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2005 DIGILAW 863 (RAJ)

Subhan Khan v. Board of Revenue

2005-03-18

GOVIND MATHUR

body2005
Honble MATHUR, J.–This petition for writ is directed against the order dated 23.12.1991 passed by Collector, Jalore making reference to the Board of Revenue, Rajasthan, Ajmer u/s. 232 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as `the Act of 1955) and the order dated 10.8.1992 passed by the Board of Revenue, Rajasthan, Ajmer accepting the reference made by the Collector, Jalore under the order dated 23.12.1991. (2). Briefly stated the facts of the case are that the land in khatedari of Jiwala and Chhoga, both sons of Khuma by caste Bheel was declared in the name of Phuse Khan by Assistant Collector, Jalore under a compromise decree dated 31.12.1973 passed in a suit u/s. 88 of the Act of 1955. The Collector, Jalore made a reference u/s. 232 of the Act of 1955 to the Board of Revenue under an order dated 23.12.1991 which was accepted by the Board of Revenue vide order dated 10.8.1992. The Board of Revenue held that in light of provisions of Sec. 42 of the Act of 1955 the compromise between Phuse Khan and Jiwala and Chhoga was not permissible being Jiwala and Chhoga members of Scheduled Tribe. Learned Board of Revenue on the count mentioned above accepted the reference and set aside the judgment and decree of the Assistant Collector, Jalore dated 31.12.1973. (3). It is contended by counsel for the petitioner that the compromise decree, as a consequence of which name of Phuse Khan was entered in khatedari, was passed on 31.12.1973 and, therefore, the Collector, Jalore acted unreasonably while making a reference u/s. 232 of the Act of 1955 by order dated 23.12.1991 i.e., after the lapse of a period of about 18 years. (4). The counsel for the respondent-State has stated that u/s. 232 of the Act of 1955 no limitation is prescribed to exercise the powers by the Collectors as well as by the Board of Revenue. The compromise decree dated 31.12.1973 being non-est in light of the provisions of Sec. 42 of the Act of 1955 was rightly set aside by the Board of Revenue vide the judgment dated 10.8.1992. (5). Shri K.N. Joshi, counsel for the petitioner has substantiated his claim by a Division Bench of this Court in the case of Anandi Lal vs. State of Rajasthan & Ors. (5). Shri K.N. Joshi, counsel for the petitioner has substantiated his claim by a Division Bench of this Court in the case of Anandi Lal vs. State of Rajasthan & Ors. (1), wherein the Court held as under:– ``21.–In view of the settled position of law, as stated above, simply because the provisions of Sec. 82 of the Act of 1965 and Sec. 232 of the Act of 1955 do not provide for the period of limitation, it does not mean that the authority on whom the power is conferred, can invoke the same at any time. This is so because each and every authority on whom the power is conferred, is expected to exercise the same in just and reasonable manner. The concept of exercise of power in a reasonable manner inheres with it the concept of exercising the same within a reasonable time. If the power is not exercised within reasonable time, the invocation of the power after inordinate delay and the exercise of the same after unreasonable length of time, would be unjust, arbitrary and unreasonable. Therefore, the action taken by exercise of such power would be illegal and void. If the requirement of exercise of power within reasonable time is not read into the provisions of Sec. 82 of the Act of 1956 and Sec. 232 of the Act of 1955, then the provision itself would become unconstitutional. It can never be presumed that the legislature intended to confer power on any authority to exercise the same in unjust and unreasonable manner. Therefore, to uphold the constitutionality of the aforesaid provisions, the requirement of exercise of the same power within reasonable period has got to be read into the same. 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. 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. 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 tenants/khatedari rights over the land. 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 imprimature of the Courts on the unreasonable and arbitrary exercise of power. 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 he is in occupation of the land, he would have entered into several transactions on this basis and made many commitments. Therefore, ordinarily revisional powers 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. If this requirement of reasonable length of time is not read into the aforesaid provisions, the provisions would become unconstitutional. 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. 26.–Thus, in view of the aforesaid settled legal position, the Additional Collector as well as the Board of Revenue, could not have exercised the power conferred upon them u/s. 82 of the Act of 1956 and u/s. 232 of the Act of 1955, after a period of about 25 years. Of-course, as laid down by the Supreme Court, the reasonable time and length of reasonable time must be determined by–(i) the facts of the case, and (ii) the nature of the order sought to be revised. (6). Of-course, as laid down by the Supreme Court, the reasonable time and length of reasonable time must be determined by–(i) the facts of the case, and (ii) the nature of the order sought to be revised. (6). In the view of the law laid down by Division Bench of this Court in the case of Anandi Lal (supra), powers conferred upon an authority are always required to be exercised within a reasonable period. The issues settled at one point of time cannot be allowed to remain subject to the review for indefinite period. (7). In the instant case, a compromise decree was passed u/s. 88 of the Act of 1955 by the Assistant Collector, Jalore declaring the petitioner as khatedar of the impugned land. A reference u/s. 232 of the Act of 1955 was made by the Collector, Jalore on 23.12.1991 i.e., about the lapse of a period of 18 years from the date the mutation was made in favour of Phuse Khan. It is true that there is no limitation prescribed u/s. 232 to exercise the powers, however, at the same time it is well settled that these powers are required to be exercised within a reasonable time. (8). The provisions of Sec. 42 are not attracted in the present case as the name of the petitioner was entered as khatedar in execution of a compromise decree passed by a Court of competent jurisdiction and there is no allegation with regard to commission of fraud or forgery by the petitioner by getting his name entered as khatedar. (9). In my considered opinion the Collector Jalore was not right while making a reference u/s. 232 of the Act of 1955 to the Board of Revenue after a lapse of about 18 years. Board of Revenue also erred while accepting the reference after a lapse of such an inordinate delay. (10). In view of it, this petition for writ is allowed. The order Annexure 4 dated 23.12.1991 passed by Collector, Jalore and the order Annexure 5 dated 10.8.1992 passed by Board of Revenue are hereby quashed. (11). No order as to costs.