Madhya Pradesh High Court
Ravindra Kumar Gupta vs The State Of Madhya Pradesh on 5 August, 2010
1 W.P No.10863/2009
HIGH COURT OF MADHYA PRADESH AT JABALPUR
WRIT PETITION NO.10863/2009
PETITIONER : RAVINDRA KUMAR GUPTA
Vs.
RESPONDENTS : STATE OF M.P.
AND OTHERS.
Present : Hon'ble Shri Justice R.S. Jha.
For the petitioner : Shri V. P. Nema, Advocate.
For the respondents : Shri Vivek Agrawal, Govt. Advocate.
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ORDER
(05/08/2010) The petitioner, who is a Patwari of Revenue Circle Bahoriband, Patwari Halka No.23/38 of Village Udaipur, by way of the instant petition has assailed the legal validity of order dated 10.7.2006 passed by the Sub Divisional Officer, Sihora by which the petitioner's services as Patwari have been terminated and order dated 16.10.2007 passed by the Collector dismissing his appeal.
2. It is stated by the learned counsel for the petitioner that the petitioner has filed a second appeal before the Commissioner, Jabalpur Division which is pending adjudication but as the very initiation of proceedings and the order of termination of the petitioner is without jurisdiction and authority of law, as held by this Court in the case of Vinod Kumar Khare vs. State of M.P. And Others, reported in ILR (2008) M.P. 1436 and the judgment in the case of Phulloo Ram Kol vs. State of M.P. And Others, W.P No.8777/2003 decided on 25.9.2008, the petitioner has filed the present petition during the pendency of the appeal before the Commissioner.
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3. It is further submitted by the learned counsel for the petitioner that the petitioner is a Patwari whose appointing/disciplinary authority is the Collector as prescribed in Section 104(2) of the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code') and the notification issued under section 24 of the Code does not confer any power or authority upon the Sub Divisional Officer, inspite of which the impugned order of termination in respect of the petitioner dated 10.7.2006 has been passed by the Sub Divisional Officer, Sihora which per se is without authority or jurisdiction. The learned counsel for the petitioner has relied upon the judgment of this Court rendered Vinod Kumar Khare (supra) and Phulloo Ram Kol (supra) to submit that the aforesaid legal position has already been settled by this Court and, therefore, the impugned order of termination of the petitioner be quashed.
4. I have heard the learned counsel for the parties at length. Section 104(2) of the Code reads as under:-
"(2) The Collector shall appoint one or more patwaris to each patwari circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe."
Section 22 of the Code, which is relevant for the purpose of decision of the issue, raised by the petitioner, is in the following terms:-
"Sub-Divisional Officers-(1) The Collector may place one or more Assistant Collectors or Deputy Collectors in-charge of a sub-division of a district or in-charge of two or more sub- divisions of a district.
(2) Such Assistant Collector or Deputy Collector shall be called a Sub-Divisional Officer and shall exercise such powers of a Collector as the State Government may, by notification, direct."
5. In exercise of powers conferred by Section 22 sub-section (2) of the 3 W.P No.10863/2009 Code, the State government issued notification No.11429-CR-653-V11- N-2 dated 1.10.1959 which was published in the M.P. Gazette dated 9.10.1959 which is in the following terms:-
"In exercise of the powers conferred by sub-section (2) of section 22 of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959), and in supersession of all previous notifications on the subject, the State Government hereby directs that all Sub-Divisional Officers shall exercise powers of a Collector under sub-section (2) of section 57, sub-section (5) of section 59, section 87, sub-section (2) of section 104 and sub-section (2) of section 110 of the said Code, within their respective jurisdictions."
6. A conjoint reading of the provisions of Section 22 and Section 104(2) of the Code and the notification issued under Section 22 of the Code, makes it abundantly clear that the power of appointment of Patwaris for each Patwari Circle has been conferred upon the Collector under section 104(2) of the Code and that under section 22(2) of the Code the Sub Divisional Officer has been empowered to exercise such powers of the Collector as the State Government may by notification direct.
7. It is further clear that in exercise of powers under section 22 (2) of the Code, the State Government has issued the aforementioned notification authorizing the Sub Divisional Officer to exercise powers of the Collector under section 104(2) of the Code amongst other provisions. It is, therefore, manifestly clear that the Sub Divisional Officer has the authority to exercise powers of the Collector under section 104 (2) of the Code regarding appointment of Patwaris in view of the aforesaid provisions. Apparently, as the Sub Divisional Officer has the power to appoint Patwaris he consequently also has the power to dismiss a Patwari.
8. The aforesaid legal position was considered by a Division Bench of 4 W.P No.10863/2009 this Court in the case of Manmohan Singh Thakre vs. Govt. of M.P. and others, 1978 (II) MPWN Note 116, wherein it was held as under:-
"Under section 104 of the Code, the Collector has been designated the person who shall appoint a Patwari, Under section 22 of the Code, the Sub Divisional Officer exercised such powers of a Collector as the State Government by notification directed. By Notification No.11429-CR-635-VII-N-2 published in the Madhya Pradesh Rajpatra dated 9.10.1959 and notification No.13691-CR-770- VII-N (Rules), published in the Madhya Pradesh Rajpatra dated 1.10.1960, the State Government in exercise of the powers under section 22 of the code directed all the sub- Divisional Officers to exercise powers of a Collector under sub-section (2) of section 104 of the Code. There is, therefore, no contention in the submission that the Sub- Divisional Officer had no power to remove the petitioner from service."
9. Another Division Bench of this Court, after taking into consideration the aforesaid provisions of law, has also held that the Sub Divisional Officer has the power to remove a Patwari from service, in the case of Mangilal vs. State of M.P. and others, 1995 RN 67 in the following terms:-
"5. Section 22 of MPLJ Code dealt with the powers of SDO. Section 22(1) reads as follows:
(1) "The Collector may place one or more Assistant Collector or Deputy Collectors incharge of a sub-division of a district or in-charge of two or more sub-divisions of a District.
(2) Such Assistant Collector or Deputy Collector shall be called a sub-divisional Officer and shall exercise such powers of a Collector as the State Government may, by notification, direct."
The State of Madhya Pradesh vide notification dated 9.10.59 has authorized all the S.D.Os to exercise powers u/s 104 (2) of the MPLR code, which reads as follows:
5 W.P No.10863/2009
" No.11429-CR-653-V11-N.2- in exercise of the powers conferred by sub-section (2) of section 22 of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959), and in supersession of all previous notifications on the subject, the State Government hereby directs that all Sub-Divisional Officers shall exercise powers of a Collector under Sub-Section (2) of Section 57, sub-section (5) of section 59, section 87, sub-Section (2) of Section 104 and sub-section (2) of section 110 of the said Code, within their respective jurisdictions."
6. This goes to show that the powers of appointment of the patwari has been delegated to the S.D.O vide Notification referred above....."
10. Apart from the aforesaid provisions of law and the judgment of the Division Benches of this Court it is also clear from a perusal of the Schedule appended to M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 framed pursuant to Rules 5, 8, 10, 24 and 29 of the Rules, that the Sub Divisional Officer is the appointing as well as Disciplinary Authority of Patwaris.
11. From a perusal of the judgment in the case of Vinod Kumar Khare (supra) relied upon by the petitioner and which has subsequently been relied upon by this Court in Phulloo Ram Kol (supra), it is clear that it was passed in the light of the decision of this Court rendered in W.P No.7785/2003 (Ashok Kumar Khare vs. State of M.P. and others) decided on 10.1.2005.
12. From a perusal of the observations in the judgment of Ashok Kumar Khare (supra) which were made after quoting Section 104 and 24 of the Code (and not Section 22) which have been quoted in the case of Vinod Kumar Khare (supra) in para-6, it is clear that the provisions of 6 W.P No.10863/2009 Section 22 of the Code and notification issued thereunder specifically conferring powers of the Collector under section 104(2) of the Code upon the Sub Divisional Officer were not brought to the notice of the Court nor were the Division Bench judgment rendered in the case of Manmohan Singh Thakre (supra) and Mangilal (supra) brought to the notice of this Court. It is also clear that this Court considered the notification issued under the provisions of Section 24 of the Code, but did not take into account or consider the notification published on the same date i.e. 9.10.1959 issued under section 22 of the Code and on that account observed that there was no conferral of powers on the Sub Divisional Officer to proceed against the Patwari.
13. In the case of Vinod Kumar Khare (supra) this Court has again considered only the notification issued under section 24 of the Code dated 9.10.1959. Apparently, the provisions of Section 22 of the Code and the notification issued thereunder conferring authority to exercise powers under section 104(2) of the Code upon the Sub Divisional Officer were not brought to the notice of the Court which is evident from the fact that the Court has gone on to state in para-11 that no other notification has been shown to the Court by which the Sub Divisional Officer has been empowered by the State Government to appoint a Patwari. The case of Phulloo Ram Kol (supra) has been decided on the basis of the judgment in the case of Vinod Kumar Khare (supra) and the provisions of Section 22 and the notification dated 9.10.1959 issued thereunder were again not placed before the Court.
14. In such circumstances it is clear that the provisions of Section 22 of the Code, the notification dated 9.10.1959 issued thereunder, the two Division Bench judgments of this Court and the Schedule appended to the 7 W.P No.10863/2009 M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 were not placed before the Court while deciding the case of Ashok Kumar Khare (supra), Vinod Kumar Khare (supra) and Phulloo Ram Kol (supra). Had the said notification and judgments been placed before this Court the result would have been different.
15. In the case of A. R. Antulay vs. R. S. Nayak and another, (1988) 2 SCC 602, while dealing with a situation where a decision was rendered oblivious of the relevant provisions of law and a decision of the Supreme Court, it was held as under:-
"42. It appears that when this Court gave the aforesaid directions on February 16, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar case (1952 SCR 284; AIR 1957 SC 75; 1952 Cri LJ 510). See Halsbury's Laws of England, 4th edn., Vol.26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293, 300. Also see the observations of Lord Goddard in Moore v. Hewitt (1947) 2 All ER 270, 272-A and Penny v. Nicholas (1950) 2 All ER 89, 92-A. "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Mills Co. Ltd. (1985) 3 SCR 26; 1985 Supp SCC 280. We are also of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong."
16. In the case of Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, 8 W.P No.10863/2009 Chandigarh and Others, (1990) 3 SCC 682, the Supreme Court while dealing with a question as to the meaning of the expression per incuriam held as under:-
"We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this court has acted in ignorance of a previous decision of its own or when a High court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd. v. State of Bihar (1955) 2 SCR 603; AIR SC 66; (1955) 6 STC 446, it was held that the words of Article 141, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice...."
17. The same view has again been reiterated by the Supreme Court in the case of Mayur Subramanian Shrinivasan vs. CBI, (2006) 5 SCC 752, in para-11 in the following terms:-
""Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293; 1944 KB 718, is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short "the Constitution") which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139. To perpetuate an error is no heroism. To rectify it is the 9 W.P No.10863/2009 compulsion of the judicial conscience. The position was highlighted in Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558); 2004 SCC (Cri) 1989."
18. In the case of Bharat Sanchar Nigam Ltd. and Another vs. Union of India and Others, (2006) 3 SCC 1, the Supreme Court while dealing with the nature of the precedential value of an earlier pronouncement by a Co-ordinate Bench has held that generally decisions rendered on the same facts of law have to be followed and subsequently no authority, whether quasi-judicial or judicial, can generally be permitted to take a different view however this mandate is subject to the usual gateways of distinguishing the earlier decisions or where the earlier decision is per incuriam.
19. A Five Judges Bench of this Court, in the case of Jabalpur Bus Operators Association and others vs. State of M.P. and others, 2003 (1) MPLJ 513, has also reiterated the aforesaid position of law.
20. In the instant petition, though the petitioner has relied upon the judgments in the case of Vinod Kumar Khare (supra) and Phulloo Ram Kol (supra), in view of the provisions of Section 22 of the Code and the Division Bench judgments in the case of Manmohan Singh Thakre (supra) and Mangilal (supra) wherein it has been held that the Sub Divisional Officer has been conferred with the powers of Collector under section 104(2) of the Code by notification dated 9.10.1959 issued under section 22 of the Code which apparently were not brought to the notice of the learned Single Judge while deciding the case of Ashok Kumar Khare (supra), Vinod Kumar Khare (supra) and Phulloo Ram Kol (supra), the said judgments are per-incuriam. I find myself bound and respectfully agree with the decision of the Division Bench in the cases of Manmohan Singh Thakre (supra) and Mangilal (supra) and, accordingly, I am of the 10 W.P No.10863/2009 considered opinion that the Sub Divisional Officer has exercised the powers of the Collector under Section 104(2) of the Code conferred upon him by Section 22 and the notification issued thereunder as well as the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and in such circumstances it cannot be said that the impugned order of the Sub Divisional Officer dated 10.7.2006 is without jurisdiction and, therefore, patently erroneous.
21. The petition, as far as the aforesaid contention of the petitioner is concerned is, accordingly, rejected.
22. It is, however, submitted by the learned counsel for the petitioner that he be granted liberty to pursue the second appeal No.308/3-121/2007-08 filed by him before the Commissioner, Jabalpur Division by taking up all the other issues involved in the case.
23. The petition is, accordingly, disposed of with liberty to the petitioner to pursue his second appeal before the Commissioner.
24. In the facts and circumstances of the case there shall be no order as to the costs.
( R. S. JHA ) JUDGE 05/08/2010 mms/-