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2009 DIGILAW 1905 (RAJ)

State of Rajasthan v. Bega Ram

2009-09-01

G.K.TIWARI

body2009
TIWARI, M.—This is a reference made by Collector Sriganganagar under Section 232 of the Rajasthan Tenancy Act, 1955 (in short, 'the Act') against the impugned judgment dated 4.12.1985 of Sub-Divisional Officer, Suratgarh. 2. Briefly stated, the facts are that Sub-Divisional Officer, Suratgarh conferred khatedari rights by the impugned judgment on the non-petitioner under Section 15-AAA of the Act in respect of the command land bearing Stone Nos. 211/212, 211/213, 211/214 and 211/222 measuring 31 bighas located in Chak No. 2 K.S.M. The Collector Sriganganagar, on the report of Tehsildar, called for the record of the Sub-Divisional Officer and examined legality and propriety of the order passed under Section 232 of the Act and found that the impugned order was illegal and erroneous in violation of the provision of the Act. So he made a reference to the Board for setting aside of the judgment dated 4.12.1985 of Sub-Divisional Officer Suratgarh. Thereupon the learned Single Bench of this Court by its judgment dated 6.5.1992 allowed the reference and set aside the impugned judgment of the Sub-Divisional Officer. Aggrieved against the judgment of this Court dated 6.5.1992 the non-petitioner filed an application under Order 9 Rule 13 of the Civil Procedure Code for setting aside of the impugned ex parte judgment, which was allowed by the Court and the ex parte judgment dated 6.5.1992 was rescinded and the reference was taken back on the record for re-hearing. 3. I have heard the learned counsel of both the parties. 4. The learned Dy. Govt. Advocate pleaded that the disputed land situated in command area was government land before 15.10.1955 i.e. the date for the commencement of the Act. The non-petitioner was neither an allottee of the land prior to 1955 nor was in occupation of this land as a tenant. The first cultivation said to be made on the disputed land was in Svt. 2014 i.e. in the year 1957 hence the non-petitioner Bega Ram was not entitled to conferment of any khatedar right under Section 15AAA of the Act. The non-petitioner Bega Ram himself has admitted the fact in his oral evidence that the first temporary allotment made to him was in Svt. 2014. The application made by the non-petitioner for permanent allotment of he land was rejected on 21.2.1978. Nonetheless, Sub-Divisional Officer Suratgarh conferred khatedari right on Bega Ram in flagrant violation of the provisions of the Act. The non-petitioner Bega Ram himself has admitted the fact in his oral evidence that the first temporary allotment made to him was in Svt. 2014. The application made by the non-petitioner for permanent allotment of he land was rejected on 21.2.1978. Nonetheless, Sub-Divisional Officer Suratgarh conferred khatedari right on Bega Ram in flagrant violation of the provisions of the Act. There are lot of cuttings in the record which shows the record was tempered to show his false possession on the land. Besides it, the non-petitioner was not a landless person and as such was neither entitled for allotment nor conferment of khatedari rights in respect of the disputed land. As such the impugned illegal order of Sub-Divisional Officer should be set aside. 5. Opposing the contentions of the Dy. Govt. Advocate, the learned counsel for the non-petitioner pleaded that the reference under consideration has been made by District Collector by post; the reference has not been presented in person by Collector or any Government advocate. Thus, this reference cannot be said to have been legally presented in the Court as per provision of Rule 35 of the Rajasthan Revenue Court Manual (Part-I) according to which it is mandatory that the application shall be presented to the Board by the party in person or his advocate and not through post. According to Schedule III of the Act 'reference' under Section 232 of the Act is shown as an application at Serial No. 79; so reference is an application which has not been legally presented before the Board; as such it is not maintainable and as such it should be dismissed on this ground only. 6. The Dy. Government Advocate submitted in rebuttal of the legal objection of the learned counsel for the non-petitioner that Rule 35 of the Revenue Court Manual (Part-I) does not apply in case of any appeal or application for which separate provision is provided. For 'reference' there is a separate provision of Section 232 of the Act in which Collector can call for the record of the subordinate Court for examination and 'refer' the case with his opinion for orders of the Board of Revenue. The term 'refer' does not mean personal presentation by the party. The Collector can refer the case under Section 232 of the Act by post also. The term 'refer' does not mean personal presentation by the party. The Collector can refer the case under Section 232 of the Act by post also. Section 232 of the Act is a special provision of reference on which provision of rule 35 of Revenue Court Manual (Part-I), which is meant for other ordinary application, does not apply. It is also meant for other ordinary application, does not apply. It is also contended that the procedure is meant for imparting justice and not for impeding it. The case like this should be decided on merit rather than on technical consideration. 7. I have given thoughtful consideration to the rival contentions, perused the opinion of the Collector, the order of Sub-Divisional Officer and gone through the record. 8. At the very outset, I would like decide the objection raised by the learned counsel for the non-petitioner that the reference is not maintainable as it is not presented in accordance with the provision of Rule 35 of the Revenue Court Manual (Part-I). For the sake of convenience the Rule 35 of the Revenue Court Manual (Part-I) is reproduced below: "35. "Mode of presenting applications.—Except as provided otherwise every appeal or application to the Board shall be presented by the party in person, his recognised agent, or his advocate, pleader, vakil or revenue agent; it shall not be received from any other persons not through the post. The name of the person who presents the application as well as the date shall be written on it." The above cited rule begins with phrase 'except as provided otherwise ..... 'that is, if there is a provision to the effect elsewhere in the Act the same would prevail. Section 232 of the Act runs as below: "232. The name of the person who presents the application as well as the date shall be written on it." The above cited rule begins with phrase 'except as provided otherwise ..... 'that is, if there is a provision to the effect elsewhere in the Act the same would prevail. Section 232 of the Act runs as below: "232. Power to call for record and refer to the Board.—The Collector may call for and examined 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 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 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". Perusal of the above cited provision of Section 232 of the Act shows that Collector simply 'refers' the case with his opinion for orders of the Board when he is satisfied that the impugned order or decree passed fails the test of legality, propriety and regularity of proceedings. The personal presentation of such reference by Collector or his advocate is not fatal to the case as 'reference' is a matter between the Collector and the Board. However, the affected parties are also given opportunity of hearing in keeping with the principle of natural justice before taking any decision on the 'reference' made by the Collector. Section 232 of the Act is according to the intent and desire of he legislature, contained in the principle body of the ct; whereas Rule 35 is a procedural aspect contained in Rajasthan Revenue court Manual (Part-I) which is framed by the Board in exercise of powers conferred by Section 261 of the Rajasthan Land Revenue Act, 1956. Thus, provision of Section 232 of the Act cannot be defeated simply for non-compliance of a procedural Rule of 35 of Revenue Court Manual. Thus, provision of Section 232 of the Act cannot be defeated simply for non-compliance of a procedural Rule of 35 of Revenue Court Manual. Additionally, a reference like this in which Collector seeks to highlight gross should not be decided simply on a technical and procedural ground. Procedure is a handmaiden of justice which should act in furtherance of the justice; procedural and technical aspect should not be allowed to strangulate the justice. As such the objection raised by the learned counsel for the non-petitioner is untenable. I would, therefore, like to decide the matter on merit. 9. Perusal of the record available on the file of the case shows that the non-petitioner had earlier applied for allotment of the disputed land under the Rajasthan Colonisation (Allotment and Sale of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 (in short 'the Rules of 1975') but his application was rejected on the ground of ineligibility on 21.2.1978. There is not an iota of evidence to show that the non-petitioner was in occupation of the disputed land prior to the commencement of the Act, i.e. 15.10.1955. Under Section 15AAA of the Act only a person who was holder of khudkasht, or an occupancy tenant, or a maurusidar or a khatedar tenant or a tenant with transferable and heritable rights whether recorded or unrecorded in annual register then current can be conferred upon with the khatedari rights. But in the instant case the non-petitioner has neither proved that he was a holder of khudkasht, nor an occupancy tenant, nor a maurusidar, nor a khatedar tenant, nor a tenant with transferable and heritable rights. Available revenue record including a copy of receipt of 'Lagan' show that non-petitioner was in the temporary cultivation of the disputed land for the first time in Svt. 2014 (corresponding to year 1957-58) as such the non-petitioners is not entitled for conferment of khatedari right under Section 15AAA of the Act. It is also revealed that a number of cuttings and crosses are made in the revenue record in a bid to temper the record and forge evidence of possession. The Collector has especially drawn attention to this illegality and impropriety of the conduct. It is also revealed that a number of cuttings and crosses are made in the revenue record in a bid to temper the record and forge evidence of possession. The Collector has especially drawn attention to this illegality and impropriety of the conduct. When the non-petitioner was not even considered entitled for simple allotment of the land it was grossly illegal and unjust on the part of Sub-Divisional Officer to confer khatedari right on him under Section 15AAA of the Act in arbitrary manner when provisions of Section 15AAA of the Act do not apply at all to the non-petitioner. It appears simply to be a bid to grab 31 bighas of Government land located in precious command area with official connivance. As such the impugned judgment dated 4.12.1985 deserves to be quashed. 10. Resultantly, the reference is allowed and the impugned judgment dated 4.12.1985 of Sub-Divisional Officer, Suratgarh is set aside and the impugned land bearing Nos. 211/212, 211/212, 211/213, 211/124 and 211/222 measuring 31 bighas located in Chak No. 2 K.S.M. are ordered to be recorded as Government land revenue record. Pronounced.