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Kodan Ranglal Power Vs. Bombay Revenue Tribunal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 67 of 1958
Judge
Reported in(1959)61BOMLR86
AppellantKodan Ranglal Power
RespondentBombay Revenue Tribunal
DispositionPetition allowed
Excerpt:
.....rights (estates, mahals, alienated lands) act (i of 1951), sections 40, 41-madhya pradesh land revenue code (ii of 1955), sections 241, 147, 240(2), 239, 104-c.p. land revenue act (ii of 1917), section 46-application for conferral of malik makbuza under section 41 of act i of 1951 based on accrual of right of occupancy tenant under section 40 of act-appeal against order made on application pending when act 11 of 1955 came into force which repealed section 40 of act-whether appeal lapsed because of repeal of section 40.;the applicant made an application under section 40 of the madhya pradesh abolition of proprietary rights act, 1950, for conferral of malik makbuza, right in respect of pertain land, contending that under section 40 of the act read with rule 1 framed thereunder he..........on july 12, 1955, under section 40 of the abolition of proprietary rights act, 1950. the m.p. land revenue code came into force on october 1, 1955. it repealed, among other provisions, section 40 of the abolition of proprietary rights act. the bombay revenue tribunal, following its decision in sufendraraj's case, held that the appeal had lapsed because section 40, upon which the petitioner's right was founded, was repealed by the m.p. land revenue code.4. in surendraraj's case a full bench of the bombay revenue tribunal held that section 40 of the abolition of proprietary rights act is not saved by section 241 of the m.p. land revenue code and that, therefore, though the m.p. land revenue code came into force during the pendency of the appeal, the appeal had lapsed and could not be.....
Judgment:

Mudholkar, J.

1. This is a petition under Articles 226 and 227 of the Constitution for the issue of a writ of certiorari quashing the order of the Bombay Revenue Tribunal dated November 7, 1957, and for issue of such other writ, order or direction as may be approved. This petition was heard along with Special Civil Applications Nos. 92/58, 93/58 and 109/58.

2. In all these petitions the point taken is that the Bombay Revenue Tribunal was in error in dismissing the appeals before it upon the basis of the decision in Surendraraj v. State of Bombay [1958] N.L.J. 282. That is a decision of a Full Bench of the Bombay Revenue Tribunal itself. Since the facts out of which these petitions arise are somewhat different it will be desirable to make separate mention of the facts out of which each petition arises.

3. We shall first deal with petition No. 67 of 1958. Here, the petitioner had made an application to the Additional Deputy Commissioner, Gondia, under Section 40 of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, for the conferral of malik makbuza right in respect of certain land. In that application the petitioner contended that though the land to which the application related was not included in the home-farm in 1948-49, it was brought under cultivation by him as the proprietor after the agricultural year 1948-49, that it was in his possession and that he had, therefore, become, under Section 40 of the Act read with Rule 1 framed under that Act, an occupancy tenant of this land. He was consequently entitled under Section 41 of the Act to be declared a malik makbuza of the land-upon payment by him of three times the annual rent. It may be mentioned that the annual rent had not been fixed with respect to this land and one of the prayers of the petitioner was that this also should be fixed. His application was allowed partially by the Additional Deputy Commissioner. Against that part of the application which was not allowed by the Additional Deputy Commissioner, the petitioner preferred an appeal before the M.P. Board of Revenue on July 12, 1955, under Section 40 of the Abolition of Proprietary Rights Act, 1950. The M.P. Land Revenue Code came into force on October 1, 1955. It repealed, among other provisions, Section 40 of the Abolition of Proprietary Rights Act. The Bombay Revenue Tribunal, following its decision in Sufendraraj's case, held that the appeal had lapsed because Section 40, upon which the petitioner's right was founded, was repealed by the M.P. Land Revenue Code.

4. In Surendraraj's case a Full Bench of the Bombay Revenue Tribunal held that Section 40 of the Abolition of Proprietary Rights Act is not saved by Section 241 of the M.P. Land Revenue Code and that, therefore, though the M.P. Land Revenue Code came into force during the pendency of the appeal, the appeal had lapsed and could not be proceeded with. One of the principles of construction upon which the Bombay Revenue Tribunal proceeded was quoted with approval by the learned Judges of the Nagpur High Court in Chhote Khan v. Mohammad Obedullakhan [1953] Nag 702, S.B. That principle is that a repeal will generally divest all inchoate rights which have arisen under the repealed statute and destroy all accrued causes of action based thereon and that as a result, such a repeal, without the saving clause, will destroy any proceedings, whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment, so as to create a vested right.

5. It seems to us that the view of the Full Bench of the Bombay Revenue Tribunal to the effect that because of the repeal of Section 40 of the Abolition of Proprietary Rights Act the appeal had lapsed is not correct. It must be borne in mind that the application of the petitioner in this petition is not under Section 40 of the Act but is under Section 41 of that Act. Applications under Section 41 of the Act, which were pending on the date on which the M.P. Land Revenue Code came into force, have been specifically saved by the provisions of Section 241 of the Code. It is true that the foundation of the application under Section 41 was the right conferred by Section 40 of the Act. This was a right which had already accrued to the petitioner and this right has not been taken away by any of the provisions of the M.P. Land Revenue Code.

6. Upon the allegation made by the petitioner he had acquired the right of an occupancy tenant before the M.P. Land Revenue Code came into force. Section 40 did not require any application from a person who asserted his right under that section before acquiring that right. Nor does Section 40 contemplate any order to be made by a Revenue Authority conferring upon that person the right of an occupancy tenant. In that respect Section 40 is different from Section 41 which requires intervention of a Revenue Officer and requires the passing of an order. It also requires payment of some money before the right specified in that section could be acquired by a person. That acquisition of a right under Section 40 by the person who fulfils the conditions laid down therein was automatic. A person who had acquired such a right, would, under Section 147 of the M.P. Land Revenue Code read with Section 240(2) thereof, become a Bhumidhari under the M.P. Land Revenue Code. The rights acquired under the enactments repealed by the M.P. Code are saved by Section 239 of that Code. In these circumstances it is clear that the repeal of Section 40 of the Abolition of Proprietary Rights Act does-not in any way affect a proceeding of the kind that was taken before the Bombay Revenue Tribunal.

7. As we have already stated, the proceeding before the Bombay Revenue Tribunal arose out of the application made by the petitioner under Section 41 of the Act. Such an application is saved by Section 241 even though Section 40 itself has been repealed by the M.P. Land Revenue Code. An order of a Deputy Commissioner or Additional Deputy Commissioner in respect of a matter under 8. 41 of the Act is made appealable by Section 84 of the Abolition of Proprietary Rights Act. That section has not been repealed by the M.P. Land Revenue Code. In these circumstances, disagreeing with the Bombay Revenue Tribunal we hold that the appeal does not lapse and also point out that this is not a case to which the principles laid down in Chhotekhan's case at all apply.

8. We shall now deal with Special Civil Applications Nos. 92 and 93 of 1958. In these cases the petitioners, Shree Laxminarayan Deosthan, had made two applications before the Additional Deputy Commissioner, Chanda, sitting at Wardha, but the reliefs which were asked for in these two applications were different. In one of the applications the relief asked for was the correction of the entries in the annual papers. In the other application, the prayer was for allotting four fields for grazing purposes in occupancy rights. The prayer for the correction of the entries was rejected. As regards the other application, an order was passed to the effect that four of the fields specified by the petitioners shall be reserved for grazing purposes in occupancy rights. It was further ordered that these fields should be assessed and a patta should be given to the petitioners. A common order was passed with regard to both these cases. Shri Mandlekar says it is because of this that he preferred two appeals before the Bombay Revenue Tribunal. Both these appeals were dismissed by the Tribunal on the ground that Section 40 of the Abolition of Proprietary Rights Act having been repealed these appeals had lapsed.

9. It is not clear to us why Shri Mandlekar should have preferred an appeal against that part of the order of the Additional Deputy Commissioner which had really granted him the relief which he had sought, i.e. reservation of some land for grazing purposes. However, we need not go into that matter. Upon the view we have taken it is clear that the repeal of Section 40 of the Abolition of Proprietary Eights Act does not in any way affect the petitioners' right to have the entry in the record-of-rights corrected. The right to have an entry corrected is recognised by Section 46 of the C.P. Land Revenue Act, 1917. Section 104 of the M.P. Land Revenue Code which corresponds to that section also recognises this right. That being so, we cannot uphold the dismissal of the appeals upon the ground given by the Bombay Revenue Tribunal. It may be that the appeals may fail on some other ground; but that is not a matter which is argued before us and therefore we need not deal with it.

10. Finally, we will deal with Special Civil Application No. 109 of 1958. Here, the petitioner had made an application for the correction of the record-of-rights on February 26, 1952. This application was dismissed by the Additional Deputy Commissioner, Nagpur, sitting at Umrer, on August 24, 1955. An appeal preferred by the petitioner before the Bombay Revenue Tribunal was dismissed by it on the ground that it had lapsed because of the repeal of Section 40 of the Abolition of Proprietary Rights Act. It is no doubt true that in his application to the Additional Deputy Commissioner the petitioner had founded his claim for the correction of the entry under Section 40 of the Act. But as we have already stated, the repeal of Section 40 does not affect the petitioners' right to have his application for the correction of entries considered because such right, if any, which he has acquired under Section 40 is saved by Section 239 of the M.P. Land Revenue Code read with Sections 147 and 240 thereof.

11. Upon this view, we allow all the petitions and remit the appeals to the Bombay Revenue Tribunal for being heard and disposed of on merits. Costs so far incurred, including those of this Court, will abide the event.


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