Madhya Pradesh High Court
Makundi Lal Pathak vs Bharat Lal Tiwari on 6 May, 2024
1
In The High Court Of Madhya Pradesh
At Jabalpur
Before
Hon'ble Shri Justice Duppala Venkata Ramana
On The 06th May, 2024
Misc. Petition No. 3088 Of 2022
Between:-
Makundi Lal Pathak S/o Shri Dashrath Prasad Pathak,
Aged About 75 Years, Occupation: Cultivation, R/o
Village Ghuvara, Tehsil-Ghuvara, District-
Chhatarpur, (M.P.) Through Power of Attorney Holder
Shri Vinesh Kumar Pathak S/o Shri Makundi Lal
Pathak Aged About 37 Years, R/o Village-Ghuvara,
Tahsil Ghuvara District Chhatarpur (MP)
.....Petitioner
(By Shri Ravendra Shukla - Advocate)
And
1. Bharat Lal Tiwari S/o Shri Krishna Datt Tiwari,
Aged About 40 Years, Occupation: Cultivation
2. Ashok Kumar Rai S/o Shri Dhani Ram Rai, Aged
About 28 Years, Occupation: Cultivation
Both- R/o Village Ghuvara Tahsil Ghuvara District
Chhatarpur (Madhya Pradesh)
3. The Sub Divisional Officer(Revenue), Chhatarpur
Sub Division Bada Malhera, Chhatarpur, District
Chhatarpur (MP)
The Tehsildar, Tehsil Ghuvara District Chhatarpur
4.
(MP)
.....Respondents
(By Shri Ajay Kumar Jain - Advocate)
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Date of Order Reserved : 30.04.2024
Date of Order Pronouncement : 06.05.2024
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This petition coming on for admission this day, the court passed the
following:
2
ORDER
This miscellaneous petition has been preferred challenging the order dated 02.06.2022 passed by respondent no.3 - Sub-Divisional Officer, Badamalahara, District- Chhatarpur in revenue case no.0482/B-121/2021-22 (Mukundilal Pathak Vs. Bharat Lal Tiwari and Others), whereby the SDO upheld the order dated 07.07.2021 passed by respondent no.4-Tehsildar, Ghuvara, District- Chhatarpur in Revenue Case No.0026/A-12/2021-22, whereby the Tehsildar confirmed the demarcation proceedings carried out by the Revenue Inspector vide final report dated 05.07.2021.
2. The facts giving rise to filing this petition is that the initially the respondent no.1 filed an application under Section 129 of the Madhya Pradesh Land Revenue Code, 1959 (in short "the MPLRC") before the Tehsildar for demarcation of land bearing Khasara no.4010 area 0.785 hectares, 4011 area 0.61 hectares and Khasra No.4012 area 0.198 hectares situated at village, Tehsil- Ghuvara, District- Chhatapur which was registered in revenue case no.26/A-12/2021-22 and the respondent no.4 constituted a four member committee for demarcation of the land vide order dated 29.06.2021. After completion of proceedings, the demarcation order was passed on 07.07.2021.
3. The petitioner- Mukundilal Pathak herein has preferred an appeal filed an application before the Sub-Divisional Officer under section 129(5) of the MPLRC and the SDO has rejected the application submitted by the petitioner rejected as being baseless and the order dated 07.07.2021 passed by the Tehsildar is kept intact as being legal.
4. Aggrieved by and dissatisfied with the order passed by learned Courts below (the respondent no.3 and 4), preferred the present appeal seeking to set aside the order dated 02.06.2022 and 07.07.2021 stated (surpa).
35. Learned counsel for the petitioner contended that the orders passed by the third and fourth respondents are highly erroneous and contrary to the law and in elaboration it is contended by the learned counsel that the findings of the Tehsildar are upheld by the SDO that the impugned action in the original application without following due process of law suffers from lack of jurisdiction is neither sustainable nor tenable in the eyes of law. It is further argued that without serving proper notice to the petitioner, the Revenue Inspector (Patwari) demarcated the land and submitted the report to the Tehsildar, and further contended that the alleged notice said to have been issued by the Revenue Inspector showing the date of demarcation 02.07.2021 but that was not done and demarcated the land on the very next day i.e. 03.07.2021 without giving any further notice of change of date for demarcation, therefore, the demarcation report submitted by Revenue Inspector is neither sustainable nor tenable. Further would submit that the notice is said to have been issued by the Revenue Inspector has not been served on the petitioner and affixed on the wall of the petitioner's house, in contrary to provisions of Order 5 Rule 17 CPC, and he further submits that the demarcation proceedings have been conducted and finalized behind the back the petitioner. Therefore, he prays to allow the petition and the orders passed by the Tehsildar which was affirmed by SDO are liable to be set-aside and the matter may be remanded back to the fourth respondent-Tehsildar for fresh consideration in terms of Section 129(5) of the MPLRC.
6. Per contra, learned counsel for the respondent has submitted that there is absolutely no error nor there exists any infirmity in the order passed by the fourth respondent upheld by third respondent, in the absence of the same, the orders passed by the third and fourth respondents, which are impugned in the present miscellaneous petition, is not amenable for any judicial review under Article 227 of the Constitution of India. It is further submitted that the findings of third and fourth respondents with regard to demarcation of the subject land to initiate 4 impugned action cannot be faulted, therefore, the impugned orders passed by the third and fourth respondent in accordance with law and needs no interference. Hence, the present petition devoid of merit and is liable to be dismissed.
7. In the above backgrounds, now the issues this Court is called upon to answer in the present miscellaneous petition are : -
(a). Whether the orders passed by the fourth respondent affirmed by the third respondent in the facts and circumstances of the case, are sustainable and tenable ?
(b). Whether the impugned orders warrant any interference by this Court under Article 227 of the Constitution of India ?
8. The information available before this Court is clear and vivid terms reveals that when the first respondent filed an application before the fourth respondent- Tehsildar for demarcation of the subject land and immediately the fourth respondent constituted a committee for demarcation of the subject land. Thereafter, the Revenue Inspector issued notice to the petitioner for demarcation of the subject land. Admittedly, the said notice dated 01.07.2021 was not served to the petitioner and affixed on the wall and the Patwari not mentioned in the notice nor any report that the petitioner not residing in the said house. However, he affixed the notice on the wall instead of affixing in the outer door in contrary to the provisions under Order 5 Rule 17 of the Code of Civil Procedure, 1908. If an all, the petitioner is not resided in the house at the time of service of notice, it should be affixed on the outer door or some other conspicuous part of the house, the Revenue Inspector affixed the notice on the wall and to complete the demarcation proceeding behind the back of the petitioner.
At this juncture, it is relevant to refer the appropriate provisions under Order 5 Rules 17 CPC is held as under :-
5"17. Procedure when defendant refuses to accept service, or cannot be found : Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."
9. Apart from the above, the provisions under Section 129 of the Madhya Pradesh Land Revenue Code, 1959 read as follows :-
"129. Demarcation of boundaries of survey number or subdivision of survey number or block number or plot number-
(1) The Tahsildar may, on application of a party depute a Revenue Inspector or Nagar Sarvekshak to demarcate the boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number and construct boundary marks thereon.
(2) The Revenue Inspector or Nagar Sarvekshak so deputed shall, after giving notice to parties interested including the neighbouring land holders, demarcate the boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number, construct boundary marks thereon and submit a demarcation report to the Tahsildar in such manner as may be prescribed. The demarcation report shall also include the particulars of the possession, if any, of any person other than the Bhumi swami on the land demarcated.6
(3) For carrying out the demarcation the Revenue Inspector or Nagar Sarvekshak may take the assistance of such agency and in such manner as may be prescribed.
(4) On the receipt of the demarcation report, the Tahsildar may, after giving opportunity of hearing to the parties interested including the neighbouring land holders, confirm the demarcation report or may pass such order as he thinks fit.
(5) A party aggrieved by the confirmation of demarcation report under sub-section (4), may apply to the SubDivisional Officer to set it aside on any of the following grounds-
(a) that he was not given notice required under sub-section (2) or opportunity of hearing under sub-section (4); or
(b) any other sufficient ground:
Provided that such application shall not be entertained after the expiry of forty-five days from the date of confirmation the demarcation report by the Tahsildar or the date of knowledge, whichever is later.
(6) The Sub-Divisional Officer may, if he admits the application made under subsection after giving opportunity of hearing to the parties interested including the neighbouring land holders and making such enquiries as he may think fit, either confirm the demarcation report submitted under sub-section (2) or depute a team consisting of such persons as may be prescribed to carry out the demarcation once again.
(7) The team deputed under sub-section (6) shall, after giving notice to parties interested including the neighbouring land holders, demarcate the boundaries of a survey number or of a sub-
division of survey number or of a block number or of a plot number, construct boundary marks thereon and submit report to the Sub-Divisional Officer in such manner as may be prescribed and the SubDivisional Officer may pass such orders on it as he thinks fit.
(8) Notwithstanding anything contained in sections 44 and 50, no appeal or application for revision shall lie against any order passed or proceedings taken under this section.
(9) The State Government may make rules for regulating the procedure to be followed by the Tahsildar in demarcating the 7 boundaries of a survey number or of a sub-division of survey number or of a block number or of a plot number prescribing the nature of the boundary marks to be used, and authorizing the levy of fees from the holders of land in demarcated survey number or subdivision or block number or plot number."
10. Admittedly, the Revenue Inspector not followed the procedure contemplated either in CPC or MPLRC, 1959, conducted the demarcation proceedings of the subject land on 03.07.2021 and submitted a report to the Tehsildar without proper service of notice to the petitioner and one of the essential ingredient of fair hearing is that a person should be served with a proper notice i.e. a person has a right to notice. Notice should be clear and precise so as to meet and make an affective defence but in the present case of nature, either notice was served on petitioner or complying the affixing notice under Order V Rule 17 CPC, therefore, there was no opportunity to respond by the petitioner for demarcation of land the subject land by the Revenue Inspector.
11. Another mistake committed by Revenue Inspector in the notice given a date i.e. 02.07.2021 for demarcation of the subject land but he has not demarcated the subject land on the day mentioned in the notice, he demarcated the subject land on the next day of notice i.e. 03.07.2021 and the same is indicated in his report under exhibit P-3, if at all, the Revenue Inspector have any official work he could not demarcate the subject land on the date mentioned in the notice dated 02.07.2021, he should give another notice to the petitioner specifying the date of demarcation of the subject land but he has not done by following the procedure and on 03.07.2021 he demarcated the subject land and demarcation proceedings have been conducted and finalized behind the back of the petitioner which clearly proves that either the Revenue Inspector or the Tehsidlar not followed the procedure contemplated under Section 129(5) of the MPLRC, therefore, the order passed by the fourth respondent-Tehsildar dated 07.07.2021 is not sustainable under law 8 without offered any opportunity of hearing by issuing proper notice to the petitioner.
12. At this juncture, it is relevant to refer the judgment of Hon'ble Apex Court in Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and others1, para-28 as follows :-
Outlined the fundamental importance of providing an opportunity for hearing before making any decision, and characterized it as a basic requirement in any legal proceedings. The Supreme Court further propounded that compliance with principles of natural justice is an implied mandatory requirement, and non- observance of these principles can invalidate the exercise of power. Relevant paragraphs have been extracted below:
28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.
13. Another decision of Hon'ble Apex Court elaborated on the principles of natural justice in State Bank of India and others v. Rajesh Agarwal and others2 , the relevant paragraph is delineated below:
"36. We need to bear in mind that the principles of natural justice are not mere legal formalities. They constitute substantive 1(2015) 8 SCC 519 2(2023) 6 SCC 1 9 obligations that need to be followed by decision making and adjudicating authorities. The principles of natural justice act as a guarantee against arbitrary action, both in terms of procedure and substance, by judicial, quasi-judicial, and administrative authorities. Two fundamental principles of natural justice are entrenched in Indian jurisprudence: (i) nemo judex in causa sua, which means that no person should be a judge in their own cause; and (ii) audi alteram partem, which means that a person affected by administrative, judicial or quasi-judicial action must be heard before a decision is taken. The courts generally favor interpretation of a statutory provision consistent with the principles of natural justice because it is presumed that the statutory authorities do not intend to contravene fundamental rights. Application of the said principles depends on the facts and circumstances of the case, express language and basic scheme of the statute under which the administrative power is exercised, the nature and purpose for which the power is conferred, and the final effect of the exercise of that power."
14. Following the above judgments, the principles of natural justice not followed either by the Revenue Inspector or the Tehsildar passed the demarcation proceedings of the subject land dated 07.07.2021 and the Appellate Authority-SDO not verified the material aspects as to whether the service of notice served on the petitioner and the date mentioned in the notice 02.07.2021 demarcation takes place by the Revenue Inspector, the respondent no.3 and 4 would have to decide whether the said Revenue Inspector followed and given fair and reasonable opportunity by serving notice to the petitioner and submitted a report. Admittedly, the respondent no.4 not followed the due procedure and passed the demarcation proceeding which was affirmed by respondent no.3, which causes the prejudice to the petitioner. In absence of a notice of any kind and such reasonable opportunity, the order passed becomes wholly vitiated. Therefore, a proper notice is required u/s 129(5) of the MPRLC and the date should be mentioned on the notice for demarcation of the subject land, in the present case, demarcation not takes place on 02.07.2021, entire demarcation proceedings was taken by violating the principles of natural justice and demarcation proceedings have been finalized behind the back of the petitioner on the next date i.e. 03.07.2021.
1015. In view of the aforesaid and in my considered opinion that the impugned order dated 02.06.2022 passed by the SDO and order dated 07.07.2021 passed by the Tehsildar including all the demarcation proceedings conducted by the Revenue Inspector, Tehsil-Ghuvara, District-Chhatarpur deserve to be set-aside. It is further directed that the Tehsildar shall conduct a fresh demarcation proceedings after giving proper service of notice and to give them opportunity of hearing to all the concerned, if not, it would amount to failure to adhere to the principles of natural justice, therefore, the impugned orders passed by the third and fourth respondents are not sustainable and tenable and warrant interference.
16. In the light of the above, the impugned orders are perse illegal and are quashed and set-aside with a direction that the matter is remanded back to the Tehsildar for fresh consideration in terms of Section 129(5) of the MPLRC, 1959 and pass appropriate order in accordance with the procedure contemplated under the MPLRC, 1959 in this regard as directed supra within three months from the date of this order. No costs.
17. With the aforesaid, the petition stands allowed and disposed of with the above directions accordingly.
18. Consequently, miscellaneous application, if any, pending shall stand closed.
DUPPALA VENKATA RAMANA, J.
rk 11 In The High Court Of Madhya Pradesh At Jabalpur Before Hon'ble Shri Justice Duppala Venkata Ramana On The 06th May, 2024 Misc. Petition No. 3088 Of 2022 Between:-
Makundi Lal Pathak S/o Shri Dashrath Prasad Pathak, Aged About 75 Years, Occupation:
Cultivation, R/o Village Ghuvara, Tehsil-
Ghuvara, District- Chhatarpur, (M.P.) Through Power of Attorney Holder Shri Vinesh Kumar Pathak S/o Shri Makundi Lal Pathak Aged About 37 Years, R/o Village-Ghuvara, Tahsil Ghuvara District Chhatarpur (MP) .....Petitioner (By Shri Ravendra Shukla - Advocate) And
1. Bharat Lal Tiwari S/o Shri Krishna Datt Tiwari, Aged About 40 Years, Occupation:
Cultivation
2. Ashok Kumar Rai S/o Shri Dhani Ram Rai, Aged About 28 Years, Occupation:
Cultivation Both- R/o Village Ghuvara Tahsil Ghuvara District Chhatarpur (Madhya Pradesh)
3. The Sub Divisional Officer(Revenue), Chhatarpur Sub Division Bada Malhera, Chhatarpur, District Chhatarpur (MP) The Tehsildar, Tehsil Ghuvara District
4. Chhatarpur (MP) .....Respondents (By Shri Ajay Kumar Jain - Advocate) DATE OF JUDGMENT PRONOUNCED : 06.05.2024 12 SUBMITTED FOR APPROVAL :
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? Yes/No
2. Whether the copies of judgment may be marked to Law Reporters/Journals ? Yes/No
3. Whether His Lordship wish to see the fair copy of the Judgment ? Yes/No DUPPALA VENKATA RAMANA, J Digitally signed by RAVIKANT KEWAT Date: 2024.05.06 13:35:43 +05'30'