Rajaram v. Rani Jamit Kunwar

Pandey J.:-

This appeal under clause 10 of the Letters Patent arises out of a decision of the learned single Judge (Kotval J.) who, on a petition made by Rani Jamit Kunwar Devi (respondent No. 1) under Article 226 of the Consti­tution, quashed an order dated 19th June 1952 passed by the Additional Deputy Commissioner, Durg (respondent No. 2) and another affirming order dated 30th March 1955 passed in appeal by the Board of Revenue (respondent No. 3).

2. The facts of the case, briefly stated, are these. A -13-4 share of village Mardel together with 46.72 acres of khudkasht land in dispute was owned by one Chhabilal who, by a deed dated 29th July 1941, mortgaged with possession the village share along with the khudkasht land to Gaurishanker and Rajaram (appellant No. 1). Thereafter, on 7th April 1945, Chhabilal sold the village share to Rani Jamit Kunwar Devi who undertook to satisfy the mortgage out of the consideration payable for the sale.

3. The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter called the Abolition Act) came into force on 31st March 1951. Pursuant to the provisions of that Act, proceedings were started for determination of compensation payable to the ex-proprietors of village Mardel. On 20th March 1952, the Compensation Officer reported on the strength of the sale deed dated 7tb April 1945 that the disputed khudkasht land was the home farm of Rani Jamit Kunwar Devi and that it was wrongly recorded in the name of Gaurishanker. Thereupon, on 26th March 1952, the Additional Deputy Commissioner, Durg, passed the following order:

"The provisional assessment of home farm land as proposed by the C. C. O., Balod is confirmed and the ex-proprietor is deemed a malik-makbuza in respect of the same."

However, on 19th June 1952, he reviewed that order and held:

"Gaurishanker is recorded as an occupancy tenant in the jamabandig of 1950-51 though in the remarks column it is shown that the non-applicant is a Sikmi Bilalagan. I am of opinion that the Khasra numbers in question as detailed in the copy of jamabandi for 1950-51 filed in the case (Ex. P-22) should continue to be left with the applicant Gaurishanker in occupancy right and should be deducted from the homefarm land of the ex-proprietor. My previous order dated 26-3-1952 is modified accordingly."

Rani Jamit Kunwar Devi appealed against that order to the Board of Revenue which, by its order dated 30th March 1955, dismissed the appeal.

4. The learned single Judge held that the order passed by the Additional Deputy Commissioner, Durg, in review of his earlier order was without jurisdic­tion and that, even on merits, Gaurishanker and Rajaram had no case. The view taken by the learned single Judge has been challenged in this appeal.

5. The first question which we have to consider is whether the Additional Deputy Commissioner, Durg, had jurisdiction to review his order dated 26th March 1952. Sub-section (3) of section 15 of the Abolition Act is relied on as conferring on the Additional Deputy Commissioner the requisite power of review. As the learned single Judge pointed out, that power could be exercised only in regard to a decision given or a record made under section 13 of the Abolition Act which dealt mainly with compensation payable to ex-proprietors. It was no doubt also provided therein that the Compensation Officer had to record

"in a statement in the prescribed form, the details of the land which shall vest in the State Government after its acquisition in lieu of the payment of such compen­sation and such other details as may be prescribed"

. It was implicit in that provision that any dispute between the State Government and an ex-proprietor about land vesting in the State had to be decided. It did not, however, give any power to the Compensation Officer to decide any dispute between an ex-proprietor and a third person about title to land not vesting in the State. Nor could a third person, who was not a party to the proceedings, be bound by such a decision. That being so, in this case the Additional Deputy Commissioner, Durg, had no jurisdiction to decide whether the disputed khudkasht land had to be deemed to be malik-makbuza of Rani Jamit Kunwar Devi or treated as occupancy land of Gaurisbanker and Rajaram. Actually, the orders dated 26th March 1952 and 19th June 1952 were passed in proceedings for fixation of land revenue on malik-makbuza taken under section 42 of the Abolition Act. In our opinion, the earlier order dated 26th March 1952 could not, therefore, be reviewed under sub-section (3) of section 15 of the Abolition Act.

6. We do not find any other provision in the Abolition Act under which the order dated 26th March 1952 passed under section 42 of the Abolition Act could be reviewed. We were, however, referred to the general power of review vesting in a revenue officer under sub-section (1) of section 40 of the Central Provinces Land Revenue Act, 1917. In view of sub-section (3) of section 5 of that Act, an Additional Deputy 'Commissioner was, for purposes of the Land Revenue Act 119 an officer subordinate to the Deputy Commissioner of the district. That being so, he could not, in view of the first proviso to section 40 of the Act, review the order passed by him on 26th March 1952 without obtaining sanction of the Deputy Commissioner. Since such sanction was admittedly not obtained, the Additional Deputy Commissioner, Durg, could not review his earlier order. The reason is this. Where power to review has been given by statute subject to certain limitations, that power cannot be exercised in disregard of those limitations because the provision is in itself definitive of the limits within which a review is permitted.

7. It was next urged that, being a revenue officer and exercising judicial or quasi- judicial functions, the Additional Deputy Commissioner had inherent power to review his earlier order. In Lola Pryag lal v. Jai Narayan Singh, ILR 22 Cal. 419 at p. 424 the following observations were made;

"I cannot admit that such a power is inherent in every Judicial or Revenue Officer. It is a power expressly given by law to Judicial Officers under certain conditions, and there­fore, it cannot be assumed that when not so given it is inherent in every officer."

Wanchoo C. J. and Dave J. observed in Nathulal v. Collector, Sawai Jaipur, AIR 1962 Raj. 36:

"It is a well-settled principle of law that when a matter is finally disposed of by a judicial or guest-judicial authority, that authority in the absence of any statutory provi­sion becomes functus officio end is left with no authority to re-hear and give a fresh decision unless such authority is given to it by law.......... Thus, it is clear that apart from correcting clerical mistakes or errors arising from an accidental slip or omission, there is no inherent power to review a final decision given on merits inter partee."

The learned Judges relied upon Baijnath Ram Goenka v. Nand Kumar Singh, 40 I A 54 Anantharaju v. Appu Hegade, AIR 1919 Mad. 244 Zamindar of Khallikote v. Beero Pollai, ILR 59 Mad. 825 (F B) = AIR 1933 Mad. 531 and M. J. Kutinha v. Mrs. Nalhal Pinto Bai, AIR 1941 Mad. 272. They also subsequently affirmed the view taken by them in Nathulal's case, AIR 1962 Raj. 36 in Jaikishan v. State of Rajasthan, AIR 1958 Raj. 56. In view of these authorities, it must be regarded as clearly established that in judicial and guasi judicial proceedings there is no inherent power of review. We are, therefore, in agreement with the learned single Judge that the order dated 19th June 1952, which reviewed the earlier order, was without jurisdiction.

8. The claim that Gaurishanker and Rajaram were occupancy tenants of the khudkasht land from 1941 does not bear examination. It is not their case that they acquired occupancy right either by contract or by operation of law. Having entered into possession of the land as usufructuary mortgagees on 29th July 1941, they could not be allowed to claim or acquire any right inconsistent with that position. It was, however, brought to our notice that their names were recorded in the annual papers as occupancy tenants. That did not materially alter the position. As pointed out by the learned single Judge on the authority of Rahmatullah Khan v. Mahabirsingh, 1956 NLJ 1 = AIR 1956 Nag. 132=I L R 1955 Nag. 983 an erroneous recording of khudkasht land as occupancy land would not alter its real character.

9. Assuming that Gaurishanker and Rajaram had acquired against the ex-proprietor any right to the khudkasht land, the dispute between them could not be adjudicated upon in these proceedings. As we have indicated earlier, it is open to the appellants to establish their right to the land in the proper Court unaffected by these proceedings.

10. The result is that the appeal, which is devoid of substance, fails and is dismissed. The appellants shall bear their own costs and pay those of respon­dent No. 1 in this Court. Costs before the learned single Judge as ordered by him. Counsel's fee here Rs. 100.

Appeal dismissed.