Mangal Prasad Patel and Another vs Draupadi Patel

K.S. Raghupathi, Member

This is an application invoking the powers of the Board of Revenue to review the decision taken on 28 March 1977 in Appeal Case No. 43 of 1973.

After hearing the learned Counsel for the parties I am satisfied that the decision of 28 March 1977 in Appeal Case No. 43 of 1973 must be vacated. It is accordingly vacated and the present order passed in its place.

Rule 32(2)(e) of the Orissa Merged Territories (Village Offices Abolition) Act is similar to Rule 20(e) of the Orissa Offices of Village Police (Abolition) Act. I had held in Sashidar Bag v. Sugri Dehuri V.P. Rvn. Case No. 6 of 1977, that

In measures of land reforms, such as the resumption and settlement of jagir lands, there is something more than the interests of private parties which is involved. It has to be ensured in passing an order that the legislative intent is not frustrated and that the interests of the State in whom the lands have vested are not affected. It is for this reason that it has been provided in Clause (e) of Rule 20 that a final order in appeal should be passed. Therefore if after a reasonable opportunity has been given to the parties to be heard the Appellant does not address any argument the Collector is bound to go through the materials on record and the order of the Tahsildar and decide the case on the merits.

It is also reasonable, in cases which are not heard on the spot but in the headquarters of the district, to show accommodation to parties on days when they are actually engaged in cultivation. It is a different matter with cases which require a local enquiry in regard to facts of actual cultivating possession or relationship of landlord and tenant. In such cases it would be desirable to hold the enquiry preferably during the agricultural season when it is easy to verify facts on the field.

It is a matter of considerable satisfaction to find that their lordships of the Supreme Court had held in Vajesingh Salambhai Naik and Others Vs. State of Gujarat and Another, , in a somewhat similar case arising out of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, that

On a consideration of the language of Section 17(1) of the Jagirs Abolition Act and in the context'' of Section 20 of the Jagirs Abolition Act we are of the opinion that it is obligatory on the part of the Tribunal to decide an appeal on merits even though there is default in the appearance of the Appellants and to record its decision regarding the merits of the appeal. If an appeal is dismissed for want of prosecution it cannot be said that the Tribunal has ''decided the appeal'' and ''recorded its decision'' within the meaning of Section 17 of the Jagirs Abolition Act. It cannot be supposed that the legislature intended by the word ''decide'' in Section 17(1) to mean ''dispose of the appeal'' or to put an end to the appeal''. It is important to notice that Section 20 of the Jagirs Abolition Act makes a decision of the Tribunal in appeal as final and conclusive and not to be questioned in any suit or proceeding in any Court. In the context of Section 20 and in view of the express language of Section 17(1) of the Jagirs Abolition Act we are of opinion that the Tribunal has no power to dismiss an appeal for non-prosecution but it is obligatory in its part to decide the appeal on merits and to record its decision even though there is default on the part of the Appellant to appear in the appeal.

I would agree that it was an error on the part of the learned Collector to have dismissed his Review Appeal No. 44 of 1971 when the Bhogra Appeal could not be dismissed for the failure of the Appellant to appear.

There is an objection raised by Mr. Harihar Patel that the Second Appeal to the Board of Revenue is against the order of the Collector declined to restore the case before him and not against the earlier order of dismissal for failure of the Appellant to appear. It is pointed out by him that it is not open to the Board of Revenue to allow the Appellant to amend his memorandum at this stage.

It would frustrate the intent of Sections 13(1) and 13(2) and be a negation of justice if, notwithstanding the decision of the Board of Revenue that it was not open to the appellate authority to dismiss a case for non-appearance of parties, it were to be held that the order declining to restore the case is not one passed under the Orissa Merged Territories (Village Offices Abolition) Act, 1963. I would accordingly direct the learned Collector to pass a final order in appeal after going through the materials on record. It is open to him, if an application to that effect is filed before him promptly, to give a reasonable opportunity to the parties to be heard.

Ordered accordingly.