SAUKHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ALL these writ petitions mentioned in the Appendix are disposed of by the common order as all the learned counsel have submitted that they involve common question of law, therefore, arguments were heard of the learned counsel on this common question of law and they are disposed of by this judgment.

(2.) IN order to appreciate the controversy involved, the facts of D. B. Civil Writ Petition No. 1786/86 Saukhan v. State of Rajasthan & Ors. were taken into consideration.

(3.) WE have heard both the learned counsel and perused the record. So far as the first question regarding the competency of the Collector under section 232 of the Act is concerned, that the Court in Fatehkhan v. State of Rajasthan (1 ). A similar question came up before Division Bench of this Court in which it was contended that the Collector has no power to take a Reference, under section 232 of the Act where a decree is passed by a Revenue Court. (Though it was un-amended provision of section 232 of the Act, the expression 'decree' was not included but the expression 'decree' was subsequently added by the Act No. 14 of 1981 published in Rajasthan Gazette Part IV Kh dated 5. 10. 1981 ). The Division Bench after considering the arguments came to the conclusion that under section 221 of the Act, the Board of Revenue has a power of Superintendence and in exercise of that power they can interfere with the order passed by the Assistant Collector x X X x Section 221 of the Rajasthan Tenancy Act reads as under : "221 Subordination of the Revenue Courts - The General Superintendence and control over all the Revenue Courts shall be vested in, and all such Courts shall be subordinate to the Board; and subject to such superintendence, control and subordination - X X X X (b) all Additional Collectors, Sub-Divisional officers, Assistant Collectors and Tehsildars in a District shall be subordinate to the Collector thereof; (c) all Assistant Collectors, Tehsildars and Naib-Tehsildars in a subdivision shall be subordinate to the Sub-Divisional Officer thereof; and (d) all Additional Tehsildars and Naib-Tehsildars in a Tehsil shall be subordinate to the Tehsildar thereof. " The Division Bench observed as under : "we are, therefore, of the opinion that even in cases where the Collector is not empowered to make reference under section 232 of the Act, or the Board does not have the re-visional jurisdiction, the Board is empowered to set aside the orders, if a clear breach of provisions of law comes to its notice, and it considers it expedient to use its power of superintendence and content. Such power extends to setting aside illegal decree also, as is clear from the decision in the case Harchand v. Rajasthan Revenue Board (supra) wherein, decree by the Divisional Officer was set aside in exercise of powers under section 12 of the Ordinance; Keeping this legal position in mind, it is to be seen whether in the instant case there were extra ordinary circumstances, where the Board should have exercised its power under section 221 of the Act. The perusal of the impugned order discloses that the land in question was "gochar land, for which Khatedari rights cannot accrue to any body. " The suit was decreed because true facts about the land being "gochar Land", and the proceedings under section 91 of the Land Revenue Act having been initiated by the Tehsildar, and the order of ejectment being passed by him, were concealed from the Assistant Collector. Hence, the decision of the Assistant Collector declaring the petitioner Khatedars of the disputed land was illegal. The conduct of the petitioners in concealing the true facts in the plaint and the irresponsibility displayed by the Tehsildar in filing a vague written statement was also an important factor which weighed with the Board to exercise its supervisory jurisdiction. At any rate, the Board had jurisdiction under section 221 of the Act to set aside the illegal decree of the Assistant Collector. It is of no significance that the order was passed on a reference made by the Collector. In such circumstances when the petitioner are guilty of playing fraud on the court by suppressing material facts and there has been no failure of justice by the impugned order, they cannot ask us to interfere by a writ of certiorari. The Board's order is just and proper. " Therefore, since the Board of Revenue has a power of superintendence, as such the argument that the Collector is not competent to make a Reference under section 232 is of hardly any relevance. Once the Board of Revenue is seized of the matter and it is satisfied that certain illegality has been committed particularly by subordinate Revenue Court, then exercise of its re-visional jurisdiction, the Board of Revenue can interfere. But a word of caution has been added by their Lordships that this power is to be exercised sparingly and in extra ordinary circumstances. Therefore, the argument of the learned counsel regarding the competency of the Collector to make a Reference under section 232 of the Act and the question of assent of the President of the amendment in section 232 of the Act is concerned, is not required to be examined in the present case. Suffice it to say that the Board of Revenue has a Re-visional jurisdiction and, if it is satisfied that the order/decree passed by the subordinate Revenue Court is illegal, without jurisdiction or prima facie unjust, than it is always open for the Board of Revenue to interfere in its re-visional jurisdiction. In this view of the matter, the argument of the learned counsel regarding Collector's incompetency and its challenge to the amendment of section 232 of the Act has hardly any relevance. Our attention was also invited to D. B. judgment of this Court given in Karan Singh v. State of Rajasthan (2), but in this case, scope of section 221 of the Act was not considered. A distinction was made between decree and order and it was pointed out that expression 'decree' does not find mention in section 232 of the Act. Therefore, Collector cannot make reference. But the attention of Hon'ble Court was not invited to section 221 of the Act. However this controversy now does not survive in view of amendment of section 232 of the Act whereby decree has been added.