- (1.) THIS is a reference made by the Commissioner, Udaipur under sec. 232 Rajasthan Tenancy Act on an application presented by the applicant Rao Manohar Singh under the said section against the order of Additional Collector, Udaipur, dated 14. 11. 1957.
(2.) WE have heard the learned counsel for the parties and examined the record as well. Briefly, the facts are that the applicant has been found to have an unauthorised occupation certain land in village Liyon Ka Gudha, Tehsil Girwa, Distt. Udaipur. A notice was served on him by the Tehsildar Girwa on 28. 6. 1957, that is, after the enforcement of the Rajasthan Land Revenue Act, 1956, asking him to vacate the land and submit objections if any on 15. 7. 1957. An elaborate reply, was submitted by the applicant on 27. 10. 1957. The learned Tehsildar gave him a hearing and after rejecting his objections ordered on 30. 8. 1957 that the land be vacated within a period of 30 days. An appeal was preferred by the applicant to the Additional Collector, Udaipur who also rejected the same. Instead of preferring any appeal or revision against this order of the Additional Collector, dated 14. 11. 57 the applicant preferred an application under sec. 232 as above to the Commissioner, Udaipur. The learned Commissioner having heard the parlies held that as the order had been passed by the Tehsildar under sec. 183 Rajasthan Tenancy Act, even though no provision of any Act had been mentioned in the notice issued originally to the applicant.) the proceeding will be deemed to have been taken under sec. 183 Rajasthan Tenancy Act which by virtue of sec. 217 (2) of the Act the Tehsildar himself could not finalise but should have submitted to the Assistant Collector for disposal and that all the orders passed by the lower courts thus being without jurisdiction deserved to be set aside and has submitted the case under sec. 232 for the order of the Board. The learned counsel for the applicant has relying on 1958 R. R. D. 59 urged that the Tehsildar could not pass final orders in the matter and further contended that notice had been issued to the Kamdar, Thikana Bodla and not to the applicant and Rishala Mewar in whose name the land had been entered was not State and, therefore, proceedings under sec. 91 Rajasthan Land Revenue Act could not be taken against him. It has been further urged that the procedure prescribed by sec. 91 of the Rajasthan Land Revenue Act has also not been fully observed in the matter. As against it, it has been urged by the learned Government Advocate that all the procedure prescribed by sec. 91 of the Rajasthan Land Revenue Act had been fully observed in the matter in as much as the applicant had been given due notice, he has given his reply in full, he had been heard fully and the case decided after disposing of all his objections and that when the applicant had put in his appearance in reply to the notice it was too late for him in the day to contend that the notice had been issued in the name of the Kamdar and not his own. When compliance had been made and this objection had not been raised in the replies submitted originally it could not be allowed to be taken now. Further, it has been contended that a revision or appeal could have been preferred against the order of the Additional Collector and so a reference application under sec. 232 of the Rajasthan Tenancy Act was not competent. It has also been urged that merely writing at the end of judgment that the orders was being passed under sec. 183 of the Rajasthan Tenancy Act did not change it to be one under that section, that the proceedings had been started after the enforcement of the Rajasthan Land Revenue Act and the procedure prescribed by sec. 91 thereof had been followed and that therefore the order was one which purported to be under that section. In the first place we deal with the ruling cited on behalf of the applicant. It is very clearly stated therein that the proceedings under that case which started under sec. 183 of the Rajasthan Tenancy Act before the Land Revenue* Act come into force could not be deemed to have been commenced under sec. 91 of the Rajasthan Land Revenue Act and it was in that context that it was decided that the Tehsildar should not have passed the final orders in the matter but submitted the case to the Assistant Collector for final disposal. That case is clearly distinguishable from the present one in as much as the proceedings here were started in 1957 after the coming into force of the Rajasthan Land Revenue Act. The ruling, therefore cannot help the case of the applicant. Next we deal with the objection whether the reference is competent or not. A perusal of the file goes to show that a notice had been issued to the applicant, he had submitted a reply thereto, the objections taken in that reply were 'heard' and 'determined' by the learned Tehsildar and then alone final orders asking the applicant to vacate the land by certain date were passed. Sec. 91 of the Rajasthan Land Revenue Act authorises a Tehsildar to order a summary eviction of a trespasser from any land occupied by him without lawful authority. Before taking such proceedings and passing such orders the Tehsildar is required to issue under sub-sec. (3) thereof a notice specifying such land and setting out a date by which the alleged trespasser is required to vacate such land or to appear and show cause why he should not be so evicted therefrom. By sub-sec. (4) if the trespasser does neither vacate the land nor make any appearance in response to the notice so issued or where he does not vacate the land but makes an appearance but does not show any cause or makes any representation which is rejected after such enquiry and hearing as may be necessary in the circumstances of the case the Tehsildar unless the trespasser undertakes to vacate the land within a week's time or vacates within such time can order the removal of the trespasser from such Land and take possession thereof. All this procedure has been fully observed in the instant case and it is only after giving notice, having the reply of the applicant and hearing and disposing of his objections that the Tehsildar has passed the impugned order. The procedure followed by the Tehsildar is one laid down by this section. No such procedure has been laid down to be followed under sec. 183, Rajasthan Tenancy Act. That section only contemplates the issuing of a notice. In the notice issued in the instant case by the Tehsildar there is no reference to sec. 183. When there is no such reference in the notice to sec. 183 and the procedure followed is also one prescribed under sec. 91 of the Rajasthan Land Revenue Act, a mere writing at the end of the order of the Tehsildar that the application be disposed of under the provisions of sec. 183 Rajasthan Tenancy Act does not render, as has been rightly contended by the learned Govt. Advocate, the proceedings to have been commenced under section 183 Rajasthan Tenancy Act but on the other hand entitle them to be regarded as having been taken under sec. 91 of the Rajasthan Land Revenue Act. We do not, therefore, find any reason, not to treat that proceedings to be those under sec. 91, Rajasthan Land Revenue Act. When the proceedings are thus found not to be under the Rajasthan Tenancy Act but under the Rajasthan Land Revenue Act, a reference under sec. 239 of the Rajasthan Tenancy Act is clearly incompetent. Besides, such an order passed by the Tehsildar and Additional Collector could be appealed against or a revision could be preferred against the same. When a revision or appeal could lie a reference could not be held to be competent. The learned counsel for the applicant has also not been able to show as to why an appeal or revision was not preferred and why a recourse to extraordinary provision of reference which was not even under the law under which the proceedings was obviously as discussed above taken could be entertained. In view of this finding there does not remain any necessity for disposing of other objections raised by the applicant. This reference is, therefore, incompetent and is hereby rejected. .;