Rajasthan High Court - Jodhpur

State Of Raj vs Lrs Of Vishan Singh ... on 11 May, 2023

Bench: Nupur Bhati

[2023/RJJD/014831]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2686/2007

The State of Rajasthan through the Sub Divisional Officer, Sumerpur, District Pali.

----Petitioner Versus Legal Representatives of Vishan Singh S/o Shri Ajit Singh:-

1. Takhat Singh S/o Shri Vishan Singh.

2. Shyam Singh S/o Shri Vishan Singh.

3. Amar Singh S/o Shri Vishan Singh.

4. Jabar Singh S/o Shri Vishan Singh.

5. Mahendra Singh S/o Shri Vishan Singh.

6. Smt. Sabik Kanwar @ Smt. Sayar Kanwar W/o Shri Vishan Singh.

All by caste Rajput, residents of Hingoli, Tehsil Bali, district Pali.

7. Smt. Paras Kanwar D/o Shri Vishan Singh, W/o Shri Jabar Singh, by caste Rajput, R/o Solata, village Kailash Nagar, district Sirohi.

8. Dashrath Snigh S/o Mohan Kanwar.

9. Karan Devara S/o Mohan Kanwar.

10. Abhay Singh Devara S/o Mohan Kanwar.

11. Junjar Singh S/o Mohan Kanwar, by caste Rajput, R/o Sabrata, district Sirohi.

12. The Board of Revenue for Rajasthan, at Ajmer.

                                                                  ----Respondent


For Petitioner(s)          :     Mr. R.D. Bhadu
For Respondent(s)          :     Mr. Abhinav Jain
                                 Mr. Shambhoo Singh Rathore



               HON'BLE DR. JUSTICE NUPUR BHATI

                                      Order

11/05/2023

1. The instant writ petition has been preferred by the petitioner

under Article 226 and 227 of the Constitution of India with the

following prayers:-

[2023/RJJD/014831] (2 of 8) [CW-2686/2007]

"1. The impugned judgment dated 02.09.2003 (Annex.4) passed by the learned Board of Revenue in Appeal No.32/89/Appeal/Ceiling/Pali may kindly be quashed and set aside with all its natural consequences;

2. The appeal preferred by the respondents before the Board of Revenue, Ajmer may kindly ordered to be dismissed with all its natural consequences;

3. Any other relief/reliefs which this Hon'ble Court may deem just and proper in the facts and circumstances of the case, may also be granted in favour of the petitioner."

2. Brief facts of the case are that:-

The ceiling proceedings under the old ceiling law, were

initiated against the respondent Shri Vishan Singh (since

deceased) in the case bearing No.241/70, which came to be

decided by the judgment dated 19.12.1970, wherein, the land was

not found to be in excess of permitted land in favour of

respondents. Vide order dated 09.08.1979, ceiling proceedings

were ordered to be reopened by the Government of Rajasthan

under the new ceiling law.

3. The Additional Collector, Pali, vide its judgment dated

13.01.1983, found, that the land was in excess of the standard

limit and 39.25 bighas of land was ordered to be resumed in

favour of the petitioner herein. Thereafter, the respondents

preferred an appeal before the learned Board of revenue which

was rejected by the judgment dated 27.03.1989 to which, the

respondents preferred a writ petition, which was allowed vide

order dated 05.05.1999 and the matter was remanded back to the

Board of Revenue for deciding the matter afresh.

[2023/RJJD/014831] (3 of 8) [CW-2686/2007]

4. The Board of Revenue, Ajmer, vide its judgment dated

02.09.2003, allowed the appeal, set aside the judgment passed by

th Additional Collector, Pali by stating that the assessee Late Shri

Vishan Singh was not holding excess land on the said date.

5. Being aggrieved of the order dated 02.09.2003 (Annexure-

4), passed by the Board of Revenue, Ajmer, the petitioner has

preferred the instant writ petition.

6. Shri R.D. Bhadu, learned counsel representing the petitioner-

State, submitted that:-

(a) The Board of Revenue, Ajmer, has passed the order

dated 02.09.2003 (Annexure-4) in an invalid, erroneous and in a

lackadaisical manner and so also, the said order is contrary to the

well settled principle of law.

(b) The Board of Revenue, Ajmer, has committed a grave

error by not appreciating the facts correctly for determination of

the ceiling area. The computation of the land in question for the

purpose of the ceiling is required to be made in both; under the

New Ceiling Act as well as under the Old Ceiling Act and

thereafter, it can be found as to whether, the ceiling area

determined under the New Ceiling Act, exceeds the ceiling area

under the Old Ceiling Act or not, and in the absence of such

computation under both the Act, the matter could not have been

disposed of.

7. He draws the attention of this Court towards the main

ground of the writ petition and the contentions which were put

before the Revenue Board, which are as follows:-

"Whether the land transferred by assessee Vishan Singh in

favor of minor sons and daughters by gift deed dated

[2023/RJJD/014831] (4 of 8) [CW-2686/2007]

23.06.1959, would be a valid transfer as per the Section

30DD and whether the transferee are required to have

attained age of majority at the date of gift deed executed in

their favour i.e. 23.06.1959 or attaining majority at the cut-

off date provided under Section 30 DD i.e. 01.12.1969

would be valid?"

8. The Revenue Board, while allowing the appeal of the

respondents came to a conclusion that a gift deed can be executed

in favour of minor and only at the cut-off dated 01.12.1969 it has

to be seen that the transferee attained majority or not.

9. In the present case, as the land in question was gifted in

favour of a minor person the said transfer cannot be said to be a

valid transfer and hence, the said gift deed was only executed to

avoid the purview of ceiling law and therefore, cannot be

sustained in the eyes of law as property cannot be gifted in favour

of minor for agriculture purposes and hence the finding arrived by

the Board of Revenue that even though at the time of gift deed,

the transferee was minor but later attained the age of majority,

cannot be said to be valid in law.

10. He, thus, urged, that the impugned order dated 02.09.2003

(Annexure-4) passed by the learned Board of Revenue, Ajmer, be

quashed and set aside qua the petitioner and the appeal preferred

by the respondents before the leaned Board of Revenue, Ajmer,

may kindly be dismissed.

11. Per contra, learned counsel Shri Abhinav Jain and Shri

Shambhoo Singh Rathore, representing the respondents,

vehemently opposed the submissions advanced by the petitioner's

counsel and made following submissions:-

[2023/RJJD/014831] (5 of 8) [CW-2686/2007]

(a) That re-opening of the Ceiling case was beyond the

period of limitation. They, thus, drawn the Court's attention to

Section 15 read with sub-Section (1) of the Rajasthan Imposition

of Ceiling on Agriculture Act, 1973, which reads as follows:-

"Provided further that no notice referred to in the foregoing proviso shall be issued after the expiry of 5 years from the date of the final order sought to be re-opened or after the expiry of 30.06.1979, whichever is later."

In this regard, they submitted that the old ceiling

proceedings came to be closed on 19.12.1970, holding that Shri

Vishan Singh (since deceased) was not having land in excess of

Ceiling Area. The State Government vide its order dated

09.08.1979, directed to re-open the ceiling proceedings under the

New Ceiling Law. Thus, as per the proviso the ceiling proceedings

were neither re-opened i.e. 19.12.1970, nor the proceedings were

re-opened before 30.06.1979. The proceedings were re-opened

only on 09.08.1979, i.e. more than two months after the expiry of

the cut-off date.

12. Learned counsel representing the respondents further

submits that Chapter-III-B of the Rajasthan Tenancy Act, 1955

provides for restriction on holding land in excess of Ceiling Area.

Setion 30C of the Act provides for a family consisting of 5 or less

members the ceiling area shall be 30 Standard Acres. Where

members of a family exceed five, the ceiling area shall be

increased by 5 standard acres for each additional member, but not

in excess of 60 standard acres in total.

13. Section 30DD(i) of the Rajasthan Tenancy Act, 1955 is

applicable in the present case. As the provision of this Section

[2023/RJJD/014831] (6 of 8) [CW-2686/2007]

starts with a non-obstante clause and provides notwithstanding

anything to the contrary contained in Section 30D. Every transfer

of land not exceeding thirty standar Acres made by a person upto

31.12.1969 in favour of his son and capable of cultivating land

personally and take to the profession of agriculture and who had

attained the age of maturity on or before 31.12.1969.

14. Admittedly, the transfer was made by Shri Vishan Singh

during his lifetime i.e. 23.06.1959 in favour of his children and the

provisions of Section 30DD provides a safeguard to transfers

made upto 31.12.1969. Furthermore, the provision provides that

such transferee should attain the age of majority on or before

31.12.1969 which is the cut-off date. Therefor, the authorities

were required to determine the holdings under the new act of Shri

Vishan Singh after the cut-off date i.e. 31.12.1969, whether he

was having land in excess of ceiling area after making transfer in

favour of his sons and daughters.

15. Learned counsel representing the parties placed reliance

upon the judgment rendered by Hon'ble the Apex Court in the

case of Daulat Singh (D) thorough LRs Vs. The State of

Rajasthan & Ors. reported in [(2021) 3 SCC 459], submitting

that the controversy involved in the present writ petition is

squarely covered by it. Relevant portions of which, are reproduced

hereinbelow for the sake of ready reference:-

"46. Lastly, it must be taken into consideration that, the

aforesaid transfer was executed way before the cut-off date

stipulated under Section 30DD i.e. 31.12.1969. Therefore,

the registered gift deed dated 19.12.1963 was a bonafide

transfer squarely covered within the ambits of Section

[2023/RJJD/014831] (7 of 8) [CW-2686/2007]

30DD, which intended to protect the rights of

agriculturalists. Issue no. 3, stands answered in favour of

the appellant, as the transfer is not invalid as it stands

protected as per the provision of Section 30DD of the

Tenancy Act of 1955.

47. In light of the aforesaid findings, the decision rendered

by the Division Bench of the High Court is liable to be set

aside. The transfer of the land being valid under Section

30DD of the Tenancy Act of 1955, the ceiling area of the

appellant falls within the ceiling limit as provided under

Section 30C.

48. There is no gainsaying that Section 6 of the Ceiling Act

of 1973 also does not advance the case of the State. Firstly,

the repeal of Chapter III-B of the Tenancy Act of 1955

through Section 40 of the Ceiling Act of 1973 is not

retrospective. Hence, the provisions of the Ceiling Act of

1973 are not attracted in the present case as the case was

re-opened and decided under the provisions of the of

Tenancy Act of 1955. Secondly, Section 6 of the Ceiling Act

of 1973 declares that every transfer of land including by

way of gift, made on or after 26-09-1970 and before 01-01-

1973, shall be deemed to have been made to defeat the

provisions of the Ceiling Act of 1973. In the instant case,

the gift deed was executed on 19-12-1963, that is much

before 26-09-1970. Therefore also, Section 6 of the Ceiling

Act of 1973 does not affect the transfer of land by the

appellant- donor in favour of the donee-son. Thirdly, there

[2023/RJJD/014831] (8 of 8) [CW-2686/2007]

is no finding that the gift deed in the present case was

actuated upon any extraneous consideration. Hence, it

constitutes a bonafide transfer which are exempted from

the rigors of Section 6 of the Ceiling Act of 1973."

16. In light of the judgment rendered by Hon'ble the Apex Court

in the case of Daulat Singh (D) thorough LRs (supra), the

instant writ petition is also disposed of.