- (1.) Instant writ petition has been filed by the petitioners assailing the orders dated 26/09/2018, 28/09/2018 and 14/01/2019, rejecting reference made by the Collector, making amendments and rejecting review petition filed by the petitioners respectively.
(2.) The case set up by the petitioners is that vide registered sale deed dated 26/11/1973 father of the petitioners sold piece of land of ten Khasras measuring 15 Bighas 10 Biswas having corresponding seven new Khasra numbers measuring 3.88 hectares in favour of the respondent no.2. It is submitted that the petitioners' father is from Scheduled Caste while respondent no.2 is a member of Scheduled Tribe. On 03/10/1975, the Sarpanch, gram Panchayat, Bhankrota sanctioned mutation on the basis of the aforesaid sale deed. On 17/03/1990, the respondent no.2 filed an application before the Assistant Settlement Officer for issuing Settlement Parcha in her name and for entering her name in revenue records. On 20/03/1990, the Assistant Settlement Officer made observations with regard to sale of land from SC person to ST but further observed that such mutation could not be cancelled by the department and approved the mutation in favour of the respondent no.2 w.e.f. 1973. After 34 years, the petitioners approached the revenue authorities on 20/07/2007 seeking mutation of the land in their favour after death of their father Ramchandra and an application was submitted to the Collector by them on 16/08/2007 alleging violation of Section 42(b) of the Rajasthan Tenancy Act, 1955 and to make a reference to the Board of Revenue under Section 82 of the Rajasthan Land Revenue Act, 1956 for seeking cancellation of the mutation dated 03/10/1975. The Collector registered the Reference No.133/2007 and after hearing of the affected parties sent the reference to the Board of Revenue vide its order dated 16/11/2016 seeking cancellation of mutation dated 03/10/1975. The Board of Revenue rejected the reference vide its order dated 26/09/2018 on the ground of extraordinary delay and latches. Certain corrections were made in its order vide order dated 28/09/2018. The review petition was preferred by the petitioners wherein written submissions were also filed. The Board of Revenue, however, rejected the review petition vide its order dated 14/01/2019.
(3.) Learned counsel for the petitioners submitted that the Board of Revenue did not give an opportunity of hearing to the petitioners and the order was passed at their back only on the ground of limitation although limitation does not apply to the provisions of Section 82 of the Act of 1956. Learned counsel further submitted that name of counsel for the petitioners was falsely written in the order-sheet whereas the fact is that the petitioners' counsel was conveyed on 06/09/2018 that the next date of hearing was 12/12/2018. It is submitted that the Board of Revenue has preponed the date and without hearing counsel for the petitioners passed the order. It is submitted further that on 28/09/2018 again, the petitioners' counsel was not heard while making corrections. It is also stated that on 28/09/2018, there was strike of the staff of the Board of Revenue and therefore, the petitioners filed an application on 02/11/2018 seeking review of the order dated 26/09/2018 read with order dated 28/09/2018. However, the same was rejected vide order dated 14/01/2019 and therefore, feeling aggrieved, the present writ petition has been filed. 3.1 Learned counsel for the petitioners further submitted that Section 82 of the Act of 1956 does not prescribe any limitation under the law for making reference to the Board of Revenue for setting aside any illegal proceedings. The sale carried on 26/11/1973 was void being in violation of Section 42(b) of the Act of 1955. It was submitted that on technical ground, the meritorious case could not have been thrown away by the Board of Revenue and the mutation No.212 opened by the Gram Panchayat was also not in accordance with law and the Sarpanch has travelled beyond his jurisdiction and under the influence of father of the respondent no.2. It was further submitted that the petitioners have come to know about the sale deed only after death of their father. The Board of Revenue has wrongly held limitation to apply stating after more than 30 years having expired, the petitioners have approached the concerned Collector. 3.2 Learned counsel for the petitioners further submitted that action of the Board of Revenue in not giving hearing to counsel for the petitioners is unjustified and prayed that the order passed by the Board of Revenue be set aside and the reference be allowed and the mutation opened on 03/10/1975 be set aside. 3.3 In written submissions filed, the aforesaid facts have been reiterated. Further, it has been stated that the High Court in its judgment passed in Budh Dan Vs. Board of Revenue and Ors.: 2005 RRD 97 held that delegation of powers to Gram Panchayat under Section 260(1)(b) of the Act of 1956 is illegal. It is further submitted that the order passed by the Board of Revenue is perverse. There was no occasion to refer to Section 175 of the Act of 1955 by the Board of Revenue. Learned counsel relied on judgment rendered in Chiman Lal Vs. state of Raj. and ors.: 2000(1) WLN 200 to submit that there the limitation is not provided, the Courts cannot apply the same. He further relied on judgment in Kaloo Chand and ors. Vs. The Board of Revenue and Ors.: 2003(1)DNL (Raj.) 315 to submit that the reference was accepted after almost thirty years. He also relied on judgment in Raju Ram Vs. The State of Raj. and ors.: 1999(2) WLC (Raj.) 610 where reference was accepted after 24 years. He also relied on judgment in Mangi Lal and Ors. Vs. State of Raj. and Ors.: 1998(1) WLC (Raj.) 625 where reference was accepted after 20 years and also relied on judgment in Kasturi Bai (Smt.) and ors. Vs. State of Raj. and ors.: RBJ(9)2002 Page 529 to submit that the limitation would not apply to reference under Section 82 of the Act of 1956. Learned counsel also relied on judgments in Balvant N. Viswamitra and ors. Vs. Yadav Sadashiv Mule (D) and ors.: 2004(8) SCC 706; Jagmittar Sain Bhagat and ors. Vs. Director, Health Services, Haryana and ors.: (2013)19 SCC 136 and Union of India Vs. Swaran Singh and ors.: AIR 1997 (SC) 462 with regard to lack of jurisdiction of Panchayat and also relied on Johra and ors. Vs. State of Haryana and ors.: AIR 2019 (SC) 542 to submit that there was violation of principles of natural justice and the Board of Hearing did not give any opportunity of hearing. ;