Back
2014 Supreme(MP) 66
2014 jk fu 138 o 2014 RN 138
¼mPp U;k;ky;½ o (HIGH COURT)
U;k- ,l- ds- xaxsys rFkk U;k- Mh- ds- ikyhoky
S. K. Gangele and D. K. Paliwal, JJ.
ohjsUnz dqekj flag fo- e-iz- jkT; ,oa vU;
Virendra Kumar Singh v. State of M.P. and others
fjV vihy Øekad 482 lu~ 2013 ¼Xokfy;j½( fjV ;kfpdk Øa-4867@2012 esa ikfjr vkns’k fnukad 3-10-2013 ds fo#)( fu.khZr fnukad 27-01-2014A
Writ Appeal No. 482 of 2013 (Gwalior); against order dated 3.10.2013 passed in W.P. No.4867/2012; Decided on 27.01.2014.
Mh- ds- nhf{kr vihykFkhZ dh vksj ls( jk?kosUnz nhf{kr]
ljdkjh vf/koDrk izR;FkhZx.k@jkT; dh vksj lsA
D. K. Dixit for appellant;
Raghvendra Dixit, Government Advocate for respondents/State.
Headnote: ¼1½ Hkkjr dk lafo/kku & vuq-226 & vkjksi i= ds fo#) fjV & dk pykus ;ksX; gksuk & lkekU;r% vkjksi i= ;k dkj.k crkvks lwpuk i= ds fo#) fjV ugha gksxh & ;fn dksbZ vkjksi ugha curk ;k vkjksi i= vl{ke izkf/kdkjh }kjk tkjh fd;k x;k gS & ,slh fo’ks”k ifjfLFkfr;ksa esa & vkjksi i= vikLr fd;k tk ldrk gSA ¼2004½3 ,l lh lh 440] ¼2001½10 ,l lh lh 639 rFkk ¼1987½2 ,l lh lh 179 fufnZ”VA ¼iSjk 9
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 41] fu-6] 7 rFkk 8 rFkk /kkjk 57¼2½ & lsok Hkwfe & HkwfeLokeh vf/kdkj iznku djus ds fy, vkosnu & lquokbZ ds fy, dksbZ rkjh[k fu;r ugha dh xbZ & rdZ Jo.k ugha fd, & vkns’k ds fy, rkjh[k fu;r fd, fcuk & /kkjk 57¼2½ ds v/khu HkwfeLokeh vf/kdkj iznku djus dk vkns’k ikfjr & ,slk vkns’k izdj.kksa ds lapkyu ds fu;eksa dh iw.kZ vogsyuk gSA ¼iSjk 6] 10] 11 rFkk 13
¼3½ U;kf;d vf/kdkjh laj{k.k vf/kfu;e] 1850 & /kkjk 45¼2½ rFkk ¼3½ & dk ykxw gksuk & lsok Hkwfe ij HkwfeLokeh vf/kdkj iznku djus ds laca/k esa vkns’k & lquokbZ ds fy, dksbZ rkjh[k fu;r ugha dh xbZ & rdZ Jo.k ugha fd, & vkns’k ds fy, rkjh[k fu;r fd, fcuk & lh/kk vkns’k ikfjr & izkf/kdkjh dh dk;Zokgh fu;eksa ds izfrdwy gS & mlds fo#) foHkkxh; tkap ds fy, vkjksi i= & og laj{k.k vf/kfu;e dk Qk;nk izkIr djus ds fy, ik= ugha & /kkjk 45¼3½ ds mica/k ykxw gSa /kkjk 45¼2½ ds ughaA ¼1993½2 ,l lh lh 56 fufnZ”VA ¼iSjk 11 ls 15
¼4½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 12 & mi[kaM vf/kdkjh dk vkns’k & izdj.kksa ds lapkyd ds laca/k esa fu;eksa dh iw.kZ vogsyuk & vk;qDr vkjksi i= tkjh djus ds fy, l{ke gSA ¼iSjk 16
(1) Constitution of India -- Art. 226 -- writ against charge sheet -- maintainability of -- ordinarily no writ lies against charge sheet or show cause notice -- if no charge made out or charge sheet issued by incompetent authority -- such special circumstances -- charge sheet can be quashed. (2004)3 SCC 440, (2001)10 SCC 639 and (1987)2 SCC 179 referred to.
[Para 9
(2) Land Revenue Code, 1959 (M.P.) -- Ss.41, Rr.6, 7 and 8 and S.57(2) -- service land -- application for conferral of Bhumiswami rights -- no date fixed for hearing -- arguments not heard -- without fixing date of order -- order for conferral of Bhumiswami rights passed under section 57(2) -- such order is utter disregard to rules in regard to conduction of cases. [Paras 6, 10, 11 and 13
(3) Judicial Officers’ Protection Act, 1850 -- S.45(2) and (3) -- applicability of -- order regarding conferral of Bhumiswami rights on service land -- no date fixed for hearing -- arguments not heard -- without fixing date of order -- straightway passed order -- action of authority is contrary to rules -- charge sheet for departmental enquiry against him -- cannot be quashed -- he is not eligible to get benefit of Protection Act -- provisions of section 45(3) are applicable and not of section 45(2). (1993)2 SCC 56 referred to. [Paras 11 to 15
(4) Land Revenue Code, 1959 (M.P.) -- S.12 -- order of Sub-Divisional Officer -- utter disregard to rules in regard to conduction of cases -- Commissioner is competent to issue charge sheet. [Para 16
Gangele, J. 1. Appellant has filed this appeal against the order dated 3.10.2013 passed by the learned Single Judge in W.P.No.4867/2012.
2. The appellant challenged the charge sheet issued vide memo dated 29th June 2012 by Commissioner, Jabalpur Division, Jabalpur.
3. When the appellant was posted as Sub Divisional Officer, Revenue, Jabalpur, he passed an order on 3.1.2009 on the application filed by some Munnibai under section 57(2) of M.P.Land Revenue Code, 1959 (hereinafter referred to as the ‘Code’). The aforesaid application was filed by power of attorney holder Mr.Vinay Kothari on behalf of Munnibai. It was pleaded in the application that forefathers of the applicant had been granted a land area 4.34 akar situate at Mauja Kosamghat, Tahsil and District Jabalpur in lieu of their service as Kotwar. They were in possession over the said land. The aforesaid land was recorded as Mafi Khidmati in revenue record in the year 1909-10. After coming into force of the Code, the land was recorded as Seva Bhumi (service land), however, the government had no right to register the land as service land.
4. The appellant recorded a finding that at the time of malgujari system, there were two types of servants, servants who were in personal service of Malgujar and others who were in service of community and two types of land were recorded, which had been given to the persons, who were in service of Malgujar; (i) Mafi Khidmati and (ii) Mafi Khairati. The land, which was recorded as Mafi Khidmati was the land which was given to Kotwar in lieu of service rendered by him to the community. Because the land was given to the forefathers of the applicant in lieu of service of the community, hence, in accordance with the provisions of section 45(3) of Swatva Samapti Adhiniyam, 1950 (hereinafter referred as ‘Act of 1950’), the applicant became Bhumiswami of the land.
5. The Collector had taken the matter in suo motu revision. He recorded a finding that the land was registered as Mafi Khidmati. The land had been given to the forefathers of the applicant because they were working as Kotwar of village. The Collector further recorded a finding that in accordance of the circular of the government dated 4.2.1999, the Kotwar did not get right of Maurishi Krishak over the land, which was allotted to him as service land. The Collector further observed that after passing of the order by the SDO, applicant Munnibai sold the land area 1.71 hectare in favour of Smt.Sarita Jaiswal vide registered sale deed. The applicant Munnibai and Smt. Sarita Jaiswal both filed an appeal before the Commissioner, Jabalpur.
6. The appellant was subjected to a departmental enquiry by the Commissioner, Jabalpur Division, Jabalpur vide charge memo - Annexure P /1 for the charge that when he was posted as SDO, Revenue at Jabalpur, he passed the order in case No.18/v-6-v/2006-2007 (Smt. Munnibai W/o Roopchand Pradhan R/o Village Kosamghat, Tahsil and District Jabalpur v. State of M.P. through Collector, Jabalpur, M.P.) and conferred Bhumiswami rights on the applicant against a service land of village Kosamghat of Khasra Nos.116, 117 and 216, hence, he committed misconduct. In the imputation of misconduct, it is mentioned that the land was given to the village Kotwar in lieu of his service rendered to the village and in regard to aforesaid land, Bhumiswami rights could not be conferred on the Kotwar. The appellant passed the order in the case without hearing arguments, hence, he committed misconduct.
7. Learned Single Judge dismissed the writ petition on the ground that prima facie the act of the appellant constitutes misconduct and correctness of the allegation could not be examined at the initial stage of charge sheet. The allegation against the appellant was that he passed the order without hearing the arguments of the parties and he had not taken into account the findings recorded earlier by the Presiding Officer in the order dated 10.7.2007.
8. Learned counsel appearing
