- (1.) THIS reference has been received from the Collector Sirohi seeking clarification as to how the proviso to sec. 19 sub-sec. (1) of the Rajasthan Tenancy Act could be given effect to by the Tehsildar without inviting objections in respect of lands about which he thinks Khatedari rights should accrue to a sub tenant on the basis of entries in the annual register now that rules 3 to 11 of Tenancy (Board of Revenue) Rules, 1955 for giving effect to Khatedari rights have been "deleted".
(2.) BRIEFLY, the facts are that the respondents had applied to the Tehsildar for grant of Khatedari rights to them in accordance with sec. 19 sub-sec. (1) of the Rajasthan Tenancy Act. The Tehsildar having accepted the application of respondents, Vishweshwar Dayal appellant filed an appeal before the Collector and urged that it was incumbent on the Tehsildar to make an enquiry to ascertain that the land in question was not held from any of the persons enumerated in sec. 46 of the Tenancy Act. The Tehsildar having failed to do so it was argued by the learned counsel for the appellant, that the rights of the appellant had been prejudiced as he claimed the benefit of the proviso under sec. 19. On the other hand, it was argued on behalf of the applicants respondents that the rules 3 to 11 having been amended vide Notification No. 11089 Rev. B. dated 5. 9. 1950, Gazette IV-C l0. 12. 1959, it was not now necessary for the Tehsildar to make an enquiry before accepting the claim of a subtenant under sec. 19 of the Rajasthan Tenancy Act. I have heard the counsel for the applicants respondents as well as the appellant and the Government Advocate. The counsel for the appellant has drawn my attention to 1963 RRD 350 which seeks to clarify the issue and reads as follows : - Before khatedari rights could accrue to a person under sec. 19, he must show that he was a recorded sub-tenant in the Record of Rights at the commencement of the Act. Further, it has to be seen whether as laid down in the proviso to sub-sec. (1), that the land on which a person acquired khetedari rights is not held by those persons, who are enumerated in sec. 46 and other -matters mentioned in the proviso. These provisions contained in sec. 19 clearly show that an enquiry is contemplated before the officer is satisfied that a khatedati right could be granted and a person is recorded as sub tenant. An enquiry would necessarily mean a notice to the existing holder of the land and also to the person, who acquired khatedari right to disclose whether he holds any other land to which if this* land over which he acquires khatedari rights is added, would offend the minimum and maximum area prescribed under sec. 180. It is only offer this enquiry is made that a proper order could be passed under- sec. 19 by the officer concerned. At the same time, my attention has also been drawn to 1955 RRD p. 65 which is a Full Bench ruling of the Board of Revenue and is very pertinent to the case under reference. It lays down that - The Collector can make a reference in a case or proceedings decided by or pending before any Court subordinate to him, for the purposes of satisfying himself as to the legality and propriety of the order passed. But where the appeal was pending before the Collector himself it was held that he should not have made a reference to the Board. In view of this unequivocal enunciation, it is obvious that the reference made by the Collector is incompetent. I, therefore, remit the case to him for deciding the appeal lying before him in accordance with the law and the principle of natural justice. .;