- (1.) THIS is a revision application directed against the order of the learned Additional Collector, Ganganagar dated 20-7-60 , whereby he rejected the appeal and maintained the order of the Grm Panchayat sanctioning a mutation and conferring Khatedari rights u/s 19 of the Rajasthan Tenancy Act, on the respondents.
(2.) THE main ground urged in the application is that the Gram Panchayat had no jurisdiction to sanction a mutation which had the effect of conferring khatedari rights u/s 19 of the Rajasthan Tenancy Act Another point, which has been agitated is that the Gram Panchayat passed this impugned order at the back of the applicant and without affording him opportunity of being heard. The learned counsel for the applicant contended that the order of mutation granting khatedari rights u/s 19 of the Rajasthan Tenancy Act was passed without jurisdiction. A Panchayat had jurisdiction to sanction a mutation only in terms of Secs. 133, 134 and 135 of the Rajasthan Land Revenue Act and that conferment of khatedari rights u/s 19 of the Rajasthan Tenancy Act lies within the competence of an Assistant Collector only. It was further averred that in terms of Sec. 19 of the Rajasthan Tenancy Act, khatedari rights could only be conferred after an enquiry on the following matters - (a) Whether the applicant was entered in the registers as a tenant of khud-kasht or sub-tenant of the land other than grove land. (b) Whether the applicant held the said Sand from any of the persons enumerated in the Sec. 46 of the Rajasthan Tenancy Act; (c) Whether he was not entitled to khatedari rights due to the operation of proviso to sub-sec. (1) of Sec. 15 or under Sec. 15 (a) or 15 (b) or under Sec. 16 of the Act, and (d) Whether he suffered from any disability by virtue of lawful surrender or abandonment of the said land in accordance with the provisions of this Act or he was ejected from the said land, as a result of the execution of a decree or order of a competent court. I It was, therefore, contended that such an enquiry has to be completed by a competent officer before khatedari rights could be conferred and the Gram Panchayat was certainly not the body which could conduct such an enquiry. An enquiry of this nature could only be conducted by a competent revenue officer, it was argued. It was further contended that the khatedari rights had been granted only on the production of Girdawari records, which was not the record of rights and that the mutation was made at the back of the applicant and in his absence and without due notice to him. 1963 RRD 350 was cited in support of the applicant's contentions. It has been held in this case that before khatedari rights are conferred on a person u/s 19, he must show that he was a recorded sub-tenant in the record of rights at the commencement of the Act, and further that he did not hold land from a person and over which a person or persons enumerated in Sec. 46, had acquired khatedari rights. It has also been held that an enquiry of this nature presumes that notice must be served to the existing holder of the land and also on the person who had acquired khatedari rights and the latter must disclose whether he holds any other land which together with the land over which he acquires khatedari, was within the minimum and maximum area, prescribed under sec. 180 of the Rajasthan Tenancy Act. It has been held that it is only after such an enquiry that a proper order could be passed u/s 19 of the Act by the officer concerned. On behalf of the respondent, his learned counsel controverted the arguments advanced on behalf of the appellant. It was contended that the Assistant Collector had jurisdiction only in cases coming within the purview of sub-clause 2 of Sec. 19 of the Rajasthan Tenancy Act, whereas in the case of a recorded sub-tenant or tenant of khudkasht no enquiry was contemplated and on the production of record, khatedari rights would automatically be conferred on him. It was submitted that in terms of the rule laid down by this Board in 1969 RRD 66, power to sanction mutation had been delegated to the Gram Panchayats and the order of the Gram Panchayat was quite legal and in order. The order of Gram Pancha-yat was also supported on the basis of khasra Girdwari for Smt. 2008 to 2016. It was also argued that in the 3rd Schedule, no mention had been made as regards the class or rank of officer who is to conduct an enquiry envisaged in Sec. 19 of the Rajasthan Tenancy Act. The impugned order of the Additional Collector was supported on the ground that the Rajasthan Tenancy Amendment Act 1959 had conferred jurisdiction on the Gram Panchayats. During his rejoinder, the learned counsel for the applicant submitted that even khasra Girdawari for 2008 to 2016, were never produced before the Gram Panchayat, but only before the Additional Collector for the first time and he further argued that the khasra Girdawari was not the record of rights. He also controverted the standpoint that conferment of khatedari rights u/s 19 sub-clause (1) was automatic, if the applicant was a recorded sub-tenant of a tenant of the khudkasht at the commencement of the Act 1963 RRD 350 had laid the rule that an enquiry must be made before khatedari rights could be conferred. Another point which he stressed was that powers of Tehsildars have been delegated to the Gram Panchayats only in respect of Sec. 135 and 137 of the Rajasthan Land Revenue Act, as laid down in 1969 RRD 66, but Panchayat did not enjoy any powers to confer khatedari rights u/s 19 of the Rajasthan Tenancy Act. I have considered the contentions of the parties and perused the record. It is evidence from the record that a mutation conferring rights u/s 19 of the Rajasthan Tenancy Act was ordered by the Gram Panchayat without notice to the applicant. It is equally Clear that the relevant revenue record was not produced before the Gram Panchayat, who did not care to make any enquiry whatsoever into the matter. As held in 1963 RRD 350 it is obligatory that an enquiry must be held as envisaged in Sec. !9 of the Rajasthan Tenancy Act before khatedari rights could be conferred. This enquiry is related to entries in the record of rights to the effect that the applicant was a sub-tenant or tenant of khudkasht at the commencement of the Act and it is also related to the terms of Sec. 46 of the Rajasthan Tenancy Act with a view to ascertain whether the applicant did not suffer from any disability imposed on persons who hold land from the category of persons mentioned in Sec. 46. An enquiry has also to be made whether the applicant suffered from any disability imposed under the proviso to sub-clause 1 of See. 15 or under Sec. 15 (A), or 15 (B) or Sec. 16 and further that provisions of Sec. 180 of the Rajasthan Tenancy Act must also be observed before a final order is passed u/s 19 of the Rajasthan Tenancy Act. While it is true, that the 3rd Schedule is silent as regards the rank of Revenue Officer who will conduct this enquiry which is mandatory could not be deemed to be conducted by an officer below the rank of a Tehsildar. While the 3rd Schedule is quite clear that the officer competent to dispose of an application u/s 19 (2) is the Assistant Collector, it could not be deemed by any stretch of construction that a Gram Panchayat could confer khatedari rights u/s 19 of the Rajasthan Tenancy Act. In my opinion, the officer competent to make an enquiry required by the provisions of sec. 19 of the Rajasthan Tenancy Act is the Tehsildar, or an Assistant Collector, who enjoys all the powers of a Tehsildar. An application u/s 19 of the Rajasthan Tenancy Act can not be disposed of by any officer below the rank of a Tehsildar and its disposal by the Gram Panchayat is clearly without jurisdiction. The Gram Panchayat also acted illegally in disposing of this application without notice to the applicant, and at his back. The learned Additional Collector has taken a very erroneous view of law and as such the impugned order is, therefore, liable to set aside. The consequence therefore is that the order of the Additional Collector dated 20-7-60 as well as that of the Gram Panchayat is set aside. The file is remitted to the Collector, Ganganagar who will please ensure that the necessary entries made in the revenue record are struck off and that a fresh enquiry is made by the Tehsildar, Nohar in accordance with the provisions of Sec. 19 of the Rajasthan Tenancy Act. .;