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Nanhe Veer & Another v/s Vimla Bai & Others

    Writ Petition No. 11601 of 2017

    Decided On, 19 July 2018

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MS. JUSTICE VANDANA KASREKAR

    For the Petitioners: R.P. Khare, Advocate, Sankalp Kochar, Learned Counsel. For the Respondents: K.K. Pandey, Learned Counsel.



Judgment Text

1. The petitioner has filed the present writ petition challenging the order dated 04/07/2017 passed by the President, Board of Revenue.

2. Respondent No.1 is the widow of Pyarelal Dixit and respondents No.2 to 5 are the sons and daughters of Pyarelal Dixit. Pyarelal Dixit and his brothers Gopal Prasad, Gokal Prasad, Shadilal and Jagdish Prasad were holder of agriculture land bearing Survey No.28, area 40.61 acre, Survey No.47 area 8.31 acres, Survey No.50 area 4.60 acre, total area 53.52 acre. Gopal Prasad, Gokal Prasad, Jagdish Prasad who are sons of Damodar Prasad transferred their share to the petitioners by registered sale deeds and hand over possession to the petitioners. Pyarelal was holder of the land area 10.70 acre. He also received full consideration of sale, delivered possession of the land to the petitioners and executed a sale deed. On the basis of the sale deeds, the name of the petitioners was recorded in the revenue record by the Tahsildar vide order dated 09/02/1995.

3. After death of Pyarelal and taking undue advantage of the increase value of the property in the year 2012-13, respondents filed an application before the Tahsildar for reopening the mutation case and also claimed that the name of the petitioners be directed to be deleted from the revenue record and the name of the respondents be recorded as owner of the land in question. The Tahsildar without obtaining permission of the Sub Divisional Officer to review its own order dated 09/02/1995, allowed the application of the respondents by order dated 03/07/2013. Against the said order, the petitioners filed an appeal under Section 44 of the M.P. Land Revenue Code before the Sub Divisional Officer. The Sub Divisional Officer by an order dated 30/0

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9/2015 set aside the order of the Tahsildar and found that Pyarelal has given his consent for mutation in favour of the petitioner and also admitted transfer of the land in question. The respondents thereafter filed a second appeal before the Additional Commissioner, Bhopal. The Additional Commissioner vide order dated 20/07/2016 set aside the order of the Sub Divisional Officer and restored the order of the Tahsildar dated 03/07/2013. The petitioner thereafter filed a revision against the order of the Additional Commissioner, Bhopal before the Board of Revenue. The Board of Revenue vide order dated 04/07/2017 rejected the revision of the petitioners and affirmed the order of the Additional Commissioner. Being aggrieved by that order, the petitioners have filed the present writ petition.

4. Learned counsel for the petitioners argues that before granting permission by the Sub Divisional Officer to the Tahsildar for reopening of the mutation order dated 09/02/1995, has not given notice to the petitioners nor they have heard before passing the order, consequently, the orders passed by the Commissioner as well as Board of Revenue are patently illegal and arbitrary. The Board of Revenue has further failed to consider that the names of the petitioners were recorded in the revenue record on 09/02/1995 and in Sansodhan Panji, Pyarelal gave his consent and he made his signature upon the Sansodhan Panji. During lifetime of Pyarelal, he never raised such objection. The petitioners are in possession of the land in question. Thus, the application for review filed by the respondents after about 18 years from the date of mutation of the names of petitioners is patently barred by time. The Board of Revenue has further failed to consider that even the suo motu revisional powers cannot be exercised after a long lapse of time after 18 years, therefore, the application of the respondents ought to have been rejected out rightly on the ground that the application was filed by them after 18 years for mutation of name of the petitioner in the revenue record.

5. Respondent No.1 has filed reply stating that the petitioners have not come before this Court with clean hands because before Tahsildar, the petitioners have mutated their names by fraud and collusion. Respondent No.1 came to know that the forgery has been committed by the petitioners with the help of Tahsildar, R.I. and Patwari. Respondent No.1, therefore, submitted an application to the Tahsildar for cancelling the mutation. Respondents have denied that any sale deed has been executed in the name of the petitioners. The Tahsildar after obtaining the permission from the SDO reviewed the order and after affording the opportunity to the petitioner and after making enquiry into the registration of the sale deed came to the conclusion that registry No.496 and 497 has never been executed from the Office in favour of the father of the petitioners. The Tahsildar has also directed to initiate criminal prosecution against the petitioners. The Sub Divisional Officer vide order dated 30/09/2015 set aside the order of the Tahsildar. The Commissioner by order dated 20/07/2016 after considering the documents passed a detailed order recording finding that without any registry in favour of the petitioners and without executing any sale deed by the family of the respondents, the land has been recorded in the name of the petitioners. Registry No.496 and 497 is in the name of Suresh Kumar nor in the name of the petitioners. The Revenue Board also vide its order dated 04/07/2017 has found that without executing any sale deed in the name of the petitioners, their names have been recorded in the land record. Thus, as the land has been mutated in the name of the petitioner by playing fraud, therefore, the suo motu powers of review which has been exercised by the Tahsildar, can be reviewed at any time after coming into knowledge of the said fraud.

6. Heard learned counsel for the parties and perused the record.

7. In the present case, one Pyarelal Dixit and his brothers Gopal Prasad, Gokal Prasad, Shadilal and Jagdish Prasad were holder of some agriculture land. Gopal Plrasad, Gokal Prasad, Jagdish Prasad who are sons of Damodar Prasad transferred their share to the petitioners by registered sale deed and hand over the possession to the petitioners. On the basis of the sale deed names of the petitioners were recorded in the revenue record by Tahsildar vide order dated 09/02/1995. Thereafter in the year 2012-13 the respondents filed an application before the Tahsildar for reopening the mutation case and claimed for deleting the name of the petitioners from the revenue record. The Tahsildar after obtaining the permission of the Sub Divisional Officer, reviewed its own order dated 09/02/1995 and allowed the application of the respondents by an order dated 03/07/2013. Against the said order, the petitioners filed an appeal under Section 44 of the M.P. Land Revenue Code before the Sub Divisional Officer. The Sub Divisional Officer by an order dated 30/09/2015 set aside the order of the Tahsildar and found that Pyarelal had given his consent for mutation in favour of the petitioners. The respondents thereafter filed a second appeal before the Additional Commissioner, Bhopal. The Additional Commissioner, Bhopal vide order dated 20/07/2016 set aside the order of Sub Divisional Officer and restore the order of the Tahsildar dated 03/07/2013. The petitioners thereafter filed a revision before the Board of Revenue and the Board of Revenue vide order dated 04/07/2017 rejected the revision of the petitioners and affirmed the order of the Additional Commissioner. Being aggrieved by the order passed by the Board of Revenue, the petitioner has filed this writ petition mainly on the ground that Sub Divisional Officer has exercised the power of suo motu revision after a period of 17 years on the basis of the application filed by the respondents that too without filing any application for condonation of delay. Secondly on the ground that no notice or opportunity of hearing has been given to the petitioners by the SDO before obtaining sanction of higher authority by exercising power of suo motu review.

8. So far as first ground is concerned, in the present case, admittedly, the names of the petitioners were recorded in the land revenue record on 09/02/1995 by the Tahsildar and the respondents have filed an application before the Tahsildar for reopening of the mutation case in the year 2012-13 that too without filing any application for condonation of delay. Section 51 of the M.P. Land Revenue Code deals with the power of review by the revenue authorities. As per Section 51 of the M.P. Land Revenue Code, an application for review has to be filed within a period of 90 days. The respondents, in their return, has stated that suo motu power of revie can be exercised at any time when the fraud has came into the knowledge of the authorities. In the present case, the Tahsildar has exercised the suo motu power of revision on the basis of the application made by the respondents, therefore, the application for review has to be filed within 90 days and if there is any delay, then application for condonation of delay is required to be filed which is not filed by the respondents in the present case.

9. Section 51 of the MPLRC provides for review of the order. As per sub-section (1), the Board and every Revenue Officer may, either on its/his own motion or on the application of any party interested review any order passed by itself/himself. Proviso (i-a) provides that no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order. As per this section, the Board or every Revenue Officer has power of suo moto review the order. However, as per the proviso (i-a), the order shall not be varied or reversed unless notice has been served on the interested party. In the present case, from the order passed by the SDO, it reveals that no notice or opportunity of hearing was given to the petitioner before passing the impugned order. Even prior to seeking permission to review, no notice has been given to the petitioner.

10. The Division Bench of this Court in the case of Shaheed Anwar Vs. Board of Revenue and another, reported in 2000 R.N. 76 in para-5 and 6 has held as under :

'5. We find some substance in the plea. Even if it was assumed that the power of review was available in the given case still appellant deserves to be put on notice and afforded an opportunity of being heard. Because no order affecting his interest and reopening the exchange deal concluded years back could be passed at his back and without affording him opportunity of being heard. Moreover it would be innocuous to provide him such opportunity in the given facts and circumstances of the case which would cause prejudice to none, least of all to the interests of the State.

6. This appeal is accordingly allowed and writ Court order dated 07/10/98 passed in W.P. No.920/98 is quashed. W.P. No.926/98 shall revive.'

As per this section, sanction for review by Board or any other Revenue Officer cannot be granted without notice and hearing the other side.

11. In the present case, even before taking prior sanction from the higher authority, respondent No.2 has not issued any notice to the petitioner which is contrary to the judgment passed by the Division Bench of this Court in the case of Shaheed Anwar (supra). Thus, while exercising the powers under Section 51 of MPLRC, the authorities are required to issue notice or give opportunity of hearing to the person concerned i.e. at the time of obtaining the sanction for exercising the power of review before passing an order of review.

12. Similarly, the Division Bench of this Court in the case of Govind and others Vs. Settlement Commissioner, M.P. and others, reported in 1980 R.N.534, in para-6 has held as under :

'6. Before proceeding to examine the contentions advanced on behalf of the parties, it would be useful to refer to the relevant provisions of the Code, Chapter XVI of the Code deals with consolidation of holdings. When the scheme of consolidation is submitted to the Collector by the consolidation officer under the provisions of sub-section (4) of Section 209 of the Code, the Collector is empowered under Section 210 of the Code to confirm the scheme with or without modification or to refuse to confirm it after considering the objections to the scheme. That section further provides that the decision of the Collector, subject to any order that may be passed in revision by the Settlement Commissioner under Section 50, shall be final. Section 51 of the Code deals with review of orders. The relevant provisions are contained in sub-section (1) and (2) of section 51, which reads as under; -

'Review of orders- (1) the Board and every Revenue Officer may either on its/his own motion or on the application of any party interested, review any order passed by itself/himself or by any its/his predecessors in Office and pass such order in reference thereto as it/he thinks fit :Provided that :-

(i) if the Commissioner, Settlement Commissioner, Collector or Settlement Officer thinks it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Board, and if an officer subordinate to a Collector or Settlement Officer proposes to review any order, whether passed by himself or by any predecessor, he shall first obtain the sanction in writing of the authority to whom he is immediately subordinate;

(i-a) No order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order;

(ii) No order from which an appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending, be reviewed;

(iii) No order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceeding, and no application for the review of such order shall be entertained unless it is made within ninety days from the passing of the order.

2. No order shall be reviewed except on the ground provided for in the Code of Civil Procedure, 1906 (V of 1908).

Now, in the instant case, it was not contended on behalf of the petitioners that the finality attained by the order of confirmation passed by the Collector under Section 210 of the Code was not subject to any review. Assuming, therefore, that the Collector had the power to review the order of confirmation, there can be no manner of doubt that that power could be exercised by the Collector only in accordance with the provisions of Section 51 of the Code.

In the instant case, the Collector is not shown to have passed any order of review disclosing the reasons for reviewing the earlier order. It is, therefore, not possible to ascertain as to whether the decision to review the earlier order of confirmation was founded on grounds specified in O.47 RI, CPC, as provided by sub-section (2) of section 51 of the Code. Further, no notice was admittedly given to the petitioners before the earlier order of confirmation passed by the Collector on 22nd October 1969 was sought to be varied. The petitioners were affected by the review of that order and were undoubtedly interested in supporting that order. In these circumstances, the decision taken by the Collector to review the earlier order, without giving notice to the petitioners, contravened the provisions of Section 51 (i-a) of the Code and the principles of natural justice. It was urged that before sanctioning the fresh scheme on 31st December 1976 the petitioners were heard, but that hearing was with regard to the objections to the fresh scheme proposed to be sanctioned. It was not a hearing for the purpose of deciding as to whether the earlier order of confirmation dated 22nd October, 1969 could or could not be reviewed in accordance with law, under the circumstances, the order of confirmation of the fresh scheme passed by the Collector on 31st December 1976 and the order dated 13th April, 1978 passed by the Settlement Commissioner dismissing the revision petition preferred by the petitioner deserves to be quashed. As regards the contention put forward on behalf of the Wakf Board that the earlier scheme confirmed on 2nd October, 1969, was itself contrary to the provisions of the Wakf Act, it is not necessary to express any opinion on that question because we are not called upon in this petition to decide about the validity of the earlier scheme. As regards alternative remedy said to be available to the petitioner, the contention cannot be upheld. No order of review has been shown to have been passed in the question of preferring any appeal against that order did not therefore arise, assuming that an appeal could have been preferred.'

13. The Board of Revenue on the basis of the record has found that the sale deed on which the petitioners are relied, are never registered in the Registrar Office and, therefore, on the basis of the fraud, they have recorded their names in the revenue record and if the fraud is committed, then the power of suo motu review can be exercised at any time when the fraud came into knowledge. However, in the present case, the suo motu powers have been exercised by the Tahsildar on the application preferred by the petitioners and, therefore, the above finding given by the Additional Commissioner as well as by the Board of Revenue is not sustainable.

14. Thus, in light of the aforesaid, the writ petition is allowed and the impugned orders dated 04/07/2017 and 20/07/2016 are hereby set aside.
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