Madhya Pradesh High Court
Jamila Bee vs The State Of Madhya Pradesh on 3 May, 2019
THE HIGH COURT OF MADHYA PRADESH
W.A. No. 677/2019
1 Jamila Bee V/s. State of M.P. & others.
Indore, dated : 03.05.2019
Shri Ajay Bagadiya, learned counsel for the
appellant.
Shri Amol Shrivastava, learned Govt. Adv. for the
State.
The appellant/petitioner has filed the present writ
appeal against order dated 6.3.2019 whereby the writ petition
(W.P. No.4335/2019) has been dismissed. The review petition
(R.P. No.364/2019) preferred against the said order has also
been dismissed vide order dated 28.3.2019.
2. Facts of the case, in short, are as under :
(i) According to the petitioner, she is owner and in possession
of land bearing Survey No. 1094/2 area 2.023 Hect. and Survey
No.1094/3 area 2.023 Hect. situated at Village Rau, District
Indore. The land bearing survey No. 1094/3 had been sold to
one Tushar Buildcon Pvt. Ltd. Some time in the year 2014,
employees of M.P. Tourism Development Corpn. along with
Patwari came to the aforesaid land and started demarcation
activities. On enquiry, it came to know that the land of the
petitioner had been allotted to M.P. Tourism Development
Corpn. and now, they are trying to handover the physical
possession by demarcating the land. Upon further enquiry, the
petitioner came to know that her land has been illegally changed
by making the wrong entries in the revenue records and in trace-
map as Survey No. 1094/1 'Ka' and 1094/1 'Kha' without the
knowledge of the petitioner.
THE HIGH COURT OF MADHYA PRADESH
W.A. No. 677/2019
2 Jamila Bee V/s. State of M.P. & others.
(ii) The petitioner being aggrieved by the said new entries,
filed an application u/s. 73 of M.P. Land Revenue Code
(MPLRC), by seeking correction of said in the said wrong entry
in the trace-map. The Tehsildar registered the same and directed
for issuance of notice by way of paper-publication in the local
newspaper for the purposes of inviting objections. On the next
date i.e. on 18.4.2014, no objection was received, therefore, the
Tehsildar directed the Patwari to submit a report. By order dated
10.9.2014, Tehsildar has approved the proposed amendment in
revenue records as per the report. Accordingly, Khasra entries
were corrected.
3. The Assistant Engineer, M.P. Tourism Development
Corpn. vide letter dated 17.9.2014 requested the Tehsildar for
demarcation of land bearing Survey No.1094/1 area 14.554
Hect. for the purpose of construction of a wall. The matter was
again inquired into by the then Additional Tehsildar and it was
found that vide order datd 10.9.2014, earlier Tehsildar has
wrongly approved the proposal of amendment in records in
respect of the Government land and accordingly he has
registered a revision in exercise of suo motu powers. Thereafter,
he sent a report to the Collector. The Collector vide order dated
28.2.2015 has recorded as many as six irregularities in order
dated 10.9.2014 and set aside the same. The irregularities
pointed out by the Collector are reproduced below :
"1- izdj.k dh vknsf'kdk esa vkosfndk Jherh tehyk ch ds vkosnu
izLrqr fd;s ds fnukad dh vaxqBk fu'kkuh vafdr gSA mlds i'pkr
THE HIGH COURT OF MADHYA PRADESH
W.A. No. 677/2019
3 Jamila Bee V/s. State of M.P. & others.
dh leLr vknsf'kdk vukosfndk dh mifLFkrh vafdr dh xbZ gS ijUrq
vkosfndk ds gLrk{kj@v fu'kuh vafdr ugha ikbZ xbZA
2- vknsf'kdk fnukad 18-04-2014 esa rRdkyhu ihBklhu vf/kdkjh }kjk
ys[k fd;k fd **foKfIr Lons'k lekpkj i= fnukad 18-04-2014 esa
izdkf'kr gksdj izkIr ------ Hkh izdkj dh vkifRr ugha vk;h**A fnukad
18-04-2014 dks izdkf'kr foKfIr mlh fnu vkifRr vkuk laHko ugh
gSA foKfIr dk izdk'ku fdl fnukad ------ lekpkj i= esa fd;k x;k
gS Li"V ugha gSA ,slk izrhr gksrk gS fd vkfnf'kdk QthZ rkSj ij
rS;kj dh xbZ gSA foKfIr izdk'ku ds lekpkj i= dfVax Hkh iw.kZ isij
dh ugh yxkbZ xbZ gSA
3- izdj.k esa layXu foKfIr tkod Øekad 1216@jh&4@2014 fnukad
03-04-20-- tkjh dh xbZ gSA foKfIr dh rkehyh@pLik fdl&fdl
LFkku ij dh xbZ ugh gSA
4- izdj.k esa vkosfndk tehyk ch }k e-iz- Hkwfe jktLo lafgrk 1959
dh /kkjk 73 ds varxZr vkosnu izLrqr fd;k gSA lafgrk dh /kkjk 73
dh 'kfDr;kWa cankscLr vf/kdkjh dks iznRr gSA rglhynkj }kjk
vf/kdkj okg~; vkns'k ikfjr fd;k x;k gSA
5- [kljk uEcj 1094@2 ,oa 1094@3 iwoZ ls gh uD'ksa esa fefeZr jgk gS
rks caVkdu Hkh mlh Hkwfe esa ls gksuk pkfg;s] tcfd rRdkyhu
rglhynkj }kjk mDr losZ uEcjksa dh Hkwfe dks 'kkldh; Hkwfe losZ
uEcj 1094@1 **d** esa f'kQ~V djus ds vkns'k fn;s gS tks vf/kdkfjrk
foghu gksdj ?kksj ykijokgh dh Js.kh esa vkrk gSA
6- vij rglhynkj bUnkSj }kjk ikfjr vkns'k fdl /kkjk@izko/kku ds
varxZr tkjh fd;k x;k gS mYys[k ugh fd;k x;k gSA "
4. Being aggrieved by the aforesaid order of Collector,
the petitioner preferred a revision before the Board of Revenue.
The Board of Revenue vide order dated 14.11.2015 has
dismissed the revision. Being aggrieved by the said order, the
petitioner preferred review petition, but later on, withdrawn the
same.
5. Being aggrieved by the aforesaid order, petitioner
preferred W.P. No.4335/2019 before this Court. By order dated
6.3.2019, learned Writ Court has dismissed the petition on the
ground that u/s. 73 of the MPLRC, Tehsildar is not a competent
authority to pass an order, therefore, the order is a nullity, hence
THE HIGH COURT OF MADHYA PRADESH
W.A. No. 677/2019
4 Jamila Bee V/s. State of M.P. & others.
question of grant of any opportunity to the petitioner does not
arise. Hence, the present writ appeal before this Court.
6. Shri Ajay Bagadiya, learned counsel appearing for
the petitioner, argued that the Tehsildar passed order dated
10.9.2014 after following due process of law. A proper
publication was done and despite that, no objection was
received. Thereafter, the successor Addl. Tehsildar has wrongly
registered the case in exercise of suo motu powers without
giving any opportunity of hearing to the petitioner. Learned
Collector has also passed order dated 28.2.2015 without giving
any opportunity of hearing to the petitioner, therefore, the Board
of Revenue ought to have remanded the case to the Collector for
fresh adjudication. Learned Writ Court has wrongly dismissed
the writ petition holding that the Tehsildar was not competent
authority to pass order u/s. 73 of MPLRC. He submits that it is a
case of filing an application under the wrong provision of law.
The Tehsildar ought to have treated the application u/s. 115 and
116 of the MPLRC for correction/amendment in the revenue
record. Hence, the impugned order is liable to be set aside.
7. Shri Amol Shrivastava, learned Govt. Advocate,
appearing on behalf of the respondents/State, submitted that the
present writ appeal is not maintainable as the Writ Court dismissed the writ petition in exercise of powers Article 227 of the Constitution by placing the reliance over the judgment of the apex Court in the case of Shalini Shyam Shetty V/s. Rajendra Shankar Patil : (2010) 8 SCC 329 describing the power of THE HIGH COURT OF MADHYA PRADESH W.A. No. 677/2019 5 Jamila Bee V/s. State of M.P. & others.
High Court under Article 227 of the Constitution, therefore, the present writ appeal is liable to be dismissed.
7. The appellant/petitioner filed an application seeking correction of division ('Batankan') of Survey No.1094/2 area 2.023 Hect. and 1094/3 area 2.023 Hect. Admittedly, the petitioner filed the application under the wrong provision, and the Addl. Teshildar has entertained the application under the some incorrect provision of law. The Tehsildar directed for publication of notice for inviting objections and fixed the case on 18.4.2014. It has been recorded that the notice was published in the newspaper dated 18.4.2014, therefore, it was not possible to submit the objection/s on the same date. The Patwari submitted the report recommending correction in the revenue record and vide order dated 10.9.2014, Addl. Tehsildar has approved the same.
8. M.P. Tourism Development Corpn. Filed an application for demarcation. It came to the notice of the then Nayab Tehsildar that copy of copy of complete newspaper has not been filed in which notice was published. The petitioner appeared only on the date of filing, thereafter, in all the order- sheets, her thumb impression is not there, the Tehsildar is not having power u/s. 73 of MPLRC to pass any order, the land bearing Survey No.1094/2 and 1094/3 were already there in the map, therefore, the order of division ought to have been passed for the said land, but the order of division has been passed in respect of Survey No.1094/1'Ka' which is a Government land.
THE HIGH COURT OF MADHYA PRADESH W.A. No. 677/2019 6 Jamila Bee V/s. State of M.P. & others.
9. U/s. 70 of MPLRC, the Settlement Officer is competent to renumber or sub-divide survey numbers into as many as sub-divisions as may be required in view of acquisition of rights in land or for any other reason. U/s. 71, the area and assessment of survey numbers and sub-divisions of survey numbers shall be entered in such records as may be prescribed. Section 73 gives power to Settlement Officer to divide a village to constitute two or more villages or may amalgamate two or more villages and constitute one village. Therefore, the application u/s. 73 of MPLRC has wrongly been filed and the order on the said application has also been wrongly passed by the Tehsildar. Section 73 is not applicable in the present case.
10. Shri Bagadiya, learned counsel for the petitioner, submitted that the Tehsildar ought to have exercised the powers u/s. 115 and 116 of the MPLRC. U/s. 115, Tehsildar has a power to direct for change the wrong or incorrect entry in the record. U/s. 116, if any person is aggrieved by an entry made in the land records prepared u/s. 114, he shall apply to the Tehsildar for its correction within one year of the date of such entry. Therefore, u/s. 116, the application was liable to be filed within one year from the date of entry made u/s. 114.
11. In view of the above, we do not find any illegality in the order passed by the revenue authorities as well as by the learned writ Court. The order passed by the Addl. Tehsildar in favour of the petitioner is illegal and without authority of law, hence the present writ appeal is liable to be dismissed. The THE HIGH COURT OF MADHYA PRADESH W.A. No. 677/2019 7 Jamila Bee V/s. State of M.P. & others.
petitioner is at liberty to approach revenue authorities or Court in accordance with law.
12. Accordingly, this writ appeal fails and is hereby dismissed.
(PRAKASH SHRIVASTAVA) (VIVEK RUSIA)
JUDGE JUDGE
Alok/-
Digitally signed by Alok Gargav
Date: 2019.05.10 12:09:56 +05'30'