family. It was further found that after applying the formula of 79% intensity with regard to 48.49 standard acres in the hand of each of the petitioner. The stand. acres as per conversion in law comes to 38.70 standard acres and after deducting 30 standard acres as permissible ceiling area 8.70 standard acres were declared to be surplus. On the application filed by the petitioners for reviewing the order on the grounds mentioned therein, the order dated 24.6.1987 was passed. The Board of Revenue ultimately vide order Annexure 7 passed on 11.9.1985 in relation to both the petitioners had come to the finding that each of the petitioner was likely to surrender 11.78 standard acres as per re-cal- culation made vide Annexure 3. As a matter of fact after recalculation surplus area stood increased. The contention of the petitioner that the surplus area could not have been declared by treating it as Chambal Command Area (as irrigated), has no merit. All the authorities below have considered the matter in this regard and concluded as a matter of fact about the intensity of the area in question. In the case of Mode Singh vs. Board of Revenue (2), the learned Single Judge of this court after noticing the Division Bench judgments Ram Pratap and others vs. State of Rajasthan (2) and after quoting Section 30-C of Chapter B of the Tenancy Act, Rule 19 of the Rajasthan (Fixation of Ceiling and land holding) Rules, 1963 and after considering Section (3) of the Rajasthan Imposition of Ceiling and Agricultural Holdings Act, 1973 (new ceiling law) and Rule 5 of the Rajasthan Imposition of Ceiling and Agricultural Holdings Rules, 1973 had observed that under Rule 5 of the Rules of 1973 it has to be seen whether the land talls within the command area of a major irrigation project and the calculation is to be made in accordance with old ceiling law as well as new ceiling law and the law which is in favour to the State has to be then taken into consideration for declaring any surplus land in case of the ceiling land. Learned Single Judge had observed as under- "Under Section 4(3) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (New Ceiling Law) it is provided -`The question whether any land is assured of irrigation from Government or private source capable of growing two crops or one crop in a year shall be determined by the authorised officer in such manner as may be prescribed." Rule 5 of the Rajasthan Imposition of Ceiling on Agricultural Holdings Rules, 1973 reads as under - `5. Verification of the returns : (1) The Authorised Officer shall within one month of the receipt of return furnished by a person under Sec- tion 10 or Section 11, forward a copy of the return to the Tehsildar of the tehsil in which the land is situated for verification from the land records and other Tehsil revenue records about the correctness of the particulars furnished in the return including the correctness of particulars about the- (a) land under assured irrigation capable of growing at least two crops in a year, (b) land under assured irrigation capable of growing at least one crop in a year; and; (c) other lands not within categories specified in clauses (a) and (b) above., (2) The Tehsildar shall verify the correctness of the particulars from the land records and other Tehsil revenue records and then submit his report to the Committee. The Committee shall after making such inquiry; as it may deem necessary send its reports to the authorised officer and (3) The Authorised Officer shall, on receipt of the report from the Committee and after such further enquiry as he may deem necessary to make from other sources including from the Irrigation Department of the Government, determine the question whether any land in assu- red of irrigation from Government or private source capable of growing two crops or one crop in a year or not in the following manner- (a) Whether the land falls within the command area of a major irrigation project the aforesaid question shall be decided on the basis of the extent of intensity of irrigation available to the land in the year immediately preceding the year in which the question is required to be decided. The land to the extent of irrigation intensity shall be deemed to be the land having assured irrigation capable of growing two crops or one crop in a year as the case may be and the rest of the land shall be deemed to be dry land. (b) Where the land is irrigated from a minor or medium irrigation project or from other Government source or from lift irrigation from a parannial source only that area of land which has actually grown two crops or one crop in a year during two years out of the preceding three years shall respectively be deemed to be land having assured irrigation capable of growing two crops or one crop in a year. (c) Land not falling within sub- clause (a) or sub-clause (b) shall be deemed to be dry land.' According to rule 5 of the Rules of 1973 it has to be seen as to whether the land falls within the command area of a major irrigation project, it may be observed that the consideration has to be made in accordance with the old ceiling law as well as new ceiling laws as stated above and as the area which is beneficial to the State has to be taken into consideration for declaring any surplus land in excess of the ceiling.' It was further observed that in the gazette notification issued under Rule 19, ceiling groups have been formed and classification of land has been shown as Nahari land falling within the Chambal Project, and the gazette notification contains the names of villages where the land is situated. Learned Single Judge had rightly observed that while deciding Ram Pratap's case the gazette notification was not brought to the notice of learned Judge and it was held by the learned Single Judge that the Board of Revenue had not committed any illegality in coming to the conclusion that intensity of irrigation for such area is to be considered as a whole and not on village-wise or field-wise basis. ;