Jeta Ram vs Hadman Ram (2023:Rj-Jd:26336)
2023 Latest Caselaw 5850 Raj

[2023:RJ-JD:26336]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11255/2023

Jeta Ram S/o Harlal, Aged About 65 Years, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

----Petitioner Versus

1. Hadman Ram S/o Jodha Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

2. Harbhaj Ram S/o Jodha Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

3. State Of Rajasthan, Through Tehsildar Tinwari District Jodhpur

4. Ashok S/o Bhaga Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

5. Om Prakash S/o Bhaga Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

6. Gomti D/o Jara Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

7. Ganga D/o Jora Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

8. Hau D/o Jora Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

9. Tipu D/o Jora Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

10. Surti W/o Late Jagmal Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

11. Tulcha Ram S/o Late Jagmal Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

12. Bhera Ram S/o Late Jagmal Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

13. Rakesh Kumar S/o Soda Ram, Minor And Represented By His Natural Guardian Mother Jadav W/o Late Soda Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

14. Prakash Kumar S/o Soda Ram, Minor And Represented By His Natural Guardian Mother Jadav W/o Late Soda Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

15. Jadav W/o Late Soda Ram, R/o Village Bano Ka Bas,

[2023:RJ-JD:26336] (2 of 7) [CW-11255/2023]

Tehsil Tinwari, District Jodhpur.

16. Jeram S/o Kachba Ram, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

17. Sukha Ram S/o Har Lal, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

18. Bhagwana Ram S/o Har Lal, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

19. Shyam Lal S/o Har Lal, R/o Village Bano Ka Bas, Tehsil Tinwari, District Jodhpur.

20. Nirma D/o Narayan Ram, R/o Rawat Bera, Dabri Tehsil Osian, District Jodhpur.

                                                                 ----Respondents


For Petitioner(s)          :    Mr. R.J. Punia.
For Respondent(s)          :



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

14/08/2023

1. This writ petition has been filed by the petitioner aggrieved

of the order dated 06.07.2023 (Annex.7) passed by the Board of

Revenue, Rajathan ('BOR'), order dated 17.02.2023 (Annex.6)

passed by the Revenue Appellate Authority, Jodhpur ('RAA') and

order dated 02.02.2023 (Annex.4) passed by the Assistant

Collector, Osian.

2. It is, inter-alia, indicated in the writ petition that the

respondent Nos. 1 & 2 filed a revenue suit in the year 2018 before

the Assistant Collector and SDO, Osian for getting permanent

injunction in relation to the land in dispute under Section 188 of

the Rajasthan Tenancy Act, 1955 ('the Act'), which is pending

consideration.

[2023:RJ-JD:26336] (3 of 7) [CW-11255/2023]

3. It is claimed that on 01.02.2023, the respondent Nos. 1 & 2

filed a second suit for getting permanent injunction against the

petitioner for the same disputed land on the same facts / cause of

action, which is nothing but abuse of process of the Court as the

second suit on the same cause is not maintainable.

4. It is alleged that on 02.02.2023 as the Assistant Collector,

Osian was not holding the post and Tehsildar was having charge,

he passed order of status quo (Annex.4) against the petitioner. It

is submitted that the Tehsildar has no jurisdiction to pass the

order in absence of a regularly posted Assistant Collector - cum -

SDO.

5. Feeling aggrieved of order dated 02.02.2023, the petitioner

filed appeal before the RAA, Jodhpur, who by order dated

17.02.2023 (Annex.6) came to the conclusion that as the

petitioner without filing reply to the application filed under Section

212 of the Act, has filed appeal against the interim order, there

was no necessity to pass any order on the stay application and the

petitioner was directed to file reply before the SDO and make

submissions there.

6. Aggrieved of the denial of interim order by the RAA, the

petitioner filed revision petition before the BOR. The BOR, after

hearing the parties and noticing the facts as noticed herein-before,

came to the conclusion that as the matter was pending for grant

of temporary injunction before the original authority and the order

dated 17.02.2023 was an interim order, the revision petition under

Section 230 of the Act was not maintainable and consequently,

rejected the same.

[2023:RJ-JD:26336] (4 of 7) [CW-11255/2023]

7. Learned counsel for the petitioner made vehement

submissions that exercise of powers by the Tehsildar while being

in-charge of office of the SDO, is ex-facie without jurisdiction and

therefore, the RAA and BOR fell in error in not interfering in the

order dated 02.02.2023.

8. Submissions have been made that under Section 29 of the

Rajasthan Land Revenue Act, 1956 ('LR Act'), an officer, who

assumed the charge of the office of absentee officer can perform

routine duty of the absentee officer and as the order passed dated

02.02.2023 is not a routine order, the same could not have been

passed. Therefore, the order passed by the Tehsildar while

performing the duties of absentee SDO, is ex-facie without

jurisdiction and consequently, the orders impugned deserve to be

quashed and set-aside. Reliance has been placed on judgment in

Hari Ram v. Collector Bikaner : 1964 RLW 120.

9. I have considered the submissions made by learned counsel

for the petitioner and have perused the material available on

record.

10. Insofar as, the nature of order passed by the SDO dated

02.02.2023 is concerned, the same is only an ex-parte ad interim

order. Thereafter, the order dated 17.02.2023 passed by RAA is

also an interim order refusing to grant interim order qua order

dated 02.02.2023, while the appeal was still pending and

therefore, the BOR was justified in coming to the conclusion that

the revision petition under Section 230 of the Act was not

maintainable.

11. However, the issue raised by learned counsel for the

petitioner pertains to the jurisdiction of the Tehsildar, while

[2023:RJ-JD:26336] (5 of 7) [CW-11255/2023]

performing the duties as SDO to pass the order dated 02.02.2023

requires consideration.

12. The petitioner has placed on record order dated 16.11.2022

(Annex.3) issued by the District Collector, Jodhpur, inter-alia,

indicating that as the then SDO, Osian has been transferred to

Sapotra, District Karauli and was relived on 15.11.2022, Tehsildar

Osian was directed to perform the duties of the vacant post of

SDO Osian, Distt. Jodhpur alongwith work of his post till further

orders. The said status continued till 22.02.2023 when Tehsildar,

Osian handed over the charge to the SDO, Osian, who assumed

charge on the same date.

13. The relevant provision dealing with the temporary absence of

officers is contained under Section 29 of the LR Act, which reads

as under :-

"29. Temporary absence of Officers. - Where an officer is temporarily absent from his duties-

(a) any other officer of equal grade functioning at his head- quarters or, if there be no officer of an equal grade there any other officer of a superior grade so functioning or, if there be no such superior officer, any other officer of an inferior grade so functioning shall, without relinquishing the ordinary duty, assume charge of the office of the absentee officer and shall continue in charge thereof until the office is assumed by another officer duly appointed thereto and, while in such charge perform the routine duties of the absentee officer, and

(b) if any officer of an equal, superior or inferior grade is not functioning at such headquarters or is himself also absent, the chief ministerial official of the office shall possess the power of adjourning from time to time any matter, case or proceeding."

14. A perusal of the above would reveal that where an officer is

temporarily absent from his duties, any officer of equal grade

functioning at his head-quarters or if there be no officer of an

equal grade there, any officer of a superior grade so functioning

or, if there be no such superior officer, any other officer of an

[2023:RJ-JD:26336] (6 of 7) [CW-11255/2023]

inferior grade so functioning shall assume charge of the office of

the absentee officer and shall continue in charge thereof until the

office is assumed by another officer duly appointed thereto and

while in such charge, perform the routine duties of the absentee

officer.

15. Further sub-section (b) of Section 29 of the LR Act provides

that if any officer of an equal, superior or inferior grade is not

functioning at such headquarters or is himself also absent, the

chief ministerial official of the office shall possess the power of

adjourning from time to time any matter, case or proceeding.

16. The provision is very clear providing for performing the

routine duties of the absentee officer or person in-charge of the

office, in absence of the officer.

17. Sub-section (b) of Section 29 of the LR Act is significant,

which throws light on the aspect of routine duties, which

empowers the chief ministerial official of the office to adjourn the

'matter, case or proceeding', which necessarily means that the

person performing the duties in absence of an officer, who is

temporarily absent, has more powers than merely adjourning the

matter, even though the same have been described as routine

duties and therefore, the contention raised that the Tehsildar while

performing the duties of SDO could not have passed the ad

interim order dated 02.02.2023 and could only adjourn the matter

cannot be countenanced.

18. So far as the order in the case of Hari Ram (supra) is

concerned, in the said case the order under challenge pertained to

retirement of members of a Nyaya Panchayat by officiating Nayab

Tehsildar, which was not found as a routine duty of the Tehsildar.

[2023:RJ-JD:26336] (7 of 7) [CW-11255/2023]

Besides the same, the provisions of sub-section (b) of Section 29

of the LR Act were not taken into consideration.

19. In case, passing of the order granting ad interim injunction,

is not treated as a routine matter, the same would lead to a

situation where in the present case, when the SDO was not

available from 16.11.2022 till 22.02.2023 for more than three

months, the work of the office of SDO regarding urgent matters

pertaining to grant of injunction would come to a stand still, which

cannot be the intention of the legislature.

20. In view of the above discussion, the plea regarding lack of

jurisdiction in the Tehsildar while in-charge of office of SDO to

pass the order dated 02.02.2023 also cannot be countenanced.

There is no substance in the writ petition, the same is, therefore,

dismissed.

(ARUN BHANSALI),J 99-Rmathur/-

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