1. The petitioners in this case applied to the Tahsildar for resumption of land on the ground of personal cultivation against the respondent Govindsingh. The tenancy Naib Tahsildar rejected the application by order dated 15-4-1963 on the ground that the petitioners had acquired the land by transfer after the 1st day of August 1953 and the rights of the respondent as a protected lessee had come into existence before the transfer of the land. This order was challenged in appeal before the Collector by the petitioners. The appeal was fixed for hearing before the Special Deputy Collector on 13-4-1964 on which date the petitioners remained absent. The appeal was, therefore dismissed in default on 13-4-1964.
2. The petitioners then put in an application on 21-4-64 for restoration of the appeal on the ground that the petitioner No. 1 Wasudeo was ill on 13-4-1964 and. therefore, was unable to attend the Court on that day. The petitioner No. 2 is a minor and his interests were looked after by the petitioner No. 1. The petitioners had engaged Mr. Nashikkar advocate to represent them. He also did not attend the hearing of the appeal when it was called as he was said to be busy in some other Court, This application came for hearing on 25-5-1964. On that date also neither the petitioners, nor their counsel was present and the said application was also dismissed in default on 25-5-64.
3. Another application was filed by the petitioners on 16-6-1964 for restoring the application dated 21-4-1964 to file. It was alleged that on 25-5-1964 when the first application for restoration of the appeal to file came for hearing and was dismissed in default, the petitioner no. 1 had in fact gone to Amravati for attending the hearing of that application but through mistake he attended the wrong Court instead of attending the Court where the application was to be heard and there was thus good cause for his non-appearance before the Court. This application dated 16-6-1964 was dismissed on 31-8-1964. The Special Deputy Collector did not consider that the cause shown by the petitioners for their absence on 25-5-1964 was sufficient to condone the absence at the hearing on that day.
4. The petitioners then challenged the orders dated 25-5-1964 and 31-8-1964 before the Maharashtra Revenue Tribunal. The Revenue Tribunal disposed of these two revision applications fay a common order and dismissed the revision application agreeing with the Special Deputy Collector that the petitioners had not shown sufficient cause for non-attendance on the dates of hearing that is, on 13-4-1964 and 25-5-1964. Hence the petitioners have this petition challenging those orders.
5. In the first place, it is contended on behalf of the petitioners that the Special Deputy Collector sitting as an appellate Court under Section 107 of the Bombay Tenancy and Agricultural Lands Act, 1958 (hereinafter called the Tenancy Act) had no power to dismiss an appeal in default of appearance of the Appellant. It is contended that the Collector has to decide the appeal on merits whether the parties or any of them appear or not. Reference is made to the provisions of Section 107 of the Tenancy Act which provides for an appeal to the Collector against the order of the Tahsildar or Tribunal. The section provides for the manner in which the appeal has to be presented and the power of the Collector to admit the appeal or after calling for the record and giving the appellant an opportunity to be heard to summarily reject the same. It also prescribes the procedure as to what is to be done after the appeal is admitted and it requires the Collector on the appeal being admitted to fix a date for hearing and service of a notice on the respondent in the prescribed manner about the date of hearing. Sub-section (5) of Section 107 then provides as follows:
'(5) After hearing the parties, if they appear, the Collector may confirm, vary or reverse the order appealed against or may direct such further investigation to be made, or such additional evidence to be taken, as he may think necessary or may himself take such additional evidence or may remand the case for disposal with such directions as he may think fit. The Collector shall also have power to award costs.'
It is contended on behalf of the petitioners that once the appeal is ripe for hearing the only power the Collector has is to hear the parties if they appear and after hearing them either to confirm vary or reverse the order appealed against or direct further investigation to be made or to take additional evidence or remand the case for disposal with the necessary directions, but the order that is to be passed by the Collector has to be an order on the merits of the case after considering the material on record. It is contended on the construction of this provision that if the parties or any of them do not appear on the date of hearing, even then the Collector has no other power than to consider the merits of the case and examine the material on record and then to pass an order on merits either confirming or varying or reversing the order appealed against or to exercise such other powers which have been given to him under this subsection. Section 107 and Section 108 are the only provisions which define the powers of the Collector in appeal. Besides the procedure to be followed and the powers to be exercised by the Collector, Section 107 further provides in Sub-sections (6) and (7) for the powers of the Collector to direct the execution of the order appealed against to be stayed pending the decision of the appeal and to set aside or modify any direction made under Sub-section (6). Section 108 empowers the Collector to transfer any appeal pending before him or before any Assistant or Deputy Collector subordinate to him to any Assistant or Deputy Collector specified in such order, performing the duties and exercising the powers of a Collector and upon such transfer the Assistant Collector or the Deputy Collector, as the case may be, shall have power to hear and decide the appeal as if it was originally filed to him, or withdraw any appeal pending before any Assistant or Deputy Collector and himself hear and decide the same. Neither of these sections gives a power to the Collector to dismiss an appeal in default of the appearance of the appellant without deciding the appeal on merits.
6. As compared to this the powers of the Tahsildar are wider as will be seen from the provisions of Section 102 of the Tenancy Act read with the Mam-latdars' Courts Act. Under Section 102, in all enquiries and proceedings commenced on the presentation of applications under Section 101, the Tahsildar exercises the same powers as the Mam-latdar's Court under the Mamlatdars' Courts Act, 1906 and has to follow the provisions of the said Act as if the Tahsildar were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under the said Act. Under Section 16 of the Mamlatdars' Courts Act. the Mamlatdar has the power to reject the plaint where the plaintiff fails to attend or to produce his documents if any or to adopt measures to procure the attendance of his witnesses if any on the date and at the place fixed whether the defendant appears or not unless the defendant admits the claim. It will be clear from the reading of Section 16 that if the plaintiff fails to attend on the day of hearing the Mamlatdar has to reject the plaint and under the first proviso to Sub-section (2) of Section 16, he has also the power to restore the plaint to file on sufficient cause being shown. Reading Section 102 of the Tenancy Act with Section 16 of the Mamlatdar's Courts Act, a specific power has been given to the Tahsildar acting under the Tenancy Act to dismiss an application before him for default and also to restore if sufficient cause is shown.
7. Similar power is conferred on the Maharashtra Revenue Tribunal which is empowered to revise the orders of the Collector. Section 111 of the Tenancy Act gives the revisional powers of the Maharashtra Revenue Tribunal and subsection (2) thereof provides that in deciding the application under Section 111 the Maharashtra Revenue Tribunal shall follow the procedure which will be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribunal. Under Section 118 of the Tenancy Act, the State Government in consultation with the Maharashtra Revenue Tribunal has framed the rules called the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Bombay Revenue Tribunal Procedure Rules, 1959 and Rule 19 thereof provides for the procedure to be followed by the Revenue Tribunal when on the date fixed for hearing the appellant or the applicant does not appear either in person or .through his agent or lawyer when the appeal or application is called for hearing. In such a contingency the Tribunal is authorised either to dismiss the appeal or application for default of appearance or to decide the same on merits after hearing the opponent or his agent or lawyer if present. Even though such a power has been specifically conferred on the Mamlatdar or the Tahsildar or the Revenue Tribunal, there is no reference to such a power so far as the Collector sitting in appeal is concerned. It therefore appears to be the intention of the Legislature that so far as the first appeal against the order of the Tahsildar is concerned, the Collector has to apply his mind to the material on record whether the parties appear before him or not and if the parties appear, after hearing them to decide the appeal on the merits. This seems to be so because at the stage of the appeal all the material which the parties desire to place on record has already been placed and the appellate Court has to decide the appeal only on the material before him and the decision can be given by the Collector on the merits of the case, whether the parties appear before him or not. If the parties appear before him either by themselves or through their agent or counsel, the Collector hearing the appeal may get an assistance from them, but even if they do not appear, the Collector has before him the full record of the case and on examination of that material, it is possible for the Collector to come to a decision. So far as the first Court that is, the Court of Tahsildar or the Mamlatdar, is concerned, it is only during the proceedings that the material necessary for the decision of a case is brought on record at different stages and if the applicant or the plaintiff does not appear through all the stages of that proceedings, the material necessary for the decision of the case is not complete and it may not be possible, nor would it be advisable for the Tahsildar or the Mamlatdar to decide the matter on merits on incomplete or insufficient material and it is because of this that a power seems to have been given to the Mamlatdar or the Tahsildar to dismiss a plaint or an application in default of the appearance of the plaintiff or the applicant. So far as the Revenue Tribunal is concerned, the powers of revision are limited and the Revenue Tribunal has only to see whether the order of the Collector was contrary to law, or whether the Collector failed to determine some material issue of law or whether there was a substantial defect in following the procedure provided by this Act which has resulted in the miscarriage of justice. The findings on questions of fact are already given by the first two Courts and the findings of the Collector on questions of fact are normally final and there is very little scope for the Revenue Tribunal to interfere with these findings of fact. Since the party had the benefit of the decisions of the two Courts which are courts of fact, the revisional powers are exercised only in exceptional cases and it is for this reason that the Revenue Tribunal is also clothed with the power either to dismiss the revision application in default of appearance of the applicant or to decide the revision application on merits depending upon the interference which may be necessary in a particular case. It, therefore, appears that this power to dismiss an appeal for a default of appearance of the appellant is not advisedly given to the Collector hearing the appeals as the Collector is supposed to dispose of the appeal before him on the material which is already on record. Whether the parties appear before him or not. no such power to dismiss the appeal in default has been given to him. If such a power was intended to be given, then the Legislature would not have failed to make such a provision specifically as has been done in the case of the Tahsildar or the Mamlatdar or the Revenue Tribunal. Where such a power is intended to be given, it has been so given not only in this Act. but in other Acts of the State.
8. Such a power is to be found in the Madhya Pradesh Land Revenue Code. 1954, which was on reorganisation of States extended to the State of Bombay and then to the State of Maharashtra so far as the Vidarbha Region was concerned until it was repealed by the Maharashtra Land Revenue Code. Section 32 of the Madhya Pradesh Land Revenue Code gives such a power to a Revenue Officer and Sub-section (2) thereof provides that if any party to a case or proceeding before a Revenue Officer does not appear on the date fixed for hearing, the case may be heard and determined in his absence or may be dismissed in default. A similar provision is to be found in Section 232 of the Maharashtra Land Revenue Code which provides for dismissing the case in default or hearing and determining the same in the absence of a party. whether he be the appellant or the respondent. The Legislature, therefore, seems to be aware that if a power to dismiss a case or a proceeding is to be conferred on a revenue authority, it has to be specifically provided for in the Act or the Rules prescribed under the Act, The omission, therefore, of such a power in the Collector in the exercise of his appellate powers could only be attributed to the intention of the Legislature that it wanted the Collector to decide the appeal before him on merits and on the material on record, whether the parties or either of them appear or not.
9. A decision of the then Nagpur High Court in K. S. Mishra v. Addl. Dy. Commr., Nagpur 1954 Nag LJ 658 has been relied upon on behalf of the petitioners. The Division Bench was dealing with the powers of the appellate Court under the C. P. and Berar Letting of Houses and Rent Control Order, 1949 and in dealing with the same they held that Clause 21 (2) of the C. P. and Berar Letting of Houses and Rent Control Order does not contemplate in terms that the appellate authority should dismiss the appeal without going into the merits. It was further held that if the provisions are strictly construed it is the duty of the appellate authority to decide the appeal on the record as it stood or after calling for such further material, as may be thought necessary. As a further corollary, and assuming that the appellate authority had the power to dismiss the Court further held that if the appellate authority had power to dismiss, it had equally the power to restore; if it had no power to dismiss, the order of dismissal was without jurisdiction and that in either view the order of the appellate authority was irregular, Clause 21 (2) of the Rent Control Order provides that after the appeal is filed the Collector shall send for the record of the case from the Controller and after perusing such record and making any such further enquiry as he may think fit, either personally or through the Controller, shall decide the appeal. This clause nowhere provides for given a hearing to the parties. In the normal course, an opportunity is given to the parties to be heard on the principles oi natural justice, but if the parties or any of them do not avail of the opportunity so offered, there is nothing to prevent the Collector to decide the appeal on merits and in fact, there is no power in the Collector under this clause to dismiss the appeal in default of the appearance of the appellant. On the other hand, the Collector is enjoined to decide the appeal on merits, whether the parties are present or not. Similar is the provision in Section 107 (5) of the Tenancy Act, which is a self contained Act.
10. On behalf of the respondent, support was sought to be taken from the decision of this Court in Haji Zakeria Suleman v. The Collector, Yeotmal : AIR1963Bom233 which is also a case under the C. P. and Berar Letting of Houses and Rent Control Order, but under Clause 13 (3) instead of clause 21 (2). It referred to the power of the Rent Controller which is the original Court to dismiss an application for default and to restore the same to file if good cause is shown for such a restoration. The Division Bench held .that in order to facilitate and further the beneficent purposes of the enactment, even though no such power can be found in the express provision of the statute it must be held by necessary implication that such a power exists A passage from Craies on Statute Law, 5th Edition, page 105 was quoted which runs thus:
'If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail be carried out.'
The power, therefore, which Clause 13 (3) did not expressly mention was implied therein by applying this rule. This rule, however, would not apply with equal force to proceeding in appeal where the full material is already before the Court, and nothing is required to be done except to hear the parties if they appear. Besides, the wording of Clause 13 (3) is entirely different from that of Clause 21 (2). Clause 13 (3) requires that the Controller must be satisfied on one or more of the grounds specified in that Sub-clause after hearing the parties. The words 'if they appear' are missing in this clause. Clause 13 (3), therefore, can be construed to mean that the Controller can decide the matter before him if the parties are present before him and are given a hearing. If the parties are not present, then he cannot grant permission on merits, but has to dismiss the same. It is in this light that a power to the Controller to dismiss an application for default can be implied. The provision in the Tenancy Act is different as also in Clause 21 (2) of the Rent Control Order and a similar power could not be implied in those provisions. The decision, therefore of the Division Bench referred to above is not helpful in construing the provisions of the Tenancy Act and particularly of Sub-section (5) of Section 107 of the Tenancy Act.
11. It may be argued that the Collector, hearing an appeal under Section 107 of the Tenancy Act is a Revenue Officer within the meaning of that expression in the Madhya Pradesh or Maharashtra Land Revenue Code and when the Tenancy Act is silent about any matter regarding the powers of a Revenue Officer, the power has to be found out from the Code. There is no scope for such a view while dealing with matters under the Tenancy Act. The Tenancy Act is a self contained Act. It has made provisions for the procedures to be adopted in different matters. The Act has provided for making the rules for carrying out the purposes of the Act. If the Act is silent about the procedure to be followed by the Collector in appeal when both parties or any of them is absent, provision therefore could have been made in the rules. Such a provision has been made by the rules in respect of the Revenue Tribunal. Act itself has made provision as regards the Tahsildar by investing him with the powers under the Mamlatdar's Courts Act. If the Legislature had to give any such powers to the Collector, such a provision could have been made in the Act or the rules. It could not be that the Legislature wanted to look to the Code for the powers of the Collector alone when provisions could be made for the Tahsildar and the Tribunal. They are as much Revenue Officers as the Collector. If the Legislature wanted the Collector in appeal to follow the procedure laid down in the Land Revenue Code it could have said so in the Act in Section 107 or 108 as has been done in Section 102 in the case of the Tahsildar who has been empowered to exercise the same powers as a Mamlatdar's Court under the Mamlatdar's Courts' Act. It is, therefore, not possible to take the view that the power of the Collector in dealing with an appeal under Section 107 of the Act in the absence of a party or parties is to be found in the Land Revenue Code.
12. Section 32 of the Madhya Pradesh Land Revenue Code is pointed out in this connection for implying the powers of the Collector under Section 107 of the Act as he is said to be a Revenue Officer, but it has no application here.
13. In the light of what is stated above, it must, therefore, be held that the Collector hearing an appeal against the order of the Tahsildar has no power to dismiss the appeal in default of appearance of the appellant and the order of the Collector dated 13-4-1964 dismissing the appeal in default was without jurisdiction. If the appeal itself could not be dismissed in default, the question of its restoration to file does not arise. The orders, therefore, passed on 25-5-1964 rejecting the application for restoration of the appeal to file in default and the further order dated 31-8-1964 dismissing the application dated 16-6-1964 for restoration of the application for restoration of the appeal are of no effect. If the order dated 13-4-1964 dismissing the appeal in default is itself set aside, the consequential orders which are passed on 25-5-1964 and 31-8-1964 have also to be set aside. In the view I take, I set aside all the orders dated 13-4-1964, 25-5-1964 and 31-8-1964, with the result that the appeal presented by the petitioners which was dismissed in default on 13-4-1964 is restored to file. The case will now go back to the Special Deputy Collector (appellate Court) who will after giving an opportunity to both the parties to be heard, decide the appeal on the merits, that is, on the material on record, whether the parties or any of them appear before him or not after being served.
14. The petition, therefore succeeds and is allowed, but in the circumstances, I make no order as to costs.
15. Petition allowed.