Madhya Pradesh High Court
Irfan Khan vs Arvind Kumar Dhakad on 12 July, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
MISC. PETITION NO. 2350 OF 2021
Between:-
(1) IRFAN KAHN, SON OF SHRI NASIR
KHAN, AGED 32 YEARS, OCCUPATION
AGRICULTURIST
(2) IMRAN, SON OF SHRI NASIR
KHAN, AGED 30 YEARS,
(3) RIZWAN SON OF SHRI NASIR
KHAN, AGED 28 YEARS
ALL ARE RESIDENTS OF NEAR
MASJID, CANTT, TEHSIL & DISTRICT
GUNA (MP)
....PETITIONERS
(SHRI NK GUPTA- SENIOR ADVOCATE WITH SHRI
RAVI GUPTA- ADVOCATE FOR THE PETITIONERS )
AND
1. ARVIND KUMAR DHAKAD, SON OF
SHRI SURESH KUMAR DHAKAD
2
2. HARIMOHAN DHAKAD, SON OF SHRI
SURESH KUMAR DHAKAD,
3. SUMAN DHAKAD, WIFE OF SHRI
ARVIND KUMAR DHAKAD,
4. MANOJ DHAKAD, SON OF SHRI
SURESH KUMAR DHAKAD,
ALL ARE RESIDENTS OF VILLAGE
DAGPIPRI, TEHSIL BADARWAS,
DISTRICT SHIVPURI (MP), AT
PRESENT:- VILLAGE NANKHEDI, WARD
NO.1, DISTRICT GUNA (MP)
......RESPONDENTS
( SHRI BHUPENDRA SINGH DHAKAD- ADVOCATE FOR THE
RESPONDENTS )
Reserved on : 23-06-2022
Passed on : 12th July, 2022
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The present petition coming on for final hearing, Hon'ble Shri Justice Rajeev Kumar Shrivastava, passed the following:-
The petition under Article 227 of Constitution of India has been filed by the petitioners challenging order dated 14-07-2021 (Annexure P1) passed by Additional Collector, District Guna in Revision No.01/2021-22 and order dated 09-04-2021 (Annexure P2) passed by Tahsildar, Pargana Guna in Case No. 9A-70/2020-21.3
(2) Necessary facts for disposal of present petition in short are that an application was filed by respondents before Tahsildar under Section 250(2) of MPLRC stating that they are owners of land bearing survey no.
405/4/1/1/3 area 3.204 hectares & survey no.405/3/4 area 3.135 hectares situated in village Khejra, Tahsil & District Guna. It is pleaded that on 09-12-2020, petitioners restrained the respondents from cultivating the land and took possession of 8 to 10 bigha of land wrongfully. In reply to the said application u/S. 250(2) of MPLRC, petitioners filed their objection stating that since a civil suit is pending before the Civil Suit, therefore, proceedings u/S/. 250(2) of MPLRC is not maintainable. Thereafter, the respondents filed their reply to the objection filed by the petitioners. The Tahsildar, Pargana Guna vide impugned order dated 09- 04-2021 (Annexure P-2) allowed the application u/S 250(2) of MPLRC observing that the rightful possession of respondents be handed over and rejected objection filed by petitioners. Against the order passed by Tahsildar, the petitioners filed a revision No.01/2021-22 before Additional Collector, District Guna and Additional Collector rejected the 4 revision on the ground of non-maintainability. Being aggrieved by the impugned orders passed by Additional Collector and Tahsildar, present petition has been filed.
(3) It is contended on behalf of petitioners that Tahsildar is having no jurisdiction to decide application u/S 250 of MPLRC as a civil suit is already pending before the Civil Court. Two parallel proceedings should not be allowed to continue. The finding of Tahsildar is perverse and contrary to law as two parallel proceedings should not be allowed to continue. It is further contended that Additional Collector has committed an error in not taking into consideration the provisions of Section 50(3) of MPLRC. When trespondents themselves has filed a Civil suit for declaration of title and permanent injunction, the revenue authorities should not initiate proceedings. It is further contended that if proceedings before Tahsildar are not maintainable, then same will come to and and revisional authority has erred in not taking into consideration the provisions of law and has wrongly held that revision is not maintainable. Therefore, it is prayed that the impugned orders passed by revenue 5 authorities below deserve to be quashed and the proceedings initiated by Tahsildar u/S 250(2) of MPLRC deserve to be non-maintainable. (4) In reply, learned counsel for respondents supported the impugned orders passed by the revenue authorities below. The Tahsildar has rightly initiated proceedings u/S 250(2) of MPLRC as respondents are in possession of land in question and their names have been recorded in revenue records and in this regard, Bhoo Adhikar Rin Pustika as well as Khasra have been issued in their favour. The demarcation report prepared by ahsildar has already attained finality. Civil Court has already allowed the application filed by respondents under Order 39 Rule 1 & 2 of CPC for temporary injunction. After passing interim order of temporary injunction, due to forceful encroachment of petitioners, respondents moved an application along with an affidavit before Tahsildar for restoration of possession, by which Tahsildar by the impugned order has rightly rejected objection of the petitioners while allowing application filed by respondents under Section 250(2) of MPLRC for restoration of possession and the Additional Collector has not committed no illegality 6 in rejecting the revision filed by petitioners. Hence, prayed for dismissal of this petition.
(5) Heard learned counsel for the parties and perused the impugned orders as well as documents available on record.
(6) Section 50 of MPLRC reads 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 7 or he thinks fit.
(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 forty-five days from the date of order or its communication to the party, whichever is later :
Provided that where an order, against which an application for revision is being preferred, was made before the coming into force of the Madhya Pradesh Land Revenue Code (Amendment) Act, 2018 the period of limitation for presenting the application for revision shall be as provided in the Code prior to the said Amendment Act.
(3) The Board or the Commissioner or Collector or the District Survey Officer shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of proceeding, except where -
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the proceedings; or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(4) A revision shall not operate as a stay of proceeding before the Revenue Officer, except where such proceeding is stayed by the Board or the Commissioner or the Collector or the District Survey Officer, as the case may be.
(5) No order shall be varied or reversed in revision unless notice has been served on the parties interested and opportunity given to them of being heard.
[Explanation. - For the purpose of this section all 8 Revenue Officers shall be deemed to be subordinate to the Board.] '' (7) On perusal of impugned order passed by Additional Collector, it is apparent that the Additional Collector has observed the following findings in its impugned order as under:-
izdj.k esa v/khuLFk U;k;ky; ds fuxjkuh/khu vkns'k fnukaad 09- 04-2021 dk voyksdu fd;k x;k ftlesa rglhynkj U;k;ky; }kjk izdj.k esa vukosndx.kksa }kjk izdj.k dh izpyu'khyrk ds laca/k esa izLrqr vkifRr dh lquokbZ djrs gq, izpyu'khyrk ij vkifRr dk fujkdj.k fd;k x;k gSA tks fd vUrjorhZ vkns'k gSA e-iz-Hkw-jk- lkafgrk dh /kkjk&50 ¼3½ dh mi/kkjk d esa Li"V izko/kkfur gS fd dysDVj bl /kkjk ds v/khu fd;s x;s fdlh vkns'k ;k dk;Zokgh ds vuqdze esa fdlh fook|d dk fofu'p; djus okys fdlh vkns'k esa Qsj&Qkj ugh djsxk ;k mls ugha myVsxk] flok; ,slk vkns'k] ;fn og dk;Zokgh dk vafre :i ls fuiVkjk djrk gksA rglhynkj U;k;ky; ds fuxjkuh/khu vkns'k ds voyksdu ls ;g Li"V gksrk gS fd mDr vkns'k fdlh Hkh i{k ds vf/kdkjksa dk vafre :i ls fofu'p;u ugha djrk gSA ;g vkns'k ,d vUrorhZ vkns'k gSA blds fo:) iqujh{k.k izpyu ;ksX; ugha ik;s tkus ls fuxjkuh vkosnu fujLr fd;k tkrk gS rFkk rglhynkj xquk dk izdj.k dzekad 09 v&70@2020&21 esa ikfjr vkns'k fnukad 09@04@2021 ;Fkkor j[kk tkrk gSA lacaf/kr lwfpr gksA v/khuLFk U;k;ky; dk ewy vfHkys[k vkns'k izfr lfgr vko';d dk;Zokgh gsrq okfil gSA (8) On perusal of aforesaid impugned order, it is apparent that there is a dispute over the title and title can only be decided under such situation by the Civil Court. It is also settled principle of law that the order passed by the revenue authorities below are not binding on the Civil Court. Once 9 civil suit filed by respondents is already pending in regard to disputed property, the petitioners are not required to challenge the orders passed by revenue authorities below in Writ Court by way of a petition under Article 226/227 of Constitution of India. Hence, the present petition is not maintainable and is hereby dismissed.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.07.13 17:50:45 +05'30'