SUKHLAL Vs. STATE

JUDGEMENT

(1.) This appeal has been filed against an order of the learned Divisional Commissioner, Bikaner dated 31.5.56. The facts of the case in brief are that Sukhlal the appellant applied to Tehsildar Sardar Shahar for renewal of a patta in respect of 500 sq, yds. of lands which he had purchased in Smt. 1963 from Uma Mina who held it under a patta of Smt. 1938 on recovery of the usual fees. The Tehsildar observed that at the time of sale Uma Mina the vendor and the grandfather of the appellant vendee had deposed in his statement in file No 302 that the land shall be kept vacant and as a portion of the land had already been included in the Delhi road, the appellant is not entitled to get a renewal of the patta on conditions different from those on which he got this land The Tehsildar therefore, rejected the application. Against this order an appeal was filed before the Collector, Churu, who however directed that as no such condition about keeping the land vacant was made in the patta of Smt. 1938 as well as the deed of Smt. 1963 the appellant was entitled to get it renewed for 5C0 sq. yds. and submitted the case to the Commissioner for sanction. The learned Commissioner also approved it and conveyed his sanction by his order dated 6.12.56. A review petition was put up before the Commissioner by one Shri Ratanlal who alleged that there was a factual mistake in the decision of the learned Commissioner inasmuch as he overlooked the statements of Uma Mina and Bhikam Chand grandfather of the appellant to the effect that this land shall remain vacant and no construction shall be made on it. The learned Commissioner examined this point and modified his previous order to the extent that a patta may be given to the applicant on the condition that he would not make any construction and shall not assert his possession thereon by any other means. Against this decision the present appeal has been filed before us. A preliminary objection has been raised by the learned counsel for the opposite - party about the maintainability of this appeal before the Board. It was pointed out in a similar case Moti Singh vs. Board of Revenue and other D.B. Civil Misc. Writ No. 74 of 1951 decided on 5.5.52, the High Court of Rajas -than has held that a Revenue court had no jurisdiction to amend or alter the terms of patta once granted by it otherwise than according to the decision of the civil court. It was also observed therein that the Board which purported to exercise revi -sional or appellate jurisdiction over the subordinate revenue courts and revenue officers had a fortiori no jurisdiction in such matters.

(2.) We have examined the original patta as well as the sale deed and find that no conditions whatsoever were put therein about keeping the land vacant or not making construction thereon. In the light of the decisions relied upon by the learned counsel for the respondent which is on all fours with the facts of the present case, the Board in our opinion is barred from hearing this either as an appeal or treating it as a revision. The learned counsel for the appellant however in the alternative prayed that as the order of the learned Commissioner was manifestly illegal and passed without jurisdiction, it was a fit case in which we should exercise our powers of superintendence and control under sec. 9 of the Land Revenue Act, to set the matters right and correct the mistake of its subordinate court so that it could be made to function within the scope of its jurisdiction. In support of this contention he cited R.L.W. 1953, page 280, R.R.D. 1956 page 44, R.R.D. 1955 page 77, R.R.D. 1955, page 219, R.R.D. 1955 page 259, Looking to the nature of the proceedings in this case we find that the appellant as a grand son of the vendee simply applied for an alternation of the name in the Patta as provided in the Statement of Powers issued by the former Govt of Bikaner in 1926 relating to departmental powers of the Revenue Dept. Malmandi cases. This matter was admittedly within the jurisdiction of the subordinate revenue courts who according to the Circular of the 2nd of August, 1928, were competent to order mutation in such cases on the basis of latest and recent possession of the person seeking an alteration in the owners name etc. No other provision of law has been shown to us by the counsel for the opposite party conferring jurisdiction on a revenue court to amend or alter the terms of the original patta at the time of its renewal. This being so, we are of the opinion that the learned Commissioner went beyond the scope of his jurisdiction to pass the impugned order. It is thus an appropriate case in which we feel that we are competent to set it right in the exercise of our powers of superintendence and control under sec. 9 of the Land Revenue Act which is in essence the same as those of the High Court under Art. 227 of the Constitution of India. We are fortified in holding this view by relying on A.I.R. 1954 SC page 215 and A.I.R. Patna 1955 page 118 wherein it was held that "the power of superintendence is to be exercised most sparingly, only in appropriate cases in order to keep the subordinate courts within the bounds of their authority to see that they do what their duty requires and that they do it in a legal manner. The right should be exercised only in cases where the courts have clearly done something which they were not entitled to do". Taking this aspect of the matter into consideration we vacate the order of the learned Commissioner and confirm his earlier order dated 6.12.55 sanctioning the grant of patta as proposed by the learned Collector in his order dated 30.11.55.