31. Conferral of status of Courts on Board and Revenue Officers.

- The Board of a Revenue Officer, while exercising J power under this Code or any other enactment for the time being L in force to enquire into or to decide any question arising for g determination between the State Government and any person or m t between parties to any proceedings, shall be a Revenue Court. St i COMMENTARY
SYNOPSIS I i)
1

1. General interpretation.-! 1] The section confers the status of a Court on a Revenue Officer, exercising powers under this Code or any other enactment for the time being in force, in the matter of (i) enquiry into or (ii)deciding any question arising for determination, between the State Government and any person or between

1. 2. 3. 4. 5.

General interpretation. Revenue Courts are Courts. Further procedure. Exclusion of time. General.

'1

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parties to any proceedings. [2J It is not enough to say that a particular officer shall be a 'Court' unless he possesses all the attributes of a Court. [3] There have been cases in which the provisions of this section have been examined by the High Court and the High Court has decide that the Revenue Courts are Courts. 2. Revenue Courts are Courts.-! 1] The Revenue Courts do not me within the purview of Tribunals on the standards laid down by H court [AIR 1979 MP 21] and by the Supreme Court in AIR 1969. H gC 1335. A court is distinguished from quasi judicial Tribunal is charged with a duty to decide disputes in a judicial manner and H declare the rights of parties in a definitive judgment. To decide in J judicial manner involves that parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof 0f it. It imports an obligation on the part of the authority to decide the matter on a consideration of the evidence in accordance with law. ^ When a question, therefore, arises as to whether an authority created by an Act is a court as distinguished from quasi judicial tribunal, what !% has to be decided is whether having regard to the provisions of the Act, !?| jt possesses all the attributes of a court. In this connection the || decisions of the Supreme Court in Bralnandan Sinha v. Jyoti Naravan H [AIR_] 956 SC 661. Vlrindar Kumar v. The State of Punjab fAIR 1956 SC I 153] and G. Nageshara Rao v. A.P.S.R.T. Corpn. fAIR f559 SC 1531 ^ may be referred. Looked in this background and having regard to the |)g provisions of the M.P.Land Revenue Code, 1959 the only conclusion

'1

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that can be drawn is that the revenue courts possess all the attributes of a court and that they arg also conferred status of courts by virtue of Section 31 of the Code.uuenerai Mines and Quarries v. Kartar Singh, ^ 1992 RN 181 (HC). : Si& [2] Section 31 of the M.P. Land Revenue Code, 1959, confers status Bin of Courts on the Revenue Board and the Revenue Officers. It provides | H that the Board or the Revenue Officer, while exercising power under 1 this Code or any other enactment for the time being in force to enquire * into or to decide any question arising for determination between the it State Government and any person or between parties to any proceedings, shall be a Revenue Court. Section 32 of the Code provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Section 33 of the Code states that subject to the provisions of Section 132 and 133 of the Code of Civil Procedure, 1908, and to rules made under Section 41, every Revenue Officer acting as a Revenue Court shall have power to take evidence, to summon any I person whose attendance he considers necessary either to be ex- 1 amined as a party or to give evidence as a witness or to produce any 1 document for the purposes of any inquiry or case arising under this Code or any other enactment for the time being in force. Section 43 of the Code further provides that unless otherwise expressly provided in this Code, the procedure laid down in the Code of Civil Procedure, I 1908 shall, so far as may be, be followed in all proceedings under this | Code. Further on, we may note section 55 of the Code, which provides that for avoidance of doubt it is hereby declared that save as otherwise I expressly provided in this Code, the provisions of this Chapter shall apply to (a) all orders passed by any Revenue Officer before the date of coming into force of this Code and against which no appeal or revision proceedings are pending before such date; and (b) all proceedings before Revenue Officers, notwithstanding j ^ they were instituted or commenced or arose out of Proceed?1*! instituted or commenced before the coming into force 6fJl Code. Thus, the said provisions not only constitute Revenue OfficersH full-fledged Courts, which would be governed by the special provisos of the M.P. Land Revenue Code, 1959, and in the absence of I provisions, they are to be governed by the Code of Civil ProcecW* 1908, if they do not come in conflict with the former. Dangoj^^ Deshrqj, 1973 MPLJ 796=1973 JLJ 768 (HC)(DB). [3] Stating the essential characteristics of a Court as distinguish^! from a tribunal exercising quasi-judicial function, it has been observe that what distinguishes a Court form a quasi-judicial tribunal is tw' it is charged with a duly to decide disputes in a judicial manner declare the rights of parties in a definitive judgment. To decide bi- f judicial manner involves that parties are entitled as a matter of risk ( to be heard in support of their claim and to adduce evidence in pr<w i of it. And it also imports an obligation on the part of the authority*! decide the matter on a consideration of the evidence in accordant} with law. When a question, therefore,

arises as to whether an authors] created by an Act is a Court LArtu A-quasi-judiciai! Tribunal, what has to be as distinguished from decided is whether having regard to the provisions of the Act, it possesses all the attributes of a Court. Befoi* i it can be held that the proceedings before an officer fall within secticjj 195(l)(b) of the Code of Criminal Procedure, it must be shown not merely that the proceedings are judicial in character but further that! the officer is acting as a Court in respect thereof. Shri V.K. Satyaiodl v. State of Punjab, AIR 1956 SC 153. [4] The word court has not been defined in this Code nor it Is I defined ^in the General Clauses Act. Similarly, definition of Court if section 3 of Evidence Act is not exhaustive; but is framed only for the purposes of that Act and is not to be extended where such an extension is not warranted. It is however clear that in order to constitute a Court in the strict L sense of the term an essential condition is that the Court should have,! apart from having some of the trappings of a judicial tribunal power give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronoiffl cement. Coke Littleton and Stroud defined the word Court as the pi30*; where justice is judicially administered. According to Stephen, Jj every Court there must be at least three constituent parts- the acW^ reus and judex; the actor or the plaintiff, who complains of an done: reus, or defendant, who is called upon to make satisfactiogjj it; and the judex or judicial power, which is to examine the truth o* fact and to determine the law arising upon that fact and if any Wm appears to have been done, to ascertain and by its officers to |pH the remedy.

The pronouncement of a definitive judgment is, thus, considered the essential sine qua non of a Court and unless and until a binding nd authoritative judgment can be pronounced by a person or body of ersons it cannot be predicted that he or they constitute a Court. grajnandan Sinha v. Jyotinarayan, AIR 1956 SC 66=(1955) 2 SCR 955: See also Gulpalli Nageswarrao v. State of Andhra Pradesh, AIR 1959 SC 308. [5J A Revenue Court works according to thh law. The Constitution provides for the rule of law, and the revenue Courts have to work under }[, But because the jurisdiction of the revenue Courts is limited and not so wide as that of the civil Courts, and the purpose of the revenue Courts is different, there is some difference in their procedure. The I principles of natural justice fully apply to them. It is necessary to follow I the prescribed procedure and provisions of law, but there should not be unnecessary delay. AIR 1957 SC 882 relied on. 1973 RN 591. [6] Order passed by the Board of Revenue or any other Revenue Officer either under the Code or any other enactment, it is an order of the Revenue Court. 1988 RN 376.

[7] Revenue officers acting under the Code are revenue Courts, principle of resjudicata under S. 11 CPC apply to such proceedings.

2000JULIS*

Court under the section. He is protected under Section 3 of the Judges (Protection) Act, 1985, he being Judge under S.2 of the said

[7] Order passed by Tahsildar under the Code. He acts as Revenue

Act. He cannot be prosecuted and criminal complaint against him is liable to be dismissed.^Omprakash v. Swjansingh, 2004 RN 31 (HC). 3. Further procedure.- In a case initiated and order passed before the coming into force of Code, further procedure would be governed by the Code. The procedure prescribed by the Code of Civil Procedure too applies. Dangalia v. Deshrqj, 1973 MPLJ 796=1973 JLJ 768 (HC){DB). 4. Exclusion of time.- Time spent in proceedings before revenue courts are to be excluded while computing limitation for civil suit. General Mines and Quarries v. Kartar Singh, 1992 RN 181 (HC). 5. General.-! 1] It is clear by proviso to section 37 of the Code that normally counsels fees cannot be awarded in revenue cases or proceedings but if revenue officer feels necessary to award such fees then he will have to give reasons in support of his order, 1971 RN 70 relied on. 1984 RN 367. [2] The Board of Revenue is only a revenue Court. It cannot consider the question that a particular land should be settled on some person only; the administrative revenue officers can consider this question. 1973 RN 589. 1. General interpretation.-! 1] The section is analogous to S.15] of the Code of Civil Procedure, 1908. [2] There are two situations in which inherent powers may be used, I (i) where the ends of justice require and (ii) where exercise of power B becomes essential for preventing the abuse of the process of the Court I 2. Requirement. -[ 1 ] Inherent powers can be exercised in that case |I alone, which the court has jurisdiction to try and decide. The court is Wj not entitled to usurp jurisdiction which it has none under the garb of |w inherent powers. [2] cases will always be there in which circumstances not covered IJ by the provisions of this Code may arise requiring justice to be done thereunder. Legislature can only foresee the most natural and ordl- II nary events and no rule of any Code can be made to regulate to all time to come and for all cases that may happen. The section in a wayfj expresses what already vests in the Code to be availed of by it to meet IP the ends of justice where rules of procedure expressly provided do not W meet the situation. The power is discretionary and in in considering the question of propriety in invoking this residuary power the Court II would take

LArtu A-

into account several matters such as complexity of the 11 questions involved, availability of a more complete and efficacious pfi remedy by means of a suit and the apparent justice of the claim. [3] The inherent powers of Court cannot be invoked to circumvent H the mandatory provisions of the Code. AIR 1954 SC 349. ___ _ There is no room for the application of inherent power whert it there is not only an express provision in the Code but also an express provision negativing the claim of the party. The power under section is intended to supplement other provisions of the Code andojjaS to evade or ignore them or to invent a new procedure accordingJ^H individual sentiment. Bhojraj v. Dasru, AIR 1959 MP52=1958 361=1958 JLJ 397. 3. Situations where inherent powers may be exercised- There is no provision under which an application may be mad making an entry in the khasra regarding possession. But in*! interest of justice such an order can be passed under inherent P0,* 1989 JLJ 706 & 1993 RN 277 (HC) Foil. 1995 RN 366 (Revenue)- j(2\ A Revenue Court has Inherent power to order restitution so as to compensate a damage done to a party by its wrong orders_which have been varied or reversed. Dangalia v. Deshrqj, 1973 JLJ 768=1973 MPLJ 796=1973 RN 373=1973 MPWR 505 (DB). ^3] Powers can be exercised where injustice has been done and there is no express provision in the Code to give necessary relief. Bharatsingh v. Kamalsingh, 1995 RN 32(Revenue). [4] Interim order passed by trial court, revision filed against it. Trial court passing final order. Revision against interim order allowed. Trial court may exercise inherent power to restore position as it was before passing of the interim order. Appellate Court should also drop the appellate proceedings on receiving information about the revisional order. Rajmani v. Ayodhya, 1992 RN 157 (DB)(Revenue). [5] Reconstruction of record can be made under inherent powers. 1989 RN 201.

[6] Court has inherent powers to rectify its own mistake but it has no such power to rectify the mistake committed by another court. Rajmani v. Ayodhya, 1992 RN 157 (DB)(Revenue). [7] Inherent powers of the Court should be pressed into service in I a case where wrong is done to a party by an action of the Court. In fact 1 this is just the purpose for which the provision in section 32 has been : made. 1965 RN 152. 4. Inherent powers when not to be used.-K) Where an appeal was barred by time and there existed no sufficient ground for its late j presentation, the appellate Court cannot set aside the order of the lower Court under its inherent powers. The inherent powers are conferred for being exercised for the ends of justice. It is conferred with an intention to supplement other provisions of the Code and not with an intention to ignore any of them. Therefore, the powers cannot be exercised for hearing of an appeal which is barred by time. Ghasiram I v. Jaisram, 1969 JLJ SN 1. (2) Powers under the section cannot be exercised in respect of the j point which is not raised in the appeal, while deciding stay application. ! 1988 RN 239. (3) Earlier order of mutation cannot be reopened. 1988 RN 232 & ' 1988 RN 279. (4) Land, part of a tank not in use. It can: xot be declared to be \ cultivable by Additional Collector under inherent powers. Chhandilal i Mishra v. Keshav Prashad, 1998 RN 28. 5. General.-! 1] Section 32 of the Code empowers a revenue Court I to make such orders as may be necessary for the ends of justice or to j| prevent the abuse of the process of the Court. Though inherent powers I are vested in revenue Court to pass prohibitory orders, these powers I have to be exercised judicially and carefully. 1978 RN 304. (2] Section 32 of the Code authorises a revenue officer to invoke its i inherent powers for the ends of justice or to prevent the abuse of the | powers of the Court. When the Tahsildar finds that an order affecting I the rights of other persons was passed without notice to them in 33. Powers of Revenue Officers to require attendant of persons and production of documents and to receive] evidenced 1) Subject to the provisions of section 132 and 133 of' the Code of Civil Procedure, 1908 (V of 1908) and to rules made under section 41, every Revenue Officer acting as a Revenigj Court shall have power to take evidence, to summon any person! whose attendance he considers necessary either to be examine|l as a party or to give evidence as a witness or to produce any 1 document for the purposes of any inquiry or case arising under ] this Code or any other enactment for the time being in force. 9 (2) No person shall be ordered to attend in person, unless Be resides (a) within the limits of the tahsil if the Revenue Officer! acting as a Revenue Court is a Naib-Tahsildar and in I the case of any other Revenue Officer, within the local I limits of his jurisdiction; or

REVENUE CODE, 1959 131 (b) without such LAND limits but at a place less than fifty, or I where there is a railway communication or other estab-1 lished public conveyance for five-sixths of the distanGjja between the place where he resides and the place where! he is summoned to attend, less than two hundred mile|| distant from such place. (3) Any person present may be required by any such Revenqfl Officer to give evidence or to produce any document then and 1 there in his possession or power. (4) Every such Revenue Officer shall have power to issue a j commission to examine any person who is exempted from attendj ing Court or who cannot be ordered to attend in person or is I unable to attend on account of sickness or infirmity. COMMENTARY 1. General interpretation.-(1] The provisions of this section appty J to every Revenue Officer who is acting as a Revenue Court. But the 1 powers mentioned herein are subject to the provisions of Ss.,132 a** I 133 of the Code of Civil Procedure and also to rules made under S.**J of the Code. (2) Sub-section (I) empowers the Revenue Officer to take evideitfla or to summon any person either to give evidence or to produce W I document which is necessary for deciding any case either underjgg Code or any other enactment for the time being in force. I 34 i<?l sub-section (2) makes an exception for persons who cannot be Pfjeitd to attend in person unless the circustances mentioned therein are present. \ f4l Sub-section (4) also empowers the Revenue Officer to issue jpl Lesion for examination of a person who is/exempted from attendASmonaUy. See ofeo 1969 topi 2. Provisions of CitfH Procedure Code.- Sections 132 and 133 of % the Code of Civil Procedure are as under: 132. Exemption of certain women from personal ap- %jg pearance.-(l) Women who, according to the customs and manners of 5% the country, ought not to be compelled to appear in public shall be Hjj/* exempt from personal appearance in Court. (2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this

Code. 133. Exemption of other persons.-(l) The following persons shall be entitled to exemption from personal appearance in Court, namely: I (i) the President of India; (ii) the Vice-President of India; (iii) the Speaker of the HOuse of the People; (iv) the Ministers of the Union; H (v) the Judges of the Supreme Court; (vi) the Governors of States and administrators of Union territories; (vii) the Speakers of the State Legislative Assemblies; (viii) the Chairmen of the State Legislative Councils; (ix) the Ministers of States; (x) the Judges of the High Court; and (xi) the persons to whom Section 87B applies. (2) [x x x] ? (3) Where any person claims the privilege of such exemption, and ls consequently necessary to examine him by commission, he shall Pay the costs of that commission, unless the party requiring his evidence pays such costs." Further procedure.- In a case initiated and order passed before the r^n frce of Code, further procedure would be governed by &DD1I Procedure prescribed by the Code of Civil Procedure too (NC)(DB)Dan9alia u Deshrqj, 1973 MPLJ 796=1973 JLJ 768 may (a) issue a bailable warrant of arrest; (b) order him to furnish security for appearance; or ifl (c) impose upon him a fine not exceeding rupees fifty I 35. Hearing in absence of party.-(1) If on the date fixed f I hearing a case or proceeding, a Revenue Officer finds that 1 summons or notice was not served on any party due to the of the opposite paurty to pay the requisite process fees for SuJl service, the case or proceeding may be dismissed in default rff payment of such process fees. (2) If any party to a case or proceeding before a Revenup Officer does not appear on the date fixed for hearing after due I service of a notice or summons on him the case may be heard and determined in his

LAND REVENUE CODE, 1959

131

1. General interpretation.-[1] The section provides a procedure for the court to proceed when on the date fixed for hearing some default is committed. The important fact is that there should be a date fixed for hearing. [2] Sub-section (1) applies where the Revenue Officer finds that on the date fixed for hearing, summons or notice was not served on any party due to the failure of the opposite party to pay the requisite process fees for such service. It is one kind of default and the penalty provided for such default is that the Revenue Officer may dismiss the proceeding for such default. It may, however, be noted that it is not Incumbent upon the officer to dismiss the proceeding. It is discretionary and the

17. Inherent powers.

absence or may be dismissed in default, as the j case may be. (3) The party against whom any order is passed under sub. I section (1) or (2) may apply within thirty days from the dateotff such order or knowledge of the order in case the notice or sum-M mons was not duly served to have it set aside on the ground that f ! he was prevented by any sufficient cause from paying the requip| site process fees for service of a summons or notice on the S opposite party or from appearing at the hearing and the Revenuffl Officer may, after notice to the opposite party which was presentW on the date on which such order was passed and after makingil such inquiry as he considers necessary, set aside the ordeffg passed. (4) Where an application filed under sub-section (3) is|d rejected, the party aggrieved may file an appeal to the authorial to whom an appeal lies from an original order passed by suck* * officer. (5) Except as provided in sub-section (4) or except whertM case or proceeding before any Revenue Officer has been derid| 1 on merits, no appeal shall lie from an order passed under th**| 5 section. ifli

134

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S. 35 N. |!|

officer, being a Court, should act judiciously. [3] Sub-section (2) provides for a contingency where any of the parties does not appear on the date fixed for hearing. Here again, there must a date fixed for hearing. As far as the nonapplicant is concerned, the sub-section applies where he does not appear after due service of a notice or summons on him. [4] The sub-section authorises the court either to dismiss the proceeding for default of appearance or may be heard ex parte. As far as hearing of a case ex parte is concerned, it can be done where the non-applicant makes a default in appearance. [5] Sub-section (3) makes provision for making an application to set aside an order passed either under subsection (1) or sub- section 16] A non-applicant against whom an exparte order is passed may apply for setting aside the same on the ground (i) that notice or summons was not duly served upon him or (ii) that he was prevented by any sufficient cause from appearing on the date of hearing. IV] Where the proceedings are dismissed for default in paying the process fees, the applicant has to allege and satisfy the court that he was prevented by any sufficient cause from paying the requisite process fees. [8] Where the proceedings are dismissed for default in appearance on the date of hearing, he has to make an application for restoring the same alleging therein that he was prevented by any sufficient cause from appearing on such date. [9] An application for setting aside the order passed either uncje r sub-section (1) or under sub-section (2) should be presented withJ *$. thirty days of such order. [10] Where the person concerned was not duly served with a noti^ or summons, he has to file such an application within thirty days of f the knowledge of such an order. f # Ifl [11] On receipt of an application for setting aside an order
( ).

tf

passed i f either under sub-section (1) or sub-section (2) either from the ap. $ plicant or from the non-applicant, the court has to give notice of such i application to the opposite party. [12] The court is required to make such enquiry as it thinks f < necessary after going through the application and its reply. If neces-1 I sary, the parties may be ordered to produce evidence in support of the I allegations made in the application or its reply. [13] Sub-section (4) provides that an appeal shall lie against an 1 order of rejection passed on an application made under subsection i

. An application under sub-section (3) is made either for restoration , of proceedings which are dismissed for default or for setting aside an *, exparty order. It therefore becomes clear that rejection would mean K * rejection of any application, whether made by the applicant or the { nonapplicant, appeal would lie. S
[14] The sub-section also says that an appeal under subsection (4) would lie to the same court or Officer, before whom an appeal lies against the order of the court which rejected th^ application. [15] Sub-section (5) further says that no appeal, excepting that I which is provided for in sub-section (4), would lie against any order I :pgssed under this section. The only exception would be an appeal ! 1 which is filed against such order of the Court which is passed on i merits. 1-A. Date of hearing.-[l] No ex parte order can be passed on a date which was given by the reader. 1987 RN 290, 1989 RN 185 & 1992 RN ; 24 Relied on. Ramvilas v. Shivnarayan, 1995 RN 225 (Revenue). [2] Case fixed for hearing by the reader. It cannot be dismissed for t default of appearance. Liberal view to be taken in restoration matters. I Party should not be penalised for default of counsel. 2000 RN 351. [3] A date given by Superintendet of Commissioners office is not a ; date given by the Court. 1989 RN 185. [4] A person applied for being made a party in the appeal. His ; application was rejected. He filed an application for review. On the date fixed for arguments on this review application the appellant was absent. Held: The appeal could not be dismissed in default on such date- The Court could decide the review application in absence of the | appellants. 1975 RN 360. [5] Where by the notice a date of hearing was fixed which was * ; holiday, a fresh notice should be issued. The case cannot be |

134 REVENUE CODE. 1959 S. RN 35 N. |!| exparte on the basis ofLAND such notice for a holiday. 1974 442. 1-B. Effect of non-appearance.-[1] Appeal decided on merits in absence of appellant-Application for restoration does not lie- Only appeal against the order is competent-li a party to a case or proceeding before the revenue officer does not appeal on the date for hearing, the case may be heard and determined in his absence or may be dismissed In default. If on the date fixed for hearing the appellant does not appear, the revenue officer has two options, i.e. either to hear and determine the appeal in the absence of the party or dismiss the same , in default. Under sub- section (4) where an application for restoration of appeal dismissed in default is rejected, the party aggrieved may file : an appeal to the authority to whom an appeal lies from an original order passed by such an officer. Under sub-section (5), except where \ a case or proceeding before any revenue officer has been decided on 1 merits, no appeal shall lie from an order passed under this section. Thus, application for restoration of an appeal can lie only when the ti appeal is dismissed in default. Where the appellate court exercises j option of hearing and determining the appeal on merits in the absence I of appellant, the remedy of the appellant lies in filing an appeal against i that order and an application for restoration is not maintainable, j Dharamsi Bhai v. State ofM.P., 2004 (1) MPLJ 108 (DB). [2] Hearing date and place.-Where case was fixed to be heard at 5 Sagar for convenience of parties, the date of hearing and its place I cannot be changed without proper notice to the interested parties. Ex i parte order passed in such cases should be set aside. Rani Bahu v. I State of M.P.,_2003.RN 24 (HC). ^ 2. Dismissal for default.-[l] It is already stated above that there may be a default in paying the process fess or a default in appearing * on the date of hearing. There may be serveral reasons why such a I* default was committed. The provision is not new. It is similar to the i one contained in the Code of Civil Procedure. [2] Dismissal for default of appearance should not be done in early ji hours of the day. Where application was made on the same day, the II case should be restored. Ramrao v. Narayan, 1975 RN 84 (HC)(DB). [3] Applicability- Order of dismissal of an application cannot be |l passed in respect of proceeding relating to registration of trust. Vasant f Diwakar v. Registrar, Public Trust, 1979 (I) MPWN 137. [4] Case should not be dismissed on default of the counsel. Notice I to the party should be given again. A party cannot be held guilty for ) the default of his counsel. According to the principles of natural justice jj hearing opportunity should be given. Subhan Shah v. Mohd. Nisar, | 1995 RN 248 (Revenue). J [5] It is painful that when an application filed before the

Additional Commissioner, that was dismissed by two lines order passed on the I same application. He should have enquired in respect of cause of I absence. So many times the High Court and the Board of Revenue have I I?ac*e c^ear that if for any reasons the counsel remains absent then the Court should take the liberal view. In the instant case without i any reasons, order passed by the Additional Commissioner legal. 1984 RN 43. ______________________________________

[6] Where the counsel for appellant refused to argue the apjw 9 unless his applications under section 29 and 32 of the Code decided, the appellate Court was justified in dismissing the appeal fM default. AIR 1963 SC 146 and 1966 RN 54 relied on. 1977 RN 67. r !// [7] In a case the junior counsel was present but he was rJfl prepared to argue the case, saying that the senior counsel will argy? H Under the circumstances, it cannot be said that the party was absem H Case cannot be dismissed for default. 1963 RN-SN 87. [8] It is not mandatory that in the absence of the party, inspite of V notice, the proceedings should be dismissed in default or that the pgs H should be proceeded ex parte. It is in the discretion of the court and I w may even adjourn the case. 1968 RN 151. [9] Date of hearing not fixedby presiding officer but by officer | i charge. Appeal dismissed in default of appearances of both the parties, H Dismissal not proper. Presence of opponent not needed for restoration 11 of the case. Bhagwati Bai v. Narayan Prasad, 2003 RN 88 (Revenue). I a 3. Exparte hearing.-[l] Provision is made in sub-section (2) for i| hearing any case or proceeding ex party. It can be done in a case where 11 the party, even after due service does not appear on the date fixed for a6 hearing.. [2] Party remaining ex-parte in lower court- Need not be heard by jW the Board. 2000 RN 272. [3] Counsel sending adjournment application and telegram, H Presiding Officer out of headquarter. Next date fixed by reader. No | exparte order can be passed on the basis that there was notice of the 4 previous date. Must consider telegram and application. 1988 RN 125. i| [4] No ex party order.-Where the Advocate pleads no instructions, if the party concerned should be informed accordingly. No ex party order If should be passed straightway. Punam Garg v. Sarvaham a* G.N.S.Society, 2003 RN 310 (Revenue). 4. Sufficient reason for not paying process fees.-As stated; above, where a case is dismissed for default under sub-section (1), in I' the application for setting aside such an order, the applicant has got t1 to mention a sufficient reason for not paying process fees. What would r j constitute sufficient reason is a question of fact. Generally a court doesE not dismiss a suit on this type of default unless it is convinced that the | plaintiff has no intention to proceed with the suit and is abusing the | process of court. It may happen in a case where temporary injunction 1 is obtained against the defendant, or some sort of stay is obtained. 5. Sufficient reason for not appearing.-! 1] Sufficient cause ff | restoration. Party could not attend due to several reasons for 1 for P ^ k not mandatory to file an affidavit along with an application 1 restoration of case. It may be dispensed with by the Officer and no

S. 35 N. 6

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which#! was helpless. Counsel busy elsewhere. See 1986 RN 402 & 31. [2] Absence due to illness, supported by medical certificate a1"! affidavit, restoration is proper. 1988 RN 263. -^[3] Normally party should not be penalised for mistake of counsel 1992 RN 24 (Revenue). I [4] Whether sufficient cause for default or non- appearaiv&*j& appeal was dismissed for non-appearance. On the same day M plication was filed for Its restoration saying that the counsel could not appear because he was busy otherwise in the High Court and the appellant himself was not well. However, no medical certificate proving illness of the appellant was produced. The Board of Revenue did not find any sufficient cause for non-appearance and rejected the application for restoration. The High Court too, declined to interfere in the matter. Girdharilal Patel v. Board of Revenue, 1986 RN 216 (DB). [5] The approach should be to do substantial justice and not to act as Commander to maintain Military like discipline. From the facts it is apparent that the absence was not deliberate. The administrator had taken all care and precaution in the matter of appearance before the Board on behalf of the petitioner society on the date of hearing as it was not possible for him- of course for a genuine cause- in as much as he had sent an intimation and authorisation letter to the Ex-President. If that man acted negligently, albeit the principal must bear the consequences of the negligent act of his agent, in the facts and circumstances of the case it would be most unjustified to penalise the petitioner society. The administrator could, while authorising not anticipate or doubt that the Ex-President would act negligently and not appear. In the matter of setting aside of an ex party order and restoration a generous view has to be taken, as the general rule is that dilllis should be decided in presence of parties. In the instant case the view taken by the Board is not only harsh but perverse. The ad' ^ ministrator is a public officer. He has no personal interest, why should jj he be not believed and the Board has also in fact not disbelieved him. The High Court itself allowed the application for setting aside the $ ex party order saying that there was sufficient cause for nonap... pearance and there is reason to remit the case to the Board for a fresh decision. Pragatishil Railway Labour Co-operative Society v. South Eastern Railway Labour Contract Co-operative Society Ltd., 1984 RN | 210 (DB)(HC). (6] For a case being restored after dismissal in default, there should ji be a sufficient cause. The cause of absence should be stated in the H application, and it should be sufficient in view of the Court and not ail according to the notions of the lawyer absenting himself on the date of / hearing. 1973 RN 24. Enquiry and procedure.-! 1] The nature and

extent of the enquiry under section 35(3)

of the Code have been left on the discretion ia of the revenue officer. How much evidence should be taken depends I u Pn the circumstances of a case. If a party files application for r restoration of the case on the same day on which exparte order is 4 P^sed, it should be considered liberally. 1974 RN 388. f 12) An application for restoration cannot be dismissed without
| 8*ving an opportunity of hearing. 1988 RN 214. | Case restored without giving notice ta opposite party. No final jer should be passed without such noticerSunilkumar v. Daultiva H ^ 280(Revenue). [3] A party against whom an exparte order has been passed, has a right .to participate in further proceedings but has no right to claim re-opening of the proceedings proceeded In his absence. Vasudev u, Ramchandra, 1994 RN 100 (Revenue). [4] Even where a party is absent, the Revenue Officers can pass orders on merit. 1993 RN 37(Revenue). [5] Section 30 of the Public Trust Act, makes the Civil Procedure Code applicable to the proceedings under the Act, in so far as the provisions of the Code are not inconsistent with anything contained in the Act. The procedure provided in the Land Revenue Code is not applicable to the proceedings under the Act. The Sub- Divisional Officer and the Registrar both acted in excess of jurisdiction in passing orders under section 35 (1) of the Land Revenue Code. 1979 (I) MFWN 137. 17. Inherent powers.-A perusal of section 35(2) makes it clear that if a party does not appear before the Court even after due service of the notice, an order may be passed in its absence and provisions are made under section 35(3) to file an application in respect of such order. But if the notice is not duly served, no exparte order can be passed. If such an order is passed, the Court can set it aside under inherent powers and there is no bar of limitation in such a case. 1973 RN 305. 36. Adjournment of hearing.-(l) A Revenue Officer may, I from time to time, for reasons to be recorded and on such terms j as to costs, adjourn the hearing of a case or proceeding before | him. (2) The date and place of an adjourned hearing of a case or proceeding shall be intimated at the time of the adjournment to 1 such of the parties and witnesses as are present. 37. Power to award costs.-A Revenue Officer may award I costs incurred in any case or proceeding arising under this Code ' or any other enactment for the time being in force in such manner I and to such extent, as he thinks fit: Provided that the fees of a legal practitioner shall not be | allowed as costs in any such case or proceeding, unless such I

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142 considers otherwise LAND REVENUE CODE, 1959 officer for reasons to be recorded by him in writing. * COMMENTARY 1. Awarding of costs.-[1] Provision is made in this section esO' I powering a Revenue Officer to award costs incurred in any case of I proceeding arising under this Code or any other enactment for the tiioe a being in force. (2) Such costs may be allowed at the discretion of the Revenue 1 Officer in the manner and to the extent which he thinks fit.

[3] The proviso to the section specifically excludes the fees of a legal practitioner from the amount of costs to be awarded in any such case or proceeding. Where the Revenue Officer allows such fees as costs, he is required to record his reasons in writing as to why he has done so. See also 1971 RN 70. [4] In a case, where costs was neither claimed nor any reason for awarding the same was given, it was held that the order awarding such costs was wholly unwarranted. Hardwarilal v. State ofM.P., 1984 RN 1 (HC)(DB). 2. General.-! 1J The underlying theme of section 37 of the Code and rule 25 appears to be that cost should be awarded only when the revenue officer is satisfied that one or the other of the parties had taken unnecessarily contentious attitude in the proceedings. The triad Court is the best judge whether discretion should be exercised in favour of awarding costs in a particular proceedings under the Code. Superior Courts should not ordinarily interfere with the exercise of thisjudicial discretion. Superior Courts may only entertain revision in cases where it is contended that excessive costs have been awarded in contravention of the provisions of the Act or rules. 1978 RN 131. (2) The proceedings under section 248 were initiated by the Government. The applicant had merely applied to be made a party. He had indicated what interest he had in the proceedings. He was made a party in the two appeals by the encroacher. In these circumstances there was Justification to impose costs on such party. 1975 RN 420. 38. Manner of executing order to deliver possession of immovable property.-Where any person against whom an order to deliver possession of immovable property has been passed under this Code such order shall be executed in the following manner, namely: (a) by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the said notice to vacate the land; and (b) if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same; and (c) if the officer removing any such person is resisted or obstructed by any person, the Revenue Officer shall hold a summary inquiry into the facts of the case, and if satisfied that the resistance or obstruction was without any just cause, and that such resistance or obstruction still continues, may, without prejudice to any proceedings to which such person may be liable under any law for the time being in force for the punisha f ment of such resistance or obstruction, take or cause

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f I be taken, such steps and use, or cause to be used, sucj, [ force as may, in the opinion of such officer, be reasonab. ly necessary for securing compliance with the order. | COMMENTARY SYNOPSIS 1. General interpretation. 2. Effect of inaction. 3. Due compliance. 4. Execution. 5. General. 1. General interpretation.-[1] The section provides the manner In I which an order to deliver possession of Immovable property is' to be executed. Such an order should have been passed under the J provisions of this Code only. 12] The first step is to serve a notice on the person or persons in possession of such property to deliver possession thereof within a reasonable time. 131 The second step is by removing or deputing some subordinate person to remove the person who has not obeyed the notice and refuses to vacate the same. (4] Where resistance or obstruction to removal is offered, the Revenue Officer is empowered to make a summary inquiry into the matter and if he finds that the resistance or removal was without any just cause and the same still continues, he may take such steps or use or cause to be used such force as he thinks to be reasonably necessary for compliance of the order of eviction. 2. Effect of inaction.-Where an order of Tahsildar for restoration of possession to the Bhumiswami is not complied with and the possession of the other party continues, the effect would be that such possession of the other party may ripen into adverse possession after statutory period. Simply because there was an order for restoration of possession, ripening of right as above cannot be stopped. Balkrishan v. Satyaprakash. 2001 RN 139=2001 (1) C.G.L.J. 315 (SC). 3. Due compliance.- Where it was noticed by the appellate Court that the appellants avoided to attend, though summoned, and remain present at the time of restoration of possession and preparation of panchnama, it was held that the provisions of the section were rightly complied with. Chhagan v. Bhilasa, 1987 RN 230 (HC). 4. Execution.-A decree for possession of agricultural land capjj i executed even if the crops are standing on the land. 1997 RN 1* |HC)' dj 5. General. [ 1 ] Order for restoration of possession cannot be m| without first giving show cause notice and a reasonable time to vac* the land. 1987 RN 304. CZZT (2] At the time of delivery of possession there was no crop ^

delivfv I possession cannot be regarded as illegal. The provisions of section 38 I of the Code are not shown to have been contravened in any manner I whatsoever by the non-applicants No. 1 and 2. If the plaintiff thought I that the delivery of possession was effected in a manner contrary to I that enacted by section 38 of the Code, he could have preferred an 1 appeal against the order of delivery of possession. The plaintiff having I not done so, cannot be permitted to challenge the proceedings on the I basis of supposed contravention of the provisions of section 38 of the I Code. The present case is within the general rule that CiVil Court also I cannot sit over the order directing delivery of possession and the H manner of execution of that order as an appellate revenue Court. 1979 |
(H)MPWN6.

142 plalntiff-applicant LAND REVENUE CODE, 1959 standing on the suit land. Therefore the

ill, ' ' ----------------------------- ----;f 39. Persons by whom appearances and applications ! may be made before and to Revenue Officers.-Save as jl otherwise provided in any other enactment for the time being in force, all appearances before, applications to and acts to be done 1 before any Revenue Officer under this Code or any other enact- |J ment for the time being in force may be made or done by the parties themselves or by their recognised agents or by any legal j practitioner: 40. Effects of rules in Schedule I.-The rules in Schedul JBSI shall have effect as if enacted in the body of this Code^i annulled or altered in accordance with the provisions oftv*? Chapter. P COMMENTARY
Application for setting aside sale- Computation of limitation f Limitation for application to set aside should be computed by exclul-S| ing the day on which the sale took place. When the Court was c1o8^k|P| on thirtieth day, it should be filed on the next opening day to be limitation. Abdid Mubin v. Board, of Revenue, 1966 JLJ SN 5.

41. Power of Board to make rule.-(l) The Board may, from time to time, make rules consistent with the provisions of this f Code regulating the practice and procedure of the Board and the procedure to be allowed by other Revenue Courts and may by i such rules annul, alter or add to all or any of the rule^iiif Schedule I. (2) In particular and without prejudice to the generality of the| Powers conferred by sub-section (1), such rules may provide fotj all or any of the following matters, namely: (a) the service of summons, notices and other processes post or in any other manner either generally or in any! specified areas, and the proof of such service; (b) the regulation of power of Revenue Officers to

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summon! parties and witnesses and the grant of expenses tot witnesses; (c) the regulation of recognised agents with regard to ap-fc pearances, applications and acts done by them inf proceedings under this Code; (d) procedure to be observed in effecting attachment movable and immovable properties; (e) procedure for publishing, conducting, setting aside and | confirming sales and all ancillary matters connectfi with.such proceedings; (f) the maintenance and custody, while under attaching of live- stock and other movable property the HJ payable for such maintenance and custody, the such live-stock and property and the proceeds of iaj sale; . . (g) consolidation of appeals and other proceedings*^ (h)all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Revenue Courts; (i) the time within which, in the absence of any express provision, appeals or applications for revision may be filed; (j) the cost of and incidental to any proceedings; (k) examination of witnesses on commission and payment of expenses incidental to such examination; (1) licensing of petition-writers and the regulation of their conduct. (3) Such rules shall be subject to the condition of previous publication and approval of the State Government, and after they are so made and approved they shall be published in the Gazette, and shall, from the date of publication or from such other date as may be specified, have the same force and effect as if they were contained in Schedule I. COMMENTARY 1. General interpretation.

SYNOPSIS

2. 3. cases. 4. cases. 5. 6. 7.

Transfer of case from one member to another. Rules regarding Practice and Procedure of Board- Some Rules of Practice and Procedure of Revenue Officers- Some

Rules for Service of Summons, etc.-Some cases. Rules under the Schedule- Some cases. Text of certain Rules: [1] Rules Regarding the Practice and Procedure of the Board; [2] Rules Regulating the Procedure to be Followed by Revenue Courts. [3] Rules Regarding Service of Summons, Notices and Other Processes Summoning of Parties and Witnesses, Recognised Agents, Consolidation of Appeals and Other Proceedings etc. [4] Rules Regarding Petition Writers. [5] Board of Revenue Affidavit Rules. 1. General interpretation.-[1] The section empowers the Board to make rules regulating the practice and procedure of the Board. It is also empowered to make rules which should be followed by other Revenue Courts. [2] It is a condition precedent that the rules made by the Board should be consistent with the provisions of this Code. 13] Under Section 40, the rules given in Schedule I have force similar to that of any other provision enacted under this Code. But such rules can be amended in the manner specified in this Chapter. Section 41 empowers the Board to annul, alter or add to all or any of the rules in Schedule I. [4] Sub-section (2) specifies the matters in respect of which rufe. M referred to in sub-section (1) may be made by the Board. [5] Any rules made by the Board shall be subject to previous w publication, meaning thereby a draft of such rules shall first be *1 published for inviting objections. Objections filed within the time given, shall be considered by the Board and then approval of the State I Government shall be obtained. After making of such rules and obtain- I ing approval of the State Government, such rules shall be published I in the Gazette. The rules so made shall come into force on the date of | their publication in the Gazette or from any other date if so specified, 1 [6] The rules so made by the Board, shall be deemed to be rules as if enacted in the First Schedule of this Code. [7] While exercising the powers under this section, the Board has 1 made (i) RULES REGARDING THE PRACTICE AND PROCEDURE OF I THE BOARD, and (ii) RULES REGULATING THE PROCEDURE TO BE FOLLOWED BY REVENUE COURTS, which are reproduced hereinafter. 2. Transfer of case from one member to another.- The President f and Members of the Board are equal in rank regarding exercise of j judicial power. The President of the Board can exercise powers in the I matter of allocation of work and distribution of cases but does

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not have I power to transfer a case from the file of one Member to another, a Panchvati Sah. G.N. Sanstha v. Green Park S. G.N. Sanstha, 1995 RN 4 (Revenue). 3. Rules regarding Practice and Procedure of Board- Some ' cases. [1] Filing of Sales Tax Appeals.- Rule 5 clearly permits the filing I of any appeal, application for review or revision or other application by g presenting it in a place other than the head quarters of the Board in I the District Office. An appeal under the Sales Tax Act may be filed on I the District Head Quarters. Mohansingh v. Board of Revenue, 1963 I JLJ SN 92. [2] Revision not filed before the lowest revisional authority. It g cannot be dismissed but should be returned for presentation to the 1 proper court. 1993 RN 222(Revenue). [31 Revision petition along with stay application. Stay application | heard. Revision cannot be dismissed without providing an opportunity 1 for hearing the revision. 1988 RN 213.

l4]The Board is a creation of the Code and hears appeals etc. not only under the Code but also under various other enactments. Whei | the enactments other than the Code have specific provisions relating I to a particular procedure those provisions are binding and have to be t followed. But where this is not so, the Board shall have to draw upon t the procedure which is laid down in the Code. HH
In exercise of the powers conferred by sub-section (1) of section 41 I of the Code, the Board has made rules for the practice and proc^M I to be followed by. and before the Board, Rule 31 of the said rul* I provides that if any party to a case or proceeding does not aPPea*j 1 the date fixed for hearing, the case may be heard and determined