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2011 DIGILAW 700 (RAJ)

Allarakha v. State of Rajasthan

2011-04-01

DINESH MAHESHWARI

body2011
Hon'ble MAHESHWARI, J.—Having heard the learned counsel for the petitioner and having perused the material placed on record, this Court is satisfied not only about the total baselessness of this writ petition but also of the otherwise intent of the petitioner that he seeks to avoid the consideration of matter on merits in the reference pending before the Board of Revenue for Rajasthan at Ajmer ('the Board'/'the Board of Revenue'). 2. The relevant background aspects of the matter are that by a common order dated 12.03.2003 (Annex.2) as passed in Reference Case No.371/1992 and Reference Case No.435/1992, the Collector and Deputy Commissioner Colonisation, Bikaner, prima facie, found the orders as made by the Assistant Commissioner Colonisation, Kolayat in the two revenue suits, respectively on 25.05.1979 and 24.11.1983, illegal and contrary to the record. The matter relating to the present petitioner Allarakha was considered in Reference Case No.435/1992. It was, inter alia, observed in the said order dated 12.03.2003 (Annex.2) that there had not been any documentary evidence relating to ownership of the land in question; that incongruous statements were made in the two suits by Rahim Khan (the non-applicant in other Reference Case No.371/1992); that it was unjustified to declare Gair Khatedari rights though not envisaged by the Rajasthan Tenancy Act, 1955 ('the Act of 1955') and the Colonisation Act, 1954; and that the statements on record were neither of identification of any specific land nor of the proof of any relevant record. 3. It appears that after drawing the said order dated 12.03.2003, the reference was sent to the Board of Revenue through post; and, in relation to the present petitioner Allarakha, the same was ordered to be registered by the Board on 02.05.2003. As the Government Counsel was appearing for the State, notices were issued to the present petitioner in the reference case so registered in the Board, being Reference Case No. TA/2142/2003/Bikaner. 4. Strangely enough, after appearing in the said reference case before the Board of Revenue, instead of making submissions on merits, the petitioner chose to file an application (Annex.4) with reference to Rule 35 of the Rajasthan Revenue Courts Manual (Part-I), 1956. 4. Strangely enough, after appearing in the said reference case before the Board of Revenue, instead of making submissions on merits, the petitioner chose to file an application (Annex.4) with reference to Rule 35 of the Rajasthan Revenue Courts Manual (Part-I), 1956. It was asserted in the said application (Annex.4) that as per Rule 35 ibid, except as otherwise provided, every appeal or application to the Board is required to be presented by the party in person or by his recognised agent, advocate, pleader, vakil or revenue agent; and the same shall not be received from any person nor through post. It was submitted that the said provisions of Rule 35 were mandatory in nature but had not been complied with for the reference having been sent by post. The petitioner, thus, contended that the reference was required to be dismissed for want of compliance of Rule 35 ibid. 5. In its impugned order dated 31.01.2011, the Board has observed that the Government Counsel was appearing in the reference and the objection as raised was not sustainable; and, while rejecting the application so moved by the petitioner, has posted the reference for arguments on merits. 6. Seeking to challenge the order so passed by the Board, it is again contended on behalf of the petitioner that the said Rule 35 of the Rajasthan Revenue Courts Manual having not been complied with and the reference having been sent by post, the same is required to be rejected. 7. The submissions as made on behalf of the petitioner remain totally baseless. Rule 35 as referred reads as under:- Rule 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 nor through the post. The name of the person who presents the application as well as the date shall be written on it. 8. In the first place, what has been made to the Board in the present case is a reference per Section 232 of the Act of 1955 and not an appeal or application. The powers of the Board to deal with the matter in reference are distinctly and clearly available in the scheme of the Act of 1955. 8. In the first place, what has been made to the Board in the present case is a reference per Section 232 of the Act of 1955 and not an appeal or application. The powers of the Board to deal with the matter in reference are distinctly and clearly available in the scheme of the Act of 1955. So far making of a reference to the Board of Revenue is concerned, it is not like an appeal or application that is preferred so as to require its personal presentation. Rule 35 ibid does not, in its terms, apply to a reference made to the Board. 9. The learned counsel for the petitioner submits that the reference is nevertheless an application as could be seen from item No. 79 of the Third Schedule of the Rajasthan Tenancy Act, 1955 which describes it as: “application for exercise of the power conferred by section 232.” 10. The suggestion as if the proceedings in reference before the Board are those of 'an application' for the purpose of presentation remains equally baseless. Section 232 of the Act of 1955 that provides for making a reference to the Board reads as under:- “232. Power to call for record and refer to the Board – The Collector may call for and examine the record of any case or proceeding decided by or pending before any 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 proceeding, and, if he is of opinion that the order or the 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 and the Board shall, thereupon, pass such orders 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.” 11. It is apparent that the power under Section 232 ibid is essentially with the Collector to call for and examine the record of any case or proceedings decided by or pending before any revenue court subordinate to it for the purpose of satisfying himself as to the legality or propriety of the order or decree passed or to the regularity of the proceedings, and, if he is of opinion that the order or the decree passed or even the proceedings taken by such Court should be varied, cancelled or reversed, he shall refer the case with his opinion for the orders of the Board and the Board shall, thereupon, pass such order as it thinks fit. 12. So far the entry at item No. 79 of the Third Schedule of the Act of 1955 is concerned, in the 3rd column under the heading “Description of suit, application or appeal”, it refers to “an application for exercise of the powers conferred by Section 232” and, while not providing for any period of limitation nor any time from which the period begins to run in 4th and 5th columns respectively, it provides for one rupee as the proper court fees in the 6th column. Obviously, it relates only to the application to be made to the Collector for exercise of the powers under Section 232; and not to the reference itself. 13. So far the reference with the Board of Revenue is concerned, it is a matter registered upon the Collector referring a case with his opinion and seeking orders from the Board. It is very difficult to co-relate the reference as made by the Collector to the Board with the provisions as contained in item No. 79 of the Third Schedule of the Act of 1955. As aforesaid, this item No. 79 relates to an application for making a reference; and not to t he reference itself. 14. Moreover, it is difficult to co-relate a reference made to the Board with anything preferred in the nature of appeal or application, which is to be presented by a person described in Rule 35 ibid and is not to be sent by post. Neither the Collector can be faulted in sending a reference to the Board by post nor the Board can be faulted in receiving and registering the same. Neither the Collector can be faulted in sending a reference to the Board by post nor the Board can be faulted in receiving and registering the same. In any case, when the reference had already been received and registered by the Board and had duly been registered; and then, the parties were duly represented before the Board, such an objection about mode of presentation was not having even a hyper-technical value what to say of substance. 15. This Court is further clearly of opinion that Rule 35 ibid, for its intent and purport, can only be treated as directory in nature and cannot be taken as mandatory to the extent that its non-compliance may be taken as fatal to the competence of proceedings. No case of prejudice to any of the parties is seen particularly when the State and so also the present petitioner are duly represented before the Board. 16. This Court is constrained to comment that by moving such kind of baseless application, the petitioner has amply demonstrated his intention to avoid the proceedings in the reference, and to avoid consideration of the case on merits. Therefore, even while rejecting this writ petition, this Court is further of the opinion that specific order deserve to be made against the petitioner to ensure proper proceedings in reference. 17. The only error on the part of the Board in the order dated 31.01.2011 had been of not saddling the petitioner with heavy costs for moving such a frivolous application. It appears necessary to impose exemplary costs on the petitioner for moving such an application before the Board and then, seeking to invoke writ jurisdiction by way of this baseless petition. The reference having been made at the instance of the State in its Colonisation Department, it is directed that the petitioner shall deposit an amount of Rs. 10,000/- (Rupees Ten Thousand) as costs with the Board; to be paid to the Colonisation Department. It shall be required of the petitioner to deposit this amount of costs on or before the next date fixed in the matter by the Board of Revenue. Further, the Board of Revenue shall not adjourn the proceedings in the reference at the instance of the present petitioner and shall consider the matter on merits on the next date fixed and decide the reference at its earliest. Further, the Board of Revenue shall not adjourn the proceedings in the reference at the instance of the present petitioner and shall consider the matter on merits on the next date fixed and decide the reference at its earliest. It is, of course, made clear that depositing the amount of costs shall be a condition precedent for further participation of the petitioner in the reference proceedings. 18. After dictation of this order, the learned counsel for the petitioner submits that he had only raised a point which has hitherto not been decided and that relates to the statutory provisions as contained in the Rajasthan Revenue Courts Manual and, therefore, the costs be made easy. This Court is not convinced. True it is that the petitioner raised the point with reference to Rule 35 of the Rajasthan Revenue Courts Manual but as already noticed above, the plea had been totally baseless and rather a frivolous one. It may be observed that while all the submissions on facts and law as related with the merits of the case are always considered by the Courts and every party is given fullest opportunity of hearing on merits but still, if the pleas are sought to be taken that have neither any basis nor any relevance and are rather unnecessary and calculated only to avoid the consideration of matter on merits, the harassment they cause to the other side and the toll they take of the Court's time cannot be ignored. Thus, there appears no reason to waive the costs as imposed in this order. 19. A copy of this order be sent to the Board of Revenue for Rajasthan at Ajmer and so also to the Commissioner Colonisation, Bikaner.