Madhya Pradesh High Court
Keshri Nandan vs Pradeep Kumar on 3 July, 2019
1 M.P. No.2178/2019
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
M.P. No. 2178/2019
(Keshri Nandan & Another Vs. Pradeep Kumar and Others)
Jabalpur, dated : 03.07.2019
Shri Sumanta Bhattacharya, learned counsel for the petitioners.
Shri D.K. Tripathi, learned counsel for the respondents No.1, 2
and 3.
Smt. Devika Singh, learned Government Advocate for the respondent No.5/ State.
2. This petition has been filed by the petitioners under Article 227 of the Constitution of India challenging the order dated 04.04.2019 (Annexure-P/3) passed by the Additional Commissioner under the revenue proceedings.
3. A preliminary objection is raised by the learned counsel for the respondents is that against the order of Additional Commissioner, petition under Article 226 of the Constitution of India is maintainable but not under Article 227. He submits that the Commissioner Revenue does not come within the superintendence power of the High Court and accordingly the petitioners cannot avail the superintendence jurisdiction of the High Court by filing petition under Article 227 of the Constitution of India.
In reply to the objection raised by the respondents, the learned counsel for the petitioners submits that in all quasi-judicial proceedings, the High Court can entertain petition under Article 227 2 M.P. No.2178/2019 of the Constitution of India. To support his contention, he relied upon a decision reported in 1984 (Supp) SCC 540 [Manmohan Singh Jaitla vs. Commissioner, Union Territory of Chandigarh and Others], in which the Supreme Court, while dealing with the petition under Article 227 of the Constitution of India and objection regarding its maintainability, has observed as under :-
"7. The High Court declined to grant any relief on the ground that an aided school is not 'other authority' under Article 12 of the Constitution a4nd is therefore not amenable to the writ jurisdiction of the High Court. The High Court clearly overlooked the point that Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 act. They are quasi-judicial authorities and that was not disputed. Therefore, they will be comprehended in the expression 'Tribunal' as under in Article 227 of the Constitution which confers power of superintendence over all courts and tribunals by the High Court throughout the territory in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the statutory quasi-judicial authorities which can be appropriately described as tribunal will be subject to judicial review namely a writ of certiorari by the High Court under Article 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising powers under Section 3 of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the High Court."3 M.P. No.2178/2019
In view of the observation made by the Supreme Court, it is clear that the Commissioner under the present circumstances can be considered to be a quasi-judicial authority as he was functioning as a statutory authority prescribed under M.P. Land Revenue Code, 1959 (hereinafter referred to as the 'Code of 1959'). Thus, the objection raised by the respondents regarding maintainability of the petition under Article 227 of the Constitution of India is hereby rejected.
4. The learned counsel for the petitioners submits that the property in question was purchased by the petitioners in the year 2001 from the respondent No.4 namely Kamlesh Kumar S/o Late Shri Jagdev Prasad Nigam vide sale deed dated 14.05.2001 (Annexure-P/1) and on the basis of the said sale deed they moved an application for mutation of their names which got allowed in the year 2004 and accordingly, the revenue records were corrected entering the name of the petitioners in respect of the land in question. An appeal has been preferred in the year 2016 by the respondents No.1 to 3 disputing the mutation made in favour of the petitioners on the ground that the property sold to the petitioners by respondent No.4 was a joint family property and the respondent No.4 was one of the co-sharers in the same and he has sold the land in excess of his share and no notice before the mutation had been issued by the revenue authorities to them and as such, that mutation which was executed in favour of the petitioners got set aside. Against the said order, an appeal was preferred before the Sub-Divisional Officer by the present petitioners but that appeal was rejected vide order dated 28.07.2017 (Annexure- 4 M.P. No.2178/2019 P/2) against which a second appeal under Section 44(2) of the Code of 1959 was preferred but that appeal was also dismissed by the Additional Commissioner against which the petitioners have filed this petition challenging the orders passed by the revenue authorities mainly on the ground that the authorities have not appreciated the existing facts and circumstances of the case. The learned counsel for the petitioners has also drawn the attention of this Court towards the documents Annexure-P/4 i.e., the Khasra Panch sala of the year 1994- 95 and 1998-99. In the said documents, entries have been made in respect of the some partition which took place somewhere in the year 1997 showing that 0.324 hectares of land was given to the respondent No.4. He submits that although, the authorities have taken note of the Khasra entries for the respective year 1994-95 to 1998-99 but ignored the material entry regarding the partition of the disputed land. The learned counsel for the petitioners further pointed out that the revenue document, i.e., Annexure-P/6 in which the respective share over the property in question has been shown and the land measuring 0.324 hectares is shown to be recorded in the name of the respondent No.4. He submits that in view of the existing circumstances when the revenue authorities have not taken care of the partition which took place between the respondents No. 1 to 3 and 4 and also without taking note of the fact that the sale deed got executed in the year 2001 has not been challenged and that the said sale deed was the foundation of mutation made in favour of the petitioners, the orders passed by the revenue authorities including the order impugned are 5 M.P. No.2178/2019 liable to be set aside as the same are illegal and contrary to law.
5. Per contra, Shri Tripathi, learned counsel appearing for the respondents No.1 to 3 submits that the documents Annexure-P/4 was never placed before the authorities. He also submitted that entry in respect of the partition of land is forged and he has applied for the said documents under the Right to Information Act but from the office of Collector it has been informed that no such documents are available in their office and in this regard he has filed a document dated 09.06.2016 (Annexure-R/1) along with the reply. He further submits that the petitioners have not disclosed the fact before the revenue authorities regarding execution of the sale deed and also about such partition which is contained in the documents Annexure- P/4.
6. As per the arguments advanced by the learned counsel for the respondents No.1 to 3, since the petitioners failed to establish any grounds and to substantiate as to how the order passed by the Additional Commissioner is contrary to law, they are not entitled to get any relief in the petition preferred under Article 227 of the Constitution of India. For this purpose, he has relied upon a decision of the Supreme Court reported in 2010 (4) M.P.L.J. 590 [Shalini Shyam Shetty vs. Rajendra Shankar Patil]. He submits that the Supreme Court in the case of Shalini Shyam Shetty (supra) has laid down the parameters under which the High Court can interfere in a petition filed under Article 227 of the Constitution of India. Accordingly, the observation made by the Apex Court is required to 6 M.P. No.2178/2019 be seen and thus, paragraph 62 of the said order may be considered and it is apt to reproduce paragraph-62 which reads as under :-
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it.
In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in 7 M.P. No.2178/2019 Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India 8 M.P. No.2178/2019 & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article
227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, 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 this Article 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 High Court.
9 M.P. No.2178/2019
(n) 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 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
7. Arguments heard, record perused.
8. In view of the contention raised by the learned counsel for the petitioners, it is an admitted position that the respondent No.4 executed the sale deed in favour of the petitioners in the year 2001. The Sub-Divisional Officer, in its order dated 28.07.2017 (Annexure- P/2), has also taken note of the sale deed which was executed in favour of the petitioners and has also taken note of the revenue entries as shown in Khasra Panch sala for the year 1994-95 to 1998-
99. It is apparent that despite taking note of such material facts, the Sub-Divisional Officer has not given any reasoning as to how the mutation which took place on the basis of sale deed can be said to be illegal. He has also not assigned any reason that the documents Annexure-P/4 contained the entries regarding partition. He acted presuming that the facts mentioned by the respondents No.1 to 3 are correct and has not taken note of the impact of the sale deed executed 10 M.P. No.2178/2019 by the respondent No.4 in favour of the petitioners and when the same has not been assailed by the respondents No.1 to 3 in any competent court for seeking declaration about its illegality. In the order, it is mentioned that while getting the name of the petitioners mutated provisions made under Section 110 of the Code of 1959 have been followed. Although, it does not describe as to what irregularities have been committed by the authorities and in what manner the mentioned rules have not been followed. Thereafter, the Additional Commissioner has reiterated the findings given by the Sub-Divisional Officer and rejected the appeal. None of the revenue authorities in the orders passed by them have considered the impact of the sale deed executed by the respondent No.4 in favour of the petitioners. It is noteworthy to mention here that the sale deed is a valid document and is the foundation for mutating the name of the holder of the sale deed. If the document of sale is available then the revenue authorities have no option but to mutate the name of the holder of the sale deed in the revenue records and as such, mutation done in favour of the petitioners cannot be set aside unless the sale deed executed in their favour is set aside by any competent court. Thus, in my opinion all the revenue authorities have committed gross and material illegality while setting aside the mutation made in favour of the petitioners which was made on the basis of the sale deed.
9. So far as the objection raised by the learned counsel for the respondents relying upon a decision in the case of Shalini Shyam 11 M.P. No.2178/2019 Shetty (supra) and the criteria laid down therein as to under what circumstance the High Court can interfere while exercising its superintendence power under Article 227 of the Constitution of India is concerned, from perusal of the documents and orders passed by the revenue authorities and the discussion made herein above, this is a fit case in which this Court can exercise power under Article 227 of the Constitution of India for the reasons that the order impugned is apparently illegal and suffers from errors of law and fact and is a clear example of patent perversity. Although, the learned counsel for the respondents is alleging that the entries made in the documents Annexure-P/4 in respect of partition are forged and in support of his contention he has filed a document dated 09.06.2016 but only on the basis of such a disclosure made in the said document, I do not find any specific averments and information that the entries made in the Khasra Panch sala as filed by the petitioners as document Annexure- P/4 is a forged one. In such a circumstance, the orders impugned are illegal and are clear example of perversity therefore, the same is not sustainable in the eye of law and accordingly they are set aside. The order passed by the Commissioner since found illegal therefore, the orders passed by its subordinate authorities are also illegal and set aside. However, if the respondents No. 1 to 3 avail the civil remedy for challenging the sale deed executed in favour of the petitioners, in that event, the civil court will decide the same in accordance with law on its own merits without influencing with the findings or observations made by this Court in this order. 12 M.P. No.2178/2019
10. Accordingly, the petition filed by the petitioner is allowed and disposed of as indicated herein above. Parties shall bear their own costs.
Certified copy as per rules.
(SANJAY DWIVEDI) JUDGE Priya.P Digitally signed by Priyanka Pithawe Date: 2019.07.09 17:26:16 +05'30'