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2005 DIGILAW 33 (RAJ)

State of Rajasthan v. Teja

2005-01-04

N.N.MATHUR, R.P.VYAS

body2005
Honble MATHUR, J.–This Special Appeal is directed against the judgment of the learned Single Judge dt. 4.4.1997, whereby he allowed the writ petition filed by the respondent Teja and set- aside the order of the Board of Revenue dt. 18.7.1992 following the Division Bench judgment of this Court in Anandi Lal vs. State of Rajasthan (1). (2). Briefly stated the facts of the case are that the first respondent Teja filed a declaratory suit under Sec. 88 of the Rajasthan Tenancy Act, 1955, hereinafter referred to as ``the Act of 1955, against Chhoga and fourth respondent Bhera in the Court of Assistant Collector, Bhinmal. He claimed to be in the cultivatory possession of 58 bighas and 19 biswas of land in Khasra No. 100 in village Metriwada, District Jalore, much prior to 15.10.1955 i.e., before coming into force the Act of 1955. Thus, according to him, he became khatedar tenant of the land in view of Sec. 15 of the Act of 1955 but at the time of first settlement, the said land was wrongly entered in the name of Chhoga, father of respondent No. 3, who was working as his labourer. The said land was later-on transferred to the fourth respondent. According to first respondent Teja, it was a paper transaction and the possession of the land was never transferred to the fourth respondent Chhoga, father of respondent No. 3, as he himself was not having possession of the said land. Thus, the first respondent asserted that he was in cultivatory possession of the said land. After detailed enquiry, the suit was decreed in favour of the first respondent by the judgment of the Assistant Collector, Bhinmal dt. 5.7.1979. Accordingly, the land was mutated in the name of first respondent under Mutation No. 322 dt. 16.8.1979. After 13 years, the Collector Jalore made a reference u/S. 232 of the Act of 1955 to the Board of Revenue for setting aside the decree & judgment passed by the Assistant Collector, Bhinmal dt. 5.7.1979. The Board of Revenue accepted the reference by judgment dt. 18.7.1992, which came to be set- aside by the impugned judgment of the learned Single Judge dt. 4.4.1997. (3). It is contended by Shri H.R. Soni, learned Additional Government Advocate, that the judgment of the learned Single Judge is in conflict with the subsequent decision of this Court in State of Rajasthan vs. Board of Revenue (2). 18.7.1992, which came to be set- aside by the impugned judgment of the learned Single Judge dt. 4.4.1997. (3). It is contended by Shri H.R. Soni, learned Additional Government Advocate, that the judgment of the learned Single Judge is in conflict with the subsequent decision of this Court in State of Rajasthan vs. Board of Revenue (2). (4). The controversy in both the cases, referred-to above, pertains to exercise of powers by the Board of Revenue after lapse of number of years u/S. 82 of the Rajasthan Land Revenue Act, 1956, hereinafter referred-to as ``the Act of 1956 and Sec. 232 of the Act of 1955. (5). For convenience, the provisions of Sec. 82 of the Act of 1956 and Sec. 232 of the Act of 1955 are extracted as follows: ``82 Power to call for records and proceedings and reference to State Government or Board.–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 orders as it thinks fit. 232. 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 proceedings 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. (6). A bare reading of the aforesaid provisions shows that no period of limitation is prescribed for exercise of revisional powers by the Board of Revenue. The Division Bench of this Court in Anandilals case (supra), after referring-to several decisions of the Apex Court, held that ordinarily, the revisional power u/S. 82 of the Act of 1956 and u/S. 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. It would be convenient to extract para-24 from the judgment as follows: ``24. 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 u/S. 82 of the Act of 1956 and u/S. 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. (7). The Court further held that simply because the provision of a particular Statute does not provide for limitation, the authority on whom the power is conferred is not free to exercise the power at any time. The authority on whom the power is conferred should exercise the same in a reasonable manner and within reasonable time. The exercise of power after inordinate delay is unreasonable and arbitrary exercise of power. It would be void u/Art. 14 of the Constitution of India. The authority on whom the power is conferred should exercise the same in a reasonable manner and within reasonable time. The exercise of power after inordinate delay is unreasonable and arbitrary exercise of power. It would be void u/Art. 14 of the Constitution of India. The Anandilals case (supra), has been referred in the subsequent Division Bench judgment of this Court in Mangilal vs. State of Rajasthan (3). It would be convenient to extract para-12 of the judgment, which reads as follows: ``12. In Anandi Lals case (supra), this Court has simply said that revisional power should not be exercised after a long time, `ordinarily, meaning thereby in exceptional circumstances, the power can be exercised even after inordinate delay e.g. in a case where an order under challenge has been obtained by fradulent practice, as such the order is void and nonest. The issue of fradulent practice will be discussed at a later stage, however, there being no terminus qua to reckon the period for the purpose of considering delay and laches, issue of delay would not arise. Thus, we are of the considered opinion that a case where order has been obtained by fraud etc., the power of reference can be exercised even after an inordinate or unreasonable delay, whenever it is brought to notice of the competent authority but it should not be after an unreasonable delay from the date on which the fact is brought to the notice of the authority concerned. (8). Having read both the judgments, we do not find any conflict in two decisions. In the subsequent judgment, the Division Bench following the decision in Anandi Lals case (supra), held that where the order has been obtained by fraud etc., the power of reference can be exercised even after an inordinate and unreasonable delay. Infact, Anandi Lals case (supra), provides complete guidelines as to exercise of powers by the Board of Revenue u/S. 82 of the Act of 1956 and Sec. 232 of the Act of 1955. It is of-course true that in para-24, the Court in terms said that ordinarily the revisional power u/S. 82 of the Act of 1956 and u/S. 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. However, it has been explained in para-25 as follows: ``25. However, it has been explained in para-25 as follows: ``25. However, we make it clear that in case where fraud is alleged and public interest is shown to be suffering on account of collusion between the public officers and the private party, this revisional power may be exercised even after a period of one year. However, there should be satisfactory explanation for the exercise of revisional power after reasonable length of time. In view of this position of law, whether the land was Murti Maufi land of Laxminarayan Temple, is not of much relevance. Whatever be the nature of the land, after lapse of unreasonably long time, the revisional power could not be exercised by the authorities concerned. (9). In Anandi Lals case (supra), the Division Bench has taken note of the fact that 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 the tenants (Sic tenancy)/khatedari rights over the land. It was further observed that to permit the exercise of revisional powers u/S. 82 of the Act of 1956 and/or u/S. 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. The Court took the practical view of the matter observing that 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 the is in occupation of the land, he would have entered into several transactions on that basis and made many commitments. In para 25, it is observed that such a power can be exercised even after one year in exceptional cases. Thus, such power can be exercised even after one year not simply in a case of illegality in transaction or fraud simplicitor but where the illegality or fraud is alleged and further it is shown that on account of collusion between the public officers and the private party, the public interest has suffered. Further, this aspect is required to be explained by the revisional authority invoking such power. Thus, such powers cannot be invoked for impse dixit reasons. (10). Further, this aspect is required to be explained by the revisional authority invoking such power. Thus, such powers cannot be invoked for impse dixit reasons. (10). In the instant case, while it is true that the subject transfer is in violation of Sec. 42b of the Act of 1955 but that, in itself, is not sufficient. As the respondent has acquired tenancy/khatedari rights and continued in possession of the land for number of years, his rights cannot be called in question after unreasonable delay in absence of a positive case of fraud on account of collusion between the public officer and the private party. The Collector before invoking the revisional power, has not recorded any reasons to the effect that illegality in transfer as a consequence of fraud between the public officer and the private party has suffered public loss. In our view, the Board of Revenue has committed error in accepting the reference made by the Collector without satisfying the pre-requisites. Learned Single Judge has rightly set-aside the order of the Board of Revenue following the decision of the Division Bench of this Court in Anandi Lals case (supra). (11). In view of the aforesaid, the Special Appeal being devoid of merit, stands dismissed.