Madhya Pradesh High Court
Rajendra Prasad Gupta vs The State Of Madhya Pradesh on 31 July, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 31 st OF JULY, 2023
WRIT PETITION No. 18348 of 2023
BETWEEN:-
RAJENDRA PRASAD GUPTA S/O LATE SHRI
RAMSWAROOP GUPTA, AGED ABOUT 72 YEARS,
OCCUPATION - UNEMPLOYED, R/O GOPAL DAIRY,
CHIROLI LAHAR, BHIND (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRASHANT SHARMA - ADVOCATE )
AND
1. STATE OF MADHYA PRADESH, PRINCIPAL
SECRETARY, DEPARTMENT OF REVENUE,
VALLABH BHAWAN DISTRICT BHOPAL (MADHYA
PRADESH)
2. COMMISSIONER, GWALIOR DIVISION GWALIOR
(MADHYA PRADESH)
3. COLLECTOR, GWALIOR, DISTRICT GWALIOR ,
(MADHYA PRADESH)
4. SUB DIVISIONAL MORAR, DISTRICT GWALIOR ,
(MADHYA PRADESH)
5. TEHSILDAR, MORAR, DISTRICT GWALIOR ,
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK KHEDKAR - ADDITIONAL AG)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition under Article 226 of Constitution of India has been Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 02-Aug-23 12:25:50 PM 2 filed challenging the order dated 22.9.20222 passed by Collector, District Gwalior while deciding the representation of the petitioner vide case no.0130/B- 121/2022-2023 whereby the Collector instead of directing the Revenue Authorities sub-ordinate to it to implement the order dated 6.5.2015 passed by the Tahsildar while invoking the provisions under Section 115-116 of M.P. Land Revenue Code, 1959 ( in short 'MPLRC') for correction in the revenue entries with regard to the recording of the land in dispute as Aabadi Land, had held that the Tahsildar had no jurisdiction and power to have ordered change in the name of land in dispute which was recorded in the name of Education Department (Kadeem) as Aabadi Land, therefore, the order dated 6.5.2015 was perse illegal and had agreed for review of the order passed by Tahsildar on the representations made by Tahsildar & Sub Divisional Officer which was not within the scope of Collector while deciding the representation.
Learned counsel for the petitioner has submitted that vide order dated 6.5.2015, learned Tahsildar on the basis of report of Patwari and another order dated 30.1.2012 in case no.70/2006-07/A-68 of the Court of Tahsildar, Najul found that the land bearing survey no.1862 admeasuring 0.230 Hectares was an Aabadi Land prior to Samvat (year) 1997 and on the part of the land admeasuring 0.350 Hectares the house of the present petitioner was constructed, which was standing for the last 20 years. In the said order, it was also observed that in the revenue records of the previous years, survey no.1862 admeasuring 0.230 Hectares was recorded as Aabadi Land, thus, invoking the provisions under Section 115-116 of MPLRC, he was directed that land bearing survey No.1862 admeasuring 0.230 Hectares be recorded as Aabadi land, which as per provisions of Section 115-116 of MPLRC was within the domain power of Tahsildar. Since, the revenue record was not changed and the land in Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 02-Aug-23 12:25:50 PM 3 dispute was not recorded as Aabadi Land, the petitioners moved an application before Tahsildar for taking necessary action in the matter but the said application was rejected by the Tahsildar stating that vide order dated 25.7.2017 as an order has already been passed in the matter, there is no need for further orders.
Aggrieved by the said order, the present petitioner preferred an appeal before the Additional Commissioner and Additional Commissioner vide order dated 31.10.2018 directed Tahsildar to carry out the implementation of its own order dated 6.5.2015. It was further argued that after passing of the order of Additional Commissioner, since no action was taken by the Tahsildar, then he preferred the writ petition No.9027/21 which came to be decided on 28.6.2021 wherein this Court has directed the respondents to decide the representation filed by the present petitioner within a period of 90 days by a reasoned and speaking order.
It was further argued that pursuance to the said directions, the representation preferred by the petitioner came to be decided vide impugned order Annexure P-1 dated 22.9.2022 whereby learned Collector while deciding the said application exceeded its jurisdiction and instead of directing Tahsildar to implement its order dated 6.5.2015 concluded that Tahsildar himself was not having any powers to direct such a correction and therefore, while rejecting the said representation had shown concurrence with this representation of Tahsildar & SDO reviewing of the order. Thus, it was submitted that the impugned order is per se illegal and deserves to be set aside.
Per contra, learned counsel appearing for State submits that no illegality has been committed by learned Collector in passing the order while deciding the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 02-Aug-23 12:25:50 PM 4 representation preferred by the present petitioner as the learned Collector has found that powers which has been exercised by the Tahsildar under provisions of Section 115-116 of MPLRC were beyond his jurisdiction and therefore, the order of implementation of order dated 6.5.2015 passed by the Tahsildar could not be passed rather it is required to be reviewed.
It was further argued that no prejudice could be said to have been caused to the present petitioner by way of the impugned order, as he would have ample opportunity at the time when the order of Tahsildar dated 6.5.2015 is proposed to be reviewed by the competent authority, as he can raise all objections, which has been raised at present. Thus, it was submitted that the present petition challenging the order of representation dated 22.9.2022 is of no consequence and therefore, the petitioner being devoid of any substance deserves to be dismissed.
Heard counsel for the parties and perused the record.
Facts which are admitted and are not disputed by the other side are that in the year 2015, an order has been passed by the Tahsildar invoking the provisions under Section 115-116 of MPLRC for recording of land bearing survey no.1862 admeasuring 0.230 Hectares as Aabadi Land which was earlier recorded in the name of Education Department (Kadeem). Since the said order passed by Tahsildar was not implemented, the matter reached uptill this Court where this Court had directed the respondents to decide the representation of the petitioner pending in that regard.
Learned Collector while deciding the said representation found that the very powers which has been exercised by Tahsildar under Section 115-116 of MPLRC were not available to him and therefore, the order dated 6.5.2015 passed by the Tahsildar whereby survey no. was directed to be recorded as Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 02-Aug-23 12:25:50 PM 5 Aabadi Land was not and could not be implemented.
It it true that the Collector was not sitting in an appellate or revisional jurisdiction against the order of Tahsildar dated 6.5.2015, but was deciding the representation of the petitioner and while deciding the same had just agreed with the representation of Tahsildar and Sub Divisional Officer for review of the order dated 6.5.2015 passed by the Tahsildar, according to this Court, the petitioner will have ample opportunity for raising all his grievance before competent authority, sanctioning and hearing the review and as this Court cannot act as an appellate authority and consider the factual merits of the case which has been gone into by the Collector while deciding the representation of the petitioner, this Court does not find any reason to interfere with the same.
It is hereby observed that, an opportunity of hearing be granted to the petitioner in pre and post review proceedings and he may be permitted to raise all the legal grounds available to him. It is Needless to observe that any finding given by this Court in this order as well as any finding recorded by the Collector while deciding the representation would not come in the way or would not be taken into consideration by the authority while deciding the review.
With the aforesaid directions, the petition stands disposed of.
(MILIND RAMESH PHADKE) JUDGE Rohit Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 02-Aug-23 12:25:50 PM