Madhya Pradesh High Court
Bhaiya Lal vs The State Of M.P. And Ors. on 5 December, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 05th OF DECEMBER, 2022
WRIT PETITION No.5645 of 2002
BETWEEN:-
1. BHAIYALAL S/O GAJADHAR, AGED ABOUT 50
YEARS, R/O VILLAGE DHANIA KHEDI, TAHSIL
AND DISTRICT RAISEN.
2. BAIJNATH S/O LALJI YADAV, AGED ABOUT 40
YEARS, R/O VILLAGE DHANIA KHEDI, TAHSIL
AND DISTRICT RAISEN.
3. BADAN SINGH S/O AKAHE SINGH, AGED
ABOUT 60 YEARS, R/O VILLAGE DHANIA
KHEDI, TAHSIL AND DISTRICT RAISEN.
4. LALJI RAM S/O AKAHE SINGH, AGED ABOUT 65
YEARS, R/O VILLAGE DHANIA KHEDI, TAHSIL
AND DISTRICT RAISEN.
5. MALAM SINGH S/O LALJI RAM, AGED ABOUT
38 YEARS, R/O VILLAGE DHANIA KHEDI,
TAHSIL AND DISTRICT RAISEN.
6. RAJ MOHAN S/O LALJI RAM, AGED ABOUT 36
YEARS, R/O VILLAGE DHANIA KHEDI, TAHSIL
AND DISTRICT RAISEN.
7. RAM CHARAN S/O BADAN SINGH YADAV, AGED
ABOUT 40 YEARS, R/O VILLAGE DHANIA
KHEDI, TAHSIL AND DISTRICT RAISEN.
8. MADHO SINGH S/O BADAN SINGH, AGED
ABOUT 38 YEARS, R/O VILLAGE DHANIA
KHEDI, TAHSIL AND DISTRICT RAISEN.
9. SUMRAT SINGH S/O BAIJNATH SINGH, AGED
ABOUT 45 YEARS, R/O VILLAGE DHANIA
KHEDI, TAHSIL AND DISTRICT RAISEN.
10. RAJENDRA SINGH S/O BADAN SINGH, AGED
ABOUT 32 YEARS, R/O VILLAGE DHANIA
KHEDI, TAHSIL AND DISTRICT RAISEN.
.....PETITIONERS
(BY SHRI ADIL USMANI - ADVOCATE)
2
AND
1. STATE OF MADHYA PRADESH, THROUGH
SECRETARY REVENUE DEPARTMENT,
VALLABH BHAWAN, BHOPAL (M.P.)
2. BOARD OF REVENUE, MADHYA PRADESH,
GWALIOR
3. SUB DIVISIONAL OFFICER CUM COMPETENT
AUTHORITY, RAISEN (M.P.).
......RESPONDENTS
(BY SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE)
............................................................................................................................................
Reserved on : 23.11.2022
Pronounced on : 05.12.2022
............................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
Pleadings are complete. With the consent of learned counsel for the parties, the matter is finally heard.
2. This petition is filed under Article 226/227 of the Constitution of India asking following relief:-
(i) A writ in the nature of certiorari may be issued by quashing the orders passed by the Respondent No.2 and 3 vide Annexure P/11 and P/12.
(ii) A writ of mandamus may be issued directing the Respondents not to cause any interference in the peaceful possession of the respective lands belonging to the petitioners as Bhumi Swami Holder in any manner what so ever which they have purchased by registered sale deeds and are in lawful possession of the same.
(iii) Any other writs, orders or directions which this Hon'ble Court deem fit and proper may be granted.
3. Annexure-P/11 is an order dated 24.02.1997 passed by the competent authority under the proceedings of M.P. Ceiling on 3 Agricultural Holdings Act, 1960 (hereinafter referred to as the 'Act, 1960') whereunder the land belongs to one Sanman Singh measuring 117.57 (57.82 acres irrigated land) out of which 84.00 barren land has been left and remaining land i.e. 33.57 barren land including 16.78 acres irrigated land has been declared as surplus and direction was issued to issue statement in accordance with Section 11(3) of the Act, 1960.
4. The said order was assailed before the Board of Revenue by the present petitioners who are the purchasers of the land sold by Sanman Singh and his successors namely Kamla Bai and her three daughters. The Board of Revenue although vide order dated 15.01.2002 (Annexure-P/12) observed that the appeal preferred before it was not tenable but decided the case on merits and approved the order passed by the competent authority dated 24.02.1997.
5. Shri Usami in this petition has assailed the order mainly on two counts firstly; once the Board of Revenue came to the conclusion that the appeal was not maintainable then the said authority had no jurisdiction to pass an order on merit and secondly; the competent authority i.e. the Sub Divisional Officer, Raisen was not competent to pass such order in view of the definition clause of competent authority as has been prescribed under Section 2(e) of the Act, 1960. He submits that there must be a notification issued by the State Government giving name of the competent authority but the said notification has never been issued and despite raising specific ground in the petition, in a reply submitted by the respondents there was no specific answer as to whether such notification in the name of Shri B.B. Khare, who was the then Sub Divisional Officer, Raisen claiming himself to be the competent authority, has been issued or not.
6. Shri Kekre on the other hand has opposed the submission 4 made by the counsel for the petitioners and submitted that in a reply of the State it is very categorically mentioned that the order passed by the competent authority has been further assailed before the Collector in an appeal and the Collector affirmed the said order of competent authority vide order dated 13.04.1998 (Annexure-R/1) and that order was not further assailed and as such, the same attained finality. He submitted that the purchaser in fact had no right to prefer an appeal before the Board of Revenue to challenge the order dated 24.02.1997 (Annexure-P/11) because said order merged in the order of appellate authority, that is Collector dated 13.04.1998 and that order has already attained finality but despite that, petitioners approached the Board of Revenue and the Board of Revenue passed the order, which is impugned in this petition. He has further submitted that the proceeding imitated by the Board of Revenue is without jurisdiction and void and, therefore, the order passed by the Board of Revenue cannot be further assailed by the petitioners by filing this petition. If same has been so assailed, that does not give any impact over the order passed by the Collector or by the competent authority holding the land of Sanman Singh as surplus under the provisions of the Act, 1960. Shri Kekre has placed reliance upon a judgment reported in 1973 M.P.L.J. 43 parties being Ravi Shankar Dubey and others Vs. Board of Revenue, Madhya Pradesh, Gwalior and others, saying that no independent notification in the name of the competent authority is required to be issued because the authority does not act as 'persona designata' but it is the revenue officer who is said to be the competent authority who can perform the functions of competent authority and as such, the order passed by the Sub Divisional Officer, Raisen dated 24.02.1997 is perfect and valid.
7. To resolve the controversy involved in this case, it is required to mention facts in nutshell which are as under :-
5(i) That, one Sanman Singh had agricultural lands bearing old Khasra Nos. 21,24,65,66/1, 66/2, 66/3, 67/1, 72, 74, 75, 76, 77/1/1/, 77/1/2, 78 and 79 and new numbers 25 (area 11.60 acres), 45(1.57 acres), 92 (1.93 acres), total 59.75 acres.
(ii) That, during his life time, Sanman Singh sold 15 acres of land to Badan Singh (petitioner no.3) bearing khasra no. 25, area 5.60 acres out of 4.694 hectares. He also sold 15 acres of land to Lalji (petitioner no.4) bearing khasra no. 80 by registered sale deed dated 28.05.1977.
(iii) That, petitioenr no.4 Lalji has sold Khasra no. 80/1/1 and 80/1, area 03 acres to Baijnath Singh (petitioner no.2).
(iv) That, Sanman Singh died in the year 1981 leaving behind his widow Smt. Kamla Bai and three daughters namely Kera Bai, Dulla Bai and Dhuppa Bai.
(v) That, Smt. Kamla Bai, Kera Bai, Dulla Bai and Dhuppa Bai sold land of khasra no. 25/1, area 6.0 acres and khasra no. 45, area 1.57 acres, total 7.57 acres to Badan Singh (petitioner no.3) by registered sale deed dated 10.06.1982.
(vi) That, the sale was further transferred in different names. On the basis of sale deeds, the revenue records were corrected and names of purchasers were recorded in the Namantran Panji.
(vii) That, there was a family partition between Badan Singh and petitioners no.7, 8 and 10 and thereafter their names were recorded on the basis of family settlement deed against khasra nos. 45/2, 25/2 and 25/4 in the year 1989.
(viii) That, Kera Bai, daughter of Sanman Singh sold the land bearing khasra no. 91, area 3.23 acres by registered sale deed to 6 Bhaiyalal.
(ix) That, on 05.05.1986, Ceiling Case No. 1/161-A 90 (B-3) 82-83 State Vs. Sanman Singh, Patwari gave his report of Village Dhaniya Khedi and on the basis of the said report, proceedings under the provisions of the Act, 1960 were started against Sanman Singh. The Sub Divisional Officer namely B.B. Khare acting as a competent authority under the provisions of the Act, 1960 started proceedings. In the ceiling case, Patwari submitted his report and finally the competent authority passed an order on 24.02.1997 in which the sale deed executed by Sanman Singh and his legal heirs with effect from the period 1977 to 1983 has been set aside, saying that the same is illegal and the sale deed in regard to the area 40.56 acres has been declared void. It was also observed that total 117.57acres out of which 57.82 (irrigated) and as such, 33.57 acres non-irrigated and 16.78 acres irrigated land was declared surplus and direction was issued to prepare the settlement as per Section 11(3) of the Act, 1960.
(x) That, the order dated 24.02.1997 was assailed by the wife of Sanman Singh and her three daughters by filing an appeal before Collector, District Raisen and the appeal was registered as Appeal No. 43/Appeal/Collector/96-97, who by order dated 13.04.1998 approved the order passed by the competent authority on 24.02.1997. Thereafter, the order of Collector has not been assailed by any of the authorities and the purchasers who are the petitioners in this petition challenged the order passed by the competent authority by filing an appeal before the Board of Revenue, Gwalior, who vide its order dated 15.01.2002 has rejected the appeal and maintained the order passed by the competent authority on 24.02.1997; hence this petition challenging the order passed by the Board of Revenue.
78. The petitioners have challenged the order of the Board of Revenue mainly on the ground that the Board of Revenue has observed that the appeal has been preferred under Section 4(3) of the Act, 1960 and prima facie, the said appeal is not maintainable because as per the Board of Revenue, the appeal before the competent authority was not maintainable because appeal can be preferred only for the transaction took place between 01.01.1971 to 07.03.1974. However, the Board of Revenue has also decided the case on merits, affirming the order passed by the competent authority.
9. Shri Usmani, learned counsel for the petitioners has submitted that the order of the Board of Revenue is liable to be set aside on the ground that when the Board came to the conclusion that the appeal preferred under Section 4(3) of the Act, 1960 was not maintainable then there was no reason for the Board to decide the appeal on merits, affirming the order passed by the competent authority on 24.02.1997. He has also submitted that the order passed by the competent authority on 24.02.1997 that too by Shri B.B. Khare is also illegal because as per Section 2(e) of the Act, 1960, he was not the competent authority as there should be a notification issued by the State Government, authorizing an officer 'persona designata' meaning thereby a notification of competent officer has to be issued with the name of the officer. But in absence of any such notification, the order of the competent authority was void, ab initio and further submitted that the respondent/State though filed reply but did not rebut this aspect specifically showing any such notification issued by the State Government in the name of Shri B.B.Khare showing him as an officer as per definition of 'competent officer' as prescribed under Section 2(e) of the Act, 1960.
810. Reply has been filed by the respondents/State stating therein that the petition is liable to be dismissed mainly on the ground that petitioners have directly preferred an appeal before the Board of Revenue challenging the order passed by the competent authority on 24.02.1997 whereas the appeal against the order dated 24.02.1997 had already been preferred by Kamla Bai and her daughters before the Collector and that appeal was registered vide Appeal No. 43/Appeal/Collector/96-97 and the Collector vide order dated 13.04.1998 affirmed the order dated 24.02.1997 and dismissed the appeal but that order of Collector passed in appeal has not been assailed by the present petitioners in any of the Courts and filed an appeal directly before the Board of Revenue and as such, the order of Board of Revenue dismissing the appeal on the ground that appeal was not maintainable cannot be said to be illegal in any manner because order of the Collector has attained finality and has not been challenged by the petitioners anywhere nor by the persons who were appellants, namely Kamla Bai and her three daughters and as such, according to counsel for the respondents, the petition deserves to be dismissed. The respondents have also submitted that in their reply, in paragraph 12, they have very categorically stated that as per the definition of 'competent authority' prescribed under Section 2(e), the Sub Divisional Officer was the competent authority to pass an order on 24.02.1997.
11. Considering the submissions made by learned counsel for the parties and on perusal of record, the question with regard to competency of the authority since goes to the root of the matter, therefore, the same is required to be adjudicated in the present petition. As per Shri Usmani, the notification must have been issued appointing the competent authority as per Section 2(e) of the Act, 1960 and the notification should be 'persona designata', meaning thereby the officer 9 should be specific with his name but in the present case, no such notification was issued.
12. However, I am not convinced with the submission made by learned counsel for the petitioners for the reason that Section 2(e) of the Act, 1960 very categorically provides that the Sub Divisional Officer of an area where land is situated is the competent authority and there is no need to issue any notification specifying the name of the officer to be a competent authority. Section 2(e) of the Act, 1960 is relevant, which reads thus:-
"2(e). "competent authority" means-
(i) in respect of a holder whose entire land is situate within a Sub Division, the Sub Divisional Officer;
(ii) in respect of a holder whose entire land is situate in more than one Sub-Division of the same district, the Collector; and
(iii) in respect of a holder whose land is situate in more than one district, such authority as may be appointed by the State Government."
13. Considering the judgment passed by the High Court in case of Ravi Shankar (supra) saying that no independent notification in the name of the competent authority is required to be issued because the authority does not act as 'persona designata' but it is the revenue officer who is said to be the competent authority and can perform the functions of competent authority and, therefore, the Sub Divisional Officer is the competent authority as defined in Section 2(e) of the Act, 1960 and, accordingly, the order dated 24.02.1997 cannot be said to be an order without jurisdiction and is also not void. As per Section 40 of the Act, 1960, appeal is provided but the Board of Revenue is not the appellate Authority to entertain the revision under Section 42 of the Act, 1960, therefore, the order of the appellate Authority, i.e. by Collector since attained finality and not challenged by the petitioners, the appeal 10 preferred by the petitioners before the Board of Revenue as has been held not maintainable was proper and the writ petition is therefore, without any substance and is accordingly dismissed.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO Date: 2022.12.07 18:28:59 +05'30'