SHAMANDAS Vs. LALLA

JUDGEMENT

(1.) The facts which have given rise to this reference by the Collector, Tonk are as follows :

(2.) Lalla made an application before the Asstt. Collector under Sec. 186 of the Rajasthan Tenancy Act for reinstatement on Khasra No. 220 measuring 14 bighas 11 biswas which was mortgaged to him by Ahmed Said Khan, who had since migrated to Pakistan and whose property including this land had been declared evacuee property and 6 bighas 16 biswas out of which had been allocated by an order of the Regional Settlement Commissioner to Shaman Das on 26.11.57 and actually in the possession through Tehsil on 10.12.57. The contention of Lalla was that he was mortgagee in possession of this land and therefore his dispossession in consequence of the aforesaid order was unlawful and he should be reinstated under the provision of sec. 186 of the Rajasthan Tenancy Act. Shamandas made an application to the Collector and prayed for setting aside the order of the trial court by making a reference to the Board of Revenue under sec. 232 of the Rajasthan Tenancy Act. The learned Collector observed that the property was admittedly an evacuee property and in view of sec. 15 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 the Asstt. Collector had no jurisdiction to take cognizance of these proceedings which related) to property which forms part of the compensation proved and which vested in the Central Government under the provision of this Act. He also relied on R.R.D. 1957 page 260 in which it was held that no revenue court or officer had any jurisdiction to interfere with the allotment of agricultural land which had become evacuee property and which were managed on behalf of the Government of India by the Revenue Officer in their capacity of management officer of the pool property. On the basis of this authority as well as the clear provision of sec. 151 of the Act referred to above the learned Collector held that the proceedings before the Asstt. Collector were not only misconceived but also without jurisdiction and therefore he made this reference to quash the same in exercise of our power under sec. 232 of the Rajasthan Tenancy Act. The Government Advocate and Shri Bazel who represented the Custodian Department fully supported the reference and urged that in view of the clear provision of law referred to by the learned Collector, the trial court had no jurisdiction to entertain any proceedings under sec. 186 of the Rajasthan Tenancy Act and the order given by him was without jurisdiction. Mr. Agarwal counsel for Shamandas also re -enforced bis argument by referring to the same provision of law. Shri Makhanlal counsel for Lalla, however, urged that he was a mortgagee in posses -ssion and inspite of an order of the Regional Settlement Commissioner making allotment of this land to Snamandas who at best could be given the right, title and interest of the evacuee mortgagor, his client could not be dispossessed without due process of law and in the event of his having been dispossessed in unlawful manner, the present proceeding under sec. 186 of the Rajasthan Tenancy Act were competent to Asstt. Collector who had full jurisdiction under this Act to try and dispose of the same. This argument evidently proceeds on an incorrect knowledge of the provision of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and is therefore, untenable. It was also suggested that the present reference was incompetent because the aggrieved person failed to avail of his right of appeal which lay to the Commissioner against the impugned order of the Asstt. Collector. There is nothing under sec. 232 of the Rajasthan Tenancy Act which deprives the Collector, or Commissioner to make a reference to the Board of Revenue about varying, cancelling or reversing the order of a subordinate revenue court and which was on satisfaction found to be illegal or improper for a regular superior court namely Collector or Commissioner. The only exception to this power of reference is that it shall not be exercised in respect of suits or proceedings falling within the purview of sec, 239 of the Act. Shri Makhanlal frankly conceded that he did not claim any such exception as a question of proprietary right in respect of the land formed the subject -matter of the dispute in terms of Sec. 239 of the Act was not in issue. In this view of the matter we order that this reference be allowed and the order given by the Assistant Collector be vacated and the application filed by Lalla is dismissed.