BHURA RAM Vs. DAULAT SINGH
HIGH COURT OF RAJASTHAN
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(1.)THIS revision has been presented in respect of order of Additional Collector, Sikar dated 21st January, 1966. The facts of the case are that by mutation order dated 3-12-1964 the Tehsildar, purporting to act under sec, 19 of Rajasthan Tenancy Act changed the Khatedari of Khasra number 314 of village Samrathpura from the name of Daula, non-applicant to the name of Bhura, applicant. On 9-11-1965 the successor of the Tehsildar who passed the order of 3-12-1964 wrote to the Additional Collector, Sikar and stated that Daul Singh (namely Daula) was a military man and so under sec. 46 Rajasthan Tenancy Act his land could not be mutated in the name of Bhura. Cancellation was requested. The Additional Collector Sikar ordered cancellation of the mutation after giving notice to Bhura and hearing him. Bhura has come up in revision.
(2.)I have heard the advocates for the parties and have perused the record. The Advocate for petitioner contended that the whole matter bristled with irregularities. The Tehsildar having written to the Additional Collector, the latter chose to treat the communication of the Tehsildar as an appeal. This was absolutely un-warranted. The Additional Collector had given no proper opportunity to Bhura for producing his evidence and had stated against the record that Bhura did not avail of opportunities given. It was pleaded that the case should be remanded to the Additional Collector for deciding it after hearing both the parties properly.
The Advocate for non-applicant conceded that order of the Additional Collector could not be sustained, He, however, stated that the original mutation itself was illegal because it went against sec. 46 of Rajasthan Tenancy Act and also because no notice was given to his client before his khatedari was altered. Rulings of the Board of Revenue were cited on the latter point.
I have considered the matter. The order of the Additional Collector and the procedure followed by him before he passed this order are both clearly very irregular. How a letter of a Tehsildar could be treated as an appeal is beyond comprehension. That Bhura was not allowed proper opportunity is also evident. The point, however, is that the mutation order of 3-12-64 is also plainly illegal. It has been held again and again that in mutation cases parties should be heard, 1965 R. R. D. page 199 and R,r. D. page 350 may be cited in this connection. It is in consonance with principles of natural justice that rights of a party should not be affected without giving him hearing. The mutation order of 3-12-64 was passed without giving any opportunity to Daulla who is apparently a military man. Should this be so and if the land is in his khatedari (in the mutation the land has been transferred from his name; sec. 46 of Rajasthan Tenancy Act would come in play.
The Advocate for revisionist pleaded that the case should be re-heard by the Additional Collector while the Advocate for non-applicant argued that the order of 3-12-64 also being bad in law should be quashed simultaneously. Obviously, the petitioner wants that the Additional Collector's order should go but the mutation should remain while Daula wants that the Tehsildar's order by which Khatedari went to Bhura should also be quashed. I find that if the plea of non-applieant is conceded he really wins the case though technically the order of the Additional Collector passed in his favour is set aside. If the Tehsildar's order of 3-12 64 is quashed the khatedari remains in his name. However, there can be no two opinions about the illegality of the Tehsildar's order. It has also been noted that the Additional Collector was wrong in treating the report of Tehsildar as an appeal. Thus the Additional Collector had no jurisdiction to function as an appellate Court. If necessary he should have made a reference to Board of Revenue. Thus remand to him is ruled out.
The Advocate for petitioner argued that the right which accrued to Bhura by the order of 3-12-64 should not be set aside behind his back. I note that he has been heard. The Board of Revenue has to set aside an illegal order which comes to its notice in the course of a revision. Sec. 230 specifies that the Board of Revenue may pass such orders in cases as it thinks fit.
In spite of the fact, therefore, that Daula will gain his ends for the time being without having preferred an appeal against the order of 3-12-64, I have no option in the circumstances of the case but to strike down the mutation order of 3-12-64 alongwith the Additional Collectors order. I order accordingly. The revision is accepted. .
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