SHETHNA, J. - (1.) THE petitioner has challenged in this petition the impugned order passed by the Collector and Dy. Commissioner, Colonisation on 11. 9. 95 (Annex. 2) making reference to the Board of Revenue under Sec. 232 of Rajasthan Tenancy Act, 1955 (for short, "the Act") and the impugned order at Annex. 3 dated 10. 10. 1997 passed by the Board of Revenue accepting the reference and setting aside the decree dated 9. 4. 95 passed by the Assistant Colonisation Commissioner, Kolayat (for short, "acc") in suit No. 159/84 in favour of the petitioner declaring him as "gair KHATHEDAR"
(2.) LEARNED counsel Shri Sharma for the petitioner submitted that a reference was made by the Dy. Commissioner, Colonisation under Section 232 of the Act after ten years of passing of decree by ACC on 9. 4. 85. He submitted that though no period of limitation is provided for making reference it should have been made within a reasonable time i. e. within one year as held by the Division Bench of this Court in case of Anandi Lal vs. State of Rajasthan and others (1 ). He, therefore, submitted that on this ground alone the impugned order of making reference to the Board of Revenue and the order passed by the Board of Revenue accepting the reference and setting aside the decree passed by ACC be set aside. It is true that there is a delay of about ten years in this case in making reference to the Board of Revenue against the decree passed by the ACC. It is also true that in Anandi Lal's case (supra) the Division Bench has observed that such power should be exercised within reasonable time, however, in Anandi Lal's case itself the Division Bench has made itclear that in case where fraud is committed and public interest is shown to be suffering on account of collusion between the public officers and the private parties, the revisional power can be exercised even after a period of one year if it is satisfactorily explained for exercising revisional powers after long time. It may also be stated that Anandi Lal's case (supra) has been later on explained by the Division Bench of this Court in case of State of Rajasthan vs. Shyam Lal and others Thus, there is no hard and fast rule for exercise powers late. It all depends upon the facts of each case and in a given case if the authority was satisfied that it was a collusive decree, which was not brought to the notice of the State for a long time, then there was nothing wrong on the part of the Dy. Commissioner, Colonisation to make a reference to the Board of Revenue as soon as it had come to his notice. Coming to the facts of this case, it is clear that the decree passed by ACC was not only without jurisdiction but it was a collusive decree. Maximum 25 Bighas land can be allotted to a landless person under Sec. 15-AAA of the Act whereas in this case the petitioner got a decree for 130 Bighas land from ACC on an oral evidence of three witnesses and on the basis of Khasra Girdawari in which the name of the father of the petitioner was shown only for the three years from Samvat year 2020 to 2023 and "dhhal BANCHH" for Samvat year 2019 to 2021 without considering the reply filed by the Tehsildar and other documentary evidence like Jamabandi etc. which shows that the land belonged to the State. Thus, on facts of this case, it cannot be said that there was a gross delay in making the reference on the part of the Dy. Commissioner, Colonisation and accepting the same by the Board of Revenue. In this case, the petitioner is claiming possession of the land in question of 130 Bighas prior to Samvat year 2012 then the question is why he filed suit for declaring himself as Gair Khatedar only in 1984 on the basis of long continuous po-ssession of the land? From the order passed by the A. C. C. decreeing the suit in favour of the petitioner it is clear that it was a collusive decree. It may be stated that the decree was passed in 1985 and as soon as it had come to the knowledge of the authority in 1992 the reference proceedings were initiated immediately in 1992. Thus, there was a delay of seven years and not ten years in making reference. It may further be stated that in the record, the land was shown as Government land in Samvat year 2017 i. e. 1960 A. D. after detail land settlement survey in the village for about two months and every villager of the village was in know of it. Parcha Khatoni was given to the genuine land holders after inviting objections but no such objection was ever raised by the petitioner for more than 25 years and he filed a suit only in 1984 after canal water reached there. Second submission of Mr. Sharma was that when there was a specific provision of filing appeal against the decree dated 9. 4. 85 passed by the ACC reference under Sec. 232 ought not to have been entertained after a delay of ten years by the Board of Revenue. It is true that there was a statutory remedy of appeal to challenge the decree dated 9. 4. 85 passed by the ACC, which was not availed of and instead of that reference was made. But on the facts of this case, it was meaningless to file an appeal after so many years when the State came to know about the passing of such collusive decree very late. When the two remedies are provided and first remedy of appeal became meaningless then there was nothing wrong on the part of the State to avail the second remedy of reference. When there is no specific embargo either under the Act or under the law then in such type of cases remedy of reference can always be availed of. Hence, the second submission of Mr. Sharma is also rejected.
(3.) MR. Sharma then submitted that the Board of Revenue committed an error in accepting reference on the ground that except the oral evidence in favour of the petitioner, there was no documentary evidence and the decree was collusive. He submitted that even on the oral evidence, the decree can be passed. In support of his submission, he relied upon the judgment of Division Bench of this Court in case of Saukhan vs. State of Rajasthan & others In Saukhan's case the Division Bench has stated that when the oral evidence is truthful and is admissible then in absence of documentary evidence it can be relied upon otherwise not. There is no quarrel with the principle laid down by the Division Bench of this Court. But oral evidence must be truthful and reliable. If documentary evidence like Jamabandi etc. was against the petitioner and when the State has specifically pleaded in the reply that they were never in continuous possession of the land then mere oral evidence of three persons that they were having possession since long cannot be relied upon. Therefore, in my opinion, the Board of Revenue has rightly held that on the facts of the case, the oral evidence of three witnesses ought not to have been relied upon by ACC in absence of authentic documents produced by the petitioner in support of case of their old continuous possession on the land. Lastly, it was submitted by Mr. Sharma that while setting aside the decree passed by the ACC, the Board of Revenue ought to have remanded the matter to the ACC to try the suit afresh and decide the same in accordance with law. In sup-port of his submission, Mr. Sharma has relied upon a judgment of this Court (Hon'ble Shri Bhagwati Prasad, J.) delivered on 3. 5. 99 in SB Civil Writ Petition No. 477/98 It is true that the matter was remanded in aforesaid case by my learned brother Shri Bhagwati Prasad, J. to the trial Court i. e. ACC for deciding the suit afresh. However, it appears from the judgment and order passed by my learned brother Bhagwati Prasad, J. that the Board of Revenue accepted the reference and set aside the decree passed by ACC on the ground that State was not given chance to put up its case. That is not the case here. As stated earlier, in the instant case the Board of Revenue has clearly found that it was a collusive decree, therefore, refused to rely upon the oral evidence led by the petitioner. Thus, in my humble opinion, the judgment of my learned brother Bhagwati Prasad, J. in above writ petition will not be applicable in this case. Before parting I must state that one more submission was made by learned counsel Shri Sharma about the competency of Dy. Commissioner, Colonisation, in making reference. He submitted that only Commissioner, Colonisation was empowered to make the reference and not the Dy. Commissioner Colonisation. In support of his submission, he had tried to place reliance upon the notification dated June 15, 1992 issued by the State Government. It may be stated that this point was neither raised before the Dy. Commissioner, Colonisation at the time of reference proceedings nor before the Board of Revenue in reference. However, for the first time in ground (d) of the petition this point is raised, which would not be permitted to be raised for the first time by this Court in a writ petition filed under Article 226/227 of the Constitution of India. ;