Madhya Pradesh High Court
Abhay Kumar Kayre And 4 Ors. vs Principal Secretary The State Of Madhya ... on 4 November, 2015
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W.P.No.7863/2011
04.11.2015
Parties through their counsel.
The present petition has been filed against the order
dated 29/12/2010 passed by the Board of Revenue by
which the Board of Revenue has directed the revenue
authorities to delete the name of the Collector in the
revenue record in respect of Shri Ram Mandir.
The facts of the case reveal that the temple and the
property attached to the temple are recorded in the name
of Shri Ram Mandir, Jambupanch, Barwaha in the revenue
records and it is an undisputed fact. Later on revenue
authorities have recorded the name of the Collector as
Vyavastapak (Manager). The matter has finally travelled to
the Board of Revenue. The Board of Revenue has arrived
at a conclusion that the revenue authorities were not
justified in deleting the name of Shri Ram Mandir from the
records and the order has been passed. The petitioners
were alien to the revenue proceedings as they were not a
party before the Board of Revenue and they are aggrieved
in the matter, as it has been stated by the
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learned counsel that the petitioners are from the same
samaj. Learned counsel for the respondents have
drawn the attention of this court towards the judgment delivered in the case of Shri Krishna vs. State of M.P reported in 2012(4)M.P.L.J. Paragraph 5 to 7 of the aforesaid judgment reads as under:-
"Admittedly all the petitioners belong to area which form part of erstwhile Holkar State of Indore. The Indore Land Revenue and Tenancy Act, 1931 was in force in that area. Section 64 of the Act provides for Special Tenures. "Assignee of proprietary right" means a person who enjoys, free of revenue or on a favoured assessment, certain proprietary rights, by assignment from the Maharaja, over a specified area of land; and includes a Jahagirdar, an Istmurardar, an Inamdar, a Khotidar Patel and any other person hereafter declared by Government to be an assignee of proprietary right.
Inamdar has been defined in following terms:
"Inamdar" means a person whose assignment consists of a holding, granted by the Maharaja, free of revenue, for the holders maintenance; or as a reward for some past service, secular or religious or as remuneration for some continuing service, secular or religious, the performance of which is a condition of the grant."
A circular Annexure 4/B was issued by Holkar State and it was clarified that temples receiving Nemnuk or some aid for repairs will not gain the character of becoming State Temple and only those temples would be deemed to be State Temple or State Institutions which has been constructed at the expenses of the State and which is being managed by or under the instructions at the State. After the merger of Gwalior and Holkar State, Madhya Bharat Tenancy Act No.66 of 1950 was enacted and that came into force w.e.f. 1-5-1959. Thereafter M.P. Land Land Revenue Code was enacted and it came into force w.e.f. 2-10-1959. Section 158 of the Code which is still in force, makes a provision for Inamdar of an area, which is as follows:-
158. Bhumiswami - (1) Every person who at the time of -8- coming into force of this Code, belongs to any of the following classes shall be called a Bhoomiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhoomiswami by or under this Code, namely -
(a) .... ....
(b) every person in respect of land held by him in the Madhya Bharat region as a Pakka Tenant or as Muafidar, Inamdar, or concessional holder, as defined in the M.B. Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950)
(c) .... ....
(d) .... ....
Thus the Inamdars have been recognized as Bhoomiswami under the present code. It appears in pursuance of this provision, all these persons who had acquired Inamdar Rights as shown in documents Ex.P/1,2 and 3 were recorded as Bhoomiswami. Thereafter a circular was issued by State Government of M.P. On 19-4-1974 and it was directed that the name of Collector as Manager should be shown along with the names of the Pujaris of the Temple concerned and, thereafter the name of Collector and Pujari both were shown and they were designated as Managers. Thereafter this circular P/5 was issued and it was directed that names of Pujaris should be totally deleted.
5A. From the discussion above, it is evident that all those persons who are granted land or were recognised as Inamdar (in the erstwhile Indore State) for the religious services rendered by them as Pujari of the Temple have been recognised to ba Bhoomiswami under the Code and their names appeared as such in Revenue Records. Since they were holding land for rendereing religious services as Pujari of the Temple and the land was granted specifically for that purpose, the name of the Collector as Manager along with these pujaris was directed to be shown. This long possession and recording of their names in Revenue Records as Bhoomiswami or Managers has definitely created a right in their favour. It is an established principle of law that if any right has been vested in a person by certain statutory provisions, the same cannot be withdrawn by an executive instruction. Even if a person is required to be deprived of his vested right in a property, a legal procedure for the same will have to be adopted. If the State Government of M.P. Feels that the recording the name of such persons as Bhoomiswami is non-est, then too it will have to give a notice to the person and an opportunity of hearing and after making due enquiry followed by a reasoned order (if it is found as -8- such), the order for modification, corrections and change in the record can be done.
In this case nothing of the sort has been done and, therefore, the orders of the State Government appears to be arbitrary. What is arbitrary, is unfair, unjust, illegal and against the constitution.
Though, learned Single Judge has in a elaborate discussion protected right of such persons by issuing a direction that they shall not be dispossessed without having a recourse to law or against the due process of law, but no opinion has been expressed as to he legality and validity of the circular Ex.P/5. Since, executive order Annex.P/5 of the State Government of M.P. Infringes the legal right vested in these petitioners, the same cannot be allowed to exist. Moreso as neither a notice not an opportunity of hearing has been afforded to the petitioners, the removal of the names of petitioners from the revenue records would be against the printiples of natural justice.
6. There is fallacy in the submissions of the counsel for the respondent that relief sought for in the writ petition tentamounts to declaration of title in relation to immovable property, and the same can be effectively adjudicated by the civil Court. The case of the petitioner is that the impugned decision is arbitrary and in violation of the principles of natural justice and our holding that the impugned order is arbitrary and in violation of principles of natural justice does not lead to declaration of title. Thus we do not find any merit in the submission of counsel for respondent.
By way of abundant caution, we would like to observe that we are not declaring the right and title of the petitioners of the immovable properties, as the same can effectively be done by ordinary Civil Court. We also do not hold that the State Government or the Competent Authority cannot take action in appropriate cases after giving due notice and opportunity of hearing and after making an individual inquiry in each of the cases; but direction of removal of names of petitioners from Revenue Records by an executive order and, thereby depriving the petitioners of their rights which has been created because of statutory force of various laws and their long possession cannot be sustained and, therefore, the same cannot be upheld. Learned Single Judge was right in protecting the possession of these petitioners. We, therefore, uphold that direction of learned Single Judge i.e., as found in para 12(a) and (b) of the impugned order. We further hold that the Executive Order -8- Annexure P/5 deserves to be quashed.
7. As a result, all these appeals succeed. The Executive order Annex.P/5 dated 18-11-1992 whereby a direction for removal of names of Pujaris from Revenue Records has been issued, is quashed. In the facts and circumstances of the case, parties shall bear their own costs."
In light of the aforesaid judgment, the order passed by the Board of Revenue for removing the name of the Collector as Manager does not warrant any interference.
There is no procedural irregularity committed by the Board of Revenue nor the order passed by the Board of Revenue suffers from any Jurisdictional error.
The apex court in the case of Shalini_Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.-8-
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.-8-
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
In light of the aforesaid judgment as no patent illegality has been committed by the trial court and the order passed by the trial court does not suffer from any jurisdictional error, this court does not find any reason to interfere with the order dated 29/12/2010.
With the aforesaid, the admission is declined.
No order as to costs.
Certified copy as per rules.
(S.C. Sharma) Judge Karuna