Mahmud Hasan Khan v. Board of Revenue, UP at Allahabad
1961-03-30
V.G.OAK
body1961
DigiLaw.ai
JUDGMENT V.G. Oak, J. - These nine connected writ petitions arise out of nine cases for correction of papers under the Land Revenue Act. Upon the death of Smt. Bashirunnisa disputes arose on the question of mutation of names in her place. Mahmud Hasan Khan was one claimant. Samiullah Khan and others formed the second set of claimants. Applications for mutation were filed on 20-10-51. The trial court passed orders on 7-1-54 in favour of Samiullah Khan and others. Mahmud Hasan Khan went up in appeal. The appeal was allowed by the learned Additional Commissioner Meerut on 14-7-55. He directed that mutation be made in favour of Mahmud Hasan Khan, Samiullah Khan and others went before the Board of Revenue in second appeal. These second appeals were treated by the Board of Revenue as revisions. The revisions were allowed by the Board on the ground that the Additional Commissioner had no jurisdiction to hear the appeals before him. It was held by the Board that the proper authority to hear the appeals from orders of the Assistant Collector was Collector. On this view, the Board directed the Additional Commissioner to transmit the appeals to the Collector concerned. Mahmud Hasan Khan has filed these connected writ petitions against the orders of the Board of Revenue dated 13-2-56. 2. The short question for decision in these writ petitions is whether the appeals from the judgment of the Assistant Collector dated 7-1-54 lay to the Collector or to the Commissioner. It may be pointed out that, these were proceedings under the Land Revenue Act. Section 210, Land Revenue Act provides for appeals. At one time Section 210, Land Revenue Act stood thus: 1. Appeals shall lie under this Act as follows. (a) to the Collector ... from orders passed by the Assistant Collector.... (b) to the Commissioner from orders passed by the Collector ..., and (c) to the Board from ... orders passed by the Commissioner.... 3. Section 210, Land Revenue Act was amended by UP ZA and LR Act (UP Act I of 1951). The amendment in question was introduced by Section 339 of Act No. I of 1951. After the amendment Section 210, Land Revenue Act reads thus: (1) Appeals shall lie under this Act as follows: (a) .... (b) to the Commissioner from orders passed by Assistant Collector or Tahsildar. 4.
The amendment in question was introduced by Section 339 of Act No. I of 1951. After the amendment Section 210, Land Revenue Act reads thus: (1) Appeals shall lie under this Act as follows: (a) .... (b) to the Commissioner from orders passed by Assistant Collector or Tahsildar. 4. The position, therefore, was this, if the appeals from the order of the trial court dated 7-1-54 were governed by Section 210. Land Revenue Act as it stood before the amendment, appeals lay to the Collector. On the other hand, if the appeals were governed by Section 210. Land Revenue Act as it stood after the amendment, appeals lay to the Commissioner. The question for consideration is whether the matter is governed by Section 210 as it stood before the amendment, or by Section 210 as it stands after the amendment. As already pointed out, the amendment was introduced by Section 339 of Act No. 1 of 1951. Section 339 of Act No. 1 of 1951 contains no indication that the amendment has retrospective effect. It is mentioned in Section 339 that the amendment is to operate from the date of vesting (1-7-52). 5. We have also examined the UP Land Tenures (legal Proceedings) (Removal of Difficulties) Order, 1952 Even this order issued by the State Government in 1952 does not help to solve the difficulty. The order merely provided that proceedings under the Land Revenue Act are to be continued under the same Act. That order does not indicate whether suits instituted before the amendment are to be governed by the Land Revenue Act as it stood before the amendment, or by the Act as it stands after the amendment. So, the problem has to be solved on general principles. 6. In the Colonial Sugar Refining Company, Limited v. Irvind 1905 AC, 369 it was held by the Judicial Committee that although the right of appeal from the Supreme Court of Queensland to the Privy Council was taken away by the Australian Commonwealth Judiciary Act, 1903, the Act is not retrospective. So, the right of appeal to the Privy Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away. 7. 'The case of the Colonial Sugar Refining Company, Limited was followed by their Lordships of the Supreme Court in Garikapatti Veeraya Vs.
So, the right of appeal to the Privy Council in a suit pending when the Act was passed and decided by the Supreme Court afterwards was not taken away. 7. 'The case of the Colonial Sugar Refining Company, Limited was followed by their Lordships of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, AIR 1957 SC 540 . In that case it was held by a majority of the Court that a suitor has a vested right of appeal on and from the date of the suit. The vested right is governed by the law prevailing at the time of commencement of the suit and compromised all successive rights of appeal from court to court, which really constituted one proceeding. Their Lordships quoted with approval the following passage from the judgment in 'the Colonial Sugar Refining Company, Limited v. Irvind 1905 AC, 369 . 8. 'Their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the wellknown general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.' 9. The scheme for appeals u/s 210, Land Revenue Act after its amendment is materially different from the scheme for appeals under that section before its amendment. Under the old scheme, there were as many as three appeals. The new scheme provides for one appeal only. The application for mutation was filed or 20-10-51, before S. 210, Land Revenue Act was amended. Rights of parties in the matter of filing appeals were governed by the law, as it stood on 20-10-51. It, therefore, follows that, the order of the trial court dated 7-1-54 was appealable to the Collector, and not to the Commissioner. 10. It was urged by Sri M.H. Beg, appearing for the Petitioner, that the proper course for the Board of Revenue was to direct the Additional Commissioner to return the memorandum of appeal for presentation to proper court. There is hardly any difference between returning a memorandum of appeal for presentation to proper court and a direction transferring the appeal to the proper court. The decision of the Board of Revenue is substantially correct. 11. Each of the nine writ petitions is dismissed with costs to opposite parties Nos. 2 to 5.