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HANUMAN & ORS v BOARD OF REVENUE & ORS - CW Case No. 1404 of 1994  RD-RJ 248 (27 February 2006)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
Hanuman & Ors. v. The Board of Revenue & Ors.
S.B.CIVIL WRIT PETITION NO.1404/1994 under Article 226 of the
Constitution of India. 20th March, 2006
Date of Order :
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. D.R.Bhandari, for the petitioners.
Mr. B.L.Tiwari, Dy.Govt.Advocate.
BY THE COURT :
By an order dated 17.6.1971 the Sub
Divisional Officer, Raisinghnagar dropped proceedings initiated against one Shri Lalchand under Chapter III-
B of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as "the Act of 1955") by holding that he was having 82.10 bighas of land with a family consisting of 10 members, therefore, the agricultural land holding with him was less than the ceiling limits prescribed in this regard. The proceedings initiated under the Rajasthan Imposition of ceiling on
Agricultural Holdings Act, 1973 (hereinafter referred to as "the Act of 1973") against aforesaid Shri
Lalchand were also dropped by the authorised officer,
Raisinghnagar by an order dated 8.9.1975.
The State Government while exercising powers under Section 15(1) of the Act of 1973 by order dated 18.1.1979 directed the Additional Collector,
Sriganganagar to reopen and decide afresh the ceiling proceedings against Shri Lalchand, accordingly the
Additional Collector by an order dated 18.8.1987 after considering the written submitted by assessee Shri
Lalchand held that he was having 13.9 bighas land in excess to the agricultural land holding limits, therefore, an order to resume surplus land was made.
Validity of the order dated 18.8.1987 was challenged by Shri Lalchand as well as by the State
Government before the Board of Revenue for Rajasthan,
Ajmer by way of filing appeals. The Board by judgment dated 1.2.1989 dismissed the appeal preferred by Shri
Lalchand and accepted the appeal preferred by the
State Government by setting aside the judgment dated 18.8.1987 passed by ADM, Sriganganagar. The Board of
Revenue determined the agricultural land holding Shri
Lalchand under Chapter III-B of the Act of 1955 as well as under the Act of 1973 as follows:-
"12.Determination under the New Ceiling Law:
According to the record available on the file, the intensity of irrigation of this land in the command area of Gang Canal is 60%. Therefore the total land in terms of 100% irrigation would come to 91 bighas 19 biswas. Section 4(1)(b) provides 27 acres per unit which is equivalent to 43 bighas 4 biswas. Thus for two units it would be 86 bighas 8 biswas. The surplus land with the assessee, therefore, is 5 bigha 11 biswas. 13.Determination under Old Ceiling Law:
The land with the assessee excluding the land of Hanuman would measure 82 bighas 18 biswas as he is entitled to retain 30 standard acres (second group) equivalent to 56 bighas and thus surplus land in this case would be 26 bighas 18 biswas.
By virtue of the provisions of second proviso to section 4(1) of the New Ceiling
Act, the surplus land which is to be resumed by the State is 26 bighas 18 biswas. In view of the aforesaid determination, I accept the appeal of the State partially and set aside the order of the Addl. Collector Ganganagar dated 18.8.87 and held that 26 bigha 18 biswas irrigated land was in excess of the ceiling limit of the assessee and it is ordered that this land be resumed to the
State. The Addl. Collector, Ganganagar will proceed further in accordance with law to resume this excess land."
The Board after determination, as above, ordered to resume 26 bighas irrigated land. Due to death of Shri Lalchand, his heirs preferred a review petition before the Board of Revenue under Section 229 of the Rajasthan Land Revenue Act, 1956, that too came to be rejected by order dated 23.2.1994, hence this petition for writ is submitted under Articles 226 and 227 of the Constitution of India assailing validity and propriety of the judgment dated 1.2.1989 passed by the Board of Revenue and the order dated 23.2.1994 passed by the Board rejecting the review petition.
Challenge to the judgments impugned is given on following two grounds:-
(1) The Board of Revenue erred while making determination of surplus land under Old
Ceiling law for the reason that the State
Government by order dated 18.1.1979 while exercising powers under Section 15(1) of the
Act of 1973 ordered to reopen ceiling proceedings dropped by the authorised officer under the Act of 1973 by order dated 8.9.1975; and
(2) The Board erroneously reached at the conclusion that Shri Lalchand was having surplus land by treating 125.08 bighas land equal to 91.19 bighas land on basis of intensity of the irrigation.
A reply to the writ petition is filed on behalf of the respondent State emphasising that by force of Sections 15(1) and 15(2) of the Act of 1973 it was open for the authorised officer to re-examine the decision under Chapter III-B of the Act of 1955 as well as under the Act of 1973. It is also denied by the State tht the Board made error while equalising 125.08 bighas of land equal to 91.19 bighas.
Heard counsel for the parties.
There is no dispute that the State Government by force of provisions of Section 15(1) of the Act of 1973 is empowered to reopen a ceiling matter decided under that Act. By application of the provisions of
Section 15(2) of the Act of 1973 a matter decided under Chapter III-B of the Act of 1955 can also be reopened by the State Government.
In the matter in hand the State Government exercised its powers by order dated 18.1.1979 under
Section 15(1) of the Act of 1973, therefore, it was pertaining only to the matter decided under the Act of 1973 by order dated 8.9.1975, as such the State
Government reopened ceiling case against Shri Lalchand only under the Act of 1973 and not under Chapter III-B of the Act of 1955. This fact is further fortified from contents of order dated 18.1.1979 as that deals with order dated 8.9.1975 only whereby the authorised officer dropped proceedings under the Act of 1973. As a matter of fact the case decided under Chapter III-B of the Act of 1955 acquired finality by order dated 17.6.1971 and the proceedings under old Act (Act of 1955) was never reopen by the State Government. The
Board of Revenue, therefore, by judgment impugned dated 1.2.1989 acted beyond the jurisdiction vested with it while reexamining case of Shri Lalchand under the Act of 1955. The determination of the agricultural land holding by the petitioners (being heirs of Shri
Lalchand) and further order to resume irrigated land said to be in excess to the ceiling limits prescribed under the Act of 1955 by Board of Revenue by the judgment impugned is, therefore, declared illegal.
The second contention of counsel for the petitioners is that the Board of Revenue erroneously equalised the agricultural land holding i.e. of 125.08 bighas equal to 91.19 bighas. According to counsel for the petitioners the land measuring 125.08 bighas was irrigated by Gang Canal at the intensity of 60%. On basis of intensity of water availability the 100% irrigated land holding is required to be determined in accordance with the provisions of Section 5(h) of the
Act of 1973 which reads as follows:-
"5(h).-Where lands of different classification are held by a person, one acre of land under assured irrigation shall be treated as equivalent to 1.5 acres of land under assured irrigation capable of growing one crop in a year, to 3 acres of barani land in the fertile, and hilly zones and to eight acres of barani land in the semi-desert zone and 11 acres of barani land in the desert zone."
It is submitted by the counsel for the petitioners that admittedly Shri Lalchand was having 125.08 bighas land for two units and on basis of intensity of irrigation 75 bighas of land was computed as 100% irrigated land, remaining land is required to be computed further as irrigated land.
According to the formula above 8 acres of barani land situated in semi-desert zone is to be treated as 1.5 acres of land under assured irrigation scheme. 1.5 acres land is equal to 2.34 bighas of land and 8 acres of land is equal to 12.48 bighas of land.
On basis of these measurements by applying the formula prescribed under Section 5(h) of the Act of 1973 50.08 bighas of barani land is equal to 9.525 bighas of assured irrigated land. [12.48 bighas barani land is = 2.34 bighas of irrigated land. 50.8 bighas barani land = 2.34
------ x 50.8 = 9.525 bighas 12.48 of irrigated land]
As stated in preceding paras Shri Lalchand was having total 125.08 bighas land out of that 75 bighas land was treated as 100% irrigated land. The 100% irrigated land is required to be added with 9.525 bighas irrigated land as computed above which comes to 84.525 bighas of assured irrigated land. It is the position admitted that Shri Lalchand looking to number of family members could have retained with him 86.08 bighas of land. Being only 84.525 bighas land as against 86.08 bighas of land he was having the land less than the prescribed ceiling limits. The Board of
Revenue made erroneous calculation by treating 125.08 bighas of land as 91.19 bighas of assured irrigated land. On basis of the calculation above it is declared that Shri Lalchand, father of the petitioners, was not having land in excess to the prescribed ceiling limit.
Accordingly, this petition for writ is allowed. The judgment impugned passed by the Board of
Revenue dated 1.2.1989 and the order dated 23.2.1994 passed by the Board of Revenue in review petition are hereby quashed. On basis of declaration above no part of land is required to be resumed from the petitioners by the State Government under the Act of 1973 as well as under the Act of 1955.
No order as to costs.
( GOVIND MATHUR ),J. kkm/ps.
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