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2017 DIGILAW 2188 (RAJ)

Balmat v. State of Rajasthan

2017-10-11

M.N.BHANDARI

body2017
ORDER : M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 22nd December, 2007 and the order dated 08th July, 2015 apart from reference application dated 30th October, 2006. 2. Learned counsel for the petitioners submits that for the land in dispute, a decree was passed by the Assistant Collector on 30th September, 1969. The land was mutated pursuant to it. The Tehsildar made a reference of the land in ignorance of the decree passed by the ACM Court, that too, without hearing the petitioners. The Collector then referred the matter to the Board of Revenue by invoking Section 82 of the Land Revenue Act, 1956 (for short "the Act of 1956"). The petitioner was heard, but, the fact about decree of the ACM Court and delay of 30 days was ignored. The order of reference was illegal. The Board of Revenue then answered the reference made by the Collector. The mutation opened in favour of the petitioner has been set aside. 3. To support the arguments, a reference of the judgment of this Court in the case of Nisar Mohd. v. State of Rajasthan & ors. reported in 2009 WLC (Raj.) UC 510 and in the case of Idan v. State of Rajasthan & Anr. reported in 2001 (1) RRT 224 has been given. Therein, in the similar circumstances, the change of entry by the Settlement Department was not accepted. A prayer is accordingly made to set aside the reference application, the order for reference and finally, the answer of reference by the Board of Revenue. 4. I have considered the submissions made by learned counsel and perused the record. 5. Learned counsel for the petitioner/s has challenged the reference application made by Tehsildar on the ground that it was without hearing the petitioner/s. 6. Learned counsel for the petitioner/s was called upon to refer any provision, which requires hearing even for making application to the Collector. No provision could be referred by him, rather, no such provision exists in the revenue laws. In fact, on an application by Tehsildar, the Collector causes notice to the party concerned before the matter is referred to the Board of Revenue. The petitioner was heard by the Collector before making reference. It was after taking note of the nature of the land shown in the revenue record. In fact, on an application by Tehsildar, the Collector causes notice to the party concerned before the matter is referred to the Board of Revenue. The petitioner was heard by the Collector before making reference. It was after taking note of the nature of the land shown in the revenue record. The matter was referred to the Revenue Board finding the land in dispute was recorded to be of a pond. In view of the judgment of the Division Bench in the case of Abdul Rehman v. State of Rajasthan in DB Civil Writ Petition No. 1536/2003, the reference has been answered vide its order dated 08th July, 2015 where the petitioner did not appear despite service. All the issues sent to the Board of Revenue were considered. It was found that mutation is in violation of the provisions of Section 16 of the Rajasthan Tenancy Act, 1955 (for short "the Act of 1955") apart from the judgment of this Court in the case of Abdul Rehman (supra), accordingly, the reference was answered against the petitioner/s. 7. Learned counsel for the petitioner/s has raised an issue about authority of Tehsildar as well as Collector to make a reference contrary to the order passed by the ACM Court. The order of ACM Court could have been challenged by maintaining appeal and not by way of reference. The argument has been raised without going through Section 82 of the Act of 1956, which is quoted hereunder for ready reference : "82. The order of ACM Court could have been challenged by maintaining appeal and not by way of reference. The argument has been raised without going through Section 82 of the Act of 1956, which is quoted hereunder for ready reference : "82. Power [xxx] to call for records and proceedings and reference to State Government or Board : [xxx] The Settlement Commissioner or the Director of Land Records [or a Collector] may call for and examine the record of any case decided or proceedings held by any revenue court or officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of proceedings; and, if he is of opinion that the proceedings taken or order passed by such subordinate court or officer should be varied cancelled or reversed, he shall refer the case with his opinion thereon for the orders of the Board, if the case is of a judicial nature or connected with settlement, or for the orders of the State Government if the case is of a non-judicial nature not connected with Settlement; and the Board or the State Government, as the case may be, shall thereupon pass such order as it thinks fit." 8. Section 82 of the Act of 1956 can be invoked by the Collector for making reference on the order of subordinate court or officer thus it is not that if a decree has been passed by the ACM Court, reference of the dispute cannot be sent. 9. The judgment of this Court in the case of Nisar Mohd. (supra) was altogether on different facts and controversy. It was not a case of reference by invoking Section 82 of the Act of 1956 and, in fact, the issue as to whether the reference can be made even after decree by the revenue court was not considered and decided, which is an issue raised herein and has been decided. Section 82 of the Act of 1956 permits reference even if the order is passed by the subordinate court or officer, which can be varied, cancelled or reversed thus scope of reference is quite wide and, accordingly, the first ground raised by learned counsel for the petitioner cannot be accepted. 10. The other issue is about limitation. 11. Section 82 of the Act of 1956 permits reference even if the order is passed by the subordinate court or officer, which can be varied, cancelled or reversed thus scope of reference is quite wide and, accordingly, the first ground raised by learned counsel for the petitioner cannot be accepted. 10. The other issue is about limitation. 11. The petitioner did not appear before the Board of Revenue despite service where the issue aforesaid could have raised. In any case, it has been considered. The delay was not taken to be a bar in a case where mutation of the land was illegal being contrary to Section 16 of the Act of 1955 as well as judgment of the Division Bench in the case of Abdul Rehman (supra). In the case of Abdul Rehman (supra), the Division Bench issued direction to maintain the position as was obtaining in the year 1947. It was mainly in regard to the land shown to be of river, Nala, pond, etc. and protected by Section 16 of the Act of 1955. The Board of Revenue has followed the judgment of the Division Bench while answering the reference and I do not find any illegality therein. 12. In view of the above and finding no merit in the writ petition, it is dismissed in limini.