1. These application give rise to an important and interesting question of law of procedure as to whether the Revenue Divisional Officer, the Appellate authority under Section 16 (2) of the Andhra Tenancy Act (hereinafter called the Act ) is competent to dismiss an appeal for default of appearance of the appellant or his counselor he has to dispose of the appeal on merits notwithstanding the absence of the parties or their counsel.
2. The brief facts leading to these writ petitions may be stated. The 3rd respondent in W.P.No.4107/69 was the original owner of about 6 acres of land situate owner of about 6 acres of land situate at Peddovam Village, Kovvur taluk, West Godavari District and the petitioner herein in both the writ petitions was the cultivating tenant since the year 1967 for an annual rent of Rs. 1,600/-. It is case of the landlord that AC. 2-09 cents out of the 6 acres of land owned by Lalita Devi, were sold for Rs. 13900/- to respondents 3 to 6 in W.P.No. 4109/69 on 12-12-1968. As there was default in payment two petitions for eviction of the tenant-petitioner were filed before the Tahsildar under Section.13 of the Act. The tenant had set up a plea that he was entitled to the entire 6 acres of the land in question on the foot of an agreement of sale executed by Lalitadevi on January 22, 1968 for a sum of Rs. 22,000/- and was put in possession of the lands as part performance of the agreement and he is not liable to be evicted It is also averred that a sum of about Rs. 6000/- was in fact paid to the vendor.
3. Pending the application for eviction of the tenant before the Tahsildar, applications were filed for appointment of a receiver. on these applications the Tahsildar has ordered the tenant to furnish third party security for a sum of Rs. 1,000/- and Rs. 800/- respectively in both the cases. Aggrieved by that order, two appeals were preferred by the tenant before the Revenue Divisional Officer under Section 16 (2) of the Act. The appeals were dismissed by the Revenue Divisional Officer on 24-10-1969 for default. The applications to restore the appeals setting aside the export order passed on 24-10-1969 were rejected on 311-10-1969. Hence these writ petitions.
4. Sri N. V. Rangandham for the petitioner contends that the appellate authority has no jurisdiction to dismiss the appeals preferred under Sec. 16(2) of the Act. The appeals were dismissed by the Revenue Divisional Officer on 24-10-1969 for default. The applications to restore the appeals setting aside the export orders passed on 24-10-1969 were rejected on 31-10-1969. Hence these writ petitions.
5. The only question that arises for decision is whether or not the appellate authority is empowered to dismiss the appeals for default.
6. For a proper appreciation of the point at issue, it is necessary to refer to the relevant provisions of the Act and the Rule made thereunder. Section 16 which provides for the adjudication of disputes arising under the act between a landlord and a cultivating tenant reads thus:-
'(1) Any dispute arising under this act between, a landlord and a cultivating to the determination of fair rent or the eviction of a cultivating tenant shall on application by the landlord or the cultivating tenant as the case may be, decided by the Tahsildar after making an inquiry in the manner prescribed.
(2) Against any order passed by the Tahsildar under Sub-section (1) an appeal shall lie to the Revenue Divisional Officer, within thirty days of the passing of the order and the decision of the Revenue Divisional Officer on such appeal shall be final.'
7. The Tahsildar under S. 16 (1) is empowered to decide all disputes arising under the Act between a landlord and a cultivating tenant after making due and proper inquiry in the prescribed manner. The aggrieved party either it be a landlord or a tenant is entitled to prefer an appeal against the decision of the Tahsildar to the Revenue Divisional Officer, within thirty days of the passing of that order. The decision of the Revenue Divisional Officer on such appeal shall be final and binding on the parties.
8. Rules 2 and 3 of the Andhra Tenancy Rules, (hereinafter called 'the Rules) prescribe the procedure for making inquiries by the Tahsildar in respect of the applications filled under S. 16 (1) of the Act. Rule 4 deals with the manner of filing the appeals and the payment of requisite court fee thereon. Rule 5 prescribes the specific procedure to be followed by the appellate authority on receipt of the memorandum of appeal under Rule 4. He has to fix a date on which and a time and place at which the appeal shall be heard and issue notice thereof in form II to the parties respondent to file his counter to the appeal within a period of one week from the date of service of notice or thereafter if he is permitted by the appellate authority for any sufficient and good cause and reason. As the question for decision largely depends on the interpretation that should be placed on the expression 'the Revenue Divisional Officer, shall thereupon pass such orders as he deems fit' occurring in sub-rule (5) of Rule 5, it is profitable to extract the same:
'On the date fixed for the hearing of the appeal under sub-rule (1) or on such further date or dates to which the hearing may be adjourned the Revenue Divisional Officer shall give a reasonable opportunity to the parties to state their case and advance their arguments and shall thereupon pass such orders as he deems fit.'
Rule 5 (5) enjoins the appellate authority to afford reasonable opportunity to the parties to state their case and advance their arguments and thereupon to pass such orders as it deems fit. Section 16 (2)makes it obligatory on his port to make a decision on the appeal which shall be final and binding on the parties. The language of this sub-rule (5) and in particular in the use of the words 'shall thereupon' read with S. 16 (2) leaves no doubt in my mind that the Appellate authority (R.D.O) has a statutory obligation and duty to make a decision upon the dispute raised before him and pass such orders as he deems fit and proper. unless and until he passes the order on merits, it cannot be termed to be a decision which is final and binding on the parties, as envisaged by Section 16 (2) of the Act . The provisions of Rule (20 and Rule 3 (5)are mandatory in character. There is no discretion left to the Tahsildar or the Revenue Divisional Officer to dismiss the application or appeal under Section 16 of the Act for default. Rule 14 9(1) of the Rules states that the proceedings before the Tahsildar and the Revenue Divisional Officer under the Act shall be summary and be governed as far as may be by the provisions of the Code of Civil Procedure. The provisions of Sections 16 of the Act and Rules 3 (5) and 5(5) of the Rules must be constructed in the light of the scheme and intendment of the Act. The primary intention of the Act as revealed from the preamble is to provide for payment of fair rent by cultivating tenants and for fixing the minimum period of leases. It is really in the interests of the general public to have a speedy and summary disposal of all the disputes between the cultivating tenant and the landholders. The cultivating tenants may not evidence personal interest to produce more if they are not sure about their possession and enjoyment as a result of the pendency of the disputes between them and the owners of the lands under the Act. On a close reading of the provisions of Section 16 of the Act and the Rules 3 (5) and 5(5)of the Rules, I am of the view that the scheme and intendment of the Act with regard to the tribunals under Section 16 is to provide for the enquiry into and final disposal of the applications or appeals, as the case may be as expeditiously as possible on merits. This construction, in my considered opinion is in accord with the scheme and intendment of the Act. Any other interpretation would lead to hardships or anomalies resulting in miscarriage of justice.
9. That apart the Tahsildar and the Revenue Divisional Officer, function as original or appellate authority under the Act, are special tribunals created under the statute for the purpose of disposing of the matters specifically provided under Section 16 of the Act. The procedure that has to be followed by any tribunal, either administrative or quasi-judicial in character must be governed by the specific provisions of the special enactment or the rules made thereunder which create the very tribunal. When no specific provision empowering the special tribunal to dismiss an application or appeal, as the case may be for default has been made under the special enactment or the rules made thereunder, it must be construed that such tribunal has no jurisdiction to dismiss an application or appeal for default. Admittedly tree is no specific provision entitling the Revenue Divisional Officer to dismiss the appeal for default. Hence he has a statutory duty and obligation to dispose of the appeal on merits notwithstanding the absence of the parties or their counsel. For all these reasons. I have no hesitation to hod that the Revenue Divisional Officer has no jurisdiction to dismiss the appeal for default notwithstanding the absence of the parties or their counsel. On the same analogy, the Tahsildar also is not committee to dismiss an application before him for default of appearance of the parties or their counsel.
10. This view of mine finds support of Commr. of Income Tax, Madras, v. S. Chenniappa Mudaliar, : 74ITR41(SC) which arose under Section 33 (4) of the Indian Income-tax Act. 192, The language of Section 3 (4) of the Indian Income-tax Act, 1922 is analogous to that of the present Rule 5(5). The Supreme Court, on a consideration of the scheme and provisions of that Act and the use of the words 'thereon' and 'pass such orders as the tribunal thinks fit' in Section 3 (4) held that the appellate Tribunal has to dispose of the appeals on merits, but has no jurisdiction to short-circuit the appeals by dismissing teem for default of appearance. Rule 24 of the Appellate Tribunal Rules,. 1946 empowering the Tribunal to dismiss the appeal for default, was struck down as ultra vires as the same was in conflicts with the provisions of sub-section (4) of Section 33 of the Indian Income-tax Act. 1922 See also Jukumchand Mills Ltd. v.Commr. of Income Tax, Central Bombay, : 63ITR232(SC) .
11. The orders of the Revenue Divisional Officer are hereby quashed and the appeals restored to his file for disposal on merits according to law. In the result, the writ petitions are allowed but, in the circumstances, without costs.
12. Petition allowed.