Madhya Pradesh High Court
Smt. Sakuntala Devi vs The Board Of Revenue on 16 July, 2013
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
W.P. No. 2160/2013
Shakuntala Devi and others.
Vs.
Board of Revenue and others.
Shri D.N. Shukla, :- Counsel for the petitioners.
Shri Swapnil Ganguly :- Counsel for the respondent no. 1.
Ku. Neelam Jaiswal :- Counsel for the respondent nos. 2 to 7.
ORDER
( 16/07/2013) U.C. MAHESHWARI, J.
1. The petitioners who were applicants in the initial court of the Tahsildar have filed this petition under Article 226 and 227 of the Constitution of India for issuing appropriate writ to quash the order dated 22.5.2012, (Ann.P-5), passed by the respondent no.1, Board of Revenue in Revenue Revision No. 181-Two/03.
2. The facts giving rise to this petition in short are that the petitioners herein claiming themselves to be the natural heirs and legal representatives of the deceased Bhagwat Prasad Jaiswal had filed Revenue Case No.28- A-6/2000-2001 in the Court of Suhagpur under Section 109 and 110 of the M.P. Land Revenue Code, in short "The Code" for mutation of their names in the revenue record as Bhumswami of the disputed land at the place of late Bhagwat Prasad Jaiswal.
3. After holding the proceeding in such Revenue Case No. 28-A-6-2000-2001, on consideration by allowing the application of the petitioners, their names were directed to be mutated in the records of right at the place of late Bhagwat Prasad Jaiswal as Bhumiswami by the Tahsildar vide order dated 28.2.2001.
4. Subsequent to passing such order of mutation on coming to know about such mutation, the respondent nos. 2 to 7, herein claiming themselves to be the natural heirs and legal representatives of Bhagwat Prasad Jaiswal challenged 2 such order of Tahsildar through Revenue Appeal No. 107/Appeal/2000-2001 before the Court of SDO, Suhagpur. In such appeal at various places, the petitioner no. 1 herein Shakuntala Devi (who was respondent No.1 in such appeal), was stated to be "Mad Person" and "Divorced Wife" of Bhagwat Prasad Jaiswal and said Bhagwat Prasad Jaiswal was stated to be a "Dump Person", on which an application under Order 6, Rule 16 of CPC for appropriate direction to the respondents to delete and score out said words from the appeal memo was filed on behalf of the present petitioners. On consideration, vide interlocutory order dated 4.7.2001, (Ann. P-2), the SDO has allowed such application in part and directed the respondent Nos.2 to 7 herein to delete the above mentioned words stated with respect of Smt. Shakuntala Devi from the appeal memo and such appeal was fixed for reply of applications as well as for arguments on 17.7.2001. In pendency of such appeal, said interlocutory order dated 4.7.2001 was challenged by the respondent Nos.2 to 7 herein by way of Revenue Revision No. 118/Revision/2000-2001 in the Court of Collector, district Shahdol. On consideration, vide order dated 18.9.2001, (Ann. P-3), by affirming the order of SDO, such revision was dismissed, on which the respondents again filed Revenue Revision No. 64/Revision/2001-2002 in the Court of Upper Commissioner, Rewa Division challenging the order of Collector, Annexure P.3. On consideration, by affirming the order of Collector, such revision was also dismissed vide order dated 23.12.2002 (Ann. P.4) Such order of Commissioner was again challenged by the respondents herein before the Board of Revenue in Revision bearing No. 181-Two/03. In pendency of such revision the aforesaid Revenue appeal filed by the respondent Nos. 2 to 7 in the Court of S. D. O. was dismissed in default on non-appearance of the parties on 26.9.2009 and the same was not pending in any manner, inspite that, the Board of Revenue considering the impugned revision filed, only 3 against the aforesaid interlocutory order of SDO, dated 4.7.2001, (Ann. P-2), affirmed by the Collector and Commissioner, instead to decide the sustainability of such order, vide impugned order, Annexure P-5, set aside all the orders of Subordinate Revenue Courts including the mutation order of Tahsildar and remitted back the matter to Tahsildar with a direction to decide afresh, on which the petitioners have come to this Court.
5. The counsel of the parties were heard at length, keeping in view their arguments, I have carefully gone through the papers placed on the record, including the papers placed by the respondent nos. 2 to 7 after closing the case for orders.
6. It is apparent from the proceeding dated 26.9.2001 drawn up by the SDO in aforesaid appeal that on account of non appearance on behalf of respondent nos 2 to 7 herein who were appellants there, the same was dismissed in default. So, on the date of passing the impugned order (Annexure P-5) on 22.5.2012 by the Board of Revenue, said original appeal, in which the interlocutory order, (Ann. P-2) (subject matter of revision) was passed, was not pending and in such premises, the revision of respondents had become infructuous and the Board of Revenue did not have any authority, after loosing the sanctity of the interlocutory order on dismissal of the appeal by the SDO, to decide the impugned revision on merits under Section 50 of the Code at the request of the parties or suo-motu, unless such appeal is restored by the S. D. O. under Section 35 of the Code or by entertaining any subsequent second appeal against such dismissal order by the appellate Court, such appeal of the S. D. O. is restored under Section 44 of the Code. On dismissal of the appeal by the SDO under Section 44 of the Code, another appeal is provided before the Court of Commissioner but by ignoring such provisions of restoration as well as of the second appeal inspite dismissal of the appeal in default and revision has become infructuous, the 4 Board of Revenue by invoking the power of suo motu revision under Section 50 of the Code has set aside all orders of subordinate revision Court including the mutation order passed by the Tahsildar in favour of the petitioners.
7. Under the provision of the Code initially jurisdiction for entertaining and deciding the mutation application has been conferred to the Court of Tahsildar and on passing the order by such authority, the aggrieved party has a right to file the first appeal under Section 44 of the M.P.L.R.C before the SDO and on deciding such appeal the aggrieved party has a right to file second/another appeal before the court of Commissioner and on deciding such appeal by such authority, then the aggrieved party has a right to approach the Board of Revenue under the Revisional jurisdiction enumerated under Section 50 of the M.P.L.R.C.
8. Besides the aforesaid, if any interlocutory order either on an application of the party or otherwise is passed in pendency of the case or appeal by any subordinate revenue courts, then the aggrieved party has a right to file a revision before the superior revenue authority provided under Section 50 of the Code. In the case at hand on passing the interlocutory order, Annexure P-2, by the SDO, the revision of the respondent Nos. 2 to 7 was entertained by the Collector. On dismissing the same another revision was entertained by the Commissioner and on dismissing such revision, the respondent Nos. 2 to 7 approached the Board of Revenue. Accordingly after dismissal of revisions of the respondents, filed against the interlocutory order of SDO, by the Collector and Commissioner, on entertaining the revision in any case the Board of Revenue had to decide the limited question regarding sustainability of the order of the SDO allowing the application of the petitioners herein filed under Order 6, Rule 16 of CPC and not any other issue of the case.
9. In any case the Board of Revenue did not have any authority to decide the impugned case of mutation or to examine the sustainability of order of 5 Tahsildar on merits by ignoring the provisions of Section 35 of the Code, in which the jurisdiction of restoration of aforesaid appeal dismissed in default is vested in the Court of SDO and of Section 44 of the Code, in which the jurisdiction of hearing the Second Appeal against the order of dismissing the appeal is vested in the court of Commissioner and unless subject to restoration the aforesaid appeal of respondent Nos. 2 to 7 herein is not decided by the SDO on merits in other case, on filing the second appeal against the aforesaid order of the SDO, dismissing the appeal, is considered and decided by the Commissioner of Rewa Division in second appeal till then the Board of Revenue did not have any authority either to examine the matter on merits or set aside the mutation order passed by the Tahsildar.
10.In the aforesaid premises, it is apparent that Board of Revenue under some misconception by giving the wrong interpretation to Section 50 of the Code treated the impugned revision, filed by the parties as suo motu revision, ignoring the mandatory provision of Code regarding restoration and the appeal under Section 35 and Section 44 of the Code, respectively decided the entire case at once contrary to the vested jurisdiction in it and set aside the order of Tahsildar on merits only on whims and fancy of the Presiding Officer of the Board of Revenue. The same is not sustainable under the law.
11. I am also apprised by the respondents' counsel that subsequent to passing the impugned order (Ann. P.5) by the Board of Revenue, the respondent Nos. 2 to 7 have filed an application under Section 35 (3) of the Code in the Court of SDO for restoration of their aforesaid appeal, dismissed in default. The same is pending. For the sake of arguments, if such argument is relied on even then the impugned order of Board of Revenue, (Ann. P-5) is not sustainable till the extent of setting aside the order of mutation passed by the Tahsildar because the same is subject matter of said appeal of the SDO, for which restoration application of the respondents is still pending. So on such 6 count also the impugned order setting aside the mutation order of Tahsildar along with all the orders passed by the Subordinate revenue authorities is not sustainable.
12.So far the case laws cited on behalf of the respondents' counsel is concerned, the case law of this court in the matter of Saudan Singh Vs. State of M.P. and another reported in 1986 RN-1 (High Court), Page no. 1 being based on some other facts and circumstances is distinguishable with the facts and circumstances of the case at hand, thus the same is not helping to the respondents. In the case at hand the matter is pending before the SDO for restoration of appeal and subject to restoration, the same is to be decided on merits. So, suo motu revisional power could not be invoked by the Board of Revenue by ignoring the propriety of the subordinate Court and also the provision of restoration and appeal. The other case law of Board of Revenue in the matter of Nandlal Vs. Smt. Satyawati and others, reported in 1999 RN 325 being based on different question, which is not involved in the present case is not helping to the petitioners. Even otherwise such citation did not have binding effect before this Court.
13.In view of aforesaid discussion the impugned order (Annexure P-5) being not sustainable under the existing legal position is hereby set aside and the case is remitted back to the Board of Revenue with a direction that subject to restoration of the appeal of the respondent Nos. 2 to 7 by the SDO which has been dismissed in default, hear and decide the impugned revision afresh only on a limited question regarding sustainability of the interlocutory order dated 4.7.2001, passed by the SDO, (part of Annexure P-2), affirmed by the Collector and the Commissioner by the orders Annexure P-3 and P-4 respectively. The merits of mutation order passed by the Tahsildar shall be considered first subject to restoration of the appeal, by the SDO and then subject to decision of SDO on arising the occasion, by the Commissioner of 7 Revenue in second appeal and thereafter if the aggrieved party comes to the Board of Revenue, then the Board of Revenue shall have the authority to consider the matter on merits.
14. The petition is allowed in part as indicated above.
( U.C. MAHESHWARI ) JUDGE bks