Shakuntalabai vs Chatur Singh - 2012 Supreme(MP) 640

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(MP) 640

¼mPp U;k;ky;½ (HIGH COURT)
U;k- lqtkW; ikWy
Sujoy Paul, J.
‘kdqUryk ckbZ ¼Jherh½ fo- prqjflag rFkk vU;
Shakuntalabai (Smt.) v. Chatur Singh and Others
fjV ;kfpdk Øekad 5269 lu~ 2012 ¼Xokfy;j½( v/;{k jktLo eaMy] e-iz-]Xokfy;j }kjk iqujh{k.k Øekad 1735& ih-ch-vkj-@2010 esa ikfjr vkns’k fnukad 5-7-2012 ds fo#)(
fu.khZr fnukad 7-12-2012A
Writ Petition No. 5269 of 2012 (Gwalior); against order dated 5.7.2012 passed by President, Board of Revenue, M.P., Gwalior in Revision No. 1735-PBR/2010;
Decided on 7.12.2012.

Advocates:
,p-Mh-xqIrk- lfgr ,u-ds-xqIrk ;kph dh vksj ls( ds-,l- rksej lfgr lat; rksej izR;FkhZ Ø-1 dh vksj ls( Ogh-ds-Hkkj}kt lfgr vkuan Ogh-Hkkj}kt izR;kFkhZx.k Ø-3 rFkk 4 dh vksj ls( izoh.k usokldj] mi&ljdkjh vf/koäk jkT; dh vksj lsA
H.D. Gupta with N.K. Gupta for petitioner; K.S. Tomar with Sanjay Tomar for respondent No. 1, V.K. Bhardwaj with Anand V. Bhardwaj for respondents No. 3 and 4, Praveen Newaskar, Dy. Government Advocate for State.

Headnote:¼1½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 109 rFkk 110¼3½ & ukekarj.k fu;e & fu- 27 & eq[rkjukek /kkjd }kjk fu”ikfnr foØ; foys[k ds vk/kkj ij ukekarj.k dk nkok & ewy HkwfeLokeh fgrc) O;fä gS & mls lwfpr fd;k tkuk pkfg, & rglhynkj dks mUeqä rFkk vfu;a=r foosdkf/kdkj ugha fd viuh lud rFkk #fp ls fdlh Hkh O;fä dks lwpuk nsA ¼iSjk 9

       ¼2½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 110¼3½ ukekarj.k fu;e &fu- 27 & fgrc) O;fä dks lwpuk fn, fcuk ukekarj.k vkns’k & lwpuk ds izdk’ku dh fofgr izfØ;k dk ikyau ugha fd;k x;k & vuqfoHkkxh; vf/kdkjh }kjk vihy esa ,slk vkns’k lgh vikLr fd;k x;kA ¼iSjk 10 rFkk 11

       ¼3½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 44¼1½] 110¼3½ rFkk 111 & vihy & dk pykus ;ksX; gksuk & ukekarj.k vkns’k & blds fo#) mipkj & /kkjk 44¼1½ ds v/khu vihy gS & fHkUu lgk;rk ij i’pkr~orhZ flfoy okn & ;g vihy dk vf/kdkj ugha feVk;sxk & vihy pyus ;ksX; gS & tc ,d ls vf/kd U;k;ky; miyH; gSa & U;k;ky; fofu’p; djus dk fodYi okndkjh dk gSA ¼2002½6 ,l-lh-lh- 16 vuqlfjrA 2010 jk-fu- 1 ¼mPp U;k-½ izHksfnrA ¼iSjk 13] 14 rFkk 15

       ¼4½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 115 rFkk 116 & dk ykxw gksuk & ukekarj.k vkns’k ds laca/k esa fookn & /kkjk 115 rFkk 116 ds mica/k vkdf”kZr ugha gksrsA ¼iSjk 13

       ¼5½ Hkw&jktLo lafgrk] 1959 ¼e-Á-½ & /kkjk 109 rFkk 110¼3½ & ukekarj.k fu;e & fu- 27 rFkk 32 & mica/kksa ds v/khu ‘kfä;k¡ & dk iz;ksx & izfØ;k fofgr ,slh lE;d~ izfØ;k vuqlfjr fd;k tkuk gS & vU; jhfr;k¡ oftZr gSaA

       fof/k esa ;g lqLFkkfir gS fd ;fn fdlh ckr dks fdlh fof’k”V jhfr ls fd;k tkuk visf{kr gS] mls mlh jhfr esa fd;k tkuk gksxk ;k vU;Fkk fcYdqy ughaA nwljs ‘kCnksa esa] lE;d~ izfØ;k vuqlfjr dh tkuk gS rFkk vU; jhfr;k¡ oftZr gSaA ¼iSjk 15

       ¼6½ iwoZ fu.kZ; & fof’k”V izdj.k ds rF;ksa rFkk ifjfLFkfr;ksa ds vk/kkj ij ykxw gksrk gS & fof’k”V izdj.k ds rF; dh fLFkfr ij fopkj fd, fcuk bls fuokZr esa ;k vuqHko ds :i esa ykxw ugha fd;k tk ldrkA ¼2008½ 4 ,l-lh-lh- 451 izHksfnrA ¼iSjk 16
       (1) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110(3) -- Mutation Rules -- R. 27 -- mutation claimed on sale deed executed by power of attorney holder -- original Bhumiswami is interested person -- he must be noticed -- Tahsildar has no any unfettered and uncontrolled discretion to notice any person as per his whims and fancies. [Para 9
       (2) Land Revenue Code, 1959 (M.P.) -- S. 110(3) -- Mutation Rules -- R. 27 -- mutation order without notice to interested persons -- procedure prescribed for publication of notice not followed -- such order rightly set aside in appeal by Sub-Divisional officer. [Paras 10 and 11
       (3) Land Revenue Code, 1959 (M.P.) -- Ss. 44(1), 110(3) and 111 -- appeal -- maintainability of -- mutation order -- remedy against it -- is appeal under section 44(1) -- subsequent civil suit on different relief -- it will not wipe out right of appeal -- appeal is tenable -- when more than one forums are available -- it is choice of litigant to decide the forum. (2002) 6 SCC 16 followed. 2010 RN 1 (HC) distinguished. [Paras 13, 14 and 15
       (4) Land Revenue Code, 1959 (M.P.) -- Ss. 115 and 116 -- applicability of -- dispute regardings mutation order -- provisions of sections 115 and 116 not attracted. [Para 13
       (5) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110(3) -- Mutation Rules -- Rules 27 and 32 -- powers under -- exercise of -- procedure prescribed -- such due process has to be followed -- other modes are forbidden.
       This is settled in law that if a thing is required to be done in a particular manner, it has to be done in the same manner or not at all. In other words, the due process has to be followed and other methods are forbidden. [Para 15
       (6) Precedent -- apply on basis of facts and circumstances of particular case -- principle cannot be applied in vacuum or as thumb rule without considering fact situation of particular case. (2008) 4 SCC 451 distinguished. [Para 16

ORDER

1. In this petition filed under Article 226 of the Costitution, the case of the petitioner is as under:-

The petitioner is the owner of land along with other family members. The land is in survey No. 697/02 min area 10.141 hectare. A power of attorney was executed by the petitioner in favour of Hemsingh, whereby he was authorised to look after the land but no authority for alienating the land was given to him. This power of attorney was also subsequently cancelled. Hemsingh alienated the land in the name of his own son and some other persons. The son of Hemsingh i.e. Balveer Singh (respondent No. 3) and other persons got their names mutated in the revenue record. No information is given to the petitioner in the mutation proceedings before recording the names of respondents in the revenue record. The petitioner feeling aggrieved with the said action of the Tahsildar preferred an appeal before the Sub-Divisional Officer (SDO) bearing appeal No. 99/05. The appeal aforesaid was filed by all the owners of the land and the SDO after hearing the parties by order dated 24.5.2006 allowed the appeal and set aside mutation made in favour of respondents No. 1 to 4. The matter was remitted back for affording opportunity of hearing to the parties and enquiry was directed to be conducted. Against the SDO’s order dated 24.5.2006 (Annexure P-4), a revision was filed by respondent No. 1 Chatur Singh. The other respondents did not file any revision. The Additional Collector by order dated 30.8.2007 dismissed the revision with a direction to the Tahsildar to afford opportunity to the parties and pass a fresh and reasoned order. Against the order of Additional Collector a revision was filed by respondent No. 1. This revision was allowed and orders of SDO and Additional Collector were set aside. The petitioner preferred a revision against this order of Additional Commissioner before the Board of Revenue. The Board of Revenue by impugned order Annexure P-1 dated 5.7.2012 dismissed the revision of petitioner. This petition is filed against the order Annexure P-1 and P-2, whereby the revision of respondent No. 1 was allowed by Additional Commissionar and the revision of the petitioner is rejected by the Board Revenue.

2. Shri N.K. Gupta, learned counsel for the petitioner, submits that as per section 110 of Madhya Pradesh Land Revenue Code, 1959, it was obligatory on the part of Tahsildar to issue notices to all persons who may be interested in the matter. He submits that as per rules made under Code also, the advertisement and notices are required to be issued/published in a particular manner. The petitioner was a necessary party and was very much interested being the owner of the land but was not heard by the Tahsildar, which vitiates the entire proceedings. By placing heavy reliance on Page 8 of the rejoinder, it is stated that the document makes it crystal clear that in the record of the Tahsildar only one document i.e. advertisement is enclosed and no other document finds place, which shows that no notices have been issued by the person interested. He further submits that no material is available to show that advertisement was fixed in the places it is required to be fixed as per the provisios of MPLRC and rules made thereunder. By relying on various documents he submits that power of attorney is given to Hemsingh for a limited purpose and no right was given to him to sell the property.

3. Per Contra, Shri K.S. Tomar, learned senior counsel for respondent No. 1 and Shri V.K. Bhardwaj, learned senior counsel for respondent No. 3 and 4, supported the orders Annexure P-1 and P-2. Learned senior counsel appearing for the respondents submit that as per section 111 MPLRC, the remedy for the petitioner is to file a civil suit. The petitioner has already chosen to file a civil suit and accordingly, no case is made out for interference by this Court. They relied on sections 115 and 116 of the MPLRC and judgments of Supreme Court reported in (2008) 4 SCC

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday