DIPA Vs. VIRJI

JUDGEMENT

(1.) This is an appeal against an order of the Divisional Commissioner, Udaipur dated 5.3.1956, in a case relating to dismissal of a village Patel Lumberdar). This case was remanded by the Board on 16.1.1956 to the learned Commissioner with the direction that the appellant should be given an opportunity of being heard in the case which should be decided thereafter. As pointed out by the Board in its judgment even the learned Collector Banswara who forwarded his report to the Commissioner regarding dismissal of the appellant did not hear the parties and formed his opinion at their back. The learned Commissioner too admitted a similar procedure and satisfied himself merely with writing out the word yes on the margin of the forwarding letter of the collector. 1 he Board held that the discretion vested in the Commissioner and was not exercised in a judicial and proper manner as even the elementary requirements of giving an opportunity of hearing to the person affected was. denied in the case When the record was received by the learned Commissioner he fixed 5.3.1956 for hearing the case. The appellant was informed of this date but he failed to attend the court and sent a telegram. The learned Commissioner wrote down the following order on the reverse of the telegram: - -

(2.) It was within the discretion of the learned Commissioner to adjourn the date fixed for he ring in the case on 5 3 1956 and if he was satisfied that the appellant was not prevented by sufficient grounds it was open to him to decide the case in his absence. In case the learned Commissioner was inclined to take a decision on that date it was incumbent upon him to apply his mind to the facts of the case thoroughly As pointed out above the Collector Banswara had also omitted to hear the parties and had prepared a charge sheet against the appellant without affording any opportunity to him to explain his conduct. The learned Commissioner did not examine the contents of the charges against the appellant. The evidence that was led in the case to substantiate them and naturally there is no finding of the learned Commissioner as to whether those charges have been held to be proved or not. if the order of the learned Commissioner is to be given a literal interpretation it would mean that the report of the Collector was rejected as Deepa obviously had not started any case which could be rejected in default. Evidently the learned Commissioner did not intend such a decision What he meant was to say that the report of the Collector was to be accepted. This provides a further reason for us to hold that the learned Commissioner did not carefully consider the facts of the case. The learned counsel for the respondent has frankly conceded his inability to support this order and has admitted that the case requires a further hearing and decision in accordance with law. He, however, argued that as the matter related to a Lumberdar it should be deemed to be a non -judicial affair and the Board should not interfere with the decision of the Commissioner. It has been held by a Full Bench of the Board that the appointment of a Lumberdar is a non -judicial affair But the present case relates not to the appointment but to a dismissal which amounts to the infliction of a penalty under the provisions of the Rajasthan Land Revenue Act. Item 12. Schedule I of the Act provides that imposition of fines penalties, forfeitures and confiscations under the Act shall be a judicial matter. Hence this contention is over ruled

(3.) It appears that the case was forwarded by the Collector Banswara to the Commissioner as the schedule of powers of the fomrer Rajasthan authorised only the Commissioner to dismiss village Patels. The position has undergone a material change offer the introduction of the Rajasthan Land Revenue Act, 1956. Section 37 of the Act authorises a Sub Divisional Officer to appoint Lumberdars. Sec. 49 lays down the conditions under which a Lumberdar may be dismissed, but omits to specify the authority which can take action under this section. It is a general principle that the appointing authority possesses the authority to dismiss as well. Hence we hold that action under sec 49 can be taken by the S.D.O. as well We, therefore, allow this appeal, set aside the order of the Commissioner and remand the case to the S.D.O. Kushalgarh with the direction that after hearing the parties he should decide the case in accordance with law.