Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 200 (RAJ)

State of Rajasthan v. Heera Shanker

2012-01-20

PRAMIL KUMAR MATHUR

body2012
MATHUR, M.—This reference has been made by Additional District Collector, Bharatpur under Section 232 of the Rajasthan Tenancy Act, 1955 (in short to be referred as `the Act') by order dated 19.2.2004. 2. Brief facts of the case are that non-petitioner filed a suit No. 581/98 in the court of Assistant Collector, Bayana (Bharatpur) claiming that the disputed land situated at Tehsil Bayana bearing old khasra No. 1679 area 2 bigha 5 biswa presently new khasra number is 3554 area 0.36 hectare has continuously been cultivated by him, but is not so recorded in the revenue records. Hence, on the basis of long cultivatory possession, it may be declared that he is the khatedar of disputed land. The Assistant Collector, Bayana (Bharatpur) decreed the suit on 31.1.2001 and ordered to record the above mentioned disputed land in favour of non-petitioner as khatedar tenant. Considering this judgment & decree dated 31.1.2001 in favour of non-petitioner as illegal and against the provisions of law, Additional District Collector, Bharatpur has made this reference to the Board of Revenue after affording an opportunity of hearing to the non-petitioner. 3. I have heard the arguments of learned Dy. Govt. Advocate and learned counsel for the non-petitioner and perused the record. 4. In support of reference, learned Dy. Govt. Advocate submitted that Assistant Collector, Bayana (Bharatpur) has passed the judgment & decree without looking into the facts of the written statement. The disputed land was recorded as government land, therefore, as per section 16 of "the Act", khatedari rights on government land cannot be granted. The above said judgment & decree is absolutely against the record and in violation of the provisions of law, hence deserves to be set aside. In view of above, learned Dy. Govt. Advocate requested that the reference be accepted. 5. Learned counsel for the non-petitioner has submitted that non-petitioner is continuously cultivating on the disputed land and is in cultivatory possession since long; hence he is the khatedar of the said land. On this basis, Assistant Collector, Bayana (Bharatpur) has rightly passed the impugned judgment & decree on 31.1.2001. He further submitted that judgment of the trial court was affirmed by appellate court and after judicial pronouncement of appellate court, Additional District Collector has no right to make reference because Revenue Appellate Authority is not subordinate to him. Therefore, the present reference deserves to be rejected. 6. He further submitted that judgment of the trial court was affirmed by appellate court and after judicial pronouncement of appellate court, Additional District Collector has no right to make reference because Revenue Appellate Authority is not subordinate to him. Therefore, the present reference deserves to be rejected. 6. He has placed reliance on the following citations:- (i) RBJ (13) 2006 page 466 (ii) RRT 2010(1) page 577 (iii) RRD 1987 page 428 (iv) RRT 2010(2) page 1200 7. I have given my thoughtful consideration to the rival contentions and scanned the matter carefully. 8. From bare perusal of the reference application, this is admitted position that against the impugned judgment dated 31.1.2001, State had filed an appeal No. 115/02 (State vs. Heera Shanker) before the Revenue Appellate Authority, Bharatpur which has been rejected by learned Revenue Appellate Authority and impugned judgment has been maintained by the appellate court; therefore, the judgment of the trial court dated 31.1.2001 has been merged in the judgment of the appellate court. 9. Apart from these facts, language of section 232 of "the Act" empowers Collector to make the reference when the case or proceeding either decided by or pending before any subordinate revenue court which simply conveys the meaning that Collector is not competent to make a reference when any case or proceeding has been decided by any superior court. Here, reference application itself contains that matter has been finally decided by the Revenue Appellate Authority, Bharatpur by which impugned judgment has been affirmed. 10. This is also indisputable that Revenue Appellate Authority is not subordinate to the Collector/Additional District Collector and therefore no reference under section 232 of "the Act" can be made by the Additional District Collector, Bharatpur against the judgment affirmed by the Revenue Appellate Authority and the Additional District Collector, Bharatpur is competent to make the reference with respect to the judgment passed by the officers subordinate to him only. In the present set of circumstances when the matter has been decided by the Revenue Appellate Authority, Additional District Collector has got no jurisdiction to make a reference to the Board. Therefore this reference, being incompetent, is hereby rejected. Pronounced in open court.