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2023 DIGILAW 1529 (RAJ)

Jeta Ram v. Hadman Ram

2023-08-14

ARUN BHANSALI

body2023
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved of the order dated 06.07.2023 (Annex.7) passed by the Board of Revenue, Rajasthan ('BOR'), order dated 17.02.2023 (Annex.6) passed by the Revenue Appellate Authority, Jodhpur ('RAA') and order dated 02.02.2023 (Annex.4) passed by the Assistant Collector, Osian. 2. It is, inter-alia, indicated in the writ petition that the respondent Nos. 1 and 2 filed a revenue suit in the year 2018 before the Assistant Collector and SDO, Osian for getting permanent injunction in relation to the land in dispute under Section 188 of the Rajasthan Tenancy Act, 1955 ('the Act'), which is pending consideration. 3. It is claimed that on 01.02.2023, the respondent Nos. 1 and 2 filed a second suit for getting permanent injunction against the petitioner for the same disputed land on the same facts/cause of action, which is nothing but abuse of process of the Court as the second suit on the same cause is not maintainable. 4. It is alleged that on 02.02.2023 as the Assistant Collector, Osian was not holding the post and Tehsildar was having charge, he passed order of status quo (Annex.4) against the petitioner. It is submitted that the Tehsildar has no jurisdiction to pass the order in absence of a regularly posted Assistant Collector-cum-SDO. 5. Feeling aggrieved of order dated 02.02.2023, the petitioner filed appeal before the RAA, Jodhpur, who by order dated 17.02.2023 (Annex.6) came to the conclusion that as the petitioner without filing reply to the application filed under Section 212 of the Act, has filed appeal against the interim order, there was no necessity to pass any order on the stay application and the petitioner was directed to file reply before the SDO and make submissions there. 6. Aggrieved of the denial of interim order by the RAA, the petitioner filed revision petition before the BOR. The BOR, after hearing the parties and noticing the facts as noticed herein-before, came to the conclusion that as the matter was pending for grant of temporary injunction before the original authority and the order dated 17.02.2023 was an interim order, the revision petition under Section 230 of the Act was not maintainable and consequently, rejected the same. 7. The BOR, after hearing the parties and noticing the facts as noticed herein-before, came to the conclusion that as the matter was pending for grant of temporary injunction before the original authority and the order dated 17.02.2023 was an interim order, the revision petition under Section 230 of the Act was not maintainable and consequently, rejected the same. 7. Learned counsel for the petitioner made vehement submissions that exercise of powers by the Tehsildar while being in-charge of office of the SDO, is ex-facie without jurisdiction and therefore, the RAA and BOR fell in error in not interfering in the order dated 02.02.2023. 8. Submissions have been made that under Section 29 of the Rajasthan Land Revenue Act, 1956 ('LR Act'), an officer, who assumed the charge of the office of absentee officer can perform routine duty of the absentee officer and as the order passed dated 02.02.2023 is not a routine order, the same could not have been passed. Therefore, the order passed by the Tehsildar while performing the duties of absentee SDO, is ex-facie without jurisdiction and consequently, the orders impugned deserve to be quashed and set-aside. Reliance has been placed on judgment in Hari Ram v. Collector Bikaner : 1964 RLW 120. 9. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 10. Insofar as, the nature of order passed by the SDO dated 02.02.2023 is concerned, the same is only an ex-parte ad interim order. Thereafter, the order dated 17.02.2023 passed by RAA is also an interim order refusing to grant interim order qua order dated 02.02.2023, while the appeal was still pending and therefore, the BOR was justified in coming to the conclusion that the revision petition under Section 230 of the Act was not maintainable. 11. However, the issue raised by learned counsel for the petitioner pertains to the jurisdiction of the Tehsildar, while performing the duties as SDO to pass the order dated 02.02.2023 requires consideration. 12. The petitioner has placed on record order dated 16.11.2022 (Annex.3) issued by the District Collector, Jodhpur, inter-alia, indicating that as the then SDO, Osian has been transferred to Sapotra, District Karauli and was relived on 15.11.2022, Tehsildar Osian was directed to perform the duties of the vacant post of SDO Osian, Distt. Jodhpur alongwith work of his post till further orders. Jodhpur alongwith work of his post till further orders. The said status continued till 22.02.2023 when Tehsildar, Osian handed over the charge to the SDO, Osian, who assumed charge on the same date. 13. The relevant provision dealing with the temporary absence of officers is contained under Section 29 of the LR Act, which reads as under :- "29. Temporary absence of Officers. - Where an officer is temporarily absent from his duties- (a) any other officer of equal grade functioning at his headquarters or, if there be no officer of an equal grade there any other officer of a superior grade so functioning or, if there be no such superior officer, any other officer of an inferior grade so functioning shall, without relinquishing the ordinary duty, assume charge of the office of the absentee officer and shall continue in charge thereof until the office is assumed by another officer duly appointed thereto and, while in such charge perform the routine duties of the absentee officer, and (b) if any officer of an equal, superior or inferior grade is not functioning at such headquarters or is himself also absent, the chief ministerial official of the office shall possess the power of adjourning from time to time any matter, case or proceeding." 14. A perusal of the above would reveal that where an officer is temporarily absent from his duties, any officer of equal grade functioning at his head-quarters or if there be no officer of an equal grade there, any officer of a superior grade so functioning or, if there be no such superior officer, any other officer of an inferior grade so functioning shall assume charge of the office of the absentee officer and shall continue in charge thereof until the office is assumed by another officer duly appointed thereto and while in such charge, perform the routine duties of the absentee officer. 15. Further sub-section (b) of Section 29 of the LR Act provides that if any officer of an equal, superior or inferior grade is not functioning at such headquarters or is himself also absent, the chief ministerial official of the office shall possess the power of adjourning from time to time any matter, case or proceeding. 16. The provision is very clear providing for performing the routine duties of the absentee officer or person in-charge of the office, in absence of the officer. 17. 16. The provision is very clear providing for performing the routine duties of the absentee officer or person in-charge of the office, in absence of the officer. 17. Sub-section (b) of Section 29 of the LR Act is significant, which throws light on the aspect of routine duties, which empowers the chief ministerial official of the office to adjourn the 'matter, case or proceeding', which necessarily means that the person performing the duties in absence of an officer, who is temporarily absent, has more powers than merely adjourning the matter, even though the same have been described as routine duties and therefore, the contention raised that the Tehsildar while performing the duties of SDO could not have passed the ad interim order dated 02.02.2023 and could only adjourn the matter cannot be countenanced. 18. So far as the order in the case of Hari Ram (supra) is concerned, in the said case the order under challenge pertained to retirement of members of a Nyaya Panchayat by officiating Nayab Tehsildar, which was not found as a routine duty of the Tehsildar. Besides the same, the provisions of sub-section (b) of Section 29 of the LR Act were not taken into consideration. 19. In case, passing of the order granting ad interim injunction, is not treated as a routine matter, the same would lead to a situation where in the present case, when the SDO was not available from 16.11.2022 till 22.02.2023 for more than three months, the work of the office of SDO regarding urgent matters pertaining to grant of injunction would come to a stand still, which cannot be the intention of the legislature. 20. In view of the above discussion, the plea regarding lack of jurisdiction in the Tehsildar while in-charge of office of SDO to pass the order dated 02.02.2023 also cannot be countenanced. There is no substance in the writ petition, the same is, therefore, dismissed.