Abdul Majid v. Jamil Ahmad — 1985 DIGILAW 1231 (ALL)

JUDGMENT H.N. Srivastava, Member - This Bench has been constituted to give a decision on the following questions: (a) Whether under Section 218 of the U.P. Land Revenue Act an application for making a reference against the order of a Tahsildar can only be made before the Collector or Additional Collector and not before the Commissioner or Additional Commissioner. (b) If such an application is made to the Commissioner or Additional Commissioner who instead of rejecting it under para 192 of the Revenue Court Manual entertaining it and makes a reference to the Board, whether the Board is bound to treat the reference as beyond jurisdiction and reject it accordingly. 2. The relevant facts of the case are that the revisionist Abdul Majid filed a case under Section 34 of the U.P. Land Revenue Act before the Tahsildar, claiming sole heirship on the basis of an unregistered will. The respondents Khalil Ahmad and Jamil Ahmad the real brothers of Abdul Majid contested the case and claimed mutation equally in their names. The revisionist was absent when his turn came up for producing evidence and an order for ex parte proceedings was passed by the Tahsildar on December 8, 1982. However, subsequently, in the application of the revisionist dated February 1, 1983 the order for ex-parte proceedings was set aside and further time was given to the revisional for filing evidence. During the period the order for ex-parte proceedings was in force some witnesses were produced by the opposite parties and their statements were recorded. The revisionist, after the ex-parte order had been set aside, moved an application for recalling those witnesses for cross-examination. This application was rejected by the Tahsildar. Revision against that order was filed before the Additional Commissioner who by his order dated June 8, 1984 recommended to the Board that the revision may be allowed and an opportunity may be given to the revisionist for cross-examination of witnesses that were produced by the opposite parties during the period ex-parte order was in force. When the reference came up for hearing before the Learned Chairman Board of Revenue two preliminary issues of law were raised as mentioned above. 3. We have heard the learned counsel for the parties on the above issues and have also gone through the concerned law points in detail. When the reference came up for hearing before the Learned Chairman Board of Revenue two preliminary issues of law were raised as mentioned above. 3. We have heard the learned counsel for the parties on the above issues and have also gone through the concerned law points in detail. The questions raised above are of considerable importance and it is necessary to lay down position as is borne in law before venturing its interpretation. 4. Section 218 of the U.P. Land Revenue Act reads as follows : "218. Reference to the Board. - The Commissioner, Additional Commissioner, the Collector, the record officer or the settlement officer may call for and examine the record of any case decided or proceedings held by any officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity or proceedings, and, if he is of the opinion that the proceedings taken or order passed by such subordinate officer 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." 5. Rules regarding reference under section 218 of the U.P. Land Revenue Act are contained in Rules 191 to 194 of the Revenue Court Manual. These rules are quoted as follows: "191. Rules regarding reference to Board. - An application to a court to make a reference under Section 218 shall be drawn up and made in the manner prescribed by rules for an appeal and shall be accompanied by a copy of the decree or order in respect of which such application is made by a copy of the judgment (if any) upon which such decree or order is founded. 192. Such application may be summarily rejected on the ground that the applicant has failed to apply, as it was open to him to apply to a court subordinate to the court shall issue in which the application is presented to make a reference under Section 218 of the Act, or on the ground that he has failed to prefer an appeal which was open to him to prefer. 193. 193. If it appears to the court necessary to make a reference either on an application presented, or of its own motion with regard to any judicial order the court shall issue a notice to the parties to the proceedings, informing them of the grounds upon which it proposes to make the reference, and fixing a date on which any objection which they may have to urge will be considered and recorded. 194. (1) In any case the court decides to make reference it shall submit the reference with the record of its own proceedings to the Board or the Government, as the case may be, accompanied by the record of the subordinate court. (2) If the court making the reference is not the Commissioner, it shall submit the reference through the Commissioner." 6. Learned counsel for the respondent has argued that the petition filed in the court of the Additional Commissioner under section 218 of the U.P. Land Revenue Act, against the order of the Tahsildar is in contradiction of the provision of rule 192 of the Revenue Court Manual and, therefore, the same is not maintainable. It was elaborated that as per rule 192 of the Revenue Court Manual the petition can only be filed to a court subordinate to the court in which the petition is presented to make a reference, under Section 218 of the Act. In the instant case, it was urged that the application under Section 218 of the Act against the order of Tahsildar could only have been filed before the Additional Collector and could not be filed before the Commissioner. It was also argued that the learned Additional Commissioner was not empowered to entertain such an application. It was beyond his jurisdiction. For this, the learned counsel for the respondent relied upon 1969 R.D. 489 wherein the learned Member Board of Revenue had held as follows: "It is conceded by both the parties that the revisionist moved the Commissioner under some mis-conception of the legal position and he should have gone to the court of the Collector. It was beyond his jurisdiction. For this, the learned counsel for the respondent relied upon 1969 R.D. 489 wherein the learned Member Board of Revenue had held as follows: "It is conceded by both the parties that the revisionist moved the Commissioner under some mis-conception of the legal position and he should have gone to the court of the Collector. I agree with this position and held that the present reference by the Additional Commissioner before this court is mis-conceived as he committed wrong exercise of jurisdiction in entertaining the revision application against the order of the Tahsildar." Reference was also made to the case reported in 1969 R.D. 456 which mainly deals with the concept of subordinate court officer as contained in Section 218 of the U.P. Land Revenue Act. 7. It is obvious from a reading of rules 191 to 194 of the Revenue Court Manual that a reference under Section 218 of the Act can be made by the court concerned either on an application presented or of its own motion with regard to any case decided or proceedings held by any officer subordinate to him. In case that court is of the opinion that such order can be varied, cancelled or reversed. Rule 192 lays down the procedure in case of only the first alternative where an application is presented under section 218 of the Act before a court. It empowers that court to summarily reject the application on the ground that the applicant has failed to apply, as it was open to him to apply, to a court subordinate to the court shall issue in which the application is presented to make a reference under Section 218 of the Act, or on the ground that he has failed to prefer an application which it was open to him to prefer. The rule thus lays down a procedure according to which such an application can be filed before the court to which the court whose order has been challenged is immediately subordinate. The rule, however, does not place any cumpulsion on the court concerned to reject that application. The power contemplated under rule 192 of the Revenue Court Manual is only discretionary and by exercising the same the concerned court is enabled to reject the application outright, so that it may be filed before the court to which the officer passing an order is immediately subordinate. The power contemplated under rule 192 of the Revenue Court Manual is only discretionary and by exercising the same the concerned court is enabled to reject the application outright, so that it may be filed before the court to which the officer passing an order is immediately subordinate. 8. Section 218 of the U.P. Land Revenue Act empowers the court to take note of "any case decided or proceedings held by any officer subordinate to him" and this power cannot be altered or modified by any rule whatsoever. Powers to make rules are conferred under Section 234 of the U.P. Land Revenue Act and that Section itself expressly provides that the rules may be "consistent with this Act". The principle is well settled that no rule can either or restrict the powers conferred as laid down in the Act. A rule should, of course, be valid and legal if it allows fullest effect to be given to the Act. As noted above, rule 192 covers only one of the alternatives of making reference under Section 218 of the Act and laying down procedure the rule cannot lay any restriction to the jurisdiction of the court conferred under section 218 of the Act. The use of the expression "such application may be summarily rejected" is significant. It gives a discretion to the court to reject such an application on the ground that it has not been filed before the court indicated in the rule. But it does not preclude the court concerned from taking of such an application and proceeding with it in accordance with rules 193 and 194 of the Revenue Court Manual. The principle of interpretation of the statute is very clearly enunciated in many cases. Words found therein should not be regarded as surplusage and full effect should be given to them if reasonable interpretation can be found the legislature is deemed not to use its words or anything in vain. The expressions noted above are, therefore, to be interpreted in the light of the meaning they convey directly. 9. Our attention has been directed to the expression 'any officer subordinate to him' as used in Section 218 of the Act by the learned counsel for the parties and may be given a detailed consideration. Generally in the earlier pronouncements I have noted that the word 'officer' has been taken as synonym of the word 'court'. 9. Our attention has been directed to the expression 'any officer subordinate to him' as used in Section 218 of the Act by the learned counsel for the parties and may be given a detailed consideration. Generally in the earlier pronouncements I have noted that the word 'officer' has been taken as synonym of the word 'court'. Can these words be taken to convey the same meaning and if the word 'officer' has been used to mean the word 'court' in Section 218 of the Act? Or, the legislature on purpose has used the word 'officer' to make a distinction deliberately. For this, we have to consider the meaning assigned to these words in the Act itself. 10. Section 4(8) of the Act defines Revenue Court as follows: "4. (8) 'Revenue Court' means all or any of the following authorities (that is to say), the Board and all members thereof, Commissioner, Additional Commissioners, Collector, Additional Collectors. Assistant Settlement Officers. Record Officers Assistant Record Officers and Tahsildars." Section 4(9) of the Act defines 'Revenue Officers' as follows : "4. (9) 'Revenue Officers' means any officers employed under this Act, in maintaining revenue records or in the business of the land revenue." The business of the land revenue is a comprehensive expression and obviously covers the officers functioning as revenue courts, as well as officers functioning in non-judicial or administrative capacity. The expression 'Revenue Officer' has been used deliberately in Section 218 of the Act to include within its ambit both the cases decided or the proceedings (non-judicial) held by the revenue officers in their administrative capacity. So, when we are dealing with the case decided or proceedings held of a judicial nature, we have to confine ourselves to the meaning of the expression as applicable to the revenue courts only. 11. It may be pointed out that in Section 219 of the U.P. Land Revenue Act the expression used is 'by any subordinate court'. This of course, is indicative of the fact that revision under Section 219 of the Act can only be entertained by the Board only in respect of the case decided by any subordinate court. Section 218 of the Act has been contemplated to deal with larger area of revenue orders covering both the cases decided and the proceedings or orders made of non-judicial nature. Section 218 of the Act has been contemplated to deal with larger area of revenue orders covering both the cases decided and the proceedings or orders made of non-judicial nature. That is why the expression 'any revenue officer' and not 'any revenue court' has been used. 12. However, when the reference under Section 218 of the Act was to be made against any judicial order, the expression 'subordinate officer' is to be interpreted as 'subordinate court'. This is so because the revenue cases and the judicial orders have to be dealt with in the frame-work of the System envisaged in the disposal of such cases. Subordinate officer is in general term carrying a different meaning as is apparent from the following section. For instance, Section 19 of the Act reads as follows : "19. Subordinate of revenue officers - Every revenue officer of a sub-division of a district shall be subordinate to the Assistant Collector (if any) incharge of such sub-division, subject to the general control of the Collector." So also, it is laid down under Section 15(2) of the Act that - "15(2) All such Assistant Collectors and all other revenue officers in the districts, shall be subordinate to the Collector." 13. These provisions have been made for the smooth conduct of the revenue administration and therefore indicate subordination of the revenue officers to the higher authorities when they are dealing with them in administrative capacity. As far as judicial proceedings are concerned, the S.D.O. cannot interfere with the judicial orders of the Assistant Collector Ist class having concurrent jurisdiction even though administratively he is held to be an officer, sub-ordinate to the S.D.O. So also, the Collector cannot hear appeal or interfere with the orders of S.D.O. exercising concurrent jurisdiction even though administratively he is subordinate to the Collector. The hierarchy of the revenue courts has been fixed under the U.P. Land Revenue Act. As for the hearing of appeals are concerned in Section 210 of the U.P. Land Revenue Act which specifically prescribes the courts from which appeals lie to the higher courts as follows: "210. The hierarchy of the revenue courts has been fixed under the U.P. Land Revenue Act. As for the hearing of appeals are concerned in Section 210 of the U.P. Land Revenue Act which specifically prescribes the courts from which appeals lie to the higher courts as follows: "210. Courts to which appeal lie - (1) Appeal shall lie under this Act as follows: (a) to the Record officer from orders passed by any Assistant Record Officer; "(b) (i) to the Commissioner from orders passed by a Collector or an Assistant Collector, first class or Assistant Collector in charge of sub-division; (ii) to the Collector from orders passed by an Assistant Collector, second class or Tehsildar. (c) Deleted by U.P. Act XX of 1954. (2)............. (3)............. (4)............. (5)............. (6) No appeal shall lie against an order passed under Section 28, 38(x), 39 or 40." 14. In some pronouncements by the Board the above has been taken as a base for determining the hierarchy of the court and perhaps because of clause (2) of the above referred Section which says that appeal against the order of the Tehsildar lies in the court of Collector it has been interpreted that the reference before the Commissioner under Section 218 of the Act against the order of the Tehsildar is a reference without jurisdiction. Section 218 of the Act does not make any such distinction as Section 210 of the Act while conferring powers of making reference. It says 'any subordinate court', which indicates that the commissioner, if he chooses so, of his own can entertain reference against the order of the Tehsildar also. Therefore, there will be no error of jurisdiction if the Commissioner makes a reference under Section 218 of the Act against the order of the Tehsildar. 15. Thus, when a revision petition is filed under Section 218 of the U.P. Land Revenue Act before the Commissioner Additional Commissioner and the petitioner does not comply with rule 192 of the Revenue Court Manual, the petition may be straight-away rejected. It, however, does not take away the inherent powers of the Commissioner under Section 218 of the Land Revenue Act to consider such an application and make a reference if he finds it so. It, however, does not take away the inherent powers of the Commissioner under Section 218 of the Land Revenue Act to consider such an application and make a reference if he finds it so. Before him, following courses are open: (i) rejection of an application at the very beginning for non-compliance of rule 192 of the Revenue Court Manual or on the ground that the reference is prima facie not covered by Section 218 of the Act: or (ii) may call for and examine the record and if he is of the opinion that no case is made out, the application may be rejected, and (iii) if after the record has been examined, he is of the opinion that the order passed should be valid, cancelled or reversed, he shall refer the case with his opinion thereon for orders of the Board. 16. In the light of discussion above the answer to the question passed are as follows: I-A. The application under Section 218 of the U.P. Land Revenue Act for making a reference against the order of the Tahsildar can only be made before the Collector of Additional Collector and not before the Commissioner or Additional Commissioner. I-B. Para 192 of the Revenue Court Manual, however, does not bar the jurisdiction of the Commissioner in taking note of the order of the Tahsildar under section 218 of the Land Revenue Act and making a reference. II. If such an application is made to the Commissioner or Additional Commissioner, who instead of rejecting it under para 192 of the Revenue Court Manual entertains it and makes a reference to the Board, the reference is not beyond jurisdiction and cannot be rejected by the Board on issue of jurisdiction only.