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Madhya Pradesh High Court · body

1990 DIGILAW 234 (MP)

SURAJ SINGH v. STATE OF M. P.

1990-06-26

K.K.VERMA, T.N.SINGH

body1990
T. N. SINGH, J. ( 1 ) IN this matter elaborate and strenuous arguments have been advanced arduously before us by petitioner's counsel Shri Tomar on the validity of the order (Annexure P-6) passed on 11- 1 -1990 by the appellate authority, respondent No. 3, assailing it to be an order passed without jurisdiction. Counsel submitted that the Additional Commissioner had no jurisdiction to pass the impugned order refusing to restore to file the appeal dismissed for default. Counsel contended that such a disposal was not contemplated in law, because the appellant had to be heard for exercise of the appellate jurisdiction. Admittedly, the appeal was dismissed for default on 2-9-1986, and for restoration the application was made on 26-5-1988, which was disposed of by the impugned order. The appeal had been preferred against an order passed on 28-6-1983 by Competent Authority (respondent No. 2) under Section 8 (4) of the Urban Land (Ceiling and Regulation) Act, 1976, for short, the 'act', declaring as surplus 9996. 13 sq. metres of land and settling accordingly the final draft statement by disposing of the objection preferred by petitioner. ( 2 ) THE proposition canvassed by learned counsel we found wholly unacceptable despite counsel's reliance on Shivlal Thakershi v. The Competent Authority, AIR 1987 Gujarat 155 for that purpose. In our view, the law is clear and beyond any pale of controversy. The jurisdiction exercised in the impugned order, in appeal, under Section 33 of the Act has its source, origin and basis in the provision itself and its ambit is to be determined by the language used by the legislature. The provision is accordingly quoted (Para 9):"33. Appeal.- (1) Any person aggrieved by an order made by the competent authority under this Act, not being an order under Section 11 or an order under sub-section (1) of Section 30, may, within thirty days of the date on Which the order is communicated to him, prefer an appeal to such authority as may be prescribed (hereinafter in this section referred to as the appellate authority); provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) On receipt of an appeal under subsection (1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible. (Emphasis added) ( 3 ) COUNSEL has endeavoured to impress us by drawing our attention to the provisions of Sections 12 and 13 of the Act, which exercise we consider futile. We do not see any substance in the submission of learned counsel that we must read in the provision aforequoted the prohibition or inhibition thereunder contemplated and determine the scope of the appellate power contemplated under Section 33 in that context. It is true that to the appeals contemplated thereunder, provisions of the Code of Civil Procedure are made expressly applicable but the nature of the right agitated in those appeals is entirely different. Against determination of compensation under Section 11 by Competent Authority payable for "the vacant land deemed to have been acquired by the State Government under Section 10 (3)", a first appeal lies under Section 12 (2) to the Tribunal constituted thereunder; and a second appeal to the High Court under Section 13. We have no doubt that appropriate measure taken for compensation for the expropriated interest is finale of the several proceedings taken for that purpose under the Act and, therefore, the scope of order passed by the Competent Authority under Section 11 or by the Tribunal under Section 12 in respect to the right of compensation is entirely of a different complexion and purport. ( 4 ) IT may be rewarding to have a bird's eye view of the legislative landscape under the guiding light of the elaborate preamble. It speaks of the Act's object "of preventing concentration of urban land in the hands of a few persons and speculation and profiting thereunder with a view of bringing about an equitable distribution of land in urban agglomeration to sub-serve the common good. " Chapter III contains provisions dealing with ceiling on "vacant land" envisaging under Section 6 statement to be filed by persons holding such lands. " Chapter III contains provisions dealing with ceiling on "vacant land" envisaging under Section 6 statement to be filed by persons holding such lands. After the draft statement is prepared by the competent authority and objections to that are determined under Section 8 (4), the final statement is prepared under Section 9 following which, by a gazette publication, the excess vacant land is "deemed to have been acquired by the State Government" and to have "vested absolutely" in it free from all encumbrances as per Section 10 (3 ). Sections 11, 12 and 13 provide respectively for determination of compensation by the Competent Authority, and in appeals by the Tribunal and High Court. Sections 23 and 24 provide for disposal of the vacant land acquired under the Act. Chapter IV, embracing Sections 25 to 30, deals with regulation of transfer and use of urban property. Chapter V contains "miscellaneous" provisions opening across Sections 31 to 47. Provisions for "appeal" and "revision" are made in Sections 33 and 34 respectively, but under Section 42 all provisions of the Act are given overriding effect. ( 5 ) LEGISLATURE has provided appeal under Section 33 to a different forum (prescribed authority) in regard to orders, which are not passed under Section 11, or under Section 30 (1) of the Act in respect to "demolition and stoppage of building". For two types of excluded orders, Tribunal is named in the Act itself as the appropriate forum. The appeal under Section 33 has been expressly given a short life and the appellant has been deliberately given a short rope to pull his case, as the appeal may be in regard to miscellaneous orders which may be even orders of interlocutory nature. Such an appeal is to be dealt with "expeditiously" so that the proceedings under the Act do terminate expeditiously reaching its finale under Section 11. Legislature took special care to express that intention clearly by using the words "as expeditiously as possible" being not, satisfied by conferring plenary powers on the appellate authority by using the expression "pass such orders thereon as it deems fit". We fail to read any word used or any expression indicated anywhere in Section 33 to take the view that in any, manner the wide amplitude of appellate power is circumscribed in the manner pleaded by Shri Tomar. We fail to read any word used or any expression indicated anywhere in Section 33 to take the view that in any, manner the wide amplitude of appellate power is circumscribed in the manner pleaded by Shri Tomar. We find no reason to accept his contention that the appellate authority acting under Section 33 (2) can only pass a reasoned order on merits disposing of contention pressed by the appellant and that it has no jurisdiction to deal with the appeal in any other manner such as dismissing the appeal for non-prosecution. Only because provision of CPC are made expressly applicable to disposal of appeals under Sections 12 and 13, we would not be justified in judicially extending legislative privilege to appeals under Section 33, by questioning legislative wisdom for denying to such appeal the same privilege. ( 6 ) WE are not unmindful of the evolving interpretative technology and, as such, we have kept in view the object of the Act and the scheme of diverse provisions fulfilling the purpose of the Act enacted to give effect to the Directive Principles of State Policy laid down in Part IV of the Constitution. Our attention in this connection is drawn to a Full Bench decision of this Court in Usha Devi's case, ( 1990 MPJR 3 : 1990 RN 77) dealing with a cognate enactment, M. P. Ceiling on Agricultural Holdings Act, 1930. The scheme of that enactment bears a striking resemblance to that of the Act under consideration. In that case it was observed that the Court owes a duty to the legislature to interpret the several provisions of the enactment in a manner that would fulfil its object of early determination of the "surplus" land to achieve the ultimate object of the said land being distributed among the landless people. Under the Act (under consideration) right to compensation for the "vacant" land declared surplus has been effectively protected by providing two appeals, to be dealt with and decided judicially. It will be a travesty of justice, therefore, if the appellate power contemplated under Section 33 is unduly restricted and the owner of any "urban land" is given a long rope to engineer situations under which date of determination of vacant land can be postponed by him to suit his convenience by preferring an appeal under Section 33 and delaying disposal thereof by his own act and design. Indeed, the proposition canvassed has to be rejected on the short ground that it will make a non-sense of the legislative endeavour as effective enforcement of the Act will become difficult if the appeal preferred against Competent Authority' preparation of final statement is not disposed of expeditiously in spite of express statutory mandate in terms in that regard. ( 7 ) LAW, in our view, is well settled that when a special jurisdiction is created and the forum is prescribed, the latter must have inherent powers to exercise the jurisdiction in such manner as to pass effective orders for the exercise effectively of the jurisdiction vested in it. (See I. T. O. v. Mohd. Kunhi, AIR 1969 SC 430 . Recently, a Full Bench of this Court in Sarmaniya Bai v. Madhya Pradesh Rajya Parivahan Nigam, 1990 Jab LJ 386), relying on that decision, took the view that Motor Accidents Claims Tribunal constituted under Motor Vehicles Act, for determination of compensation payable in case of motor accidents, did have the power to execute its own order, despite there being absence of any express provision in the Act in that regard. The special jurisdiction being sui generis, only express prohibition/inhibition legislatively provided was the limit that circumscribed the powers of the forum invested with that. Applying that lest evolved by the Full Bench we find that under Section 33, the appeal filed within 30 days has to be entertained mandatorily and the other mandatory requirement is of "an opportunity of being heard, " to be given to the appellant. What is clear is that the appellate authority can exercise discretionary power in entertaining a time barred appeal and also exercise its discretion in disposing of the appeal finally in such manner "as it deems fit" if the opportunity granted is not availed. There is no obligation on the appellate authority to grant adjournments ad infinitum or to postpone hearing and disposal of the appeal till such time as may suit the convenience of the appellant. On the contrary, such exercise is barred specifically in terms, because the appeal is to be disposed of "as expeditiously as possible". That mandate obviously fulfills the object of the Act of early determination of surplus vacant land and vesting thereof in the State Government under Section 10 (3 ). On the contrary, such exercise is barred specifically in terms, because the appeal is to be disposed of "as expeditiously as possible". That mandate obviously fulfills the object of the Act of early determination of surplus vacant land and vesting thereof in the State Government under Section 10 (3 ). ( 8 ) SHRI Tomar's reliance on Shivlal Thakershi, (supra), in our view, is misconceived, because in that case the order challenged was an order passed by Tribunal. Question mooted being that the Tribunal had no jurisdiction to dismiss the appeal for default, a clear answer for that was provided in S. 12 (5) making provisions of C. P. C. applicable to appeals filed before the Tribunal constituted thereunder. In the appeal filed under S. 33, power and jurisdiction is exercised by the prescribed authority and not by the Tribunal, it is true that in that case, the appeal was filed before Tribunal under S. 33 an that was dismissed for default, and the order of the Tribunal, which was set aside by the High Court, was based on Tribunal's view that it had jurisdiction to act in that manner under O. 41, R, 11 (2), C. P. C. The Court held that C. P. C. being not made applicable to appeals under S. 33, the impugned order was illegal, and that was set aside. We are in respectful agreement with that view, but we are unable to subscribe to the further general proposition, also set out in the judgment, that the competent authority and the appellate authority also, acting under the Act, were required to determine all matters on merits under all circumstances and that they could not act otherwise. Inspiration for that view, let it is be noted, was derived by the learned single Judge from a DB decision of Bombay High Court, rendered in a case under Bombay Tenancy and Agricultural Lands Act. ( 9 ) HOWEVER, we appreciate Shri Tomar's fair gesture in bringing to our notice a decision of the apex Court in Babulal Nagar v. Shree Synthetics Ltd. , AIR 1984 SC 1164 which supports the view we have expressed herein. Their Lordships were required to examine, the scope of revisional jurisdiction contemplated under Ss. 61 and 66 of the M. P. Industrial Relations Act, 1960, and in para 14 of the report that question was examined. Their Lordships were required to examine, the scope of revisional jurisdiction contemplated under Ss. 61 and 66 of the M. P. Industrial Relations Act, 1960, and in para 14 of the report that question was examined. In construing the expressions "as he deems fit" and "as it thinks fit" it was held that a "very wide" jurisdiction was conferred thereunder which entitled the Court concerned to take an entirely different view on the same set of facts. The ambit of revisional jurisdiction under S. 66 being enumerated in terms of legality or propriety of the impugned order, the duty of the revisional Court in that regard was pointed out. S. 33 of the Act is not similarly worded (however, to confer on the appellate authority similar powers to deal with the appeal in a similar manner exercising jurisdiction to similar extent. Had it been made a condition precedent for the appellate authority to dispose of the appeal only after examining the legality or propriety of the order, the matter would have been different. On the other hand, in our view, legislature rather took special care to ensure that plenary powers had to be conferred on the appellate authority, acting under S. 33, by endowing it with the power to deal with the appeal by passing an order "as it deems fit" and to dispose it of" as expeditiously as possible. " ( 10 ) FOR all the aforesaid reasons, we have not an iota of doubt that the contention pressed by Shri Tomar that under S. 33 the appellate authority has no power to dismiss the appeal for default, is wholly meritless and is rejected. ( 11 ) AT the conclusion of his arguments, Shri Tomar, however, made a fervent appeal to us to allow him to approach the appellate authority to re-consider his grievance, as in para 3 of the appellate order some facts are mentioned which he has disputed. Counsel has submitted that restoration of the appeal being refused on wrong premises, he is entitled to invoke S. 33 for being allowed a reasonable opportunity to sustain that dispute before the appellate authority. As those facts bear on the question of dismissal of the appeal, we have taken the view that opportunity contemplated under S. 33 could be nothing but reasonable and that has to be allowed to petitioner, appellant below. As those facts bear on the question of dismissal of the appeal, we have taken the view that opportunity contemplated under S. 33 could be nothing but reasonable and that has to be allowed to petitioner, appellant below. Accordingly, we direct that the appellant will be heard and the restoration application shall be disposed of by a fresh order. In case he fails to avail the opportunity to be reheard on his application, he will have to blame his own star and conduct; and nobody else. ( 12 ) WITH the aforesaid observation and direction, this petition is dismissed with liberty to petitioner to approach the appellate authority within a month, if so advised, for fresh disposal of his application. ( 13 ) NO costs. Petition dismissed. .