Rajasthan High Court - Jodhpur
Lrs. Of Shri Bharmal Ram vs The State Of Rajasthan on 30 January, 2025
Author: Manindra Mohan Shrivastava
Bench: Manindra Mohan Shrivastava
[2024:RJ-JD:53194-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 389/2024
1. LRs. Of Shri Bharmal Ram, through His Lrs:-
1/1. Kishana Ram S/o Late Bharmal Ram, Aged About 50
Years, resident of Phoolasar, Tehsil Kolayat District
Bikaner.
2. LRs Of Shri Mana Ram, through His Lrs: -
2/1. Naurange Lal S/o Late Mana Ram, Aged About 48 Years,
resident of Phoolasar, Tehsil Kolayat District Bikaner.
2/2. Bishna Ram S/o Late Mana Ram, Aged About 38 Years,
resident of Phoolasar, Tehsil Kolayat District Bikaner.
2/3. Rajeev Kumar S/o Late Mana Ram, Aged About 25 Years,
resident of Phoolasar, Tehsil Kolayat District Bikaner.
3. Bhagwana Ram S/o Mangla Ram, Aged About 52 Years,
resident of Phoolasar, Tehsil Kolayat, District Bikaner.
4. Reshma Ram S/o Mangla Ram, Aged About 54 Years,
resident of Phoolasar, Tehsil Kolayat District Bikaner.
----Appellants
Versus
1. The State Of Rajasthan through the Secretary, Revenue
Department, Govt. Of Rajasthan, Jaipur.
2. Board Of Revenue, Ajmer, Rajasthan.
3. Collector-cum-Deputy Colonization Commissioner,
Bikaner.
4. Tehsildar, Colonization, Kolayat, H.Q. Bikampur, District
Bikaner.
5. Patwari Circle, Phoolesar, Kolayat, District Bikaner.
----Respondents
For Appellant(s) : Mr. Shreyash Ramdev, Adv.
Mr. Priyanshu Gopa, Adv.
For Respondent(s) : Mr. S.S.Ladrecha, AAG with
Mr. Ravindra Jala, Adv. &
Mr. Deepak Suthar, Adv.
(Downloaded on 01/02/2025 at 12:10:57 AM)
[2024:RJ-JD:53194-DB] (2 of 16) [SAW-389/2024]
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Judgment
Judgment Reserved on : 18/12/2024
Judgment Pronounced on : 30/01/2025
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1) The present writ appeal assails the judgment dated
06.10.2023 passed by the learned Hon'ble Single Judge of this
Court on the file of S.B. Civil Writ Petition No.913/1999 wherein
and whereby the challenge which was made to the orders dated
29.06.1998 passed by the Collector-cum-Deputy Colonization
Commissioner, whereby reference was made to the Board of
Revenue as against the orders dated 10.05.1989 passed by the
Assistant Colonization Commissioner, IGNP, Kolayat and also
challenged the order dated 09.09.1998 passed by the Board of
Revenue for Rajasthan, Ajmer whereby the Board of Revenue
accepted the reference made by the Collector-cum-Deputy
Colonization Commissioner and consequently set aside the order
dated 10.05.1989, was not interfered and dismissed the aforesaid
writ petition. Against which, the present writ appeal has been
preferred.
2) Brief facts leading to the present controversy are that the
ancestors of the writ-petitioners, including the writ-petitioners,
had been cultivating 86 bighas of land in Chak Nos.11 and 13 of
village Phulasar since long time. There was a summary settlement
in the Samwat 2012 (year 1955) and Samwat 2017 (year 1960).
In the said summary settlement, without considering the actual
[2024:RJ-JD:53194-DB] (3 of 16) [SAW-389/2024]
cultivation of land, it was recorded as Government land; however,
another piece of land i.e. Khasara No.708 to the extent of 86
bighas situated in village Gogadiawala was recorded in the name
of ancestors of writ-petitioners. According to the writ-petitioners,
their ancestors and they themselves are in actual cultivation of
land in Chak No.11 (Murabba No.6/62 and 26/6) and Chak No.13
(Murabba No.6/54, 6/46 and 6/38 of village Phulasar. Instead of
recording such land in their name in the summary settlement,
they have recorded the land of Khasara No.708 of village
Gogadiawala in their names without there being any possession
over such land. Therefore, they filed an application before the
Assistant Commissioner Colonization, IGNP, Kolayat under
Sections 125 and 136 of Rajasthan Land Revenue Act, 1956
(hereinafter referred to as, "the Act of 1956") for correction of the
entries.
3) The learned Assistant Colonization Commissioner after
due notice to the Tehsildar and taking into consideration the reply
filed by the Tehsildar and oral evidence on record as well as spot
inspection made by him, held that the writ-petitioners were in
possession of Chak Nos.11 and 13 and their possession is long-
standing and they are in possession even prior to the summary
settlement done in Samwat 2012 (year 1955) and Samwat 2017
(year 1960). Accordingly, he ordered to correct such wrong
entries. Consequently, the land in Chak No.11 & 13 of village
Phulasar was ordered to be recorded in the name of the writ-
petitioners and the land in Khasara No.708 to the extent of 86
bighas situated in village Gogadiawala was ordered to be recorded
in the name of Government by order dated 10.05.1989.
[2024:RJ-JD:53194-DB] (4 of 16) [SAW-389/2024]
Consequent to such orders, mutations were ordered on
14.11.1989 in terms to the order of the Assistant Colonization
Commissioner.
4) The District Collector initiated a reference proceeding and
by order dated 29.06.1998 made a reference to the Board of
Revenue, Ajmer in respect of orders passed by the Assistant
Colonization Commissioner. The Board of Revenue passed an ex-
parte order accepting the reference and consequently, set aside
the order dated 10.05.1989 passed by the Assistant Colonization
Commissioner, IGNP, Kolayat. Aggrieved by the same, the writ-
petitioners filed the writ petition challenging such orders. The
learned Hon'ble Single Judge dismissed the writ petition affirming
the findings of order of reference made by the District Collector
and also the order of Board of Revenue accepting the reference
and setting aside the orders of Colonization Commissioner. Hence,
the present writ-appeal.
5) We have heard learned counsel representing the writ-
petitioners as well as learned counsel for the respondents.
6) The learned counsel appearing for the writ-petitioner has
submitted that the findings of the Assistant Colonization
Commissioner in the order dated 10.05.1989 clearly shows that
the entries relating to Khasara No.708 to the extent of 86 bighas
of the land situated in village Gogadiawala was recorded basing on
the spot inspection and there were no records before the
Settlement Officer that such land was in actual possession of
ancestors of the writ-petitioners and in fact, the writ-petitioners
were in possession of Chak Nos.11 & 13 of village Phulasar.
According to him, such entries were based on oral information
[2024:RJ-JD:53194-DB] (5 of 16) [SAW-389/2024]
obtained in the spot inspection without there being any
documentary evidence or without any factual basis. According to
him, the order of Assistant Colonization Commissioner, which was
under reference, clearly indicates that the oral evidence was taken
by the Assistant Colonization Commissioner and in addition to the
oral evidence, there was personal inspection by Assistant
Colonization Commissioner over the site in dispute and on the
basis of oral evidence and the findings based on spot inspection,
he came to a conclusion that the land in Khasara No.708 of village
Gogadiawala was wrongly recorded in the name of writ-petitioners
instead of the land in Chak Nos.11 & 13 of village Phulasar and
consequently, passed the order. According to him, there was no
illegality, impropriety or irregularity in the proceedings and there
was no fraud alleged in the reference order. Therefore, the District
Collector even on merits could not have exercised its powers of
reference under Section 232 of the Act of 1956.
7) The learned counsel for the writ-petitioners also submitted
that the District Collector or the Board of Revenue did not find any
falsity or disbelieve of such oral evidence. However, the evidence
said to be found was insufficient, which could not have conferred
any jurisdiction on the District Collector to make a reference.
Therefore, the orders of District Collector and the Board of
Revenue lack competency to set aside the findings of Assistant
Colonization Commissioner.
8) The learned counsel for the writ-petitioners also submitted
that there was an inordinate delay in making the reference.
Almost 10 years have been taken to make a reference and there
was unreasonable and unexplained delay in making the reference.
[2024:RJ-JD:53194-DB] (6 of 16) [SAW-389/2024]
According to him, though there exist no limitation to make
reference, but such powers has to be exercised within the
reasonable time. In the facts and circumstances of the case, there
was an unreasonable and unexplained delay. On this count itself,
the learned Single Judge ought to have allowed the writ petition,
which has not been done.
9) The learned counsel for the writ-petitioners also submitted
that the learned Single Judge has not considered the findings of
the Assistant Colonization Commissioner, which clearly show that
the previous survey of settlement was done basing on the spot
inspection and there was no documentary evidence before him to
record entries in the name of the writ-petitioners in respect of land
in Khasara No.708 of village Gogadiawala and in fact, such entries
were made basing on the spot inspection and not on the basis of
any corroborative documentary evidence. Similarly, the order of
the Assistant Colonization Commissioner also reflects that he has
recorded the oral evidence of the witnesses. He has also made
spot inspection and enquired with the neighbouring tenants and
also noticed the temporary structures made by the writ-petitioners
on the disputed land. After considering such evidence, he rejected
the claim set up by the Tehsildar against the claim made by the
writ-petitioners before the Assistant Colonization Commissioner.
Such orders were un-assailed, in spite, of the order being passed
after hearing the Tehsildar. Such orders or findings on possession
were based on actual possession of the writ-petitioners and the
same do not suffer from any illegality, impropriety or irregularity
of the proceedings, which alone can give the jurisdiction to take
[2024:RJ-JD:53194-DB] (7 of 16) [SAW-389/2024]
cognizance to the District Collector to make the reference under
Section 232 of the Act of 1956.
10) The learned counsel for the writ-petitioners also submitted
that reference order of the District Collector does not indicate any
fraud played by the writ-petitioners. However, Board of Revenue
has given findings that there was a collusion of the Presiding
Officer with the writ-petitioners. Such findings are without any
material. Therefore, such a finding of the Board of Revenue suffers
from perversity and without jurisdiction. Therefore, he prays to
allow the writ-petition.
11) Per contra, the learned Additional Advocate General
appearing for the respondents-State has vehemently opposed the
contentions of the learned counsel appearing for the writ-
petitioners and contended that the order of Assistant Colonization
Commissioner clearly indicates that the spot inspection was made,
which was unnecessary and he ought to have considered the
material available on record instead of personally involving in the
inspection and his findings were based on the oral evidence, which
is somewhat unclear with regard to the survey in which the writ-
petitioners were in possession and such orders suffer from patent
illegality. The District Magistrate rightly took cognizance and made
the reference. He also submitted that the order of Board of
Revenue clearly goes to show that there was a collusion by the
Presiding Officer with the writ-petitioners in passing the orders so
as to benefit the writ-petitioners.
12) The learned Additional Advocate General also contended
that though the reference was made after inordinate delay of 10
years but cognizance of the reference was taken much earlier.
[2024:RJ-JD:53194-DB] (8 of 16) [SAW-389/2024]
Therefore, such reference order does not suffer from any
unreasonable delay so as to deny the exercise of power of
reference by the District Collector. He prayed for dismissal of the
present appeal.
13) We have considered the arguments of both the parties and
carefully perused the material available on record.
14) There is no dispute that the writ-petitioners have made an
application to the Assistant Colonization Commissioner to make a
correction with regard to the entries made in Samwat 2012 and
2017 (year 1955 & 1960) in respect of Chak Nos.11 and 13 to the
extent of 86 bighas of land situated in village Phulasar. The claim
of the writ-petitioners before the Assistant Colonization
Commissioner was that in the survey settlement done in Samwat
2012 and 2017, their possession was recorded over the land in
Khasara No.708 in respect of 86 bighas situated in village
Gogadiawala. According to them, they were not in possession over
such land but their possession is attributable to Chak Nos.11 & 13
of village Phulasar. According to them, such wrong entry was
made basing on the spot inspection without there being any
factual basis. Therefore, according to them, their ancestors and
they themselves are in possession and had been continuously
cultivating the land in Chak Nos.11 & 13 to the extent of 86
bighas situated in village Phulasar and they sought such a
rectification.
15) The order of the Assistant Colonization Commissioner
dated 10.05.1989 was based on oral evidence recorded in the
correction proceedings and also on the basis of spot inspection.
The other ground was that the entries made in Samwat 2012 and
[2024:RJ-JD:53194-DB] (9 of 16) [SAW-389/2024]
2017 (year 1955 and 1960) were also based on spot inspection
alone and not based on any revenue record anterior to such
survey settlement. The order also shows that a specific resistance
was made by the Tehsildar before the Assistant Colonization
Commissioner that there were no records/documents to show that
the ancestors as well as the writ-petitioners were in actual
possession over the land in Chak Nos.11 & 13 to the extent of 86
bighas situated in village Phulasar. The Tehsildar could not produce
any records before the Assistant Colonization Commissioner to
show that the land of Khasara No.708 of village Gogadiawala were
recorded in the name of writ-petitioners' ancestors/writ petitioners
on the basis of any revenue record showing the possession for
such land by the writ petitioners and their ancestors anterior to
the survey settlement done in the Samwat 2012 and 2017. There
are categorical findings from the Assistant Colonization
Commissioner that the writ-petitioners' actual possession was
attributable to Chak Nos.11 and 13 of village Phulasar and such
findings were based on consideration of oral evidence, spot
inspection, verification with the neighbouring tenants and also
considering the manner, in which the previous recordings were
done in the settlement. Such findings were given by rejecting the
claim set up by the Tehsildar in his reply.
16) The order of the District Collector does not speak about
any fraud and the reference was sought to be made only on the
ground that there was insufficient material to corroborate the
ocular evidence of the witnesses. This means the District Collector
was of the opinion that the reference was made on the ground of
insufficiency of evidence in the form of documentary evidence.
[2024:RJ-JD:53194-DB] (10 of 16) [SAW-389/2024]
The order of District Collector also does not speak about existence
of any such documents reflecting possession of writ-petitioners
over the land in Khasara No.708 of village Gogadiawala prior to
the settlement survey held in Samwat 2012 and 2017. The above
circumstances clearly show that in either case, there are no
records reflecting the possession of the writ-petitioners prior to
the settlement survey. This means the previous survey settlement
and recording of entries were based on the spot inspection only
and were not based on any corroborative evidence to arrive at
such a conclusion. This was made out from the findings of the
Assistant Colonization Commissioner. There were no material
before the District Collector as well as the Board of Revenue to
show that any such records exists in respect of the lands in village
Phulasar or village Gogadiawala.
17) The powers of reference has been given under Section
232 of the Rajasthan Tenancy Act, 1955, which reads hereunder:-
"232. Power to call for record and refer to the
Board-- The Collector may call for and examine the
record of any case or proceedings decided by or
pending before and revenue court subordinate to him
for the purpose of satisfying himself as to the legality
or propriety of the order or decree passed and as to
the regularity of the proceedings, and, if he is of
opinion that the order or decree passed or the
proceeding taken by such court should be varied,
cancelled or reversed, he shall refer the case with his
opinion thereon for the orders of the Board shall,
thereupon, pass such order as it thinks fit:
Provided that the power conferred by this section
shall not be exercised in respect of suits or
proceedings falling within the purview of section
239."
[2024:RJ-JD:53194-DB] (11 of 16) [SAW-389/2024]
18) From the above provision it is clear that the District
Collector has power to make a reference by calling for and
examining the record of any case or proceedings decided by the
Revenue Courts subordinate to him and if the District Collector is
satisfied that the order examined suffers from illegality,
impropriety or irregularity of the proceedings and if he feels that
such order requires to be varied, cancelled or reversed, he shall
make a reference to the Board by giving his opinion and the Board
acting upon such a reference can pass an order as it thinks fit.
This means the District Collector has powers to make reference
only on three grounds: (i) illegality, (ii) impropriety (fraud or
collusion) and (iii) irregularity of the proceedings. Upon existence
of three grounds only, the District Collector can assume the
jurisdiction to make a reference. In the absence of such
requirement, the District Collector lacks jurisdiction to take
cognizance of any reference.
19) A reading of order of reference made by the District
Collector reveals that the District Collector did not give any finding
that orders suffers from any illegality or suffers from
perversity/fraud or irregularity of the proceedings. The order only
shows that there was insufficiency of evidence in the form of
corroboration from the records to show that the writ-petitioners
and their ancestors were in possession, which was recorded in the
revenue record prior to the settlement done in Samwat 2012 and
2017. This means the reference was sought to be made only on
the ground of insufficiency of evidence, which could not be said to
be illegal or suffers from the impropriety or irregularity of the
[2024:RJ-JD:53194-DB] (12 of 16) [SAW-389/2024]
proceedings; which could only give jurisdiction to the Collector to
take cognizance of the reference.
20) The order of Board of Revenue shows that the reversal
was done on two grounds. The first ground was that there was
insufficiency of evidence and there was a suspicious of collusion by
the Presiding Officer with the writ-petitioners. The findings with
regard to collusion were based on assumption and such findings
were not there in the order of reference. There were no material
before the Board of Revenue to come to such a conclusion of
collusion, which is only based on conjectures and surmises. The
District Collector as well as the Board of Revenue before insisting
any corroboration in the form of documents/revenue records to
show the possession of the writ-petitioners and their ancestors in
respect of the land in dispute failed to appreciate the fact that the
land which was recorded in the previous settlement, are also do
not contain any record to show that they were in possession prior
to the settlement recordings were made. In both the cases
existence of records were not available to show the possession of
the writ-petitioners. However, such recordings are based on spot
inspection only. Had there been any such records showing the
writ-petitioners or their ancestors' possession over the land in
Khasara No.708 of village Gogadiawala, the assumption to make a
reference by the District Collector on the ground of insufficient
corroborative evidence to the oral evidence in the form of
documentary evidence could be said to be a ground to take
cognizance. When there was no corroborating evidence to record
entries pertaining to Khasara No.708 prior to the settlement, same
analogy would apply to the present land and the Authorities
[2024:RJ-JD:53194-DB] (13 of 16) [SAW-389/2024]
cannot claim that no corroborative materials in the forms of
documents were available to show the possession prior to the
settlement survey in Samwat 2012 and 2017 (year 1995 and
1960). The orders of District Collector under reference suffers
from jurisdictional error to take cognizance of reference and
suffers from patent illegality and perversity; and the reference is
held to be bad. Consequently, the orders passed by the Board of
Revenue is also unsustainable on merits.
21) The second contention of learned counsel for the
petitioner is that there was inordinate delay in making reference.
The orders were passed by the Assistant Colonization
Commissioner on 10.05.1989 and there was knowledge of
proceedings to the Tehsildar and such orders were implemented
by the Tehsildar in the form of mutation entry, which was done on
14.11.1989. This means the Authorities were aware of orders
passed by the Assistant Colonization Commissioner in 1989 itself.
The cognizance of reference was taken in the year 1992 and
reference was ordered in the year 1998. There is inordinate delay
in making reference. Nearly more than 9 years have been taken to
make a reference and there was no reasons for such inordinate
delay either in taking cognizance of reference or making
reference. Nothing is found from the order of reference with
regard to unexplained delay. There is no allegation of fraud or
collusion either by the Presiding Officer or the Tehsildar in respect
of the orders passed by the Assistant Colonization Commissioner.
No doubt, there is no time limit prescribed under Section 232 of
the Rajasthan Tenancy Act, 1955 to exercise power of reference.
In the catena of judgment, Hon'ble the Supreme Court held that in
[2024:RJ-JD:53194-DB] (14 of 16) [SAW-389/2024]
the absence of any time limit to exercise any power, such a power
has to be exercised within reasonable time. There is no straight
jacket formula with regard to time under which such powers can
be exercised. What all require is reasonable time. That reasonable
time has to be measured in the context of facts and circumstances
of each case. Some time more than one month is said to be
unreasonable delay and some time more than 10 years is said to
be reasonable time depending on the facts and circumstances of
the case. A close glance of the all decisions relied upon by the
Hon'ble Supreme Court in the case of Joint Collector Ranga
Reddy District & Anr. Vs. D. Narsing Rao & Ors. reported in
(2015) 3 Supreme Court Cases 695, it has been clearly held that
what is reasonable time depends on the facts and circumstances
of the case and not the period.
22) In the present case, no averment was referred in the
impugned order of reference by the District Collector with regard
to delay. There is no reference of any fraud or collusion. The order
under reference clearly indicates that a reply was filed by the
Tehsildar opposing the claim of the writ-petitioner for correction
and such a claim was rejected. The facts also disclose that the
Tehsildar though opposed the correction before the Assistant
Colonization Commissioner but he implemented such order by
passing the mutation orders. There was no allegation of any
collusion as against the Tehsildar even in the order of Board of
Revenue. The Tehsildar before he could have implemented the
order would have taken up the proceedings before the Appellate
Authority assailing the order of Assistant Colonization
Commissioner, which he has not done.
[2024:RJ-JD:53194-DB] (15 of 16) [SAW-389/2024]
23) The original settlements were based on spot inspection
only and not based on any revenue records or documents
reflecting the long standing possession of the writ-petitioners and
their ancestors in respect of land in Khasara No.708 of village
Gogadiawala and also the present disputed land. In such a
background of the facts, the Assistant Colonization Commissioner
has passed the order on the basis of oral evidence, spot
verification with the neighbouring tenants and spot inspection. In
such facts and circumstances, exercise of power of reference by
passing the order after about 9 years suffers from unreasonable
and unexplained delay. The learned Hon'ble Single Judge in the
impugned order has not adverted to the merits and demerits of
the exercise of powers of reference by the Collector and also did
not consider the unexplained delay keeping in view the facts and
circumstances existing in the present case. The petitioners are
having settled possession for nearly 45 years from the date of
order of the Assistant Commissioner. Therefore, the orders
impugned in the present writ appeal require to be set and the writ
petition filed by the writ-petitioners requires to be allowed.
24) In the result, the Special Appeal is allowed. The impugned
order dt. 06.10.2023 passed by the learned Hon'ble Single Judge
on the file of S.B. Civil Writ Petition No.913/1999 is set aside.
Consequently, the writ petition is allowed. The orders of reference
dated 29.06.1998 passed by the Collector-Deputy Colonization,
Bikaner and consequential order of Board of Revenue dated
09.09.1998 are set aside.
25) In the circumstances, no order as to costs.
[2024:RJ-JD:53194-DB] (16 of 16) [SAW-389/2024]
26) Pending interlocutory applications, if any, shall stand
disposed of.
(MUNNURI LAXMAN),J (MANINDRA MOHAN SHRIVASTAVA),CJ
NK/-
Powered by TCPDF (www.tcpdf.org)
