IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No. 922/2000 (Sunehari & Ors. versus The State of Rajasthan & Ors.) Date of Order: 15.10.2009 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable:- Mr. Pawan Pareek, for the petitioners. Mr. S.Z. Ali, Dy. G.C. Challenge to the order dated 19.05.1999 passed by the learned Board of Revenue has been made by the petitioners in this writ petition. Therefore it has been prayed that the said order be quashed and set aside. 2. In the instant case the dispute relates to the agricultural land bearing khasra No. 359 (old) measuring 10 bigha and 17 biswas situated in village Sunderwali. Thereafter the new khasra Nos. 493 and 497 were given. The petitioners had then filed a suit for declaration and permanent injunction in the court of ACM Bharatpur. It is stated in the plaint that the petitioners were in possession of the land in question since samwat 2012 and has been cultivating the same in equal shares. The case of the petitioners is that they were in possession of the land at the time of resumption of the biswedari and coming into force of the Rajasthan Tenancy Act, and as such they became khatedar of the land by operation of law. Further, it is the case of the petitioners that after abolition of biswedari, the land in dispute was wrongly entered as Gair Mumkin Pokhar. The said entries in the revenue record were incorrect and as such the need for filing a suit for declaration as khatedar and a decree for permanent injunction. 3. On the notices of the suit having been served on the respondent-State, the learned Government Advocate appeared on 20.07.1979 and after having a copy of the plaint given to him the case was fixed for 04.08.1979. On the next date of hearing the representative of the Govt. sought time to file written statement. Time was granted and the case was fixed for 10.08.1979. But thereafter the Government Advocate did not appear in the proceedings. Therefore the suit was ordered to be proceeded ex-parte. After recording of the evidence of the plaintiff, the suit was decreed vide judgment dated 10.10.1979. It was ordered that wrong entries as Gair Mumkin Sawai Chak have been made in respect of the land in question; necessary correction be made in the revenue record and the petitioners were declared as khatedars. It was also ordered that the defendants be restrained by permanent injunction from dispossess the plaintiff-petitioners and not to disturb the petitioners from cultivating the land.
4. Later on Collector Bharatpur issued a notice to the petitioners on 11.07.1980 stating that the suit of the petitioners have been wrongly decreed and they were to show cause as to why the decree dated 10.10.1979 and the mutation entered into, in compliance thereof, may not be set aside. The petitioners then filed a reply to the notice and nothing was heard thereafter, for a long time. It appeared to the petitioners that the matter has been dropped.
5. Subsequently, the Additional Collector Bharatpur passed an order, under Section 232 of the Rajasthan Tenancy Act on 10.10.1994, against the decree passed by ACM No. 1 Bharatpur on 10.10.1979. On having accepted the reference, the matter was sent to the learned Board of Revenue with the request that the decree passed by the Assistant Collector Bharatpur on 10.10.1979 may be ordered to be set aside. The parties were directed to appear before the Board of Revenue on 20.03.1995.
6. During the pendency of the reference, the petitioners preferred an application before the learned Board of Revenue for production of documents, which were admitted. After hearing the parties, the learned Board of Revenue accepted the reference on 14.03.1996. It is to be noted that the documents filed by the petitioners were not referred to while accepting the reference. Therefore there had been an error apparent on the face of record and a review petition was filed on behalf of the petitioners before the learned Board of Revenue. But the same was rejected on 19.05.1999. Hence the present writ petition.
7. The learned counsel for the petitioners has submitted that the learned Board of Revenue has erred in passing the order impugned dated 14.03.1996 whereby the reference was accepted and the judgment and decree dated 10.10.1979 passed by Assistant Collector Bharatpur in case No. 94/79 Sunehari and Ors. versus State of Rajasthan had been set-aside. Further, he has submitted that the impugned reference has been accepted despite of an objection have been raised with regard to limitation on account of inordinate delay. The Board of Revenue has not given any special reasons for exercising the powers of reference under Section 232 of the Rajasthan Tenancy Act, after expiry of such a long period. The suit in which the judgment and decree dated 10.10.1979 had been passed, time was sought for filing a written statement on behalf of the State and thereafter they preferred to remain absent, as a result of which the matter was ordered to be proceeded ex-parte.
Furthermore, a notice was issued by Collector Bharatpur on 11.07.1980 to the petitioners for taking action under Section 221 of the Rajasthan Tenancy Act 1956. The petitioners had filed a reply to the said notice but as per the information of the petitioners no order came to be passed and the proceedings seems to have been consigned to record. Therefore, the respondents were fully aware about the proceedings, in which the said judgment and decree was passed and even than the notice was issued by the Collector in the year 1980. Learned counsel for the petitioners has also submitted that apart from the fact that the respondents were having notice about the proceedings before the Civil court (suit no. 94/79), wherein they had appeared and sought time to file reply but subsequently they did not take steps to set aside the order of ex-parte proceedings, by way of filing an appropriate application in that regard. The respondents had also not filed any appeal against the order of the learned ACM. Therefore, the respondents cannot be permitted to adopt the procedure of reference under Section 232 of the Rajasthan Tenancy Act and have the judgment and decree set-aside.
It has also been submitted that the learned Board of Revenue had not taken into consideration the principles of law as laid down in various judgments that the power of reference cannot be exercised after expiry of period of three years. The judgment and decree passed by the learned ACM has been set-aside by the learned Board of Revenue without considering the question of regularization of land in favour of the petitioners, in view of the government circular dated 11.04.1977 issued in compliance of Rule 20 of the Rajasthan Land Revenue (allotment of land for agricultural purpose) Rules 1970. In the last, it has been submitted by the learned counsel for the petitioners that the learned Board of Revenue has not considered the evidence on record which formed the basis of the judgment passed by the learned ACM. In support of his submissions, the learned counsel for the petitioners has placed reliance on the cases of (1) Dhanna Lal versus State of Rajasthan & Ors; 1996 RDD 565; (2) Lad Bai and Ors. versus Board of Revenue; 2000 RRD 52; (3) Lichma and Ors. versus Board of Revenue, Ajmer (S.B. Civil Writ Petition No. 493/01 decided on 24.01.2002 and (4) Anandi Lal versus State of Rajasthan & Ors.; 1996 RRD 170.
8. On the other hand, the learned Government Advocate has supported the order passed by the learned Board of Revenue and has submitted that no error has been committed therein so as to call for any interference by this court, in its writ jurisdiction. Further, he has submitted that the learned Additional Collector Bharatpur had rightly made reference under Section 232 of the Rajasthan Tenancy Act and recommended the same to the learned Board of Revenue with the request that the judgment and decree dated 10.10.1979 passed by the learned ACM be set aside. It has also been submitted that the learned ACM had erred in passing the judgment and decree in favour of the petitioners wherein the land in question was recorded as Rajkiya Gair Mumkin Pokhar. The learned Government Advocate has submitted that there was no basis available on record before the ACM so as to pass the judgment and decree in favour of the petitioners. Therefore, no interference is called for in the order passed by the learned Board of Revenue and the writ petition filed by the petitioners has no force.
9. I have given my anxious and thoughtful consideration to the submissions made by the learned counsels for the rival parties and have carefully considered the material on record as well as the principles of law, in respect of the questions involved in the present case. Under Section 82 of the Rajasthan Land Revenue Act 1956 powers have been conferred to call for the record of a proceedings and reference be made to the State Government or the Board. The said provision reads as under:-
82. The Settlement Commissioner or the Director of Land Records (or a Collector) may call for and examine the record of any case decided or proceedings held by any revenue court or officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of proceedings;
and, if he is of opinion that the proceedings taken or order passed by such subordinate court or officer should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board, if the case is of a judicial nature or connected with settlement, or for the orders of the State Government if the case is of a non-judicial nature not connected with settlement;
and the Board or the State Government, as the case may be, shall thereupon pass such order as it thinks fit.
10. Similarly under Section 232 of the Rajasthan Tenancy Act 1955 powers are envisaged to call for record and refer the matter to the Board, which are as follows:-
Section 232. Power to call for record and refer to the Board:- The Collector may call for and examine the record of any case or proceedings decided by or pending before and revenue court subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order [or decree passed] and as to the regularity of the proceedings, and, if he is of opinion that [the order or decree] passed or the proceeding taken by such court should be varied, cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board shall, thereupon, pass such order as it thinks fit.
Provided that the power conferred by this section shall not be exercised in respect of suits or proceedings falling within the purview of section 239.
It is to be noted that the words or decree passed and the words the order or decree in the aforesaid provision, were substituted by way of amendment in the year 1981. Therefore, in the instant case the said power is sought to be exercised by the learned Board of Revenue for setting aside the judgment and decree passed by the learned ACM on 10.10.1979.
11. But taking into consideration the facts and circumstances of the present case, particularly the fact that the learned ACM had decided the suit and passed the judgment and decree as back as on 10.10.1979 and reference was accepted by the learned Board of Revenue only on 14.03.1996 whereby the said judgment was set-aside, the first question which requires consideration is as to what is the time limit within which the powers of reference under Section 232 of the Rajasthan Tenancy Act should be exercised. It is a settled principle of law that where no time limit is prescribed and no limitation is provided for proceeding in a matter than it should be done within a reasonable time. Of course, as regards to the reasonable time it depends upon the facts and circumstances of each case. In the instant case it is an undisputed fact that the judgment and decree, in a regular revenue suit filed before the Assistant Collector Bharatpur, was passed on 10.10.1979 and the same was ordered to be set aside by the learned Board of Revenue only in the month of March 1996. That is to say, after a long period of 17 years. A similar question arose before a Division Bench of this court in the case of Anandi Lal & Ors. (supra) and while considering the question that when there is no period of limitation is prescribed under the relevant provision of law, can the power be exercised by the authority at any time, the learned Bench held in para 21 as under:-
In view of the settled principle of law, as stated above, simply because the provisions of Section 82 of the Act of 1956 and Section 232 of the Act of 1955 do no provide for the period of limitation, it does not mean that the authority on whom the power is conferred, can invoke the same at any time. This is so because each and every authority on whom the power is conferred, is expected to exercise the same in just and reasonable manner. The concept of exercise of power in a reasonable manner inheres with it the concept of exercising the same within a reasonable time. If the power is not exercised within reasonable time, the invocation of the power after inordinate delay and the exercise of the same after unreasonable length of time, would be unjust, arbitrary and unreasonable. Therefore, the action taken by exercise of such power would be illegal and void. If the requirement of exercise of power within reasonable time is not read into the provisions of Section 82 of the Act of 1956 and Section 232 of the Act of 1955, then the provision itself would become unconstitutional. It can never be presumed that the legislature intended to confer power on any authority to exercise the same in unjust and unreasonable manner. Therefore, to uphold the constitutionality of the aforesaid provisions, the requirement of exercise of the same power within reasonable period has got to be read into the same.
Furthermore, the learned Division Bench held, in para 24 as under:-
In our opinion, the settled legal position as stated above, would apply to the agricultural land in possession of the tenants/khatedars also once the cases of such tenants/khatedars are decided and their rights have been concluded and pursuant to the same they are in possession of the land. Ordinarily the revisional power under Section 82 of the act of 1956 and under Section 232 of the Act of 1955, cannot be exercised after a period of one year from the date of the order sought to be revised. Once a tenant/khatedar acquires tenancy/khatedari rights and continues to be in possession of the land, his rights cannot be called in question after unreasonable delay. Such tenants/khatedars are required to be treated at par, for all purposes, with all other tenants/khatedars who acquired tenancy/khatedary rights over the land. To permit the exercise of revisional powers under Section 82 of the Act of 1956 and/or under Section 232 of the Act of 1955 after unreasonable delay, would amount to putting imprimatur of the courts on the unreasonable and arbitrary exercise of power. Within a period of one year the tenant/khatedar of the land would have spent money for the improvement of the land, he would have arranged his affairs of life on the basis that he is in occupation of the land, he would have entered into several transactions on this basis and made many commitments. Therefore, ordinarily revisional powers under Section 82 of the Act of 1956 and under Section 232 of the act of 1955, cannot be exercised after a period of one year. If this requirement of reasonable length of time is not read into the aforesaid provisions, the provisions would become unconstitutional.
12. The said principle was followed in a subsequent case of Dhanna Lal and Ors. (supra) by holding, in para 12, as under:-
In the case in hand, admittedly, the land was transferred in the year 1961 and the mutation was sanctioned on 25.11.1961. The petitioners were recorded khatedar/tenants of the land in question. First time, in the year 1979 the application was moved by the Tehsildar and then the reference has been made to the Board of Revenue by the Additional Collector on 29.04.1983, after lapse of period of 18 years. Even, it was in the knowledge of Tehsildar in the year 1977 when he has given sanction to the petitioners, for construction of pakka houses, In spite of that, the Tehsildar kept quiet for two years till 1979. No justification has been given as to why the reference has not been made u/s 82 of the Act, 1956 within reasonable time after mutation No. 105 was sanctioned on 25.11.1961. This unreasonable delay is fatal. Therefore, though the transfer was contrary to the provisions of Sec. 42 of the Act, 1955, but the mutation granted in favour of the petitioners, in the year 1961, cannot be cancelled, on delayed reference which was referred after 18 years from the date when the mutation was sanctioned.
13. Subsequently in the case of Lad Bai and Ors. (supra) the learned Single Judge while considering a case of reference under Section 232 of the Rajasthan Tenancy Act 1955 wherein a judgment and decree dated 15.12.1969 passed by SDO Jalore was set aside by the learned Board of Revenue in a reference on 10.07.1989, and held, in para 8, as under:-
From a perusal of the provisions of the Sec. 232 quoted above, it will be seen that the Collector has unlimited power to call for examination the record of any case or proceedings decided by the revenue court subordinate to him and no limitation is prescribed for so doing. However, interest of justice would require that this power has to be exercised within a reasonable time and a reference is to be made to the Board of Revenue for variation, cancellation of said order and the Board may thereupon make such order. It will be seen from the provisions of Sec. 232 that the power is statutorily conferred on the Board of Revenue alone as it is the highest appellate authority under the Rajasthan Tenancy Act. The scrutiny contemplated by this provision under Sec. 232 which the Collector may undertake to get the matter decided by the Board of Revenue itself as the initial order which may be confirmed by the learned Board of Revenue is passed by revenue court subordinate to the Collector. In such contingency, the order of Board of Revenue will also have to be varied and hence, power is conferred only in the Board of Revenue to accept the reference and vary, cancel or reverse the order, this being the frame of law. It would therefor, be reasonable to hold in the circumstances that though there is no limitation prescribed the power under Sec. 232 to make a reference should be used with circumspection and within reasonable time; what should be the reasonable time in the circumstances, cannot be defined or fixed. It may vary from case to case. The purpose of giving this power of making scrutiny and reference to the Collector is basically to avoid fraudulent use or abuse of jurisdiction of the revenue courts or collusive jurisdiction of the revenue court by parties entertaining to change legislation made by the State for protection of weaker section of the community. It does not mean that the power can be used as weapon to disturb possession of a rightful person. This being the position of law as I understand in relation to Sec. 232 I will have to consider whether the circumstances mentioned in this case are such as the reference made in 1987 for quashing of the order of 1969 is made within reasonable time. I find from scrutiny of record that there is nothing on record by way of explanation as to why nothing was done in this matter for 18 years, why the Collector did not come across the record earlier, why the Tehsildar did not make an application for reference under Section 232 earlier. There is therefore, no evidence on record of this case to show that the decree obtained in 1969 was in any manner fraudulent or mischievously collusive. In such circumstances, I find exercise of the powers under Section 232 of making reference as is made by the Collector is excessive exercise of jurisdiction and is therefore, liable to be quashed.
14. The matter can be looked into from yet another angle. As noted above, in the instant regular suit before the learned ACM Bharatpur, Nayab Tehsildar appeared on behalf of the respondent State Government on 20.07.1979 and on the next date i.e. 4.08.1979 sought time to file reply which was granted. Subsequently, on 10.08.1979 when the representative of the respondent government did not appear, the learned trial court passed the order for proceedings ex-parte. On conclusion of the revenue suit, the learned ACM passed the judgment and decree and the same was never challenged before any Higher Court. It was only by way of reference under Section 232 of the Rajasthan Tenancy Act that the matter was taken up by the Additional Collector Bharatpur and the said judgment and decree was set aside by the learned Board of Revenue by the order impugned in 1996. In other words, the judgment and decree which was passed by a competent court of law after giving notice to the defendants who were non-else but the State Government, was made to set aside on initiation of a proceedings by another authority of the State Government, namely, Additional Collector, which was ultimately successful by passing of the order by learned Board of Revenue. Such a procedure adopted by the authorities of the State Government clearly goes to show that they had circumvented the judgment and decree passed by the competent court of law which had admittedly attained finality, by initiating the proceedings of a reference purporting to be in exercise of the powers under Section 232 of the Act of 1955.
In the case of Lichma & Ors. (supra) the learned Single Judge of this court, while considering the matter of similar nature where a decree passed by Assistant Collector Bandikui on 15.03.1976 was set aside by the Board of Revenue in a reference proceedings on 24.11.1999, held as under:-
“????? ??????? ???????? ?? ?????? ?????? ??.?.?? ?? ???. ??????? ???? ?? ???? ??? ?? ???????? ?? ???????? ???? ?????? ?????? ???? ?? ??? ?? ?? ?????? ????? ?? ???? ??, ??? ????? ??? ???? ?? ???? ?? ?????? ???? ?????? ?? ???????? ?? ?????? ?????? ???? ?????? ???? ?? ?? ?????? ???? ?? ???? ?????? ?? ?????? ???? ??? ?????????? ?? ?? ??? ?????? ???? ?? ?????? ??. ??.??.?? ???????????? ?? ??? ?????? ??????? ?? ???????? ?? ?? ???????? ?? |”
The order of the learned Board of Revenue dated 24.11.1999 was set-aside and the judgment and decree passed by SDO Bandikui on 15.03.1976 was affirmed.
In so far as the primary reason given in the impugned order of reference that the judgment and decree was passed by the learned ACM without there being any evidence on record and only on the basis of plaintiff’s evidence that the same had been passed, it may be noted that the plaintiffs had before the learned trial court produced documentary evidence by way of khasra girdawari and had produced two witnesses namely Narayan Singh son of Prabhu Lal and Kanhaiya Singh son of Banshi. Therefore, the impugned order of reference has been passed without considering the material on record much less to say after properly appreciating the same.
15. The impugned order of reference deserves to be set aside also on the ground that the question of regularization of the land on the basis of long possession, in view of government circular dated 11.04.1977 which was issued in accordance to Rule 20 of the Rajasthan Land Revenue (allotment of land for agricultural purpose) Rules 1970, have not at all been taken into consideration. All these aspects of the matter had been looked into at the time of passing of the judgment and decree, in favour of the plaintiff-petitioners, on 10.10.1979. The learned Board of Revenue, while passing the impugned order, had proceeded on the premise that the land in question was Gair Mumkin Pokhar and had lost site of the fact that even Sarpanch of the Gram Panchyat who appeared as a witness, had supported the plaintiff-petitioners on the question of possession as well as non-existence of pokhar.
16. For the aforesaid reasons, I am of the considered opinion that there is no just reason or material on record justifying the exercise of powers under the provisions of Section 232 of the Rajasthan Tenancy Act 1955 after such a long delay. Therefore, the reference made by the Additional Collector Bharatpur and the power exercised by the learned Board of Revenue was unreasonable and unjust. Consequently, the impugned order passed, in exercise of such powers, cannot be sustained. Furthermore, the impugned order of the learned Board of Revenue cannot stand also on any other reason.
17. In the result, this writ petition succeeds and it is hereby allowed. The orders passed by the learned Board of Revenue on 14.03.1996 is quashed and set-aside and the judgment and decree passed by the Assistant Collector Bharatpur on 10.10.1979 is restored.
(RAGHUVENDRA S. RATHORE),J.
R.VaishnavJr.P.A.
S-3.