- (1.) AN application was made by the Tehsildar, Chohtan, under sec. 232 of the Rajasthan Tenancy Act against the decision of the Assistant Collector, Barmer, dated 30. 9. 59 before the Collector, Banner, praying that the aforesaid order of the Asstt. Collector, Barmer, whereby he had awarded a decree in favour of one Meera granting him Khatedari rights over 100 bighas in Khasra No. 324 in village Booth by referred to the Board of Revenue for being set aside, as the same was not in accordance with the law and was not capable of execution.
(2.) THE learned Collector heard the counsel for both the parties and came to the conclusion that the order of the Asstt. Collector was repugnant to the statutory provisions of the law contained in sec. 16 (1) of the Rajasthan Tenancy Act. He, therefore, referred the case for the orders of the Board under sec. 232 of the Rajasthan Tenancy Act with the request that the decree passed by the learned Asstt. Collector on 30. 9. 59 be quashed and set aside. When the case came up for hearing before a D. B. of this Board, a preliminary objection was raised by the learned counsel for the plaintiff, Meera, that the reference was not competent as an appeal eventually lay to this Board. In his support, he cited Rao Shri Manohar Singh vs. THE State of Rajasthan (1960 R. R. D. 20) wherein a reference made under sec. 232 of the Rajasthan Tenancy Act was rejected by a D. B. of this Board on a number of grounds. THE learned D. B. who decided that the case had observed inter alia as follows: "when a revision or appeal could lie, a reference could not be held to be competent. " On the other hand, the learned Government Advocate cited Shaman Das vs. Lalla (1960 R. R. D. 184), wherein another D. B. had held that a reference under sec. 232 of the aforesaid Act was not incompetent merely because the aggrieved party had failed to avail of its right of appeal. It was, further, observed by the learned D. B. that the only exception to the power of reference was that it should not be exercised in respect of suits or proceedings falling within the purview of Sec. 239 of the Act. Accordingly, that D. B. accepted the reference and quashed the order passed by the Asstt. Collector. The D. B. which heard the reference received from the Collector, Barmer, was thus confronted with two conflicting views expressed by two different Division Benches of this Board, one taking the view that where the Board could exercise the power of appeal or revision, a reference was incompetent and the other taking the view that the only exception to the power of the Board in entertaining a reference was the suits or proceedings falling within the purview of sec. 239 of the aforesaid Act. The learned D. B. , therefore, framed a reference in the following terms and submitted the matter to Chairman for a decision by a larger Bench to resolve this conflict of views: "is the ;board competent to entertain a reference under sec. 232 of the Rajasthan Tenancy Act, if an appeal or revision lies to the Board against the proceeding, order or decree, which is sought to be varied, cancelled or reversed on grounds of illegality, impropriety or irregularity?" We have had the benefit of hearing Shri B. K. Parikh, Government Advocate as well as Shri S. N. Parikh and Shri Narendra Singh Chordia on behalf of the contending parties. For proper appreciation of the implications of sec. 232 of the Rajasthan Tenancy Act, it would appear appropriate to reproduce the same here. This sec. grants powers to the Collector to call for certain records and refer them to the Board for their orders. It reads as follows: "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 legality or propriety of the order passed and as to the the regularity of the proceedings, 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. 239. " A bare reading of this section would show that it confers wide powers on the Collector to call for and examine the record of any case or proceeding decided by or pending before any revenue court subordinate to him, for the purposes of satisfying himself as to the legality or propriety of the order passed and as to the regularity of the proceeding pending before such court and if in the opinion of the Collector, the order passed by a court subordinate to him is illegal or improper or the proceeding before such court is irregular, he is required to refer the same with his opinion thereon for the orders of the Board of Revenue. The only exception is that this power cannot be exercised in respect of suits or proceedings falling within the purview of sec. 239. The learned D. B. of the Board of Revenue which heard the reference received in Shaman Das vs. Lalla referred to above, rightly observed that there was nothing in sec. 232 of the Rajasthan Tenancy Act which barred the Collector from making a reference to the Board of Revenue for varying, cancelling or reversing the order of a subordinate revenue court, which was found to be illegal or improper by the Collector. The learned Members, further, observed that the only exception to this power of reference was that it could not be exercised in respect of suits or proceedings falling within the purview of sec. 239 of the Act. In our view, this is the correct interpretation of the provisions of sec. 232 of the Rajasthan Tenancy Act. The rule laid down in Rao Shri Manohar Singh vs. The State of Rajasthan (1960 R. R. D. 20) is clearly distinguishable for the reason that the reference in that case had emanated out of proceedings under sec. 91 of the Rajasthan Land Revenue Act. A perusal of the order shows that while making the reference, the learned Commissioner had mis-conceived the proceedings to fall under sec. 183 of the Rajasthan Tenancy Act and had, therefore, made reference under sec. 232 of the same Act. The Board of Revenue on the other hand came to the conclusion that the proceedings lay under sec. 91 of the Rajasthan Land Revenue Act, and, therefore, observed that where the proceedings disposed of by the Tehsildar were found not to be under the Rajasthan Tenancy Act, but under the Rajasthan Land Revenue Act, a reference under sec. 232 of the Rajasthan Tenancy Act was clearly incompetent. The learned Members, however, went on to add that as an appeal or a revision could be preferred against such an order; a reference could not be held to be competent. It was observed by them that the learned counsel for the applicant had not been able to show why an appeal or revision was not preferred and why a recourse to the extra-ordinary provision of reference which was not even (made) under the, law under which the proceedings were obviously taken, could be entertained. In this view of the matter, they rejected the reference as incompetent. As the above narration shows, the case of Rao Shri Manoharsingh lay under the Rajasthan Land Revenue Act and this was the main reason why the reference which had been made by the learned Commissioner under sec. 232 of the Rajasthan Tenancy Act was held to be incompetent. In the present case, the reference made by the Collector, Barmer, under sec. 232 of the Rajasthan Tenancy Act relates to proceedings under the same Act and suffers from no such handicap. In this connection, our attention has also been drawn to Karan Singh vs. Board of Revenue for Rajasthan (RLW 1962 Page 178 ). In that case, the Board of Revenue had proceeded to exercise its extra-ordinary powers of superintendence under sec. 9 of the Rajasthan Land Revenue Act in proceedings relating to ejectment under sec. 180 of the Rajasthan Tenancy Act and had set aside the order of ejectment on the ground of disregard of the provision contained in sec. 181 of the Rajasthan Tenancy Act. While examining the import of sec. 9 of the Rajasthan Land Revenue Act, the learned Judges made a reference to the corresponding powers of superintendence and control vesting in the Board under sec. 12 of the Rajasthan Board of Revenue Ordinance 1949. It was noted that under sec. 9, the powers of superintendence and control had been qualified by other provisions of the Act, whereas under sec. 12 of the Ordinance, there was no such qualification. With this difference, it was observed that the language of sec. 12 and sec. 9 was similar. In this connection, the learned Judges approvingly referred to Kana vs. Board of Revenue (ILR 5 Raj. 55), wherein it was held that the power of superintendence and control under sec. 12 of the Rajasthan Board of Revenue Ordinance 1949 included the power to revise judicial order also of the subordinate courts in appropriate cases. It was specifically mentioned in that case that such power of superintendence would generally not be exercised where a party had remedy by way of appeal and revision and did not avail of it even though the power may be there. It was, further, observed that the power of the Board under sec. 12 was to be exercised sparingly in extra-ordinary cases where interests of justice so required. The learned Judge then proceeded to examine whether in the circumstances, of the case before them such powers were available to the Board and if so to what extent. It was observed by them that in this particular case the respondent had not taken up the point of disregard of the provision of Sec. 181 of the Rajasthan Tenancy Act before the subordinate court. In fact he had made default in appearing before that court. Furthermore, he was not careful to go in appeal to the Addl, Commissioner within time. It was, therefore, held that he had waived his right of appeal which he possessed in law. Having waived the right to file an appeal, it was not competent to the Board of Revenue to giant him relief in exercise of powers of control and superintendence on the ground of disregard of Sec. 181. It was also observed that the Board had no power of revision under Sec. 230 if an appeal lay to the Board. In the instant case, a second appeal lay to the Board and the Board of Revenue, therefore, had no jurisdiction under Sec. 230 of the Rajasthan Tenancy Act to interfere in exercise of its revisional jurisdiction. It had power to interfere in appeal also only if the respondent had taken a second appeal after having filed the first appeal within time' to the Addl. Commissioner. It was therefore held that the second appeal not having been prosecuted according to law the Board could not use its appellate jurisdiction to grant relief to the respondent. Summing up their conclusions, the learned Judges held that in cases where appellate and revisional powers are not exercisable, the Board may exercise its powers of superintendence and control in the interest of justice in appropriate cases but in this case as the Board had appellate jurisdiction, it could not make use of its powers of superintendence and control. The order of the Board, therefore, was held to be without jurisdiction and quashed. As is obvious, this case defines the scope of Sec. 9 of the Rajasthan Land Revenue Act and cannot be held to circumscribe the express provision of law contained in Sec. 232 of the Rajasthan Tenancy Act. It was, further argued that the provisions of this section should not be allowed to be invoked in order to give a backdoor relief to a party which had failed to avail of the statutory provisions of appeal within the time given by law. That is to say, an aggrieved party should not be allowed to have recourse to the provisions of Sec. 232 of the Rajasthan Tenancy Act where it had failed to avail of the remedies of appeal or revision available to it under the law. In other words, the law of limitation should not be allowed to be circumvented if the remedy of appeal or revision as provided under the law was not availed of by the aggrieved party within the prescribed period. Sec. 3 of the Limitation Act, lays down that every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence subject to the provisions contained in Sec. 4 to 24. The provisions of this Section are peremptory and impose a duty on the court to dismiss the suit, an appeal or an application which is filed beyond time unless the delay is condoned under Sec. 5 of the Limitation Act. There is no discretion of the Court in this matter. Even if no plea of limitation is taken in defence, the courts are bound to apply the law of limitation automatically. However, it is well settled that where two remedies are available for one cause and different periods of limitation are prescribed, each remedy will be governed by its own period. The expiry of limitation for one remedy does not bar the other, provided the remedy, therefor, is alive. It may be noted here that according to Item 79 of the Third Schedule of the Rajasthan Tenancy Act, there is no period of limitation for the exercise of the power conferred on the collector by Sec. 232. In our opinion, therefore, it is open to the Collector to call for and examine the record of any case or proceeding decided by or pending before any revenue court subordinate to it for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of the proceeding at any time. It must, however. , be added that the power of reference is an extraordinary power and should be very sparingly used and only is cases which strictly fall within the scope of Section 232 of the Rajasthan Tenancy Act. It is also necessary that before a reference is made a full opportunity should be given to the affected parties to contest the same. As the Section reads, this extraordinary power has been given to the Collector for the purpose of satisfying himself with regard to the legality or propriety of the impugned order and the regularity of the proceeding and he is required to make a reference only if he comes to the conclusion that the order passed or the proceeding taken by subordinate court should be varied, cancelled or reversed.
(3.) AS was held in Sugan Singh vs. State of Rajasthan (RLW 1962 (Revenue Supplement) Page 79), a reference made without hearing the parties is not proper. Before a reference is made, the Collector must hear the contending parties and apply his mind. In the proceedings before the Collector, the affected parties could certainly set up the plea of limitation. A careful reading of this section would show that the powers vested by this section in the Collector are discretionary and a reference is to be made to the Board only when he is satisfied that the order of the lower court deserves to be varied, cancelled or reversed. The provisions of this Section are certainly not meant to be invoked in order to give a back door relief to a party which has failed to avail of the statutory provisions of appeal within the time prescribed by law. Each case will, thus, have to be examined on its own merits and a recourse may be made to the provisions of this Section only where cogent and valid reasons exist. We will, therefore, answer the reference as follows; - There is no bar to entertain a reference under Sec. 232 of the Rajasthan Tenancy Act even if an appeal or revision lies to the Board against the proceeding or the impugned order which is sought to be varied, cancelled or reversed. This power, however, lies within the discretion of the Collector who is expected to hear the affected parties before he decides to make a reference. In opposing an application for reference the contesting parties may certainly set up the plea of limitation and the Collector may make a reference only if he is satisfied that valid or cogent reasons exist. .;