Madhya Pradesh High Court
Prem Narayan Sharma vs The State Of Madhya Pradesh on 8 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 4543 of 2021
PREM NARAYAN SHARMA
Versus
STATE OF MADHYA PRADESH & ORS.
Appearance:
Shri Prashant Sharma - Advocate for petitioner.
Shri Jitesh Sharma - G.A. for respondents No.1, 2, 11 and 12
of respondents/State.
Shri Bhupendra Singh Dhakad - Advocate for respondents
No.3 to 7.
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Reserved on : 17.03.2025
Delivered on : 08.04.2025
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ORDER
This writ petition under Article 226 of the Constitution of India is directed against the order dated 11.02.2021 passed by Commissioner, Gwalior Division in Appeal No.170/2020-21 whereby the order dated 25.03.2011 passed by SDO by which the application under Section 89 of Madhya Pradesh Land Revenue Code, 1959 was allowed and the order dated 07.07.2016 passed by Collector by which appeal preferred against the order dated 25.03.2011 had been dismissed, had been set-aside holding that under Section 89 of Madhya Pradesh Land Revenue Code, 1959, the SDO has no power to correct the land records as the same has been conferred to the Tehsildar.
2. Learned counsel for the respondents No.3 to 7 submits that Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/24/2025 10:37:24 AM 2 Hukma, Babariya and Barelal are brothers and son of one Bansi Jatav. They executed a registered power of attorney in favour of petitioner upon which survey No.1467/2 had been sold through registered sale-deed to approx 80 persons. There is no dispute with regard to the said power of attorney, however the dispute is with regard to forged sale-deed in respect of which a civil suit had been filed by the respondents which was dismissed and appeal is pending. In the present petition, challenge is made to the order dated 11.02.2021 passed by Additional Commissioner,Gwalior Division by which the order passed by the SDO dated 25.03.2011 and the order passed by the Collector dated 07.07.2016 had been set-aside. There is no illegality in the impugned order dated 11.02.2021 as the SDO on the application under Section 89 of the MPLRC was not having any jurisdiction to pass an order. The power has been delegated to the Tehsildar to entertain an application under Section 89 of MPLRC, therefore, the initial proceedings ought to have been initiated before Tehsildar and if any order would have been passed against the petitioner, then the same could had been challenged by him before appellate authority i.e. SDO. Thus, the SDO had transgressed its jurisdiction while passing the order dated 25.03.2011.
3. It was further submitted that the State Government vide notification dated 27th June, 1968 while exercising the powers conferred by sub-section (2) of Section 24 of the Madhya Pradesh Land Revenue Code, 1959 had conferred the powers of Sub- Divisional Officer under Section 87 of the MPLRC (new section 89 of MPLRC) on all Tehsildars. Thus, the SDO had no jurisdiction to exercise the powers conferred under Section 89 of MPLRC.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/24/2025 10:37:24 AM 34. It was further submitted that under Section 89 of MPLRC errors can be corrected and the order cannot be set-aside but learned SDO vide order dated 25.03.2011 had set-aside the order of partition and mutation by holding the same to be an error. Considering the same, learned Additional Commissioner vide impugned order dated 11.02.2021 had rightly set-aside the order dated 25.03.2011 passed by SDO and the order dated 07.07.2016 passed by the Additional Collector by holding that the order dated 11.02.2021 shall remain subject to final outcome of the decision of civil court in civil suit filed by the respondents.
5. Learned counsel for the petitioner submits that under Section 89 of MPLRC, the original authority is SDO. Section 24 of MPLRC is an enabling provision which enables the State Government to delegate additional power to an authority. As per notification dated 27.06.1968, while exercising powers under Section 24(2) of MPLRC the powers conferred upon SDO under Section 87 of MPLRC (new 89 of MPLRC) had been conferred upon Tehsildars by the State Government. In Section 89 of MPLRC, it is clearly mentioned that the powers are vested in relation to Section 89 of MPLRC with the SDO. Once the power has been delegated, the original power as per the main enactment (Code) shall remain still vested with the Sub-Divisional Officer. Thus, learned Additional Commissioner has committed grave illegality in passing the impugned order dated 11.02.2021. Hence, it was prayed that the order dated 11.02.2021 passed by Additional Commissioner, Gwalior Division, Gwalior be set-aside.
6. Heard counsel for the parties and perused the record.
7. From perusal of impugned order dated 11.02.2021 passed Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/24/2025 10:37:24 AM 4 by Additional Commissioner, Gwalior Division, Gwalior, it appears that learned Additional Commissioner in the wake of notification dated 27.06.1968 whereby while exercising powers under Section 24(2) of MPLRC, the powers conferred with SDO under Section 87 of MPLRC (new section 89 of MPLRC) had been conferred upon Tehsildars by the State Government, had set-aside the order passed by the SDO dated 25.03.2011 under Section 89 of MPLRC by holding that SDO had no jurisdiction to pass order under section 89 of MPLRC.
8. Section 89 of MPLRC is quoted herein-below:-
"89. Power of Sub-Divisional Officer to correct errors. The Sub-Divisional Officer may, at any time after the closure of the revenue surveys and during the term of settlement, correct any error in the area or assessment of any survey number of holding due to mistake of survey or arithmetical miscalculation :Provided that no arrears of land revenue shall become payable by reason of such correction."
9. From bare reading of Section 89 of MPLRC, it appears that the original authority under Section 89 of MPLRC is Sub-Divisional Officer.
10. Section 24 of MPLRC prior to substitution by M.P. Act 23 of 2018 speaks as under and is quoted herein-below:-
"24. Conferral by State Government of powers of Revenue Officers on official and other persons-
(1) xxxxx (2) The State Government may confer on any Assistant Collector, Tahsildar or Naib- Tahsildar the powers conferred by this Code on a Revenue Officer of a higher grade."
11. Admittedly, the State Government in exercise of powers under Section 24(2) of the MPLRC had conferred powers vested with SDO under Section 87 of MPLRC (new Section 89 MPLRC) upon the Tehsildars vide notification dated 27.06.1968. The State Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 4/24/2025 10:37:24 AM 5 Government has authority to confer such powers on Tahsildar as conferred by this Code on a Revenue Officer of a higher grade and therefore, it is clear that the powers of SDO under Section 87 of MPLRC (New Section 89 MPLRC) could be conferred upon the Tehsildars by the said notification in additional to the powers of the SDO.
12. Even after the power is delegated to an authority, the authority with whom the power originally exists by virtue of a Statute does not lose the power. Delegation is only in addition to the power which is held by the delegating authority. The general accepted theory is that an authority which delegates its powers does not divest itself of them. It is almost settled position of law that even after delegation of powers, the delegating authority retains the power so delegated. In other words, even after delegation of powers, the original authority is not denuded and stripped off the powers conferred by the legislation.
13. In view of above, this Court is of the considered opinion that learned Additional Commissioner has committed an illegality in setting aside the order dated 25.03.2011 passed by SDO. Accordingly, the petition is allowed. The order dated 11.02.2021 passed by the Additional Commissioner is hereby set-aside.
14. With the aforesaid, this petition stands allowed disposed of.
(MILIND RAMESH PHADKE)
ojha JUDGE
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 4/24/2025
10:37:24 AM