GULAB BAI Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioner, Smt. Gulab bai, has invoked the jurisdiction of this Court under Arts. 226 and 227 of the Constitution challenging the order, dated 14th December 1961, (Ex. P -8), passed by the Board of Revenue in Appeal No. 424 of 1958 1963 RN -SN 123, whereby it was held against her that no valid tenancy of Khasra no. 211 measuring 217.97 acres and Khasra no. 12 measuring 17.50 acres of village Dubeli, tehsil Balaghat, was created in her favour under the lease deed, dated 6 -1 -1949. The petitioner has also prayed for setting aside the order (Ex P -11) passed by the Board of Revenue on 27 -9 -1962 dismissing her application for review of the aforesaid order of 14 -12 -1961.

(2.) THE petitioner's case briefly stated, is that her husband was the sole Malguzar of Mauza Dubeli up to the time of the abolition of proprietary rights (i.e. 1 -4 -1951); that the aforesaid two fields in question were recorded in the settlement of the village in 1915 -16 as "big tree forest"; that on 6 -9 -1941, the ex -Malguzar had applied for permission to clear the forest growth under Rules framed under Section 202 of the C.P. Land Revenue Act, 1917, to the Deputy Commissioner, Balaghat, who had ordered that no permission was necessary (vide Ex. P -1) ; that thereafter, the ex -Malguzar brought some of the land in the said two fields under plough ; that on 4 -5 -1958 by way of abundant caution, the ex -Malguzar gave notice to the Deputy Commissioner that he wanted to clear the remaining "big tree forest" of the above Khasra numbers; that as no prohibitory order was received from the Deputy Commissioner, Be laghat tin the expiry of six months from the date of the said application, clearing of the forest was started thereafter and was completed by the middle of 1949; that on 6 -1 -1949, the ex -Malguzar granted tenancy rights to the petitioner in the said two fields and ten other fields fixing rent of Rs 511; that she obtained possession of the said fields from the date of the Patta and was paying the rent fixed to the State after the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated lands) Act, 1950, (No 1 of 1951), came into force that she was recorded as occupancy tenant of all lands covered by the Patta except the two Khasra numbers (711 and 12) ; that she had applied to the Nistar Officer, Balaghat, through the Collector, for being recorded an occupancy tenant or Bhumiswami of the aforesaid two Khsras but her prayer was rejected by him ; that later the Board of Revenue had remanded the case for proper determination by its order dated 24 -8 -1956 (Ex P -5) but her claim was again rejected by the Deputy Commissioner (vide Ex, P -6, and on appeal by the Commissioner (vide Ex. P -7), and finally, by the Board of Revenue by his aforesaid order of 14th December 1961 (vide Ex. P -8).

(3.) SHRI R.K. Pandey, learned counsel for the petitioner, urged that on registration of the Patta in favour of the petitioner, here title became complete and her rights could not be affected by any provisions of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands ) Act, 1950, (hereinafter called the Act), it being an Act only to take away the proprietary rights and not to affect the tenancy rights. He further contended that under Rule 3 (2) of the Rules framed under Section 202 of the C.P. Land Revenue Act, 1917, appropriator of any estate or mahal either by himself or through his agent; lessee or license, was entitled to clear the forest growth for the purpose of cultivating the land if no prohibitory order was made by the Deputy Commissioner under Rule 4 of the Rules under Section 202 of the C.P. Land Revenue Act, 1917, and as no such order was passed in the present case, Shri Pandey urged, that the order passed by the Board of Revenue (Ex. P -8) was illegal and was liable to be set aside in these proceedings.