Madhya Pradesh High Court
Govind Das vs Rajpal Singh on 30 January, 2024
W.P. 7373 OF 2017.
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION NO. 7373 OF 2017.
BETWEEN :-
1. GOVIND DAS S/O SHRI RADDHU AHIRWAR,
AGED ABOUT 35 YEARS, DHOOTKADA TEH.
PALERA DISTT. TIKAMGARH (MADHYA
PRADESH).
2 RAJDHAR S/O SHRI RILLI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
3. RAMESHWAR S/O SHRI RILLI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
4. KASHIRAM S/O SHRI RILLI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
5. CHIKKI S/O SHRI RILLI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
6. DEEPCHANDRA S/O SHRI RILLI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
7. LALLU S/O SHRI CHIDAMI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
8. RAMPAL S/O SHRI CHIDAMI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
9. RAJARAM S/O SHRI CHIDAMI AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
10. ASHARAM S/O SHRI ALMA AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
W.P. 7373 OF 2017.
2
11. JAIRAM S/O SHRI ALMA AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
12. RAMESH S/O SHRI ALMA AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
13. MUNNALAL S/O SHRI ALMA AHIRWAR
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
14. GOPAL S/O SHRI NATHU DHOOTKADA TEH.
PALERA DISTT. TIKAMGARH (MADHYA
PRADESH).
15. CHATRAPAL S/O SHRI NATHU DHOOTKADA
TEH. PALERA DISTT. TIKAMGARH
(MADHYA PRADESH).
16. NATHUA S/O SHRI LAMPUR DHOOTKADA
TEH. PALERA DISTT. TIKAMGARH
(MADHYA PRADESH).
17. SHYAMLAL S/O SHRI LAMPUR DHOOTKADA
TEH. PALERA DISTT. TIKAMGARH
(MADHYA PRADESH).
....PETITIONERS
(BY SHRI D.K. TRIPATHI- ADVOCATE)
AND
1. RAJPAL SINGH S/O SHRI DARYAAB SINGH
VILLAGE DHOOTKADA TEH. PALERA
DISTT. TIKAMGARH (MADHYA PRADESH).
2. BHAGWANDAS S/O SHRI PARAM LODHI
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH)
3. LAXMI S/O SHRI PARAM LODHI
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH)
4. INDRAPAL S/O SHRI DARYAAB SINGH
DHOOTKADA TEH. PALERA DISTT.
TIKAMGARH (MADHYA PRADESH).
....RESPONDENTS
(BY SHRI ANVESH SHRIVASTAVA - ADVOCATE)
W.P. 7373 OF 2017.
3
-------------------------------------------------------------------------------------
Reserved on : 01/12/2023
Pronounced on : 30/01/2024
-------------------------------------------------------------------------------------
This petition having been heard and reserved for judgment/order,
coming on for pronouncement this day, this Court passed the following:
ORDER
This petition has been filed under Article 227 of the Constitution of India challenging the order Annexure P-1 dated 09.2.2017 by the Board of Revenue, Gwalior in Revision No. 2761-I-2016. By the said order, the order of allotment dated 15.5.2002 in favour of the petitioners has been set aside, so also the appellate order dated 25.7.2016 whereby the said allotment was affirmed.
2. The learned counsel for the petitioner submits that the State Government had framed a scheme dated 23.10.1999 (Annexure P-2) for allotment of Governent land to landless persons. Allotments were made in favour of the petitioners by the Tehsildar vide order dated 15.5.2002 in terms of the said scheme. However, the present respondents, who are allegedly encroachers in Government lands, filed appeal against the allotment in the year 2010 i.e. with a delay of 9 years. The said appeal was dismissed by the SDO vide order annexure P-7 dated 25.7.2016 on the ground of delay as well as locus of the present respondents.
3. It is further submitted that thereafter the present respondents filed a revision before the Board of Revenue that has been allowed by the Board vide the impugned order annexure P-1, on irrelevant considerations.
4. It is also contended that the power of allotment of Government land is provided only under the Revenue Book Circulars, and the said instructions are having a separate procedure and remedies of Appeals and Revisions. Thus, the appellate and revisional remedies under the MP Land W.P. 7373 OF 2017.
4Revenue Code shall not apply. It is stated that under the Revenue Book Circulars ("RBC" for short), no revision lies to the Board. Thus, the order of the Board of Revenue is without jurisdiction.
5. The order is sought to be assailed on merits also.
6. Per contra, it is stated by the learned counsel for the respondents that though under the RBC, revision does not lie before the Board of Revenue, but still, as Revision lies to the Board of Revenue under MP Land Revenue Code, hence, the aggrieved person can avail the remedy before the Board as well. It is stated that a remedy that has been provided by the MPLRC cannot be taken away by RBC, which is merely an executive instruction, though issued in the name of Governor.
7. On merits also, averments have been made to defend the order passed by the Board of Revenue.
8. Heard learned counsel for the rival parties.
9. The Board of Revenue has upset the allotment in favour of the petitioners on the ground that the present respondents/their ancestors were in actual possession of the said Government land since a number of years even prior to allotment to the present petitioners, hence, without hearing them, the State could not have allotted the land to any other person. On the contrary, it is the case of the petitioners on merits that even if the present respondents were in actual possession, then they were mere encroachers and trespassers and had no right of audience and the land being admittedly Government land, the State had the discretion to allot the land to the petitioners under the social welfare scheme framed by the State in terms of Section 4 (3) of RBC.
10. Before adverting to the merits, first the issue of jurisdiction of the Board of Revenue is taken up, because if the order of the Board is found to be sans jurisdiction, the merits would not be required to be adjudicated.
W.P. 7373 OF 2017.
511. It is not disputed that as per Clause 30 of Section 4 (3) of the RBC there is a separate process of appeal and revision under the RBC and there is no provision to prefer Revision to the Board of Revenue, and the same lies either to the Collector, Commissioner or to the State Government, depending upon the authority that passed the order under appeal. As per RBC, appeal lies to SDO or the Collector or the Commissioner, depending upon the authority that passed the order under Revision. It is undisputed that if the process of appeal and revision under MPLRC would apply, then the Revision could have been preferred to the Board at that time in 2016 (because since 2018, the said remedy is no longer available under MPLRC also).
12. The sole issue that is now required to be considered is whether against the allotment order, appeal and revision would lie as per Clause 30 of section 4 (3) of RBC, or under MPLRC.
13. Section 44 of MPLRC provides for remedy of appeal and its relevant provision is as under :-
44. Appeal and appellate authorities.-- (1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made there under--
(emphasis supplied) xx xx xx (rest not reproduced)
14. Section 50 of MPLRC (prior to 2018 amendment) was as under :-
50. Revision.-- (1) The Board may, at any time on its motion or on the application made by any party or the Collector or the Settlement Officer may, at any time on his motion, call for the record of any case which has been ,decided or proceeding in which an order has been passed by any Revenue Officer subordinate to it or him and in which no appeal lies thereto, and if it appears that such subordinate Revenue Officer,--
W.P. 7373 OF 2017.
6(a) has exercised a jurisdiction not vested in him by this Code, or
(b) has failed to exercise a jurisdiction so vested, or (c) has acted in the exercise of his jurisdiction illegally or with material irregularity the Board or the Collector or the Settlement Officer may make such order in the case as it or him thinks fit (emphasis supplied) xx xx xx (rest not reproduced)
15. After amendment of 2018, the provision for revision is as under :-
50. Revision- (1) Subject to the provisions of sub-sections (2), (3), (4) and (5),-
(a) the Board may, at any time on its own motion or on an application made by any party, call for the record of any case which has been decided or proceedings in which an order has been passed under this Code by the Commissioner;
(b) the Commissioner may, at any time on his own motion or on an application made by any party, call for the record of any case which has been decided or proceedings in which an order has been passed under this Code by the Collector or the District Survey Officer;
(c) the Collector or the District Survey Officer may, at any time on his own motion or on an application of any party, call for the record of any case which has been decided or proceedings in which an order has been passed under this Code by a Revenue Officer subordinate to him; and if it appears that the subordinate Revenue Officer-
(i) has exercised a jurisdiction not vested in him by this Code; or
(ii) has failed to exercise a jurisdiction so vested; or(iii) has acted in the exercise of his jurisdiction illegally or with material irregularity, the Board or the Commissioner or the Collector or the District Survey Officer may make such order in the case as it or he thinks fit.
W.P. 7373 OF 2017.
7(2) No application for revision shall be entertained-
(a) against an order appealable under this Code;
(b) against any order passed in second appeal under this Code;
(c) against an order passed in revision;
(d) against an order of the Commissioner under section 210;
(e) unless presented within fortyfive days from the date of order or its communication to the party, whichever is later:
(emphasis supplied) xx xx xx (rest not reproduced)
16. The aforesaid provisions clearly show that appeal and revision under MPLRC apply only to the orders passed under the Code, and not to any other orders.
17. Now the question arises whether the provisions of RBC are a part of the MPLRC, or are independent provisions, having been issued as executive instructions in the name of Governor in terms of Article 162 of the Constitution of India, for the matters that are otherwise under legislative competence of the State.
18. Under MPLRC, there are no provisions for allotment of Government land. Earlier, there was section 162 of MPLRC, that contained some provisions for allotment of Government land under unauthorised possession. The said section 162 was deleted by the state legislature vide M.P. Act No. 25 of 1964 w.e.f. 23.4.1964. Prior to that, the State had enacted Ordinance No. 3 of 1964 for the same purpose. Thus, the section 162 MPLRC that provided for allotment of Government land,was deleted in 1964. The said provisions were replaced by executive instructions in the shape of Section 4 (3) of RBC. The repealed Section 162 of MPLRC has ben printed in "Madhya Pradesh Land Revenue Code". Vth Edition by Law Journal Publication, Gwalior and authored by Harihar Nivas Dwivedi.
19. The repealed provisions of section 162 were as under :-
W.P. 7373 OF 2017.8
162. Disposal of land by Collector.-(1) Unless the State Government otherwise directs by general or special order and subject to rules made under this Code, land belonging to State Government not being land hereinafter mentioned in sub-section (2), shall be disposed of for agricultural purposes only in Bhumiswami rights by the Collector or by such other Revenue Officer and to such extent as may be prescribed, who may require payment of a premium for such right or sell the same by auction or give it in exchange."
(Rest not reproduced)
20. Thereafter, the State Government by notification No.195-5477-VII- N (Rules) dated 6th January 1960, published in the Madhya Pradesh Rajpatra dated 22nd January, 1960, in exercise of the powers conferred by sub-section (1) and clause (xxxvii) of sub-section (2) of section 258 read with sub-section (1) of section 162 of this Code, and in supersession of all rules previously made on the subject, had framed the rules. However, the said provisions got deleted in 1964.
21. Now the sole provisions for allotment of Government land are in RBC, and the scheme under whch the land was allotted to the petitioners, is also a part of Section 4 (3) of RBC, as is apparent from annexure P-2. Interestingly, RBC is not shown to be issued under any Act. Rather, it seems to have been issued under general power of the State to issue executive instructions under Article 162 of the Constitution on the matters on which it is competent to legislate.
22. Clause 30 of Section 4 (3) of the RBC is also on record. As per the said provision, there is only one appeal and the said appeal lies to SDO, Collector and the Commissioner, depending on the authority that has passed the original order. Revisional powers have been vested on Collector, Commissioner and the State Government.
23. There are no powers of appeal or revision vested on the Board of Revenue under RBC. The orders of allotment are not passed under W.P. 7373 OF 2017.
9MPLRC and the matters of allotment are dealt with under independent executive instructions known as RBC. The MPLRC even does not authorize allotment of Government land, after deletion of section 162 in the year 1964.
24. The Board of Revenue under Section 50 exercised revisional powers only on the orders passed under the MPLR Code, or in respect of the orders passed under jurisdiction conferred by the Code.
25. Therefore, the powers of allotment under RBC are not under any provisions of MPLR Code, and there is a separate mechanism of appeal and revision under the RBC. Therefore, the remedy of appeal and revision under the RBC only will be available to the parties in the matter of challenge to or any grievance arising from any allotment under the RBC. The order annexure P-1 passed by the Board of Revenue is thus, found to be without jurisdiction. The same deserves to be, and is hereby quashed.
26. The respondents are set at liberty to challenge the appellate order passed by the SDO as per the remedy under clause 30 of section 4 (3) of RBC. If any such appeal/revision is filed within one months from today, it shall not be dismissed on the ground of delay. The parties shall maintain status-quo for a period of one month from today.
27. The petition stands allowed in the above terms.
(VIVEK JAIN) JUDGE MISHRA ARVIND KUMAR MISHRA 2024.02.01 17:01:57 +05'30'