SARAT CHANDRA DAS MAHAPATRA Vs. EMPEROR

JUDGEMENT

(1.) On 11 December 1934 a number of raiyats petitioned the Collector of Balasore alleging various acts of oppression against their landlord and his tahsildar. The Collector referred the petition to the Subdivisional Officer for enquiry and report. The Subdivisional Officer, on 21 May 1935, reported to the Collector that the tenants were not obtaining receipts prepared in the form prescribed by Section 65, Orissa Tenancy Act, and that the landlord was therefore liable to be fined under Section 67(3) of the Act. The Collector on 5 June remarked on this report that the Subdivisional Officer was competent to dispose of the matter, and remanded the proceedings to him for passing final order in the case. He cited Government Notification No. 4878 of 19 June 1916, which is a notification issued under Section 3(4), Orissa Tenancy Act, whereby all Subdivisional Officers are empowered inter alia to discharge the functions of a Collector under Section 67, Orissa Tenancy Act. The Subdivisional Officer, on receiving these orders, completed his proceedings and fined the landlord under Section 67, Orissa Tenancy Act. The landlord then moved the District Magistrate for the exercise of his revisional powers under Section 435, Criminal P.C. praying that the record of the proceedings should be forwarded to the High Court under Section 438 of the Code with a recommendation for revision of the order made under Section 67, Orissa Tenancy Act, by the Subdivisional Officer. The District Magistrate dismissed the application, pointing out that the Subdivisional Officer had disposed of these cases as a Revenue Officer, and that if the petitioners were aggrieved they should have appealed to the Collector under sub.s. (8) of Section 67, Orissa Tenancy Act.

(2.) Mr. G.P. Das, on behalf of the petitioners, argues that an order made by a Collector under Section 67, Orissa Tenancy Act, is made in a criminal proceeding, and that therefore the High Court has jurisdiction to revise that order in suitable cases. He quotes the decision of Mullick, J., in Naik Pandey V/s. Bidya Pande 1916 Pat 174, a case in which a suit for malicious prosecution had been instituted against persons who had made a complaint before a Collector under Section 58, Ben. Ten. Act. All that is decided in that case is that a complaint of that kind is such a complaint as would give rise to an action for damages for malicious prosecution if it should be made without just and reasonable cause. But in deciding that case Mullick, J. quoted a decision of the Calcutta High Court in Emperor V/s. Mohant Ramdas 9 CWN 816 wherein the order of a Subdivisional Magistrate imposing a fine under Section 58, Ben. Ten, Act was set aside by the High Court. The Sessions Judge making his reference in that case had expressed some doubt whether the Magistrate had jurisdiction in the matter; but the High Court decided that the Magistrate had jurisdiction to try the landlord for the act specified in Section 58(3), Ben. Ten. Act, namely failure to prepare and retain counterfoils in rent receipts. In the Bengal Tenancy Act, as it then stood, Sub- section (3) ran as follows: If a landlord without reasonable cause fails to prepare and retain a counterfoil or copy of a receipt or statement as required by either of the said sections, he shall be punished with fine which may extend to fifty rupees.

(3.) The Bengal Tenancy Act was amended in 1907, when the existing Sub-section (3) was substituted for the original sub-section. The amended sub-section makes it clear that the fine, if it is to be imposed, is to be imposed by the Collector; and that the appeal lies to the Commissioner of the Division which, subject to any order passed on revision by the Board of Revenue, is to be final. Since the passing of Bengal Act 1 of 1907 which amended the sub-section a Magistrate has not had jurisdiction to act under Section 58, Ben. Ten. Act. The rule in Emperor V/s. Mohant Ramdas 9 CWN 816 determining the question of whether a Magistrate can take action under Section 58, Ben. Ten. Act, is no longer law, because its basis was destroyed by the legislation of 1907. The learned District Magistrate acted rightly in declining to make any reference to the High Court. We have no jurisdiction to revise the order of the Subdivisional Officer. He pointed out rightly that the proper remedy of the petitioners lay in the appeal provided by Sub-section (8) of Section 67, Orissa Tenancy Act. We cannot interfere in these cases and the petitions must be dismissed. Saunders, J.