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1960 DIGILAW 240 (MP)

Bondar v. Ganpat

1960-08-24

A.H.KHAN, P.R.SHARMA

body1960
ORDER P.R. Sharma, J. These six petitions involve a common question of law, namely whether a revision lies against an order passed by the Collector concerned under Section 28 of the Madhya Bharat Abolition of Jagirs Act (No. XXVIII of 1951) on an appeal filed against the decision given by the Tehsildar under section 21 of the said Act. This order shall govern all the aforesaid petitions in so far as the determination of this common question of law is concerned. The facts giving rise to the present petitions are that the Petitioners have filed applications under Section 21 of the Madhya Bharat Abolition of Jagirs Act before the Tehsildar concerned for the grant of pakka tenancy rights with respect to certain fields. The claim was resisted by the non-Petitioners and was wholly or partly disallowed by the Tehsildar. The appeals filed by the Petitioners against the orders passed by the Tehsildar were dismissed by the Collector. The Petitioners thereupon filed applications in revision before the Board of Revenue (Madhya Pradesh) against the order of the Collector. On a preliminary objection being raised as to the maintainability of the revision petitions, it was held by the Board of Revenue that the order passed by the Collector on appeal was final and no specific provision for a revision having been made in Act No. XXVIII of 1951, the revision applications were unmaintainable. The present petitions have been preferred under Article 227 of the Constitution of India praying for the orders passed in this behalf by the Board of Revenue being quashed. The Petitioners contend that the Tehsildar, who is empowered under Section 21 of the Madhya Bharat Abolition of Jagirs Act is a revenue officer subordinate to the Board of Revenue and that even though no provision has been made in the Madhya Bharat Abolition of Jagirs Act empowering the Board of Revenue to entertain a petition in revision against the order passed by the Collector on appeal in such cases, the provisions of Section 39 of the Madhya Bharat Land Revenue and Tenancy Act would apply to the said proceedings and a revision application would be competent. It is, therefore, contended that the Board of Revenue by holding the revision petitions to be unmaintainable has failed to exercise jurisdiction vested in it by law. It is, therefore, contended that the Board of Revenue by holding the revision petitions to be unmaintainable has failed to exercise jurisdiction vested in it by law. On behalf of the non-Petitioners it is contended that the Madhya Bharat Abolition of Jagirs Act creates special rights and liabilities. The mere fact that a Tehsildar is empowered under Section 21 of the said Act to hear and decide applications for conferral of pakka tenancy rights would not render the order passed by him or by the Collector on appeal revisable by the Board of Revenue under Section 39 of the Madhya Bharat Land Revenue and Tenancy Act. It is contended that since no provision has been made in the Madhya Bharat Abolition of Jagirs Act for a revision to be entertained by the Board of Revenue against the appellate order passed by the Collector under Section 28 of the said Act and since the provisions of that section lay down that the order passed by the Collector shall be final, the Board of Revenue acted rightly in holding the revision applications filed before it by the present Petitioners to be unmaintainable. The contentions raised on either side before us involve the determination of the following points: (1) Whether the Tehsildar acting under Section 21 of the Madhya Bharat Abolition of Jagirs Act (No. XXVIII of 1951) is a 'persona designata' or he is merely a revenue officer subordinate to the Board of Revenue; (2) Whether the jurisdiction exercised by the Tehsildar under Section 21 of the said Act is a special jurisdiction empowering him to determine rights or liabilities of a special nature which could not be enforced but for the provisions of the Madhya Bharat Abolition of Jagirs Act or whether the proceedings under Section 23 of the said Act merely effect an extension of the Tehsildar's ordinary powers as a revenue officer under the provisions of the Madhya Bharat Land Revenue and Tenancy Act; (3) Whether the effect of the provisions of Section 28 of the Abolition of Jagirs Act is to oust the revisional jurisdiction of the Board of Revenue against the decisions passed by the Collector under that section. Section 21 of the Madhya Bharat Abolition of Jagir's Act (hereinafter referred to as the Act) lays down that a sub-tenant or a tenant of a sub-tenant, who is in possession of any land in a resumed jagir land, may, within the relevant period, apply to the Tehsildar within whose jurisdiction that Jagir-land is situated, for acquiring the rights of a pakka tenant in his holding. Sub-section (2) of Section 2 of the Act lays down that words and expressions used in this Act but not defined therein shall have the same meaning as is assigned to them in Quanoon Mal, Gwalior State, Samvat 1983, or in the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. The word 'Tehsildar' used under Section 21 of the Act must, therefore, be taken to mean the same thing as is meant by that term in the Madhya Bharat Land Revenue and Tenancy Act. Section 9 of the Madhya Bharat Land Revenue and Tenancy Act makes provision for the appointment of Tehsildars, who shall exercise all the powers and discharge all the duties conferred and imposed on Tehsildars by the said Act or by any other law for the time being in force. It would thus appear that the framers of the Madhya Bharat Land Revenue and Tenancy Act had in view the possibility of the Tehsildars appointed by the Government under the said Act being required under any other law for the time being in force to exercise certain powers and discharge certain duties not provided for under the Madhya Bharat Land Revenue and Tenancy Act. A 'persona designate' has been defined in the case of Ram Milan v. Bansilal 1958 MPLJ 446 : 1958 JLJ 481 : AIR 1958 MP 203 , by a Full Bench of this Court to mean a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. On applying this test to Section 21 of the Madhya Bharat Abolition of Jagirs Act and the provisions of the Madhya Bharat Land Revenue and Tenancy Act referred to by me above it becomes clear that the powers under Section 21 of the Madhya Bharat Abolition of Jagirs Act are conferred not on any particular individual but on all members of the class designated as Tehsildars under Section 9 of the Madhya Bharat Land Revenue and Tenancy Act. The powers of the Tehsildar under Section 21 of the Madhya Bharat Abolition of Jagirs Act cannot in the circumstances be said to be the powers of a 'persona designate'. The next question which arises for consideration is as to the nature of the jurisdiction exercised by the Tehsildar under Section 21 of the Madhya Bharat Abolition of Jagirs Act. The power to grant pattas to tenants who are in cultivating possession of agricultural land is a part of the ordinary function of a Tehsildar. Clause (7) of Section 54 of the Madhya Bharat Land Revenue and Tenancy Act defines a 'pakka tenant' as under: Clause (vii)Pakka tenantmeans a tenant who has been or whose predecessor-in-interest had been lawfully recorded in respect of his holding as a 'Ryot Pattedar', "Mamuli Mauruai"(sic), "Gair Maurusi(sic)" and "Pukhta Maurusi" when this Act comes into force or who may in future be duly recognised as such by a competent authority, The aforesaid definition of the term 'Pakka tenant' covers a person who may after the coming into force of the Madhya Bharat Land Revenue and Tenancy Act be duly recognised as such by a competent authority. Section 21 of the Madhya Bharat Abolition of Jagirs Act constitutes a Tehsildar a competent authority for conferral of pakka tenancy rights upon a sub-tenant or the tenant of a sub-tenant, who is in possession of any land in a resumed jagir-land. The power exercised by the Tehsildar in this behalf is a power similar in nature to his ordinary powers as revenue officer and it cannot be said that in exercising power under Section 21 of the said Act the Tehsildar acts otherwise than as a revenue officer. The conferral of tenancy rights upon any person is a matter within the ordinary powers of Tehsildar. The conferral of tenancy rights upon any person is a matter within the ordinary powers of Tehsildar. The power to confer the rights of a pakka tenant on a sub-tenant or a tenant of a sub-tenant, who is in possession of any land in a resumed jagir-land is a mere extension of the ordinary powers of a Tehsildar. In Secretary of States for India v. Chellikani Rama Rao 21 Cal WN 1311, the dispute was with regard to certain jungle lands which had been formed in the bed of the Sea near the mouth of the river Godawari. The Crown desired to declare them as reserved forests. The Respondents submitted their claims to the Forests Settlement Officer under the provisions of the Madras Forests Act (No. v. of 1882). The said officer rejected the claims. An appeal preferred by the Respondents in the District Court was dismissed and the decision of the Settlement Officer was upheld. The decision of the District Court was reversed and varied by the High Court. In an appeal filed before the Privy Council against the decision of the High Court, their Lordships of the Privy Council observed as under: The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board of specific limitation to exclude the ordinary incidents of litigation. In Nemsingh v. Mahant Basant 40 Cal WN 610, a question arose as to whether the jurisdiction exercised by the High Court under Section 34 of the Sikh Gurudwaras Act (No. VIII of 1925) was a special jurisdiction vested in it for the enforcement of rights and liabilities which could not be enforced except under the provisions of that Act or it was a mere case of extension of the ordinary jurisdiction of the High Court by the provisions of a special enactment. Under Section 12 of the Sikh Gurudwaras Act (No. VIII of 1925) a tribunal constituted by the local Government was invested with the power of determining the claims made in accordance with the provisions of that Act. Under Section 12 of the Sikh Gurudwaras Act (No. VIII of 1925) a tribunal constituted by the local Government was invested with the power of determining the claims made in accordance with the provisions of that Act. Among the matters which the tribunal could adjudicate upon were whether the religious institution was a Sikh Gurudwara and, if so, whether the properties claimed and included in the list published by the local Government under Sections 3 and 7 of the Act to be properties of a Sikh Gurudwara were really so. Section 34 of the Act gave a party aggrieved by the final order of the tribunal a right to appeal to the High Court at Lahore. It was observed by the Privy Council that the matters on which the tribunal was to give its decision concerned questions relating to property, questions relating to compensation to superseded officers of a Gurudwara and questions which concerned the nature of the trust under which the religious institution was held. Their Lordships held that no special jurisdiction was conferred on the High Court and that the provisions of Section 34 of the Sikh Gurudwaras Act were merely intended to include a new subject-matter as a part of the appellate jurisdiction of the High Court. On applying these tests to the case in hand it would appear that the jurisdiction exercised by the Tehsildar while determining whether a person who was a sub-tenant or tenant of a sub-tenant of an ex-jagirdar was entitled to be granted pakka tenancy rights in respect of the land held in possession by him was not exercising any special jurisdiction with regard to a matter which was outside the scope of his ordinary duties as a Tehsildar. The provisions of section 21 of the Madhya Bharat Abolition of Jagirs Act were intended merely to extend the powers of the Tehsildar also to such cases as fall within its ambit. The appellate jurisdiction exercised by the Collector also could not in the circumstances be deemed to be a special jurisdiction. The provisions contained in Section 28 of the Madhya Bharat Abolition of Jagirs Act merely extend his jurisdiction to hear appeals from the orders passed by the Tehsildar under Section 23 of the said Act. The appellate jurisdiction exercised by the Collector also could not in the circumstances be deemed to be a special jurisdiction. The provisions contained in Section 28 of the Madhya Bharat Abolition of Jagirs Act merely extend his jurisdiction to hear appeals from the orders passed by the Tehsildar under Section 23 of the said Act. It was laid down by Viscount Haldane L. C. in the case of National Telephone Company Limited v. Post Master General 1913 AC 546, as follows: When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches. Lord Atkinson in the same case observed as follows: It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents, including a right of appeal, to a new matter closely resembling in character those matters over which it has already jurisdiction as a Court of law. The principle laid down by the House of Lords in the case of the National Telephone Company Limited v. Post Master General 1913 AC 546, was cited with approval by their Lordships of the Privy Council in the case of Naug Ba Thaw v. Ma Pin 1938 Cal WN 449. It would be pertinent to note at this stage that by Clause (7) of section 4 of the Madhya Bharat Land Revenue and Tenancy Act all Subhas (Collectors) and Tehsildars are, among others, declared to be revenue Courts. The question of conferring pakka tenancy rights is as I have already pointed above, a matter which closely resembles the ordinary functions of a revenue officer. The Collector while hearing an appeal from an order passed under Section 23 of the Madhya Bharat Abolition of Jagirs Act does not exercise a special jurisdiction but the case is one of an extension of the ordinary jurisdiction of the Collector to hear appeal from the decisions passed in revenue matters by a Tehsildar in his district. The Collector while hearing an appeal from an order passed under Section 23 of the Madhya Bharat Abolition of Jagirs Act does not exercise a special jurisdiction but the case is one of an extension of the ordinary jurisdiction of the Collector to hear appeal from the decisions passed in revenue matters by a Tehsildar in his district. The principle deducible from the oases discussed above is that when ordinary legal rights are dealt by tribunals specially created for such purpose and later they reach ordinary tribunals, then in the absence of specific limitations placed by the statute all the incidents of the procedure of that Court including a right of appeal will attach to its decision. The Collector who hears an appeal under Section 28 of the Act being a revenue Court under the ordinary law, the proceedings before him will in the absence of specific limitations placed by the statute, carry all the incidents attached to the exercise of ordinary appellate jurisdiction by him. Such incidents will in the absence of a statutory provision include a right of appeal or revision such as may be competent under the ordinary law, namely for the purpose of the present cases, the Land Revenue and Tenancy Act. This brings me to the consideration of the last point mentioned above. Section 28 of the Act runs as under: 28 APPEALS FROM THE ORDERS OF THE TEHSILDAR: 1 Any person aggrieved by an order of the Tehsildar under Section 23, may, within thirty days from the date of such order appeal to the Collector, whose decision shall be final. It is argued on behalf of the non-Petitioners that the Legislature by making the appellate order of the Collector final intended to bar any further appeal or revision against his order. We have to examine the correctness of this proposition. In the case of K. Parthasardhi Naidu v. Koteshwar Rao AIR 1924 Mad 561, their Lordships of the Madras High Court held that when the Legislature attaches finality to the decision of a particular Court all that is meant thereby is that no appeal shall lie against that decision; but even a decision which is final is open to revision. The same view was expressed in the case of Phani Bhusan Sen v. Sanai(sic) Kumar AIR 1935 Cal. The same view was expressed in the case of Phani Bhusan Sen v. Sanai(sic) Kumar AIR 1935 Cal. 773, as also in the case of Indian Homeopathic Medical Association v. Kanai Lal Pal AIR 1950 Cal 263(sic). We have not been referred to any authority which lays down a contrary view. I would, therefore, hold that merely because Section 28 of the Act lays down that the decision of the Collector shall be final, it cannot be held that the decision is not open to revision. It only means that no appeal shall lie against it. Under Section 39(2) of the Madhya Bharat Land Revenue and Tenancy Act the Board may suo motu or on an application presented by any party, within ninety days from the date of the order, call for the record of any case of a judicial nature, in which no appeal lies to the Board. By virtue of the provisions of Section 28 of the Madhya Bharat Abolition of Jagirs Act, as interpreted by me above, no appeal can He against the decision of the Collector passed under that section. A case which involves a determination as to the right of a person to be recognised as a 'pakka tenant' is essentially a case of a judicial nature. I am, therefore, of the opinion that the aforesaid conditions requisite for the application of Section 39(2) of the Madhya Bharat Land Revenue and Tenancy Act are fulfilled in the present oases. In conclusion I am, for the reasons stated above, of the opinion that a revision application against the order passed by the Collector concerned in each of the present cases shall lie before the Board of Revenue and that the members of the Board were in error in holding that the revision applications filed before them by the present Petitioners were unmaintainable. I would, therefore, quash the orders passed by the Board of Revenue on the revision applications preferred in each of these six cases and direct that the Board of Revenue should hear their revision petitions and dispose of them in accordance with law. I agree.