SHARADCHANDRA AMULAKHRAY DESAI Vs. NANA BHURA

JUDGEMENT

(1.) The question therefore that arises In this Group of petitions is whether there was any such proceeding competent under law pending on the 1st of August 1956 which could be said to be a proceeding in the nature of a suit or application under the Tenancy Act contesting the status of the tenants as permanent tenants and the decision in which would have the direct result of affecting the entry in the record of rights. In the alternative whether there was pending on the 1st of August 1956 any application or proceeding under the Code itself challenging the said entries made in the record of rights. Mr. Pandya the learned advocate for the petitioners in this group drew our attention to the application given by the petitioners In April 1955 and urged that this was given to the Mamlatdar and it should be construed to be the application under sec. 70(b) as we have done in respect of the application dated the 30th of July 1954 given by the petitioners in the first group of petitions but we find it difficult to agree with Mr. Pandya. The contents of the application are clear and they definitely indicate that the application was given under the rules of the Code to correct the entries made in the record of rights. It does not contain any of the main ingredients of the application under sec. 70(b) to the Mamlatdar. Therefore there is no scope for us to hold that it was an application under sec. 70 b).

(2.) But that fact cannot see the end of these petitions. We have seen while dealing with the first group of petitions that the learned Acting Advocate General conceded and very rightly that if an application or proceeding under the Land Revenue Code was pending on the 1st of August 1956 then the entry cannot be held to be validly or finally made in the record of rights. If that be so this application was pending on the 1st August 1956. But it was contended by the learned acting Advocate General that this was an application made to the Mamlatdar and not to the village Accountant who was the only person competent to hear and dispose it of and Therefore the application could not be considered to be an application under the Code. We are not at all impressed by this argument. This proceeding is not of the nature of civil or criminal proceedings which are to be filed before a Particular forum and that forum alone has a right to entertain and dispose of the matter. Here is only a revenue matter or an entry to be objected to and corrected. The provisions of the Code and the Rules thereunder would show that in the hierarchy of the revenue officers in the Taluka the Mamlatdar is at the top and the village Accountant at the bottom. The Mamlatdar is immediately responsible for the upkeep of the revenue records within the Taluka. It is his duty to see that all the subordinate officers carry out their duties The Village Accountant is under his control and supervision and the Mamlatdar is therefore authorised to send the application which may have been addressed to him to the Village Accountant to deal with it and do the needful. The mere fact that the application was addressed to and given to the Mamlatdar would not make therefore the application illegal or innocuous. The acting Advocate General conceded that otherwise there is nothing on which any fault could be found in the said application as an application falling under the rules or an application which may be necessary to be made under rule 106 to the Village Accountant. Certainly the Mamlatdar if he could not entertain the application could have directed the Village Accountant to take it up. The Legislature even in more formal matters as can be seen under secs. 8 9 10 and others of the Mamlatdars Courts Act has thrown the obligation on the Mamlatdar to see that any want of compliance with formality or the fact that a party approaches him wrongly has not to render the application futile but has to help the applicant to see that he receives justice and his matter is dealt with and disposed of according to law. This principle would apply with greater force to matters under the Code for correction of an entry which Is certainly a less formal matter than a suit before the Mamlatdar. In our view there is nothing in the Code or the rules to show that the application must be only sent to the Village Accountant for doing the needful under sec. 106. It is true it is the duty of the Village Accountant to post the entry of mutation in the Diary of mutation but it does not provide that notice as regards mutation can only be given to the Village Accountant and not to the higher officer viz. the Mamlatdar except of course when it is a report to be made under sec. 135C of the Land Revenue Code. Again . there is nothing to prevent the Mamlatdar himself making the inquiry if he so desired. Under rule 107 it is the duty of the Mamlatdar to test and revise the entries that may have been made by the Village Accountant in the Diary of mutations. In our view the respective duties of the subordinate officers including the duty to make entries in the Diary of mutations of the Village Accountant have been entrusted as a matter of convenience only and not by way of vesting any jurisdiction to entertain and decide matters as in the case of judicial proceedings. Therefore It cannot be said that when the application was given to the Mamlatdar it was presented to an officer without jurisdiction He could have either dealt with it himself or could have directed the Village Accountant to do the needful. In support of this view that we have taken it may also be noted in passing that under sec. 135C though it is the duty of the persons acquiring any right of the nature mentioned therein to report the matter to the Village Accountant it absolves him from such a duty if he has acquired the right by virtue of a registered document. But That does not mean that this information is not to reach the revenue authorities and as regards how this information reaches the Village Accountant is a matter of interest to us in this case. A reference to the Manual of Revenue Accounts makes the matter clear. It says that the Registrar and the Sub-Registrars have to send the information of such rights which are the subject matter of registered documents. At page 70 of this Manual there is the following note:-

(3.) The result is that the applications given in April 1955 which were applications under the Code for correcting entries in the record of rights were pending on 1st August 1956. Therefore for reasons already stated in our judgment delivered in the first group of petitions the Tribunal was in patent error of law in relying upon the entry in the record of rights for the purpose of the inclusive part of the definition and the Tribunals order must be set aside. Petition allowed.