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HIGH COURT OF MADHYA PRADESH
S. C. Sharma, J.
Sushila Raje Holkar (Sushri) v. State of M.P. and another
Writ Petition No. 398 of 2004 (Indore);
against order dated 15.1.2014 passed by Board of Revenue,
M.P. in Revision No.2566-PBR/2002;
Decided on 14.10.2014
[Paras 12 & 13
(2) Land Revenue Code, 1959 (M.P.) -- Ss.51 and 44 -- right to appeal -- order of diversion -- set aside in review -- person participated in proceedings and affected by order -- he has right to appeal.
[Paras 12 & 13
(3) Land Revenue Code, 1959 (M.P.) -- Ss.44, 51 and 172 -- right to appeal -- order of diversion -- set aside in review -- person participated in proceedings and affected by order -- such person or Bhumiswami has right to appeal.
Held : section 172 makes it very clear that in case a person violates the condition of the diversion order, he shall be liable for penal action. The aforesaid section includes Bhoomiswami as well as the person responsible for any contravention. In the present case, contravention was alleged on behalf of the respondent No.2 and, therefore, this Court is of the considered opinion that in light of the proviso, which makes any person responsible for contravention, apart from Bhoomiswami, the respondent No.2 against whom an allegation was made in respect of contravention do have a locus to file an appeal and the same was rightly before the Additional Commissioner, Indore Division, Indore.
[Para 12
Not only this, the Sub-Divisional Officer did issue a show cause notice to the respondent No.2 and the respondent No.2 has appeared in person before the Sub-Divisional Officer and thereafter an order was passed cancelling the diversion on 2.5.2002. Person affected by the order dated 2.5.2002 is certainly the respondent No.2 and, therefore, the respondent No.2 was having a locus to prefer an appeal in the matter. [Para 13
(4) Constitution of India -- Art.227 --scope of powers -- order of diversion -- in reviewing such order -- erred in law and facts -- in quashing such order by Board of Revenue -- no patent illegality or jurisdictional error committed -- no interference called for in writ jurisdiction. (2010)8 SCC 329 followed. [Paras 17 & 18
¼1½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 172] 51 rFkk 44 & vihy dk vfèkdkj & HkwfeLokeh ds vkosnu ij & iz'kkldh; iz;kstuksa ds fy, O;iorZu dk vkns'k & HkwfeLokeh }kjk ,slh Hkwfe dk iV~Vk iznku fd;k x;k & iV~Vsnkj }kjk ,slh Hkwfe 'kS{kf.kd iz;kstuksa ds fy, iz;qDr & O;iorZu vkns'k ds fo#) iqufoZyksdu & iV~Vsnkj us dk;Zokfg;ksa esa Hkkx fy;k & O;iorZu dk vkns'k vikLr fd;k x;k & iV~Vsnkj ;k HkwfeLokeh dks ,sls vkns'k ds fo#) vihy dk vf/kdkj gSA ¼iSjk 12 ,oa 13½ ¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 51 rFkk 44 & vihy dk vf/kdkj & O;iorZu dk vkns'k & iqufoZyksdu esa vikLr fd;k x;k & O;fDr us dk;Zokgh esa Hkkx fy;k vkSj vkns'k ls izHkkfor & mls vihy dk vf/kdkj gSA ¼iSjk 12 ,oa 13½ ¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 44] 51 rFkk 172 & vihy dk vfèkdkj & O;iorZu dk vkns'k & iqufoZyksdu esa vikLr fd;k x;k & O;fDr us dk;Zokfg;ksa esa Hkkx fy;k vkSj vkns'k ls izHkkfor & ,sls O;fDr ;k HkwfeLokeh dks vihy dk vf/kdkj gSA vfHkfu/kkZfjr % /kkjk 172 ;g Li"V djrh gS fd O;fDr }kjk O;iorZu ds vkns'k dh 'krZ dk vfrØe.k djus dh fLFkfr esa] og nkafMd dk;Zokgh ds fy, ftEesnkj gksxkA mi;qZDr /kkjk dksbZ mYya?ku ds fy, ftEesnkj esa HkwfeLokeh ds lkFk&lkFk O;fDr dks Hkh lfEefyr djrh gSA bl izdj.k esa] izR;FkhZ Øekad 2 dh vksj ls mYya?ku fd, tkus dk vfHkdFku fd;k x;k Fkk vkSj] blfy,] bl U;k;ky; dh lqfuf'pr jk; gS fd ijarqd ds izdk'k esa] tks fdlh O;fDr dks mYya?ku ds fy, ftEesnkj ekurk gS] HkwfeLokeh ds vykok] izR;FkhZ Øekad 2 ftlds fo#) mYya?ku ds fo"k; esa vfHkdFku fd;k x;k gS mls vihy izLrqr djus dk vf/kdkj gS vkSj ogh vij vk;qDr] bankSj laHkkx] bankSj ds le{k lgh gh dh xbZ FkhA ¼iSjk 12½ bruk gh ugha] mi[kaM vf/kdkjh us izR;FkhZ Øekad 2 dks dkj.k crkvks lwpuk i= tkjh fd;k Fkk vkSj izR;FkhZ Øekad 2 O;fDrxr :i ls mi[kaM vf/kdkjh ds le{k mifLFkr gqvk Fkk vkSj rRi'pkr~ 2-5-2002 dks O;iorZu vkns'k jn~n djus dk vkns'k ikfjr fd;k x;k FkkA vkns'k fnukad 2-5-2002 ls izHkkfor O;fDr fuf'pr :i ls izR;FkhZ Øekad 2 gS vkSj] blfy,] izR;FkhZ Øekad 2 dks ekeys esa vihy izLrqr djus dk vf/kdkj FkkA ¼iSjk 13½ ¼4½ Hkkjr dk lafo/kku & vuqPNsn 227 & 'kfDr;ksa dh O;kfIr & O;iorZu dk vkns'k & ,sls vkns'k dk iqufoZyksdu djus esa & fof/k vkSj rF;ksa dh n`f"V ls xyrh dh xbZ & jktLo eaMy }kjk ,sls vkns'k dks vikLr djus esa & dksbZ izdV voS/krk ;k vfèkdkfjrk fo"k;d xyrh ugha dh xbZ & fjV vf/kdkfjrk esa gLr{ksi visf{kr ughaA ¼2010½8 ,l lh lh 329 vuqlfjrA ¼iSjk 17 ,oa 18½
1. The petitioner before this Court has filed this present writ petition being aggrieved by the order dated 15.1.2014 passed by the Board of Revenue in Revision No.2566/PBR/2002 as well as order dated 18.10.2002 passed by the Additional Commissioner, Indore Division, Indore in Second Appeal No.297/01-02 and the consequential order dated 2.5.2002 (Annexure P-2).
2. The petitioner’s contention is that she is the owner of the land bearing survey No.60 ad-measuring 2.647 hectares situated at village Tejpur Gabari, Tahsil and District, Indore.
3. The petitioner has further stated that the petitioner being the Bhoomiswami submitted an application for diverting of land in question as it was an agricultural land before the Sub-Divisional Officer (Revenue), Indore on 27.11.1998, for administrative purposes. The application was allowed and the land was diverted by the Sub-Divisional Officer (Revenue), in exercise of powers conferred under section 172 of the Madhya Pradesh Land Revenue Code, 1959. The order was a conditional order. The petitioner has further stated that the Sub-Divisional Officer (Revenue), as there were certain irregularities in the order dated 8.4.1999 has sought permission from the Collector, Indore for reviewing the order dated 8.4.1999 and the same was granted on 20.8.1999. The petitioner has further stated that the Sub-Divisional Officer thereafter sought report from the Revenue Inspector and in the report it was informed that the land is being used for educational purposes and not for administrative purposes. The Sub-Divisional Officer has cancelled the order of diversion by passing a fresh order on 2.5.2002. The respondent No.2 has preferred an appeal under section 44(1) of the Madhya Pradesh Land Revenue Code, 1959 before the Additional Collector challenging the aforesaid order dated 2.5.2002 and the appeal was dismissed by the learned Additional Collector vide order dated 5.8.2002. The respondent No.2 thereafter preferred an appeal under section 44(2) of the Madhya Pradesh Land Revenue Code, 1959, before the Additional Commissioner, Indore Division Indore and the learned Additional Commissioner has allowed the appeal by passing an order dated 18.10.2002. The petitioner being aggrieved by the order passed by the Additional Commissioner has preferred a revision petition under section 50 of the Madhya Pradesh Land Revenue Code, 1959 and the Board of Revenue has dismissed the revision petition, by order dated 15.1.2004. The petitioner is now aggrieved by the order passed by the Board of Revenue dated 15.1.2004 and the order dated 18.10.2002 passed by the Additional Commissioner.
4. Learned counsel for the petitioner has vehemently argued before this Court that the diversion in respect of the land in question was carried out vide order dated 8.4.1999 on an application preferred by the petitioner and the same was cancelled by an order dated 2.5.2002 and therefore the respondent No.2 was not having a locus to file an appeal before the Collector or before the Commissioner. He has straightway drawn the attention of this Court towards the judgment delivered by the learned Single Judge in Writ Petition No.1205/2002 decided on 20.8.2002 and his contention is that in the aforesaid case, the permission granted by the Town and Country Planning Department was revoked by an authority and the same was challenged again by the respondent No.2, who was not the bhoomiswami and in those circumstances, the learned Single Judge has held vide judgment dated 20.8.2002 that the petitioner therein who was not the Bhoomiswami Col. (Retired) Anil Kak, who is the respondent No.2 in the present writ petition was not having locus to challenge the order passed by the Town and Country Planning Department.
5. Learned counsel has vehemently argued before this Court that the respondent No.2 was not having locus, therefore, the order passed by the Commissioner as well as order passed by the Board of Revenue to be set aside. A ground has been raised
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