- (1.) THIS is a reference under section 232 of the Rajasthan Tenancy Act (No. 3 of) 1955, (hereinafter referred to as the Act) made by the Collector, Chittorgarh vide his order dated 1st August, 1961 against the order of the Tehsildar, Begun dated 7th November, 1960 in a case for the compensation of trees under section 80 of the Act.
(2.) THE brief facts leading to this reference are that Srimati Daulat Kumari preferred an application for compensation of certain mango trees amounting to Rs. 1500/-before the Sub-Divisional Officer, Begun which was transferred by him to the Tehsildar. THE Tehsildar referred it back to the Sub-Divisional Officer, Begun in terms of Section 217 of the Act, but it was returned with the observation that the Rules had been framed in that behalf. THE Tehsildar accordingly proceeded with the enquiry into the application. After a number of adjournments caused due to the absence of the Tehsildar, Devia appeared and he was granted an opportunity for filing a written statement. Before it could be filed the Tehsildar inspected the site and thereafter again at the request of Devia gave him an opportunity to file the written statement. He then recorded the evidence of the applicant before him, Srimati Daulat Kumari, and as the opposite party before him Devia and others made a default in appearance he gave an order awarding compensation amounting to Rs. 1500/ -. This order was passed on 7th November, 1960. Devia and his other companions preferred an appeal against it to the Collector, Chittorgarh on 17th Jan. , 1961 in which,besides attacking the decision on merits, it was also alleged that the Tehsildar had no jurisdiction to try the case and that the site was inspected behind their back and the enquiry had not been made in accordance with the Rules in that behalf. Nothing was, however, stated as to why the appeal was preferred so late. When the appeal came in for hearing the first question that cropped up was that of limitation; and the learned Collector held that the appeal was time barred. He, however, thereafter proceeded to treat the application for reference under section 232 of the Act and over-ruling the objection on behalf of Srimati Daulat Kumari, that no reference could be made in an appealable case, proceeded to examine the objection of the appellant before him. He found that the learned Tehsildar had neither framed issues nor passed an order that the case be proceed ex parte against the appellants before the learned Collector but that it was decided only on brief evidence produced by Srimati Daulat Kumari. It was also observed by him that the judgment went against the entries made in the Settlement records. He has, therefore, recommended that the order of the Tehsildar deserves to be set aside and has submitted the case to the Board accordingly for orders. We have heard the learned counsel for the parties at great length. It is being contended by Sri Sobhalal Dashora on behalf of Shrimati Daulat Kumari before us also very vehemently that the learned Collector could not have treated the appeal, found time-barred, as an application for reference and proceeded to refer the case to the Board. If this preliminary objection prevails, the reference automatically fails. We, therefore, examine it first. It would be relevant to reproduce Sec. 232 of the Act here : - 232. Power to call for record and refer to the Board : - The Commissioner or the Collector may call for and examine the record of any case or proceeding decided by or pending before any revenue court 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 proceeding, and, if he is of opinion that the order 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 and the Board shall, thereupon, pass such orders 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 Sec. 339. " There is nothing in the language of this section to debar the treating of a memorandum of appeal as an application for reference. That a reference cannot lie in case in which appeal is allowed is also in no manner supported by anything therein. The only restriction to the taking up action under this section is that given in the proviso there referred to above. That the present case is not covered by that proviso is absolutely clear. The learned Collector could, therefore, always examine the record of the present case prepared by the Tehsildar, it being already decided by him and he being subordinate to the Collector, for the purpose of satisfying himself (the Collector) as to the legality or propriety of the order passed and as to the regularity of the proceeding. The learned Collector could also, if he was of the opinion that the order passed or the proceeding taken needed varying, cancelling or reversing, refer the case with his opinion for the orders of the Board. The Board can pass such orders thereon as it thought fit. The learned counsel Sri Dashora has not been able to point out any law or ruling against the above referred clear position. Nor has the learned counsel for the other party Sri Tej Singh Mehta cited any other ruling or law in this behalf. On the other hand we find that in Samandass Vs. Lalla reported at 1960 R. R. D. 184, a Division Bench of this Board has observed, "there is nothing under Sec. 232 of the Act which debars the Collector or the Commissioner to make a reference to the Board of Revenue about varying, cancelling or reversing the order of a subordinate revenue court which was on satisfaction found to be illegal or improper for a regular superior court viz. , the Collector or Commissioner. The only exception to this power of reference is that it shall not be exercised in respect of suits or proceedings falling within the purview of Sec. 239. This observation was made, as would be evident from the judgment, when it was suggested that "the reference was incompetent because the aggrieved person failed to avail his right of appeal which lay to the Commissioner against the impugned order of the Assistant Collector. Thus it was held by the learned Division Bench that the reference was competent even when the right of appeal had not been availed of. In this case also the right of appeal, though attempted to be availed of, has become time-barred and therefore unavailable. We may refer here to Devia Vs. Bheria reported at 1955 R. L. W. (Revenue Supplement) 28, and Jetdan Vs. Baksha, 1955 R. L. W. (Revenue Supplement) 10 both single member decisions of the Board with reference to sec. 28 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1 of 1951 ). The provisions of that section were similar to that provision of sec. 232. It has been observed in Devia Vs. Bheria that if an appeal was not filed within limitation, a fresh application for reference could not be allowed. It cannot, however, be lost sight of that in that case the Additional Settlement Commissioner had been approached by way of revision when an appeal lay and it was dismissed on this ground. Thereafter an application was given under sec. 28 of the Act with the prayer that it be treated as appeal and it was this application which was disallowed by the learned Additional Settlement Commissioner who also found for cogent reasons recorded that it was not a fit case for reference to the Board. It was under these circumstance that the Board had refused to interfere with the findings of the learned Additional Settlement Commissioner. It would thus be seen that the point whether a prayer for reference could be entertained in appealable cases or not was not the main point of issue in that case. In the other case Jetdan Vs. Baksha also the Collector whom the application under sec 28 had been made had found no reasons to interfere with the decision of the lower court. The point for decision therein was whether a reference should have been made when the Collector himself could deal with the matter under reference. It was held that reference under these circumstances was misconceived. These cases therefore, cannot be taken to be an authority on the point that no reference under section 232 of the Act can lie against the decisions fromn which appeal could be prefered. The Division Bench case referred to above will also be more binding on this Bench than the Single Member Judgments even if it be taken in the of agrument only that this point of reference in appealable case was really the point for determination therein. An unreported case, Reference No. 4/bharatpur/1957-Man Mohan Vs. Rajendra Singh decided by a Division Bench to which one of us was party on 29th April, 1960 can also be referred to in this connection. In that case no appeal was preferred against the order of the Tehsildar and this point was not held to be a bar against a reference under section 232 of the Act, when justified on other grounds. It may also be observed herein that the remedy of reference under section 232 of the Act is a remedy entirely separate from that of appeal, review or revision provided thereby. The other three remedies depend upon circumstances entirely different. The remedy of reference is available whenever the Commissioner or the Collector calling for an examination the record finds that the subordinate Revenue Court had acted illegally or improperly or irregularly in the exercise of the proceeding and passing the order thereon. This power can be exercised both in cases decided as well as pending, when the power of appeal, review or revision can be exercised only in cases already decided. The exercise of the power cannot, therefore, be dependent upon the remedy of appeal available to the party. Rather, when the remedy of appeal, review or revision could be available, a party would never like to make a prayer for the exercise of the remedy of reference. It would be only when the other remedies are not available, may be due to any clauses whatsoever, that resort to this remedy will be made by any party. It is not dependent upon application by either party. It is open to the Collector himself for being made use of. He can do so either by calling for the record himself, in other words on his own motion, or at the application of any party aggrieved. Even when he comes across an appeal and finds that due to certain technical reasons, e. g. limitation etc. , he cannot take any action thereon but feels that it is necessary to examine the propriety, legality or regularity of any order or proceeding, there is nothing in this section to debar him from doing so and report the matter to the Board if he comes to the conclusion that the order needed to be varied, cancelled or reversed. Rather, it should be deemed to be a part of his duty to examine in this manner and take necessary action even when a case comes to him by way of appeal and he finds himself unable to proceed to dispose of the appeal. Now about the merits : The learned Collector has given a hearing to the parties and examined the record. He has come to the conclusion that neither proper issues were framed nor proper procedure was followed. His finding is also that even the record was not properly examined. All these are the facts affecting the legality, propriety and regularity of the order passed and the procedure adopted. We have already discussed above that the learned Tehsildar inspected the site without first having reply from Devi a and his companions. That the case continued to be adjourned for a very long time because of his own absence and therefore Devia and his companions might have been misled not to appear, was also overlooked by him. The procedure to be adopted in the decision of such cases under sec. 80 of the Act is provided by Chapter VI-A of the Rajasthan Tenancy (Board of Revenue) Rules, sec. 30b, 30c, 30d and 30e. On receipt of application in the form mentioned in 30a, the Tehsildar was to invite objections by issue of notice to the tenants fixing a date for filing such objections (Section 30b ). If any objections are filed, the nature of description of the scattered trees on the holding and the amount spent thereon so disputed, the Tehsildar might inspect the site in presence of the parties and place or record his inspection note (Section 30c ). He is thereafter to dispose of objections, if any, and determine the amount of compensation not exceeding the amount claimed having regard to the labour and capital required for planting such trees, the nature and kind of the soil of the land on the locality in which such trees stand, the market value of the timber and the average annual income of the fruits or the produce of such trees (Section 30d ). A bare perusal of the proceedings held by the Tehsildar goes to show that he has followed all these provisions more in breach than in observance. The framing of the issues may be material or not after the disposal of the case and the leading of the evidence by the parties. But it is not the point for decision in the present case. What is to be seen is whether the compensation awarded has been determined in accordance with the procedure laid down or not. It is quite clear it has not been done so. Besides the point of jurisdiction, so important in this case, has again also been overlooked. The amount claimed was Rs. 1500/ -. Vide section 217 (2) of die Act, the Tehsildar cannot hear any case under the Act in which the amount or value of the subject matter exceeded Rs. 300/ -. He did refer the case back to the Sub-Divisional Officer, who had returned it, without understanding the real implication, only because the Rules contained in chapter VI-A of the Rules referred to above laid down that the application will be submitted to the Tehsildar and other actions are also described in the Rules following to be taken by the Tehsildar. The learned Sub-Divisional Officer, however, failed to observe that even under the Third Schedule to this Act the application under sec. 80 of the Act was held triable at item 46a thereof by the Tehsildar but that it was subject to the provisions of sec. 217 (2) of the Act. When the provisions of sec. 217 (1) of the Act and of the Third Schedule thereto, were subject to the provisions of this sub-sec. (2) the provisions of the Rules made under the Act did naturally become subject to the restrictions imposed by this sub-sec. (2 ). Had the learned Sub-Divisional Officer not omitted to pay attention to this provisions of law, he would not have forwarded the case back to the Tehsildar for determination simply because of the employment of the expression "tehsildar" in the Rules. Notwithstanding anything in the Rules or in the Schedule, because of the provisions of in sub-sec. (2) of sec. 217 of the Act, the Tehsildar can enquire into and decide the proceedings for compensation of trees only when the amount claimed did not exceed Rs. 300/ -. In all cases involving an amount higher than this limit the case would be triable by the Assistant Collector and not the Tehsildar. The proceedings taken by the learned Tehsildar in this case are obviously without jurisdiction. The point of jurisdiction was examined by the Board in case Ram Raghunath Vs. State reported at 1958 R. R. D. 89. It has been held that no amount of consent or waiver could form jurisdiction over a court having none, and further that in absence of jurisdiction the judgment and orders of a court, however, appropriate or technically correct they might be were nullities not only voidable but void and had no effect whatsoever and deserved to be set aside or declared void by any court to which they might be presented. In Pitambardas Vs. Ramnath reported at 1955 R. R. D. 275 also the Board has held that the question of jurisdiction could be examined at any stage and if the Tehsildar dealing with the case was found to have no jurisdiction all the proceedings taken by him were ah initio void.
(3.) WE, therefore, accept this reference, set aside the order of the learned Tehsildar and remand the case to the Collector, Chittorgarh who will transfer it to the competent Assistant Collector for enquiry and decision afresh in accordance with law in the light of the observations made above. .;