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Criminal Revision No. 200 of 1961, decided on 20th July 1961.

S. 19(1)‑Revenue Officer‑Not a Court hence not authorised to invoke provisions of S. 480, Criminal P. C. 1898 ‑ [Malik Fateh Khan v. Najibullah Khan P L D 1957 Lah. 631; Aswad Mia and another v. Shahidullah Mia and others 8 1) 1, It Dacca 1163; Mahendranath Biswas and others v. Dula] Ratan P L D 1959 Dacca 683 ref.]

O. XVIII, rr. 4 & 5 Provisions do not render an officer to be a Court.

Mahbubar Rahman for Petitioner.

Deputy Legal Remembrancer for the State.

D. C. Bhattacharjee: Amicus Curiae.

This is an application, under section 439 of the Code of Criminal Procedure, by one Md. Kafiluddin alias Kafiluddin Sarkar who was convicted of an offence under section 228 of the Pakistan Penal Code read with section 480 of the Code of Criminal Proce dure by Mr. S. A. Hamid, Revenue Officer, Jhikargacha, Jessore and sentencing him to a fine of Rs. 200, in default simple imprison ment for one month which sentence was reduced by the Sessions Judge, Jessore on appeal to a fine of Rs. 25 and in default to simple imprisonment for seven days.

2. Petitioner's case is that he went to the Revenue Officer, Mr. S. A. Hamid, at Jhikargacha in the district of Jessore in connection with correction of certain records which have been prepared by the said officer under section 19(1) of the East Bengal State Acquisition and Tenancy Act, 1950 in regard to Mouza Mohinikati J. L. N. 94, P. S. Jhikargacha. It is said that the petitioner went to give evidence in favour of one Abdul Aziz and requested the Revenue Circle Officer to delete the names of Abdul Aziz and Abdul Latif from Khatian No. 94/1 of Mouza Mohini Kati, J. L. No. 94 of P. S. Jhikargacha and record the name of the objector, Abdul Aziz in the said Khatian for 0‑8‑0 annas share in place of Abdul Aziz and Abdul Latif. The Revenue Officer, while the petitioner gave evidence in support of the objector, Abdul Aziz used abusive language towards him and thereafter kept him confined for about half an hour in his chamber. He, therefore, went to the Sub‑Divisional Officer and filed an appli cation for redress against such illegal behaviour of the Revenue Circle Officer. To counteract this complaint of the petitioner the said Revenue Circle Officer, Mr. S. A. Hamid started a proceeding under section 480 of the Code of Criminal Procedure against the petitioner behind his back and drew up the proceeding and recorded a finding and convicted and sentenced him as aforesaid.

3. The story that is given by Mr. S. A. Hamid, Revenue Circle Officer is as follows:‑ While Mr. S. A. Hamid, Revenue Circle Officer was hearing objection in Case No. 57 of Mouza Mohini kati J. L. No. 94, P. S. Jhikargacha under section 19 (1) of the East Bengal State Acquisition and Tenancy Act, 1950, the peti tioner Kafiluddin intentionally came up before the Revenue Officer and asked him to delete the names of the opposite‑parties, Abdul Aziz and Abdul Latif from Khatian No. 94/1 of Mouza Mohinikati, J. L. No. 94 of P. S. Jhikargacha by recording the name of Abdul Aziz, the objector in their place. The Revenue Circle Officer after perusal of all papers and taking evidence did not accept the proposal made by the petitioner and directed him to file an appeal against his order under section 19 (2) of the East Bengal State Acquisition and Tenancy Act. At this, it is said that the petitioner became furious and intentionally insulted the said Revenue Circle Officer by uttering the following words. "I shall see you what high it costs me. You have taken bride from the opposite party and defeated my party." The Revenue Officer thereupon took cognizance of the offence of the petitioner under section 480 of the Code of Criminal Procedure and called upon him under section 481 of the Code of Criminal Procedure to show cause why he should not be convicted of the offence under section 228 of the Pakistan Penal Code. The accused according to this Revenue Officer did not enter into his defence and made no statement whereupon the Revenue Officer Mr. S. A. Hamid, found the petitioner guilty and sentenced him to pay a fine of Rs. 200 and in default to suffer simple imprisonment for one month under section 288 of the Pakistan Penal Code read with section 480 of the Code of Criminal Procedure.

4. Mr. Mahbubar Rahman, the learned Advocate appearing in support of the petition has contended that the Revenue Officer is not a Court and, therefore, he could not invoke the powers enumerated in section 480 of the Code of Criminal Procedure. Secondly, he has argued that the Revenue Officer has violated the provisions of section 480 of the Code in dealing with the matter.

5. The main question for decision before me is as to whether the Revenue Officer who was acting under section 19 (1) of the East Bengal State Acquisition and Tenancy Act, 1950 was acting as a Court. If it is found that he was acting as a Court there will be no difficulty in holding that he has the powers under section 480 of the Code of Criminal Procedure to deal with the petitioner of course that will not answer the objection raised by Mr. Mahbubar Rahman as to whether the provision of the section itself has been followed by this Revenue Officer.

6. I called upon Mr. D. C. Bhattacharjee, one of the learned Advocates of this Court to assist me in the matter and Mr. Bhattacharjee was good enough to assist the Court at a very short notice.

7. Section 19 of the East Bengal State Acquisition and Tenancy Act reads as follows: --

"19 (t) When a record‑pf‑rights has been prepared or revised so as to contain or include wherein particulars referred to in section 18, the Revenue Officer shall publish a draft of the record‑of‑rights so prepared or revised in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein or to any commission there from during the period of such publi cation.

(2) Any person aggrieved by an order passed by the Revenue Officer on any objection made under subsection (1) may appear to the prescribed Revenue Authority not below the rank of an Assistant Settlement Officer ins such manner and within such period as may be prescribed.

(3) When all such objections and appeals have been considered and disposed of according to such rules as the Provincial Government may make in this behalf, the Revenue Officer shall finally frame the record and shall cause such record to be finally published in the prescribed manner and the publication shall be conclusive evidence that the record has been duly prepared or revised under this Chapter.

(4) When a record‑of‑rights has been finally published under subsection (3), the Revenue Officer shall, within such time as the Board of Revenue may fix in this behalf, make a certificate stating the fact of such final publication and the date thereof and shall date and subscribe the same with his name and official title."

The subsection relevant for our purpose in the said section 19 is subsection 19 (1) and along with it rule 39 of the Rules framed under the Act has also, to be considered to find out as to whether the Revenue Officer was acting as a Court or not. Rule 39 of the Rules framed under the Act occurring under Chapter V of the Rules under the heading "Powers of Revenue Officers in preparing or revising record‑of‑rights and preparing Compensation Assess ment‑Rolls" reads as follows :‑

"39. When a Revenue Officer is appointed for the purpose of preparation or revision of a record‑of‑rights, or for the purpose of preparation of Compensation Assessment‑roll under Part IV of the Act, within any district, part of a district or local areas, he shall be appointed either with or without the additional designation of "Settlement Officer", or "Assistant Settlement Officer". Every such officer is hereby vested with‑

(a) the power to cut and thresh the crops on any such land and to weigh the produce with a view to estimating the capabilities of the soil ; and

(b) the power to take down evidence with his own hand in the English language in proceedings held under Part IV of the Act in which an appeal is allowed in accordance with the procedure laid down in the Code of Civil Procedure, 1908 for the trial of suits."

8. From a reading of subsection (1) of section 19 of the East Bengal State Acquisition and Tenancy Act it becomes clear that there is no legal obligation that upon the Revenue Officer or any other particular officer exercising the power of a Court in the preparation of record‑of‑rights can be called a Court. It is necessary to find certain of the main ingredients which come to institute a Court. It must, first be found that it has the legal obligation to pronounce a final decision in the matter, (may be subject of appeal). Secondly, that it has all the powers that are contemplated for a Court under the laws of the land; thirdly, that the decision of that body or tribunal must not be subject to the supervision of the higher executive authority.

9. In the first place from a simple reading of subsection (1) of section 19 of the Act it becomes clear that the legal obligation upon the Revenue Officer was to decide the question of prepara tion of the record‑of‑rights or correction thereof judicially. All that can be found from the subsection (1) is that duty is cast upon him to prepare the record‑of‑rights or to revise them in terms of certain directions provided for him in the Act by filling in certain columns as prescribed under the Act. If any objection to his recording or corrections are made he has been directed to receive such objections and to consider them. But this subsection does not say as to the mode of receipt of the considerations of the objections. It may be presumed that he may having received written objections considered them sitting alone in‑ the absence of the parties or if the parties come forward to give oral evidence before him he may accept and consider them and then make the final preparation of the record‑of‑rights. Subsection (2) of the section provides that :‑

"(2) Any persons aggrieved by an order passed by a Revenue Officer on any objection made under subsection (1) may appeal to the prescribed Revenue Authority."

If we now look to the provision of rule 39 (b) of the Rules framed we find that the rule provides that when the Revenue Officer, who as Revenue Officer or Assistant Settlement Officer is discharging the duties of preparation of record‑of‑rights under Part IV of the Act which Part lies (sic) section 19 of the Act, and such Revenue Officer has been vested with the power to take down evidence with his own hand in the English language, in proceedings held under Part IV of the Act, while doing so, he should follow the procedure laid down in the Code of Civil Procedure.

10. From the provisions of this rule the learned Advocate for the State who appeared to support the order of conviction submitted that since the Revenue Officer has been given power to follow the provision laid down in the Code of Civil Procedure in matters of trial of suits it can safely be presumed that he had all the authority to administer oath and if it can be assumed that he had the power to administer oath and to take down the evidence in terms of the procedure laid down in the Code of Civil Procedure there is very little difficulty for us to interpret that while the Revenue Officer is discharging the function under section 19 (1) of the Act he is acting as a Court.

11. Mr. D. C. Bhattacharjee has pointed out to me the relevant provisions of the Code of Civil Procedure which may have been contemplated by the Legislature in framing rule 39 (b) under the Act. Rules 4 and 5 of Order XVIII of the Code of Civil Procedure seems to have been in the contemplation of the Legislature while enacting clause (b) of section 39 of the East Bengal State Acquisition and Tenancy Act, 1950. I think Mr. Bhattacharjee is correct in saying. From the provisions of rules 4 and 5 of Order XVIII of the Code it cannot be said that merely because evidence has to be recorded in the presence of other persons and under the direct superintendence of the person taking it or in the form of a narrative and should be read out to the deponent in the presence of the officer who has recorded the evidence, that the officer was discharging the functions of a Court. Similarly) sections 4 and 5 of the Indian Oaths Act upon which the learned Deputy Legal Remembrancer pinned much of his faith are not also of any assistance to him to establish that the Revenue Officer in the present case was a Court. There is no dearth of decisions which go to show that quite a number of tribunals or bodies discharging some sort of function which may affect the interest of certain parties, may, at first sight seem to be discharging the function of a Court but if one looks deeply into, it is found that they are not Courts in the real sense of the terms. At the first sight it seems that the Revenue Officer has all the duties of a Court because he has been vested with the authority of recording evidence and he may also administer oath to persons who may appear before him and he at least at a stage records a finding with regard to the record‑of‑rights. But those do not garb him with the cloak of a Court at all.

12. Mr. Bhattacharjee has drawn my attention to rule 17 of the Rules framed under the East Bengal State Acquisition and Tenancy Act which is the first rule occurring in Chapter IV of the Rules under the heading "preparation or revision of records‑of rights under Chapter IV of the Act" and reads as follows: --

"Except as otherwise provided for by the Act or by these rules, all proceedings and orders of Revenue Officer passed in the discharge of any duty imposed upon him by the Act or these rules shall be subject to the supervision and control of the Provincial Government; and the proceedings and orders of each Revenue Officer under the Act or these rules shall be subject to the supervision and control of the Revenue Officer or Revenue Officers to whom he may be declared or ordered by the Provincial Government to be, for the purposes of the Act or these rules, subordinate."

This rule clearly goes to show that the Revenue Officer is an officer discharging the function of an executive officer without the slightest colour of a Court as we understand and is subject to the supervision and control of the Provincial Government and also the Revenue Officer or Revenue Officers under whom he may be placed as a subordinate under order of the Provincial Government. In the case of a Court it is unthinkable that the Court as far as its functions are concerned shall be under the supervision, control and direction of the Provincial Government.

13. In the present case, if the Revenue Officer could be con sidered to be Court this rule 17 could never have been contemplat ed by the framers thereof. This clearly goes to show that the Legislature did not contemplate the Revenue Officer to be a Court while discharging the functions under the East Bengal State Acquisition and Tenancy Act, 1950.

14. In the case of Malik Fatehkhan v. Najibullah Khan (P L D 1957 Lah. 631), Chief Justice S. A. Rahman as he then was while dealing with the question similar to the one under ‑my consideration has held:

"A Revenue Officer holding inquiry or hearing an appeal in a mutation proceeding is not a Court, as he does not really adjudicate on rights and does not give a decision which is bind ing on the parties."

The learned Chief Justice has elaborately discussed in the above- noted case the functions of a Court and the powers exercised by it which commonly is known as judicial function and has referred to many cases including a few decisions of the Judicial Committee of the Privy Council and he has come to the same conclusion that the Revenue Officer does not act as a Court while dealing with the record‑of‑rights. A similar view in respect of the function of a Collector in dealing with a matter analogous to the present one has been taken by a Division Bench of this Court in the case of Aswad Mia and another v. Shahidullah Mia and others (8 D L R Dacca 1163). There is also another case of Mahendra Nath Biswas and others v. Dulal (P L D 1959 Dacca 683), which is almost on the same line. I, therefore, hold that the Revenue Officer acting under section 19 (1) of the East Bengal State Acquisition and Tenancy Act, 1950 or for that matter under any other provision of the said statute is not a Court and, there fore, he is not the authority to invoke the power contemplated by section 480 of the Code of Criminal Procedure.

15. I do not think it is necessary for me to go into the details of the point as to whether any illegality has been made by the Revenue Officer in the exercise of the power under section 480 of the Code of Criminal Procedure as I have already held that he is not a Court. I may only say that he has not followed the provi sion of section 480 of the Code of Criminal Procedure in the present case and that does not amount to an irregularity but an illegality.

16. In the result, therefore, I make the Rule absolute and set aside the conviction and sentence of the petitioner.

S. B./A. H.

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