PRATAPCHAND Vs. BOARD OF REVENUE M P GWALIOR

JUDGEMENT

(1.) THE circumstances in which this application under Articles 226 and 227 of the Constitution has been filed are that on the application of the petitioners, who are ex -proprietors and Malguzars of village Khutwadia, Tahsil Harsud, district Nimar, under section 202 of the C.P. Land Revenue Act, 1917, the Deputy Commissioner, Nimar, made an order on 20 January 1951 allowing the petitioners to clear for cultivation 143 acres of 'big tree' forest land and 300 acres of Chhota Jhad scrub jungle land, fixing 31 December 1953 as the last date for clearing the land. After the coming into force of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951), the petitioners filed a second application on 29 March 1951 under section 3 (2) of that Act and the rules made under that provision, for clearing the above mentioned forest land. On this application the Additional Deputy Commissioner made an order on 10 November 1951 permitting the petitioners to clear the forest land by 31 May 1953, adding that in the event of the failure to clear the land by that date the permission granted would automatically lapse. Thereafter, it appears, on the request of the petitioner, time for clearing the land was extended up to 30 September 1955. Some time afterwards, the Deputy Commissioner felt that the extension of time granted to the petitioner for clearing the forest area was not legal, and that a scheme should be prepared for the distribution of the forest land as the petitioners had only cleared 47.69 acres of land out of the total area of 443 acres and had not brought under cultivation any area of the land. In due course the Sub -Divisional Officer, after enquiry, made proposals for the distribution and settlement of the land. After the receipt of the report, Shri Virbhadrasingh passed an order on 20 February 1956 directing that the Khasra numbers specified in the list attached to his order should be settled with some 21 Korkus and the remaining areas should be settled with the petitioners, and the areas to be settled with the Korkus and with the petitioners should be in Bhumidhari rights. He also directed the Superintendent of Land Records to assess the land and fix the land Revenue.

(2.) IN 1959 Shri Gill, Collector, Nimar, took the view that the extension of time granted to the petitioners for clearing the forest area and the settlement of the land under the Deputy Commissioner's order dated 20 February 1956 and all proceedings relating to the settlement were illegal and invalid, and that the order dated 20 February 1956 of the Deputy Commissioner should be reviewed. He obtained the permission of the Commissioner, Indore Division, for reviewing under section 47 (1) of the M.P. Land Revenue Code, 1954, the order passed by his predecessor on 20 February 1956. On 5 January 1960 Shri Gill passed an order setting aside the order dated 20 February 1956 of the Deputy Commissioner and directing the Sub -Divisional Officer "to go again into the matter in detail" and initiate 'necessary action under the relevant Revenue Law' against the petitioners. This order of the Collector was upheld in appeal by the Commissioner, Indore Division, and also by the Board of Revenue in second appeal. The petitioners now pray that a writ of certiorari be issued for quashing the order dated 5 January 1960 passed by Shri Gill setting aside the order made on 20 February 1956 by Shri Virbhadrasingh, Deputy Commissioner, as also the decisions of the Commissioner, Indore Division, and the Board of Revenue upholding that order.

(3.) IN reply, Shri Bhave, learned Government Advocate, contended that the order passed by the Deputy Commissioner on 20 February 1956 was not under section 40 of the Abolition of Proprietary Rights Act, 1950, but was one made under section 202 of the Land Revenue Act, 1917; that the Deputy Commissioner or the Additional Deputy Commissioner had no authority or jurisdiction to grant to the petitioners any extension of time for clearing the forest area; that section 40 of the Abolition Act when it provided that a proprietor shall continue in possession of any land not included in home -farm but brought under cultivation by him after the agricultural year 1948 -49 and the land shall be deemed to be settled with him by the State Government, pre -supposed that the proprietor was in possession of such land, i.e., land not included in home -farm but brought under cultivation after the agricultural year 1948 -49, on the date of the coming into force of the Abolition Act, 1950, or at least on the date of the vesting of proprietary rights under section 3 of that Act. In view of the decision of the Supreme Court in Balkishan Nathani's case that an order made under section 40 of the Abolition Act, 1950, is final and cannot be reviewed, the main question that arises for determination in this case, no doubt, is whether the order made on 20 February 1956 by the Deputy Commissioner was one under section 40 of the Abolition Act, 1950, or section 202 of the Land Revenue Act, 1917, as contended by learned Government Advocate. Another question which may also require consideration is whether if the Deputy Commissioner in fact purported to make the order under section 40 can that order be said to be not one under section 40 because no such order could legally be made under that provision, as was sought to be argued by learned Government Advocate. It is, however, not necessary to determine these questions in this petition for the reason that the second objection advanced by the petitioners that the Collector had no jurisdiction to review the order passed by his predecessor without obtaining the sanction of the Board of Revenue must prevail.