SAUDAN SINGH Vs. STATE OF M P

JUDGEMENT

(1.) PROCEEDINGS under section 248 of the Madhy a Pradesh Land Revenue code, 1959, for short, the 'code', were initiated against the petitioner and an order therein was passed for his summary eviction. A revision was taken to the Collector on the ground that no opportunity was given to the petitioner to place his case. In these proceedings, the petitioner succeeded and the matter was remitted to the Tahsildar for de novo proceedings. Now came the real problem and this matter arises out of the controversy that has arisen in the de novo proceedings.

(2.) THE matter was again heard ex parte as appears from the order passed on 20-4-- 1976. Deputy Government Advocate Shri Roman contends that it was not an ex parte order. But, this contention is not open to him, because of the subsequent event. It has all along been accepted by the parties on both sides in subsequent proceedings that it was so. Indeed, an application under sub-section (3) of section 35 of the Code was filed by the petitioner, contending that he could not be present on the date of hearing of the matter. However, this application was rejected, against which, he took an appeal under sub-section (4) to the Sub-Divisional Officer, where also, he had a bad luck and his ill-fate unfortunately pursued him further when he failed in the second appeal, filed before the Commissioner. As a result, the order passed on 20-4-1976 got confirmed. But, that is not the crux of the matter, on which decision is sought in this petition. The grievance with which the petitioner has come before me is that the Board of Revenue, which heard his revision not against the order passed on 20-4-1976, but against the orders passed subsequently in proceedings arising out of sub-section (4) of section 35, did not give him relief on an erroneous view of law, which resulted in a jurisdictional failure on the part of the Board. Indeed, the Board took the view that the second appeal, filed by the petitioner before the Commissioner, was incompetent as such an appeal was not contemplated under the law. The Board did not discuss or consider the merit of the petitioners grievance made under sub-section (3) of section 35, on which the Tahsildar passed order on 13-5-1976. Whether the petitioner's application under sub-section (3) of section 35 was rightly rejected by the Tahsildar was the heart of the controversy, but the board directed its attention to the matters on fringes only. It is true, as Shri Roman, at this point of dictation submitted, that the Commissioner had dismissed petitioner's appeal, observing that the Sub-Divisional Officer, in the first appeal, had also dealt with the merits of the case. But, in my opinion, that has little relevance on the point in issue.

(3.) THE short point for decision in this petition, according to me, is the question of board's jurisdictional failure. Whether the grievance has any merit or not? It is not disputed that the Board, in rendering the impugned decision, dismissed the revision on the sole ground that the second appeal before the Commissioner was not maintainable. The first question, therefore, is, whether this point was rightly decided. This short question has a short answer, but in dealing with this point, I have to consider not merely provisions of section 35, but also section 44 of the Code. Shri Roman contended that section 35 is the 'complete Code'. However, this argument has not appealed to me.