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Himatsingh Kubersingh Vs. Board of Revenue and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Petn. No. 18 of 1962
Judge
Reported inAIR1966MP43
ActsTenancy Law; Madhya Bharat Abolition of Jagirs Act, 1951 - Sections 29, 29(1), 30 and 40; Ryotwari Land Revenue and Tenancy Act, Samvat 2007; Constitution of India - Articles 226 and 227
AppellantHimatsingh Kubersingh
RespondentBoard of Revenue and anr.
Appellant AdvocateN.A. Phadke, Adv.
Respondent AdvocateBalwantsingh, Govt. Adv.
DispositionPetition dismissed
Cases ReferredP) and Chandrojirao Angre v. Board of Revenue
Excerpt:
.....which the jagir commissioner or any other officers conducting an enquiry under the act and the board of revenue and the collector when hearing appeals from the orders of the jagir commissioner or the tehsildar are required to follow when it says that they 'shall follow the procedure applicable to proceedings under the revenue administration and ryotwari land revenue and tenancy act, samvat 2007, so far as may be'.this portion- of section 30 does not in any way deal with the powers which the jagir commissioner or any other officer as an original authority or the board of revenue and the collector as an appellate authority can exercise in their original or appellate jurisdiction. this power 'in relation to original or appellate proceedings' clearly does not include the power under..........that the power to review must be expressly given by statute. he, however, submitted that the board's power to review its orders and decisions is to be found in section 30 of the act that provision is as follows:'30. procedure:--the jagir commissioner, or any other officer conducting an enquiry under this act, and the board of revenue and the collector hearing appeals from the orders of the jagir commissioner or the tehsildar, as the case may be, shall follow the procedure applicable to proceedings under the revenue administration and ryotwari land revenue and tenancy act, samvat 2007, so far as may be and shall have the same powers, in relation to proceedings before them as a revenue officer has in relation to original or appellate proceedings, as the case may be, under the said.....
Judgment:
ORDER

1. This is a reference by two learned Judges of this Court hearing a petition under Articles 226 and 227 of the Constitution of India seeking, inter alia a writ of certiorari for quashing an order dated 31st October 1961 of the Board of Revenue rejecting the petitioner's application for a review of the decision dated 14th February 1959 of the Board of Revenue in an appeal under Section 29 of the Madhya Bharat Abolition of Jagirs Act, 1951 (hereinafter called the Act). The Board of Revenue held that it had no power to review its decision given in an appeal under Section 29 of the Act. The question that the learned Judges of the Division Bench have referred to us for decision is whether the Board of Revenue, has the power under the Act to review its decision given in an appeal preferred to the Board of Revenue under Section 29 of the Act against an order of the Jagir Commissioner.

2. An appeal against a decision of the Jagir Commissioner lies to the Board of Revenue under Section 29(1) of the Act which runs as follows:

'29 (1) The Government or any person aggrieved by the decision of the Jagir Commissioner under Section 4, 10,11, 13 or 14 may, within ninety days from the date of the communication of such decision to it or him, appeal to the Board of Revenue and the decision of the Board of Revenue shall be final.'

The Act does not contain any provision giving to the Board of Revenue the power to review its decision or orders. It is now well settled that the power to review is not inherent in a Court and ,can only be exercised if it is permitted by statute. This has been made clear by the decision of a Division Bench of this Court in Rajaram v. Rani Jamit Kunwar Devi, 1901 M.P.L.J. 944. This proposition has been very recently laid down by the Supreme Court also in State of M.P. v. Balkishan Nathani 1963 M.P. L.J. 640: 1964-1 S.C.R.793 where it has been held that there is no provision in the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (I of 1951) which authorizes the Deputy Commissioner to review an order made by him under Section 40(3) of that Act and, therefore, the Nistar Officer has also no power to start proceedings to reopen the order made by the Deputy Commissioner OF to review it. Shri Phadke, learned counsel appearing for the petitioner, did not, and indeed could not, question the proposition that the power to review must be expressly given by statute. He, however, submitted that the Board's power to review its orders and decisions is to be found in Section 30 of the Act That provision is as follows:

'30. Procedure:--The Jagir Commissioner, or any other officer conducting an enquiry under this Act, and the Board of Revenue and the Collector hearing appeals from the orders of the Jagir Commissioner or the Tehsildar, as the case may be, shall follow the procedure applicable to proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, so far as may be and shall have the same powers, in relation to proceedings before them as a revenue Officer has in relation to original or appellate proceedings, as the case may be, under the said Act.'

It was argued that Section 30 of the Act did pot deal merely with the procedure that the Jagir Commissioner or any other officer conducting an enquiry under the Act or the Board of Revenue and the Collector while exercising their appellate jurisdiction were required to follow; that it also gave to these authorities the same powers which a revenue officer exercised in relation to original or appellate proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007; that Section 40 of the Tenancy Act gave to the Board and also to any Revenue Officer the power to review their own decisions; and that consequently Section 30 of the Act read with Section 40 of the Tenancy Act conferred on the Board of Revenue the power to review its decision given in an appeal under Section 29 of the Act. Learned counsel commended to us for acceptance the decision of Division Bench of this Court in Deorao Jadhav v. Board of Revenue, 1963 Jab LJ 89 where it has been held that Section 30 of Madhya Bharat Abolition of Jagirs Act attracts Section 40 of the Madhya Bharat Land Revenue and Tenancy Act and both the Jagir Commissioner acting as an original Court and the Board of Revenue acting as an appellate Court have the power to review their own orders.

3. The construction put by learned counsel for the petitioner on Section 30 of the Act cannot be accepted. The first half of Section 30 clearly prescribes the procedure which the Jagir Commissioner or any other officers conducting an enquiry under the Act and the Board of Revenue and the Collector when hearing appeals from the orders of the Jagir Commissioner or the Tehsildar are required to follow when it says that they 'shall follow the procedure applicable to proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, so far as may be'. This portion- of Section 30 does not in any way deal with the powers which the Jagir Commissioner or any other officer as an original authority or the Board of Revenue and the Collector as an appellate authority can exercise in their original or appellate jurisdiction. The second half of the section no doubt provides that these authorities 'shall have the same powers, in relation to proceedings before them as a revenue officer has in relation to original or appellate proceedings, as the case may be' under the Tenancy Act. But this provision has not the result of conferring on those authorities the power of review given to the Board or any Revenue Officer under Section 40 of the Tenancy Act. The power conferred by the second half of Section 30 is limited first by the expression 'in relation to proceedings before them', and, again, by the expression 'as a! revenue officer has in relation to original or appellate proceedings'. Section 30 in the very beginning speaks of the Jagir Commissioner or any other officer functioning as an original authority and the Board of Revenue and the Collector functioning as an appellate authority. The power that is conferred by the latter half of the section is therefore in regard to the original proceedings before the Jagir Commissioner or any other officer or the appellate proceedings before the Board of Revenue and the Collector and that power is the same which a Revenue Officer has in relation to original or appellate proceedings under the Tenancy Act.

4. Now, the proceedings initiated for the review of a decision given, whether by the original authority or by the appellate authority, are not a continuation of the original or appellate proceedings or a substitute for an appeal. They are separate substantive proceeding where the correctness of the judgment, or order, or decision given in original or appellate proceedings, as the case may be, is questioned. The various stages through which an application for review passes have been described by Jenkins C. J in Sha Vadilal Hakamchand v. Sha Fulchand Umedram, ILR 30 Bom 56. Therein it has been pointed out that when an application for review of a decision is made, the Court may either reject the application at once, or grant a rule calling on the other side to show cause why the review should not be granted. The rule may then be discharged or made absolute. If it is made absolute, the case is reheard on the merits and may result either in a repetition of the former judgment or decree or in some variation of it. After thus describing the several stages of the procedure the learned Chief Justice remarked:

'Though in one aspect the result is the same whether the rule be discharged or on the re-hearing the original decree be repeated, in law there is a material difference, for, in the latter case, the whole matter having been re-opened, there is a fresh decree. In the former case the parties are relegated to, and still rest on, the old decree.'

The analysis made by Jenkins C. J. of the review proceedings abundantly shows that the proceedings for a review of a decision given by the original authority or the appellate authority are quite independent of the original or appellate proceedings in which the decision sought to be reviewed was given. There can be no occasion for the initiation of a review proceeding unless and until the original or the appellate authority first gives its decision; and it is only if on the review being allowed the decision of the original or the appellate authority is set aside that a rehearing of the matter before the original or the appellate authority becomes necessary. In the rehearing of the matter the original or the appellate authority, of course, exercises the same powers as it did while deciding the matter initially. But from this it does not follow that in entertaining and disposing of a review petition the original or the appellate authority exercises the power it can while dealing with the matter in the exercise of its original or appellate jurisdiction. The power to entertain a review petition and allow it must be conferred by statute and can be exercised only within the limitation prescribed by the statute for the exercise of that power. It is a power entirely different from the power which the authority exercises while disposing of a matter in its original or appellate jurisdiction. It is thus reasonably plain that by the second half of the section the power that has been conferred on the Jagir Commissioner or any other officer or the Board of Revenue and the Collector is the power which the Revenue Officer has while disposing of original or appellate proceedings under the Tenancy Act. This power 'in relation to original or appellate proceedings' clearly does not include the power under Section 40 of reviewing a decision given in original or appellate proceedings.

5. The conclusion that the Board of Revenue has no power to review a decision given by it in an appeal under Section 29 is also supported by the fact that under Section 29(1) of the Act the decision of the Board of Revenue has been given finality. If the Legislature intended to confer on the Board of Revenue the power to review its own decisions, it would have done so by inserting an express provision to that effect in the Act like Section 40 of the Tenancy Act and not by the circuitous method of giving to the Board the power of review which a Revenue Officer has under Section 40. The absurdity of this circuitous method becomes all the more clear if it is noted that Section 40 gives to the Board also the power to review.

6. The decision in Deorao Jadav's Case 1963 Jab LJ 89 (supra) that the last clause of Section 30 of the Act attracts the provisions of Section 40 of the Tenancy Act and thus gives to the Jagir Commissioner acting as the original Court and the Board acting in appeal the power of review is based solely on the decision of the Supreme Court in Meenakshi Mills Ltd. v. Their Workmen, AIR 1958 SC 163 that as the Code of Civil Procedure applies to the proceedings before the Labour Appellate Tribunal, the provisions of Order 47 of the Code apply to those proceedings, and hence the Appellate Tribunal has jurisdiction to review its own order. The decision of the Supreme Court turned on the construction of Section 9(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950, which provided that the Appellate Tribunal shall have the same powers as are vested in a civil court when hearing an appeal under the Code of Civil Procedure, 1908. It was held by the Supreme Court that if the Code of Civil Procedure 'applied to proceeding before the Labour Appellate Tribunal, then the provisions of Order 47 would also apply to those proceedings. The learned Judges deciding the Case of Deorao Jadhav, 1963 Jab LJ 89 (supra) found Section 9(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950, and Section 30 of the Abolition of Jagirs Act to be similarly worded. With all respect to the learned Judges, it is difficult to accept the view expressed by them in Deorao Jadhav's Case 1963 Jab LJ 89. Quite apart from the fact that arguments by analogy are misleading and it is not legitimate to construe the meaning of one section in one Act with reference to the meaning and effect of another section in another Act, there is no similarity whatsoever between the wording of Section 30 of the Abolition of Jagirs Act and Section 9(1) of the Industrial Disputes (Appellate Tribunal) Act. The two sections of the two Acts differ toto caelo. The material difference between the two provisions is that whereas under Section 9(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950, the Tribunal was given all the powers which vested in a civil court when hearing an appeal under the Code, and, as held by the Supreme Court, the Code was applied in its entirety to proceedings before the Tribunal including the power of appeal and of review, Section 30 of the Abolition of Jagirs Act gives to the authorities mentioned therein only that power which a Revenue Officer has in relation to, original or appellate proceedings under the Tenancy Act. The content of the power conferred by Section 30, as already explained above, is not wide enough to include the conferment of the power of review. Section 30 nowhere makes Chapter IV of the Tenancy Act applicable in its entirety to the proceedings before the Jagir Commissioner or any other officer, or the Board of Revenue or the Collector under the Abolition of Jagirs Act. There are two un-reported cases, Mukut Singh v. Dhanwar Singh Civil Misc. Petn. No. 10 of 1962 (MP) and Chandrojirao Angre v. Board of Revenue, Misc. Civil Case No. 9 of 1962, D/-21-12-1962 (MP) (both cases of Gwalior Bench), where also, following the decision in Deorao Jadhav's case 1963 Jab LJ 89 (supra), it has been held that the Board of Revenue can review its decision given in an appeal under Section 29 of the Act. The observations made about the decision in Deorao Jadhav's case 1963 Jab LJ 89 apply equally to the two unreported cases.

7. For the foregoing reasons, this reference must be answered by saying that under the Madhya Bharat Abolition of Jagirs Act the Board of Revenue has no power to review its own decision given in an appeal under Section 29 of the Act.

8. V. R. Newaskar and P. K. Tare, JJ. (sitting in Division Bench D/-16-4-1965): The petitioner was a Jagirdar of Kalyanpura which was included in the erstwhile Jhabua State which merged into Madhya Bharat and now forms part of Madhya Pradesh.

9. In this petition under Articles 226 and 227 of the Constitution of India one of the questions raised was that the Board of Revenue had failed to exercise its powers of review which it possessed on the erroneous assumption that it possessed no such powers.

10. This question was considered by the Full Bench of this Court on a reference made by the Bench hearing the appeal. The Full Bench answered the question against the petitioner by holding that the Board was right in holding that it had no power of review.

11. After the receipt of the opinion of the Full Bench the matter was placed for consideration of other questions which were raised in the petition with reference to the decision of the Board of Revenue.

12. The material points raised before the Board of Revenue and decided by the Board against the petitioner as to merits are as given below :

1. The income derived from alienated villages should be excluded from Gross Income of the present Jagir.

2. The total excise income of the Jagir should be treated as net income as 25 per cent is already deducted as administrative charges.

3. In calculating the average yield of Forest Revenue for 20 years under Sub-clause (e) of Clause 2 of Schedule I of Madhya Bharat Abolition of Jagirs Act the period of years 1949 to 1951 should be excluded as during that period the State had taken over management of the area under Scheduled Areas Jagirs Management Act.

4. Receipts of Nazarana should be included in the Gross Income.

13. With reference to the above questions raised before the Board of Revenue, it held as below:

With reference to Point No. 1:

Alienated villages cannot be separated from the present Jagir for the purpose of calculation of Net Income since those villages formed part of the entire Jagir as shown in the records alienation being only for providing maintenance to junior members. With reference to Point No. 2:

The petitioner cannot he allowed total excise income from Kalyanpura Jagir for the basic year as being the Net Income having regard to Sub-clause (e) to Clause 2 of Schedule I since in the basic year Jagir derived only 25 per cent (75 p.c.) from the total income under an agreement with the erstwhile State of Jhabua. With reference to Point No. 3:

The provision in regard to the Forest income in Sub-clause (e) of Clause 2 of Schedule 1 ... . ... is mandatory and the period of 20 years ... .. . preceding basic years could not have been altered for calculating the forest yield. With reference to Point No. 4: Nazarana cannot be allowed under Sivai-Jama as such income does not fall under any of the categories enumerated in Section 123 of the Settlement Manual of former Gwalior State.

14. There was one more point raised as No. 5. But it was decided in favour of the petitioner and therefore has no relevance for the present petition.

15. Petitioner raised the following grounds as to merits apart from the ground regarding competency of a review petition before the Board of Revenue:

I. The Income from alienated villages of the Jagir was not excluded in calculating the Gross-Income of the Jagir. It ought to have done so as such alienation could only take place with the previous permission of the Darbar (of erstwhile Jhabua State.)

II. The Gross-Income from Excise was not rightly calculated The deduction of 25p.c. out of the total income of Excise was for management charges and the income thus payable to the petitioner in the basic vear ought to have been reckoned as net income and not Gross-Income Deduction of 22 1/2p.c. further for collection and Chowkidari was illegal. In doing so the Board committed an obvious error.

III In calculating average forest yield from the Jagir for 20 years preceding the basic year, the period from 1949 to 1951 ought to have been excluded as during that period the State had taken over the management of the area.

IV. Income from Nazarana was not taken into account in calculating Gross-Income.

V. The Board did not consider illegal character of deduction from customs income.

VI. Prospective assessment of fallow lands was not taken into account in calculating the Gross Income.

16. Out of these this Court cannot take into consideration grounds V and VI as they were not the grounds dealt with in the order of the Tribunal (The Board of Revenue).

17. It is said that these grounds were raised but not considered. Mere raising of grounds is not enough. It must appear that grounds had been pressed. It is only the grounds pressed before the Board and dealt with by it that can form the subject matter of the petition under Articles 226 and 227 of the Constitution of India. We are bound to assume that the points mentioned by the Board alone were pressed. Contentions with reference to these grounds Nos. V and VI cannot be allowed to be urged before us.

18. As regards ground No. I there is no substance in the contention raised. The Jagir was one and the alienation of certain villages to junior members of the family of the petitioner Jagirdar was an internal arrangement made for the purpose of their maintenance. Those villages, therefore, could not have been treated as a separate Jagir under the provisions of the Madhya Bharat Jagir Abolition Act, the Net Income of the Jagir was rightly calculated.

19. As regards ground No. II it is clear from the documents Annexures 1-A and 2 relied upon by the petitioner that a share of Excise income derived from the Jagir was allowed to the Jagirdar only by way of grace and for their due up-keep (Parwarish) that share alone has to be taken into account as the income from Excise. The deduction of 25p.c. was in no way for defraying the expenses of administration or collection.

20. Reliance has been placed in this connection upon the later decision of the Board dated 27-9-61 wherein, while dealing with the question as to method and extent of deduction according to Schedule I of Abolition of Jagirs Act, the Board observed :

'As we read Schedule I, Sub-clause (2) (e) which deals with the excise income we see no justification for deducting any amount from the gross excise income that fell to the share of the Jagirdar. The scheme of Schedule I shows that all incomes from the various sources such as land, forest, excise etc. are first taken into account for ascertaining the gross income of the Jagirdar and deduction if any, are to be made from this gross income in accordance with para 4 thereof. In other words, the cost of collection etc., are not to be deducted from such source of income individually; such cost has to be deducted from the gross income and only upto the prescribed extent laid down in para 4. We, therefore, agree with the contention of the learned counsel for the appellant that the total income from excise revenue should have been included in the gross income of the appellant without deducting 'kkgh gDd or cost of collection.'

21. We agree with the view of the Board as regards the method of calculation namely the gross-income of the Jagirdar has to be calculated by adding together the income of all the heads enumerated in Section 2 of Schedule 1, Abolition of Jagirs Act.

22. After thus calculating the gross-income, net income is to be ascertained by making the various deductions enumerated in Section 4, Abolition of Jagirs Act. It would not be a correct procedure to take each item and to deduct therefrom cost of collection etc. and that too upto the prescribed extent. We further agree that as per item (e) in Section 2 of the Schedule I excise compensation of excise incomes or both as the case may be for the basic year has to be included in ascertaining the gross-income without deducting the cost of collection. The Board calls the costs (expenses) of collection as Shahi Haque. It is really unnecessary to introduce any such phrase since it is always safer to confine ourselves to the expression used in the Act.

23. But Mr. Phadke wants us to hold on the basis of this decision that in determining the gross-income the total excise income within the limits of the Jagir should be taken into account in the present case on the strength of the above observations. With this part of his contention we do not agree. All that the decision lays down is that in calculating excise income for its being added to make up gross-income the expenses of collection referred to in Section 4(ii), Abolition of Jagirs Act cannot be deducted. This however does not help the appellant.

24. On the terms of the document 2 of it is clear that what was allowed to the Jagirdar by the erstwhile State of Jhabua was excise compensation for they having enjoyed excise rights within their Jagir by way of 'Parwarish' or grace although circumstances had changed due to non-production of excisable articles and due to setting up of a proper administration for sale of excisable articles at places fixed under Government Orders it was the State which was really earning the income and the Jagirdar had no hand in it.

25. The Board's view on this point is correct.

26. Ground No. III also is untenable. The terms of Clause 2(e) of Schedule I to Abolition of Jagirs Act provides in specific terms that the period of 20 years referred to therein is the period preceding next before the basic year. There are no exceptions made in the matter of reckoning of these 20 years and if during any portion of those 20 years the area forming the Forest area of the Jagir had been taken over by the State pursuant to Scheduled Areas Jagirs Management Act, still that period cannot be excluded. All that has to be done is to include the income of those years too as being the income from the Jagirdar's Forest area. The conclusions reached by the Board are in conformity with the statutory provisions and no reasons are given on behalf of the petitioners on what legal grounds the Board was bound to depart from the words of the statute.

27. As regards income from Nazarana there is no such item indicated in Section 2 of the Schedule I of the Abolition of Jagirs Act. Mr. Phadke wants us to hold that it is Sewai-Jama. The term 'Sewai-Jama' is not defined in the Abolition of Jagirs Act. Its meaning therefore has to be taken as indicated in Section 2(2) of the Abolition of Jagirs Act.

28. That provision is as follows:

'Section 2(2). Words and expressions used in this Act but not defined in this Act shall have the same meaning as is assigned to them in Qanoon Mal, Gwalior State, Samvat 1983, or in the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, or in Qawaid Jagirdaran, Gwalior State, Samvat 1970, or in the Manual for Jagirdars, of the Holkar State, 1928, as the case may be.'

29. The Board derives its meaning from Section 123 of Settlement Manual. Section 2(2) of the Abolition of Jagirs Act really does not make reference to Settlement Manual of Gwalior State, and the word therefore has to be understood in its ordinary sense. But in determining what it means in the case of village income, Settlement Manual of Gwalior State can be looked to as a relevant matter.

30. Besides this 'Nazarana' is something which is a personal tribute to the holder of the Jagir and is really not the income of the Jagir village and consequently there is no justification to include it as Sewai-Jama item of the Jagir.

31. The petition therefore is unsustainable.

32. It is consequently dismissed with costs. Counsel's fees shall be charged at Rs. 100/-.


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