- (1.) THIS is an appeal against the judgment of the learned Additional Collector Sawai Madhopur dated 17. 2. 61 passed, not in appeal, but on a report made by the Sub-Divisional Officer against a mutation made by the Tehsildar Sawai Madhopur. We have heard the learned counsel for the parties and examined the record also very carefully.
(2.) IT appears that the mutation of the disputed Khasra numbers was made in favour of the appellants by the learned Tehsildar Sawai Madhopur in some proceedings not on record before us, nor cared to be brought on record by both the learned Sub-Divisional Officer and the learned Additional Collector dealing with this case. IT further appears that an application was presented objecting to this mutation, may be before the mutation order was actually passed, to Hon'ble the Revenue Minister by some persons. The Revenue Minister was pleased to direct that a report be sent for from the Collector. The original application was forwarded to the Collector who in his turn forwarded it to the Sub-Divisional Officer. The learned Sub-Divisional Officer made an inquiry into the case and came to the conclusion that the land belonged to Thikana Galta, that it was sold, after the resumption of the said Jagir, by Thikana Galta to the appellants, that it was a tank and a pal on which no Khatedari rights could accrue under sec. 16 of the Rajasthan Tenancy Act and that, therefore, the mutation in favour of the appellant had been made unlawfully and wrongly. He submitted his report for orders to the learned Collector Sawai Madhopur. Here it came to be dealt with by the learned Additional Collector. The learned Additional Collector holding that the land was coveted by the provision of sec. 16 Rajasthan Tenancy Act and as no Khatedari rights could accrue to anybody thereunder ordered the mutation to be set aside. IT is against this order that this appeal has been preferred. Obviously the learned Additional Collector sought to treat the order of the learned Tehsildar as a judicial one and, for the reasons given by him, ordered it to be set aside. The reasons may be quite sound inasmuch as no Khatedari rights could accrue in the lands covered by the provisions of sec. 16 of the Rajasthan Tenancy Act. But the learned Additional Collector had not come to seize of the case as an appellate court. He could not, therefore, pass an order directing the mutation order given by the learned Tehsildar to be set aside. This position has, after some arguments, been very frankly conceded both by the learned counsel for the respondent as well as the learned Government Advocate. In so far as this is concerned the order of the learned Additional Collector deserves to be set aside. It has been urged before us that as the matter has come before us, we may ourselves take notice of the illegality committed by the learned Tehsildar in mutating land covered by sec. 16 in favour of the appellants. We have not, however, before us the complete record of the case. As stated above, the proceeding carried out by the learned Tehsildar is not on the record. Nor even the mutation order passed by him is before us or on the record. It is therefore, very difficult for us to judge the correctness or otherwise of the variouse allegations, most of them very wide, made by the learned Sub-Divisional Officer in his report. Besides, in the absence of the record of the mutation, we presume that both the learned Sub-Divisional Officer as well as the learned Additional Collector carried out their inquiries and reached the conclusions that they did without even caring to know as to what was the order that was being taken objection to and what was objectionable and unlawful therein. In these peculiar circumstances, we do not find it possible to take any action ourselves in the matter at this stage. Hon'ble the Revenue Minister had been pleased to ask for a report from the Collector and the learned Additional Collector and the Sub-Divisional Officer should have contented thus to bring all the facts on record, along with the copy of the mutation order itself, and submitted the same by way of report to the Revenue Minuter for favour of taking further necessary action. Or if the learned Additional Collector instead of acting in his executive capacity as such, wanted to take a judicial action in the matter he should have followed the proper procedure laid down in law in this behalf. Sec. 82 of the Rajasthan Land Revenue Act laid down such a procedure. A Commissioner in accordance therewith could call for and examine the record of any case or proceedings held by any revenue court or officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of the proceedings; and if he was of opinion that the proceedings taken or order passed should be varied, cancelled or reversed, he was to refer the case with his opinion thereon for the orders of the Board in cases of judicial nature. It was for the Board thereafter to pass such orders as it thought fit. The learned Additional Collector or Collector should have, therefore, submitted the papers to the Commissioner for taking action under this section. As discussed above, however, neither of the above procedures has been adopted in this case. For want of full material on the file we too find ouerselves not in a position to take action in the matter at this stage. A sale by a Muafidar or Jagirdar after the resumption of the Muafi or Jagir cannot be called to be permissible. Lands in the bed of river or a tank used for occasional or casual cultivation as well as land covered by water and used for the cultivation of Singara or other produce cannot be allowed to pass in the Khatedari rights of any person. These are matters deserving of serious consideration and proper action if the learned Tehsildar is found to have acted in briech of them. But this can be done only in a regular and lawful manner as pointed out above and after actually examining the order passed by him. No amount of emotional arguments advanced by the learned Sub-Divisional Officer in his report can help otherwise in the matter. It would have been better if the learned Sub-Divisional Officer had, instead of indulging in the generalisation of his attacks on all and sundry and laying emphasis on the evidence of certain persons because of their particular connection or opinions, confined himself to pointing out the impropriety or illegality of the order passed by the learned Tehsildar after having placed the copy thereof on the record and recommended to the learned Collector on that very basis for referring the case to the Board or submitting the report to the Revenue Minister. The matter would have then been straightened out in a very regular and lawful manner. With the above observations we have got no option but to accept this appeal, set aside the order of the learned Additional Collector and remand the case back to the learned Collector himself for taking action now in accordance with law keeping in view the observations made above. And we order accordingly. . ;