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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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SPL. APPL. WRIT No. 139 of 2002
STATE OF RAJ.
V/S
BABU SINGH & ORS
Mr. SANDEEP BHANDAWAT, AGC, for the appellant /
petitioner
None is present for the respondent
Date of Order : 3.11.2009
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI GOVIND MATHUR,J.
ORDER
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This appeal seeks to challenge the order of the
learned Single Judge dt. 29.4.1998, allowing the writ
petition, setting aside the order of the authorities below,
and remanding the matter to the Authorised Officer for
deciding afresh, about the extent of land that can be held
by the petitioner under the provisions of the Ceiling Act,
after taking into consideration the fact, that the lands
being ancestral in nature should be considered, after
following the law in that regard, and after determining the
share, that the petitioner is entitled to acquire in those
ancestral land, then the extent of land which could be held
by the petitioner be determined.
A look at the order shows, that the order proceeds
on the basis, that “Admittedly the land sought to be
included by the impugned order dated 27.8.1985 is ancestral
land and consequences of such nature of land were liable to
be taken into consideration for determination of the
permissible holdings of the petitioner”.
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Since the order proceeds on the basis of admitted
situation, and since it was sought to be contended, in the
appeal, that no such admission was ever made on behalf of
the present appellant; We asked the learned counsel for the
appellant, that in that situation, the proper remedy lies
before the learned Single Judge himself, by filing
appropriate review petition; to which it was contended,
that a review petition being S.B. Civil Review Petition No.
10/2000 was filed, which was dismissed on 5.4.2000. We
therefore called the file of review petition, and found
that this specific objection was taken in the review
petition that admission was not made.
In the above background a look at the order dt.
29.4.1998 shows that nobody appeared on behalf of the State
on that day, and a look at the order-sheet shows that on
25.4.1998 the matter was simply adjourned to 29.4.1998, and
on 29.4.1998 the order was passed. However, by a subsequent
Misc. Application no. 78/1998 that order was sought to be
corrected to be read as 6.5.1998, and in this application
also it was contended that the matter was heard and decided
on 6.5.1998. It was also contended in this application that
the counsel Shri B.S. Bhati did appear on behalf of the
State. It was also contended in this application that no
such admission was made by the counsel. This application
was allowed to the extent of correcting the date of the
order only. In this background a look at the orders of the
Board of Revenue, and that of the learned Additional
Collector shows, that it was a specific controversy, as to
whether the land is ancestral, or not, and the positive
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finding has been recorded, to the effect, that the writ
petitioner failed to lead any evidence, or to produce any
document. In such circumstances, the positive finding was
recorded in para-7 by the Board of Revenue, to the effect,
that precise burden was on the appellant before it to show
that the land was ancestral, but then the appellant did not
lead any evidence to prove this. Therefore, the question
was decided against the appellant before the Board of
Revenue.
Obviously, in such circumstances, in our view,
the learned Single Judge was in error in proceeding on the
basis, about admittedly the land being ancestral. The
question then is as to what further course of action should
be adopted.
Since the order impugned was passed way back on
29.4.1998/6.5.1998, and the appeal filed by the State was
barred by time, which delay was condoned only on 7.3.2002.
Then, the appeal was admitted on 19.3.2002, and interim
stay was granted. We are not informed as to what further
proceeding has been taken by the learned authorities below
in pursuance of the impugned order of the learned Single
Judge, during this interregnum period.
In such circumstances, to settle the equities, we
think it appropriate, while allowing the appeal, and
setting aside the order of the learned Single Judge, to
direct the learned Authorised Officer to decide the matter
afresh, pursuant to the remand order passed by the learned
Single Judge, with a direction, to pointedly record
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evidence of the parties, on the aspect, as to whether the
land in question is ancestral, or not, and then to decide
the ceiling proceedings. If the Authorised Officer
concludes that the land is not ancestral, then obviously
the order of the Board of Revenue shall stand revived, and
if he concludes in favour of land being ancestral, then the
effect shall be given to the order of the learned Single
Judge.
The appeal is accordingly allowed as above.
( GOVIND MATHUR ),J. ( N P GUPTA ),J. /Sushil/