Nawab Singh Thakur vs State of Madhya Pradesh

Raghvendra Prasad, Member

The brief facts of the case are that the applicant was found to have encroached upon khasra numbers 538 and 539 of village Raipur. The Tahsildar recommended to the S.D.O. u/s 248 of the M.P. Land Revenue Code 1959 (hereinafter called the Code) for the ejectment of the applicant from these khasra numbers and recovery of twice the rent (Rs. 432) and imposition of a fine in the same amount. The S.D. O. accepted the recommendation of the Tahsildar. The applicant appealed to the Collector who enhanced the fine from Rs. 432 to Rs. 1,000. On a second appeal before the Additional Commissioner, Gwalior the orders of the Collector were upheld and the appeal was dismissed. This revision has been filed against the orders of the Additional Commissioner, Gwalior dated 9th October 1963 in Appeal No. 414/62-63.

Shri S.B. Mishra appeared for the applicant. Representation on behalf of the State was not considered necessary. Shri Mishra urged the same points before me which he had urged before the learned Additional Commissioner, Gwalior. He has pressed only two points before me which are as follows:

(1) The order of the S.D. O. imposing a fine of Rs. 432 without giving the applicant a show cause notice was bad in law and was against natural justice.

(2) The Collector had no authority to enhance the fine u /s 248 as the authority to impose the fine under that; section was limited to the Tahsildar and the S.D. 0.

On going through the record I find that the Tahsildar submitted his report to the S.D. 0. who approved the ejectment of the applicant and also approved the imposition of a fine of Rs. 432 as was recommended by the Tahsildar. The S.D. 0. while passing his order has mentioned that the applicant was heard. The learned Additional Commissioner has held that hearing of the applicant was sufficient compliance of the provisions of Section 248(2) of the Code and the case of the applicant was not prejudiced by not giving him a show cause notice. I am unable to agree with the reasoning of the learned Additional Commissioner. Section 248(1) of the Code authorizes a Tahsildar to eject a trespasser summarily. The power of ejectment has not been given to the S.D. 0. The Sub-Divisional Officer had no business to order ejectment of the applicant. Section 248(2) authorises the S.D. 0. to pass such orders in respect of fine as he may deem fit on reference made by the Tahsildar when the latter considers that circumstances of the case warrant imposition of a fine higher than Rs. 250 after giving the party concerned an opportunity of being heard. Section 248(2) will have to be read in the context of Section 248(1). In Section 248(1) Tahsildar has been invested with powers of summary ejectment and imposition of fine. In Sub-Section 248 (1) there is no provision that the Tahsildar will exercise his powers after giving the party concerned an opportunity of being heard. But Section 248(2) makes a specific mention of the requirement that in oases, where the quantum of fine is proposed to be imposed is more than Rs. 250, the S.D. O. will pass orders only after giving the party concerned an opportunity of being heard. This provision has been made not merely to comply with a formality but to give the party concerned a chance to defend himself before the S.D. 0. which was denied to him u /s 248(1) of the Code. In the case of Prabhu Dayal v. State 1963 Revenue Nirnaya Short Note 114 (decided on 11-2-1963.), the Board had decided that before any action can be taken u /s 248, the person against whom it is proposed to take action should be noticed and should be given an opportunity to show cause why action as proposed should not be taken against him. Mere presence of the party is not sufficient compliance of the provisions of Section 248(2) of the Code. The expression "after giving the party concerned an opportunity of being heard" will have the same meaning as has been decided by the Supreme Court in Khem Chand Vs. The Union of India (UOI )and Others, . In this decision their Lordships had held that the ''reasonable opportunity'' envisaged to the Government servants by the provision contained in Article 311(2) of the Constitution includes, (a) An opportunity to deny his guilt and establish his innocence which he can if he is told what the charges levelled against him are and the allegations on which such charges are based... (c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him etc. Natural justice demands that before any order is passed against anybody in a proceeding that person should know the charges and the penalty that is to be proposed against him and such a person should be afforded an opportunity to defend himself if he so chooses. In this case the S.D. 0. had only noted that the applicant was heard. It appears that before the applicant was heard the S.D. 0. had presumed that the charges were known to him and the penalty that the S.D. 0-was going to impose was also known to him. The learned Additional Commissioner has referred to the presence of the applicant in the Court of the Tahsildar on the dates of previous hearing. The presence of the applicant in the Court of the Tahsildar and his knowledge of the recommendation of the Tahsildar will not be enough to meet the requirement of the provisions of Section 248(2) which requires that the party should be heard by the S, D.O. May be that the applicant in this case might have known the recommendations of the Tahsildar but that is not enough. The S.D. 0. should have given the applicant a show cause notice and then alone should have passed the orders u /s 248(2) of the Code. The notice should have contained the allegations and the fine that the S.D. 0. proposed to inflict.

The second contention of the Learned Counsel for the applicant was that the Collector could not enhance the fine imposed by the S.D. O. I find there is much force in this argument. u/s 248 of the Code the Collector has no authority to impose fine. The learned Additional Commissioner has defended the order of the Collector on the ground that an appellate authority had all the powers of the original Court and it is not precluded from passing any order which could be passed by the original Court. He has relied on 1963 Revenue Nirnaya 295. In this case the appellate authority had passed orders in favour of the Appellant. In the instant case the appellate authority passed orders against the Appellant when there was no cross-appeal by the Respondent. The powers which an appellate authority can exercise under the Code are detailed u /s 49(3) of the Code. According to this section the appellate authority may confirm, vary or reverse the order appealed against. The learned Collector had neither confirmed the order nor had reversed the order. He has only varied it. The question is whether the appellate authority could enhance a penalty imposed by a lower Court on the Appellant even though there is no cross-appeal by the Respondent. My own view is that here the word "vary" does not give the appellate Court the authority to change the orders of the lower Court in such a manner that instead of being favorable to the Appellant they may be more unfavorable to him. In my view the Collector could not have enhanced the penalty imposed by the S.D. 0. u /s 248(2) by virtue of the powers conferred on him u /s 49(3) of the Code.

For the reasons stated above, the orders of the S.D. 0. and the learned Additional Commissioner are not sustainable. These orders are, therefore, set aside and the case is remanded to the S.D. 0. for proceeding against the applicant after giving him a show cause notice. He may then pass orders according to law.