Dayawanti vs Lachman Das and Others

S. Murtaza Fazl Ali, J.—This is an application for an appropriate writ in order to quash an order of the Financial Commissioner setting aside

the orders of the Tehsildar and the Collector passed under the provisions of Section 4(1) of the Common Lands (Regulation) Act, 1956.

It appears that the non-applicants had filed an application for a writ in this Court against the orders of the Tehsildar, but this Court refused to

interfere and the order of the Tehsildar, was thus upheld, The non-applicants then moved the Commissioner in revision who recommended to the

Financial Commissioner that the orders of the Tehsildar and the Collector should be set aside. The Financial Commissioner accepting the reference

quashed the orders of the tehsildar and the Collector and remanded the case to the Tehsildar for fresh orders in accordance with law. The only

ground on which the Financial Commissioner quashed the orders of the Tehsildar and the Collector was that in his view the Tehsildar was not

empowered under the provisions of Section 4 of the Common Lands (Regulation) Act, 1956 to get an enquiry made by the Naib Tehsildar who

was not a revenue officer. In this connection, the learned Financial Commissioner has observed as follows in his judgment:

Section 4 of the Common Lands Act, 1956 reads that if a right of way is obstructed, a Revenue Officer may suo motu or on the application of the

patty interested in the removal of such obstruction enquire into such obstruction and after such enquiry as he deems necessary may pass

appropriated orders. This Section read with Section 15 of the same Act explains the classes of Revenue Officers who can dispose of cases u/s 4.

The Financial Commissioner, the Commissioner, and the Collector have been defined as Revenue Officers in Section 15. Section 19A of the Land

Revenue Act contemplates that a Revenue Officer may send any case to any officer subordinate to him for enquiry and report. Such Officer to

whom the case has been sent for enquiry should also be a revenue Officer. The Revenue Officer for purposes of Section 4 of the Common Lands

(Regulation) Act, 1956, would mean a Tehsildar or the revenue officers of the classes mentioned in Section 15 of the Act. This means that a

Tehsildar cannot send the case to the Naib Tehsildar for enquiry and report and then pass orders on such report without making an enquiry

himself.

In my opinion, the learned Financial Commissioner has placed a grossly erroneous interpretation on Section 4 of the Common Lands (Regulation)

Act, of 1956. Section 4(1) of the Common Lands (Regulation) Act, 1956 runs as follows:

Where an inhabitant of a village is denied or obstructed in, the lawful exercise of his right of user as provided in Section 3, or where any person has

taken possession of or brought under cultivation or otherwise encroached upon any road, street, lane, path, channel, drain, well, tank, or any

source of water supply, a Revenue Officer may on his own motion or on the application of any person interested and after such enquiry as may be

deemed necessary.

An analysis of this Sub-section would clearly show that:

i. A revenue officer may pass any orders under various clauses of this Section either on his own motion or on the application of any person

interested,

ii. That this order should be passed after an enquiry which is made by the officer as he deems necessary.

It is manifest that this Sub-section does not lay down any limitation on the part of a Revenue Officer to hold an enquiry in a particular manner or

by a particular person. In fact, the words ""deemed necessary"" clearly imply that an officer has been given a wide discretion in holding the enquiry.

Thus if the Tehsildar instead of holding the enquiry himself gets the enquiry held by some other person and then passes the order on the basis of

such an enquiry, he acts within the ambit of time provisions of Sub-section (1) of Section 4 of the Common Lands (Regulation) Act, 1956. There is

nothing in this Sub-section to show that the Tehsildar cannot get an enquiry made by somebody else or to show that if he orders the enquiry to be

made by an officer, it must be a revenue officer. These limitations appear to have been imported into the section by the Financial Commissioner by

invoking Section 19A of the Land Revenue Act, which, however, does not apply to the present case, when the Tehsildar is acting under Sub-

section (1) of Section 4 of the Act which has got separate and distinct provisions altogether. There is absolutely no room for invoking Section 19A

at all.

The Advocate General contended that in view of Sub-section (4) of Section 15 which provides that the Collector and the Financial

Commissioner would exercise powers of the revenue officers and haying further regard to Sub-section (e) of Section 2, the enquiry contemplated

by Section 4 of the Act, could only be held by a revenue officer and not by any person who is not a revenue officer. I am unable to agree with this

contention. All that Section 4 requires is that the order should be made by the Tehsildar. As regards the making of the enquiry, this Section

authorises the Tehsildar to make the enquiry either himself or as he deems necessary. If the Tehsildar in the present case, thought it necessary to

get the enquiry made by the Naib Tehsildar, he did not act beyond the powers conferred on him by Section 4 of the Act.

Mr. Advocate General tried to argue on the analogy of Section 202 of the Code of Criminal Procedure that certain restrictions must be read as

implied in Section 4 of the Act. In fact Section 202, Code of Criminal Procedure runs thus:

Any magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him u/s 192,

may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained

against, and either inquire into the case himself or, if he is a Magistrate other than a magistrate of the third class, direct an inquiry or investigation to

be made by any magistrate subordinate to him or by a police officer or by such other person as he thinks fit, for the purpose of ascertaining the

truth or falsehood of the complaint....

In my opinion, this Section confers narrower powers on the magistrate than Section 4 of the Common Lands (Regulation) Act, 1956 on a

Tehsildar with respect to the scope of the enquiry to be made by him. Moreover, it is difficult to accept the contention that interpretation of Section

4 of the Act should be given with respect to interpretation of some other Act with a different purpose and couched in a different language.

Lastly Mr. Advocate General, drew my attention to Section 19A of the Land Revenue Act, which reads as under:

A Revenue officer may refer a case which ho is empowered to dispose of under this Act to Anr. Revenue Officer subordinate to him for enquiry

and report and may decide the case upon such enquiry and report.

The contention is that whereas Section 19A of the Land Revenue Act, specifically authorises a Revenue Officer to hold an enquiry by an officer

subordinate to him, no such authority has been given to the Tehsildar u/s 4(1) of the Common Lands (Regulation) Act. This contention also does

not appear to be tenable. As I have already observed, the words ""As may be deemed necessary"" are clear enough to authorise a Tehsildar to

make any enquiry in his discretion and Section 19A of the Land Revenue Act does not come into the picture at all. For these reasons, therefore, I

am clearly of the opinion that the Financial Commissioner on a patently erroneous view of law regarding the interpretation of Section 4 of the

Common Lands (Regulation) Act held that the Tehsildar had no jurisdiction to pass the orders that he did.

For these reasons, therefore, the application is allowed and the order of the Financial Commissioner dated 21-2-1963 is quashed by a writ of

certiorari. The Petitioner will be entitled to costs assessed at Rs. 100/- as against Respondent No. 1 only.