Madhya Pradesh High Court
The State Of Madhya Pradesh vs Chetan Infra Build Pvt. Ltd. Through ... on 22 April, 2017
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B. : Hon'ble Shri P.K. Jaiswal & Hon'ble Shri Virender Singh, JJ.
W.A. No.23/2017
REVENUE DEPARTMENT & ANR.
Versus
CHAITANYA REALCON PVT.LTD. & OTHERS
*****
Writ Petition No.8467/2016
STATE OF M.P. Thr. COLLECTOR & OTHERS
Versus
CHETAN INFRA BUILD PVT. LTD. & OTHERS
*****
Writ Petition No.8590/2016
THE STATE OF MADHYA PRADESH
Versus
SWAPNIL BUILDCON PVT. LTD. & ANR.
*****
Writ Petition No.8613/2016
THE STATE OF MADHYA PRADESH & ANR.
Versus
GURUMIT BUILEDRS PVT. LTD.
*****
Writ Petition No.8614/2016
THE STATE OF MADHYA PRADESH & ANR.
Versus
VAIBHAV TECHNOBUILD PVT. LTD.
*****
Writ Petition No.8615/2016
THE STATE OF MADHYA PRADESH & ANR.
Versus
TUSHAR LAND COLE PVT.LTD.
*****
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Writ Petition No.8617/2016
THE STATE OF MADHYA PRADESH & ANR.
Versus
SENTINENT PROPERTIES PVT. LTD.
*****
Writ Petition No.8618/2016
THE STATE OF MADHYA PRADESH & ANR.
Versus
GIRISH BUILDVEL PVT. LTD.
*****
Writ Petition No.8619/2016
THE STATE OF MADHYA PRADESH & ANR.
Versus
CHETAN INFRABUILD PVT.LTD.
******
Shri Sunil Jain, learned Addl. Advocate General with Shri
Romesh Dave, learned Govt. Advocate for the petitioners / State.
Shri Vivek K. Tankha, learned Senior Advocate with Shri Jerry
Lopez, Advocate and Shri Pavan Nandrajog, Advocate for the
respondents.
******
ORDER
(22.4.2017) PER P.K. JAISWAL, J:-
W.A.No.23/2017, is directed against an order dated 4.6.2015, passed by the learned writ court in W.P.No.3500/2015, in the case of Chetan Infrabuild Pvt.
Ltd., & 20 Others V/s. State of M.P. & Anr. The nine writ petitions have been filed by the State of M.P. under Article 227 of the Constitution of India, for setting aside of order { -30- } dated 18.11.2013 (Annexure P/1) passed by the Board of Revenue, Gwalior in Revision No.3037-ii/13 and other connected revisions.
2. Since the common question is involved in writ appeal and these bunch of petitions therefore, they are heard together and are being disposed of by this common order. For the sake of convenience the facts are borrowed from W.P.No.8467/2016.
3. The facts as narrated by the petitioners - State of M.P. are that, Survey Nos.155, 156, 157, 244, 245/6, 247/1 area of 106.128 acres situated at village Machla, Tehsil & District Indore are Government land. In the year 1958-59, the aforesaid land has been leased out to 'Harijan Samuhik Krishi Sahakari Sanstha' and other Co- operative society for the purpose of agriculture. Exhibit P/3, Khasra entries of 1959-60 to 1961-62, name of Gram Swaraj Sahakari Sanstha, Malva Sahakari Samuhik Krushi Samiti Maryadit, Bhoomihin Majdoor Society, Gram Swaraj Bhumihin Samuhik Krishi Sahakari Sanstha have been recorded in the revenue record. The land in question was { -30- } given to them on lease in the year 1958-59. As per Section 158 (3) of the M.P. Land Revenue Code, 1959, the transfer of the land was not permissible for the period of 10 years and thereafter they were entitled to transfer their Bhumi Swami rights. Prior to 1980, by operation of law all the patta holders have acquired Bhumi Swami rights and they became Bhumi Swami of the land. Later on, they after obtaining all statutory permission from the competent authority sold their Bhumi Swami rights by executing registered sale deeds in favour of the respondents in the year 2007-2008. The names of the respondents were recorded in the revenues record.
4. Thereafter, they applied for diversion for residential use under the provisions of M.P. Land Revenue Code, 1959 (hereinafter referred as 'Land Revenue Code'). In diversion proceedings, a report was called from the revenue authority. The revenue authority in their report very categorically admitted that the respondents are having Bhumi Swami rights over the land in question and after obtaining NOC from all the statutory authorities { -30- } passed an order of diversion in favour of the respondents. On 6.8.2009, order of diversion was passed by the SDO, Indore in Revenue Case No.333/A-2-08/09. Relevant part of diversion order dated 6.8.2009 (Annexure R/4) reads as under :-
mijksDr Hkwfe dks e/; izns'k Hkw&jktLo lafgrk 1959 dh /kkjk 172¼1½ ds vUrxZr dsoy vkoklh; iz;kstu dkyksuh fuekZ.k mi;ksx gsrq O;iofrZr djus ds vk'k; ls vkosnu i= izLrqr fd;k x;kA vkosnu i= ds lkFk fuEukafdr vfHkys[k izLrqr fd, x,%& 01 [kljk ikaplkyk o"kZ 1996-97 ls 2008-2009 rd dh udyA 02 ch&1 o"kZ 2008-2009 dh udyA jktLo vfHkys[kksa esa vkosnu dk uke HkwfeLokeh LoRo ds #i esa vafdr gksus ij izdj.k esa O;irZu dh vuqKk tkjh fd, tkus ds iz'u ij la;qDr lapkyd uxj rFkk xzke fuos'k] bUnkSj fodkl izkf/kdkjh bUnkSj dks vukifRr i= izfs "kr djus gsrq i=kpkj fd;k x;kA 02 la;qDr lapkyd uxj rFkk xzke fuos'k bUnkSj }kjk vius i= dzekad 6596@uxzkuh@bankSj fnukad 25-11-2008 ls vkosfnr Hkwfe ij vkoklh; iz;kstu dkyksuh fuekZ.k ds vk'k;
ls vfHkU;kl vuqeksfnr fd;k x;k gS tks 'kkfey izdj.k gSA 05 v/kh{kd Hkwfe ifjorZu ls izdj.k esa vkosfnr Hkwfe dh tkWp dj izfrosnu fy;k x;kA v/kh{kd Hkwfe ifjorZu }kjk vius izfrosnu esa crk;k dh%& ¼1½ iz'kuk/khu Hkwfe ij 'kkldh; ;k vU; Hkwfe 'kkfey ugha gSA ¼2½ iz'kuk/khu Hkwfe dk iVokjh uD'ks ls feyku gksrk gSA ¼3½ iz'kuk/khu Hkwfe ij dksbZ [email protected] dk;Z ugha gSA ¼4½ iz'kuk/khu Hkwfe esa o`{k 8 ccwy ds o`{k vkfn gSA ¼5½ iz'kuk/khu Hkwfe ekSd ij iM+r gSA ¼6½ iz'uk/khu Hkwfe dk bl U;k;ky; esa dksbZ izdj.k fookfnr ugha gSA xzke ekpyk rglhy bUnkSj dh 'kklu }kjk Lohd`r vkoklh; ekud nj ugha gksus ij lehiLFk xzke dsyksndrkZy dh Lohd`r nj #i;s 9-00@& izfr { -30- } 100 oxZQhV ds eku ls dqy jdck 28- 290 gsDVs;j Hkwfe vFkkZr 3043811&oxZQhV Hkwfe ij HkwjktLo dk iqu% fu/kkZj.k #i;s 2]73]950@& izfr o"kZ rFkk izhfe;e #i; 5-0@& izfr oxZehVj ds eku ls #i;s 14]14]415@& dk;e fd;k tkuk v/kh{kd Hkwfe ifjorZu }kjk vius izfrosnu esa izLrkfor fd;k x;k gSA
5. At the time of registration of sale deeds, in terms of Section 112 of Land Revenue Code, intimation was given to the Tehsildar of the concerned area about execution and registration of the sale deeds. Thereafter, applications for mutation were made. As per procedure prescribed under Section 110 of Land Revenue Code and Rules framed there under the Patwari notified the Tehsildar that he has received an application for mutation. He issued public notices and given written intimation to all the persons appearing to him to be interested in mutation. The Tehsildar after enquiry made necessary entries in the field book and other relevant land record. This entire exercise of mutation was carried out in the year 2009-10. At the time of mutation a 'Rin Pustika' under Section 114- A of the Land Revenue Code was also prepared by the Tehsildar. Before a diversion order is passed various { -30- } permissions and NOC's were obtained from the various Government departments. An NOC from the Nazul Department is required to ascertain whether or not the said land is Government land. The Nazul department granted NOC categorically stating that the land is not a Government land. The Tehsildar also issued notice after verifying document and revenue record going back 13 years that, there is no Government land involved. As per Clause 4 of the diversion order, the Collector, Indore accepted the proposal of Joint Director, Town & Country Planning and gave his consent. The respondents in compliance to diversion order paid diversion tax, panchayat tax and premium tax regularly.
6. On 28.12.2012, the Collector, Indore in exercise of suo motu power under Section 50 of the Land Revenue Code, issued suo motu notices asking them to show cause as to why their names should not be removed from the revenue records on the ground that transfer of land in favour of the respondents was made without obtaining prior permission of the competent authority. The reason { -30- } assigned in the notice was the transfer of third person was done without permission from the Collector under Section 167(7-b) of the Land Revenue Code.
7. The respondents have filed their reply on the ground that patta was granted to their predecessors-in- title for more than 50 years back and they acquired the rights of Bhumi Swami from last more than 50 years back and executed the sale deed in favour of the respondents. The sale in favour of the respondent was done in 2007-08 and no action was taken by the Collector for the period of 5 years. There is a delay of more than 5 years in initiating suo - motu proceedings under Section 50 of the Land Revenue Code and in view of the law laid down by the full Bench in the case of M.P. High court in the case of Ranveer Singh since (dead) thr. LRs Kishori Singh & Others V/s. State of M.P. reported as 2010 (4) MPLJ 178 it must be exercised within 180 days from date of coming into knowledge of illegality, impropriety or irregularity exercised by subordinate officers, else the proceeding is barred by time.
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8. The Collector, Indore by order dated 24.7.2013, allowed suo motu revision with a direction to the Tehsildar to enter the name in the revenue record. Against the said order, the respondents preferred a revision as provided under Land Revenue Code, the Board of Revenue after hearing the parties has finally passed the order on 18.11.2013, setting aside the order passed by the Collector and has directed the Tehsildar to enter the name of the respondents (company) in the revenue record as owner of the land in question.
9. Para 7, 8, 9, 10 and 12 of the order passed by the Board of Revenue is relevant which reads as under :-
7& izdj.k esa ;g Hkh fufoZokfnr rF; gS fd izkFkhZ us ftu Hkwfe;ksa dks dz; fd;k gS] muds fodzsrkx.k dks lafgrk dh /kkjk 165 ¼7½ ¼[k½ esa fnukad 28-10-1992 dks la'kks/ku fd;s tkus ds iwoZ ,oa o"kZ 1980 esa fd;s x;s la'kks/ku ds iwoZ gh Hkwfe Lokeh ds LoRo izkIr gks pqds FksA bl dkj.k bl izdj.k esa lafgrk dh /kkjk 165 ¼7½ ¼[k½ ds izko/kku ykxw ugh gksrs gSA /kkjk 165 ¼7½ ¼[k½ dks Hkqry{kh izHkko ls izHkko'khy ugh fd;k x;k gSA bl dkj.k ,sls Hkwfe Lokmeh ftUgs varju.k dk vf/kdkj fufgr gS muds vf/kdkjksa dks la'kksf/kr Hkw&jktLo lafgrk ds izko/kku ykxw ugha fd;s tk ldrs gSA ekuuh;
mPp U;k;ky; ds le{k Hkh blh izdkj dk fookn izLrqr fd;k x;k Fkk ftlesa 2013 jktLo fu.kZ; i`"B 8 esa mPp U;k;ky; ds }kjk fu.kZ; fn;k tkdj ;g fl/nkUr izfrikfnr fd;k gS fd /kkjk 165 ¼7½ ¼[k½ rFkk /kkjk 158 ¼3½ ds mica/kksa dks Hkwry{kh izHkko ugh fn;k x;k gSA iz'uk/khu Hkwfe;ka lgdkjh d`f"k lfefr;ksa dks iV~Vs ij o"kZ 1959&60 esa nh xbZ Fkh rFkk rRi'pkr~ mDr Hkwfe;ka muds lnL;ksa dks iV~Vs ij nh xbZ gksus dk rF; izdj.k ds vfHkys[k ls Li"V gksrk gS { -30- } bl dkj.k la'kksf/kr /kkjk 158 ¼3½ ds izko/kkuska ds vuqlkj o"kZ 1959&60 ls gh mDr iV~Vk/kkfj;ksa dks Hkwfe Lokeh ds LoRo izkIr gks pqds FksA la'kksf/kr /kkjk 165 ¼7½ ¼[k½ tks loZizFke 1980 esa izHkko'khy dh xbZ mlds iwoZ ls gh mDr iV~Vk/kkfj;ksa dks Hkwfe Lokeh ds LoRo izkIr gks pqds Fks rFkk /kkjk 165 ¼7½ ¼[k½ dks Hkwry{kh izHkko uk fn;k x;k gksus ds dkj.k ,sls Hkwfe Lokfe;ksa ds varj.k ds fufgr vf/kdkj dks i'pkr~orhZ la'kksf/kr izko/kkuksa ds varxZr lekIr ugh fd;k tk ldrk gSA 2013 jktLo fu.kZ; i`"B 8 esa fn;s x;s ekuuh; mPp U;k;ky; ds fu.kZ; esa foLr`r:i ls bl fcUnq dk fujkdj.k fd;k x;k gS vr% bl fu.kZ; ds vk/kkj ij eSa ;g ikrk gwW fd izkFkhZ dks iz'uk/khu Hkwfe dz; djus ds iwoZ /kkjk 165 ¼7½ ¼[k½ ds la'kksf/kr izko/kkuks dsa vUrxZr dysDVj dh vuqefr izkIr djus dh dksbZ vko';drk ugh Fkh bl dkj.k izkFkhZ ds }kjk Hkwfe fof/kor~ vfHkfyf[kr Hkwfe Lokeh ls dz; fd;s tkus ds dkj.k mldk tks fof/kor~ ukekarj.k Loohd`r fd;k x;k Fkk mls vikLr fd;s tkus dk dksbZ Hkh fof/kd vf/kdkj dysDVj dks ugh FkkA dysDVj dk vkns'k mijksDr vk/kkj ij Hkh fujLrh ;ksX; gks tkrk gSaA 8& izkFkhZ dh vksj ls bl U;k;ky; ds le{k dysDVj } kjk xzke ekpyk dh iz'kuk/khu Hkwfe;ksa dh tkudkjh pkgh xbZ gksus ds vk/kkj ij rglhynkj vthr JhokLro ds }kjk iathc/n fd, x, izdj.k dzekad 4@v%6v@2012&13 dh vkns'k if=dkvksa] iVokjh dfku fjiksZV vkfn dh izekf.kr izfr;kaa Hkh izLrqr dh xbZ gSaA] buds voyksdu ls Li"V gksrk gS fd rglhynkj }kjk gYdk iVokjh dSyk'k pkS/kjh rFkk egsUnz ijekj dks dkj.k ctkvks lwpuk i= izsf"kr dj ukekarj.k izdj.k dh tkmudkjh pkgh xbZ rglhynkj dh vknsf'kdk fnukd 09-11-12 esa rFkk lacaf/kr iVopkjh;ksa ds } Kjk fn;s x;s dkj.k crkvksa lwpuk i= ds mRrj ls ;g rF; Li"V :i ls fofnr gksrk gS fd xzke ekpyk dh iz'uk/khu Hkwfe vfHkys[k vuqlkj [kkrsnkj ds uke ij Hkwfe Lokeh LoRo ij vafdr Fkh rFkk lnj Hkwfe;ksa ds laca/k esa dksbZ iV~Vs forfjr fd;s x;s gks ,slk Hkh izrhr ugh gksrk gSA bl izdj.k dh dk;Zokgh eesa dh xbZ tkWp ls ;g rF; fufoZokfnr :i ls izekf.kr gS fd iVokjh ds }kjk vius dkj.k crkvks lwpuk i= ds mRrj esa ;g Li"V :i ls dfku fd;k x;k fd iz'uk/khu Hkwfe;k Hkwfe Lokeh LoRo ij lacaf/kr O;fDr ds uke ij jktLo vfHkys[kksa esa vafdr Fkh rFkk og Hkwfe;ksa 'kkldh; iV~Vs dh gksuk vFkok vgLrkarj.kh; gksus dk dksbZ banzkt lacaf/kr o"kksZ ds [kljksa esa ugh FkkA blh vk/kkjk ij og Hkwfe;ksa futh Hkwfe Lokeh LoRo dh gksus ds vk/kkj ij bu Hkwfe;ksa ij dzsrk x.k dk uke Lohd`r fd;k x;k FkkA blls vkosnd ds bl rdZ dks cy feyrk gS fd dysDVj ds }kjk bu Hkwfe;ksa dks vgLrkarj.kh; gksuk ftu [kljk izfof"V;ksa ds { -30- } vk/kkj ij n'kkZ;k tk jgk gS mu [kljksa esa ^^vgLrkarj.kh;** 'kCn ckn esa fy[kk x;k gS vkSj ftl le; mUgksaus iz'uk/khu Hkwfe dks dz; fd;k Fkk ml le; ds iwoZ ds jktLo vfHkys[kkksa esa iz'uk/khu Hkwfe fodzsrk ds Hkwfe Lokeh LoRo ij vafdr jgh gS rFkk iz'uk/khu Hkwfe;ka 'kkldh; iV~Vs dh gksuk vFkok ^^vgLrkarj.kh;** gksus dk mYys[k [kljs dh izfof"V esa ugh FkkA 9& izdj.k dk lexz :i ls fo'kys"k.k fd;s tkus ij ;g izrhr gksrk gS fd Hkwfe Lokeh ds uke ds vkxs []kljs esa tks ^^vgLrkarj.kh;** izfof"V dh xbZ gS og rglhynkj ds vkns'k fnukad 27-11-2012 ds i'pkr~ dh xbZ gS] D;ksafd ml le; rd jktLo vfHkys[kksa esa Hkwfe Lokeh ds uke ds vkxs ^^vgLrkarkj.kh;** izfof"V u gksus dk dFku lacaf/kr iVokfj;ksa ds }kjk vius dkj.k crkvksa lwpuk i= ds mRrj esa fn;k tk pqdk FkkA ,sslh fLFkfr esa dysDVj ds }kjk iz'uk/khu Hkwfe dks ^^vgLrkarkj.kh;** ,oa 'kkldh; iV~Vs dh Hkwfe gksus ds vk/kkj ij tks fu.kZ; ikfjr fd;k x;k gS og fujLrh ;ksX; gks tkrk gSA 10& tgkW rd iz'uk/khu Hkwfe;ka 'kkldh; iV~Vs dh gksus dk iz'u gS bl laca/k esa dksbZ Hkh iV~Vk vfHkys[k ij ugh gS] iV~Vs dh fujLrh Hkh vfHkys[k ij ugh gS bl dkj.k dsoy ek= vuqeku ds vk/kkj ij fcuk fdlh izek.k ds iz'uk/khu Hkwfe;k 'kkldh; iV~VS dh gksus dk fu"d"kZ dysDVj }kjk ugh fn;k tk ldrk gS] dysDVj U;k;ky; esa izkFkhZ dh vkifRr ds ckn Hkh iV~Vs laca/kh dksbZ izek.k vfHkys[k ij u ysrs gq, iz'uk/khu Hkwfe 'kkldh; iV~Vs dh gksus ckcn~ tks fu"d"kZ dysDVj us vius fu.kZ; esa fn;k gS og vfHkys[k ls izekf.kr rF;ksa ds u gksus ls fujLrh ;ksX; gks tkrk gSaA 12& Hkw&jktLo lafgrk dh /kkjk 165 ¼7½ ¼[k½ ds vUrxZr dysDVj dh vuqefr ds fcuk 'kkldh; iV~Vsnkj ds }kjk /kkfjr Hkwfe dk varj.k dysDVj dh Js.kh ls vfuEu in Js.kh ds fdlh jktLo vf/kdkjh dh vuqKk ds fcuk ugh fd;k tkosxk ;g izko/kkfur gS fdUrq ;fn fdlh ,sls O;fDr ds }kjk tks Hkwfe Lokeh ds vf/kdkj esa Hkwfe /kkj.k djrk gS] mlds }kjk dysDVj ds vuqKk ds fcuk Hkwfe dk fodz; fd;k tkrk gS rks ml ifjfLFkfr esa jktLo vf/kdkjh ds } kjk mlds fo:/n fdl izdkj dh dk;Zokgh dh tkosxh ;g Hkw&jktLo lafgrk esa izko/kkfur ugh gSA Hkw&jktLo lafgrk esa fdlh Hkwfe Lokeh ds Hkwfe Lokeh LoRo lekIr dj mldh Hkwfe jkT; ljdkj esa leig~r (Forfeit) fd;s tkus ds laca/k esa dsoy ek= /kkjk 166 esa izko/kku fn;k gqvk gS blds vfrfjDr Hkw&jktLo lafgrk esa vU; dksbZ Hkh izko/kku ugh gS ftlds rgr~ Hkwfe Lokeh ds Loro lekIr dj fdlh Hkhwfe Lokeh dh Hkwfe jkT; ljdkj esa oSf"Br dh tk ldsaA U;k;n`"Vkar 2013 vkj0,u0 8 esa ekuuh; mPp U;k;ky; } { -30- } kjk ;g Hkh vo/kkfjr fd;k x;k gS fd Hkw&jktLo lafgrk] 1959 ¼e-iz-½ &/kkjk 165 ¼7&[k½ dh O;kfIr &iV~Vsnkj dks iV~Vk rFkk HkwfeLokeh vf/kdklj iznku fd;s x;s & dysDVj dh vuqKk ds fcuk Hkwfe dk varj.k & /kkjk 165 ¼7&[k½ ds v/khu iV~Vk jn~n ugha fd;k tk ldrkA ^^ bl dkj.k dysDVj ds }kjk /kkjk 165 ¼7½ ¼[k½ esa Hkwfe 'kklu esa oSf"Br fd;s tkus dk izko/kku uk gksrs gq, Hkh Hkwfe jkT; 'kklu ds uke oSf"Br fd;s tkus ds laca/k esa tks vkns'k ikfjr fd;s gS og fLFkj j[ks tkus ;ksX; ugh gSA mijksDr foospuk ds vk/kkj ij ;g fuxjkuh vkosnu Lohdkj fd;k tkrk gS rFkk dysDVj] bUnkSj ds }kjk izdj.k dzekad 13@v&74@12&13 esa ikfjr vkns'k fnukad 06-07- 2013 fujLr fd;k tkrk gSA rglhynkj dks funsZ'k fn, tkrs gSa fd izkFkhZ ds LokfeRo dh iz'uk/khu Hkwfe;ka losZ ua0 156@2@2 jdck 0-161] losZ ua0 247@1@27@2 jdck 0- 809 ,oa losZ ua0 247@1@28 jdck 1-053 gSDVj tks mlds }kjk iathd`r fodz;i= ls dz; dh xbZ gSa ij izkFkhZ dk uke iwoZor~ jktLo vfHkys[kksa esa vafdr fd;k tk;sA
10. Before the Board of Revenue, it was an admitted fact that the seller of the land in question became Bhumi Swami prior to the year 1980 and as a result, they were entitled to sale the said land to the respondents (company), without taking prior permission from the Collector, since the provision of Section 165 (7-b) of the MPLR Code came into effect from 1980. The Board of Revenue in its order has held that the suo motu proceedings initiated by the Collector were against the stipulated provisions of law and the same was prepared after a lapse of about 5 years from the date of registration of sale deeds.
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11. It is an admitted fact that prior to introduction of Section 165(7-b) of the Land Revenue Code, there was no bar in the Land Revenue Code in regard to taking prior permission from a Revenue officer not below the rank of Collector in the event of sale of land.
12. Inspite of there being an order passed by the Board of Revenue on 18.11.2013, the Collector is not entering the names of the respondents in the Revenue records as owners of the lands. The respondents - company, filed a writ petition vide W.P.No.3500/2015, for issuance of necessary directions for mutating their names in the revenue records. The learned writ court allowed the writ petition and directed the Tehsildar to comply with the order dated 18.11.2013, passed by the Board of Revenue at Gwalior and record the names of the respondents - company as the owners of the said land, within a period of 30 days. Due to non-compliance of Board of Revenue order as well as the learned writ court order, the respondents - company filed contempt petition, which was later on withdrawn as the order passed by the writ { -30- } petition was challenged by the State by filing writ appeal vide W.A.No.23/2017. The State Government also challenged the order passed by the Board of Revenue on 18.3.2013 by filing present bunch of writ petitions under Article 227 of the Constitution on the ground that land in question was entered as 'Beed' land, therefore, there is no question of accruing any Bhumi Swami right in favour of the persons or members of the society, and they illegally sold the land in question to the respondents. The second ground was that even otherwise, for the sake of arguments, if it is assumed that predecessor-in-title of the respondents were having a Bhumi Swami right then, also as per the provisions of Clause 17 of part 4 (3) of Revenue Book Circular, the said rights are given to them only for the purpose of agriculture and not transferable because as per the provisions of Revenue Book Circular, the members of the said society could not acquire the Bhumi Swami right in their favour. In alternate, even it is assumed that the members of the society who sold the land to the private respondents are the Bhumi Swami right under the { -30- } provisions of Section 158 (3) of Land Revenue Code then, also sub-Section 7-b of Section 165 of Land Revenue Code applies and no transfer could be made without permission of the Collector and prayed that order dated 18.11.2013 passed by the Board of Revenue be quashed.
13. At the outset, a preliminary objection has been taken by Shri Vivek Tankha, the learned Senior counsel for the respondents regarding maintainability of the writ petition under Article 227 of the Constitution on the ground that after a gap of more than 5 years from the execution and registration of sale deeds, the Collector in exercise of suo motu power acted under Section 50 of the Land Revenue Code, sent a show cause notice dated 28.12.2012 to the respondents asking them to show cause as to why mutation in their favour may not be cancelled and in view of the law laid down by the Full Bench in the case of Ranveer Singh since (dead) thr. LRs Kishori Singh & Others V/s. State of M.P. (supra), the revisional authority has to exercise suo-motu power within a period of 180 days from the date of knowledge of { -30- } alleged impropriety whereas, in the present case, he exercised the said suo-motu power after an inordinate delay and not within a period of 180 days from the date of knowledge and thus, the writ petition in the present form is not maintainable because the State is seeking writ of certiorari against the order of Board of Revenue. There is a delay of more than 3 years in filing the writ petition and the writ appeal.
14. Learned Senior counsel for the respondents has submitted that this court cannot initiate a fresh fact finding enquiry on the basis of new document and a new case all together. The amendment sought to introduce and rejoinder filed by the State builds up a new case with new documents, which were never placed before the Board of Revenue. He has drawn our attention to the revenue record and submits that there is a likelihood that these documents, which have been filed along with the amendment and rejoinder may be tempered with since no reasons have been given for not placing them on record earlier along with the writ petition. More soever, the word { -30- } 'non-transferable' was added at a later stage and was not there when the sale had taken place thus, re-enforced the possibility of tempering. The writing of 'non-transferable' word is similar in all the revenue records, which shows that the same has been introduced after the sale has taken place. It is also submitted that the State is now seeking correction of revenue record without challenging the registered sale deeds, which are protected under the Registration Act, 1908 read with Section 110 and 111 of MPLR Code. The petitioners - State cannot seek a writ of correction in the face of validly executed and registered sale deeds, that too which has been done so with their own permission and knowledge and which forms the basis for subsequent NOC's and permissions.
15. The second ground of preliminary objection is that the court issuing a writ of certiorari acts in exercise of supervisory and not an appellate jurisdiction. One consequence of this is that the court will not review finding of fact reached by the inferior court or tribunal. even if they be erroneous and prayed for dismissal of the { -30- } writ petition (s).
16. Shri Sunil Jain, learned AAG for petitioners - State of M.P. in reply to the preliminary objection has submitted that patta was granted in the name of predecessors-in-title of a respondents, but the land in question was 'Beed ' land and no person having Bhumi Swami right can transfer the land without the permission of the revenue officer of below rank of the Collector.
17. He has also drawn our attention to rejoinder and amendment application and submits that Member of Legislative Assembly, Mr. Umangse Shrishrigar, raised this issue in the legislative assembly, which was received at the office of the Collector on 30.6.2012. Thereafter, having knowledge of illegality committed by the respondents and by some authorities, the Collector initiated proceeding in the matter on 8.9.2012, well within 180 days from the date of knowledge of the illegality.
18. He also submitted that the learned Board of Revenue while passing the impugned order, failed to appreciate the effect of provision of Revenue Book Circular { -30- } especially the Clause 10 of Part IV (3), which clearly shows that, if any 'Beed' land allotted to any lessee then, no Bhumi Swami right will be accrued in their favour.
19. Shri Jain, learned AAG has drawn our attention to the decision of the Apex court in the case of Sudama Devi V/s. Commissioner, AIR 1983 SC 653 and submitted that there is no period of limitation prescribed by any law for filing writ petition. In every case, it would have to be decided on the facts and circumstances, whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. He lastly submitted that the order of learned Board of Revenue is patently illegal and thus, writ petition under Article 227 of the Constitution is maintainable and prayed for rejection of preliminary objection.
20. We have heard the learned counsel for the parties at length and perused the records.
21. Section 50 of MPLR Code confers on the Collector power to revise any order of subordinate { -30- } revenue officer on its own motion within a reasonable time. The Full Bench of this court in the case of Ranveer Singh since (dead) thr. LRs Kishori Singh & Others V/s. State of M.P. (supra), has held that it must be exercised within 180 days from the date of coming into knowledge of illegality, propriety or irregularity exercised by the subordinate officers.
22. As per law laid down by the Full Bench in the case of Ranveer Singh since (dead) thr. LRs Kishori Singh & Others V/s. State of M.P. (supra) it has held as under in regard to taking the matter in suo motu revision :-
"36. Ex consequent was hereby hold that in order to exercise suo motu power of revision envisaged under section 50 of the Code and looking to the scheme of Chapter V, it should be exercised by the revisional authority within 180 days from the date of the knowledge of the illegality or impropriety of any order passed or as to the irregularity of the proceedings of any revenue officer subordinate to it and it will not be justifiable to stretch it for any length of period even for protection of the Government land or public interest."
23. In the case in hand, the sale deeds in favour of { -30- } the respondents have been executed in the year 2007-08. As per Section 110 of Land Revenue Code, the Patwari issued public notice and had given written intimation to all persons who had interest in the mutation, including the Government of M.P., through Collector. The Tehsildar after hearing the interested parties made the necessary entries in field books and other land revenue record in the year 2009-10. The diversion order was passed on 6.8.2009. The NOC from the IDA was granted on 24.7.2009. The NOC from Nazul Department, which comes under Collector categorically stating this land is not Government land. The NOC from Tehsildar stating that no Government land is involved. After he has verified title document and revenue record dating back to 13 years, a development charges were paid by the respondents. The Joint Director Town and Country Planning Department also granted permission on 25.11.2008 for development of the land. The copies of these orders were brought to the knowledge of the Collector and thus, Collector had knowledge about the order of mutation, diversion and NOC's granted by the { -30- } Department from time to time including the Nazul Department. He has to exercise the suo motu powers within a reasonable period from the date of knowledge whereas in the present case, the suo motu power has been exercised after a long delay and not within 180 days from the date of coming into knowledge of so called illegality. As per the Full Bench decision the period of 180 days would provide an upper-ceiling of limitation because if third party interest is created in the meantime, on the basis of order sought to be revised the person against whom such power is being exercised could be within his right to show that such error ought not be exercised as it would cause an irreparable loss.
24. As per the finding recorded by the Board of Revenue wherein, it has been held that six persons who have sold the land to the respondents accrued the Bhumi Swami right prior to 1980, therefore, the provision of sub- Section 7-b of Section 165 of Land Revenue Code cannot be attracted as any amendment brought into force will be applicable prospectively and not retrospectively.
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25. No material has been placed to prove that as to when for the first time the objection was raised by the said MLA either before the Collector, Government of M.P. or Vidhan Sabha. The petitioners - State just to avoid dictum of law laid down by the Full Bench in the case of Ranveer Singh since (dead) thr. LRs Kishori Singh & Others V/s. State of M.P. (supra) has filed some of the proceedings and noting of the office of Sub-Divisional Officer (Revenue) Indore. Neither this ground was taken before the Collector nor the same was raised before the Board of Revenue.
26. The order sheets dated 25.8.2012, 18.10.2012, 19.10.2012 and 22.10.2012, are the note sheets of the Revenue Officers, but in these note sheets they have not stated as to when they have received the complaint from Member of Legislative Assembly, Mr. Umangse Shrishrigar State of M.P. or from any other person or the State Government after receiving a complaint directed them to enquire into the matter and submit the report.
27. It is well settled that when question is raised in { -30- } the Vidhan Sabha, detailed report has to be prepared by the revenue officers and thereafter, they forward the same to the State Government and the State Government prepares an answer to the querry and produces the same along with the relevant record at the time of question answer hours of the Vidhan Sabha. The stand taken in the rejoinder was not taken either before the Board of Revenue or in the writ petition filed by the State. On 25.3.2017, an application for amendment has been filed by the State taking all together a different stand and ground taken in the writ petition. Now their case is that, that the allotment was done after commencement of Land Revenue Code and they never treated them as Bhumi Swami under the provision of Section 158 of MPLR Code. Along with this amendment, they filed a copy of format of Patta. No material has been placed that the original Patta was allotted in the same format or the period of lease was temporary. In para 6.4 of the proposed amendment, they stated the following :-
"That, even otherwise for the sake of { -30- } arguments if it is assumed that predecessor in title of the respondents are having the Bhumi Swami right then also as per the provisions of Clause 17 of Part 4(3) of Revenue Book Circular the said rights are given to them only for the purposes of agriculture and not transferable."
28. The jurisdiction of this court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. It is not permissible to this court to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or correct the errors of law in the decision.
29. In the case of Mohd. Shahnawaz Akhtar & Anr. V/s. First Additional District Judge, Varanasi & Others, reported as 2010 (5) SCC 501, the Apex court held that the following in para 5, which reads as under :-
"5. In our view, the High court has transgressed the limits of the jurisdiction under Article 226 of the Constitution of India by purporting to re-appreciate the evidence and coming to its own conclusion. The High court has nowhere stated or concluded that the lower courts had committed an error of { -30- } jurisdiction or that they had acted illegally and improperly. Further the High court failed to notice that a case of casual licence was not pleaded or proved by Respondent 4. Therefore, it was not open to the High court to make out a new case on behalf of the party in its writ jurisdiction under Article 226 of the Constitution."
30. The Apex court in the case of K.V.S Ram V/s. Banglore Metropolitan Transport Corporation, reported as 2015 (12) SCC 39 held that in exercise of superintendence under Article 227 of the Constitution, the High court can interfere with the order of tribunal only when there is patent perversity in orders of tribunal and courts subordinate to it or there is gross and manifest failure of justice or principles of natural justice has been faulted. The Apex court further held that while exercising jurisdiction under Article 226/227, courts must keep in view goals set out in preamble and in part IV of the Constitution while construing social welfare legislation.
31. In the case of S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow V/s. Vinay Chandra Misra, reported as 1981 (1) SCC 436, the Apex court { -30- } held that the court of Board of Revenue is a 'subordinate' to the High Court.
32. The respondents herein have purchased the property in question by registered sale deeds after paying full consideration and after obtaining all statutory clearance as required under the law and developing the colony from last more than 7 to 8 years. The sale deeds are registered sale deeds under the provisions of the Registration Act, 1908. In the present bunch of writ petitions, number of new plea was taken by the petitioners and in their support number of documents has been filed. These documents cannot be examined in a proceeding under Article 227 of the Constitution and they have a remedy to challenge the title of the respondents in an appropriate proceedings, if they feel that respondents are not having any title over the property in question, they are free to take the legal course in accordance with law, wherein the competent authority / Court after considering the oral and documentary evidence decide the title in accordance with law.
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33. Generally, a point not raised before a Collector or Board of Revenue cannot be allowed to be raised for the first time before this Court in a petition under Article 227 of the Constitution. The jurisdiction of this Court under Article 227 is specially extraordinary and supervisory in nature and not original or appellate jurisdiction and, hence normally, the Court will not allow a new plea to be raised, which was not raised before the Collector or Board of Revenue and which requires investigation of facts.
34. Thus, no plea requiring investigation of facts can be entertained by this Court for the first time. The new plea is not based on admitted or uncontroverted facts and does involve investigation into a question of fact. Revenue Book Circulars are administrative instructions, which have not been framed under any law.
35. In the present case, the persons were conferred Bhumi Swami rights prior to 1980. Even if the arguments advanced by the learned Additional Advocate General is accepted then, it would create chaos because suppose a person was granted Bhumi Swami right in the { -30- } year 1958, 1959, 1960 or 1965 and thereafter subsequently the transactions had taken place between number of persons, those transactions could also be hit by the provisions of Section 165(7-b) of the Land Revenue Code.
36. In the present case, admittedly, sale deeds were executed in 2007-08 and immediately thereafter various permissions were granted by the statutory authorities including revenue authorities and from those orders Collector came to know about the execution of sale deeds by the persons who were conferred Bhumi Swami rights much prior to 1980. Hence, in our opinion, he had no power and authority to exercise the power of suo motu revision after a period of 180 days from the date of his knowledge as he had knowledge about the execution of sale deeds immediately after its execution because all the statutory permissions by the revenue authorities were granted through Collector. Thus, we incline to allow the preliminary objection of the respondents by holding that the Collector had no power and authority to exercise the { -30- } power of suo motu revision after a period of 180 days and Board of Revenue rightly set aside the order.
37. Consequently, the writ appeal and all the writ petitions are hereby dismissed. No order as to costs.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
ss/-