RAMKISHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) THE petitioner, Ramkishan was a Patwari. In pursuance of a charge framed against him, an order of dismissal was passed by the Sub -Divisional Officer. The petitioner appealed. His appeal was dismissed by the Collector (Vide Annexure -6) saying that there was no case for interference with the order passed by the Sub -Divisional Officer. Aggrieved by the orders of the Sub -Divisional Officer and the Collector, the petitioner has approached this Court under Article 226 of the Constitution of India.

(2.) THE first question is whether the petitioner has any right to second appeal. First appeal is provided in S. 44 (1) of the M.P, Land Revenue Code, 1959, from an order passed by a Sub -Divisional Officer (under this Code). In that situation a second appeal is also provided under Sub -section (2) of S. 44 of the Code. Thus, what is to be seen is whether the order of dismissal of the Patvari is passed under the Land Revenue Code. 1959. The answer must be in the affirmative. The power to appoint a Patwari is conferred on the Collector under S. 104 (2) of the Code. By virtue of S. 16 of the M.P. General Clauses Act, the power to appoint includes the power to dismiss. Thus, the Collector (by virtue of the delegation of power to the Sub -Divisional Officer) has the power to dismiss a Patwari.

(3.) IT can now be seen that S. 46 does not bar an appeal from an order of dismissal of a Patwari, which order has been held as within the powers conferred under S. 104 (1) of the Code read with S. 16 of the General Clauses Act. The reasoning and the basis of the decisions of the Board of Revenue (supra) is that since the power to appoint includes ,the power to dismiss the bar of appeal from an order relating to appointment includes the bar of appeal from an order of dismissal. The reasoning is fallacious. The right of appeal is a statutory right. It can be conferred only by a statute, it can be taken away only by a statute. Under S. 46 (e), the right of appeal has been taken away only in respect of an order' relating to appointment" under S. 104 (2). Section 46 has nothing to do with the power to appoint or dismiss. Therefore, S. 16 of the General Clauses Act is not attracted at all to S. 46. A right of appeal cannot be taken away by assumption or by analogy. It cannot be said that since the power to appoint includes the power to dismiss, appeal is also barred from an order dismissing a Patwari because of the bar contained in S. 46 (e) of the Code. That decision of the Board of Revenue does not lay down correct law.