HARIBANDHU Vs. RADHASHYAM DAS

JUDGEMENT

(1.) This application by some of the judgment-debtors is directed against an order of a Deputy Collector empowered by the Local Government to hear appeals under the Orissa Tenancy Act, in which he reversed a decision of a Sub-Deputy Collector as Orissa Tenancy Act Officer, Cuttack setting aside an execution sale under Order 21, Rule 90, Civil P.C. (After stating the facts his Lordship proceeded.) The main point argued by Mr. B.K. Ray for the applicants is that the Deputy Collector had no power to hear the appeal, as the order of the Local Government empowering him to hear appeals was ultra vires. Secondly, he urged that the appellate Court should have held that limitation was saved by Section 18, Limitation Act. The appeal was actually presented in the first instance to the Collector on 24 January 1939. Subsequent to that, the Orissa Government issued a notification No. 1063R, dated 15 March 1939, published in the Orissa Gazette on 17 March 1939, purporting under the powers conferred by Section 3(4)(a), Orissa Tenancy Act, to confer upon the Deputy Collector in question powers to discharge the functions of a Collector under Section 204 of the Act. After that, on 11 April 1939, the Collector transferred the appeal to the Deputy Collector for hearing.

(2.) The appeal in the present case was under Section 204(4) of the Act read with Section 204(2). Sub-section (4) provides that: "An appeal shall lie against any order specified in Clauses (b) or (C) of Sub-section (1)(except an order which is not appealable under the Civil P. C., 1908) to the Court to which an appeal from the judgment in the suit would He." Clause (c) in Sub-section (1) referred to is "an order passed after decree and relating to the execution thereof." Sub-section (2) is as follows: "In suits where the subject-matter of the claim or dispute does not exceed one hundred rupees in value, and the judgment does not decide a question whether rent is payable for land or not, or a question relating to title to land or to some interest in land as between parties to the suit, the judgment of the, Collector shall be final; Provided that, if the suit be tried and decided by a Deputy Collector exercising the powers of a Collector, an appeal shall lie from the judgment of the Deputy Collector to the Collector." Prima facie, therefore, there is no provision for an appeal from the judgment of a Sub-Deputy Collector to a Deputy Collector.

(3.) The provision is merely for appeal from the order of the Deputy Collector exercising the powers of a Collector to the Collector. But under Section 3(6) of the Act " Deputy Collector includes an Assistant Collector and any Sub-Deputy Collector who is specially empowered by the Local Government to discharge any of the functions of a Deputy Collector under this Act," and it has not been contended that the Sub-Deputy Collector does not fall under this definition of "Deputy Collector" having been specially empowered. Moreover, under Section 3(4) of the Act " Collector , in any provision of this Act means the Collector of a District, and includes also : (a) any Revenue Officer or Deputy Collector who is specially empowered by the Local Government to discharge any of the functions of a Collector under that provision, and (b) any Deputy Collector to whom the Collector may, by general or special order approved by the Commissioner transfer any of his functions under that provision, other than functions covered by Section. 204." Therefore, the word Collector may in certain circumstances include also a Deputy Collector specially empowered. The notification to which I have referred purports to be under Section 3(4)(a), and consequently, if it is not ultra vires, the Deputy Collector had power to hear the appeal.