1982 Supreme(Raj) 343

RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.L.Shrimal, Dr.K.S.Sidhu, JJ.
Ram Ratan - Appellant
Versus
State of Rajasthan & Others - Respondent
D.B. C.W.P. No. 110 of 1982.
Decided On : 29-04-1982

The ceiling area applicable to a person or family has to be determined just in accordance with the provisions of the old law, namely, the provisions of Chapter III B of the Act.

Headnote:

LAND REFORMS - CEILING LAWS - RAJASTHAN - REOPENING OF CASES - ACT OF 1973 - SECTION 15(2) - DETERMINATION OF CEILING AREA - ACT OF 1955 - CHAPTER III-B - APPLICABILITY - FAMILY UNIT - DEFINITION - SECTION 30-B - DEPENDENT CHILDREN - MAJOR CHILDREN - INCLUSION - MORTGAGED LAND - INCLUSION IN HOLDING - SECTION 30-E - VOLUNTARY TRANSFER - RECOGNITION - SECTION 30D AND 30DD - APPLICABILITY - PARTITION DECREE - EFFECT - SECTION 53, RAJASTHAN TENANCY ACT, 1955.

Fact of the Case:

The petitioner challenged the validity of the orders dated February 17, 1981 and August 1, 1981 passed by the Board of Revenue, Rajasthan, Ajmer, whereby the petitioner's land was declared surplus under the Ceiling laws. The petitioner contended that the ceiling proceedings were instituted after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Act of 1973), and therefore the case ought to have been decided under the Act of 1973, and not under Chapter III - B of the Rajasthan Tenancy Act, 1955 (Act of 1955). The petitioner also contended that out of 113 Bighas of land 100 Bighas of land was ancestral property in the hands of the petitioner. His children have interest in it. A coparcener acquires an interest in the ancestral property by birth and as such he cannot be termed to be dependent upon his father within the meaning of Section 30-B(a) of the Act. That the petitioner's son Mahavir, who became major at the time of the decision of this case by the Sub-Divisional Officer, Bundi could not be considered as a member of the family headed by Ram Ratan. He ought to have been considered as a separate unit. That vide decree dated November 19, 1970 a partition decree of the joint Hindu family property was passed by a competent Court. Under the decree each member of the joint family was awarded separate partion of land. Each of them became a separate unit and the land coming to their share could not have been clubbed along with the land of the petitioner. That the possession of the petitioner on 13 Big has of land was that of a mortgagee and the land could not have been treated as land belonging to the petitioner. It ought to have been clubbed with 100 Bighas of joint family land.

Finding of the Court:

The Court held that the ceiling proceedings out of which the impugned judgement arises were instituted after the coming into force of the Act of 1973, as such the case ought to have been decided under the Act of 1973, and not under Chapter III - B of the Act. The Court further held that the petitioner cannot be said to have suffered any loss at all on account of the determination of the ceiling area in accordance with the provisions of Chapter III-B of the Act. The Court also held that the second and third contentions are also devoid of any merit. The Court further held that the requirement of the law is that the ceiling limit of the area of a person including the family as defined in Section 30-B of the Act is required to be determined with reference to the notified date. The provisions of Chapter III-B of the Act do not purport to set aside or reverse any decision of a Court. It does not declare a decision to be null and void. A decree obtained after the notified date cannot be taken into consideration in determining the surplus area of a person. The rights are to be determined as existed on the notified date. the ceiling are to which a person is entitled is not liable to fluctuation with the subsequent decrease or increase in the number of the members of the family. The Court also held that the mortgaged land with the petitioner could not have been redeemed, as the right to redeem was lost by the mortgagee much prior to the coming into force of the Act. The claim had already become barred by limitation by efflux of time and the petitioner became a tenant of the land within the meaning of sub-clause (h) of sub-section (43) of Section 5 of the Act.

Issues: 1. Whether the ceiling proceedings were instituted after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (Act of 1973), and therefore the case ought to have been decided under the Act of 1973, and not under Chapter III - B of the Rajasthan Tenancy Act, 1955 (Act of 1955)? 2. Whether out of 113 Bighas of land 100 Bighas of land was ancestral property in the hands of the petitioner. His children have interest in it. A coparcener acquires an interest in the ancestral property by birth and as such he cannot be termed to be dependent upon his father within the meaning of Section 30-B(a) of the Act? 3. Whether the petitioner's son Mahavir, who became major at the time of the decision of this case by the Sub-Divisional Officer, Bundi could not be considered as a member of the family headed by Ram Ratan. He ought to have been considered as a separate unit? 4. Whether vide decree dated November 19, 1970 a partition decree of the joint Hindu family property was passed by a competent Court. Under the decree each member of the joint family was awarded separate partion of land. Each of them became a separate unit and the land coming to their share could not have been clubbed along with the land of the petitioner? 5. Whether the possession of the petitioner on 13 Big has of land was that of a mortgagee and the land could not have been treated as land belonging to the petitioner. It ought to have been clubbed with 100 Bighas of joint family land?

Ratio Decidendi: The Court held that the ceiling proceedings out of which the impugned judgement arises were instituted after the coming into force of the Act of 1973, as such the case ought to have been decided under the Act of 1973, and not under Chapter III - B of the Act. The Court further held that the petitioner cannot be said to have suffered any loss at all on account of the determination of the ceiling area in accordance with the provisions of Chapter III-B of the Act. The Court also held that the second and third contentions are also devoid of any merit. The Court further held that the requirement of the law is that the ceiling limit of the area of a person including the family as defined in Section 30-B of the Act is required to be determined with reference to the notified date. The provisions of Chapter III-B of the Act do not purport to set aside or reverse any decision of a Court. It does not declare a decision to be null and void. A decree obtained after the notified date cannot be taken into consideration in determining the surplus area of a person. The rights are to be determined as existed on the notified date. the ceiling are to which a person is entitled is not liable to fluctuation with the subsequent decrease or increase in the number of the members of the family. The Court also held that the mortgaged land with the petitioner could not have been redeemed, as the right to redeem was lost by the mortgagee much prior to the coming into force of the Act. The claim had already become barred by limitation by efflux of time and the petitioner became a tenant of the land within the meaning of sub-clause (h) of sub-section (43) of Section 5 of the Act.

Final Decision: The Court dismissed the writ petition.