Gokal vs Smt. Shakuntla Devi etc.

R.S. Pathak, C.J.—This case was filed originally as a second appeal u/s 104 of the Himachal Pradesh Abolition of Big Landed Estates and land Reforms Act, 1953. It is prayed that in case it is found that a second appeal does not lie the case be treated as a revision petition u/s 105 of the Act.

The relevant facts are these. An application was made by the tenant for the acquisition of proprietary rights of the landowner u/s 11(1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. That application was dismissed by the Compensation Officer. Against the order of dismissal, the tenant appealed to the learned District Judge. During the pendency of the appeal the tenant applied to the learned District Judge for a decision on the question whether one of the landowners was deaf and dumb and mentally retarded. The application has been dismissed by the learned District Judge by his order dated August 4, 1975. Against that order the tenant has instituted the present proceeding in this Court. The appeal is still pending before the learned District Judge.

The question is whether the present proceeding is maintainable, viewed either as an appeal or as a revision petition.

Section 104 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act provides:

An appeal shall lie to the District Judge from any order of the Compensation Officer, and a second appeal from the decision of the District Judge shall lie to the Judicial Commissioner.

Section 105 provides:

The Judicial Commissioner may for the purpose of satisfying himself that the order of the District Judge deciding the appeal u/s 104 was according to law, call for the record and pass such order with respect to the case as he thinks fit.

As the position obtains today the expression "Judicial Commissioner" in the aforesaid sections must be read as referring to the High Court.

u/s 104 an order made by the Compensation Officer is open to appeal before the District Judge, and the decision of the District Judge is open to second appeal before the High Court. Plainly, the expression "decision" of the District Judge must mean the decision disposing of the appeal filed before him. That is apparent from a reading of Section 104 as a whole. In the present case the Compensation Officer dismissed the tenant''s application u/s 11(1) of the Act. Against that order of dismissal an appeal lay to the District Judge. When that appeal is decided by the District Judge a second appeal will lie to the High Court. The "decision" of the District Judge refers to the disposal of the appeal as a whole. It does not refer to an order made on an interlocutory application during the pendency of the appeal, and therefore, no second appeal would lie from such an order. In my opinion, the present proceeding in this Court cannot be sustained as a second appeal.

It may now be examined whether the present proceeding can be treated as a revision petition u/s 105 of the Act. On the plain terms of that provision, it is clear that the High Court exercises its revisional jurisdiction for the purpose of satisfying itself "that the order of the District Judge deciding the appeal u/s 104 of the Act" is according to law. In the present case, the appeal filed u/s 104 is still pending before the learned District Judge. So long as the appeal is not disposed of by him this Court cannot invoke its revisional jurisdiction u/s 105 of the Act. I, therefore, hold that the present proceeding cannot be considered as a revision petition maintainable u/s 105 of the Act. In the result, whether the present proceeding be treated as an appeal or as a revision petition, it is not maintainable and is, therefore, rejected.