Rajasthan High Court - Jodhpur
Tarachand Ghanchi vs Board Of Revenue & Ors on 12 February, 2009
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
S/6 S.B. CIVIL WRIT PETITION NO.202/1999.
LRs of Tara Chand Ganchi Vs. Board of Revenue & Ors.
Date of Order :: 12th February 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Rajesh Joshi, for the petitioner.
Mr. Hemant Choudhary, Government Counsel.
Mr. R.K. Soni, for the respondents.
.....
BY THE COURT
By way of this writ petition, challenge is given to the order dated 24.09.1998 (Annex.7) as passed by the Board of Revenue for Rajasthan, Ajmer in Revision Petition No. LR/6/95/Pali whereby the Board has proceeded to set aside the order dated 30.01.1975 (Annex.2) as passed by the Assistant Collector, Pali in Case No.6/1972 in the matter relating to the entries in the revenue records.
The background facts and relevant aspects of the matter are that according to the petitioner, his forefathers were the khatedars of agricultural land comprised in Khasra No.485 at Chak No.2, Pali admeasuring 104 bighas and 4 biswas of which, 50% of the land, admeasuring about 52 bighas and 2 biswas, came to the share of Nawlaji, grand-father of the petitioner. The petitioner has averred that after Nawlaji, the name of one Lachchaji wrongly came to be recorded in the revenue records instead of the name of Chainaji, father of the 2 petitioner Tara Chand; that the said Shri Lachchaji was the son-in-law of the petitioner's grand-father Nawlaji but otherwise had no connection with the land in question; that Lachchaji proceeded to sell the said land to the respondent No.5 Champa Lal through a registered sale deed dated 13.05.1966 without handing over possession; and that the land in question continued to remain in his and his ancestors' possession.
The petitioner has averred that upon noticing the fact about the execution of the aforesaid sale-deed, he raised an objection on 17.07.1966 before the competent authority and prayed for correction of the record but the authority declined to make the requisite correction and thus, he preferred an appeal along with the other co-sharers of the land before the Additional Collector, Pali who proceeded to pass an order on 02.12.1969 (Annex.2) remanding the matter to the Tehsildar for making a detailed enquiry after recording evidence.
The petitioner has further averred that the Tehsildar did not take appropriate action in pursuance of the order dated 02.12.1969 though the said order had attained finality; and for inaction on the part of the Tehsildar, he moved an application (Annex.3) to the Assistant Collector, Pali on 11.04.1972 for appropriate execution of the said order dated 02.12.1969. On 3 the application so moved by the petitioner, the Assistant Collector, Pali proceeded to pass an order dated 30.01.1975 (Annex.4), purportedly giving directions to the Tehsildar to execute the order dated 02.12.1969.
The petitioner submits that the aforesaid order dated 30.01.1975 had not only attained finality but was put into execution and in pursuance thereof, his name was recorded in the revenue records under the mutation entries made under the order dated 19.01.1976 (Annex.5). The petitioner further points out that the respondent No.5 moved an application, purportedly under Section 232 of the Rajasthan Tenancy Act, 1955, before the Collector, Pali for making a reference to the Board of Revenue and such an application came to be rejected by the learned Collector on 29.09.1994 (Annex.6).
The petitioner has averred that despite the aforesaid orders made in his favour having attained finality and the record having been corrected, about 20 years later, the respondent No.5 preferred a so-called revision petition before the Board of Revenue on 27.01.1995, purportedly under Section 84 read with Section 9 of the Rajasthan Land Revenue Act, 1956 ('the Act'), seeking to question the order dated 30.01.1975, and the Board, without any justification, proceeded to accept the petition so moved by the respondent 4 No.5 by its impugned order dated 24.09.1998 (Annex.7) and to set aside the order dated 30.01.1975 as passed by the Assistant Collector, Pali.
Assailing the aforesaid order dated 24.09.1998 as passed by the Board of Revenue, learned counsel for the petitioner has strenuously contended that the impugned order suffers from fundamental illegality inasmuch as without any reason or justification, the Board has proceeded to interfere with the order that was passed by the subordinate authority about 20 years before filing of the revision petition. Learned counsel contended that the proceedings as adopted by the Board were grossly belated and it was not the allegation before the Board that the impugned order suffered from any error or collusion so as to warrant interference. Learned counsel has referred to the decisions in the cases of Bharatram & Anr. Vs. Board of Revenue & Ors.: 2006(1) WLC (Raj.) 352; Shri Kishna Ram Vs. The State of Rajasthan & Ors. : SB CWP No. 3/1996 decided on 01.09.2006; M/s. Bheru Construction Pvt. Ltd. Vs. State of Rajasthan & Ors.: SB CWP No. 1856/1992 decided on 02.05.2006; Fakruddin & Ors. Vs. B.O.R. & Ors. : SBCWP No. 3461/2000 decided on 06.12.2005; Situ Sahu & Ors. Vs. State of Jharkhand & Ors. :
2005 (1) RRT 161 (SC); and State of Rajasthan Vs. Teja & 5 Ors. : 2005 (2) RLR 357 and submitted that the impugned order cannot be sustained for the Board having proceeded to interfere with the matter 20 years after passing of the order by the subordinate authority that had already been implemented. Learned counsel further submitted that the matter relating to correction of entries in the revenue record being not of the judicial proceedings, the petition for revision under Section 84 of the Act was not even competent and ought to have been rejected. Learned counsel referred to the fact situation of the case and submitted that a wrong entry having been made in favour of Lachchaji, though his having no connection with the land in question, the record was rightly ordered to be corrected by the Assistant Collector and there was no warrant for interference by the Board.
Learned counsel for the contesting respondent has duly supported the order impugned particularly with the submissions that the order dated 30.01.1975 as passed by the Assistant Collector being wholly without jurisdiction, was required to be, and has rightly been, interfered with by the Board of Revenue. Learned counsel submitted that at the time of moving of the application (Annex.3) by the petitioner and passing of the order by the Assistant Collector, the requisite proceedings, after remand under the order dated 02.12.1969, 6 were pending before the Tehsildar, Pali and there was no justification that the Assistant Collector proceeded to interfere in the matter. Learned counsel submitted that even if the Board has interfered in the matter after some delay, the fact remains that the Board has set aside the impugned order as passed by the Assistant Collector that was wholly without jurisdiction and, therefore, this writ petition deserves to be dismissed.
Having given a thoughtful consideration to the rival submissions and having examined the material placed on record, this Court is satisfied that in the given fact situation, the impugned order as passed by the Board of Revenue on 24.09.1998 (Annex.7) calls for no interference and this writ petition deserves to be dismissed but with necessary clarifications and observations.
A comprehension of the fact situation of the case and the chronology of events makes it absolutely clear that on 02.12.1969, while allowing the appeal filed by the petitioner, the Additional Collector, Pali set aside the order dated 06.04.1967 as passed by Nayab Tehsildar, Pali and remanded the matter to the Tehsildar, Pali for enquiry afresh. Admittedly, the Tehsildar Pali had not passed any order pursuant to the order of remand dated 02.12.1969; and this fact was 7 specifically stated in the application (Annex.3) as made by the petitioner to the Assistant Collector, Pali and rather a grievance was made that the Tehsildar, Pali had not taken up further proceedings despite having been served with a registered post notice on 23.02.1972. The learned Member of the Board has observed that in the matter relating to the entries in the revenue record, the Assistant Collector concerned had no jurisdiction whatsoever to pass any order and the matter was of the jurisdiction either of the Gram Panchayat or of Tehsildar; and there was no provision in law whereunder any such application could have been maintained before the Assistant Collector. The observations as made by the learned Member of the Board remain unexceptionable; and in the entire length of arguments on behalf of the petitioner, it has not been shown as to under which jurisdiction did the Assistant Collector entertain the application moved by the petitioner on 11.04.1972?
Moreover, it is found that while passing the order dated 30.01.1975, the Assistant Collector was not oblivious of the order dated 02.12.1969 as passed by the Additional Collector, Pali; and rather proceeded to observe that the mutation be allowed in the name of the petitioner pursuant to the said order dated 02.12.1969. Such an observation was obviously 8 incorrect and contrary to the order dated 02.12.1969, purportedly referred to and relied upon. By the said order dated 02.12.1969, the Appellate Authority i.e., the Additional Collector had only remanded the matter to the Tehsildar for enquiry afresh and had never directed that the land be recorded in the name of the petitioner.
The learned Member of the Board has also rightly pointed out that while passing the order dated 30.01.1975 the learned Assistant Collector proceeded to put a misplaced reliance on the order as passed in the proceedings under Section 145 of the Code of Criminal Procedure (CrPC). Such proceedings under Section 145 CrPC could not have been taken decisive of the questions to be gone into by the Tehsildar.
In the aforesaid view of the matter, particularly when it is found that the order dated 30.01.1975 was the one passed wholly without jurisdiction, if the Board of Revenue has chosen to interfere with and to set the same aside, this Court finds no reason to interfere. It goes without saying that if any interference is made and the impugned order dated 24.09.1998 is set aside, the result would be of restoring the illegal and without jurisdiction order dated 30.01.1975. This Court would not be issuing any writ or direction that would 9 result in restoration of an illegality.
The decisions as relied upon by the learned counsel for the petitioner, of course, give out the ratio that interference by a superior authority in the matters relating to the orders passed by the subordinate authorities ought to be within reasonable time but then, merely on account of delay, the Board could not have countenanced an obvious illegality to be perpetuated.
In any case, the Board cannot be said to have acted wholly beyond its powers and jurisdiction nor the impugned order dated 24.09.1998 discloses any such error that could be termed as an error apparent on the face of the record so as to call for interference in the writ jurisdiction of this Court. Noticeable it is that apart from other powers, the Board of Revenue has the general power of superintendence and control over all the Revenue Courts and over all the Revenue Officers, per Section 9 of the Act.
For the reasons foregoing, this Court is not inclined to interfere with the order impugned even when the Board has proceeded to interfere in the matter more than 20 years after passing of the illegal order by the Assistant Collector.
So far the submissions regarding merits of the case are concerned, this Court would not like to make any comment 10 herein but then, the order as passed by the Board of Revenue on 24.09.1998 remains incomplete inasmuch as no directions have been issued for disposal of the proceedings before the Tehsildar that were noticed by the Board to have not been concluded and that were required to be undertaken and concluded per the force of the order dated 02.12.1969. Therefore, even while dismissing this writ petition, this Court is of opinion that the Tehsildar, Pali should take up the requisite proceedings under the order dated 02.12.1969.
Accordingly, though this writ petition is dismissed without any order as to costs but then, the Tehsildar, Pali is directed to take up the proceedings pursuant to the order dated 02.12.1969 and to conclude the same expeditiously and without further delay.
It is noticed that the original petitioner Tara Chand has since expired and his legal representatives were substituted as petitioners in this writ petition. The said legal representatives of the petitioner Tara Chand shall, accordingly, stand substituted in his place in the proceedings before the Tehsildar; and the said legal representatives of the petitioner Tara Chand and so also the respondent No.5 shall stand at notice through their counsel appearing before this Court to remain present before the Tehsildar, Pali for further 11 proceedings in the matter on 23.03.2009.
(DINESH MAHESHWARI), J.
s.soni Mohan