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2005 DIGILAW 1521 (RAJ)

Kehar Singh @ Kaur Singh v. Mukh Ram

2005-05-20

A.K.PUROHIT

body2005
PUROHIT, MEMBER—This is an application under Section 221 of the Rajasthan Tenancy Act, 1955 (hereinafter in short to be referred as the Act of 1955) against the order of Sub-Divisional Officer, Sriganganagar dated 17.12.2004. (2). Briefly, the facts of the case are that applicants father Mohar Singh and Darshan Singhs sons of Mukhtyar Singh purchased 6.5 bighas land and Mukhtyar Singh & Kehar Singh purchased 6.5 bighas land of old murabba No. 62 and now new murabba No. 19 from late Gopi Ram Boari by registered sale deed dated 6.7.1971 which was registered on 18.8.1971. This land was purchased for valuable consideration worth Rs. 25,000/- which was paid to the seller. It is claimed that from the date of purchase, the purchasers remained in possession of the land and after their death, the present applicants who are sons of purchasers, are in possession of the land. Applicants have further submitted that the above sale was not prohibited under Section 42 of the Act of 1955 because seller was not the member of scheduled caste in the year 1971 when this transaction took place. It is further stated in the application that State of Rajasthan filed a suit under Section 175 of the Rajasthan Tenancy Act against purchasers and seller on the ground that seller Gopi Ram is member of scheduled caste and the purchasers are members of non-scheduled caste. Therefore, the transaction is void and in the violation of Section 42 of RT Act. This suit filed by the State of Rajasthan under Section 175 was dismissed by S.D.O., Sriganganagar by his order dated 17.11.1980 on the ground that seller was not member of the scheduled caste in the year 1971 when transaction took place. It is stated that caste Boari was not scheduled caste at the time of transaction and it was included in the list of scheduled caste in the year 1978. (3). Thereafter, seller Gopi Ram, his wife Rukma and daughters Ratni and Pemi and son Mohan Kumar filed an application under Section 19(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 asking for the possession. This application was filed on 30.9.1993 before the the District Rehabilitation Officer, Sriganganagar which is stated to be still pending before him. The next date of hearing as informed by the applicant is 3.1.2005. This application was filed on 30.9.1993 before the the District Rehabilitation Officer, Sriganganagar which is stated to be still pending before him. The next date of hearing as informed by the applicant is 3.1.2005. It is further stated that the non-applicants filed an application before Sub-Divisional Officer-cum-Camp Incharge in the Compaign Administration At Your Door on 17.12.2004 praying that the possession of the land in question be handed over to them and the present applicants be dispossessed from the land in question. This application was marked to the Tehsildar, Sriganganagar in the Compaign who ordered the Patwari to dispossess the applicants and hand over the possession of the disputed land to the present non-applicants. It is further stated by the applicants that the order was issued to the Girdawar of the area to dispossess the present applicants and handover the possession to the non-applicants. In compliance of this order, Patwari has given possession of land in question to the present non-applicants. The present applicants assertion is that this possession was given only on the paper whereas the applicants are still in physical possession of the land in question. The present applicants filed an appeal before the Revenue Appellate Authority, Sriganganagar against the order of 17.12.2004 passed by the Sub-Divisional Officer (Revenue), Sriganganagar and this appeal was dismissed by the S.D.O. vide his order dated 28.12.2004 on the ground that it has no jurisdiction to hear this appeal. The RAA while dismissing the appeal of the applicants has observed that the sale of the disputed land is gair khatedari land of Rehabilitation Deptt. and a matter under Section 19(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is pending; therefore, this Court has no jurisdiction is such matter. (4). This application was filed on 3.1.2005 and this Court on 6.1.2005 has admitted the application and passed the order to the effect that operation of the order dated 17.12.2005 has been stayed. Notices were issued to the non-applicants and Mr. Vijay Soni, Advocate has appeared on behalf of the non-applicants. The record was called which has been received. (5). (4). This application was filed on 3.1.2005 and this Court on 6.1.2005 has admitted the application and passed the order to the effect that operation of the order dated 17.12.2005 has been stayed. Notices were issued to the non-applicants and Mr. Vijay Soni, Advocate has appeared on behalf of the non-applicants. The record was called which has been received. (5). The learned counsel for the applicants has argued that the application filed by the non-applicants dated 17.12.2004 was not maintainable before the S.D.O. as it was barred by the doctrine of res-judicata because the matter in controversy was already decided by the competent Court on 17.1.1980 while deciding the application filed by the State Government under Section 175. The Counsel for the applicants further argued that the application dated 17.12.2004 was also barred by Section 10 of CPC because the matter was pending before the District Rehabilitation Officer. It has also been argued that neither an opportunity of hearing was given to the applicants nor any enquiry was made regarding the facts mentioned in the application. It is further argued that since land in question belongs to Rehabilitation Deptt., the S.D.O., Tehsildar or the Patwari has not any jurisdiction either to entertain the applications or to pass any order on application. | (6). The learned counsel for the non-applicants has argued that this application filed by the applicants under Section 221 of the Rajasthan Tenancy Act is not maintainable because the powers under Section 221 is an extraordinary power of the Board of superintendence & control over the subordinate Courts and in present case, the applicants without existing (sic exhausting?) the remedy available to him have approached the highest Revenue Court of appeal/revision/reference in Rajasthan under Section 221 and the present one is not a case in which the Board requires to exercise this extraordinary power. He has further argued that admittedly the disputed land belongs to the Rehabilitation Deptt. Therefore, this land is under the jurisdiction of the Central Govt. He has further argued that admittedly the disputed land belongs to the Rehabilitation Deptt. Therefore, this land is under the jurisdiction of the Central Govt. and an application under Section 19(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is pending before the S.D.O. who is also an officer authorised to deal with such matters and if any order has been passed by the S.D.O. exercising the powers of District Rehabilitation Officer, the alternative remedy before the applicant is to file the appeal before the Rehabilitation Commissioner and not this application under Section 221 of the Tenancy Act. He has submitted that the Revenue Appellate Authority was right in dismissing the appeal of the applicants on the ground of lack of jurisdiction. (7). I have heard the arguments of both the counsels under Section 221 of the Rajasthan Tenancy Act. All subordinate Revenue Courts are under the general superintendence & control of the Revenue Board and the Board is the highest Revenue Court for appeal, revision & reference in Rajasthan as provided under Section 8 of the Rajasthan Land Revenue Act, 1956. Before coming into force of the Tenancy Act, Rajasthan Board of Revenue Ordinance, 1949 was in force which has been repealed after coming into operation of the Land Revenue Act and Tenancy Act under Section 12 of the Ordinance general superintendence and control over the Revenue Courts and the officers vested in the Board and such Courts and Officers were subordinate to the Board. In Harchand vs. Board of Revenue (1953 RLW 280) Section 12 of the Ordinance came up for consideration and it was observed according to the provisions of this section power of superintendence has been vested in the Board and it is open to the Board to exercise its power of superintendence over all its Subordinate Courts in order to regulate the functioning of subordinate Courts so as to keep them within their respective sphere of jurisdiction. If a subordinate Courts disregard any specific provision of law and does something illegal it is open for the Board to interfere and to set the matter right. In Karan Singh vs. Board (1962 RRD 141) an argument was advanced before the High Court that Section 9 of the LR Act is limited to the executive control and superintendence of the Board over subordinate Revenue Courts and it does not apply to the judicial proceedings. In Karan Singh vs. Board (1962 RRD 141) an argument was advanced before the High Court that Section 9 of the LR Act is limited to the executive control and superintendence of the Board over subordinate Revenue Courts and it does not apply to the judicial proceedings. Before the Rajasthan Tenancy Act came into force, the Board was invested with the corresponding powers of superintendence and control under Section 12 of the Rajasthan Board of Revenue Ordinance, 1949. The Larger Bench of the Board considered the Section 9 of the LR Act in State vs. Mathura Lal (1975 RRD 154) again in Kalyan vs. Kalyan (1981) RRD 429) a Larger Bench (five members of the Board, though dealing with the question whether in case of disobedience of the stay orders of the Court contempt of Court proceedings can be taken by the Board. In that judgment in para 13, it was observed that under Section of the L.R. Act the Board has been given powers of general superintendence over all subordinate Revenue Courts. In the same manner as the High Court has the powers of general superintendence on all subordinate Courts under Article 227 of the Constitution of India. These powers of general superintendence and control are qualified by other provisions of the Act, these powers generally should not be exercised where a party has remedy by way of appeal or revision to the Board and these powers are to be exercised sparingly in extraordinary case where interest of the justice so required. (8). It will be appropriate here to reproduce Section 221 of the Rajasthan Tenancy Act and Section 9 and the Land Revenue Act:— Section 221 - Rajasthan Tenancy Act: Subordinate of Revenue Court - (a) 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- (b) All Additional Collectors, Sub-Divisional Officers, Asstt. Collectors and Tehsildars in a District shall be subordinate to the Collector thereof, (c) All Asstt. Collectors and Tehsildars in a District shall be subordinate to the Collector thereof, (c) All Asstt. Collectors, Tehsildars and Naib Tehsildars in a Sub-Division shall be subordinate to the Sub-Divisional Officer thereof and (d) All Additional Tehsildar and Naib Tehsildars in a Tehsil shall be subordinate to the Tehsildar thereof." Section 9—Rajasthan Land Revenue Act :-— General superintendence of subordinate Revenue Courts— Subject to other provisions of this Act, the general superintendence and control over all Revenue Courts and over all revenue officers shall be vested in, and all such Courts and officers shall be subordinate to the Board." Section 9 of the Land Revenue Act and Section 221 of the RT Act are similar provisions but with some difference of words. This difference is that under Section 9 of LR Act powers of superintendence and control have been qualified by other provisions of the Act" whereas under Section 221 RT Act there is no such qualification. With this difference of language, the scope of Section 221 of the Tenancy Act is similar and this difference of words makes scope of Section 221 Tenancy Act wider that Section 9 of Land Revenue Act. Although the Board has jurisdiction to set aside the erroneous orders of the subordinate Courts under Section 221 Tenancy Act but at the same time this section is not at all analogous to Article 227 of the Constitution of India. The power of superintendence and control under Section 221 of the Tenancy Act includes power to revise judicial orders also of the subordinate Courts in appropriate cases, but such power of superintendence would generally not be exercised where a party has a remedy by way of appeal and revision and did not avail it even though power may be there. (9). The question arises then that control and superintendence Board has over the subordinate Courts? For this, reference may be made to the meaning control and superintendence are synonymous and as per the Webster Third New Dictionary, 1967 edition page 2294 column 2, word superintendence means an act or function of superintending carry and oversight for purpose of direction; to check up constantly also. Law Lexicon of T.P. Mukherjee and K.K. Singh (Volume-1, 1982 edition) page 419 column No. 2, the meaning of control has been given, thus the word control according to dictionary means interalia restraint or check. Law Lexicon of T.P. Mukherjee and K.K. Singh (Volume-1, 1982 edition) page 419 column No. 2, the meaning of control has been given, thus the word control according to dictionary means interalia restraint or check. Prohibition is a kind of restraint and the above meaning would thus go to show that word control is comprehensive to include the power to prohibit. According to Corpus Juril. Secundum, volume 18 the word control when broadly used, may embrace every form of control, actual or legal, direct or indirect, negative or affirmative. It has further been observed "to control" has been said to import a check by a counter-check or registered or duplicate account; but gradually an enlarged meaning, with the connotation of restraint over the subject of control, has been given to the term and so it has been variously defined as meaning to check, curb, hold from action hold in restraint or check, keep under check, or to restraint; to counteract or hinder to direct; or to exercise a directing restraining or governing influence over, to govern, regulate, or rule to have authority or power over, or have under command, to menage, to subject to authority. It has also been provided in the same book "The observation further go to state that under certain circumstances the word control implies the power to prohibit. In case The Queen vs. The Croydonand Narwood Tramways Co. (1816) 18 QBD 39, it was observed by Lindley, L.J. as under: of 1 prohibit a man from doing thing, I control him to that extent". (10). The Larger Bench in RRD 1984 page 701 Krishna vs. Pyara considered the meaning of these words superintendence and control expensively, as provided in Prems Judicial Dictionary Volume-1, 1964 edition at page 104 and Venkataramiyas Law Lexicon (Vol. II Edition 1971) at page 1632 column I and came to conclusion that the power of superintendence and control of the subordinate Court which vests in Board is supervisory and to see that subordinate Court acts within the bound of their authority for that end the powers can be exercised to check, curb or restraint or regulate the subordinate Courts and this power is to be exercised sparingly and not in routine manner. (11). (11). The Board of Revenue in judgment Chhotu Ram vs. Ruga Ram reported in 2000 RBJ page 349 has held that under Section 221 RT Act, the Board of Revenue has general power of superintendence and control over the Revenue Courts, both administrative as well as judicial by observing that the provisions of Section 221 RT Act are not subject to other provisions of the Act unlike corresponding the provisions under Section 9 of LR Act because it is clear from the language of Section 221 RT Act that the Board of Revenue has general power of superintendence and control over the Revenue Courts, both administrative as well as judicial powers. It is open to the Board of exercise its power of superintendence in order to regulate functioning of subordinate Courts so as to keep them within their respective sphere of jurisdiction. If the subordinate Court disregards the specific provision of the law and does something illegal, it is open to the Board to interfere and set the matter right. In this judgment after perusing the judgment, it is clear that this was a case in which on the adjudication that Sub-Divisional Officer, Jaipur in revenue suit No. 108/87 by his judgment & decree dated 29.6.1987 has passed an illegal order in hot haste committing grave illegality and this order of Sub-Divisional Officer was challenged directly in the Board of Revenue under the supervisory jurisdiction given it under Section 221 RT Act, whereas in the present case, the applicant instead of approaching the subordinate authority/Court to get redress, has directly approached the Revenue Board. Therefore, the finding given in Chhotu Ram vs. Ruga Ram does not at all apply in the present controversy of the case. (12). Section 221 of the Rajasthan Tenancy Act as reproduced herein-above, provides that the Board shall have general power of superintendence & control over all Revenue Courts which are subordinate to the Board. "Board" means Board of Revenue of Rajasthan State defined in Clause VI of the Rajasthan Tenancy Act which is now constituted under Section 5 of the Rajasthan Land Revenue Act. The powers of general superintendence over all Revenue Courts are vested in Board by virtue of this Section 221 as well as Section 9 of the Rajasthan Land Revenue Act. "Board" means Board of Revenue of Rajasthan State defined in Clause VI of the Rajasthan Tenancy Act which is now constituted under Section 5 of the Rajasthan Land Revenue Act. The powers of general superintendence over all Revenue Courts are vested in Board by virtue of this Section 221 as well as Section 9 of the Rajasthan Land Revenue Act. Such power provided under Section 221 to set aside orders of the subordinate Revenue Courts, it is condition precedent that such orders of subordinate Revenue Courts are either in clear breach of provisions of law or the Board considers it expedient to use its power of superintendence & control. In such a situation, the Board has a jurisdiction to set aside the orders of the subordinate Courts after coming to the conclusion that the interest of the justice requires exercise of such powers as it has been held in ILR (1952) (2) Rajasthan page 813, ILR (1955) (5) Rajasthan page 55, AIR 1976 Supreme Court page 2446 and Fateh vs. State RRD 1981 page 356. (13). Section 221 confers powers upon the Board to set aside the orders of subordinate Courts where breach of law is committed and there is an error apparent on the face of the record, but where plaintiff, defendant or any other party aggrieved by an order has a remedy by way of appeal or revision and he failed to avail that remedy and directly approached the Board under Section 221, such power cannot be exercised in his favour. Section 221 is neither a substitute nor by-pass to appeal or revision, any party including the State or private parties having remedy of appeal or revision and if it is not aware of the right, extraordinary powers under Section 221 of the RT Act and under Section 9 of the LR Act could not be exercised rightly. (14). In the present case, it is not disputed that the land in question belonged to Rehabilitation Department and with regard to the possession, an application under Section 19(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is pending and no order with regard to the possession has been passed by the SDO. He has simply marked the application of the non-applicant to Tehsildar. The applicant has challenged this marking of the application by SDO and order of the Tehsildar passed on application. He has simply marked the application of the non-applicant to Tehsildar. The applicant has challenged this marking of the application by SDO and order of the Tehsildar passed on application. On perusing the record, it appears that on 17.12.2004, the SDO has not passed any order, he has just marked it to the Tehsildar and it is the Tehsildar who has ordered to dispossess the present applicant asking Patwari and Girdawar to dispossess the present applicant and hand over the possession to the non-applicants. Therefore, such orders can be challenged before the S.D.O. who also exercise the power under the Act of 1954. Instead of taking recourse under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954, the applicants have approached this Court under Section 221 of the Rajasthan Tenancy Act which, in view, is not the right course. He ought to have approached and pursue the matter before the authorities provided under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954. There is no force in the arguments of the applicants that because of the decision of the application under Section 175 moved by the State, the non-applicants are not entitled to have recourse available to him for the possession of land because the applicant should put these arguments before the authorities under the Act of 1954. In the present case, the applicants free to raise all the questions including the principles of res-judicata and application of Section 10 CPC before the authorities under Act of 1954. Admittedly, the land belongs to the Rehabilitation Department. The provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 apply and the applicant should approach the authorities under Act of 1954 for redressal of any grievance. (15). Under Section 3 of the Act of 1954, various authorities mentioned in the section i.e., Chief Settlement Commissioner etc. have been appointed to perform the functions assigned to them under the Act. Under Section 34 of the Act, there are provisions for delegation of powers of the authorities mentioned in Section 3 and the State Govt. Officer can also be delegated the powers of the authorities mentioned under Section 3 of the Act by virtue of Section 34. have been appointed to perform the functions assigned to them under the Act. Under Section 34 of the Act, there are provisions for delegation of powers of the authorities mentioned in Section 3 and the State Govt. Officer can also be delegated the powers of the authorities mentioned under Section 3 of the Act by virtue of Section 34. The State Officers have been delegated such powers; therefore, the remedy of appeal, revision is provided under the Act and the impugned order which has been provided under Act of 1954 can be challenged before the higher authorities. Although in the present case, the SDO himself has not passed any order but has simply marked the application and the order for dispossession of the applicants has been passed by the Tehsildar. Therefore, the present applicants are free to move before the authorities appointed under the Act of 1954. (16). In the present case, it is not disputed that with regard to the disputed land, an application was filed by the applicant under Section 19(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which is pending; therefore, admittedly the provisions of the Act of 1954 are applicable as per the averments made by the applicant himself and Section 36 of the Act of 1954 bars the jurisdiction of civil and the revenue Courts. Section 36 of the Act provides as under :— "Save as otherwise expressly provided in this Act, no civil Court shall have in jurisdiction to entertain any suit or proceedings in respect of any matter which the Central Government or any other officer or authority appointed under this Act is empowered by or under this Act to determine, no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." The Board of Revenue has considered this aspect of the matter in Nanagram vs. Ram Sharan reported in RRD 1983 page 429 particularly the application of Section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and Section 46 of the Administration of Evacuee Property Act, 1950 and has held that for a matter connected with this Act except the authorities provided under the Act, no other Court has the jurisdiction. (17). (17). In view of above discussions, the present application of applicants under Section 221 of the Rajasthan Tenancy Act deserves to be rejected and as such, hereby dismissed. The applicant is free to approach the concerned authorities under the Act of 1954 for any remedy provided therein. Pronounced in open Court.