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Rajasthan High Court · body

2012 DIGILAW 893 (RAJ)

State of Rajasthan v. Roopchand

2012-04-10

G.K.TIWARI

body2012
Dr. TIWARI, M.—This reference, under Section 82 of the Rajasthan Land Revenue Act 1956 (in short `the Act'), is directed against the impugned judgment dated 30.4.1983 of Assistant Settlement Officer, by which he has mutated the khatedari land of Bhabutmal (deceased) in the name of the non-petitioners as being the members from the same family. Additional Collector Pali found this impugned judgment dated 30.4.1983 as illegal and invalid and has, therefore, made reference to this court for quashing of the impugned order dated 30.4.1983 of Assistant Settlement Officer. 2. I have heard the learned counsels of both the parties. 3. The learned Dy. Govt. Advocate contended that Assistant Settlement Officer has passed a patently illegal order dated 30.4.1983 transferring the land of deceased khatedar Bhabhutmal to the non-petitioners irrespective of succession. Bhabhut Mal had died issueless and the non-petitioners have no right to succeed to Bhabut Mal. Assistant Settlement Officer had no right to transfer the khatedari right from one person to other person. Therefore, Additional Collector has made a reference for quashing of this order. The disputed land is used for `baori' from which the cattle of the area quench thirst. Therefore, the reference should be allowed and the impugned order dated 30.4.1983 should be set aside. 4. The learned counsel for Santan Dharma Mandal Pali supported the reference and contended that the disputed land is being used for the public purpose as `baori'. Even if the impugned order is passed by Assistant Settlement Officer, Collector has power to make reference of such an illegal order as the District Land Records Officer. The learned counsel cited 1981 RRD 516 in support of his contention. It was also stated that the disputed land is sometime shown to be in the name of Bhabut Mal son of Ramchandra, sometime as Bhabutmal son of Anna; so it is not clear which is the right name. Since Assistant Settlement Officer has passed an illegal order changing entries in the jamabandi, so Additional Collector rightly referred the matter to Board of Revenue for quashing of such an illegal entry. 5. Opposing the contentions of the learned Dy. Govt. Advocate and the learned advocate of Sanatan Dharam Mandal, the learned counsel for the non-petitioners Shri O.L Dave pleaded that neither Tehsildar nor Additional Collector has any locus or cause of action for making this reference to the Board. 5. Opposing the contentions of the learned Dy. Govt. Advocate and the learned advocate of Sanatan Dharam Mandal, the learned counsel for the non-petitioners Shri O.L Dave pleaded that neither Tehsildar nor Additional Collector has any locus or cause of action for making this reference to the Board. This is a matter between the private parties; Government has no stake or interest in it. Therefore, this reference is misconceived. Since Svt. 1980 this land has been recorded in the name of private party of which the non-petitioners are the descendants. There is not a single evidence to show that the disputed land was ever entered in the name of government or as a land of public purpose. Since Svt. 1980 this continues to be a private land and Additional Collector has no right to make reference of a matter which is between the private parties. The learned counsel cited 1980 RRD 62, 1987 RRD 532, 1980 RRD 603 and 1977 RRD 461 in support of his contentions. It was also contended that earlier Settlement Commissioner vide his judgment dated 24.5.1999 has declined to make reference of this matter, as in involves private parties. Now the same matter cannot be agitated again and brought to Board of Revenue through the agency of Additional Collector who is not empowered to make this reference, as the Assistant Settlement Officer is not the subordinate officer of Collector or Additional Collector. Therefore, this reference is incompetent. When a public policy is not involved a personal dispute of parties should not become a subject matter of reference. As such this reference should be rejected. 6. I have given thoughtful consideration to the rival contentions, perused the impugned report of Additional Collector and gone through the material on record. 7. The impugned order dated 30.4.1983 has been passed by Assistant Settlement Officer. By this order the disputed land belonging to the deceased khatedar Bhabut Ram is mutated in the name of the non-petitioners. Under Section 82 of the Act, Settlement Commissioner or Director Land Records or Collector are empowered to make reference of any case decided or proceeding of any court or officer subordinate to them, if such an order passed or proceeding initiated by the concerned subordinate officer is illegal or contrary to the established procedure of law. Under Section 82 of the Act, Settlement Commissioner or Director Land Records or Collector are empowered to make reference of any case decided or proceeding of any court or officer subordinate to them, if such an order passed or proceeding initiated by the concerned subordinate officer is illegal or contrary to the established procedure of law. Examining the matter from this angle, Assistant Settlement Officer is not a subordinate officer of Collector or Additional Collector. Assistant Settlement Officer is subordinate to Settlement Commissioner. Therefore, if any reference is to be make of an order passed by Assistant Settlement Officer, it is the Settlement Commissioner who is empowered to make such a reference, not the Collector. It is worthwhile to observe here that earlier a reference was got initiated at the level of Settlement Commissioner also in respect of the same matter which is under consideration before this court, and the Settlement Commissioner found that this matter was not fit for making reference to Board of Revenue as it involved private parties and State Government had no interest in it. I have gone through the judgment dated 24.5.1999 of Settlement Commissioner, Rajasthan, Jaipur in which he has declined to make reference to the Board of Revenue giving cogent reasons. Additional Collector has not made any mention of this judgment dated 24.5.1999 of Settlement Commissioner. Additional Collector has not specified whether he was competent to make reference vis-a-vis judgment dated 24.5.1999 of Settlement Commissioner. 8. The learned counsel for the petitioner has relied upon the judgment of this court `Mali Ram vs. State of Rajasthan as reported in 1981 RRD 516. I have gone through this ruling carefully. At the end of para 8 of this judgment it is categorically stated that "the legislative intention is to allow Collectors to exercise powers of making reference in all matter under the Land Revenue Act, subject to other conditions of subordination of the officers or the court whose order is to be referred to the Board." Thus, it is evident that Collector or Additional Collector is allowed to make reference only of the matter which pertains to the revenue court or revenue officer subordinate to him. So how Additional Collector is competent to make a reference of an order passed by Assistant Settlement Officer, is not made clear. 9. So how Additional Collector is competent to make a reference of an order passed by Assistant Settlement Officer, is not made clear. 9. I have gone through the record of the case and could not find any evidence that the disputed land was ever recorded in the government name or as a public property or as a land being used for public purpose. It may, at the most, be a dispute between the private parties as land has been recorded in the name of private persons since Svt. 1980. In such a situation, in view of citations of this court as referred in 1980 RRD 62 (State vs. Heera Lal), 1987 RRD 532 (State vs. Murari Lal), 1977 RRD 461 (State vs. Kalyan Baksh), Additional Collector has not examined the matter properly in this light that how State Government was interested in making reference in a dispute involving private parties with regard to land which has always been recorded as private land. 10. In view of the foregoing discussion, I am not inclined to accept the reference and, therefore, remit the case to Collector/Additional Collector Pali for examining this afresh in light of the observations made hereinabove and take suitable appropriate action in the matter accordingly. 11. This matter is disposed of as above. Pronounced.