MASSOM KHAN Vs. CHAND ALIAS CHANDU ETC.

JUDGEMENT

(1.) In these seven miscellaneous second appeals common questions of law and facts arise and as such these can be disposed of by a single judgment. The Appellant Masoom Khan is the landowner within the meaning of Sec. 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter to be referred to as the Abolition Act) and an application was filed against him by tenants under Sec. 11(1) for acquisition of his right, title and interest in the land. Masoom Khan pleaded that there was defect in jurisdiction as the applications were transferred to the Compensation Officer by the Deputy Commissioner and not by the Financial Commissioner as laid down in Rule 11 made under the Abolition Act. Besides, it was contended that Masoom Khan should be given benefit of Sub -section (2) of Sec. 11 inasmuch as he suffered from physical disability and was incapable of earning his livelihood. Further he had no other means of livelihood. Masoom Khan also applied under Sec. 54 of the Abolition Act for reservation of 5 acres and since that application is yet undecided proprietorship could not be conferred upon the tenants under Sec. 11. In the end it was contended that Sec. 11 itself is ultra vires and that the compensation awarded was less and also that no compensation was awarded for houses and trees.

(2.) The learned Compensation Officer decided against Masoom Khan and conferred proprietary rights upon the tenants. Masoom Khan came in first appeal before the District Judge, but could not succeed. Now he has come up in these second appeals.

(3.) It is contended in the foremost by the learned Counsel representing the Appellant that the decision of the Compensation Officer was without jurisdiction. For this he avails of Rule 11 made under the Abolition Act. According to that Rule, it is the Financial Commissioner who can transfer a proceeding from one Compensation Officer to another. The learned District Judge who pronounced judgment in M.S.A. No. 76 of 1969 has delineated the circumstances under which the application under Sec. 11 was transferred to the Compensation Officer, Chamba. It is undisputed that the said Compensation Officer had the inherent jurisdiction and the application was otherwise maintainable before him. Formerly one Mehta was appointed Compensation Officer for the entire District of Chamba. He fell sick, and the Financial Commissioner made a general order that all applications under Sec. 11 pending before him should be transferred to the respective Compensation Officers who had jurisdiction. In pursuance to that order of the Financial Commissioner, these applications were transferred to the Compensation Officer, Chamba. No such plea was taken before the Compensation Officer that the order of transfer was invalid or that he had no jurisdiction to entertain the application. The Appellant obviously waived that plea, and when the decision was against him agitated it for the first time before the first appellate Court. It is contended on his behalf that the plea is far -reaching and the very decision by the Compensation Officer is nonest and should be set aside. I am unable to accept this contention. The learned Counsel relied on State of Uttar Pradesh v/s. Singhara Singh and Ors. A.I.R. 1964 Supreme Court 358, Their Lordships laid stress on the principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. The inference drawn is that the order of transfer was required to be made in accordance with Rule 11 and hence if the said order of transfer was not made within the meaning of that Rule it could be deemed as if not made at all. Firstly, there was the order of the Financial Commissioner quoted in the judgment of the learned District Judge in M.S.A. No. 61 of 1969 and therefore in substance Rule 11 was complied with. If the order was of general nature and comprised all the pending applications under Sec. 11 it could not be struck down merely on that ground and held to be invalid or unenforceable under law. It was nonetheless a valid order. Secondly, the Compensation Officer before whom the application was tried had the initial jurisdiction and the application was maintainable before him. The Appellant pursued the application before him. He did not set up a plea of jurisdiction. It is submitted that Sec. 21 of the Civil P. Code, or at any rate the principle involved therein, should be made applicable. The objection as to jurisdiction was not taken up before the Compensation Officer. At any rate there is no consequential failure of justice. The learned Counsel for the Respondents referred to Smt. Chowli Devi and Ors. v/s. Rukam Din and Ors., I.L.R.1973 (H.P.) 253, It was held in that case that in an appeal before High Court arising from an application under Sec. 11 of the Abolition Act in the absence of any procedure having been prescribed in the Abolition Act the provisions of the Code of Civil Procedure should apply. Taking assistance from the ratio of that case it can be held that Sec. 21 of the Code of Civil Procedure should apply to a second appeal filed in High Court. The plea regarding jurisdiction cannot be taken up at the belated stage even of first appeal before the District Judge. This is so because the Compensation Officer had the initial jurisdiction and the Appellant availed of that jurisdiction without any objection. It may be correct that as held in Daya Ram v/s. Smt. Reshmu A.I.R. 1966 H P 36, the Compensation Officer may not be a Court but a persona -deignata. Nevertheless the principle behind Sec. 21 of the Code of Civil Procedure can easily be availed of. The plea of jurisdiction is not sustainable.