STATE OF RAJASTHAN Vs. MEERA

JUDGEMENT

(1.) AN application was made by the Tehsildar, Chohtan, under sec. 232 of the Rajasthan Tenancy Act against the decision of the Assistant Collector, Barmer, dated 30. 9. 59 before the Collector, Banner, praying that the aforesaid order of the Asstt. Collector, Barmer, whereby he had awarded a decree in favour of one Meera granting him Khatedari rights over 100 bighas in Khasra No. 324 in village Booth by referred to the Board of Revenue for being set aside, as the same was not in accordance with the law and was not capable of execution.

(2.) THE learned Collector heard the counsel for both the parties and came to the conclusion that the order of the Asstt. Collector was repugnant to the statutory provisions of the law contained in sec. 16 (1) of the Rajasthan Tenancy Act. He, therefore, referred the case for the orders of the Board under sec. 232 of the Rajasthan Tenancy Act with the request that the decree passed by the learned Asstt. Collector on 30. 9. 59 be quashed and set aside. When the case came up for hearing before a D. B. of this Board, a preliminary objection was raised by the learned counsel for the plaintiff, Meera, that the reference was not competent as an appeal eventually lay to this Board. In his support, he cited Rao Shri Manohar Singh vs. THE State of Rajasthan (1960 R. R. D. 20) wherein a reference made under sec. 232 of the Rajasthan Tenancy Act was rejected by a D. B. of this Board on a number of grounds. THE learned D. B. who decided that the case had observed inter alia as follows: "when a revision or appeal could lie, a reference could not be held to be competent. " On the other hand, the learned Government Advocate cited Shaman Das vs. Lalla (1960 R. R. D. 184), wherein another D. B. had held that a reference under sec. 232 of the aforesaid Act was not incompetent merely because the aggrieved party had failed to avail of its right of appeal. It was, further, observed by the learned D. B. that the only exception to the power of reference was that it should not be exercised in respect of suits or proceedings falling within the purview of Sec. 239 of the Act. Accordingly, that D. B. accepted the reference and quashed the order passed by the Asstt. Collector.

(3.) AS was held in Sugan Singh vs. State of Rajasthan (RLW 1962 (Revenue Supplement) Page 79), a reference made without hearing the parties is not proper. Before a reference is made, the Collector must hear the contending parties and apply his mind. In the proceedings before the Collector, the affected parties could certainly set up the plea of limitation. A careful reading of this section would show that the powers vested by this section in the Collector are discretionary and a reference is to be made to the Board only when he is satisfied that the order of the lower court deserves to be varied, cancelled or reversed. The provisions of this Section are certainly not meant to be invoked in order to give a back door relief to a party which has failed to avail of the statutory provisions of appeal within the time prescribed by law. Each case will, thus, have to be examined on its own merits and a recourse may be made to the provisions of this Section only where cogent and valid reasons exist. We will, therefore, answer the reference as follows; - There is no bar to entertain a reference under Sec. 232 of the Rajasthan Tenancy Act even if an appeal or revision lies to the Board against the proceeding or the impugned order which is sought to be varied, cancelled or reversed. This power, however, lies within the discretion of the Collector who is expected to hear the affected parties before he decides to make a reference. In opposing an application for reference the contesting parties may certainly set up the plea of limitation and the Collector may make a reference only if he is satisfied that valid or cogent reasons exist. .