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Monday, May 5, 2014

Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 - reopening of a case already decided under repealed Act, on the plea of fraud - Collector issued notice - challanged on the plea of limitation and relevancy - Writ was dismissed - Apex court too confirmed the order of High court and held that when there is an allegation of fraud which requires an enquiry. Therefore, the notice has been issued only to make an enquiry in the matter. Hence, in the given facts, such notice cannot be said to be bad at this stage. The appellant would only face the enquiry. In view of that, we do not intend to interfere with the order passed by the High Court. However, we also restrain ourselves from making any comment with regard thereto. The point of limitation also can be urged by the appellant before the said authorities.= Vikram Singh & Anr. … Appellants Vs. State of Rajasthan & Ors. … Respondents = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41469

   Section 15(2) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973  - reopening of a case already decided under repealed Act,  on the plea of fraud - Collector issued notice - challanged on the plea of limitation and relevancy - Writ was dismissed - Apex court too confirmed the order of High court and held that when there is an allegation of fraud which requires an enquiry. Therefore, the notice has been issued only to make an enquiry in the matter.  Hence,  in the given facts, such notice cannot be said to be bad at this stage.  The appellant would only face the enquiry. In view of that, we do not  intend to interfere with the order passed by the High Court.  However,  we  also restrain ourselves from making any comment with regard thereto. The point of limitation also  can  be  urged  by  the  appellant  before  the said authorities.=
whether  in
      view of the provisions of Section 15(2) of the Rajasthan Imposition of
      Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as
      ‘the Act of 1973’), the Collector has any jurisdiction to initiate any
      proceedings for making reference to the Board of Revenue in respect of
      an order passed on June 30, 1970 for determining the ceiling  area  of
      the land that could be held  by  the  petitioners  (appellants)  under
      Chapter III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred
      to as ‘the Act of 1955’). =
“15(2) Without prejudice to any other remedy that may be available  to
      it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if
      the State Government, after calling for the record  or  otherwise,  is
      satisfied that any final order passed in any matter arising under  the
      provisions repealed  by  Section  40,  is  in  contravention  of  such
      repealed provisions and that such order is prejudicial  to  the  State
      Government or that on account of the discovery of  new  and  important
      matter or evidence which has since come to its notice, such  order  is
      required to be reopened, it may direct any officer subordinate  to  it
      to reopen such decided matter and to decide it  afresh  in  accordance
      with such repealed provisions.”=
Thus, Section 15(2) has two components: The first part  saves  the  right
   of the State Government or any other person to pursue any remedy which is
   already available under the Rajasthan Tenancy Act; the second part refers
   to power to re-open and it is also subject  to  several  riders  that  it
   could be re-opened within a stipulated period of seven years.=

It is also revealed from  the  facts  that
   there is an allegation of fraud which requires an enquiry. Therefore, the
   notice has been issued only to make an enquiry in the matter.  Hence,  in
   the given facts, such notice cannot be said to be bad at this stage.  The
   appellant would only face the enquiry. In view of that, we do not  intend
   to interfere with the order passed by the High Court.  However,  we  also
   restrain ourselves from making any comment with regard thereto. The point
   of limitation also  can  be  urged  by  the  appellant  before  the  said
   authorities.

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41469                                    GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE                 
NOT-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1958 OF 2003


Vikram Singh & Anr.                          … Appellants

                                     Vs.

State of Rajasthan & Ors.                    … Respondents


                               J U D G M E N T

Pinaki Chandra Ghose, J.



   1. This appeal is directed against an order passed by the High  Court  of
      Judicature for Rajasthan at  Jodhpur,  dismissing  the  writ  petition
      filed by the appellants/writ-petitioners with  liberty  to  the  writ-
      petitioners to raise  the  defence  before  the  Collector  which  was
      available to them.





   2. The issue raised before the High Court on the question is  whether  in
      view of the provisions of Section 15(2) of the Rajasthan Imposition of
      Ceiling on Agricultural Holdings Act, 1973 (hereinafter referred to as
      ‘the Act of 1973’), the Collector has any jurisdiction to initiate any
      proceedings for making reference to the Board of Revenue in respect of
      an order passed on June 30, 1970 for determining the ceiling  area  of
      the land that could be held  by  the  petitioners  (appellants)  under
      Chapter III-B of the Rajasthan Tenancy Act, 1955 (hereinafter referred
      to as ‘the Act of 1955’). The facts of the case, in brief,  which  are
      necessary for deciding the question are that Chapter III-B of the  Act
      of  1955  was  introduced  by  Section  3  of  the  Rajasthan  Tenancy
      (Amendment)   Act,   1980   published   in   the   Rajasthan   Gazette
      Extraordinary, Part IV-A dated 21.3.1960 vide Notification No.  F.6(2)
      Rev. B/70 (I) and this  chapter  came  into  force  with  effect  from
      15.12.1963. Chapter III-B provides “Restriction  of  holding  land  in
      excess of ceiling  area”.  Chapter  III-B  contains  various  sections
      providing for declaration of the extent of agricultural land which can
      be held by agriculturists and the  mode  of  determination  of  excess
      agricultural land. The agriculturists are required to surrender excess
      land which shall vest in the State Government. As per  the  provisions
      of Chapter III-B of the Act of  1955,  appointed  date  was  fixed  as
      1.4.1966 by the agriculturists in accordance with  the  provisions  of
      Chapter III-B.





   3. It appears that one Ummaid Singh, ancestor of the appellants submitted
      a return before the Sub-Divisional Officer, Jalore, upon which a  case
      was registered bearing No.13/68. During  the  pendency  of  the  case,
      Ummaid Singh expired. His successors-in-interest were taken on  record
      and the proceedings were completed. The S.D.O. held by an order  dated
      September 30, 1979 that 514-1/2 standard acres of land were surplus in
      the hands of the agriculturists.  The  land  was  surrendered  by  the
      petitioner in pursuance of the said order and no appeal was preferred.
      Hence, the said order became final. The Act of 1955 was repealed by an
      Ordinance and thereafter by the Act of 1973, which came into force  on
      1.1.1973, the State Government was given power to avail  the  remedies
      under the Act of 1973 against the case decided under the  old  ceiling
      law of Chapter III-B by making provision under Section  15(2)  of  the
      Act of 1973. The old law of ceiling has been saved for this purpose by
      virtue of Section 40 of the Act of 1973.


   4. It appears from the facts that an application  was  filed  before  the
      District Collector, Jalore by the Tehsildar under Section 232  of  the
      Act of 1955 with a prayer to re-open the mutation made  in  accordance
      with the decision in Ceiling Case No.13/68 of the predecessors of  the
      petitioners and prayed for cancellation of the said  decision  and  to
      refer the matter before the Board of  Revenue.  On  such  prayer,  the
      District Collector issued notice dated August 11, 1999 fixing  a  date
      that is September 8, 1999.  The  issuance  of  such  notice  had  been
      challenged on the ground of inordinate delay  in  initiation  of  such
      proceedings under Section 232. In these circumstances, the  appellants
      filed a writ petition challenging the notice dated 11.8.1999.


   5. Mr. Sushil Kumar Jain,  learned  counsel  appearing  in  this  matter,
      submitted that the Act of 1973 is a special Act and  a  complete  Code
      specifically dealing with the issues of agriculture  land  ceiling  in
      the State of Rajasthan. He submitted that in relation  to  cases  that
      have attained finality under the repealed law,  Section  15  has  been
      enacted which is the only source of power in relation to cases already
      decided under the repealed law.  The  power  that  is  provided  under
      Section 15(2) of the Act can be exercised to re-open the cases already
      decided. He further submitted that once Chapter III-B of the Rajasthan
      Act of 1955 has been repealed, power under Section 232 cannot be  used
      or utilized to determine or re-determine the issues relating  to  land
      ceiling. The said action, according to him,  can  now  only  be  taken
      under the provisions of the Act of 1973. Therefore, no right has  been
      conferred upon the authorities which can be exercised under the Act of
      1955 excepting all steps can be taken under the 1973 Act.  He  further
      submitted that Section 40 of the 1973  Act  has  repealed  the  entire
      Chapter III-B except for the purposes of  second  proviso  to  Section
      4(1) and Section 15(2) of the 1973 Act. Since  Section  40  saves  the
      said Chapter for the purposes of Section 15(2) only,  latter  part  of
      Section 15(2) specifically enables the authorities to decide the cases
      in accordance with the repealed provisions.  Therefore,  he  submitted
      that Chapter III-B is not  saved  for  the  purpose  of  Section  232.
      Therefore, he further submitted that there would be  no  existing  law
      under which re-determination can be made once the power  is  exercised
      under Section 232. It is necessary for us to quote Section 15 at  this
      stage for our purpose :





      “15(2) Without prejudice to any other remedy that may be available  to
      it under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), if
      the State Government, after calling for the record  or  otherwise,  is
      satisfied that any final order passed in any matter arising under  the
      provisions repealed  by  Section  40,  is  in  contravention  of  such
      repealed provisions and that such order is prejudicial  to  the  State
      Government or that on account of the discovery of  new  and  important
      matter or evidence which has since come to its notice, such  order  is
      required to be reopened, it may direct any officer subordinate  to  it
      to reopen such decided matter and to decide it  afresh  in  accordance
      with such repealed provisions.”






   6. He further pointed out that the entire provision of Section  15(2)  is
      subject to the second proviso which  lays  down  limitation  of  seven
      years or up to 30th June, 1979. According to him, Section 15(2)  saves
      the “remedies” against a “final order”  and  not  “powers”  under  the
      Rajasthan Tenancy Act. He submitted that against a “final order”,  the
      remedy is in the nature of an appeal under Section 55 of the Rajasthan
      Tenancy Act or review under Section 225  of  the  Act.  Therefore,  he
      submitted that at this stage the authority cannot reopen the same.  He
      further submitted that the power under Section 232  is  sought  to  be
      exercised after 29 years which cannot, by any stretch of  imagination,
      be construed as a reasonable period to sustain the initiation of  such
      proceedings. In these circumstances, he submitted that the High  Court
      was wrong in dismissing the writ petition and remit the matter  before
      the authority for consideration.


   7. Per contra, it is submitted by Dr. Manish Singhvi that  Chapter  III-B
      is a substantive law with  regard  to  the  determination  of  ceiling
      proceedings and does not provide for  any  machinery  provisions  with
      regard to the computation of  ceiling. The machinery  provisions  like
      computation of ceiling land,  appeals,  reference  and  revision  were
      provided by the Act of 1955. The Rajasthan Imposition  of  Ceiling  on
      Agricultural Holdings Act, 1973 repealed Chapter III-B of the  Act  of
      1955. The repeal of  Chapter  III-B  by  the  Act  of  1973  has  both
      substantive as well as procedural aspects. Accordingly,  he  submitted
      that the substantive rights and liabilities under  Chapter  III-B  are
      being saved by Section 40 of the repealing Act as well as Section 6 of
      the General Clauses Act. In support of his contention,  he  relied  on
      the Constitution Bench judgment of this Court reported in Bansidhar  &
      Ors. v. State  of  Rajasthan  &  Ors.[1]  He  drew  our  attention  to
      paragraph 39 of the said judgment and  submitted  that  the  State  of
      Rajasthan has an accrued  or  vested  right  to  the  excess  land  as
      available on 1.1.1966 in terms of Chapter III-B of the  Act  of  1973.
      Therefore, the substantive rights are duly  saved  in  favour  of  the
      State of Rajasthan and if there is any excess land then  it  ought  to
      have been surrendered to the State of Rajasthan by the appellant/s.


   8. He further contended that the main question that  the  procedural  law
      which is to be applied for purposes of  determination  of  substantive
      rights which have accrued in favour of State of Rajasthan in terms  of
      excess land under Chapter III-B of the  ceiling  law  is  governed  by
      Chapter 15(2) of the Act of 1973. Section 15(2) begins with a rider or
      caveat which states as follows :


      “Without prejudice to any other remedy that  may  be  available  under
      Rajasthan Tenancy Act, 1955, if the State Government….”





9. Thus, Section 15(2) has two components: The first part  saves  the  right
   of the State Government or any other person to pursue any remedy which is
   already available under the Rajasthan Tenancy Act; the second part refers
   to power to re-open and it is also subject  to  several  riders  that  it
   could be re-opened within a stipulated period of seven years.


10. The power under Section 15(2) of the  Rajasthan  Tenancy  Act  has  been
   saved and the State of Rajasthan in exercise of power  proceeded  in  the
   matter to avail the remedy under the said Act. Accordingly, the State has
   exercised its power under Section 232 of the said Act, and no  limitation
   has been prescribed to reopen the proceedings at any point of time  which
   have been obtained by fraud or misrepresentation. This aspect of  section
   15(2)  delineated in two parts is  also  brought  forth  clearly  in  the
   impugned judgment.


11. Therefore, the words “Without prejudice to any other remedy that may  be
   available under Rajasthan Tenancy Act, 1955” would be rendered surplus or
   redundant if it has to be read only as power to reopen within a period of
   seven years. The power to reopen was  conferred on the  State  Government
   in addition to the existing power under the Rajasthan Tenancy Act.  Thus,
   the power of rider of limitation of seven years would only arise  if  the
   State Government was to reopen the proceedings. The  power  exercised  in
   the present case is emanating out of Section 232 of the Rajasthan Tenancy
   Act which stands duly protected and preserved  by  first  four  lines  of
   Section 15(2) of the Act of 1973.


12. If the arguments canvassed by the  appellants  are  accepted,  then  the
   State Government would be denuded of its power to refer any matter to the
   Revenue Board even if fraud, collusion or misrepresentation comes to  the
   knowledge of the State Government. The State Government cannot be denuded
   of its power to rectify any mistake which has been committed  earlier  on
   account  of  fraud,  misrepresentation  or  matters  pertaining  to  void
   transactions. Thus, the exercise of power is imperative and it  has  been
   expressly provided in first four lines of Section 15(2) itself  which  is
   in addition to power of reopening, which of course is no longer available
   within limitation of seven years.


13. He further submitted that Section 232 of the Rajasthan Tenancy Act  does
   not prescribe any period of limitation. Thus, when there is no period  of
   limitation, power can be exercised at any point  of  time.  According  to
   him, the reasonable period of time in exercise of power is essentially  a
   question of fact. The High Court  has  abdicated  its  responsibility  to
   determine  the  reasonable  period  of  time  and  has  left  it  to  the
   authorities to determine the same. Therefore, the reasonableness  of  the
   period of time has to be decided by the authorities  below  even  if  the
   petition is dismissed. He further relied upon a Full  Bench  decision  of
   Rajasthan High Court in Chiman Lal vs. State of Rajasthan  &  Ors.[2]  In
   support  of  his  contention,   he  contended  that  when  no  period  of
   limitation is provided then it has to be exercised  within  a  reasonable
   time and that will depend upon the facts and circumstances of  each  case
   like: when there is a  fraud  played  by  the  parties;  the  orders  are
   obtained by misrepresentation or collusion with public  officers  by  the
   private parties; orders are against the public interest; the  orders  are
   passed by the authorities who have no jurisdiction; the orders are passed
   in clear violation  of  rules  or  the  provisions  of  the  Act  by  the
   authorities; and void orders or the  orders  are  void  ab  initio  being
   against the public policy or otherwise. The common law doctrine of public
   policy can be enforced wherever  an  action  affects/offends  the  public
   interest or where harmful result of permitting the injury to  the  public
   at large is evident. In such type of  cases,  revisional  powers  can  be
   exercised by the authority at any time either suo motu  or  as  and  when
   such orders are brought to their notice.





14. The exercise of power whether it is reasonable or not would depend  upon
   whether the proceedings on earlier occasion were after due  consideration
   of facts or due  to  fraud  or  misrepresentation.  The  learned  counsel
   further submitted that it is a settled  proposition  of  law  that  fraud
   vitiates all transactions and the point of limitation  would  never  come
   whenever the fraud is alleged. In the instant case, according to him, the
   appellant has directly availed of writ remedy against the notices  issued
   for reference and the appellant got liberty to agitate all points  as  to
   whether the fraud was played or not and, secondly,  whether  exercise  of
   power was  belated  or  not.  Basically,  the  question  is  whether  the
   competent  authority  or  reference  under  Section  232  was  based   on
   fraudulent representation or not. It is quintessentially  a  question  of
   fact to be determined by Reference Board which is  in  the  nature  of  a
   tribunal. The High Court has also remitted the matter  to  the  competent
   authority to decide the said question in the context of Chiman Lal’s case
   (supra).


15. After considering the submissions made on  behalf  of  the  parties  and
   after considering the counter  filed  before  this  Court  to  which  our
   attention has been drawn, it appears  that  the  facts  which  have  been
   pleaded by the respondents in the counter would show that on the basis of
   the misrepresentation, the order passed in the  land  ceiling  cases,  in
   particular Ceiling Case No.13/68 and the declaration which was  filed  by
   the ancestors of the appellants, would reveal that the declarations which
   have been given by the  predecessors  of  the  appellant,  suffered  from
   suppression of material facts. It is also revealed from  the  facts  that
   there is an allegation of fraud which requires an enquiry. Therefore, the
   notice has been issued only to make an enquiry in the matter.  Hence,  in
   the given facts, such notice cannot be said to be bad at this stage.  The
   appellant would only face the enquiry. In view of that, we do not  intend
   to interfere with the order passed by the High Court.  However,  we  also
   restrain ourselves from making any comment with regard thereto. The point
   of limitation also  can  be  urged  by  the  appellant  before  the  said
   authorities.


16. In our opinion, we do not find any reason to interfere  with  the  order
   passed by the High Court. We accept the reasoning of the High Court.  The
   submissions made on behalf of the appellants, in our opinion,  cannot  be
   accepted by us as the  same  have  no  substance  and  further  fraud  as
   alleged, if proved, all steps would vitiate. On the contrary, it  appears
   that the submissions made on behalf of the respondents have substance and
   we accept contentions of the respondents. In the result, we find no merit
   in the appeal and the same is dismissed.




                                              …………………………….J.
                                              (Gyan Sudha Misra)




New Delhi;                                        ……………………………J.
April 25, 2014.                              (Pinaki Chandra Ghose)


-----------------------
[1]     (1989) 2 SCC 557
[2]     RLR 2000 (2) 39

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