SUNIL KUMAR GARG, J. - (1.) THIS writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioners on 8.9.1988 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 25.10.1985 (Ex. 6) passed by the learned Addl. Collector, Jalore (respondent No. 2), by which a reference under Section 82 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as 'the Act of 1956') was made to the Board of Revenue, Ajmer (respondent No. 1) with the prayer that mutation No. 2 dated 15.11.1959 ordered by Sarpanch, Gram Panchayat, Narsana in respect of agriculture land bearing Khasra No. 422 measuring 33 Bigha 5 Biswas situated in village Lunawas in favour of the deceased Sagar Mal and present petitioners be cancelled as it was entered in the revenue record in violation of mandatory provisions of Section 42 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act of 1955') and the judgment dated 16.12.1987 (Ex. 7) passed by the Board of Revenue, Ajmer (respondent No. 1) by, which the reference was accepted and mutation No. 2 dated 15.11.1959 was cancelled and the order dated 27.4.1988 (Ex. 8) passed by the respondent No. 1 Board of Revenue by which the review petition filed by the petitioners was rejected, be quashed and set aside.
(2.) IT arises in the following circumstances: The petitioners are heirs of one Sagar Mal (hereinafter referred to as 'the deceased'). The deceased entered into an agreement for sale of land bearing Khasra No. 422 measuring 33 bighas 5 Biswas situated at Lunawas Teh. Bhinmal with respondents No. 4 to 7 Jepla, Tejia, Ladia (who died during the pendency of this writ petition and his LRs. were taken on record) and Mana respectively, who are sons of one deceased Likhma, who was Khatedar of land in dispute, on 28.4.1954 and that land was sold to the deceased Sagar Mal for a consideration of Rs. 140/ -. Thereafter, the deceased Sagar Mal was put in possession of the land in dispute in pursuance of the said agreement and he cultivated the land and Girdawari was also entered in his name. The deceased Sagar Mal also filed an application before the Tehsildar, Jaswantpura for mutation of land in dispute in his name. Thereafter, the respondents No. 4 to 7 further executed a sale -deed (Ex. 2) of the land in dispute in favour of the deceased Sagar Mal on 31.12.1956 and mutation was also attested in the name of the deceased Sagar Mal and petitioners No. 1 and 2 Kaloo Chand and Donger Mal respectively on 15.11.1959. The Tehsildar, Jaswantpura initiated proceedings under Section 91 of the Act of 1956 against the deceased Sagar Mal and the petitioners No. 1 and 2 Kaloo Chand and Donger Mal respectively. These proceedings resulted in favour of the deceased and the petitioners and it was held by the Naib Tehsildar, First, Tehsil Bhinmal vide his order dated 17.7.1971 (Ex. 1) that the respondents No. 4 to 7 had entered into an agreement for sale of land in dispute with deceased Sagar Mal on 28.4.1954 and they delivered the possession of the land in dispute to the deceased Sagar Mal in pursuance of the said agreement and since the possession or the deceased and the present petitioners No. 1 and 2 Kaloo Chand and Dungar Mal over the land in dispute was found lawful, therefore, the proceedings initiated against them under Section 91 of the Act of 1956 were dropped. The further case of the petitioners is that thereafter, the State Government initiated proceedings under Section 175 of the Act of 1955 against the petitioners as well as the transferors (respondents No. 4 to 7) and in these proceedings, a reply was filed by the respondent No. 5 Tejia before the Assistant Collector, Bhinmal stating inter -alia that he and his brothers (respondents No. 4, 6 and 7) sold the land in dispute to deceased Sagar Mal in 1954 and thereafter, in 1956, the registry was got done in the name of deceased Sagar Mal and since 1955, the deceased Sagar Mal was in possession of the land in dispute and thus, it was prayed by the respondent No. 5 Tejia that the notice issued against him be withdrawn. A copy of the reply filed by the respondent No. 5 Tejia before the Asstt. Collector, Bhinmal is marked as Ex. 3. The Assistant Collector, Bhinmal vide his order dated 31.1.1978 (Ex. 4) dropped the proceedings under Section 175 of the Act of 1955 holding inter -alia that the deceased and petitioners had been in possession of the land in dispute for a long period and the proceedings under Section 175 of the Act of 1955 were also barred by time. Later on, these proceedings were converted into a suit. The further case of the petitioners is that after the decision of the Assistant Collector, Bhinmal dated 31.1.1978 (Ex. 4), the respondents No. 4, 6 and 7 filed a suit for declaration and permanent injunction against the deceased and present petitioner No. 2 and that suit was dismissed by the Assistant Collector. Bhinmal vide his order dated 7.3.1983 (Ex. 5) holding inter -alia that the deceased was found in possession of the land in dispute since Samvat 2030 and since the suit was filed on 28.3.1978 after the expiry of 12 years, therefore, the suit was found barred by time. The further case of the petitioners is that against the order of the Assistant Collector, Bhinmal dated 7.3.1983 (Ex. 5), the respondents No. 4, 6 and 7 filed an appeal before the Revenue Appellate Authority and the same is pending. The further case of the petitioners is that thereafter, the respondents No. 4 Jepla and 8 Smt. Dhoni filed an application under Section 82 of the Act of 1956 before the learned Addl. Collector, Jalore (respondent No. 2) for setting aside the mutation No. 2 dated 15.11.1959 effected in the name of the deceased Sagar Mal and the petitioners No. 1 and 2. The learned Addl. Collector, Jalore (respondent No. 2) through his order dated 25.10.1985 (Ex. 6) made a reference under Section 82 of the Act of 1956 before the Board of Revenue for cancellation of mutation No. 2 dated 15.11.1959 made in favour of the deceased Sagar Mal and the petitioners No. 1 and 2 in respect of agriculture land bearing Khasra No. 422 measuring 33 Bigha 5 biswas situated in village Lunawas holding inter -alia: (i) That a sale was made in favour of the deceased and the petitioners by the respondents No. 4 to 7 through registered sale deed dated 31.12.1956. (ii) That the deceased and petitioners were not members of the Scheduled Caste category, while respondents No. 4 to 7 were members of the Scheduled Caste category. (iii) That previously the land was entered in the name of respondents No. 4 to 7 as Khatedari land. (iv) That after the sale, mutation entered in favour of the deceased and petitioners in the revenue record on 15.11.1959. (v) That the sale was effected after 22.9.1956 i.e. after the amendment made in Section 42 of the Act of 1955. (vi) That since the respondents No. 4 to 7 were members of the Scheduled Caste category and sale by them to the non -Scheduled Caste category persons was barred by the amended provisions of Section 42 of the Act of 1955, therefore, the said sale was found in violation of the amended provisions of Section 42 of the Act of 1955 and thus, a reference was made by the learned Addl. Collector to the Board of Revenue for cancellation of mutation No. 2 dated 15.11.1959. 2. The Board of Revenue, Ajmer (respondent No. 1 through judgment dated 16.12.1987 (Ex. 7) accepted the reference made by the learned Addl. Collector, Jalore through order Ex. 6 dated 25.10.1985 and cancelled the mutation No. 2 dated 15.11.1959 made in favour of the deceased and the petitioners. The petitioners preferred a review petition, but the same was also rejected by the Board of Revenue, Ajmer (respondent No. 1) vide order dated 27.4.1988 (Ex. 8). Hence, this writ petition with the prayers as stated above. In this writ petition, the following submissions have been made by the learned Counsel appearing for the petitioners: (i) That the Act of 1955 received the assent of the President on 15.10.1955 and the amendment made in Section 42 of the Act of 1955 by the Rajasthan Tenancy (Second) Amendment Act, 1956 Act No. 78 of 1956 (hereinafter referred to as 'the Amendment Act of 1956') with effect from 22.9.1956 did not receive the assent of the President of India and, therefore, the so -called amendment on which reliance was placed by the learned Addl. Collector while making a reference to the Board of Revenue, has got no validity and thus, the sale made by the respondents No. 4 to 7 in favour of the deceased and the petitioners was not affected at all. Apart from this, the subsequent Amendment Act No. 12 of 1964 pertaining to Act of 1955 received the assent of President of India and, therefore, the amendment made in Section 42 of the Act of 1955 by the Amendment Act of 1956 should come in force from the date Amendment Act No. 12 of 1964 came in force and not with effect from 22.9.1956. From this point of view also, the reference was bad in law. (ii) That since the Amendment Act, 1956 did not receive the assent of the President of India, that Act itself was void being in contravention of Articles 19(f) and 14 of the Constitution of India.
(3.) ON the other hand, the learned Counsel for the respondents supported the impugned orders passed by the learned Addl. Collector, Jalore and the learned Board of Revenue Ajmer.;