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Anandrao Laxmanrao Mandloi Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 58 of 1958
Judge
Reported inAIR1965MP237; 1965MPLJ238
ActsTenancy Law; Madhya Bharat Abolition of Jagirs Act, 1951 - Sections 23, 28, 34, 34(1) and 34(2); Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950 - Sections 38 and 39; Constitution of India - Article 207
AppellantAnandrao Laxmanrao Mandloi
RespondentBoard of Revenue and ors.
Appellant AdvocateChitle, ;Reghe and ;Upadhya, Advs.
Respondent AdvocateS.D. Sanghi, Adv.
DispositionPetition dismissed
Cases ReferredRadha Nath v. Hari Mohan
Excerpt:
- - section 34 (2) of the madhya bharat abolition of jagirs act clearly negatives such power of revision in the board of revenue. (2) the board may suo motu or on an application presented by any party within 90 days from the date of the order, call for the record of any case of a judicial nature or connected with settlement, in which no appeal lies to the board, if the officer by whom the case was decided appears to have exercised jurisdiction not vested in him by law, or to have failed to exercise jurisdiction so vested or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit. section 23 empowered the tehsildar, on being satisfied on enquiry in accordance with the rules that the conditions for.....newaskar, j.1. the question referred to the full bench is, whether it is competent for the board of revenue to revise an order passed by the collector in exercise of his appellate powers under section 28 of the abolition of jagirs act. a division bench of this court in bondar v. ganpat, 1960 mp lj 1278 had taken the view that notwithstanding the provision in section 28 referred to above the collector's decision is open to revision by the board of revenue. this question again came up for consideration before the division bench consisting of myself and krishnan, j. it was contended before us that although in the absence of any statutory provision the principle laid down in the case of national telephone co. ltd. v. post master general, (1913) a. c. 546 and approved by the supreme court in.....
Judgment:

Newaskar, J.

1. The question referred to the Full Bench is, whether it is competent for the Board of Revenue to revise an order passed by the Collector in exercise of his appellate powers under Section 28 of the Abolition of Jagirs Act. A Division Bench of this Court in Bondar v. Ganpat, 1960 MP LJ 1278 had taken the view that notwithstanding the provision in Section 28 referred to above the Collector's decision is open to revision by the Board of Revenue. This question again came up for consideration before the Division Bench consisting of myself and Krishnan, J. It was contended before us that although in the absence of any statutory provision the principle laid down in the case of National Telephone Co. Ltd. v. Post Master General, (1913) A. C. 546 and approved by the Supreme Court in AIR 1953 SC 357, National Sewing Thread Co. Ltd. v. James Chadwick and Bros., Ltd. will apply. Section 34 (2) of the Madhya Bharat Abolition of Jagirs Act clearly negatives such power of revision in the Board of Revenue. In the earlier case of 1960 MP LJ 1278 the exact impact of Section 84 (2) of the M.B. Abolition of Jagirs Act on this question did not appear to us to be fully appreciated and as we felt that the said section appeared to exclude the jurisdiction of the Board of Revenue or for the matter of that of any authority functioning under the Madhya Bharat Land Revenue and Tenancy Act it was considered advisable to refer the question to Full Bench.

2. The facts material for the purpose of the present reference are fully stated in the order of reference. They are as follows:

On 11-5-1955 respondent No. 5 Raghunath put forward a claim before the Tehsildar Kasrawad by means of an application under Section 21 of the Madhya Bharat Abolition of Jagirs Act (hereinafter called the Act) forconferment of the rights of a Pacca Tenant claiming himself to be a sub-tenant of land bearing Khasra Nos. 39 and 43 of Mouja Lakhangaon. This claim was opposed by the present petitioner Anandrao Mandloi who is the brother of ex-Jagirdar Shankarrao of Lakhangaon who denied the status of Raghunath and claimed himself to be a tenant cultivating the said land personally. His case before the Tehsildar was that Raghunath was merely his 'Sardar' or partner upto the agricultural year ending on 15-6-1953 and that at the date of his application under Section 21 of the Act he was no longer in possession of the field. The case of Raghunath was that he was in possession of the field as sub-tenant upto the year 1953-54 and that he had been forcibly ousted by the petitioner Anandrao in that year. The Tehsildar. by his order dated 25-8-1955 under Section 23 of the Act, rejected the claim of Raghunath on a finding that he was not in possession of the field since two years before the date of his application and that consequently ho will not be entitled to be declared as a Pucca Tenant.

An appeal was preferred by Raghunath against this decision of the Tehsildar under Section 28 of the Act to the Collector who in his decision dated 5-3-1956 held that the possession, contemplated under the provisions of the Act for claiming the rights of a Pucca Tenant, is the possession on the date of vesting i.e. on 7-12-1951. He therefore remanded the case for an enquiry as to who was in actual possession of the field on that date and for disposal of the case on that basis. Against this order of remand Anandrao preferred a revision petition. This was rejected and the order of remand was confirmed. The matter thereupon went to the Tehsildar for the enquiry referred to in the order of remand. The Tehsildar found, by his order dated 29-11-1956, that Survey No. 43 alone was in the possession of Raghunath on the date of vesting and not Survey No. 39. He was accordingly held entitled to the rights of a Pucca Tenant with reference to survey No. 43 only. Roth the parties preferred appeals against the decision to the Collector under Section 28 of the Act. The Collector held that Raghunath was in possession of the whole of Khasra No. 39 and half of Khasra No. 43. He further held that Anandrao was entitled to only double the land revenue by way of compensation and not six times as held by the Tehsildar. Anandrao felt aggrieved by this decision of the Collector and preferred a revision petition (o the Board of Revenue, This was not entertained by the Board on the ground that Section 28 of the Act excluded their jurisdiction since under that Section the Collector's order passed in the appeal had become final

3. Anandrao thereupon submitted this petition under Article 226 of the Constitution on the ground that there was an erroneous refusal on the part of the Board of Revenue to exercise jurisdiction. A writ of certiorari is sought for quashing the said decision and for a direction to the Board of Revenue tohear the revision petition and to dispose it of according to law.

4. In order to consider the question in its correct perspective it will be convenient to refer to the provisions of the Madhya Bharat Land Revenue and Tenancy Act and particularly certain provisions in Chapters II, III and IV. Chapter II deals with territorial divisions and classes of Revenue Officers. Section 6 enumerates fourteen different kinds of Revenue Officers which include (1) the Members of the Board of Revenue, (2) the Commissioner of a Division, (3) Collector or Subas and (4) Tehsildars. Section 7 defines Chief Revenue Authority. It means the Board of Revenue charged by the Government with the control of Revenue and other matters connected with land in the State. By Section 8(1) the Government is authorised to constitute a Board of Revenue and Section 8(2) empowers the Board to exercise powers and discharge the duties conferred and imposed upon it under the Madhya Bharat Land Revenue and Tenancy Act or under any other law for the time being in force. Similar provisions are there authorising the Government to appoint other Revenue Officers such as the Commissioner, The Suba, the Tehsildar etc., for their respective Divisions, Districts and Tehsils and to exercise powers and discharge duties conferred and imposed upon them by the said Act.

Chapter III deals with powers of Revenue Officers. Section 17 which deals with the powers of the Board of Revenue is as follows:

'The Board shall be the highest Court of appeal and revision for revenue cases of Judicial nature and cases connected with settlement and shall also have jurisdiction to entertain and dispose of such revenue appeals and revisions and other cases as it may be empowered to do under this Act or any other law for the time being in force.'

5. Chapter IV provides for appeals andrevisions. Section 35 in this Chapter providesfor a first appeal against every original orderpassed under the Act. Section 36 providedfor second appeals, the limits of interferencein Second appeals being narrower than infirst appeals as is the case under the CivilProcedure Code. Sections 38 and 39 deal withrevisional powers They are as follows:--Section 38:

'Any Revenue Officer not below the rank of a Suba may either himself or on any application made in this behalf, call for and examine the record of any case decided or proceedings held by an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to the regularity of the proceedings, and if he is of the opinion that the proceedings taken or order passed by such subordinate officer should be varied, cancelled or revised, he should refer the case with his opinion thereon through his superior officers for the order of the Board, if the case is of judicial nature or connected with settlement, or for the orders of the Government if the case isof non-judicial nature or not connected with settlement;

and the Board or the Government, as the case may be, shall thereupon pass such orders as it may think fit.' Section 39:--

'(1) The Government may SUO MOTU or on an application presented by any party within 90 days from the date of the order call for the record of any proceedings, non-judicial or not connected with Settlement, held by any officer subordinate to it and pass thereon such orders as it thinks fit.

(2) The Board may SUO MOTU or on an application presented by any party within 90 days from the date of the order, call for the record of any case of a judicial nature or connected with Settlement, in which no appeal lies to the Board, if the officer by whom the case was decided appears to have exercised jurisdiction not vested in him by law, or to have failed to exercise jurisdiction so vested or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit.'

Section 54(vii) defines 'Pakka Tenant' and the term thus defined includes a person who in future is duly recognised as such by a competent authority.

6. This is in brief the outline of the material provisions of the Act.

7. The Law known as the Madhya Bharat Abolition of Jagirs Act came into force on 7-12-1951 although it was on the anvil since 29-1-1949. By this law the Jagirs in the State were resumed and provision is made for payment of compensation to the holders of Jagirs and their co-sharers and maintenance-holders etc. Declaration was made as to the consequences of such resumption in Section 4. Persons who held the land in the Jagir either as tenant of the Jagirdar or his Shikami in respect of his Khud Kasta land not under actual cultivation were declared as Pacca Tenants. Sections 21 and 22 provided for acquisition of Pacca Tenancy rights by Sub-Tenants and tenants of a Sub-tenant and the conditions which the persons thus acquiring the said rights were required to be fulfilled. Section 23 empowered the Tehsildar, on being satisfied on enquiry in accordance with the rules that the conditions for conferment of Pacca Tenancy rights are satisfied by the Sub-Tenant or the tenant of a Sub-Tenant as the case may be, to issue certificate of Pacca Tenancy in his favour. Material part of Section 28 of the Act is as follows:--

'(1) Any person aggrieved by an order of the Tehsildar under Section 23, may, within thirty days from the date of such order appeal to the Collector, whose decision shall be final.'

Section 29 provides for appeals from certain orders of the Jagir Commissioner to the Board of Revenue consisting of two members. Under Section 30 in all enquiries to be conducted under the Act the procedure applicable to proceedings under the Madhya Bharat Land Revenue and Tenancy Act and the powers exercisable thereunder were applicable.

Next material provision is Section 34 which is as follows:--

'BAR OF JURISDICTION OF CIVIL COURTS:

(1) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tehsildar, the Collector, the Jagir Commissioner, the Board of Revenue or the Government.

(2) Except as otherwise provided in this Act, no order of the Tehsildar, the Collector, the Jagir Commissioner or the Board of Revenue or the Government under this Act shall be called in question in any Court.'

8. Thus, on review of the material provisions of the Act relating to appeals it appears that these provisions relate to the orders of two authorities namely (1) the Tehsildar and (2) Jagir Commissioner. The second authority is not included in the authorities under the Madhya Bharat Land Revenue and Tenancy Act although the first one is so included. The order passed by the first authority under Section 23 of the Act with reference to the grant or refusal of a certificate of Pacca Tenancy is appealable under Section 28 of the Act to the Collector who is also an authority under the Madhya Bharat Land Revenue and Tenancy Act. Unlike the provisions of the last mentioned Act however there is no second appeal provided against such an order. The order of the Collector under Section 28 is made final. As against the order of the Jagir Commissioner under Sections mentioned in Section 29 of the Act one appeal is provided to the Board of Revenue and the order of the Board of Revenue is made final. Since the Jagir Commissioner is not an authority under the Madhya Bharat Land Revenue and Tenancy Act it is obvious that the provisions of Section 39 of that Act relating to revisions particularly suo motu are not attracted on the principle laid down in (1913) A. C. 546 and approved by the Supreme Court in AIR 1953 SC 357

9. The question however remains whether this provision under Section 39 of the Madhya Bharat Land Revenue and Tenancy Act is attracted and is applicable for entertaining a revision petition against the decision passed in appeal by the Collector under Section 23 of the Act in spite of the fact that under Section 28 the decision of the Collector is made final. The Tehsildar and the Collector are no doubt authorities included amongst the authorities under the Madhya Bharat Land Revenue and Tenancy Act and the nature of question which the Tehsildar is called upon to decide is under Section 23 of the Abolition of Jagirs Act no doubt akin to find relates to the matters dealt with under the Land Revenue and Tenancy Act and it is possible in contend with certain degree of plausibility that in the absence of any clear indications to the contrary that provision as to revision would be attracted. In order, therefore, to arrive at our conclusions on this question it will be necessary to visualise thesignificance and scope of the principle laid down in (1913) A. C. 546, by the Supreme Court in AIR 1953 SC 357 and by the Privy Council in several decisions of the Board.

10. In (1913) A. C. 546 it was observed:

'When a question is staled to be referred to an established Court without more it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.'

11. In 43 Ind App 192: (AIR 1916 PC 21), Secretary of State v. Chelikani Rama Rao, which came up before the Privy Council a few years later, it was observed:-

'The claim was the assertion of a legal right to possession of and property in land, and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation'

12. The dispute in that case was pertaining to land near the mouth of delta of the river Godavari. The Government claimed to declare it as Reserved Forest while a private suitor claimed the same as his own property Under the Madras Forest Act a procedure was provided for determination of the dispute of this character after an enquiry by the Settlement Officer in which the claimant could adduce evidence in support of his claim. As against the decision of the Settlement Officer an appeal lay to the District Court against the rejection of the claim. The question before the Board was whether an appeal was competent against the decision of the District Judge to the High Court. The above quoted observations were made in that connection. The term 'legal right', it appears, includes rights conferred by statute as well and not merely rights which are claimed independently of any statute

13. In 63 Ind App 180: (AIR 1936 PC 93), Hemsingh v. Basant Das and Shiromani Gurdwara Prabandhak Committee v. Ram Prasad; the question was regarding right of appeal to the Privy Council against the decision pronounced by the High Court under the Sikh Gurdwaras Act (Punjab Act VIII of 1925). The questions which might come up for decision under the Sikh Gurdwaras Act included questions which in substance concerned the nature of the Trusts under which endowments of certain religious institutions were held. They included questions of compensation for loss of office and questions as regards claims to property. A Tribunal constituted under the Act was authorised to determine such questions. There was no limitation as to value as regards the Tribunal's powers for that purpose. Even the Civil or Revenue Court before whom any such question with reference to a notified Gurdwara arose were required to frame an issue and refer it for a finding upon the same and the Court's decision is to follow such determination Having regard to these powers of the Tribunal and the fact that an appeal was provided by Sikh Gurdwaras Act against the Tribunal's decision to the High Court thequestion was whether further appeal to the Privy Council was competent.

Their Lordships observed:-

'Having regard to the character, the variety and the importance of the questions to be dealt with by a tribunal, and to the terms in which the right of appeal to the High Court is provided by the Section, their Lordships are of opinion that the provisions of the Civil Procedure Code with reference to appeals to His Majesty apply to decrees of the High Court made under Section 34 of the Sikh Gurdwaras Act.'

14. In AIR 1948 PC 12, Adaikappa Chettiar v. Chandrasekhara Thevar the question was whether the defendant was an agriculturist and was consequently entitled to the relief under the Madras Agriculturists' Relief Act No. IV of 1938. It was observed:

'The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.'

15. The Case in AIR 1958 S.C. 357, which was a case under the Trade Marks Act, 1940, an appeal from a determination of the Registrar lay to the High Court. The question raised was whether against the decision of Single Judge an appeal lay to the Division Bench of the High Court under the Letters Patent. Their Lordships referred to the decision in the (1913) A.C. 546 and expressed the rule applicable in such cases thus: --

'The rule is well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court'.

16. Having regard to these decisions it is fairly settled that in the absence of contrary intention specifically expressed or clearly implied when a matter is referred to an established Court if imports that the ordinary incidents of procedure of that Court are to attach to the determination by that Court and also any general right of appeal likewise attaches. This would be so where a legal right is involved in the dispute.

17. In the present case right in dispute is a legal right of a Pacca Tenant granted to it sub-tenant or a tenant of a Sub-tenant of a Jagir village conferred by the Madhya Bharat Abolition of Jagirs Act, This question under the Act has to be enquired into and determined initially by the Tehsildar against whose decision an appeal lies to the Collector and it is provided in Section 28 that his decision in appeal shall be final.

18. The question as to the exact significance of the term 'final' in this context is generally accepted to mean that there shall be no further appeal but that does not exclude competency of a revision petition if such power is conferred by the statute under which the Courts in question are constituted, vide AIR 1924 Mad 561, Parthasaradhi Naidu v. Koteswara Rao AIR 1985 Cal 733, Phani Bhusan v. Sanat Kumar, AIR 1938 All 456 (FB), Shah Chaturbhuj v. Shah Mauji Ram; AIR 1950 Cal 263, Indian Homeopathic Medical Association Calcutta v. Kanai Lal and AIR 1946 Nag 94, Shriniwas Laxmanrao v. Superintendent Govt. Printing Press Nagpur.

19. In the Division Bench of this Court in Misc Petn. No. 20 of 1961 : (AIR 1963 Madh Pra 218), Kailashchandra v. District Judge, Bhopal; question arose with reference to competency of a revision petition in view of the terms of Section 12 of the Madhya Pradesh Accommodation Control Act. It was held that in the absence of any express prohibition such a petition was competent. Reference was made to the observations in the case reported in ILR 1951 Nag 741 : (AIR 1951 Nag 443), Rajaram v. The State, and it was observed that the said observations indicated that 'in order to bar a revision under Section 115 C.P.C. there must be in the relevant provision express words to that effect'. I respectfully agree with the view thus expressed.

20. It is contended by Mr. Sanghi for the opponent that provisions of the Madhya Bharat Abolition of Jagirs Act and particularly Section 34(2) of the Act should be taken to expressly bar the jurisdiction of the Revenue Board to entertain a revision petition against the decision of the Collector under Section 28. It is this contention that has to be examined.

21. The argument of Mr. Chitale, the learned counsel for the petitioner, is that Section 34 is a provision which, on its construction, is designed against interference by the Civil Courts with reference to the questions which the authorities under the Act can settle, decide or deal with. Sub-section (1), it is said, provides for bar of Civil Court's co-ordinate jurisdiction which it would otherwise possess on the ground that the suits with reference to questions liable to be dealt with under the Act are of civil nature. Sub-section (2), it is said, further bars Civil Court's power where the questions liable to be dealt with under the Act have already been so dealt with by the authorities thereunder and a party desires to challenge the propriety of such a decision. It would include exclusion of power to question the orders of authorities under the Act which a Civil Court would otherwise possess even in spite of express exclusion of its jurisdiction on the principle laid down in the decision of the Privy Council in AIR 1940 PC 105, Secretary of State v. Mask and Co.

He further contends that since in Sub-section (2) of Section 34 even the authority not included amongst the authorities under the Madhya Bharat Land Revenue and Tenancy Act namely the Jagir Commissioner is included as also the Revenue Board itself which is the highest authority in the matters of judicial nature, the challenge intended can only be before a Court or a tribunal not functioning under the Act but outside it and on that ground reference is necessarily to the Civil Court. This view is further reinforced, according to the learnedcounsel, by the use of the word Civil Court at the heading. Such use of the terms of the heading in the case of an ambiguity is, it is said, well recognised.

22. On the other hand Mr. Sanghi for the opponent laid emphasis on the expressions 'Except as otherwise provided in this Act' and the words 'any Court' in place of 'any Civil Court.' The learned counsel urges that these phrases indicate that Sub-section (2) deals with the subject of a challenge to an order both under that Act itself as also otherwise. The words 'any Court' are of wider import and there is no reason to limit their meaning to 'any Civil Court'. Had that been the intention it was easy for the framers of the Act to repeat the expression 'Civil Court' as used in the first Clause of Section 34, in the second Clause as well. The second Clause, it is contended, cannot be meant to bar the Civil Court's power on the principle of AIR 1940 PC 105 as contended for by the learned counsel for the applicant. The reason is that the Tribunals functioning under special enactments ought to conform to the principles of natural justice and must act within the ambit of the special statute. If they do not, even specific exclusion of Civil Court's jurisdiction will not have the effect of bringing about that result.

23. I propose to consider these submissions in the context of both the Statutes i.e. the Madhya Bharat Land Revenue and Tenancy Act and the Madhya Bharat Abolition of Jagirs Act. It may be mentioned here that the Madhya Bharat Abolition of Jagirs Act, though it provides for appeals as against certain orders of the Tehsildar and the Jagir Commissioner, speaks nothing about the revisional jurisdiction. Such a jurisdiction, if at all it is to be taken to exist, has to be looked for in the statute under which the authorities which function under both the Acts are constituted i.e., under the Madhya Pradesh Land Revenue and Tenancy Act.

24. From the short resume of the material provisions of the last mentioned Act given above it will be clear that the Board of Revenue is clothed with two different kinds of revisional powers. Under Section 38 an Officer not below the rank of a suba could call for and examine the record of any case decided or proceeding held by an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the order passed and as to regularity of the proceedings. If he finds that the order is not proper or legal or the proceeding is not legal and is of the opinion that the said order or proceeding should be varied, cancelled or revised he is to refer the same through his superior officer to the Board of Revenue when the case is of judicial nature and the Board of Revenue on such reference can pass such orders as it thinks fit. This power of revision on a reference is a much wider power and is exercisable with out reference to the fact whether an appeal lies to the Board against such an order or not. Power under Section 39(2) is akin to the powers of the High Court under Section 115of the Civil Procedure Code. Now under the principle already discussed when it is provided in Section 28 of the Madhya Bharat Abolition of Jagirs Act the decision of the Collector in appeal shall be final it means no more than that there shall be no further appeal. But that does not exclude any power of revision if the higher authority in the hierarchy possesses such power under the statute constituting it. On this view the powers of the Board of Revenue both under Section 38 and Section 39 would not be affected. Since under Section 38 the powers of interference are wider and include cases involving impropriety or illegality in the orders of the authority concerned the Board of Revenue will virtually be exercising appellate powers as indicated in the decision of this Court in 1957-2MPLJ 780: (AIR 1958 Madh Pra 68), Premchand v. State of M. P. In that case this Court had to consider the amplitude of the powers of the Custodian General under Section 27 of the Administration of Evacuee Property Act. The words conferring powers of revision authorised the Custodian General to call for the record of any proceedings of any subordinate authority for the purpose of satisfying himself as to the legality or propriety of the order passed by such authority and further authorised him to pass such orders thereon as he might think fit. These powers are construed by the High Court to be not less than appellate powers. If we hold that the revisional powers of the Board of Revenue are not affected we must logically hold that powers both under Sections 38 and 39 are not affected. This will lead to the result that even without any right of appeal a party will have the benefit of appellate jurisdiction of the Board. Moreover the case may pass through an officer such as a Commissioner because under Section 38 of the Madhya Bharat Land Revenue and Tenancy Act the Collector has to recommend the case to the Board through his superior officer under the Act although such officer is not contemplated at all with reference to matters under the Madhya Bharat Abolition of Jagirs Act.

25. Second consideration which seems to support the contention of the respondent is that the right with reference to which the Tehsilder is required to issue certificate of tenancy is a right conferred by the Madhya Bharat Abolition of Jagirs Act. Such right is to be conferred on an enquiry to be made by the Tehsilder. The effect of such order is that the Sub-tenant or the tenant of a subtenant of the ex Jagirdar becomes a Pacca Tenant with direct relation of tenancy with the Government. The legislature seems to be anxious to bring such matters to close early. The period of limitation for an appeal against such an order is 30 clays i.e., less than the period for an appeal under the Land Revenue and Tenancy Act. Only one appeal is provided against the order of the Tehsildar and such order is made final. The jurisdiction of Civil Court to consider the very issue is barred Such being the position it will be anomalous to bold that powers similar in scope could be exercised by somewhat circuitous process without any limitation by the very authority appeal to whom is barred. It is possible to conceive of cases where in spite of the finality of Collector's order in appeal his Successor may refer a case to the Board and the Board under Section 38 may exercise powers as wide as those in appeal and thus destroy the effect of such finality. On such a view the real object underlying these provisions of bringing the matter of settling land upon persons as Pacca Tenants will be defeated or delayed.

26. Apart from the general considerations if we examine the wording of Section 34 of the Madhya Bharat Abolition of Jagirs Act we see that Sub-section (1) of Section 34 provides distinctly for the bar of the jurisdiction of Civil Courts to settle, decide or deal with any question which various authorities under the Act are empowered to do. The words 'Civil Courts' are specifically used in this Sub-section. In Sub-section (2) there is an embargo placed upon 'any Court' to call in question an order passed by any of the authorities with reference to any matter which the authorities mentioned in Section 34 are authorised to settle, decide or deal with. If the word 'Court' was intended to mean 'Civil Court' it was unnecessary to divide the section into two separate Sub-sections. It was easy to express the bar of Civil Courts with reference to such orders in the first Sub-section itself by adding the words to the following effect 'and no order of any of the aforesaid authorities shall be called in question in any such Court'.

27. Moreover the provisions of the Act do not contain any provision for calling in question an order, made by an authority under the Act, by a Civil Court and the words 'except as otherwise provided in the Act' would become nugatory if the words 'any Court' are to be read as 'any Civil Court'. Mr. Chitale, the learned counsel for the applicant, suggested that since even the Board of Revenue and the Government which are the Highest authorities are also included amongst the authorities with reference to whose orders the provision is made in Section 34(2) the expression 'except as otherwise provided in this Act' would become meaningless at least with reference to them on the construction sought to be placed on behalf of the respondent. This contention is not correct. It is possible legally to construe the Section taking the words as they are, The words 'any Court' can by their wider import mean either a Civil Court or a Revenue Court or a Court contemplated under the Act i.e., the Court of the Tehsildar, the Collector, the Commissioner or the Board of Revenue. When therefore no challenge of the orders of the authorities mentioned in the Act is permissible anywhere all the authorities have to be specified. But to remove the possible conflict since appeals are specifically provided under Sections 28 and 29 the phrase 'except as otherwise provided in this Act' is inserted in this Sub-section

28. These considerations both apart from and on the wording of Section 34(2) ofthe Madhya Bharat Abolition of Jagirs Act induce me to hold that the words 'any Court' are neither a mistake nor does it involve any laxity on the part of the Legislature in the choice of words. The provision is purposely intended to exclude interference by any Court including a revisional Court.

29. The only thing which remains to be considered is as to the bending of the Section which describes the subject matter dealt with as 'Bar of jurisdiction of Civil Courts'.

30. It is contended on behalf of the applicant that at the most what could he said is that the use of expression 'any Court' in Section 34 (2) of the Madhya Bharat Abolition of Jagirs Act brings about certain amount of uncertainty or ambiguity as to whether Civil Court alone is meant or even other Courts are also intended. This ambiguity could be resolved by reference to the heading of the Section. In AIR 1953 S.C. 148, Naliuakhya Bysack v. Shyam Sunder, their Lordships of the Supreme Court observed with reference to a marginal note:--

'Apart from the question whether the marginal note can at all be referred to in construing the provisions of a Section of an Act, it is quite clear, on the authorities, that the marginal note cannot control the meaning of the body of the Section if the language employed therein is clear and unambiguous.'

31. In AIR 1959 SC 586, Western India Theatres Ltd. v. Municipal Corporation, Poona, their Lordships of the Supreme Court had to consider the limiting effect of a marginal note to Section 60 of the Bombay Municipal Boroughs Act (18 of 1925). The marginal note mentioned 'Power to suspend, reduce or abolish any existing tax' while the body of the section used the words 'suspend, modify or abolish any existing tax'. The question before their Lordships was whether the word 'modify' used in the body of the section has to be taken not in its wider connotation as meaning either to reduce or enhance in the limited sense as indicated by the use of the word 'reduce' in the marginal note, Their Lordships proceeded to consider this question thus:--

'In the first place, the marginal note cannot affect the construction of the language used in the body of the section if it is otherwise clear and unambiguous (see Commissioner of Income Tax, Bombay v. Ahmedbhai Umarbhai and Co., Bombay, 1950 SCR 335 : AIR 1950 SC 134 at p. 140.'

32. Their Lordships then look the aid of the legislative history of the change and other provision in Section 76 of the Act where the very word 'modify' was used and held that the wider meaning of the word 'modify' could not be cut down by reason of the use of the word 'reduce' in its place in the marginal note.

33. It is clear from these observations of their Lordships that the wider connotation of a word used in the body of the section should not be cut down by what may havebeen stated in the margin, in the legislative practice in England the marginal notes do not form part of Act and are given merely for convenience of reference.

34. Some distinction is sought to be suggested as regards a marginal note and the bending. The former, it is said, is not a part of the statute while the latter is. Whatever distinction may exist between a marginal note and a heading in the English statutes under which a marginal note is not a part of the Act while heading is a part of it such distinction may not exist in an Indian statute whereunder both may he included in the statute and be of equal significance. Crawford on Statutory Construction at page 359 (Article 207) observes :-

'Where the statute, is ambiguous, the chapter, article and section headings may also be referred to by the Court in ascertaining the intention of the legislature, although there is authority to the contrary. This latter view is, or at least can be based upon the reasoning that, since the headings are inserted by clerks or revisors, who cannot exercise legislative power, to permit reference to them in the interpretation of a statute would be to allow such clerks or revisors to encroach upon the prerogative of the legislature. This reasoning, however, cannot be applicable where the headings are inserted by the legislators when the bill is drafted or enacted, or appeared in it when it was enacted, nor when a code or revision is enacted or adopted by the legislature at one time. The best argument against permitting consideration of the various headings is that they are inserted for convenience or reference and are not therefore essential parts of the statute. Furthermore, due to the probability of inaccuracy, in most cases, very little, if any, reliance should be placed upon the headings in order to control the statute's construction.

Marginal notes, in a manner similar to headings, may also be considered, if they constitute a part of the original statute bill apparently not if they have been inserted for the sake of convenience.''

35. Even assuming that heading can be regarded as useful for affording key to any doubtful matter where the language of the provision is clear its meaning cannot be cut down by reference to what is mentioned in the heading.

36. The considerations discussed above, in my opinion, suggest that the legislature in Section 34 (2) of the Madhya Bharat Abolition of Jagirs Act intended to exclude the power of revision.

37. In AIR 1988 Cal 465, Radha Nath v. Hari Mohan, question as to competency of a revision petition against the order of District Judge in a proceeding under Sections 30 to 40 of the Bengal Municipal Act was considered in view of the provisions of Section 39-B and Section 43 of the Act. Under Section 39-B the decision of the District Judge in proceedings to set aside election is final. Under Section 43 interference with the orders passed inconnection with election matters by 'any Court' is barred. It was contended that even then the revisional jurisdiction of the High Court is not barred. Ghose and Nasim Ali JJ., held that in view of the terms of Section 39-B and Section 48 no revision under Section 115 CPC lay to the High Court.

38. Thus having regard to the frame of the Section in two distinct parts, use of the words 'any Court' in its wider connotation in Section 34 (2), use of the phrase 'except as otherwise provided in the Act', absence of any provision in the Act for calling in question the order of the authority under the Act by a Civil Court and incongruity which may result in importing revisional powers contemplated under Section 38 of the Madhya Bharat Land Revenue and Tenancy Act along with Section 39 of that Act as a logical corollary which would have the effect of defeating the object of securing speedy settlement of Pacca Tenancies it seems that the words 'any Court' in Section 34(2) of the Madhya Bharat Abolition of Jagirs Act are not intended to mean 'any Civil Court' only but include even Revenue Court and consequently powers of revision rested in the Board under Section 39 of the Act are excluded.

39. It may be suggested that if the words 'any Court' are taken to include even a Revenue Court that will have the effect of depriving the highest Court of the Revenue side of controlling the actions of the authorities under the act involving errors of jurisdiction. That may be so, but it need not be feared that no controlling authority is left to correct errors of jurisdiction. Even in spite of this provision as is interpreted by me the jurisdiction of the High Court under Article 220 or 227 of the Constitution is secure.

40. An argument may be advanced that the power of the Revenue Board to revise an order passed under Section 23 of the Madhya Bharat Abolition of Jagirs Act is saved since the phrase 'except as otherwise provided in this Act' in Section 34(2) brings in Section 28 thereof which in spite of the use of the phrase 'whose order shall be final' in that section docs not have the effect of cutting down the said revisional power.

41. This argument does not appeal to me. I grant that the phrase 'except as otherwise provided in this Act' does save the proceeding by way of appeal referred to in Section 28 from general immunity from attack as provided in the main part of Section 34(2) but the power of revision is not provided in Section 28 That power exists not by reason of anything contained in the Madhya Bharat Abolition of Jagirs Act but it exists apart from the outside that Act in consequence of the provisions contained in Sections 38 and 39 of the Madhya Bharat Land Revenue and Tenancy Act As I have observed in the foregoing discussion of the phrase 'whose order shall be final' only means that there would be no further appeal and even if we substitute what is thus meant in Section 28 still suchmodification will not by its own force bring in the revisional powers of the Board. All that it would mean is that the limiting words contained in Section 28 would not have the effect of cutting down the powers of the Revenue Board which it possesses apart from the Madhya Bharat Abolition of Jagirs Act as a superior Revenue Court constituted under the Madhya Bharat Land Revenue and Tenancy Act.

42. I would, therefore, hold that the Revenue Board was right in refusing to entertain the revision petition in this case and answer the question referred accordingly.

H.R. Krishnan, J.

43. I agree.

P.V. Dixit, C.J.

44. I regret I do not find myself in agreement with the view taken by my learned brothers. The short question that arises for determination is whether the decision of the Collector in an appeal under Section 28 of the Madhya Bharat Abolition of Jagirs Act, 1951, from an order of the Tehsildar under Section 23 of the said Act, is revisable by the Board of Revenue in the exercise of its revisional powers conferred by Section 39 of the Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950. Section 28(1) of the Abolition of Jagirs Act provides that the decision of the Collector in an appeal from an order under Section 23 shall be final. It is not disputed that the provision that the decision of the Collector shall be final only means that it would not be appealable and that it does not imply that it is not open to revision. The decisions in AIR 1916 P.C. 21; AIR 1936 P.C. 93; AIR 1948 P.C. 12 and AIR 1953 SC 357 all make it abundantly clear that, if there is no provision in the Abolition of Jagirs Act expressly prohibiting an application for revision against an order of the Collector, the decision of the Collector given under Section 28 would be revisable by the Board in the exercise of its powers under Section 39 of the M. B Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950. But the argument advanced on behalf of the opponent No. 5, and which has found favour with my learned brothers, is that Section 34 of the Abolition of Jagirs Act expressly prohibits the Board of Revenue from revising any decision of the Collector under Section 28. Section 34 is as follows,--

'34.(1) No Civil Court shall have jurisdiction to settle, decide, or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tehsildar, the Collector, the Jagir Commissioner, the Board of Revenue or the Government.

(2) Except as otherwise provided in this Act, no order of the Tehsildar, the Collector, the Jagir Commissioner or the Board of Revenue or the Government under this Act shall be called in question in any Court.'

I do not think that Section 34 has the effect contended for on behalf of the opponent No. 5. When the Board of Revenue entertains anddisposes of a revision petition against a decision of the Collector given under Section 28, there is no question of any civil court settling, deciding or dealing with any matter which, under the Abolition of Jagirs Act, is required to be settled or decided by the Tehsildar or the Collector or the Jagir Commissioner or the Board of Revenue. Thai being so, Sub-section (1) of Section 34 has no applicability here. The second Sub-section only prohibits a collateral attack against any order of the Tehsildar or the Collector or the Jagir Commissioner or the Board of Revenue or the Government under the Act. It is not a provision restricting, limiting or modifying the earlier provisions under which the validity of an order of any of the above authorities can be directly attacked or challenged. Much emphasis has been laid on the opening words of Sub-section (2), namely, 'Except as otherwise provided in this Act', to support the contention that inasmuch as the Abolition of Jagirs Act does not provide for a revision of order under Section 28 of the Collector the order is not revisable by the Board of Revenue I do not think that this is the effect of the words 'Except as otherwise provided in this Act'. The true meaning of those words is 'Except as contrarily provided in this Act' and not 'Except as expressly provided in this Act'. The word 'otherwise' has been used to distinguish' 'direct attack' from 'collateral attack' which is prohibited by Sub-section (2). There is no warrant for reading the word as meaning 'expressly'. That being so the fact that Abolition of Jagirs Act does not expressly provide for a revision against a decision of the Collector given in an appeal under Section 28 cannot be taken as implying that the revisional jurisdiction of the Board of Revenue is barred. The ambit of Section 28(1) is in no way affected in Section 34(2) and the finality that is given to the decision of the Collector is only in respect of further appeal: that finality does not exclude the revisional jurisdiction of the Board of Revenue in regard to the decision of the Collector in an appeal under Section 28. In ILR 1951 Nag. 741: (AIR 1951 Nag 443), it has been ruled that in order to bar a revision tinder Section 115 of the Civil Procedure Code, there must be in the relevant provision ...express words to that effect. Likewise, if under Section 39 of the Act of 1950 the Board has the power to revise any decision of the Collector, then the Board would be competent to revise the decision of the Collector given under Section 28 of the Abolition of Jagirs Act unless the Act expressly prohibits the exercise of revisional jurisdiction. There is no such express prohibition in the Abolition of Jagirs Act and Section 34(2) is in my opinion, not a provision prohibiting a revision under Section 39 of the Act of 1950.

45. For these reasons, I am of the opinion that the Board of Revenue erred in refusing to entertain the revision petition preferred by the petitioner Anandrao. (The petitions under Articles 226 and 227 of the Constitution came back before the Division Bench consisting of Newaskar and Krishnan JJ.which by its order dated 30th July 1962, in view of the opinion of the majority of the Judges, constituting the Full Bench, dismissed the same with costs--ED. ).


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