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TMI Blog1967 (2) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... t decrees." The orders of the Commissioner are challenged in these petitions under Article 227 of the Constitution on the ground that the Commissioner in rejecting the appeals failed to exercise the jurisdiction vested in him by law. 2. Since the Commissioner gave no reasons for rejecting the appeals but merely referred to some clarification sent to him by the Government of Maharashtra, notices were issued in these petitions to the learned Government Pleader to appear and assist the Court. We have heard detailed arguments of the learned Government Pleader as well as the learned Advocates who appeared for the parties. 3. According to the petitioners, the decision of the Collector in effecting a partition of agricultural lands in pursuance of a decree passed by a Civil Court is appealable under S. 203 and revisable under S. 211 of the Land Revenue Code. Section 203 lays down; "In the absence of any express provision of this Act, or of any law for the time being in force to the contrary an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of the Bombay Land Revue Code. There is no express provision either in the Bombay Land Revenue Code or in the Civil Procedure Code or in any other law for the time being inforce which provides that a decision or an order of the Collector in partition proceedings shall not be subject to any appeal. It would follow, therefore, that any decision or order made by the Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner under S. 203 and is also revisable under Section 211 of the Bombay land Revenue Code. 6. Our attention was drawn to certain resolution of the Government of Bombay which indicate that the above position was recognised by the Government as early as in 1890. We were also told that till the impugned orders of the Commissioner in the present cases, parties aggrieved by a decision of the Collector in partition proceedings filled appeals before the Commissioner, and the appeals were entertained as a matter of course and disposed of on the merits. We understand that the reason why the Government of Maharashtra have instructed the Commissioners not to entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtition the Collector has to decide in what matter the lands should be divided and how they should be allocated to the different sharers. The decision made by the Collector on these questions is often of vital concern to the parties. The decision is usually embodies in an order which directs the parties to be placed in possession of the lands allocated to their respective shares. In the case of properties other than lands which are assessed to the payment of revenue, the Civil Court normally passes a preliminary decree which is followed by a final decree. The proceedings between the preliminary decree which is followed by a final decree. The proceedings between the preliminary decree and the final decree are analogous to the proceedings before the Collector for the partition of lands assessed to the payment of revenue. It cannot be disputed that the final decree of a court which allocates specific properties to different sharers involves the rendering of decisions and the passing of a decrtal order. it seems to us, with respect, that rendering of decisions, and the making of an order are also involved when a partition is effected by the Collector of lands assessed to the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of a right to appeal under section 203 of the Bombay Land Revenue Code must lead to a clash between the appellate jurisdiction of the Commissioner and the very limited jurisdiction of the Civil Court. Even according to the Bombay view, if parties are aggrieved by a partition effected by the Collector on the ground that the partition is inequitable, they cannot agitate their grievance before the Civil Court. The recognition of the right of appeal under Section 203 of the Bombay Land Revenue Code would enable parties to have such grievances considered and adjudicated by the Commissioner. On the other hand, if a partition effected by the Collector contravenes the decretal order or transgresses the law relating to partition, or if the Collector refuses to execute the decree, the aggrieved party can approach the Civil Court even if the action of the Collector is upheld in appeal by the Commissioner. As stated above, the right of appeal under Section 203 from partition proceedings conducted by the Collector has been recognised since 1890, and we are not aware of a single casein which a clash of jurisdiction of the type apprehended by the learned Judges of the Mysore High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot refer to the purpose of his employment or even to the normal work for which is employed but that it refers to the particular activity in which he is engaged for the time being. The learned Government pleader then went on to argue that a person who is engaged ineffecting a partition of revenue paying lands cannot be said to be engaged " in or about the business of the land revenue or of the surveys, assessments, accounts or records connected therewith". The business of land revenue, it was argued or of surveys, assessment, accounts or records connected therewith, may be consequential to the partition of revenue paying lands, but is not involved in the partition itself. Partition of revenue paying lands can be effected, and is often sharers who effect such a partition cannot be said to have been employed in or about the business of the land revenue or of the surveys, assessment, accounts or records connected therewith. It was accordingly urged that the collector is not a revenue officer when he effects a partition of revenue paying lands and that any decision or order passed by him in effecting a partition is, therefore, not subject to an appeal under section 203 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; in the definition of revenue officer in section 3(1) of the Land Revenue Code has reference 3(1) of the Land Revenue Code has reference to the purpose of employment of the officer concerned or the normal work for which he is employed, and does not refer to the particular work which he may have to do at a particular time in the course of his official duties. It appears to us that this is the natural meaning of the word "employed" in the context in which it occurs. The Collector is a revenue officer, because he is appointed under the provisions of the Bombay Land Revenue Code and because the purpose of his employment and the normal work for which he is employed is to look after the revenue administration of district. Decisions and orders passed by him are, therefore, appealable under S. 203 even when they are not passed in the course of revenue administration. There are some cogent reasons for accepting this interpretation of the term "revenue officer" defined in S. 3(1) and occurring in S. 203 of the Bombay Land Revenue Code. 12. In the first place, it can be shown that in S. 203 itself the legislature has used the term "Revenue Officer" in the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be liveable as an arrear of land revenue "shall be levied under the foregoing provisions of this Chapter and all the foregoing provisions of this chapter and all the forgoing provisions of this Chapter shall, so far as may be, applicable there to." By virtue of this provision various types of sums, such as income-tax dues or dues payable under a contract with the Government, are recovered by adopting the provisions for the realisation of land revenue contained in Chapter XI of the Bombay Land Revenue Code. Movable and Immovable properties are sold by the Collector for the realisation of such sums. The work involved is not the type of work which is specified in the definition of revenue officer in S. 3(1). Questions relating to the sale of properties under the provisions of S. 187, such as setting aside those sales or confirming them, have to be decided by the Collector, and appeals from the Collectors' order in this behalf are entertained s a matter of course by the Commissioner and decided on the merits. 13. Secondly, the interpretation which the learned Government pleader seeks to impose on the term 'Revenue Officer' in section 3(1) and section 203 would r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the law as it then existed. Orders made by the Collector under the Bombay Land Revenue Code or under any other Act were appealable and revisable under sections 203 and 211 of the Land Revenue Code. The Legislature which passed section 54 of the Civil Procedure Code must, therefore, be assumed in the absence of anything to the contrary to have intended that order passed by the Collector under section 54 would be appealable and revisable under sections 203 and 211 of the Bombay Land Revenue Code. 15. We must finally refer to an argument which was advanced by Mr. Bhasme on behalf of the respondents to one of these petitions. Section 203 provides for an appeal from any decision or order of the Collector if there is no express provision to the contrary in the Bombay Land Revenue Code or any other law for the time being in force. Mr. Bhasme argued that an express provision to the contrary is found in the terms of section 54 of the Civil Procedure Code itself. section 54 provides that in case of revenue paying lands the partition case of revenue paying lands the partition" shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf.&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that such an offer was made and that it was not accepted. He was unable to give any reason why the petitioners did not accept the offer. It is therefore, obvious that the petitioners are not really aggrieved by the partition directed by the Collector, and that they filed an appeal to the Commissioner and then the present petition in order that they could continue in possession of all the lands which are liable to be partitioned. Mr.Rane argued that since we have found that the Commissioner failed to exercise the jurisdiction vested in him by law when he dismissed the petitioner's appeal, we ought to set aside the Commissioner's order and direct that the appeal filed by the petitioners should be restored. We are, however, not bound to do so. Interference by this Court under Articles 226 and 227 of the Constitution is discretionary and it is the settled practice of this Court not to interfere under these provisions unless it is necessary to do so in the interests of justice. In the present case the interest of justice requires that we should not interfere with the order of the Commissioner however wrong in law that order may be. The petition therefore, is dismissed. Under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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