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2005 DIGILAW 315 (RAJ)

Bhanwari Devi v. State of Rajasthan

2005-02-03

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-By this writ petition the petitioner is assailing validity and propriety of the Judgment dated 18.07.1990 passed by the Division Bench of Board of Revenue for Rajasthan, Ajmer in Special Appeal No. 127/83/ LR/Bikaner Smt. Bhanwari Devi and ors. vs. Smt. Bhanwri Devi widow of Megh Singh and another. By the Judgment dated 18.07.1990 Division Bench of the Board of Revenue for Rajasthan , Ajmer while accepting the special appeal preferred by Smt. Bhanwari Devi w/o Devi Singh, Jaluram (legal representative of Smt. Hariya Devi), Sunder Devi w/o Balu Singh and Bhagirath Singh s/o Motilal set aside the Judgment dated 27.09.1983 passed by the learned Single Bench of the Board of Revenue for Rajasthan, Ajmer while deciding the second appeal under Section 76 of the Rajasthan Land Revenue Act, 1956. 2. The facts necessary for adjudication of present petition are that jagir of Sh. Roop Singh, Ex- Jagirdar of Thikana Jetsar in district Bikaner was resumed under the Rajasthan Resumption of Jagirs Act. On resumption of jagir a compensation of Rs. 54,779/-was to be payable to Ex-Jagirdar Roop Singh. The sum of Rs. 54,779/-was adjusted against the outstanding dues in a tune of Rs. 72,805/- against the Ex-Jagirdar. Accordingly, the balance amount of Rs. 1825.83 was to be paid to Ex-Jagirdar Sh. Roop Singh. A certificate for recovery of Rs. 1825.83 was issued and was sent for its execution to Sub-Divisional Officer, North Bikaner. A notice was sent to the defaulter and ultimately an order was passed for attachment of immovable property of Ex-Jagirdar Sh. Roop Singh. On being found that there was no property at Jetsar an another order dated 19.03.1965 was passed to the effect that if there was any property of Sh. Roop Singh in the city of Bikaner then the same be attached and the amount due be realised by sale of the said property. In pursuance of the aforesaid order a house of Sh. Roop Singh situated in Mohalla Panwarsar, Bikaner was attached and a proclamation was issued for sale of house. The sale of house was made on 18th, 19th and 20th October 1973. The petitioner was the highest bidder and, therefore, he deposited the requisite amount with the Government and a certificate in this regard was issued in favour of the petitioner. Roop Singh situated in Mohalla Panwarsar, Bikaner was attached and a proclamation was issued for sale of house. The sale of house was made on 18th, 19th and 20th October 1973. The petitioner was the highest bidder and, therefore, he deposited the requisite amount with the Government and a certificate in this regard was issued in favour of the petitioner. The petitioner thereafter, submitted an application to Collector, Bikaner for handing over him possession of the property which was sold to him. 3. The respondents No. 2 to 5 at this stage preferred an application under Section 247 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the Act of 1956) before Sub-Divisional Officer, Bikaner North mentioning therein that they came to know about the sale of the house on 9th May 1974 on receiving a notice from Sub-Divisional Officer for vacation of the premises. It was further stated that they purchased the aforesaid premises from the Ex-Jagirdar much back in the year, 1968. The application submitted by the respondents No. 2 to 5 under Section 247 of the Act of 1956 was dismissed being barred by limitation. An another application was moved by the respondents No. 2 to 5 under Section 247 of the Act of 1956 on 24.09.1974 before the Collector Bikaner with an allegation that the aforesaid sale was not made in accordance with the Rules and, therefore, the sale was not conclusive. This application was also dismissed by the Collector, Bikaner by the order dated 14.01.1975 holding that the objections under Section 247 of the Act of 1956 are required to be filed within a period of 30 days from the date of sale but no such objections were filed in the period prescribed. The Collector, Bikaner while rejecting the application under Section 247 of the Act of 1956 also held that no specific grounds were pressed into service-making the sale illegal and void. The respondents No. 2 to 5 being aggrieved by the order dated 14.01.1975 preferred an appeal before the Revenue Appellate Authority No. 2 Jaipur, Camp Bikaner. The Revenue Appellate Authority by its Judgment dated 24.09.1975 rejected the appeal so preferred. Against the Judgment dated 24.09.1975 the respondents No. 2 to 5 preferred a second appeal before the Board of Revenue, Rajasthan Ajmer. The Revenue Appellate Authority by its Judgment dated 24.09.1975 rejected the appeal so preferred. Against the Judgment dated 24.09.1975 the respondents No. 2 to 5 preferred a second appeal before the Board of Revenue, Rajasthan Ajmer. The second appeal was preferred by the respondents No. 2 to 5 as prescribed under Section 76 of the Act of 1956. The second appeal was also dismissed by leaned Single bench of the Board of Revenue, Rajasthan Ajmer by its Judgment dated 27.09.1983. The validity of the Judgment passed by single bench of Board of Revenue was challenged by the respondents No, 2 to 5 by way of filing special appeal under Section 10 of the Act of 1956 before division bench of Board of Revenue. The division bench of the board of Revenue by its Judgment dated 18.07.1990 accepted the appeal preferred by the respondents and held as under:- "In the premise of the above discussion, we accept this special appeal and set aside the Judgment dated 27.09.1983 passed by the learned S.B. of the Board as well as the order of the Collector, Bikaner dated 14.01.1975 and quash the impugned sale dated 20.10.1973, which was illegally confirmed by the SDO (North), Bikaner in favour of Smt. Bhanwari Devi, respondent No. 1, and remand the case to the Collector, Bikaner with the direction that he shall take necessary steps for recovery of outstanding/amount against the defaulter Roop Singh strictly in accordance with the provisions of Chapter-X of the Rajasthan Land Revenue Act, 1956. The amount deposited by purchaser Smt. Bhanwari Devi, respondent No. 1, shall be refunded back to her in accordance with law." 4. The instant writ petition is preferred by the petitioner assailing the validity and propriety of the Judgment dated 18.07.1990 passed by the Board of Revenue, Rajasthan Ajmer exercising the powers under Section 10 of the Act of 1956. The petitioner has challenged the validity of the order dated 18.07.1990 on various grounds which includes merit of the case as well as jurisdiction of the Division Bench of the Board of Revenue for Rajasthan to entertain an appeal under Section 10 for the Act of 1956 against the order passed by the Single Bench of the Board and deciding the second appeal under Section 76 of the Act of 1956. 5. 5. The contention of the petitioner is that the Single Bench of the Board is vested with jurisdiction to entertain the second appeal against an order passed in appeal by the Commissioner or the Revenue Appellate Authority or the Settlement Commissioner to the Board. The appeal decided by the Single Bench of the Board by the Judgment dated 27.09.1987 is an order made under clause (b) of Section 76 of the Act of 1956. Such an order is not further appealable under Section 10 of the Act of 1956 in light of the provisions contained in Section 10 itself as well as under Rule 8 and Rule 9 of the Rajasthan Revenue Courts Manual, 1956. It is stated that the special appeal under Section 10 of the Act of 1956 is subject to rules made with regard to exercise of jurisdiction by the Court. According to the Counsel for the petitioner a special appeal under Section 10 could be entertained only if rules so provide. The Counsel for the petitioner has placed reliance to Rule 8 and Rule 9 of the Rajasthan Revenue Courts Manual, 1956. Rule 8 and Rule 9 referred to above reads as under:- "Rule 8. Class of cases heard by a Member sitting singly.-The following class of cases may be heard and disposed of by a member sitting singly: .(i) miscellaneous applications; .(ii) applications for setting aside an order of dismissal for default by the Board or an ex parte decision given by the Board: (iii) applications for review of the order and Judgment passed by a single member of the Board; .(iv) references; .(v) applications for transfer of cases; .(vi) revisions; (vii) second appeals to the Board under Clause (d) of Section 76 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of the 1956) [and under Sub-section (2) of Section 23 of the Rajasthan Imposition of ceiling on Agricultural Holdings Act, 1973 (Raj. Act 11 of 1973)]. Rule 9. Class of cases heard by a Division Bench.-The following class of cases shall be heard and disposed of by a Division Bench. .(i) All decrees or orders coming under the consideration of the Board on appeal except those specified in Clause (vii) of R. 8. Act 11 of 1973)]. Rule 9. Class of cases heard by a Division Bench.-The following class of cases shall be heard and disposed of by a Division Bench. .(i) All decrees or orders coming under the consideration of the Board on appeal except those specified in Clause (vii) of R. 8. .(ii) If any case heard by a single member, any question of law or custom having a force of law or of the construction of any document is referred to a Bench for decision. When a case is heard by a Bench of the Board, the decision of such case shall be in accordance with the opinion of the majority of the members." 6. According to Clause (vii) of Rule 8 a single member of the Board of Revenue may hear and dispose of a second appeal preferred to the Board under Clause (d) of Section 76 of the Rajasthan Land Revenue Act, 1956. Rule 9 of the Rajasthan Revenue Courts Manual, 1956 provides the class of cases which may be heard and disposed of by division bench of the Court of Revenue. According to Rule 8 all decrees or orders coming under consideration of the board on appeal except those specified in Clause (vii) of Rule 8 can be heard by division bench. In light of Rule 9, the division bench of the Board of Revenue is having no jurisdiction to hear a special appeal against an order specified in Clause (vii) of Rule 8. In the present case the learned single bench of the Board by the Judgment dated 27.09.1983 decided the second appeal under Clause (vii) of Rule 8. Therefore, in the light of sub-rule 1 of Rule 9 of the Rajasthan Revenue Courts Manual, 1956 the division bench of the Board of Revenue was not having any jurisdiction to entertain, hear and dispose of a special appeal under Section 10 of the Act of 1956. Rule 9(i) of the Manual of 1956 in quite unambiguous terms restricts jurisdiction to entertain a special appeal by division bench of the Board of Revenue against an order passed by the Board in second appeal under Clause (d) of Section 76 of the Rajasthan Land Revenue Act, 1956. 7. Rule 9(i) of the Manual of 1956 in quite unambiguous terms restricts jurisdiction to entertain a special appeal by division bench of the Board of Revenue against an order passed by the Board in second appeal under Clause (d) of Section 76 of the Rajasthan Land Revenue Act, 1956. 7. In view of this legal position, I am of the considered opinion that the Division Bench of the Board of Revenue for Rajasthan, Ajmer was having no jurisdiction to entertain special appeal against the Judgment dated 27.09.1983 passed by the learned Single Bench of the Board of Revenue deciding the second appeal No, 77/75/LR/ Bikaner. The Division Bench of the Board of Revenue was lacking jurisdiction to entertain the special appeal against the order dated 27.09.1983, therefore, the Judgment impugned dated 18.07.1990 is non est in the eye of law. The same is, therefore, hereby quashed. The writ petition succeeds and the Judgment impugned dated 18.07.1990 passed by the Board of Revenue, Rajasthan Ajmer in case No. 127/83/LR/Bikaner is hereby quashed. The cost of the petition is made