GOVINDRAO Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE facts and circumstances, which have given rise to this application under articles 226 and 227 of the Constitution, are that the Petitioner Govindrao was the Malik Maqbuza of Khasra No. 69 of village Raigaon in Burbanpur Tehsil. On the coming into force of the Madhya Pradesh Land Revenue Code, 1954, he became Bhumiswami of the land. One Lahanu, the predecessor -in -interest of opponents Nos. 6 to 8, was occupancy tenant of the said field of the Petitioner. On 9th may 1955 Lahanu sold the field by a registered sale -deed for Rs. 2,500 to the Respondent No. 5, Vinayakrao. Lahanu did not give any notice of the sale to the Petitioner as was required to be done by Section 12 -A of the Central Provinces Tenancy Act, 1920 (hereinafter referred to as the Tenancy Act). On 9th January 1956, that is after the repeal of the Tenancy Act by the Madhya Pradesh Land Revenue Code, 1954, the Petitioner made an application under Section 176 of the Code for setting aside the sale and for being put in possession of the field. In that application the Petitioner stated his willingness to pay or deposit such amount as may be determined by the Court under the provisions of Section 176 of the Code.

(2.) THE Sub -divisional Officer, Burbanpur, rejected the Petitioners application holding that Section 176 of the Code was not applicable. His decision was upheld in appeal by the Collector, East -Nimar, as well as in second appeal by the Commissioner, Indore Division. The Petitioner then preferred a revision petition before the Board of Revenue, which was also dismissed. The learned President of the Board of Revenue took the view that the repeal of the Tenancy Act did not debar the Petitioner from bringing his case under Section 12 -A as under Section 5 of the C. P. and Berar General Clauses Act, 1914, the right conferred on the Petitioner by Section 12 -A of the Tenancy Act was saved and so also the remedy for the enforcement of that right. He, however, held that the right conferred by Section 12 -A of the Tenancy Act on the Petitioner to pre -empt could not be treated as an acquired right as the Petitioner had done nothing to take advantage of the right conferred on him by Section 12 -A and to enforce that right before the repeal of the Tenancy Act by the Code The learned President rejected the Petitioner's contention that he was entitled to relief under Section 176 of the Code as the right of Malik Maqbuza under the Tenancy Act to resume the land sold by the occupancy tenant had been incorporated in Section 176. The learned President further held that the Petitioner's application for resuming the land was under Section 176 of the Code and that it could not be treated as one under Section 12 -A of the Tenancy Act especially when the Petitioner had not deposited, along with the application, the requisite amount for being put in possession of the field and that the making of a deposit was a condition precedent under Sub -section (11) (a) of Section 12 -A of the Tenancy Act for the enforcement of the right of pre -emption conferred by that section.

(3.) SECTION 239 of the M. P. Land Revenue Code, 1954, which repealed the Tenancy Act, contained "savings provision". In Inter alia provided that rights acquired and liabilities incurred under any of the enactments repealed by the Code shall, so far as may be, be deemed to have been respectively acquired and incurred under the Code. Section 176 of the Code conferred on certain persons the right to apply to set aside transfers by occupancy tenants. It was in the following terms -