JUDGMENT
S.M.N. Raina, J.
1. This Is a petition under Article 227 of the Constitution.
2. The petitioner applied for allotment of the land in dispute under Section 162 of the M. P. Land Revenue Code which was subsequently repealed. This application was allowed and the land in question was allotted to the petitioner on 26-11-1960. Subsequently on an objection filed against the allotment the Tehsildar reviewed the order of allotment by an order dated 5-3-1962 and the grant of Patta was set aside. The petitioner preferred an appeal before the Sub-Divisional Officer against the said order which was disallowed on 8-6-1962. He, thereupon, preferred a second appeal before the Commissioner which was allowed on 31-12-1963 and the case was remanded to tile S. D. O. for a fresh decision of the appeal. On remand, the S. D. O. by an order dated 27-1-1965 set aside the order of the Tehsildar and remanded the case for considering afresh the question of review. On a reconsideration, the Tehsildar again set aside the Patta on 3-4-1967 by reviewing the original order. The petitioner again preferred an appeal before the S. D. O. This appeal was allowed and the order of the Tehsildar was set aside and the case was remanded for a fresh decision on 20-9-1968. In the course of this order of the S. D. O. observed that the Tehsildar should also review the grant of Patta in favour of respondent No. 1 to whom the land had been allotted under Executive Instructions after the repeal of Section 162. Against this order respondent No. 1 filed a revision petition before the Board of Revenue. The Board allowed the revision petition and set aside the order of the S. D. O. mainly on the ground that since Section 162 of the Code had been repealed the question of right of petitioner to the grant of patta could not be considered in the light of its earlier decision in Devlalsingh v. Nandansingh, 1968 RN 324 (BR). Being aggrieved by this decision the petitioner has come up before this Court.
3. At the very outset we may observe that we are not going to consider the question whether the order granting Patta in favour of the petitioner was proper or not. All that we have to consider is whether the Board was right in holding that the petitioner had lost his right to agitate the matter on account of repeal of Section 162. Section 162 was repealed with effect from 23-4-1964.
4. The legal position that arises from the repeal of Section 162 was considered at length by the Board of Revenue in 1968 RN 324 (BR) (Supra). In paragraph, 6 of the order five distinct situations were considered which are specified below:–
(i) applications made immediately before the repeal which had not become ripe for consideration,
(ii) such applications which had become ripe for consideration but are pending for consideration or completion of preliminaries;
(iii) such applications which may have been considered but on which no orders have been passed;
(iv) such applications which have been considered and disallowed and the order dismissing the applications is the subiect-matter of an appeal or revision;
(v) such applications which have been considered and allowed and the order allotting land is the subject-matter of review appeals or revisions arising from the order passed in the review proceedings or where the order allotting the land is the subiect-matter of appeal or revision.”
The Board held that in the first three cases the applications were liable to be rejected on the ground that there was no subsisting power to make an allotment. In the fourth case it held that the appeal or revision would be liable to be dismissed on the same ground even though the order reiecting the application for allotment may appear to be erroneous. We are in agreement with the view expressed by the Board so far as these four situations are concerned.
5. While dealing with the fifth situation the Board observed as under in paragraph 6 :–
“If the order of allotment was made improperly or in disregard of the rules the superior authorities exercising appellate or revisional jurisdiction would be acting within their jurisdiction to set right the error and hold that the allotment was made improperly or in disregard of the rules.”
Thus according to the Board It is open to the superior authorities to set right the error and hold that the allotment was made improperly. The Board did not expressly consider a case where the original order of allotment is correct but has been wrongly set aside in appeal, revision or review and against such an order an appeal or revision comes up before a Revenue Court after repeal of Section 162. In our view, the same principle which was adopted by the Board in dealing with the fifth situation would apply to such a case, and it would be open to the superior court to restore the original order of allotment, because its competence to set right the error implies that it can also restore the order if it finds that there was no error.
6. We must make a distinction between a case where no order of allotment was made at any stage before the repeal of Section 162 and one where an order of allotment was made before the repeal. In the former case the question is one of making an allotment which cannot be done after the repeal of the Section; while in the latter it is a case of restoring an order of allotment which was properly made when Section was in force. Where no allotment has been made before the repeal of the Section no order of allotment can be passed at any stage of the proceedings as the power to allot ceases to exist on the repeal of the Section. But the position is entirely different where an allotment of the land under Section 162 has been made in favour of a party before it was repealed and proceedings are pending at the time of repeal regarding the propriety, correctness or legality of the order of allotment. Once an order of allotment has been made the party concerned acquires a right and this right can be taken away by setting aside the said order in accordance with the various provisions of the M. P. Land Revenue Code regarding appeals, revisions or review. The right of appeal or revision or review under the Code is not affected by the repeal of Section 162. What is lost by the repeal is the right to claim allotment
7. We may here also refer to the decision of this Court in Dolumal v. State of M. P., 1970 RN 156 = (AIR 1971 Madh Pra 127) on which the learned counsel for respondent No. 1
relies. In that case it was observed in paragraph 5 as under:–
“But it must be noted that what is unaffacted by the repeal of a statute is a right acquired or accrued under it and not a mere ‘hope or expectation’ or liberty to apply for acquiring a right. (Director of Public Works v. Ho Po Sans, 1961-2 All ER 721 at page 731).”
It was further observed therein that a distinction has to be drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceedings for acquisition of a right; the former is saved whereas the latter is not.
8. From the above observations It would be clear that where the land has not vet been allotted to a party he has merely a hope or expectation for the allotment and as such his right to claim allotment extinguishes when the Section is repealed but not where the allotment has already been made. We may here also refer to Section 10 of the M. P. General Clauses Act, Clause (b) of the said Section provides that unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. Further Clause (e) of the said Section provides that repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability etc.. and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, as if repealing Act had not been passed. In our view the above provisions are attracted in this rase as allotment of the land had already been made in favour of the petitioner under Section 162 of the Code before it was repealed and all that has to be considered in subsequent proceedings is whether the original grant of Patta was proper or not.
9. Thus it is clear that the Board of Revenue proceeded upon an erroneous view of law in setting aside the order of the S. D. O. and not considering the case of the petitioner on merits on the ground that it was not open for consideration in view of the repeal of Section 162 of the Code. The order of the Board is, therefore, liable to be quash-ed and the case will have to go back before the Board for a fresh consideration of the case of the petitioner on merits.
10. The petition, therefore, succeeds and is allowed. The impugned order of the Board of Revenue dated 22-9-1969 is hereby set aside. The case will go back to the Board of Revenue for a fresh decision on merits. We make no order as to costs in the circumstances of the case. The security amount deposited by the petitioner shall be refunded to him.