IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 276 of 2008 CHHAIL SINGH & ORS V/S STATE OF RAJ AND ORS Mr. NS ACHARYA, for the appellant / petitioner Mr. MR SINGHVI & Mr. SUNIL BHANDARI, for the respondent. Date of Order : 17.4.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. JUDGMENT -------- BY THE COURT: (PER HON'BLE GUPTA,J.) This appeal has been filed by the appellants, who are ultimate transferees against the judgment of the learned Single Judge dt. 10.3.2008, dismissing the writ petition, thereby upholding the order of the Board of Revenue Annexure-11 dt. 12.3.1999, whereby the learned Board of Revenue had accepted the reference made by the Collector, Jalore, vide order dt. 17.8.1998, making reference to the effect, that the judgment dt. 30.7.1969 passed by the Assistant Collector, Jalore in Suit No. 4/69 is violative of the provisions of Section 42(b) of the Rajasthan Tenancy Act,1955, hereafter to be referred to as the Act of 1955. According to which the land of Scheduled Caste has been mutated in favour of a person not belonging to Scheduled Caste, and recommended for restoration of the land in favour of the original Khatedars, being the Scheduled Caste persons, who are legal representatives of Padamiya Bhambhi. The brief facts of the case, as appearing from the documents annexed with the writ petition, are, that on 13.2.1969 one Guman Singh Rajput r/o Moodi, Tehsil Jalore filed a suit against one Padamiya s/o Jeeva Bhambhi r/o Paharpura Tehsil Jalore in the Court of Assistant Collector, Jalore under Section 88-89 of the Rajasthan Tenancy Act, alleging interalia, that the land bearing Khasra No. 175 measuring 19 bigha 18 biswas situate in village Moodi, hereafter to be referred to as the land in question, was in Khudkasht of the plaintiff since time immemorial, including at the time of settlement. However, since the defendant was Hali of the plaintiff, and was working as such, therefore, either by mistake of settlement, or by collusion, in Parcha Lagan, instead of name of the plaintiff, name of the defendant was entered, which is wrong. Then, it was alleged, that at the time of settlement the defendant was only a paid servant of the plaintiff, and was cultivating as such, and the Girdawari went on being recorded in the name of the defendants so long as the defendant continued to cultivate. Thereafter, it started being recorded in the name of the plaintiff, and the land Revenue is being paid by the plaintiff. It is then 2 alleged, that the defendant is a resident of Paharpura, and for the last 4-5 years he has left the job, and went away to Paharpura, and as such the plaintiff is cultivating the land. With this, it is alleged, that on 22.7.1968, when it rained, the plaintiff went to cultivate, the defendant threatened, contending that the land is in his Khatedari, and therefore, the plaintiff could not cultivate. This is said to be the cause of action. On these pleadings it was prayed, that the plaintiff be declared as Khatedar of the land in question, necessary changes in the revenue records be ordered to be made, and injunction be granted against the defendant, not to interfere with the plaintiff's possession. It appears, that the suit proceeded ex-parte, and the plaintiff led some oral evidence, deposing about his possession, and also deposing about the defendant being Hali for some 2-3 years only, and having not remained Hali after settlement. Likewise some more oral evidence was also led about plaintiff's cultivation. The learned Assistant Collector vide judgment dt. 30.7.1969, cataloging the plaintiff's evidence, decreed the plaintiff's suit, holding that there is no doubt about the plaintiff's old possession since settlement, and a decree was granted, to the effect, that the plaintiff is a Khatedar of the land in question. Immediately thereafter i.e. on 13.8.1969 the land in question was sold by the plaintiff Guman Singh to Mehrab Khan s/o Raju Khan, who in turn again sold it on 27.4.1988 3 to Aas Kanwar w/o Bhanwaroo Khan, Allarakh Kanwar w/o Rehmat Ali, and Rustom Ali s/o Rehmat Ali. Since the land was recorded earlier in the name of Padamiya, a member belonging to Scheduled Caste, his legal representatives filed an application before the Collector in the year 1994, contending interalia, that the land in question is their ancestral land, and is of their Khatedari, and since Padamiya is a member of Scheduled Caste, his Khatedari rights could not be interfered, nor any judgment or decree could be passed in that regard. With this it was alleged, that recently the non-petitioners no. 7, 8 and 9 therein, i.e. being Aaskanwar, Allarakh, Rustom Alia, have started illegally harassing them, and raising demand for money, on the pretext of the land being of their Khatedari. It is alleged, that on enquiry it transpired that Guman Singh fraudulently obtained a decree against Padamiya on 30.7.1969, which decree is in violation of the provisions of Section 42 of the Act of 1955, and is therefore, liable to be set aside by way of proceedings of reference. It is also alleged that Padamiya was ancestral tenant of the land in question, at the time of first settlement, as well as at the time of Jagir resumption, Padamiya was cultivating the land, and thus Padamiya legally became Khatedar tenant. On this application, notices were issued, and the 4 non-petitioners no. 7 to 9 submitted, that they have already sold the land in question on 20.10.1996, i.e. during pendency of the reference proceedings to Chhail Singh, Dalpat Singh, Keshar Singh, Padam Singh, and Gulab Devi (the present writ petitioners and appellant), whereupon these persons were also issued notices, who appeared and contested the application. The learned Collector, in the judgment making reference, being Annexure-10 in the writ petition, interalia noticed the contentions of the applicant, that there is no material on record to show that Guman Singh was the tenant, and even Guman Singh himself has not deposed to be Khatedar tenant, the applicants have produced Girdawari, starting from first settlement of Samvat 2004, showing the land to be in their possession. It was also noticed, that after the judgment of the Assistant Collector, even before the mutation, and just after 15 days, Guman Singh had sold the land in favour of close relations of the Patwari Rehmat Ali. It was also considered, that at the time of first settlement, the Parcha Lagan was issued by the Jagirdar himself, which would not have been if Guman Singh was having any right, title, or interest in the land. The non-petitioners contested the reference application, interalia on the ground of delay, the judgment having been passed by a competent court after hearing, developments having been made on the land, and therefore, the reference application being not maintainable, in view of various judgments of the 5 High Court. The learned Collector after hearing the parties held, that from the record available, it is clear, that the land in question was recorded in the name of Padamiya, in the first settlement from Samvat 2004 onwards Padamiya was recorded as Khatedar, and continued to remain Khatedar till 31.8.1969. Then, it was noticed, that the suit was filed on 3.2.1969, and was decided on 30.7.1969, the mutation proceedings were initiated on 16.8.1969, and was sanctioned by the Up Sarpanch on 31.8.1969, in favour of Mehrab Khan noticing the factum of sale dt. 13.8.1969. Then, further mutations had been sanctioned consequent upon sale. With this it was found, that since on the record it is clear that since first settlement the land continued to be recorded in the name of Padamiya Bhambhi, a member of Scheduled Caste, and the learned Assistant Collector has passed the judgment for recording the land in favour of a person not belonging to Scheduled Caste, which is violative of Section 42(b) of the Act of 1955. It was additionally considered, that the learned Assistant Collector has only passed the judgment, and no decree has been ordered, or issued, and even without decree the mutation has been sanctioned, which is also bad, and thus reference was made as above. The learned Board of Revenue after hearing the 6 parties, vide judgment Annexure-11, a very brief order, noticed that reference has been made with the background, that the judgment passed is illegal, as no Khatedari can be claimed, or given in the land held by member of Scheduled Caste, and then it was found, that the judgment of Assistant Collector dt. 30.7.1969 is in flagrant violation of Section 42(b) of the Act of 1955. Consequently the judgment of the Assistant Collector, and the mutation, both, were set aside by accepting the reference. Aggrieved of this, a writ petition was filed before this Court, interalia on the ground, that the power under Section 42(b) was introduced in 1956 only, and then further amendment were made in 1964, whereby the transfers were enacted to be void, while prior to 1964 the transfers were only voidable. With this it is contended, that Guman Singh was in possession of the land at least from Samvat 2010 onwards, which is not hit by the provisions of Section 42(b), and it has been found by the Assistant Collector in the judgment dt. 30.7.1969, that Guman Singh was in possession before settlement, and therefore, reference could not have been accepted. The other ground taken is, that in Section 232 amendment was made in 1981 only, permitting reference to be made against a decree passed, with the result, that the decrees passed prior to this amendment of 1981 could not be made subject matter of reference, and as in the present case such decree was 7 passed in 1969, reference could not be made. Then, the other ground taken is of delay in making reference. Interalia also contending, that no appeal was filed against the decree, and even the State did not choose to make any application before the Collector, even in the year 1994, and Padamiya or his L.Rs. did not have any right to file such application. Interalia with this it was prayed that the orders be set aside. Reply to the writ petition was filed on behalf of legal representatives of Padamiya, taking various pleas. However, the learned Single Judge, vide impugned order dismissed the writ petition, interalia on the ground, that the very foundation, on the basis of which the writ petitioners are claiming land, is on the basis of the judgment obtained by Guman Singh, a person not belonging to Scheduled Caste or Scheduled Tribe, on the basis of his alleged possession over the land in question since before settlement. However, no revenue record showing his possession or entry of his name was produced before the trial court, the said suit proceeded ex-parte, and merely on oral statement of the witnesses the suit has been decreed. It was also held, that no decree appears to have been passed, as no such decree has been placed on record. Then, the order of reference was relied upon, which showed, that the judgment of the learned S.D.O. was a collusive 8 decree, and that, the revenue record clearly recorded name of the defendants Padmiya right from Samwat year 2004 onwards, and Padmiya did not even come to know of this decree or mutation entries, deleting his name, and recording the name of Guman Singh, who immediately after decree has transferred the land to Mehrab Khan, which casts a serious doubt on the whole proceedings initiated by Guman Singh, and change of mutation entries in the revenue record. Apart from the fact that the mutation entries were recorded by a person without any authority, viz. Up Sarpanch, and with this it was found, that the Collector was justified in making reference, upon coming to know of all these facts. It has been observed, that the very purpose of Section 232 of the Act is, to see that no such collusive decrees, or void sale transactions, deprive under privileged section of society, or persons belonging to Scheduled Caste or Scheduled Tribe, of their land and right over the agricultural land, in such a manner. Then, regarding delay it was held, that if merely passage of time is held up as a bar against such persons of weaker section, it would make mockery of the provisions of Section 232 of the Act, and that, the fact that land in question has changed three hands from one to another, belonging to persons other than the persons of Scheduled Caste does not validate, or add strength, to the lack of foundation, which these transactions had. Therefore, it was found, that the reference was rightly accepted. 9 Assailing the impugned judgment, learned counsel for the appellant straightway placed reliance on various judgments, to contend, that the impugned judgment, order of reference, and acceptance of reference are bad. Relying upon judgment of this Court, in Lad Bai Vs. Board of Revenue, reported in 2000(1) RLR-123, it was contended, that Section 42(b) is not attracted in cases where the land belonging to the Scheduled Caste is transferred in favour of non scheduled caste person in execution of the decree passed by the Subordinate Revenue Court, as Section 42 takes within its comprehension the transfers made by way of sale, gift or bequest, while the decree is not a sale, gift or bequest, and therefore, making of the reference itself was illegal and bad. This judgment was also relied upon for contending, that although the Collector has unlimited power to call for and examine the record for making reference, and no limitation is prescribed, but this power is to be exercised within reasonable time. In that case the reference was made after 18 years, which was found to be an excessive exercise of jurisdiction, and the order was quashed. It was contended, that in view of this judgment, if the learned Single Judge was not inclined to agree with this view, then the only course open to the learned Single Judge was, to have made a reference to the larger Bench, but instead the learned Single Judge though was kind enough to notice the fact at page-5, that this judgment was relied 10 upon by the appellant, but has neither read it, nor has even distinguished it on any ground, and has taken a contrary view. Then, the learned counsel relied upon another Single Bench judgment of this Court, in Bhuri Singh Vs. State of Rajasthan, reported in 2007(1) RRT-717, wherein it was held, that in absence of any allegation of obtaining decree by fraud, the reference made after inordinate delay of 25 years was held to be illegal, and void. In this judgment the earlier judgment in State of Rajasthan Vs. Teja Ram, reported in 2005(1) DNJ (Raj.) 162, and Lad Bai’s case have been relied upon. Likewise reliance has also been placed on a Division Bench judgment of this Court, in Anandi Lal Vs. State of Rajasthan, reported in 1996(1) DNJ (Raj.)100, wherein also it was held, that reference cannot be made after unreasonable delay. Then, the learned counsel relied upon a Division Bench judgment of this Court, in Hanja Ram & Ors. Vs. State of Rajasthan, reported in 2006(7) RDD-3818 (Raj.), wherein since power of reference was exercised after inordinate delay of 20 years, exercise of power was held to be not sustainable. Then, reliance was placed on a judgment of Hon’ble the Supreme Court, in Situ Sahu & Ors. Vs. State of Rajasthan, reported in 2005(1) RRT-161, wherein it was held, that the power exercisable under Section 71A of the Chota Nagpur Tenancy Act, which permits the power to be exercised “at any time” was also held to mean, within reasonable time, and in that case the power was exercised after 40 years, which was 11 found to be unreasonable, and by allowing the appeal the order of restoration made in favour of Scheduled Caste persons was set aside. Then, the learned counsel relied upon Division Bench judgment of this Court, in State of Rajasthan Vs. Teja & Ors., reported in 2005(1) DNJ (Raj.) 162, wherein relying upon judgment in Anandi Lal’s case reference made after 13 years by Assistant Collector was set aside, after noticing, that the Collector had not recorded any reason, to the effect that illegality in the transfer was a consequence between public officer and private party, and did not suffer any public laws. Then, the learned counsel relied upon judgment of Hon’ble the Supreme Court, in Nathu Ram (dead) by Lrs. Vs. State of Rajasthan reported in 2006(1) RRT-383 to contend, that in such circumstances proceedings under Section 175(4) is the only remedy, and reference cannot be made after such a long time. Then, reliance was placed on the judgment of Hon’ble the Supreme Court, in State of Gujarat & Anr. Vs. Patel Ramjibhai & Ors., reported in 1979(3) SCC-347, to contend, that since Section 232 is a general provision, and Section 175 is a special provision, section 232 has to yield to Section 175, and in the present case, since neither any action has been taken under Section 175, nor the limitation for taking action under Section 175 survived, therefore, the reference could not be made. Then, reliance was also made to judgment of Hon’ble the Supreme Court, in M. S. Gill & Anr. Vs. The Chief Election Commissioner, New Delhi 12 & Ors., reported in AIR 1978 SC-851, to contend, that the reasons spelt out by the learned Single Judge, being not part of the judgment, and taken into consideration by the learned Collector, could not be considered. Reliance was also placed on the judgments of Hon’ble the Supreme Court, in Keshabo & Anr. Vs. State of M.P., reported in (1996) 7 SCC-765, and Guntaiah Vs Hambamma, reported in AIR 2005 SC- 4013. On the other hand, learned counsel for the legal representatives of Padamiya contended, that Padamiya was in possession since long, and in 2004 Parcha Lagan had also been issued in his name by Jagirdar, and his name was recorded in the settlement, which settlement took some where in Samvat 2008-09, and this suit had been filed in the year 1969, and thus the ground of delay rather works against the appellant. Then, regarding Lad Bai’s case, it was submitted, that in para-8 thereof, a positive finding has been recorded by this Court, about decree being not collusive or fraudulent, and therefore, the whole thrust of the judgment was on merits of the decree, and observations made about delay, are only obiter. Then, in Hanja Ram’s case learned counsel relied upon para-12, wherein a finding was recorded, to the effect, that there is nothing to suggest, that the decree was out come of coercion or misrepresentation, and that, even the objectors did not say that the objections made in the pleadings were not 13 earnestly made by their predecessors, and thus, it was found, that the decree cannot be said to be liable to be excluded, or void ab-initio. Then, the learned counsel relied upon Full Bench judgment of this Court, in Chiman Lal Vs. State of Rajasthan & Ors., reported in 2000(1) WLN (Raj.) 207, wherein the Full Bench has expressly over-ruled the Division Bench judgment in Anandi Lal’s case, in para- 26. Then, the learned counsel relied upon judgment in Chinde Gowda Vs. Puttamma, reported in 2008 AIR SCW-268. Then, the learned counsel relied upon Division Bench judgment of this Court, in Mangilal & Ors. Vs. State of Rajasthan & Ors., reported in 1998(1) WLC (Raj.)-625 to contend, that there is no time limit prescribed for reference, and as such power of reference is to be exercised within a reasonable time, and what reasonable time is, can be determined on the facts and circumstances of each case, and that, if the impugned order has been obtained by fraud, the power of reference can be exercised even after inordinate or unreasonable delay. That was a case where Khatedari rights were claimed to have been acquired of the land, which was in the name of idol, the perpetual minor, by the Pujari, by playing fraud. Then, the learned counsel relied upon another three Judges Bench judgment of Hon’ble the Supreme Court, in Uttam Namdeo Mahale Vs. Vithal Deo & Ors., reported in 1997(6) SCC-73, wherein it has been held, that in absence of any specific limitation provided under Section 21 of the Mamlatdar’s 14 Court Act, necessary implication is, that the general law of limitation by the Limitation Act stands excluded, and since no limitation has been prescribed, the order can be executed at any time, and that, where there is no statutory rule operating in the field, implied power of exercise of right within reasonable time does not arise. Then, reliance was sought to be placed on the judgment of Hon’ble the Supreme Court, in T. Vijendradas Vs. M.Subramanian, reported in (2007) 8 SCC 751, which need not detain me, inasmuch as that judgment deals only with the proposition about the consequences of fraud. Learned counsel then relied upon a Constitutional Bench judgment of Hon’ble the Supreme Court, in S.C. Prashar & Anr. Vs. Vasantsen Dwarkadas & Ors., reported in AIR 1963 SC-1356, to contend, that where the word used is “any time”, then it means that there is no limitation whatever. Then, it was contended that Section 175 of the Tenancy Act is not at all attracted in the circumstances of the case, because it is not a case of illegal transfer or illegal subletting, and therefore, the only proper remedy was under Section 232, of making reference. Then, the learned counsel also relied upon a Single Bench judgment of this Court, in Haja Vs. Board of Revenue reported in 1999(2) WLN-89, wherein it has been held, that where the transaction is in violation of Section 42(b), the Collector has power to make reference under Section 232, and since the power to make reference regarding decree was introduced only in 1981, if the 15 applicant approached the Collector in 1986, it cannot be said to be delayed. Likewise, reliance was also placed on the judgment of this Court, in Jagan Nath Vs. The Board of Revenue for Rajasthan, Ajmer & Anr., reported in 1999(2) WLN-694. In rejoinder, learned counsel for the appellant reiterated, that Section 42 comprehends within its mischief only sale, gift, or bequest, and not the decree. Likewise, Section 43 and 49 are also silent about decree, as such, on the mutation effected consequent upon decree of competent revenue court, reference cannot be made. It is also contended, that it is established principle of Interpretation of Statutes, that where the words of statute are plain and clear, the words cannot be added to it, and therefore, the word “decree” cannot be allowed to be added, so as to attract the power of reference, in cases where mutation is effected consequent upon decree in favour of a person not belonging to scheduled caste, person with respect to land belonging to scheduled caste person. We have considered the submissions, and have gone through various judgments cited at the Bar, documents available on record, and the relevant provisions of Rajasthan Tenancy Act, including Section 42, 43, 49A, 232 and 175. 16 First of all, we take up the contention based on the judgment of Lad Bai's case, about the learned Single Judge being not entitled to take a contrary view, so as to include the expression “decree” in Section 42(b), as in Lad Bai's case it has been held, that where transfer is made by decree, it is not a sale, gift or bequest, as envisaged by Section 42(b). Before proceeding to deal with this contention of the appellant we are constrained to observe, that a perusal of the impugned judgment of the learned Single Judge shows, that the learned Single Judge has simply cataloged the judgments cited on either side, and has then proceeded to decide the matter on the basis of his own philosophy, without discussing the relevant