Madhya Pradesh High Court
Ramesh Kumar vs Mahesh Kumar on 24 April, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 24 th OF APRIL, 2023
MISC. PETITION No. 4894 of 2018
BETWEEN:-
1. RAMESH KUMAR S/O PREM NARAYAN
YADUVANSHI OCCUPATION: AGRICULTURE R/O
VILLAGE GADAMODKALAN, TEHSIL TIMARNEE,
DIST. HARDA (MADHYA PRADESH)
2. BASANT KUMAR S/O PREM NARYAAN
YADUVANSHI OCCUPATION: AGRICULTURE R/O
VILLAGE GADAMODKALAN, TEHSIL TIMARNEE,
DIST. HARDA (MADHYA PRADESH)
3. SANTOSH KUMAR S/O PREM NARYAAN
YADUVANSHI OCCUPATION: AGRICULTURE R/O
VILLAGE GADAMODKALAN, TEHSIL TIMARNEE,
DIST. HARDA (MADHYA PRADESH)
4. MUKESH KUMAR S/O PREM NARYAAN
YADUVANSHI OCCUPATION: AGRICULTURE R/O
VILLAGE GADAMODKALAN, TEHSIL TIMARNEE,
DIST. HARDA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI VIVEKANAND AWASTHY - ADVOCATE )
AND
1. MAHESH KUMAR S/O RAMVILAS YADUVANSHI
R/O VILLAGE GADAMODKALAN, TEHSIL
TIMARNEE, DIST. HARDA (MADHYA PRADESH)
2. DHRMESH KUMAR S/O MAHESH KUMAR
YADUVANSHI R/O VILLAGE GADAMODKALAN,
TEHSIL TIMARNEE, DIST. HARDA (MADHYA
PRADESH)
3. COM M ISSION ER NARMADAPURAM DIVISION
HOSHANGABAD (MADHYA PRADESH)
4. ADDITIONAL COLLECTOR HARDA DISTT. HARDA
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 5/1/2023
3:55:45 PM
2
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAVENDRA SHUKLA - ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioners have filed this petition assailing the impugned order dated 02.07.2018 (Annexure P/4) passed by Board of Revenue, Gwalior in PBR/Appeal/Harda/Bhu.Raj./2017/3824 as well as order dated 20.07.2017 (Annexure P/3) passed by Commissioner, Narmadapuram Division, Hoshangabad in Appeal Case No.307/Appeal/2014-2015.
2. Learned counsel for the petitioners contends that the respondent Nos.1 and 2 filed an application before the Collector for preparation of map in terms of the current position in respect of land situate on Survey No.101/7 (as per amended registration of 2011 Survey No.101/7 and 101/17) admeasuring 5.423 hectare, situate in Village-Gadamodkalan. The said application preferred by the respondent Nos.1 and 2 was turned down by the Collector Harda by passing an order dated 31.07.2014 (Annexure P/2). The order passed by the Collector Harda dated 31.07.2014 was assailed by the respondent Nos.1 and 2 by filing an appeal before the Commissioner, Narmadapuram Division, Hoshangabad which was allowed vide order dated 20.07.2017 (Annexure P/3). Thereafter, the order passed by the Commissioner, Narmadapuram Division, Hoshangabad dated 20.07.2017 was assailed by the present petitioners by filing another appeal before the Board of Revenue Gwalior which has been dismissed vide order dated 02.07.2018 (Annexure P/4). Thus, assailing the orders passed by the Commissioner, Narmadapuram Division, Hoshangabad as well as Board Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 3 of Revenue, Gwalior, this petition is filed.
3. Learned counsel for the petitioners further contends that in the present case, the application filed by the respondent Nos.1 and 2 before the Collector, if is perused, the same would reveal that the respondent Nos.1 and 2 desired that as per the current status of the location, the map be corrected. It is contended by the counsel for the petitioners that it is not a case where the map was not prepared on the contrary, the correction of map was sought which is evident from Annexure P/1. The Collector Harda while dealing with the application filed by the respondent Nos.1 and 2 concluded that in absence of any demarcation, the prayer which was being made by the respondent Nos.1 and 2 could not have been acceded to. The Collector Harda considered the Panchnama prepared by Assistant Land Records Harda dated 09.04.2014, Inquiry Report dated 25.05.2014, Spot Panchnama (LFky iapukek) dated 24.06.2014 and another Inquiry Report dated 25.06.2014 and accordingly, came to a conclusion that before correction of map, there should have been demarcation of the property in concern. The Collector Harda further observed that the boundaries mentioned in the sale-deed was a matter which was required to be agitated before the Civil Court and accordingly, declined to entertain the application filed by the respondent Nos.1 and 2. The well reasoned findings arrived at by the Collector could not have been interfered with by the Commissioner Division Narmadapuram while passing the impugned order. The Commissioner Division Narmadapuram without appreciating the fact that in absence of any demarcation, the prayer for correction of map could not have been acceded to.
4. It is contended by the counsel for the petitioners that if the order of the Commissioner is perused, the same would reveal that there is no Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 4 appreciation by the Commissioner as regards the well reasoned order passed by the Collector. The Commissioner, Narmadapuram Division, Hoshangabad while passing the impugned order stepped into the shoes of a Civil Court and ventured upon to decide the controversy while evaluating the Spot Panchnama (LFky iapukek) and Inquiry Report which were on record. The said Inquiry Report, in absence of any challenge had already attained finality and therefore, the Commissioner, Narmadapuram Division, Hoshangabad while dealing with an appeal against the order of Collector Harda could not have gone into veracity of Spot Inspection/Panchnama (LFky iapukek) as well as Inquiry Report. Thus, counsel submits that the impugned order being unsustainable deserves quashment inasmuch as, looking to the disputed questions as regards the revenue records and also the physical position of the property, the demarcation was imperative. Counsel for the petitioners further contends that this aspect has not been even appreciated by the Board of Revenue, Gwalior which rejected the appeal in a purely high handed and callous manner. Thus, counsel submits that the impugned order deserves to be quashed.
5. Per contra, learned counsel for the respondents contends that the Collector Harda fell in error while passing the impugned order dated 31.07.2014 (Annexure P/2) inasmuch as, the Collector Harda was required to appreciate that correction in map is a condition precedent for an order of demarcation. Counsel for the respondents further contends that in absence of correction or preparation of map, there cannot be a demarcation, therefore, this aspect was required to be taken note of by the Collector, Harda. Thus, finding this anomaly in the impugned order, the Commissioner rightly interfered with the order of Collector Harda and set aside the same by a just and proper order dated Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 5 20.07.2017 (Annexure P/3). Counsel for the respondents also contends that the so called deed in favour of the petitioners was also considered by the Commissioner, Narmadapuram Division, Hoshangabad and the Commissioner came to a conclusion that there is no deed on the record which is executed in favour of the present petitioners, therefore, the right of the present petitioners was also taken note of by the Commissioner while passing the impugned order.
6. It is contended by the counsel for the respondents that the Commissioner, Narmadapuram Division, Hoshangabad came to a conclusion that the map of Survey No.101 was not an authentic map and contained mistakes, therefore, the said map was not prepared while taking note of the actual possession as well as title of the Bhoomiswami. The Commissioner further considered the aspect that the respondent Nos.1 and 2 are Bhoomiswami of 13.40 Acres of land whereas they were in possession of 8.26 Acres of land. Therefore, the map was not prepared to the extent of title of the respondent Nos.1 and 2 as regards the property in question. Thus, the Commissioner, Narmadapuram Division, Hoshangabad has rightly interfered with the order of Collector, Harda and allowed the appeal preferred by the respondent Nos.1 and 2. It is further contended by the counsel for the respondents that the Board of Revenue, Gwalior has also rightly declined to interfere with the order passed by the Commissioner, Narmadapuram Division, Hoshangabad and thus, counsel submits that no interference is warranted.
7. Heard the rival submissions of both the parties and perused the record.
8. The machinery of law was set in motion on an application moved by the respondent Nos.1 and 2 before the Collector Harda. The said application has been brought on record as Annexure P/1. A perusal of the application Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 6 reflects that the respondent Nos.1 and 2 made specific averments in paragraph 2 of the same that the respondent Nos.1 and 2 wish to get the map of the land in question corrected while taking into consideration the actual location of the land. The respondent No.2 further submitted in the same paragraph that the map which was already prepared, the same was not as per the actual situation and in paragraph 2 of the same, the dimension of property in questions were detailed including its boundaries.
9. Paragraphs 2 and 3 of the said application being relevant for the purposes of instant matter are being reproduced hereinasunder:-
"2. ;g fd] vkonsd dh mDr Hkwfe ij eksds ij tks yksds'ku gS mlh fLFkfr ds vuqlkj vkosnd uD'kk Hkh nq:Lr djkuk pkgrk gSA orZe ku uD'kk dk voyksdu djus ds i'pkr vkosnd dks Kkr gqvk gS fd mDr uD'kk fjdkMZ ij tks cuk og ekSds dh fLFkfr ds vuqlkj ugha gS vkSj ekSds ij iwoZ esa ekaxhyky vk- pSuflag] if'Pke esa clar vk- izse ukjk;.k] mRrj esa dkadM] nf{k.k esa jsok'kadj vk- cnzh izlkn dh Hkwfe gSA 3- vr% ekuuh; egksn; ls fuosnu gS fd vkosnd ds vkosnu i= ds vuqlkj ekSds ds vuqlkj uD'kk nw:Lr fd;k tkos vkSj ekSds ij tks prqjlhek gS mlh vuqlkj uD'kk esa prqjlhek dk;e dh tkosA"
10. The said application was taken into consideration by the Collector Harda. The Collector Harda after sifting the entire records came to a conclusion that there was a Spot Panchnama (LFky iapukek) dated 09.04.2014 and an Inquiry Report dated 25.05.2014 and also another Spot Panchnama (LFky iapukek) dated 24.06.2014 and another Inquiry Report dated 25.06.2014 and while taking into consideration the aforesaid reports, the Collector Harda came to a conclusion that before filing an application for correction of map, it was incumbent upon the respondent Nos.1 and 2 to get the land demarcated. The Collector Harda in paragraph 9 of the order came to a categorically conclusion that there is no demarcation in accordance with law by the respondent Nos.1 and 2. The Collector Harda then dealing with the sale-deed of the respondent Nos.1 and 2 and also another sale-deed in favour of the petitioner which was not produced Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 7 on record, came to a conclusion that if there are mentioning of incorrect boundaries in the sale-deed and there is a dispute as regards the possession of the property is concerned, the present petitioners herein can take recourse to the Civil Court. However, the Collector Harda declined to entertain the application submitted by the respondent Nos.1 and 2 on the ground that in view of the aforesaid Spot Panchnamas as well as Inquiry Reports, the demarcation of the property in question was required.
11. The said findings of the Collector were subjected to challenge by filing an appeal before the Commissioner, Narmadapuram Division, Hoshangabad. The Commissioner, Narmadapuram Division, Hoshangabad proceeded to scrutinize the order of the Collector Harda and also dealt with the aforesaid Spot Panchnama (LFky iapukek) and also the Inquiry Report. The Commissioner while dealing with the aforesaid Spot Panchnama (LFky iapukek) dated 24.06.2014, concluded that the said Spot Panchnama (LFky iapukek) was not a valid Spot Panchnama inasmuch as, the mother of the respondent Nos.1 and 2 herein was not present at the time of Spot Panchnama (LFky iapukek).
Therefore, the Commissioner ultimately concluded that those Spot Panchnamas (LFky iapukek) as well as Inquiry Reports were not reliable and accordingly, has proceeded to allow the appeal filed by the respondent Nos.1 and 2.
12. Commissioner, Narmadapuram Division, Hoshangabad in the considered view of this Court was required to appreciate as to whether he could have interfered with Spot Panchnama (LFky iapukek) as well as Inquiry Report more particularly when they were not subjected to challenge before any of the authorities. A perusal of the application preferred before the Collector Harda contained in Annexure P/1 reflects that so far as Spot Panchnama (LFky iapukek) dated 09.04.2014, Inquiry Report dated 25.04.2014, Spot Panchnama (LFky Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 8 iapukek) dated 24.06.2014 and another Inquiry Report dated 25.06.2014 were concerned, the respondent Nos.1 and 2 never challenged the same, therefore, the validity of the said Spot Panchnama (LFky iapukek) as well as Inquiry Report was not an issue before the Commissioner which was required to be dwell upon but still, the Commissioner, Narmadapuram Division, Hoshangabad ventured upon to deal with the said Spot Panchnama (LFky iapukek) dated 09.04.2014, Inquiry Report dated 25.04.2014, Spot Panchnama (LFky iapukek) dated 24.06.2014 and another Inquiry Report dated 25.06.2014 and concluded that the map of Survey No.101 was not properly prepared and the same was defective and then in penultimate paragraph, the Commissioner, Narmadapuram Division, Hoshangabad concluded that the map which was available was not in consonance with the actual possession as well as title of the Bhoomiswami and has allowed the appeal.
13. The order of the Commissioner, Narmadapuram Division, Hoshangabad suffers from gross perversity inasmuch as, the Commissioner was first required to appreciate that a map is prepared in terms of Section 67 of the Madhya Pradesh Land Revenue Code, 1959. The procedure as regards correction of map is provided under Section 115 of the MPLRC, 1959. If there exists dispute regarding boundaries, the same is required to be considered in terms of Section 125 of MPLRC, 1959.
14. Therefore in this case, the most important question is as to whether the map is required to be prepared at what stage ? In terms of Section 114 of MPLRC, 1959, the land records includes Village Map, Abadi Map and Block Map as per Section 107 of MPLRC, 1959. Therefore, if the facts of the present case are considered in view of the provisions of Section 114 of Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 9 MPLRC, 1959, the same would reveal that a map of Survey No.101 was already prepared by the Revenue Authorities and the correction of such a map could have been prayed for in terms of Section 115 of MPLRC, 1959. The Section 115 of MPLRC, 1959 itself contains further proviso to the effect that under Section 115 of MPLRC, 1959 no action can be initiated if any entry pertains to a period prior to five years without the sanction in writing of the Collector and while dealing with the prayer for correction of map, the Authorities are also required to take into consideration as to whether the interest of the Government are involved or not and if it is found that the interest of the Government are involved, the Sub-Divisional Officer is required to forward the matter to the Collector. Thus, when the Collector in the present case was approached in terms of Section 115 of MPLRC, 1959, the Collector upon close scrutiny of records came to a conclusion that there was already a map and further observed that Spot Panchnama (LFky iapukek) dated 09.04.2014, Inquiry Report dated 25.04.2014, Spot Panchnama (LFky iapukek) dated 24.06.2014 and another Inquiry Report dated 25.06.2014 and those Spot Panchanama and Inquiry Reports were prepared while taking into consideration the actual physical possession of the Bhoomiswami on the land in question. Therefore, in view of the aforesaid Spot Panchnama (LFky iapukek) as well as Inquiry Reports there existed a dispute as regards the boundaries which was required to be considered in view of Section 125 of MPLRC, 1959. The such disputes are dealt with in terms of Section 129 of MPLRC, 1959 and therefore, the Collector concluded that as there existed a dispute as regards the boundaries of the land in question therefore, the respondent Nos.1 and 2 ought to have taken recourse to demarcation proceedings and declined to entertain the application preferred by the respondent Nos.1 and 2 for correction of map.
Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM 1015. This Court has no hesitation to hold that the Collector rightly arrived at the ultimate findings in paragraph 10 of his order inasmuch as, the veracity of Spot Panchnama (LFky iapukek) and Inquiry Report necessitated the demarcation of the property in question. Therefore, the Additional Commissioner exceeded its jurisdiction while interfering with the Spot Panchnama (LFky iapukek) and Inquiry Report which were holding the field and in fact had attained finality in absence of any challenge to the same.
16. Thus, the order impugned passed by the Commissioner, Narmadapuram Division, Hoshangabad and as well as subsequent order passed by the Board of Revenue Gwalior are unsustainable, hence deserves quashement.
17. Accordingly, the order dated 02.07.2018 (Annexure P/4) passed by Board of Revenue, Gwalior in PBR/Appeal/Harda/Bhu.Raj./2017/3824 as well as order dated 20.07.2017 (Annexure P/3) passed by Commissioner, Narmadapuram Division, Hoshangabad in Appeal Case No.307/Appeal/2014- 2015 stand quashed. The order passed by the Additional Collector, District- Harda dated 31.07.2014 (Annexure P/2) in REvenue Case No.02/A-6 (A)/13-14 is affirmed.
18. Resultantly, the present petition stands allowed.
(MANINDER S. BHATTI) JUDGE sp Signature Not Verified Signed by: SAVITRI PATEL Signing time: 5/1/2023 3:55:45 PM