M.L. JAIN, Actg., C.J. - (1.) THIS petition is directed against the order of Board of Revenue dated 14.2.1980 Ex. 3, whereby the learned Member of the Board of Revenue dismissed the petitioner's appeal and upheld the order of the Additional Collector dated 6.2.79. The learned Addl. Collector dismissed the appeal and affirmed the order of the authorised officer dated 23rd June, 1977. A few relevant facts may briefly be noted.
(2.) THE Authorised Officer, Ganganagar initiated proceedings against the present petitioner under the Imposition of Ceiling on Agricultural Holdings Act 1973. He however dropped the proceedings u/sec. 12 (1) on 17.12.74 and did not issue any draft statement as in his opinion the assessee did not hold any excess land over the ceiling limit. An appeal against that order was preferred before the Additional Collector which was allowed and the authorised officer was directed to prepare a final statement u/sec. 13 and to acquire the surplus land. THE present petitioner went in appeal before the Board of Revenue. THE Board of Revenue vide its order dated 30.4.76 allowed the appeal and set aside the order of the Addl. Collector and it was held that as there was no order passed u/s. 12 (3) of the Act, the appeal before the Addl. Collector was incompetent. However, the Board of Revenue observed that the authorised officer could proceed under section 23A of the Act exercising power of review. After the judgment of the Board of Revenue, the. Tehsildar submitted an application on 3.7.76 u/sec. 23A of the Act for reviewing the order whereby proceedings were dropped and draft statement was not issued. That application was allowed and ceiling area was determined vide order dated 23rd June, 1977 Ex.1. THE old ceiling law was applied having regard to second proviso to Section 4 (1) and on that basis it was found that the petitioner can retain land to the extent of 46 Bighas 8 Biswas and he was required to surrender the excess land measuring 3 Bighas 12 biswas for which a direction was given for exercising option. THE petitioner was unsuccessful in the first appel before the Additional Collector and also before the Board of Revenue vide orders dated 6.2.79 and 14.2.80. The only grievance of the petitioner is that proceedings under the old law had already taken place and the ceiling area was determined and the petitioner was allowed to retain the excess land measuring 3.12. Bigha in view of the provision contained in Section 301 (2). In proceedings under the new law the petitioner has not been allowed to retain the excess land measuring 3.12. Bighas. The ground which was given by the authorised officer is that there is no provision for retention of excess land and the ceiling area comes to 46 Bighas 8 Biswa and so the petitioner is not entitled to retain the excess land measuring 3.12. Bighas. That view was also taken by the Additional Collector as well as by the Board of Revenue. However, the learned Member of the Board of Revenue simultaneously also observed that under the second proviso to section 4 (.1) the ceiling limit under the old law only is to be taken into consideration and not all other connected provisions of that law. The question that arises for consideration in the present writ petition is as to whether the benefit of Section 301 (2) is available to the petitioner when proceedings have been taken against the petitioner under the new ceiling law. "The second proviso to sub-section (1) of Section 4 of the 1973 Act reads as under- "Provided further that if the ceiling area applicable to any person or family in accordance with the section exceeds the ceiling area applicable to such person or family according to 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." ' The repealing provision is contained in Section 40 sub-section 1. Subsection 1 of Section 40 reads as under :- . "40. Repeal and Savings. (1) Except as provided in second proviso to sub-sec. (1) of section 4 and in sub-section (2) of section 15 of this Act, the provisions of clause (6A) of section 5 and Chapter I1I-B of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) are hereby repealed except in the Rajasthan Canal Project area wherein such provisions shall stand repealed on the land on which this Act comes into force in that area," Second proviso to sub-section (1) of Section 4 had come up for consideration before this Court earlier and it is the settled view of this Court that even in the proceedings under the new ceiling law, if the ceiling area under the repe-aled law is less, then that would be considered the ceiling area under the new law as well as the proceedings would be finalised on that basis. Reference in this connection may be made to State of Rajasthan Vs. Prithvi Singh (1) and Smt. Amarjeet Kaur Vs. State of Rajasthan (2). It has been held that even if proviso 2 to sub-section (1) of Section 4 is applied under the new Ceiling Law for the purpose of calculation of ceiling area, all other matters like definition of family, recognition of transfers, vesting of surplus land, selection of land within ceiling area, determination of amount for acquisition may be governed either by the provisions of the old or new ceiling law whichever may be advantageous to the State. A perusal of Section 40 would also indicate that Chapter III-B is repealed except as provided m second proviso to sub section (1) of Section 4 and in sub-section (2) of Section 15. A reading of the second proviso to sub-section (1) of Sec. 4 would further make it clear that the provisions relating to ceiling area of the repealed law would be applicable when the ceiling area under the repealed law is less than the ceiling area under the new law. The relevant part of Section 30 I sub-sec. 2 reads as under- "30-I. Exceptions of general character :-(l) - (ii) If in any case covered by clause (a) of clause (b) sub-section (1) of section 30E the land in excess of the ceiling area applicable thereto is only a fragment, the Sub-Divisional Officer may allow the person holding it to retain the possession thereof unless such fragment can be utilised for the consolidation of a contiguous holding smaller in size than the ceiling area applicable to such holding."
(3.) SECTION 301 contains a provision relating to exception of a general character and sub-section (2) thereof provides that if the land in excess of the ceiling area is only a fragment, the S.D.O. may allow the person holding it to retain possession thereof unless such fragment can be utilised. Such a provision in our opinion does not stand incorporated under the 1973 Act. The provision of sub-section (2) of Sec. 301 thus cannot be read in the second proviso to subsection 1 of SECTION 4. Only to the extent of the provision relating to ceiling area, the repealed law will apply and all the provisions of the repealed law, particularly the provision contained in SECTION 30 I would not apply, as such there is no right of retention of excess land over and above the ceiling area under the new law. However, it may be mentioned that in the present case, this aspect has not been examined by the authorised officer as to whether the fragment of 3.12 Bigha can be utilised for the purpose of consolidation of the contiguous holding smaller in size than the ceiling area applicable to such holding, if this aspect would have been examined it could be found as to whether the fragment can be utilised for the purposes of consolidation of the contiguous holding or not. In this situation in our opinion it would be proper that matter may be examined by the authorised officer. That apart there is a policy of the State to prevent fragmentation of holdings. Having regard to that also as well, if the fragment cannot be utilised for the purpose of consolidation of contiguous holding in the light of the ceiling area applicable to the contiguous holding, then the petitioner can be allowed to retain the fragment, although as considered above. Section 301 (2) as such cannot be availed of under the provisions of the new ceiling law. We therefore, set aside the orders of the authorised officer, Addl. Collector as well as of the Board of Revenue and sent the matter back to the authorised officer to examine the question as considered above and pass a fresh order in the light of our observations. The writ petition is disposed of with the above observations and directions. ;