1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: ORDER D.B. Civil Special Appeal No.530/2002 Gokul Ram & Ors. Vs. Board of Revenue & Ors. DATE OF ORDER :: 1.12.2009 PRESENT HON'BLE MR. JAGDISH BHALLA, CJ. HON'BLE MR. PRAKASH TATIA, J. Mr. SM Parihar, for the appellant. Mr. Sandeep Bhandawat,for the respondents. <><><> BY THE COURT: (Per Hon'ble Tatia, J.) Heard learned counsel for the parties . The appellants' predecessor Surta Ram preferred the present writ petition no.396/1998 to challenge the order of the Board of Revenue, Rajasthan, Ajmer dated 20th June, 1997 passed in Reference Case No.8/96/IA/Barmer whereby the Board of Revenue accepted the reference made to it by the District Collector, Barmer vide order dated 28th July, 1995 only for setting aside the judgment and decree dated 11.5.1984 and while doing so, cancelled the land allotment 2 order dated 27.2.1979 passed in favour of appellants' predecessor Surta Ram. The writ petition was dismissed the learned Single Judge vide judgment dated 4th July, 2002, hence, this DB Special Appeal. The facts show that a suit for declaration was filed by one Dallu S/o Shri Isan against the Tehsildar, Chautan and Surta Ram – the predecessor of the appellants in the court of Asstt. Collector (Headquarters), Barmer under Section 88 and 188 of the Rajasthan Tenancy Act, 1955 for declaration of Khatedari Tenancy right for the land of Khasra no.171/107 measuring 72 bighas 5 biswas. The said suit was decreed by the trial court on 11th May, 1984 and Khatedari Tenancy right of the plaintiff Dallu was declared. The Tehsildar, Chautan submitted an application under Section 232 read with Section 221 of the Rajasthan Tenancy Act, 1955 before the Addl. Collector, Barmer only for sending the reference to the Board of Revenue for setting aside the said decree dated 11th May, 1984 upon which reference case no. 95/95 was registered. The Tehsildar, Chautan requested for sending the matter to the Board of Revenue for setting aside of the decree dated 15.5.1996 passed by the Asstt. Collector, Barmer on the ground that 3 land in question was pasture land over which, as per sub- section (i) of Section 16 of the Rajasthan Tenancy Act, no Khatedari right can accrue. The said reference application for making reference was allowed by the learned Addl. District Collector, Barmer vide order dated 28th June, 1995 after observing that since land is pasture land, therefore, the decree passed by the trial court was contrary to law. Then reference made by the learned Addl. Collector, Barmer to the Board of Revenue was allowed by the Board of Revenue vide order dated 20th June, 1997. The Board of Revenue set aside the decree dated 11th May, 1984 passed by the Asstt. Collector, Barmer and while doing so, further set aside the order of the State Government dated 27.2.1979 by which 50 bighas of land was allotted to the appellants' predecessor Surta Ram by the State Government vide order dated 27.2.1979. Surta Ram in his life time preferred the writ petition which was dismissed by the learned Single Judge vide order dated 4th July, 2002, referred above. Hence, this D.B. Special Appeal by the legal representatives of original allottee Surta Ram. Learned counsel for the appellants submitted that the order passed by the Board of Revenue dated 20th June, 1997 4 so far as it relates to setting aside of the order of the allotment made by the State Government dated 27.2.1979 is wholly without jurisdiction as legally no reference is maintainable against the State Government's order and in fact no proceedings was ever initiated against the order dated 27.2.1979 and the reference was made only against the decree dated 11th May, 1984 and, therefore, the Board of Revenue could have set aside only the decree dated 11th May, 1984 for which appellants have no grievance. Further it has been submitted that under Section 232 or under Section 221 of the Rajasthan Tenancy Act no order of the State Government can be set aside as State Government is not the court subordinate to Board of Revenue. The facts referred above are not in dispute as admittedly the land in question was allotted to Surta Ram vide Annex.1 by order dated 27.2.1979 of the State Government by exercising powers under the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 as the appellants' predecessor Surta Ram was a refugee and was entitled to allotment of land. The land has been shown as Barani (unirrigated) in the order of allotment dated 27.2.1979. The Section 232 of the Act of 1955 is as 5 under: “232. Power to call for record and refer to the Board. -- 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 the legality or propriety of the order passed and as to the regularity of the proceeding, 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 Section 239." The Section 232 empowers the Collector to call for and examine the record of any case or proceedings decided by or pending before any revenue court subordinate to him and if he feels satisfied that order or decree passed by the court be varied, cancelled or reversed then he can refer the case with his opinion to the Board of Revenue. Section itself is very clear and the District Collector has no jurisdiction to send the reference to the Board of Revenue against any order passed by the State Government as the State Government is not a “court subordinate” to the Collector. The similar is the position under Section 82 of the Rajasthan Land Revenue Act, 1956 whereunder the 6 reference can be made to the Board of Revenue by the District Collector if he finds any illegality and impropriety in any order or proceedings pending or decided by any revenue court or officer subordinate to him. Therefore, under Section 82 of the Rajasthan Land Revenue Act, 1956 also the District Collector had no jurisdiction to make a reference of the order passed by the State Government. It appears that this legal issue has escaped notice of the Board of Revenue and also was not noticed by the learned Single Judge. In view of the above, the appeal is allowed and the order passed by the learned Single Judge dated 4th July, 2002 and the order passed by the Board of Revenue dated 26th June, 1997 are set aside so far as it relates to setting aside the order dated 27.2.1979 alloting land of Khasra no.171/107 measuring 50 bighas to the appellants' predecessor Surta Ram is concerned. [PRAKASH TATIA], J. [JAGDISH BHALLA],CJ cpgoyal/-