RAMDAS ZINGA BANJARI Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India the petitioner prays for issuance of a writ of certiorari quashing the order dated October 13, 1959, made by the Additional Commissioner, Nagpur Division, Nagpur, respondent No. 1 hereto, and for a direction that the appeal be heard and decided by respondent No. 1 in accordance with the law.

(2.) FOLLOWING facts give rise to this petition. Respondent No. 5, Shewantabai was the landholder of S. No. 41 situate in village Dabhadi, taluq Darwha, district Yeotmal. She transferred that field under a registered deed dated April 27, 1957, to Gangadhar, respondent No.4 hereto. Gangadhar filed a civil suit on July 19, 1957, against petitioner Ramdas alleging therein that he was in possession of the field, that he had performed summer operations in the field and that Ramdas had forcibly dispossessed him. The defence of Ramdas was that he has acquired the status of a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951, hereinafter referred to as the Leases Act. The Court, therefore, framed an issue, whether Ramdas was a protected lessee within the meaning of the Leases Act. The Court then referred that question to the Revenue Officer for its decision under Section 16A of the Leases Act. The reference was heard by the Sub -Divisional Officer, respondent No. 3 hereto. He by his order dated March 13, 1958, held that Ramdas had not acquired the status of a protected lessee, and answered the reference accordingly. Against this decision of the Sub -Divisional Officer the petitioner Ramdas took an appeal to the Collector, Yeotmal. It was heard by the Deputy Collector with revenue appellate powers, respondent No. 2 hereto. He rejected the appeal. The petitioner then preferred a second appeal before respondent No. 1, the Additional Commissioner, who held that the effect of coming into force of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, hereinafter referred to as the new Act, on December 30, 1958, was that he had no jurisdiction to hear the appeal. In this view of the matter he transferred the second appeal to the Bombay Revenue Tribunal for disposal. The reasons given by him are as follows: The Berar Regulation of Agricultural Leases Act has since been repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, coining into force on 30th December, 1958. Under Section 132(3)(a) of the new Act, these proceedings stand transferred to the corresponding authority under the new Act. It is urged by the appellant's counsel that under Section 132(2) this Court has jurisdiction in the case. I do not agree with the contention, firstly, because I have no powers whatsoever under the new Act which has come into force and secondly any rights which Section 132(2) may secure are restricted only to the right of appeal/revision; they do not extend to the forum by which appeal or revision may be heard. This case is, accordingly, transferred to the Bombay Revenue Tribunal for disposal. The petitioner, therefore, has preferred this petition.

(3.) IT is first necessary to consider whether a second appeal lay to the Additional Commissioner against an appellate order of the Deputy Collector. As already stated, the proceedings out of which the appeal arises is a reference decided by the Sub -Divisional Officer under Section 1.6A of the Leases Act. Sub -section (2) of Section 17 of the Leases Act provides: Except where the provisions of this Act provide otherwise, from every decision or order of a Revenue Officer under this Act or the rules made thereunder an appeal shall lie as if such decision or order had been passed by such officer under the Berar Land Revenue Code, 1928. This Act was passed in 1951. At that time, the Berar Land Revenue Code was in force. It is a matter of history and it is not in dispute that both the Berar Land Revenue Code and the C.P. Land Revenue Act were repealed and the provisions therein were consolidated in and amended by the Madhya Pradesh Land Revenue Code, 1954. Section 41 of that Code which deals with appeals is, therefore, admittedly the relevant provision. We are here concerned with a second appeal from an appellate order made by the Deputy Collector exercising appellate powers. Sub -section (3) of Section 41 originally provided that against any order passed in first appeal by the Deputy Commissioner, a second appeal shall lie to the Board. The provisions of Sub -section (5) of Section 41 stood amended by Act 8 of 1958. The effect of Section 3 of the Commissioner's Act (Act 8 of 1958) read together with item 12(2) of the Schedule is that the word 'Commissioner' gets substituted for the word 'Board' in Sub -section (5) of Section 41 of the M.P. Land Revenue Code. Thus under Section 41(5) of the M.P. Land Revenue Code as amended by the Commissioner's Act, an order made in appeal by the Deputy Commissioner, i.e. the Collector or Deputy Collector, with appellate powers, would lie to the Commissioner. It is not in dispute that the Additional Commissioner is competent to exercise the powers of the Commissioner.