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of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 - reopening of a case already decided under repealed Act, on the plea of fraud - Collector issued notice - challanged on the plea of limitation and relevancy - Writ was dismissed - Apex court too confirmed the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provisions repealed by Section 40, is in contravention of such
repealed provisions and that such order is prejudicial to the State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with such repealed provisions.”=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
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.=
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
