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1999 DIGILAW 1361 (RAJ)

Lad Bai v. Board of Revenue

1999-11-04

V.G.PALSHIKAR

body1999
Honble PALSHIKAR, J.–By this petition, the petitioners have challenged the order passed by the Board of Revenue, Rajasthan on 10.7.89 accepting the reference made by Collector, Jalore under Section 232 of the Rajasthan Tenancy Act, 1955 setting aside the judgment and decree dt. 15.12.69 passed by the Sub-Divisional Officer, Jalore in suit No. 40/69. (2). Facts giving rise to the petition stated briefly are that one Amend Khan father of the present petitioners filed a suit for declaration against some persons named before the Assistant Collector, Jalore on 12.5.1969 claiming that he is tenant of land bearing Khasra No. 354 measuring 12-1/2 bighas 2 biswas of village Bibalsar and is in possession of the same land since long. During the pendency of the suit, it was recorded in the tenancy that one deceased Jasiya who was an employee of the plaintiff and it is also recorded that the possession was always with the plaintiff. He therefore, prayed that he be declared as Khatedar tenant of this land. A written statement was filed by the defendant on 26.8.1969. Considering this position therefore, the Assistant Collector, Jalore decreed the suit No. 40/69 on 15.12.69. (3). The State Government through Tehsildar, Jalore has filed an application in the year 1987 and it was registered as Misc. Case No. 283/87, whereby, he claimed that the land covered by the decree passed in suit No. 40/69 dt. 15.12.69 has been mutated as per the decree on 23.1.83. This land belonged to a person of the scheduled caste and therefore, the transfer is violative of Sec. 42 of the Rajasthan Tenancy Act and consequently, a reference be made to quash and set aside the decree dt. 15.12.69. (4). This application registered as mentioned above was accepted by the Collector, Jalore by his order dated 29.3.89 and he made the reference under Sec. 232 seeking quashing of the judgment and the decree in suit No. 40/69 passed on 15.12.69. (5). This reference registered as Ref: No 2/89/RTA/Jalore therefore, taken up for adjudication by the Board of Revenue for Rajasthan on 10.07.1989 and it was accepted which is impugned in this petition. (5). This reference registered as Ref: No 2/89/RTA/Jalore therefore, taken up for adjudication by the Board of Revenue for Rajasthan on 10.07.1989 and it was accepted which is impugned in this petition. Shri K.N. Joshi counsel for the petitioner assailed the order of the Board of Revenue accepting the reference as made by the Collector, Jalore under Sec. 232 of the Rajasthan Tenancy Act on the following grounds:- (i) There is no evidence on record to show that Leelu who claims to be legal successor of Bagia was also a successor of Jasia, in whose name the land originally stood and there is therefore, no evidence on record to come to the conclusion that the decree effected transfer of land from scheduled caste to non-scheduled caste. (ii) Assuming that the transfer is such, provisions of Section 42 of the Rajasthan Tenancy Act are not applicable to a decree passed by a court of competent jurisdiction. (iii) The reference has been made in the year 1987 by the Tehsildar. When the decree was passed in December, 1969, no explanation whatever is given by the Tehsildar while making reference or by the Collector while accepting the reference that the period of 18 years was consumed by cause beyond control of the authorities. The reference itself could not have been made or entertained by any of them the lack of jurisdiction and therefore, the orders are liable to be quashed for want of jurisdiction. (6). The learned counsel for the respondents opposed the petition on all these grounds and submitted that in view of the fact that the land originally belonged to a scheduled caste and it has been transferred by a decree to a non-scheduled caste person, provisions of Sec. 42 are violated. Relying on a decision given by the Board of Revenue reported in 1983 Rajasthan Revenue Decisions page 159 (1), he argued that the word `decree used in proviso to Sec. 42 should be given a wider meaning so as to encompass the transfer made in obedience to a decree to a court of competent jurisdiction. (7). I would like to consider these rival contentions in light of the provisions of law as the same stand. It is true that Sec. 232 of the Rajasthan Tenancy Act does not provide for any limitation within which the Collector may call for examination the record and any case or proceedings. (7). I would like to consider these rival contentions in light of the provisions of law as the same stand. It is true that Sec. 232 of the Rajasthan Tenancy Act does not provide for any limitation within which the Collector may call for examination the record and any case or proceedings. The section 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 property of the order and as to the regularity of the proceeding, and, if he is of opinion that 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." (8). 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 any case or proceedings decided by any 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. 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, cancellation or revert the order, this being the frame of law. It would therefore, 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 that 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 weeker 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 the order of 1969 is made within reasonable time. I find from scrutiny of record that there is nothing or 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 Sec. 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 Sec. 232 of making reference as is made by the Collector is excessive exercise of jurisdiction and is therefore, liable to be quashed. (9). 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 Sec. 232 of making reference as is made by the Collector is excessive exercise of jurisdiction and is therefore, liable to be quashed. (9). Reliance is placed on a decision referred to above, in this decision the decree was alleged to be fraudulent, this judgment with respect is per enquarium of Section 42. Section 42 of the Rajasthan Tenancy Act reads thus; ``42. General restrictions on sale, gift 7 bequest-The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if- (a) It is not a survey number except when the area of the survey number so sold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of sub-Section (1) of Section 53 in which case also the area not transferred shall not be fragment: Provided that this restriction shall not apply if the area so transferred becomes merged into a contiguous survey number: Provided further that this restriction shall not apply if the sale, gift or bequest is of the entire interest of a tenant in the survey number: (Provided also that the State Government or any authority or office empowered by the State Government in this behalf may exempt by general or special order and subject to such conditions as may be specified, the sale, gift or bequest or industrial, residential or commercial purposes, from this restrictions). (b) such sale, gift or bequest is by a number of a Scheduled Caste in favour of a person who is not a member of a Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. (10). The words used are ``sale, gift or bequest. each of which act is voluntary. (10). The words used are ``sale, gift or bequest. each of which act is voluntary. If we consider the dictionary meaning of these words of ``sale, gift or bequest, it will be seen that the action is necessarily voluntary, such volition of the scheduled caste can be brought about by collusive means and therefore, in spite of fact that it has been taken place with volition of the scheduled caste or tribe member, the sale, gift or bequest is declared void. (11). It cannot be said that a Legislature of Rajasthan therefore, not aware of the meaning of words, it has used. It also cannot be said that it was not aware that the transfer of land can take place by means other than sale, gift or bequest for incident. There can be an agreement of sale which can be specifically performed by decree, such decree will not be covered by Sec. 42 if it is between persons not belonging to scheduled caste. (12). The legislation therefore need not think it fit to cover decrees of court of competent jurisdiction which may have the result of transfer the land to Khatedar tenant. To read the words a decree of court of competent jurisdiction in Sec. 42 is to read something more in that section than that has been put by the legislator. Such judicial activism in my opinion is impermissible in law. The language of Sec. 42 does not permit such violant interpretation. In my opinion, therefore, the judgment referred to above reported in 1998 is per inquarium of Sec. 42 and not binding on me. In my opinion, the provisions of Sec. 42 are not attracted in the present case as the transfer of land has been made in execution of a decree passed by a court of competent jurisdiction. There is nothing on record to show that there has been a challenge to this decree by a person belonging to scheduled caste. There is no explanation as to why the transfer is challenged at such belated stage after 18 years. The orders impugned in this petition holding the decree bad as violative of Sec. 42 are therefore, illegal as they violate the provisions of Sec. 42, The transfer made by decree is neither a sale, gift or bequest as envisaged by Sec. 42 and therefore, provisions of Sec. 42 are not attracted. The orders impugned in this petition holding the decree bad as violative of Sec. 42 are therefore, illegal as they violate the provisions of Sec. 42, The transfer made by decree is neither a sale, gift or bequest as envisaged by Sec. 42 and therefore, provisions of Sec. 42 are not attracted. Both Board of Revenue and Collector legally wrong in holding that the transfer was under the provisions of Sec. 42 and it is libalbe to be set aside. (13). In the result, the petition succeeds and is allowed. The orders passed by the Board of Revenue and Collector are quashed.