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1993 DIGILAW 34 (RAJ)

Savda v. State of Rajasthan

1993-01-18

A.K.MATHUR, K.C.AGRAWAL

body1993
Honble MATHUR, J.—All these 7 writ petitions involve common question of law, therefore, they are disposed of by this common order. (2) For the convenient disposal of these writ petitions, the facts given in the case of Savda vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No. 1440/1986) are taken into consideration. (3) The petitioner is an agriculturist by profession and is a resident of village Mohiwada in Tehsil Ahore of District Jalore in the State of Rajasthan. The village Mohiwada was a Jagir village prior to Samvat year 2017 corresponding to 1960 A.D. Mohiwada village Jagir was resumed and thereafter, the agricultural lands of this village were managed by the revenue department of the State. The petitioner was in cultivatory possession of the agricultural land bearing Khasra No. 272/50, measuring 9 bighas 5 biswas of the said village since long before 15.10.1955. since it was a Jagir land, therefore, the petitioner was paying rent to the Jagirdar. After resumption of the Jagir, the petitioner was recorded in the State Girdawaries but his name was not recorded in the Jamabandies. The petitioner, therefore, approached the revenue authorities for recording his name as a Khatedar of the aforesaid lands in the revenue records because he acquired Khatedari rights over the aforesaid lands by virtue of Section 15 of the Rajasthan Tenancy Act, 1955 (referred to hereinafter as the Act of 1955). The Naib-Tehsildar recommended the petitioners case to the higher authorities for recording the petitioners name in the Jamabandies. But the said recommendation was not accepted by the higher authorities. Proceedings were initiated against the petitioner under Section 91 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the Act of 1956) and an order was also passed by the Tehsildar declaring the petitioner as trespasser. Therefore, the petitioner filed a suit for declaring him as Khatedar tenant of the aforesaid lands in the Court of Sub-Divisional Officer, Jalore. A reply was filed by the respondents and the issues were framed. It is submitted that the petitioner summoned the Patwari and the Office Kanungo with the records for the period prior to 15.10.1955 because on this day the Rajasthan Tenancy Act, 1955 came into force. But such record was not produced on the ground that no such record was available either with the Patwari or the Office Kanungo. It is submitted that the petitioner summoned the Patwari and the Office Kanungo with the records for the period prior to 15.10.1955 because on this day the Rajasthan Tenancy Act, 1955 came into force. But such record was not produced on the ground that no such record was available either with the Patwari or the Office Kanungo. Thereafter, a decree was passed by the Sub-Divisional Officer in favour of the petitioner. A number of other persons also claimed similar tenancy rights in this village. No appeal was filed by the State against this order of the Sub-Divisional Officer and after two years of the passing of this decree, the Collector, Jalore made a reference to the Board of Revenue for setting aside the decree passed in favour of the tenants of the village Mohiwada by the Sub-Divisional Officer. The Board of Revenue after notice to the decree-holders set aside the decree passed in favour of the petitioner and other similarly situated persons vide its judgment, a copy whereof has been placed on the record as Ex.2 in relation to the petitioners decree. It is this judgment of the Board of Revenue which has been challenged by the petitioner by filing the present writ petition. (4) The main submission of the learned counsel for the petitioners is that the Board of Revenue in the reference cannot set aside the decree passed by the Sub-Divisional Officer as no appeal was preferred by the State. Therefore, it operates as res judicata. It is also submitted that the Board of Revenue also cannot override this decree in its superintending power conferred by Section 221 of the Act of 1955 as well as Section 83 of the Act of 1956. Learned counsel submitted that since the Code of Civil Procedure is applicable to these proceedings, therefore, Section 11, which contained the principle of res judicata is applicable to these proceedings. The Rajasthan Tenancy Act, 1955 was enacted with the assent of the President and Section 232 was amended by inserting the word decree by the Rajasthan Amendment Act No. 14 of 1981, which was published in the Rajasthan Gazette Extraordinary Part 4 (ka) dated 5.10.1981 and for this, no assent of the President was taken. The Rajasthan Tenancy Act, 1955 was enacted with the assent of the President and Section 232 was amended by inserting the word decree by the Rajasthan Amendment Act No. 14 of 1981, which was published in the Rajasthan Gazette Extraordinary Part 4 (ka) dated 5.10.1981 and for this, no assent of the President was taken. Therefore, the insertion of the word decree is against the provisions of Section 11 of the Code of Civil Procedure and, therefore, this insertion is bad and the order passed by the Board of Revenue deserves to be quashed. Learned counsel has also submitted that the Board of Revenue in exercise of its revisional jurisdiction cannot examine the questions of facts and, therefore, the order passed by the Board of Revenue is bad on merits also and in the alternative it is submitted that the case may be remanded back to the trial court for deciding the issue afresh. (5). As against this the respondent State has contested the position and submitted that no assent of the President is required for amending Section 232 of the Act of 1955 as the tenancy rights are covered by Entry 18 of List II of the Seventh Schedule of the Constitution. Therefore, the State is competent to amend the Act of 1955 and it is not required to referred it for the assent of the President. Learned counsel for the respondents further submitted that by virtue of Section 208 of the Act of 1955 certain provisions of the Code of Civil Procedure have been made applicable and certain provisions of the Code of Civil Procedure have not specifically been made applicable to these proceedings. It is submitted that Section 11 of the Code of Civil Procedure has not been made specifically applicable to these proceedings. Learned counsel submitted that the applicability of Order 46 of the Code of Civil Procedure i.e. provision regarding reference has specifically been prohibited. Therefore, Section 232 of the Act of 1955 which deals with the reference is not prohibited and the Board of Revenue can set aside a decree in exercise of the power under reference. (6). In order to appreciate the controversy raised in these writ petitions, we shall make a reference to the certain provisions of law first. Section 232 of the Act of 1955 reads as under: — "232. (6). In order to appreciate the controversy raised in these writ petitions, we shall make a reference to the certain provisions of law first. Section 232 of the Act of 1955 reads as under: — "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 any 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 proceeding, 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 and the Board shall, thereupon, pass such orders 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." (7). Section 208 of the Act of 1955 reads as under:- "208. Application of Civil Procedure Code: The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), except:- (a) provisions inconsistent with anything in this Act, so far as the inconsistency extends, (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in List I of the Fourth Schedule, shall apply to all suits and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule." (8). According to Section 208 of the Act of 1955 certain provisions of the Civil Procedure Code have been specifically made applicable and certain provisions of the Civil Procedure Code have been specifically prohibited as given in the Lists I and II of the Fourth Schedule attached to the Act. List I reads as under: — "LIST I. Sections and Orders of the Code of Civil Procedure, 1908, which do not apply to suits or proceedings under this Act. List I reads as under: — "LIST I. Sections and Orders of the Code of Civil Procedure, 1908, which do not apply to suits or proceedings under this Act. Section 9, Section 24, Section 55 to 59 inclusive, Section 68 to 72 inclusive, Section 88, Sections 113, 114, and 115, Order XXI rules 37,38,39 and 40, Order XXII, rule 8, Order XXXIII, (Pauper suits), Order XXXV (Interpleader suits), Order XXXVI (Special case), Order XLIV (Pauper Appeals), Order XLVI (Reference)." (9) List II also contains certain sections of the Civil Procedure Code, which have been made applicable subject to modification as mentioned therein. (10). Section 221 of the Act of 1955, which confers the power of superintendence on the Board of Revenue reads as under : — "221. Subordination of revenue courts—The general superintendence and control over all revenue courts shall be vested in, and all such Courts shall be subordinate to the Board; and subject to such superintendence, control and subordination — xxxxx (b) all Additional Collectors, Sub-Divisional Officers, Assistant Collectors and Tehsildars in a district shall be subordinate to the Collector thereof, (c) all Assistant Collectors, Tehsildars and Naib-Tehsildars in a sub-division shall be subordinate to the Sub-Divisional Officer thereof, and (d) all Additional Tehsildars and Naib-Tehsildars in a Tehsil shall be subordinate to the Tehsildar thereof." (11) Entry 18 of List II of the Seventh Schedule of the Constitution reads as under : "18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization." (12). So far as the procedure part is concerned, the same is governed by Entry 46 read with Entry No. 5 of the List III of the Seventh Schedule i.e. Concurrent List, of the Constitution which reads as under :— "46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in the List." "5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." In this legal background the controversy which has been raised by the learned counsel has to be resolved. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." In this legal background the controversy which has been raised by the learned counsel has to be resolved. It may also be mentioned here that prior to the amendment of Section 232 of the Act of 1955, the legal position as then stood was that though the word decree does not find mention in Section 232 i.e. reference, still the Board of Revenue being the highest court amongst the Revenue Courts has a power of superintendence and it can interfere with any order passed by the subordinate Court, which appears to be erroneous or without jurisdiction. In this connection, reference may be made to two bench decisions of this Court. In the case of Fateh Khan vs. Stale of Raj. (D.B. Civil Writ Petition No. 685/78, decided on 20.4.1979) (1), it was observed as under :– "Reference, made by Collector for setting aside decree of A.C. u/s 88 & 89, R.T. Act, accepted by Board where order of ejectment u/s 91, L.R. Act from Gochar land, passed by Teh. and upheld by Collector and during pendency of appeal before RAA petitioners got suit decreed in collusion with Teh. concealing fact of proceedings u/s 91-Propriety- Word order occurring in Sec. 232 not covered decree and Collector, not competent to make reference for cancelling a decree u/s 232 nor Board, competent to cancel decree on such ref. as held in 1978 RRD 507 (H.C.) - Revl. jurisdiction of Board u/s. 230, not applicable- Question about jurisdiction of Board to set aside any illegal order or decree under its supervisory powers u/s 221, not raised in 1978 RRD 507-Decrec of SDO being in clear disregard of provisions, set aside under supervisory and controlling powers of Board u/s 1.2, Board of Revenue Ord. 1949 as per 1952 ILR 833, relied on in 1955 ILR 55-Sec. 221, analogous to Sec. 12 of Ordinance of 1949 and omission of words subject to other provisions of this Act; differentiates these provisions from provisions of Sec. 9, L.R. Act- Hence even in cases where Collector, not empowered to make Ref. u/s 232 or Board has no revl. 1949 as per 1952 ILR 833, relied on in 1955 ILR 55-Sec. 221, analogous to Sec. 12 of Ordinance of 1949 and omission of words subject to other provisions of this Act; differentiates these provisions from provisions of Sec. 9, L.R. Act- Hence even in cases where Collector, not empowered to make Ref. u/s 232 or Board has no revl. jurisdiction, Board, empowered to set aside orders if clear breach of provisions of law comes to its notice and it considers it expedient to use its power of superintendence and control and such power extends to setting aside illegal decrees also-Board, held rightly exercised powers u/s 221 in extraordinary circumstances where true facts about land being Gochar and proceedings u/s 91, concealed from A.C. and decision of A.C. declaring petitioners as khatedars in Gochar, illegal and conduct of applicants in concealing true facts in plaint and irresponsibility of Teh. in filing vague W.S., weighed with Board to exercise its supervisory jurisdiction—Hence Board had jurisdiction u/s 221 to set aside illegal decree of A.C. Order, passed on a ref., held of no significance — Order of Board held just and proper." (13). This was further re-affirmed by a division bench of this Court in the case of Raghubir Singh & Anr. vs. The Board of Revenue for Rajasthan and Others (decided on 19.7.1979) (2). It was observed as under in this case: — "The Board had jurisdiction to set aside the order of the Sub- Divisional Officer provided it came to the conclusion that interest of justice requires exercise of such power . . . .What the Board did in the present case was to set aside the order of May 5, 1976, on the ground that the Sub-Divisional Officer had determined the ceiling area under the new law where as he should have determined it under the old law. This is undoubtedly an error apparent on the face of the record and pertains to exercise of jurisdiction and deserves to be set right. It is true that the powers may be exercised sparingly in extraordinary cases. This is undoubtedly an error apparent on the face of the record and pertains to exercise of jurisdiction and deserves to be set right. It is true that the powers may be exercised sparingly in extraordinary cases. In our opinion, the present case falls within the category of such cases where such power should be exercised." (14) Therefore, according to the un-amended provisions of section 232 of the Act of 1955 also this Court took the view that the Board can set aside the order if it comes to the conclusion that the order passed by the subordinate revenue court is illegal and without jurisdiction. (15). Mr. Purohit, learned counsel for the petitioners submitted that since section 11 of the Code of Civil Procedure has been enacted by the Parliament, which deals with the principle of res-judicata, therefore, the amendment introduced in Section 232 whereby a decree which has become final has been sought to be reviewed under reference is contrary to the provisions of section 11 and as such the assent of the President is necessary and the same having not been obtained, therefore, this amendment being redundant to Section 11 of the Code of Civil Procedure, is void to this extent by virtue of Article 254 of the Constitution of India. (16). We have considered the submission of Mr. Purohit and we are of the opinion that the contention of Mr. Purohit is devoid of any merit. Firstly, Section 11 of the Code of Civil Procedure has not been made specifically applicable to these proceedings. According to Section 208 of the Act of 1955 certain provisions of the Code of Civil Procedure have been made applicable and the applicability of certain provisions of the Code of Civil Procedure has been specifically prohibited. List I of the Fourth Schedule appended to the Act of 1955 overrides the provisions of the Code of Civil Procedure. The applicability of thereof have been specifically prohibited to the proceedings under the Act of 1955 and specifically the provisions of Order 47 of the Code of Civil Procedure have been prohibited. That shows that the provision of reference under the Code of Civil Procedure has not been made applicable to these proceedings under the Act of 1955. The applicability of thereof have been specifically prohibited to the proceedings under the Act of 1955 and specifically the provisions of Order 47 of the Code of Civil Procedure have been prohibited. That shows that the provision of reference under the Code of Civil Procedure has not been made applicable to these proceedings under the Act of 1955. Section 232 of the Act of 1955 deals with reference by the Collector to the Board of Revenue and, therefore, Section 232 of the Act of 1955 will be applicable and the provisions of the Code of Civil Procedure to that extent are specifically prohibited. Since the Board of Revenue acquires jurisdiction to decide the matters by virtue of Section 232, when the Collector makes the reference. Therefore, Section 232 will govern these proceedings and not Section 11 of the Code of Civil Procedure. When there is a specific prohibition to the applicability of reference then the provisions of the Code of Civil Procedure will have no application to these proceedings and the Board of Revenue will acquire jurisdiction to decide the matter in terms of Section 232 of the Act of 1955 i.e. reference being made by the Collector. Thus, the contention of Mr. Purohit that since Section 11 of the Code of Civil Procedure has been enacted by the Parliament in exercise of its power contained in List III i.e. Concurrent List of the Seventh Schedule and Section 232 of the Act of 1955 has been amended and the word decree has been inserted, therefore, the same being inconsistent and it should be declared as redundant, is absolutely meritless. Secondly, Section 11 of the Code of Civil Procedure has not been made applicable to these proceedings. List II by virtue of which certain provisions of the Code of Civil Procedure are made applicable subject to certain modifications does not contain Section 11. Therefore, if the Legislature in its wisdom wanted Section 11 to be made applicable to these proceedings specifically then there was no prohibition for the Legislature to have enacted the same but the Legislature in its wisdom did not make Section 11 applicable to these proceedings. Therefore, it cannot be read that Section 11 shall be made applicable to these proceedings. Therefore, it cannot be read that Section 11 shall be made applicable to these proceedings. Moreso, especially in the context of Section 232 of the Act of 1955 there cannot be two opinion that the Board of Revenue can exercise its power under Reference and the provisions of Reference under the Code of Civil Procedure have been specifically prohibited of its applicability to these proceedings. (17). Mr. Purohit, learned counsel for the petitioners only wants Section 11 to be made applicable by implication that since these are civil proceedings, therefore, Section 11 i.e. principle of res-judicata is applicable to these proceedings and once a decree has been passed by the competent Revenue Court after hearing the parties it cannot be varied as the principle of res judicata will be applicable to these proceedings. This contention of Mr. Purohit is devoid of any merit. Section 11 has neither been specifically made applicable to these proceedings and provisions of reference as contained in the Order 47 of the Code of Civil Procedure has been specifically prohibited from these proceedings, therefore, in either way the contention of Mr: Purohit has no merit. (18). It is also contended by Mr. Purohit that since the Act of 1955 was enacted after the assent of the President and the amendment has not received the assent of the President, therefore, this should be declared as void. This contention of Mr. Purohit is also without any merit as all the questions relating to tenancy are within the jurisdiction of the State by virtue of List II of the Seventh Schedule of the Constitution. Therefore, the State is competent to legislate on all the matters falling under the tenancy, therefore, it was not necessary for sending this amendment for the assent of the President as the State Legislature is competent to enact the law on the subject. (19). Next, Mr. Purohit, learned counsel for the petitioners submitted that since the Board of Revenue has decided the question of fact reversing the finding given by the trial court, therefore, it be remanded back to the trial court. This contention of Mr. (19). Next, Mr. Purohit, learned counsel for the petitioners submitted that since the Board of Revenue has decided the question of fact reversing the finding given by the trial court, therefore, it be remanded back to the trial court. This contention of Mr. Purohit also cannot be accepted for the simple reason that we are satisfied that the Board of Revenue had rightly appreciated the matter and has found that because of the long possession no tenancy right could accrue on the basis of oral evidence alone and secondly in some of the cases it is found that the transfer was in violation of Section 42 of the Act of 1955. Therefore, viewing the matter from this angle also we are satisfied that it will not be in the interest of justice to remand all these cases back to the trial court to start a fresh inning. (20). Mr. Purohit has also invited our attention to a decision of the Honble Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustagim and others (3) regarding superintendence power of the High Court under Article 227 of the Constitution of India and submitted that the Board of Revenue should not even exercise the power under Section 221 of the Act of 1955 i.e. superintendence power of the Board of Revenue on the subordinate revenue courts except in a matter where the question of jurisdiction is involved. It is true that this power of superintendence has to be exercised sparingly and where there is a specific lack of jurisdiction or where there is a gross illegality involved. So far as the exercise of power is concerned there is no two opinion that the revisional power should be exercised by the Board of Revenue sparingly where it is found that there is manifest injustice has been done. Therefore, so far as the principle of law is concerned, the same is not disputed but in which case it should be exercised and in which case it should not be exercised, no hard and fast rule can be laid down. It is for the Board of Revenue to see that whether any apparent illegality has been committed or not. Therefore, so far as the principle of law is concerned, the same is not disputed but in which case it should be exercised and in which case it should not be exercised, no hard and fast rule can be laid down. It is for the Board of Revenue to see that whether any apparent illegality has been committed or not. In the present case, the Board of Revenue has examined this matter and found that there is apparent illegality, therefore, it has interfered in the matter and we do not find any reason to differ from the finding given by the Board of Revenue. (21). Thus, in this view of the matter, we are of the opinion that the amendment of Section 232 of the Rajasthan Tenancy Act, 1955 is valid. Therefore, we do not find any merit in all these writ petitions and the same are dismissed.