Madhya Pradesh High Court
Rambhau Korku (Dead) Through Lrs. ... vs The Additional Collector on 29 February, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 29TH OF FEBRUARY, 2024
MISC. PETITION NO.4450 OF 2022
BETWEEN:-
1. RAMBHAU KORKU (DIED) S/O LATE
VISHANLAL KORKU, AGED ABOUT 45
YEARS, OCCUPATION - FARMER, R/O
VILLAGE KARADAKHURD, TEHSIL ITARSI,
DISTRICT NARMADAPURAM (MP)
THROUGH LRS:
1(a) GULIYA BAI W/O LATE RAMBHAU KORKU,
AGED ABOUT 40 YEARS, OCCUPATION -
AGRICULTURIST, R/O VILLAGE
KASDAKHURD, POST KALA, AKHAR,
TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
1(b) DIPIK KAJLE S/O LATE RAMBHAU KORKU,
AGED ABOUT 21 YEARS, OCCUPATION -
STUDENT, R/O VILLAGE KASDAKHURD,
POST KALA, AKHAR, TEHSIL ITARSI,
DISTRICT NARMADAPURAM (MP)
1(c) REKHA KAJLE D/O LATE RAMBHAU
KORKU, AGED ABOUT 18 YEARS,
OCCUPATION - STUDENT, R/O VILLAGE
KASDAKHURD, POST KALA, AKHAR,
TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
1(d) RAJA KAJLE S/O LATE RAMBHAU KORKU,
AGED ABOUT 17 YEARS, OCCUPATION -
STUDENT, R/O VILLAGE KASDAKHURD,
POST KALA, AKHAR, TEHSIL ITARSI,
DISTRICT NARMADAPURAM (MP)
1(e) RAJESH KAJLE S/O LATE RAMBHAU
KORKU, AGED ABOUT 17 YEARS,
2
OCCUPATION - STUDENT, R/O VILLAGE
KASDAKHURD, POST KALA, AKHAR,
TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
.....PETITIONERS
(BY MS. MAMTA BARASKAR - ADVOCATE)
AND
1. THE ADDITIONAL COLLECTOR
NARMADAPURAM, DISTRICT
NARMADAPURAN (MP)
2. SUB DIVISIONAL OFFICER (R) ITARSI,
DISTRICT NARMADAPURAM (MP)
3. TEHSILDAR, TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
4. RAMBHAROS S/O KALIRAM, R/O VILLAGE
KARDAKHURD, TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
5. RAMVILASH S/O KALIRAM, R/O VILLAGE
KARDAKHURD, TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
6. RAJARAM S/O KALIRAM, R/O VILLAGE
KARDAKHURD, TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
7. RAMLAL S/O KALIRAM, R/O VILLAGE
KARDAKHURD, TEHSIL ITARSI, DISTRICT
NARMADAPURAM (MP)
.....RESPONDENTS
(SHRI TAPAN BATHRE - PANEL LAWYER FOR RESPONDENT NOS.1 TO
3/STATE)
(SHRI SOUMITRA KUMAR DUBEY - ADVOCATE FOR RESPONDENT
NOS.4 TO 7)
................................................................................................................................................
Reserved on : 20.02.2024
Pronounced on : 29.02.2024
................................................................................................................................................
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
3
ORDER
By the instant petition filed under Article 227 of the Constitution of India, the petitioners are questioning the validity of the orders dated 01.02.2022 (Annexure-P/2) and 26.07.2022 (Annexure-P/4) passed by the revenue authorities.
2. As per the facts of the case, an application was moved by the original petitioner under Section 170-B of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the 'Code, 1959') claiming therein that his grandfather Mangal S/o Mohkam Korku, R/o Kardakhurd was the owner and occupant of land belonging to Kharsa No.360 area measuring 5.58 acres and Khasra No.325 area measuring 1.16 acres, who died somewhere in the year 1956-57. The father of original petitioner Vishanlal was the legal heir of Mangal. Vishanlal sold the land to the father of respondent Nos.4 to 7 (private respondents) i.e. 1.16 acre of Khasra No.325 vide registered sale-deed dated 03.02.1964 and 2.13 acre of Khasra No.360 vide registered sale-deed dated 28.08.1964. As such, he sold 3.23 decimal land to the father of private respondents and possession was also handed over as such.
3. It is claimed that the land belonging to Scheduled Tribe community and as such, the same cannot be transferred to any other person who does not belong to the said community and if any such transaction is made, the same can be declared void and as such, both the sale-deeds dated 03.02.1964 and 28.08.1964 be set aside as those are void according to the petitioners.
4. The Sub Divisional Officer on the said application registered a case and issued notice to the respondents, called for their reply and after dealing with the case and recording the statement of the witnesses found 4 that after selling the land, the private respondents are in occupation and have been cultivating the said land. It is also found by the Sub Divisional Officer that the sale was made after obtaining permission from the Collector Hoshangabad and the said permission was also examined by the said authority and he found that the permission was granted under the provision of Section 165(6) of the Code, 1959. The application was moved by the father of the petitioners showing requirement of money for marriage and, therefore, after calling report, the Collector granted permission and it is also observed by the Sub Divisional Officer that in the year 1964, there was no provision like 170-B, therefore, the application moved by the petitioners was rejected by the Sub Divisional Officer.
5. Thereafter, an appeal was preferred before the Additional Collector, Narmadapuram, which was registered vide case No.104/appeal/2022-23 and decided vide order dated 26.07.2022, in which it is observed that the Collector Hoshangabad in a case bearing No.17/A-21/63-64 granted permission to execute the sale and as such, the sale-deed dated 28.08.1964 was executed giving reference of the said permission. It is also observed by the Collector that the mutation got done after execution of sale-deeds. It is further observed by the Additional Collector that the petitioners failed to substantiate that under any fraud the sale got executed. The Additional Collector considering the said facts and circumstances of the case, affirmed the finding given by the Sub Divisional Officer and also dismissed the appeal.
6. The counsel for the petitioners has tried to establish that no such sale-deed got executed by the father of original petitioner because he was handicapped and it was not possible for him to travel to the office of 5 Registrar and, therefore, according to her, the said sale-deeds are fraudulent and not executed by the father of original petitioner. She has also submitted that the father of original petitioner has sufficient land, therefore, there was no reason for him to sell the land as he was short of funds for marriage. She has submitted that this reasoning assigned in the order that the application said to have been made by the father of original petitioner for seeking permission, does not appear to be proper. The counsel for the petitioner has also submitted that the petitioners had no knowledge about the said sale and the moment they came to know about the sale-deeds, they immediately approached the authority for quashing of sale-deeds.
7. Per contra, the counsel for the respondents has opposed the submissions made by the counsel for the petitioners and submitted that all these grounds which are being argued by the counsel have not been taken and no allegation with regard to fraud committed made in the petition even and it is also nowhere stated that the executor of the sale- deeds was handicapped and was not capable to move and as such, the execution of sale-deeds by him itself created doubt. He submits that the sale-deeds were executed after obtaining proper permission from the Collector and claim for setting aside those sale-deeds after such a long time is otherwise not maintainable as no proper explanation is given about the delay. He has further submitted that the provision of Section 170-B of the Code, 1959, was introduced in the Code itself by making amendment w.e.f. 24.10.1980, meaning thereby, any application in respect of transaction or sale made in the year 1964 cannot be questioned as the said provision i.e. Section 170-B of the Code, 1959 has no retrospective effect and, therefore, the claim of the petitioners 6 before the revenue authorities asking quashing of sale-deeds of 1964 under the provision of Section 170-B of the Code, 1959, was itself misconceived and not maintainable. In support of his submissions, the counsel for the respondents has placed reliance upon an order of Division Bench of this Court reported in 2015 (2) M.P.L.J. 113 (Sukra Bai v. Makhan Gir Mahant), in which, the Court has observed as under:-
"5. We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the sale deed dated 29-3-1966 was executed by Shivlal, predecessor-in-title of the appellant in pursuance of permission which was validly granted by the Collector in exercise of power under section 165(6) of the Code on 13-1-1966. In this context, the learned Single Judge has held that the burden is on the appellant to prove that permission under section 165(6) of the Code was obtained by playing fraud. For the reasons assigned in paragraph 14 of the impugned order it has rightly been held by learned Single Judge that appellant has failed to discharge the aforesaid burden. The provisions of sub-section (1) and (2) of the section 170-B of the Code, in our considered opinion, apply to the case where the land has not been transferred by way of registered instrument. In the instant case, the land was not only transferred by registered instrument, but also after obtaining permission under section 165(6) of the Code. In any case, provisions of sub-section (1) and (2) of the section 170-B of the Code have no application to the facts of the case. It is trite law that in exercise of power under Article 226 of the Constitution of India this Court can issue directions to ensure that justice is done to the parties. In the facts of the case, learned Single Judge has not committed any error in issuing the impugned directions contained in paragraph 15 of the impugned order warranting interfering in an intra-Court appeal."
8. I have heard the rival contentions of learned counsel for the 7 parties and perused the record. It is a petition filed under Article 227 of the Constitution of India. Undoubtedly this Court, under this article, can exercise the correctional jurisdiction in cases where the orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. However, this Court cannot lightly or liberally act as an appellate court and reappreciate the evidence and can not substitute its own conclusions for the conclusions reached by the authority. As such, in the facts and circumstances of the case at Bar, interference in the concurrent findings of fact recorded by the revenue authorities reiterating that there is nothing illegal in execution of sale-deeds of 1964 because that was executed after granting permission by the Collector and taking note of details of other circumstances, is not warranted.
9. This Court while dealing with almost similar situation in W.P. No.834 of 2014 (Yogesh Kumar Gupta v. Board of Revenue and others) relying upon catena of decisions rendered by the Supreme Court on the issue has dismissed the petition after very elaborately discussing the scope of interference in a petition filed under Article 227 of the Constitution, that too in the concurrent finding recorded by the authorities. In the said case while reaching to the conclusion, this Court relied upon the decisions reported in (2010) 9 SCC 385 (Jai Singh and others v. Municipal Corporation of Delhi and another), (1999) 9 SCC 264 (Khimji Vidhu v. Premier High School), (1975) 1 SCC 858 (Bthutmal Raichand Oswal v. Laxmibai R. Tarta and another), AIR 1960 SC 137 (Satyanarayan Laxminarayan v. Millikarjun Bhavanappa Tirumale), (1977) 23 SCC 515 (S.P. Deshmukh v. Sah Nihal Chand Waghajibai), (1998) 3 SCC 341 (Rena Drego v. Lalchand Soni and others), (2010) 8 SCC 329 (Shalini Shyam Shetty v. Rajendra Shankar Patil), 2014 (1) MPWN 34 (Geeta 8 Deubey v. Saroj Suhane) and M.P. No.338 of 2017 (Lakhanlal Shrivastava v. Smt. Laxmi Gupta).
10. The Supreme Court in a case reported in (2010) 9 SCC 385 (Jai Singh and others v. Municipal Corporation of Delhi and another) has considered the scope of interference in a petition filed under Article 227 of the Constitution of India and observed as under :-
"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognised principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
x x x
16. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it can not substitute its own conclusions for 9 the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.
x x x
42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in Estralla Rubber v. Dass Estate (P) Ltd. wherein it was observed as follows: (SCC pp.
101-02, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or 10 tribunal has come to.""
In case of Shalini Shyam Shetty (supra), the Supreme Court has observed as under:-
"Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 maybe unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."
In case of Khimji Vidhu (supra) in paragraph-5, the Supreme Court observed as under:-
"....... Jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellant Court only........."
In case of Rena Drego (supra) in paragraph-4, the Supreme Court 11 observed as under:-
"4. According to us, the High Court has traversed far beyond the limit of its supervisory jurisdiction under Article 227 of the Constitution when the learned Single Judge reversed the decree of eviction which was based on findings of facts arrived at by the fact-finding authority upon the evidence on record. It would have been well for the High Court to remind itself that it was not exercising certiorari jurisdiction under Article 226 of the Constitution but a supervisory jurisdiction under Article 227 which obliges the High Court to confine to the scrutiny of records and proceedings of the lower tribunal. By relying on fresh materials which were not before the Tribunal, the High Court should not have disturbed findings of facts in exercise of such supervisory jurisdiction. It is now wellnigh settled that power under Article 227 is one of judicial superintendence which cannot be used to upset conclusions of facts, however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached them. Way back in 1954, a Constitution Bench of this Court, in Waryam Singh v. Amarnath [AIR 1954 SC 215 : 1954 SCR 565] has pointed out that the power of superintendence conferred by Article 227 should be exercised "most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors"."
(emphasis supplied) In case of Satyanarayan Laxminarayan Hegde (supra), in paragraph- 18, the Supreme Court observed as under :-
"18. We have noticed that in the application to the High Court the respondent asked that Court to exercise its power of superintendence under Article 227 of the Constitution by the 12 method of issuing a writ of certiorari or any other suitable writ. Art. 227 corresponds to S. 107 of the Government of India Act, 1915. The scope of that section has been discussed in many decisions of Indian High Courts. However, wide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227."
Likewise in other cases also referred hereinabove, the Courts have made observations in almost same manner.
11. Thus in view of the discussions made hereinabove and the law laid down by the Supreme Court as well as the High Court in the cases referred hereinabove in respect of scope of interference in a petition filed under Article 227 of the Constitution, I am of the considered view that when there is concurrent finding of fact recorded by both the subordinate courts, the objection raised by the petitioners with regard to correctness of the orders passed by the revenue authorities does not have any substance because Section 170-B of the Code, 1959 is not applicable in the present case for the purpose of questioning the transaction made somewhere in the year 1964. Even otherwise, when permission granted by the Collector as per the-then existing provision i.e. 165(6) of the Code, 1959, nothing illegal is found in the said sale- deeds, especially when the petitioners did not assail the same for a long 13 time. Not only this, the executor i.e. the father of original petitioner in his lifetime has never raised any objection about the said sale, especially when mutation was done in the revenue record in pursuance to the said sale-deeds and the possession of the land was also with the respondents. Accordingly, in my opinion, the petition filed by the petitioners is without any substance and this Court does not find it fit to interfere in the concurrent finding of both the subordinate courts.
12. In the result, the petition fails and accordingly, it is dismissed.
(SANJAY DWIVEDI) JUDGE ac/-
Digitally signed by ANIL CHOUDHARY Date: 2024.03.01 14:51:27 +05'30'