ONKAR Vs. RAMRAKH

JUDGEMENT

(1.) This is an appeal against an appellate order of the Divisional Commissioner, Jaipur, dated 14.3.56 in a case relating to appointment of a village Patel.

(2.) We have heard the learned counsel for the parties and have gone carefully through the record as well, file No. 207/2 C2007/84) of the Divisional Commissioner, Jaipurs office, there exists on page 6 a certified copy of the report of the Collector, Tonk, dated 25.3.50, which for purposes of the present case, may be accepted as the starting point of these proceedings, for it containts a comprehensive resume of the relevant facts. Shri Onkarlal was appointed as a Patel in village Devbarnya under orders of the Revenue Minister of the former State of Tonk, dated 12.2.40. Shri Onkarlal, however, upon finding the then political atmosphere uncongenial to his ideology and activities resigned from the Patelai and his resignation was accepted on 3.5.45. Both the villages Devli and Devbarnya are situated in very close proximity. The residents of these villages appear to have put up a request for appointment of Onkarlal as a village Patel. Onkarlal also came forward and desired this appointment. An inquiry was held in the matter by the Revenue Officers and the Collector, Tonk vide his reported, dated 25.3.50 recommended to the Commissioner, Jaipur that Onkarlal be appointed as a Patel in villages Devbarnya and Devli and be allowed a concession of As. 2 per rupee in his khata. The Commissioner after going through the report held that Partapa, Ramrakh and Gainda being the existing Patels of these villages were entitled to have their say in the matter and hence the Collector should inform them of his proposal, dated 25.3.50 and resubmit the papers to the Commissioner. The Collector complied with this direction and resubmitted the papers to the Commissioner with his report, dated 25.1.51 - reiterating his view that Onkar should be appointed as a Patel in villages Devli and Devbarnya and be allowed a concession of Rs. 17/11/6 in his khata. The Commissioner heard the parties on 17.2.51 and returned the papers to the Collector inviting his attention to sec. 356 of the Land Revenue Code, Tonk which lays down that "The confirmation, appointment, punishment, suspension or dismissal of the Pateli -Deh shall rest with the Nazim of the Pargana, from whose decision an appeal shall lie to the Revenue Member." The Collector on receiving the ease re -examined it and resubmitted the same with his report, dated 13.3.51 wherein it was pointed out by him that the Collector enjoyed all the powers of a sub -Divisional Officer and that notification No. 6952, dated 17.8.48 of the former Rajasthan being till then in force authorised the Collector to appoint a village Patel (Item No. 76). It was further stated by the Collector that under the circumstances there was no question of giving any opinion but that the Collector could appoint a village Patel and it appears that in exercise of his power the Collector did appoint Onkar as a village Patel and for grant of a concession he recommended the case to the Commissioner for obtaining sanction of the Government. The Commissioner heard the parties as can be gathered from his order dated 29.8.51. In this order it has been made clear that the Collector had appointed Onkar as an additional Patel in exercise of his powers, that Onkar was responsible for effecting improvements in the village, that Onkar was eminently suited for the post of a village Patel and that the existing village Patels had no valid cause to complain against his appointment. The Commissioner thus fully approved the appointment of Onkar as a village Patel and agreeing with the Collector that Onkar was eligible to a concession of Rs. 17/11/6 forwarded the paper to the Revenue Secretary to the Govt. of Rajasthan, The Revenue Secretary returned the papers to the Commissioner vide letter No. F. 24 (231) Rev. II/51, dated 5.8.55 sying that "orders have been issued by the Govt. to the effect that the rules of the covenanting States regarding the appointment of Patels will remain in force till further orders". Necessary action in the matter may, therefore, kindly be taken accordingly". A copy of this letter was forwarded to the Collector by the Commissioner. The Collector Tonk after recapitulating the past history of the case in his order, dated 17.10.55 concluded as below : - - "My predecessor in office had proposed the appointment of Shri Onkar as a village Patel and I am in agreement with it. In exercise of the powers conferred upon me by notification No. 6952, dated 17.8.48 of the former Rajasthan, I do hereby appoint Shri Onkar as a Patel in villages Devli and Devbarnya. Tehsil be informed accordingly. The Commissioner Jaipur be requested that Onkar will be eligible to a concession of As. 2 per rupee in his khata and as the same would be sanctioned by the Government, necessary orders of the Government be obtained in that behalf." The Commissioner, Jaipur agreeing with the views of the Collecor,Tonk moved the Revenue Secretarty for sanction of the concession vide his letter No. 5044, dated 2 -12 55 This letter makes it clear that Onkar had been appointed as a Patel by the Collector and that the only matter which needed sanction of the Govt. was grant of a concession of As. 2 per rupee in his khata. The Govt. of Rajasthan sanctioned payment of Rs. 17/11/6 to Shri Onkar Patel as recommended by the Commissioner vide letter No F. 12 (135)SL/55, dated 7.1.56. About a week prior to this sanction of the Govt., Ramrakha put up an application before the Additional Commissioner, Jaipur on 2.1.56 stating therein that the last date in the case was 25.6.51 and that what happened subsequently was not known to him and he may therefore, be apprised of the same. Shri Ramrakha was informed by the Commissioners office vide letter No. 318, dated 19.1.56 that 25.6.51 was never fixed for hearing in the case, that the case was decided by the Additional Commissioner on 29.8.51 and that the matter had been decided finally by the Rajasthan Government. On 14.2.56 Ramrakha applied for permission to inspect the record of the case and this was granted to him. On 17.3.56 Ramrakha, Pratapa and Gainda presented an appeal before the Additional Commissioner against the order of the Collector, Tonk dated 17.10.55 and the same was allowed on 14.8.56 and it was ordered that Ramrakha, Pratapa and Gainda should be given an opportunity of presenting their case before the Collector, as the order dated 17.10.55 was passed at their back. Onkar has come up in appeal against this decision.

(3.) Shri Ruchand Sogani appearing for the respondent contended that the Board had no jurisdiction in the matter and based his argument upon secs. 23 and 83 of the Rajasthan Land Revenue Act, 1956 which came into force on 1.7.56. Sec. 23 lays down that the control of all non -judicial matters connected with Revenue in the State other than matters connected with settlement is vested in the State Govt. and the control of all judicial matters and of all matters connected with settlement is vested in the Board. Sec. 83 authorises the State Government to call for the record of any non - judicial proceeding not connected with settlement held by any officer subordinate to it and may pass thereon such orders as it thinks fit. It has also been argued in this connection that the appointment of a village Patel is a non -judicial matter as it is not to be found in any of the 15 items contained in the first schedule of the Act. The contention put forth by Shri Rupchand Sogani does not take into consideration the important fact that the Collector passed the order on 17.10.55 and hence the validity or otherwise of that order shall have to be determined with reference to the law then prevailing and not by the provisions of the Rajasthan Land Revenue Act which had not come in force till 1.7.56. This principle is so axiomatic as not to need any authority. If, however, any authority be needed for this view, it will be found in a decision of the Honble High Court of judicature for Rajasthan, dated 29.2.56, in writ application No. 57 of 1954 Nand Kishore vs. Board of Revenue.[ Reported as 1957 RLW 110.] In that case the question for determination was as to whether the Board had or had not jurisdiction to examine a decision of the Kotah Commissioner, dated 22.6.49 in a matter relating to appointment of a village Patel. The following portion from the judgment of the Honble Chief Justice may be quoted in support of the view referred to above. "......The main contention of the applicant is that the Board had no jurisdiction to interfere with the order of the Revenue Commissioner of Kotah, dated 22.6.49. The point was raised before the Board also but was overruled by it In order to decide the question of jurisdiction of the Board, we have to look to the State of law as it was on 22.6.49 when the order of Revenue Commissioner was passed. The present State of Rajasthan had been formed by then, but most of the laws, which were in force in the former State of Rajasthan were still continuing by virtue of Ordinance No. 1 of 1949. The former Rajasthan State had promulgated Ordinance No. 20 of 1948 for purposes of revenue administration and sec. 4 of the Ordinance gave power to the Government by orders or rules published in the official gazette, to provide for the purpose of the revenue administration.........Sec. 5 of the Ordinance also provides that orders, rules and other provisions made by the Govt. under sec. 4 would have effect as if enacted in the Ordinance In pursuance of the powers conferred by sec. 4 of the Ordinance the Govt of former Rajasthan issued a notification No. 6352 on 17.8.1948. Item 76 of this notification provides for the appointment of Patels or Lambardars. We are concerned in this case with the District of Kotah and in the remarks column it is provided that in - the district of Kotah the Commissioner would have full powers in this matter. It may be mentioned that before the creation of the State of former Rajasthan this village was in the former Kotah State and under circular No. 11, date 1.12.1922 of the former State of Kotah the appointment of Lambardars could only be made by the Mahakma Khas on the recommendation of the Commissioner. Consequently on the death of Anandilal, the Revenue Commissioner of Kotah under notification No 6952 appointed both Nand Kishore and Chhaganlal as Patels and fixed the limits within which they could work in the village. This order was taken in appeal by Chhaganlal before the Board of Revenue of the State of former Rajasthan on the 9th of August, 1949. There is no provision in notification No. 6952 already mentioned above for appeal to the Board of Revenue. We only find a note at the end which says that in those matters which are not covered by this notification the decision in case of appeal would be made according to the existing laws of the various States. The Board of Revenue in their judgment also had not pointed out to any law in force on the 22nd June, 1949 according to which the order of the Revenue Commissioner appointing a Patel was open to appeal to the Board of Revenue. All that we have been able to find is a notification of the State of former Rajasthan, dated 27.9.48 and published in the Gazette of 11th October, 1948 constituting the Board of Revenue and appointing its Members. We have also found a notification No. 5599, dated 10.11.48 and published in the Govt gazette on 15.11.48 by which the Board of Revenue was given the power under sec. 4 of the Ordinance No. 20 of 1948 to hear all appeals which lay to the Government or any Minister from the decisions of the Revenue Officers. Thus the Board of Revenue of the State of former Rajasthan on the administrative side had powers to hear all appeals which lay to the Govt. or any Minister from the decisions of the Revenue Officers." The further observations of their Lordships in that case need not be quoted here as they relate to the appointment of a village Patel in the former State of Kotah where the appointment was made by the Mahakma Khas itself and thus there existed no provision for appeal against the same. The present case before us relates to the appointment of a village Patel in the former State of Tonk. Sec. 356 of the Land Revenue Code, Tonk, Vol. II, clearly lays down that the order of the Nazim shall be appealable to the Revenue Minister. As observed by the Honble Chief Justice of the Rajasthan High Court in the case referred to abvoe, the Board would be competent to hear all appeals against the decisions of the revenue officers which lay to the Government or any Minister by virtue of notification No. 5599, dated 10.11.48, published in the Government Gazette of 15.11.1948 of the former Rajasthan. The result of the application of this principle to the present case would thus be that the Collector was well within his authority in ordering appointment of Shri Onkar as a village Patel in exercise of the powers conferred upon him by notification No. 6952 and that an appeal against that order lay to the Board by notification No. 5599, dated 10.11.48. The Board has, therefore, jurisdiction over the matter. In view of this finding, it is unnecessary to determine as to whether the appointment of a Patel would be a judicial or non judicial matter within the meaning of sec. 23 of the Rajasthan Land Revenue Act, 1956. 3. It also follows as a corollary from the judgment of the Honble High Court of Judicature for Rajasthan referred to above that the matter having come up before the Board after the promulgation of the Rajasthan Board of Revenue Ordinance, 1949, would be within the ambit of sec.12 of the Ordinance which lays down that the general superintendence and control over all other revenue courts and officers shall be vested in the Board. This Ordinance having been repealed by the Rajasthan Land Revenue Act, 1956, Sec. 9 of the Act would, therefore be now operative which lays down that subject to the other provisions of this Act, the general superintendence and control over all revenue courts and over all revenue officers shall be vested in the Board. In the case decided by the Honble High Court of Judicature for Rajas -than the provisions of the Board of Revenue Ordinance, 1949 were held inapplicable as the Ordinance was promulgated on 12th August, 1949 and the order which formed the subject matter of appeal before the Board of Revenue in former Rajasthan was passed in June 1949. For these reasons, we overrule the objection raised by Shri Rupchand Sogani.