Madhya Pradesh High Court
Dunna vs The State Of Madhya Pradesh on 25 January, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 25 th OF JANUARY, 2023
WRIT PETITION No. 17180 of 2016
BETWEEN:-
DUNNA S/O SHRI TIRRA CHAMAR, AGED ABOUT 72
YE A R S , VILL. DHAWAD TEH. RAJNAGAR DISTT.
CHHATARPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANOOP KUMAR SAXENA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY DEPARTMENT OF REVENUE
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. TEHSILDAR RAJNAGAR CIRCLE
CHANDRANAGAR (MADHYA PRADESH)
3. SUB DIVISIONAL OFFICER RAJNAGAR
CHHATARPUR (MADHYA PRADESH)
4. ADDITIONAL COMMISSIONER SAGAR DIVISION
DISTT-SAGAR (MADHYA PRADESH)
5. VRINDAWAN S/O KAMTU AHEER R/O VILLAGE
DHAWAD, TEH-RAJNAGAR (MADHYA PRADESH)
6. LAKSHMAN S/O KAMTU YADAV(AHEER) R/O
VILLAGE DHAWAD, TEH-RAJNAGAR (MADHYA
PRADESH)
7. MIJAJI S/O KAMTU YADAV(AHEER) R/O VILLAGE
DHAWAD, TEH-RAJNAGAR (MADHYA PRADESH)
8. HEERALAL S/O KAMTU YADAV(AHEER) R/O
VILLAGE DHAWAD, TEH-RAJNAGAR (MADHYA
PRADESH)
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/31/2023
1:10:39 PM
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9. PYARI BAI W/O CHAKKI AHEERA R/O VILLAGE
DHAWAD, TEH-RAJNAGAR (MADHYA PRADESH)
10. PRAKSH S/O CHAKKI AHEERA R/O VILLAGE
DHAWAD, TEH-RAJNAGAR (MADHYA PRADESH)
11. PRAMOD S/O CHAKKI AHEERA R/O VILLAGE
DHAWAD, TEH-RAJNAGAR (MADHYA PRADESH)
12. SMT. MATTHI W/O KALLU YADAV R/O VILLAGE
DHAWAD, TEH-RAJNAGAR (MADHYA PRADESH)
13. MULAYAM S/O KALLU YADAV OCCUPATION:
GUARDIAN MOTHER SMT. MATTHI W/O KALLU
YADAV R/O VILLAGE DHAWAD, TEH-RAJNAGAR
(MADHYA PRADESH)
14. RAJKUMARI D/O KALLU YADAV OCCUPATION:
GUARDIAN MOTHER SMT. MATTHI W/O KALLU
YADAV R/O VILLAGE DHAWAD, TEH-RAJNAGAR
(MADHYA PRADESH)
15. DEVKA D/O KALLU YADAV OCCUPATION:
GUARDIAN MOTHER SMT. MATTHI W/O KALLU
YADAV R/O VILLAGE DHAWAD, TEH-RAJNAGAR
(MADHYA PRADESH)
16. CHANDA D/O KALLU YADAV OCCUPATION:
GUARDIAN MOTHER SMT. MATTHI W/O KALLU
YADAV R/O VILLAGE DHAWAD, TEH-RAJNAGAR
(MADHYA PRADESH)
17. SURAJ D/O KALLU YADAV OCCUPATION:
GUARDIAN MOTHER SMT. MATTHI W/O KALLU
YADAV R/O VILLAGE DHAWAD, TEH-RAJNAGAR
(MADHYA PRADESH)
18. ROSHNI D/O KALLU YADAV OCCUPATION:
GUARDIAN MOTHER SMT. MATTHI W/O KALLU
YADAV R/O VILLAGE DHAWAD, TEH-RAJNAGAR
(MADHYA PRADESH)
19. SMT. BACHHI D/O BANDI AHEER, W/O MANNU
AHEER, R/O VILLAGE SHIVRALPUR, TEH-
RAJNAGAR (MADHYA PRADESH)
-SINCE SOME PERSONS WHO ARE MENTIONED IN
THE IMPUGNED ORDER NAMELY KAMTU S/O
CHANGA AHEER, BANDI S/O LOTA AHEER,
DHAKKI D/O BANDI AHEER AND KALLU S/O
BANDI AHEER HAVE DIED, THEREFORE ARE
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/31/2023
1:10:39 PM
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NOT IMPLEADED AS PARTIES HEREIN.
.....RESPONDENTS
(BY SHRI MANOJ KUMAR MISHRA - ADVOCATE, SMT. ANJALI
SHRIVASTAVA -ADVOCATE FOR RESPONDENT NO.5 AND SHIR SANJEEV
KUMAR SINGH - PANEL LAWYER FOR THE RESPONDENT/STATE. )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this petition under Article 227 of the Constitution of India praying for following reliefs:-
(i) To set aside impugned order dated 26.09.2016 passed by learned Member of Board of Revenue, Gwalior (M.P.), in Review Case No.2393- ek/2016.
(ii) To call relevant record from the office of respondent No.1.
(iii) Any other relief which this Hon'ble Court may kindly be deemed fit and proper in favour of petitioner may also be given together with cost of petition, in the interest of justice.
2. The contents of the memorandum of writ petition reflect that the petitioner along with one Bandi S/o Lota Aheer moved an application under Section 113 read with Section 32 of the Madhya Pradesh Land Revenue Code, 1959 before the Sub-Divisional Officer Rajnagar, District-Chhatarpur. The said application was allowed vide order date 17.05.1995 (Annexure P/1) and the Sub-Divisional Officer directed that the name of the present petitioner and Bandi S/o Lota Aheer be recorded in respect of property situate on Kashra No.288, 291/3 and 293 Area 4.913 Hectare, 1.157 Hectare and 11.73 Acre respectively. The said order passed by the Sub-Divisional Officer was decided to be reviewed by the Sub-Divisional Officer and the Sub-Divisional Officer referred the matter to the Collector to accord permission to review the order. The Collector vide order dated 17.10.1995 (Annexure P/2) accorded permission to review the order. The permission accorded by the Collector Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 4 dated 17.10.1995 was assailed by the present petitioner by filing a revision before the Additional Commissioner Division Sagar, District-Sagar. The Additional Commissioner Division Sagar vide order dated 31.05.1999 (Annexure P/3) allowed the revision and set-aside the order of Collector dated 17.10.1995 (Annexure P/2) by which, the permission was accorded by the Collector to Sub-Divisional Officer Rajnagar to review his own order.
3. The order passed by the Commissioner dated 31.05.1999 (Annexure P/3) was initially challenged before the Bord of Revenue and the Board of Revenue passed an order dated 22.05.2001 (Annexure P/4) by which, initially the Board of Revenue set aside the order dated 17.05.1995 (Annexure P/1). The said order passed by the Board of Revenue dated 22.05.2001 (Annexure P/4) was assailed in W.P.No.3462/2001 by the present petitioner and this Court vide order dated 19.06.2012 (Annexure P/5) set-aside the order of Board of Revenue dated 22.05.2001 (Annexure P/4) and remitted the matter to Board of Revenue again to decide the case afresh. After passing of the order by this Court in W.P.No.3462/2001, the Board of Revenue passed an order dated 24.06.2016 (Annexure P/6) on a revision preferred by the private respondents herein (Respondent Nos.5 and 6) and dismissed the revision. Thereafter, the private respondents i.e. respondent No.5 and 6 again moved an application for review before the Board of Revenue and the Board of Revenue vide order dated 26.09.2016 (Annexure P/8) has recalled its earlier order dated 24.06.2016 (Annexure P/6) and while exercising the powers under Section 50 of MPLRC has set-aside the entire proceedings and all the orders passed by all subordinate authorities and has directed Tehsildar Rajnagar to maintain the revenue records in the same position which existed prior to 17.05.1995. Thus, assailing the order passed by the Board of Revenue dated 26.09.2016 (Annexure P/8), this petition Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 5 is filed.
4. Learned counsel for the petitioner contends that in the present case, the Board of Revenue by impugned order dated 26.09.2016 (Annexure P/8) has set aside the entire orders which were passed in past by the authorities and which were not even disputed before the Board of Revenue. It is contended by the counsel that the penultimate paragraph in the impugned order dated 26.09.2016 (Annexure P/8) reflects that the Board of Revenue set aside the entire earlier proceedings and the other orders passed by the subordinate authorities and remitted back the matter to Tehsildar Rajnagar to maintain the revenue records in terms of the position which existed prior to 17.05.1995. It is also contended by the counsel that in the present case, initial order of Sub- Divisional Officer dated 17.05.1995 (Annexure P/1) was not reviewed and only a permission was accorded to review the said order. The said permission granted by the Collector vide his order dated 17.10.1995 (Annexure P/2) was assailed by the present petitioner in revision before the Additional Commissioner Division Sagar, District-Sagar and the Additional Commissioner Division Sagar passed a well reasoned order and accordingly, set aside the order dated 17.10.1995 (Annexure P/2) which was passed by the Collector.
5. It is also contended by the counsel that the subsequent orders which have been passed by the Board of Revenue are arising out of this order of Additional Commissioner Division Sagar dated 31.05.1999 (Annexure P/3) and therefore, apart from the order dated 31.05.1999, other orders passed by the subordinate authorities were not to be interfered by the Board of Revenue inasmuch as, the same was not subject matter of the revision which was preferred before the Board of Revenue. Thus, counsel submits that the Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 6 impugned order dated 26.09.2016 contained in Annexure P/8 to be quashed.
6. Per contra, learned counsel for the respondent No.5 contends that the order dated 17.05.1995 (Annexure P/1) was an order without jurisdiction inasmuch as, the same could not have been passed by the Sub-Divisional Officer under Section 113 and also under Section 32 of MPLRC. It is contended by the counsel that it was not within the competence of the Sub- Divisional Officer to pass the order of mutation of name of the present petitioner while exercising the jurisdiction under Section 113 of MPLRC. It is contended by the counsel that the scope of Section 113 of MPLRC is limited and therefore, the order dated 17.05.1995 (Annexre P/1) was without jurisdiction and accordingly, permission to review the said order was rightly granted by the Collector vide his order dated 17.10.1995 (Annexure P/2). It is contended by the counsel that the order of Collector dated 17.10.1995 was assailed by the present petitioner before the Additional Commissioner and the Additional Commissioner in a purely mechanical manner set-aside the order of Collector dated 17.10.1995 (Annexure P/2). The entire facts were brought to the notice of Board of Revenue by filing a review petition and the Board of Revenue considering the scope of Section 113 of the MPLRC rightly held that the original order dated 17.05.1995 (Annexure P/1) was nullity and unsustainable and has rightly set aside all the orders and proceedings and has also directed the Tehsildar to maintain the position regarding mutation which existed prior to 17.05.1995 (Annexure P/1).
7. Learned counsel for the other respondents has also supported the submissions advanced by the counsel for the respondent No.5.
8. Heard rival submissions of both the parties and perused the record.
9. In the present case, the dispute which travelled up to the Board of Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 7 Revenue Gwalior was arising out of an order dated 17.10.1995 (Annexure P/2) which was passed by the Collector by which, the Collector accorded the permission to Sub-Divisional Officer Rajnagar to review his own order dated 17.05.1995 (Annexure P/1). Here, at this juncture, it is important to note that only permission was accorded by the Collector on 17.10.1995 to Sub- Divisional Officer to review his own order dated 17.05.1995 (Annexure P/1) and the order dated 17.05.1995 was not reviewed. The permission which was granted vide order dated 17.10.1995 was then assailed by the present petitioner and thereafter, the same gave birth to series of litigations which have been brought on record from Annexure P/3 to Annexure P/8. Thus, it can be safely concluded that so far as this petition is concerned, the same order dated 17.10.1995 passed by the Collector Chhatarpur has been subjected to scrutiny before the various authorities.
10. The order dated 17.10.1995 (Annexure P/2) was questioned by the present petitioner before the Additional Commissioner Division Sagar, District- Sagar. The Additional Commissioner Division Sagar vide order dated 31.05.1999 (Annexure P/3) set-aside the order dated 17.10.1995 (Annexure P/2) passed by the Collector Chhatarpur. The Additional Commissioner in paragraph 6 of his order, observed that before granting permission to review the order, the opportunity of hearing ought to have been extended to the present petitioner. The Commissioner also referred to the proviso contained in Section 51 of the MPLRC and observed that an order cannot be reviewed unless an opportunity of hearing extended to all interested parties. Here, the moot question which requires consideration is to the effect that the order dated 17.10.1995 (Annexure P/2) was passed by the Collector by which he accorded Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 8 permission to review the order and such permission is accorded in terms of the provisions of Section 51 of MPLRC.
11. Section 51 of Madhya Pradesh Land Revenue Code, 1959 provides as under :-
"51. Review of orders. - [(1) The Board or any Revenue Officer may, either suo motu or on an application of any party interested, review any order passed by it or him, or by any predecessor-in-office and pass such order in reference thereto as it or he may think fit:
Provided that -
(1) if the Commissioner, Collector or District Survey Officer thinks it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Board, and if an officer subordinate to the Collector or District Survey Officer proposes to review an order, whether passed by himself or his predecessor, he shall first obtain the sanction in writing of the Collector or District Survey Officer to whom he is immediate subordinate;
(i-a) no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order;
(ii) no order from which an appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending, be reviewed;
(iii) no order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings, and no application for the review of such order shall be entertained unless it is made within forty-five days from the passing of the order.
Proviso -applicable in M.P. Only [Provided that where the order, against which the application for review is being presented, made before the coming into force of the Madhya Pradesh Land Revenue Copde (Amendment) Act, 2011, in such case review shall be entertained within ninety days from the date of order.] (2) No order shall be reviewed except on the grounds provided for in the Code of Civil Procedure, 1908 (V of 1908).
(3) For the purposes of this section the Collector shall be deemed to be the successor in office of any Revenue Officer who has left the district or who has ceased to exercise powers as a Revenue Officer and to whom there is no successor in the district.
(4) An order which has been dealt with in appeal or on revision shall not be reviewed by any Revenue Officer subordinate to the appellate or revisional authority."
Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 912. A perusal of the Section 51(1)(i) of MPLRC provides that if an order is passed by the subordinate authority, such authority shall take sanction in writing of the authority to whom he is immediately subordinate to review an order. So far as the stage contained in Section 51 (1)(i) is considered, at this stage, while granting permission to review the order to a subordinate authority, no opportunity of hearing is stipulated in the said provisions. The opportunity of hearing only comes into picture when the original order is sought to be varied or reversed in exercise of review jurisdiction in terms of Section 51 (1)(i-a) of MPLRC. Therefore, the Additional Commissioner while passing the order dated 31.05.1999 (Annexure P/3) treated the order dated 17.10.1995 (Annexure P/2) of an order of review itself whereas the same was an order by which the permission was granted to review to Sub-Divisional Officer. The said order of Commissioner, assailed before the Board of Revenue. The Board of Revenue initially declined to interfere with the said order by passing an order dated 24.06.2016 (Annexure P/6). Later on, on a review petition submitted by the private respondents herein (respondent Nos. 5 and 6), vide order dated 29.06.2016 (Annexure P/8) the Board of Revenue has reviewed its earlier order and has set aside all the proceedings and the orders passed by the subordinate authorities and has also directed the Sub-Divisional Officer to maintain the revenue records regarding mutation in terms of the position which existed prior to 17.05.1995 (Annexure P/1).
13. Undisputedly, the order dated 17.05.1995 was not an order which was challenged by any of the parties before the authorities, therefore, the same could not have been interfered with by the Board of Revenue while passing the impugned order dated 26.09.2016 (Annexure P/8). It is also important that Signature Not Verified before the Board of Revenue, the order of the Commissioner dated 31.05.1999 Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM 10 (Annexure P/3) was challenged, therefore, even if the Board of Revenue decided to exercise review jurisdiction, the said powers were only confined to the order dated 31.05.1999 passed by the Additional Commissioner Division Sagar, District-Sagar. The Board of Revenue could not have adjudged the validity of the order dated 17.05.1995 (Annexure P/1) inasmuch as, the same was not questioned before the Board of Revenue.
14. In view of the aforesaid, the order of Board of Revenue dated 26.09.2016 (Annexure P/8) is modified and only the order dated 31.05.1999 (Annexure P/3) passed by the Additional Commissioner Division Sagar, District-Sagar is quashed.
15. The Sub-Divisional Officer Rajnagar is directed to proceed further to review its order dated 17.05.1995 (Annexure P/1) in terms of permission accorded by the Collector's order dated 17.10.1995 (Annexure P/2) and decide the review petition while extending the opportunity of hearing to all concerned including the present petitioner as well as respondents herein.
16. The entire exercise shall be completed by the Sub-Divisional Officer Rajnagar within a period of four months from the date of production of certified copy of the order passed today.
17. Accordingly, the present petition stands disposed of with the above directions. No order as to costs.
C.c. as per rules.
(MANINDER S. BHATTI) JUDGE sp Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/31/2023 1:10:39 PM