MANOHAR SINGH RAO Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a reference made by the Commissioner, Udaipur under sec. 232 Rajasthan Tenancy Act on an application presented by the applicant Rao Manohar Singh under the said section against the order of Additional Collector, Udaipur, dated 14. 11. 1957.

(2.) WE have heard the learned counsel for the parties and examined the record as well. Briefly, the facts are that the applicant has been found to have an unauthorised occupation certain land in village Liyon Ka Gudha, Tehsil Girwa, Distt. Udaipur. A notice was served on him by the Tehsildar Girwa on 28. 6. 1957, that is, after the enforcement of the Rajasthan Land Revenue Act, 1956, asking him to vacate the land and submit objections if any on 15. 7. 1957. An elaborate reply, was submitted by the applicant on 27. 10. 1957. The learned Tehsildar gave him a hearing and after rejecting his objections ordered on 30. 8. 1957 that the land be vacated within a period of 30 days. An appeal was preferred by the applicant to the Additional Collector, Udaipur who also rejected the same. Instead of preferring any appeal or revision against this order of the Additional Collector, dated 14. 11. 57 the applicant preferred an application under sec. 232 as above to the Commissioner, Udaipur. The learned Commissioner having heard the parlies held that as the order had been passed by the Tehsildar under sec. 183 Rajasthan Tenancy Act, even though no provision of any Act had been mentioned in the notice issued originally to the applicant.) the proceeding will be deemed to have been taken under sec. 183 Rajasthan Tenancy Act which by virtue of sec. 217 (2) of the Act the Tehsildar himself could not finalise but should have submitted to the Assistant Collector for disposal and that all the orders passed by the lower courts thus being without jurisdiction deserved to be set aside and has submitted the case under sec. 232 for the order of the Board. The learned counsel for the applicant has relying on 1958 R. R. D. 59 urged that the Tehsildar could not pass final orders in the matter and further contended that notice had been issued to the Kamdar, Thikana Bodla and not to the applicant and Rishala Mewar in whose name the land had been entered was not State and, therefore, proceedings under sec. 91 Rajasthan Land Revenue Act could not be taken against him. It has been further urged that the procedure prescribed by sec. 91 of the Rajasthan Land Revenue Act has also not been fully observed in the matter. As against it, it has been urged by the learned Government Advocate that all the procedure prescribed by sec. 91 of the Rajasthan Land Revenue Act had been fully observed in the matter in as much as the applicant had been given due notice, he has given his reply in full, he had been heard fully and the case decided after disposing of all his objections and that when the applicant had put in his appearance in reply to the notice it was too late for him in the day to contend that the notice had been issued in the name of the Kamdar and not his own. When compliance had been made and this objection had not been raised in the replies submitted originally it could not be allowed to be taken now. Further, it has been contended that a revision or appeal could have been preferred against the order of the Additional Collector and so a reference application under sec. 232 of the Rajasthan Tenancy Act was not competent. It has also been urged that merely writing at the end of judgment that the orders was being passed under sec. 183 of the Rajasthan Tenancy Act did not change it to be one under that section, that the proceedings had been started after the enforcement of the Rajasthan Land Revenue Act and the procedure prescribed by sec. 91 thereof had been followed and that therefore the order was one which purported to be under that section.