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IN THE HIGH COURT OF MADHYA PRADESH
Sanjay Yadav and Ashok Kumar Joshi, JJ.
Jogendra Singh and others v. State of M.P. and others
Writ Petition No. 8252 of 2016 (Gwalior); Decided on 7.3.2018.
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 178 and 44 -- Constitution of India -- Art. 226 -- exercise of powers under -- partition order passed under section 178 of Code -- appeal under section 44 pending before Sub-Divisional Officer -- for setting aside such order -- no interference called for in writ jurisdiction. [Para 2
(2) Constitution of India -- Art. 226 -- M.P. Land Revenue Code, 1959, Ss. 178 and 44 -- interference in writ jurisdiction -- when not required -- partition order passed under section 178 of Code -- appeal under section 44 pending before Sub-Divisional Officer -- no interference called for in writ jurisdiction -- petitioners leave to pursue said remedy. [Para 2
(3) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- Rr. 14, 15 and 16 -- M.P. Civil Services (Conduct) Rules, 1965 -- R. 22-A -- M.P. Land Revenue Code, 1959 -- S. 178 -- misconduct under Rules of 1965 -- means of -- partition order passed by Tahsildar under section 178 of Code -- he was exercising jurisdiction vested in him and was discharging his quasi judicial duties -- same cannot be termed as misconduct under Rules of 1965 for attracting any disciplinary proceeding. [Para 3
(4) Constitution of India -- Art. 31B -- M.P. Land Revenue Code, 1959 -- S. 178(1), Proviso and Section 178 (1-A) -- insertion of these provisions to section 178 -- competence of legislative -- application for partition -- how to proceed -- controversy between two Division Bench Decisions i.e. 1968 RN 158 and 1971 RN 475 -- such controversy resolved by Full Bench decision in 1976 RN 261 -- in light of observation of Full Bench decision -- insertion of above provisions -- not amount to overrule judgment of competent Court -- legislature is competent to pass validating Act. 1976 RN 261=1976 JLJ 478(FB), 1968 RN 158=1968 JLJ 304(DB) and 1971 RN 475=1975 JLJ 819 (DB) discussed. AIR 1977 SC 3127, (2006)5 SCC 65 AIR 1953 SC 375 referred to. [Paras 6, 10 & 11
(5) Land Revenue Code, 1959 (M.P.) -- Ss. 178(1), Proviso and sub section (1-A) -- insertion of -- constitutional validity of -- legislative enactment -- can be struck down only on two grounds i.e. -- legislature does not have competence to make law -- and it does not take away or abridge any of fundamental rights. [Para 17
(6) Land Revenue Code, 1959 (M.P.) -- S. 178(1), Proviso and section 178(1-A) -- Constitution of India -- Seventh Schedule, Entry 18 List II -- insertion of above provisions to section 178 of Code -- constitutional validity of and competence of legislative -- insertion of provisions by amending Act not ultra vires and is within competence of legislative.
Held: constitutionality of a statutory provision has to be adjudged on the anvil of whether the legislature is competent to legislate. Whether it violates the provisions contained under Part III or any other provision of the Constitution. In the present case, as the petitioner fails to establish that the State Legislature lacks legislative competence or that any provision contained in Part III of the Constitution is violated, we decline the plea that the proviso to sub-section (1) of section 178 of the Code and sub-section (1A) of section 178 is ultra vires. (1996)3 SCC 709, AIR 1959 SC 731 and (2008)2 SCC 254 followed. (1966)1 All. ER, (1969)2 SCC 298, (1970)1 SCC 509, (1973)4 SCC 225, (1975) Suppl. SCC 1, (1978)2 SCC 50, (1983)2 SCC 33, (1987)1 SCC 362, (1993) Suppl, 1 SCC 96, (1996)5 SCC 670, (1997)1 SCC 326, (1997)6 SCC 623, (1999)3 SCC 696, (2004)4 SCC 640, (2001)4 SCC 139, (2003)4 SCC 399, (2004)1 SCC 712, (2004)12 SCC 588, (2006)3 SCC 643, (2007)2 SCC 1, (2014)12 SCC 696 and (2012)12 SCC 331 referred to.
Yadav, J.--1. Constitutional validity of proviso to sub-section (1) and sub-section (1-A) of section 178 of M.P. Land Revenue Code, 1959, is being challenged by this petition under Article 226 of the Constitution of India. Besides, the petitioners also seek quashment of order dated 14.9.2016 passed by Tahsildar in a proceeding under section 178 of the Code 1959 and initiation of departmental enquiry against respondent No. 4 Tahsildar, Ashok Nagar.
2. So far as challenge to the order dated 14.9.2016 is concerned, it is not disputed at bar that the said order has been subjected to challenge before the Sub Divisional Officer. This fact is also borne out from paragraph 5.5 of the petition. In view whereof, since the petitioners have availed the remedy of appeal against the order dated 14.9.2016, we are not inclined to entertain the plea against the said order and leave the petitioners to pursue said remedy.
3. As regard to initiation of the departmental enquiry proceedings for major penalty under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 against respondent No. 4-Tahsildar Ashoknagar; the same is sought because of his passing the order dated 14.9.2016. The said relief also we are not inclined to entertain for the reason that the Tahsildar was exercising the jurisdiction vested in him under section 178 of the Code of 1959 on an application preferred by the respondents for partition. The Tahsildar thus was discharging his quasi judicial duties which cannot be termed as misconduct under M.P. Civil Services (Conduct) Rules, 1965 attracting any disciplinary proceeding. In view whereof, the relief sought for initiation of departmental enquiry proceedings against the Tahsildar Ashoknagar is also negatived at the outset.
4. Returning to the challenge to validity of proviso to subsection (1) and sub-section (1-A) of section 178 of Code, 1959. The said two provisions are in the following terms :
“178.Partition of holding.-
(1) If in any holding, which has been assessed for purpose of agriculture under section 59, there are more than one bhumiswami any such bhumiswami may apply to a Tahsildar for a partition of his share in the holding :
Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.
(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the civil Court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.”
5. These two provisions i.e. proviso to sub-section (1) of section 178 and sub-section (1-A) of section 178 of the Code, 1959 were substituted by M.P. Act No. 18 of 1978 with effect from 13.6.1978.
6. The substitution, in principle, emanates from the decision by Full Bench of this Court in Nagjiram v. Mangilal and others [1976 JLJ 478=1976 RN 261=AIR 1977 MP 8], wherein the Full Bench was in seisin with reference by the Division Bench to resolve the controversy between Paitram v. Board of Revenue [1968 Jab LJ 304=1968 RN 158], and Gangaram v. Kanhaiyalal and others [Jab LJ 819=1971 RN 475]. In both these cases the question was as to what the Tahsildar can do and how he should proceed with an application for partition made before it under section 178 (1) of the Code of 1959. In Paitram's case the Division Bench had held :
“(i) the language of the proviso is plain.
(ii) that there is no warrant for reading the words 'genuine' or 'bogus' along with the word 'raised'.
(iii) to decide the question whether the plea of title raised is genuine or bogus is to decide the question of title itself.
(iv) Ordinarily, it is not the function of Revenue Courts to decide the que
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