Bhura vs Gulabchand

Dixit, J.—The circumstances leading to this petition under Art. 227 of the Constitution of India are that on 10th March, 1949, the petitioner Bhura presented an application under S. 158 of the Qanoon Mal Gwalior before the Saba of Mandsaur complaining that the opponents had removed some boundary pillars standing between the two Mouzas of the parties and had included two Biswas of land forming a part of the applicant''s land in their own Mouza, and praying for the settlement of this boundary dispute and the restoration of the land encroached upon. The Suba dismissed this application on 3rd November, 1950. The petitioner then went up in appeal before the Director of Land Records who remanded the case for further inquiry. In the inquiry after the remand, the Collector passed an order on 20th December, 1952, allowing the application of the petitioner. The Suba found that the petitioner''s land had been encroached upon by the opponents and that the opponents had also removed the boundary pillars. He decided the boundary dispute in favour of the petitioner and imposed a fine of Rs. 10/- on the opponents under S. 180 of the Qanoon Mal Gwalior. Thereafter the opponents preferred an appeal before the Revenue Commissioner, Southern Division, Indore. This appeal was purported to be under S. 35 (2) of the Madhya Bharat Land Revenue and Tenancy Act (Act No. 66 of 1950) which had in the meantime come into force. The Revenue Commissioner set aside the decision of the Suba and rejected the petitioner''s application under S. 158 of the Qanoon Mal Gwalior. The petitioner then preferred an appeal before the Board of Revenue. The Board treated the appeal as a revision and on 10th December, 1953, upheld the order of the Revenue Commissioner. The Board rejected the contention advanced on behalf of the petitioner that the Revenue Commissioner bad no jurisdiction to entertain and determine the appeal preferred to him against the decision of Collector under S. 158 of the Qanoon Mal Gwalior. The petitioner has now approached to this Court under Art. 227 of the Constitution of India.

The argument of Mr. Sanghi, learned counsel for the applicant, was that under S. 160 and S. 186 of the Qanoon Mal Gwalior, an appeal against an order of the Suba in a boundary dispute or with regard to the removal of the boundary makes lay before the Director of Land Records; that the Madhya Bharat Land Revenue and Tenancy Act, which came into force in 1950, repealed the Qanoon Mal Gwalior only to the extent specified in Schedule No. 1 to the Act; that the repeal did not in any way affect Ss. 158, 160 and 186 of the Qanoon Mal Gwalior which continued to be in force even after the enactment of the Madhya Bharat Land Revenue and Tenancy Act, and, therefore, the order passed by the Suba on 20th December 1952, was appealable in accordance with the provision of S. 160 or S. 186 and under these provisions the authority competent to entertain and determine an appeal was the Director of Land Records; that S. 35 of the Madhya Bharat Land Revenue and Tenancy Act made a provision for appeals against an order passed under that Act or the rules made thereunder; and that the order passed by the Suba on 20th December, 1952, not being one made under the Madhya Bharat Land Revenue and Tenancy Act, no appeal against that order lay before the Revenue Commissioner under S. 35 (2) of the Act. In reply, Mr. Pande, learned counsel for the opponents, said that under S. 2 (1) of the Madhya Bharat Land Revenue and Tenancy Act all pending cases had to be decided according to the provisions of the Acts, laws, rules or orders in force prior to the commencement of that Act, and that as before the coming into force of the Madhya Bharat Land Revenue and Tenancy Act the Madhya Bharat Land Revenue Administration Ordinance, Samvat 2005, (Ordinance No. 39 of 1949) was in force, and as S. 22 of the Ordinance provided for an appeal from the decision of the Suba under the Ordinance to the Commissioner, therefore, the appeal preferred by the opponents before the Revenue Commissioner, Southern Division, Indore, was in order.

In our opinion, the contention put forward by Mr. Sanghi, learned counsel for the petitioner, must be given effect to. From the repeal and saving section, namely S. 3 of the Madhya Bharat Land Revenue and Tenancy Act and Schedule 1, it is plain that on 20th December, 1952, Ss. 158, 160 and 186 of the Qanoon Mal Gwalior were in force and the order made by the Collector deciding the boundary dispute between the parties was one under S. 158 of the Qanoon Mal Gwalior. That being so, the order was appealable to the authority prescribed in Ss. 160 and 186 of the Qanoon Mal Gwalior S. 35 of the Act provides for an appeal from an order passed under the Madhya Bharat Land Revenue and Tenancy Act or the rules made thereunder. It does not deal with appeals against decisions or orders under other Acts which were repealed or preserved by the Madhya Bharat Land Revenue and Tenancy Act. On the wording of S. 35 of the Act, the order made by the Collector on 20th December, 1952, which was admittedly under S. 158 of the Qanoon Mal Gwalior, was clearly not appealable to the Revenue Commissioner. The Ordinance No. 39 of 1949 on which the learned counsel for the opponents placed reliance has no relevancy whatever here. That Ordinance deals with the establishment, constitution and appointment of various revenue authorities and defines their powers. It does not contain any provision regulating the rights relating to agricultural properties, dealt with by the Qanoon Mal Gwalior or other revenue law. Nor did it repeal the Qanoon Mal Gwalior. That the Ordinance did not repeal Qanoon Mal Gwalior is obvious enough from the fact that the Qanoon Mal Gwalior was repealed by the subsequent enactment, namely, Madhya Bharat Land Revenue and Tenancy Act and to the extent specified in Schedule-1 to the Act. It cannot, therefore, be contended with any degree of force that cases pending at the time when the Madhya Bharat Land Revenue and Tenancy Act came into force, bad to be decided according to the provision contained with regard to appeals in the Ordinance No. 39 of 1949, or that the order made by the Collector on 20th December 1952, was an order made under that Ordinance, In our opinion, the appeal preferred by the opponents before the Revenue Commissioner was clearly incompetent. That being so, the decisions of the Board of Revenue and the Revenue Commissioner must be set aside and the order dated 20th December, 1952, passed by the Collector must be restored. Order accordingly. In the circumstances of the case, there will be no order as to costs of this petition.

Samvatsar, J.

I agree.