Research › Browse › Judgment

Madhya Pradesh High Court · body

1964 DIGILAW 169 (MP)

Hiralal v. Board of Revenue

1964-12-03

K.L.Pandey, P.V.Dixit

body1964
ORDER Pandey J. 1. This petition under Article 226 of the Constitution has been made in the following circumstances. In the year Samvat 2007, the petitioner was the recorded Ghair Maurusi Kashtakar of No. 302 of village Chulheta and became, by virtue of the provisions of section 38 (1) of the Madhya Bharat Zamindari Abolition Act, Samvat 2008, read with section 54 (7) of the Madhya "Bharat Land Revenue and Tenancy Act, Samvat 2007 the Pucca tenant thereof. Since his name had been omitted from the Khasra prepared for the year Samvat 2008, he made to the Additional Tahsildar, Basoda, an application under section 116 of the Madhya Pradesh Land Revenue Code 1959 (here in after called the Code) for correction of that record by making therein an appropriate entry. By an order dated 5 November 1959, the Additional Tahsildar, Uderajsingh, allowed that application and directed that Kh. No. 301 be recorded in the petitioner's name in Pucca tenancy right. After Uderajsingh was transferred and his office remained unfilled, one Mathura Prasad (respondent 5) applied for a review of that order. By an order dated 16 August 1960, the Tahsildar of Basoda reviewed and set aside the earlier order. Being aggrieved, the petitioner appealed to the Sub-Divisional Officer, Basoda, who, by his order dated 31 October 1960, set aside the Tahsildar's order. On a further appeal by Mathura Prasad; the Additional Commissioner, Bhopal, passed an order dated 26 May 1962 setting aside the appellate order and restored the one passed by the Tahsildar. Thereupon, the petitioner moved the Board of Revenue in revision. Since the point raised involved a question of interpretation of section 51 of the Code, one of the members of the Board' referred it for opinion to two members of the Board who, on 6 August 1963, opined that the offices of the Tahsildar and Additional Tahsildar were "one and the same" and that, for purposes of review under section 51 of the Code, the Tahsildar could be considered to be the successor in office of the Additional Tahsildar. In view of this opinion the revision was dismissed on 8 February 1964. In view of this opinion the revision was dismissed on 8 February 1964. The petitioner prays that the aforesaid orders of the Tahsildar and the Additional Commissioner, the opinion of the Board and its final order dismissing the petitioner's revision should be called up and quashed by certiorari because the basic order passed by the Tahsildar suffers from the vice that he had no jurisdiction to review an order which had been passed by the Additional Tahsildar. 3. This order shall govern also Chhuttilal Vs. Tahsildar Basoda and others M.P. No. 416 of 1964, and Taj Mohammad Vs. Tahsildar, Basoda and others M.P. No. 417 of 1964, which involve the same point arising out of similar facts. 4. On the facts stated in the opening paragraph, the point for consideration is whether, in the circumstances, the Additional Tahsildar was the predecessor in office of the Tahsildar within the meaning of section 15 of the Code which reads: "(1) The Board and every Revenue Officer may, either of its/his own motion or on the application of any party interested; review any order passed by itself/himself or by any of its/his predecessors in office and pass such order in reference thereto as it/he thinks fit: provided that- (i) no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order; (ii) no order from which an appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending, be reviewed; (iii) no order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings, and no application for the review of such order shall be entertained unless it is made within ninety days from the passing of the order. (2) No order shall be reviewed except on the grounds provided for ill the Code of Civil Procedure, 1908 (V of 1908). (3) For the purposes of this section, the Collector shall be deemed to be the successor in office of any Revenue Officer who has left the district or who has ceased to exercise powers as a Revenue Officer and to whom there is no successor in the district. (3) For the purposes of this section, the Collector shall be deemed to be the successor in office of any Revenue Officer who has left the district or who has ceased to exercise powers as a Revenue Officer and to whom there is no successor in the district. (4) An order which has been dealt with in appeal or on revision shall not be reviewed by any Revenue Officer subordinate to the appellate or revisional authority." Having heard the counsel, we are of opinion that an Additional Tahsildar is, for purposes of section 31, not the predecessor in office of the Tahsildar. In the following paragraphs, we would briefly give our reasons for taking that view. 5. While section 11 of the Code enumerates the classes of Revenue Officers, one of them being "Tahsildars (including Additional Tahsildar)", the appointment and powers of Tahsildars, Additional Tahsildars and Naib Tahsildars are provided in section 19 of the Code which is reproduced: (1) The State Governments may appoint in each Tahsil a Tahsildar and one or more Naib Tahsildars who shall exercise therein the powers and perform the duties conferred or imposed on them by or under this or under any other enactment for the time being in force. (2) The State Government may. appoint one or more Additional Tahsildars in a Tahsil. An Additional Tahsildar shall exercise such powers and discharge such duties conferred or imposed on a Tahsildar by or under this Code or by or under any other enactment for the time being in force as the Collector of the district may by an order in writing direct." Although an Additional Tahslidar can be entrusted with the exercise of powers and the discharge of duties conferred or imposed on a Tahsildar by or under the Code or any other enactment for the time being in force, he does not in practice have all those powers or duties. He exercises only such of those powers and discharges such of those duties as the Collector of the district has directed by a written order. It is, therefore, plain that whenever an Additional Tahsildar is appointed, some of the powers conferred and the duties imposed on the Tahsildar have to be carved out and made over to the Additional Tahsildar Co-nomine. It is, therefore, plain that whenever an Additional Tahsildar is appointed, some of the powers conferred and the duties imposed on the Tahsildar have to be carved out and made over to the Additional Tahsildar Co-nomine. It will thus be seen that, though the two officers are of the same class, that statute alone is the source of power in the one case and the written order of the Collector is the effective source of power in the other. Secondly, when the Tahsildar and the Additional Tahsildar function simultaneously in relation to matters allocated for being dealt with separately and the Additional Tahsildar has, and can have, no jurisdiction to deal with any matter not covered by the Collector's written order, it cannot be said that the offices of the two are "one and the same". In our opinion, the two offices cannot be regarded as "one and the same" only because, by an order passed under section 19 (2) of the Code, some of the functions of the Tahsildar are entrusted to the Additional Tahsildar which, but for the order, would .have been performed by the Tahsildar alone. Finally, it is not correct to say that the Tahsildar succeeds to the office of an Additional Tahsildar whose office remains unfilled because, when the Additional Tahsildar vacates his office, the Tahsildar resumes the exercise of functions in relation to matters which had been entrusted to the Additional Tahsildar, not as his successor; but exclusively by virtue of the provisions of the statute. For all these reasons we conclude that an Additional Tahsildar, whose post is not filled, cannot be regarded as any of the "predecessors in office" of the Tahsildar within 'the meaning of section 51 (1) of the Code. We may add that the Legislative has suitably provided for a situation like the one here by enacting in section 51 (3) of the Code that, for purposes of review of orders, the Collector shall be deemed to be the Successor in office of such Revenue Officer. 6. In the view we have taken of the main question in controversy, the Tahsildar had no jurisdiction to review the order passed by the Additional Tahsildar and his (Tahsildar's) order dated 16 August 1900 cannot be sustained. So also the order dated 26 May 1962, the opinion dated 6 August 1963 and the order dated 3 February 1964. 7. 6. In the view we have taken of the main question in controversy, the Tahsildar had no jurisdiction to review the order passed by the Additional Tahsildar and his (Tahsildar's) order dated 16 August 1900 cannot be sustained. So also the order dated 26 May 1962, the opinion dated 6 August 1963 and the order dated 3 February 1964. 7. The learned Government Advocate, however, urged before us that we should decline to assist the petitioner because not only the Additional Tahsildar himself had no jurisdiction to deal with the matter but, in this case, no application under section 116 of the Code lay. These points were not raised before, or considered, by the Board. It does not appear to us that they have been properly considered by the subordinate Revenue Courts. They may be raised when the Additional Tahsildar's order is competently reviewed. 8. The remit is that this petition succeeds and is allowed. The orders dated 16 August 1960, 26 May 1962 and 3 February 1954 as well as the Board's opinion dated 6 August 1963 are quashed. In the circumstances of the case, the parties are left to bear their own costs. The outstanding amount of security shall be refunded.