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BOARD OF REVENUE
Vishal Dhagat, J.
Khub Chand Rai v. Ramesh Kumar Rai & Others
Miscellaneous Petition No. 2426 of 2020 (Jabalpur); against the order dated 16.3.2020 passed by the Board of Revenue, Gwalior, Camp at Sagar; Decided on 2.3.2021.
¼1½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 50¼2½ ¼[k½ && ykxw g¨uk && jktLo eaMy d¢ le{k 12-7-2018 dk iqujh{k.k çLrqr && mä fnukad d¨ la'k¨fèkr lafgrk ço`Ùk ugÈ Fkh rFkk èkkjk 50¼2½ ¼[k½ d¢ vèkhu otZu ugÈ Fkk && iqujh{k.k pykus ;¨X; Fkk && blfy, jktLo eaMy us iqujh{k.k xzg.k fd;k && èkkjk 50¼2½ ¼[k½ d¢ vèkhu otZu ykxw ugÈ g¨rkA ¼iSjk 5
¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 109] 110] 115 rFkk 50 && ;kph d¢ i{k esa ikfjr ukekarj.k vkns'k fnukad 16-9-2013 && mi[kaM vfèkdkjh }kjk vkns'k fnukad 28-2-2017 }kjk vikLr fd;k x;k && vij vk;qä }kjk f}rh; vihy esa vkns'k fnukad 20-4-2018 }kjk mi[kaM vfèkdkjh dk vkns'k vikLr fd;k x;k && çR;FkÊx.k }kjk bl vkns'k d¢ fo#) jktLo eaMy d¢ le{k iqujh{k.k çLrqr fd;k x;k && eqdnesckth yafcr jgus d¢ n©jku mi[kaM vfèkdkjh }kjk jktLo vfÒys[k 'kq) djus d¢ fy, vkns'k fnukad 12-2-2020 ikfjr fd;k x;k
&& ;kph ,oa çR;FkÊ Øekad 7 vkns'k fnukad 12-2-2020 ls lger && jktLo eaMy d¢ le{k vkns'k fnukad 12-2-2020 d¢ fo#) iqujh{k.k ugÈ v©j ftl çdj.k esa vkns'k fnukad 12-2-2020 ikfjr fd;k x;k mldk vfÒys[k ugÈ && vkns'k fnukad 20-4-2018 dh] ftld¢ fo#) iqujh{k.k çLrqr fd;k Fkk] oSèkrk dk fofu'p;u fd, fcuk jktLo eaMy us vkns'k fnukad 12-2-2020 d¢ vuqlkj dk;Zokgh djus dk funs'k nsdj xyrh dh && fupys U;k;ky;¨a d¢ leLr vkns'k vikLr i{kdkj¨a d¨ lquokà dk volj çnku djus d¢ i'pkr ukekarj.k vkns'k ikfjr djus d¢ fy, ekeyk uk;c rglhynkj d¨ çfrçsf"krA ¼iSjk 2 ,oa 6 ls 12
¼3½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 50 && 'kfä dk ç;¨x && oS|rk && n¨ vkns'k && ukekarj.k d¢ lacaèk esa vkns'k fnukad 20-4-2018 rFkk jktLo vfÒys[k 'kq) djus d¢ fo"k; esa vkns'k fnukad 12-2-2020 && vkns'k fnukad 20-4-2018 vikLr ugÈ fd;k x;k && blfy, n¨ çfrdwy vkns'k gSa && jktLo eaMy us vkns'k fnukad 20-4-2018 dh oSèkrk ,oa fofèkekU;rk dk fofu'p;u fd, fcuk vkns'k fnukad 12-2-2020 d¢ vuqlkj dkjZokà djus dk funs'k nsdj xyrh dh && jktLo eaMy dk vkns'k vikLrA ¼iSjk 7
¼4½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 115 && vihyh@mPprj jktLo çkfèkdkfj;¨a d¢ le{k ukekarj.k d¢ fy, yafcr eqdnesckth d¢ n©jku ,d fofèkd okfjl }kjk jktLo vfÒys[k 'kq) djus d¢ fy, vkosnu çLrqr fd;k x;k && vU; fofèkd okfjl i{kdkj ugÈ cuk, x, && mi [kaM vfèkdkjh us i`Fkd~ vkosnu xzg.k djus esa xyrh dh && vkns'k fnukad 12-2-2020 ikfjr djus d¢ iwoZ leLr fofèkd okfjl¨a d¨ lquokà dk volj çnku ugÈ fd;k x;k && fofèkd laoh{kk dh ij[k esa ,slk vkns'k fLFkj ugÈ jgrk && vikLrA ¼iSjk 10 ,oa 11
¼5½ Òkjr dk lafoèkku && vuq- 227 && 'kfä dh O;kfIr && vihyh@mPprj jktLo çkfèkdkfj;¨a d¢ le{k ukekarj.k d¢ fy, yafcr eqdnesckth d¢ n©jku ,d fofèkd okfjl }kjk jktLo vfÒys[k 'kq) djus d¢ fy, vkosnu çLrqr fd;k x;k && vU; fofèkd okfjl i{kdkj ugÈ cuk, x, && mi [kaM vfèkdkjh us i`Fkd vkosnu xzg.k djus esa =qfV dh && vkns'k ikfjr djus ls iwoZ leLr fofèkd okfjl¨a d¨ lquokà dk volj çnku ugÈ fd;k x;k && fofèkd laoh{kk dh ij[k esa ,slk vkns'k fLFkj ugÈ jgrk && vuqPNsn 227 d¢ vèkhu 'kfä dk ç;¨x dj vikLr fd;k x;kA ¼iSjk 10 ,oa 11
(1) Land Revenue Code, 1959 (M.P.) -- S. 50(2) (b) -- applicability -- revision filed on 12.7.2018 before Board of Revenue -- on said date, amended Code was not in force and bar under section 50(2) (b) of Code Was not there -- revision was maintainable -- therefore Board of Revenue entertained revision -- bar under section 50(2) (b) not applicable. [Paras 5
(2) Land Revenue Code, 1959 (M.P.) -- Ss. 109, 110, 115 and 50 -- mutation order dated 16.9.2013 passed in favour of petitioner -- set aside by SDO by Order dated 28.2.2017 -- in second appeal, order of S D O set aside by Additional Commissioner by order dated 20.4.2018 -- against this order, revision filed by respondents before Board of Revenue -- during pendency of litigation, order dated 12.2.2020 passed by S.D.O for correction of revenue record -- petitioner and respondent No. 7 consented with order dated 12.2.2020 -- no revision against order dated 12.2.2020 before Board of Revenue and no record in which order dated 12.2.2020 passed -- Board of Revenue committed error in directing to act in accordance with order dated 12.2.2020 without deciding legality of order dated 20.4.2018 against which revision was filed -- all orders of Courts below set aside -- matter remanded to Naib Tahsildar for passing mutation order after providing hearing opportunity to parties. [Paras 2 & 6 to 12
(3) Land Revenue Code, 1959 (M.P.) -- S. 50 -- exercise of powers -- legality -- two orders -- order dated 20.4.2018 regarding mutation and order dated 12.2.2020 in respct of correction of revenue record -- order dated 20.4.2018 not set aside -- therefore two contrary orders are there -- without deciding legality and validity of order dated 20.4.2018, Board of Revenue Committed error in directing to act in accordance with order dated 12.2.2020 -- order of Board of Revenue set aside. [Para 7
(4) Land Revenue Code, 1959 (M.P.) -- S. 115 -- during pendency of litigation for mutation before appllate/higher revenue authorities application filed by one legal heir for correction of revenue record
-- other legal heirs not impleaded -- S.D.O. committed error in entertaining separate application -- opportunity of hearing not given to all legal heirs before passing order dated 12.2.2020 -- such order does not stand test of legal scrutiny -- set aside. [Paras 10 & 11
(5) Constitution of India -- Art. 227 -- scope of powers -- during pendency of litigation for mutation before appellate/higher revenue authorities, application filed by one legal heir for correction of revenue record -- other legal heirs not impleaded -- S.D.O. committed error in entertaining separate application -- Opportunity of hearing not given to all legal heirs before passing order -- such order does not stand test of legal scruting -- set aside by exercising powers under Article 227. [Paras 10 & 11
ORDER
1. Petitioner has filed this misc. petition under Article 227 of the Constitution of India, calling in question order dated 16.3.2020, contained in Annexure P/5, passed by Board of Revenue, Gwalior, Camp at Sagar. By impugned order dated 16.3.2020 matter was sent to Tehsildar, Damoh to take action as per order dated 12.2.2020 passed in Revenue Case No.8/A-6-A/2019-2020.
2. Issue before the Revenue Court was in respect of order dated 16.9.2013 passed by Tahsildar that is amended mutation entry No.397. One Khub Chand Rai, who is petitioner in this case, has filed an application for mutation before Tehsildar. By order dated 16.9.2013 Naib Tehsildar ordered to enter his name in the revenue records. Said order was challenged by legal heirs of deceased Gulab Rani before S.D.O.
Appellants who are respondents herein made submission before S.D.O that Mahadev Prasad Rai and Gulab Rani had eight sons. Khub Chand Rai got his name mutated in revenue records by playing fraud. He has suppressed the fact regarding surviving legal heirs of Mahadev Prasad Rai and Gulab Rani. No notices were issued to surviving legal heir, report of Patwari was not called, no proclamation was made and contrary to rules mutation was ordered by Naib Tehsildar vide its order dated 16.9.2013. S.D.O vide its order dated 28.2.2017 held that due to aforesaid procedural error there is violation of Rule 27 of M.P. Land Revenue Code, 1959 (hereinafter referred to as the ‘Land Revenue Code’) and order passed by Naib Tehsildar is null and void. Matter was remanded back and direction was given to correct the revenue records and enter the name of all legal heirs of deceased Gulab Rani in the revenue record.
Order passed by S.D.O dated 28.2.2017 was challenged by petitioner Khub Chand Rai before Additional Commissioner, Sagar. Additional Commissioner, Sagar, vide its order dated 20.4.2018 set aside the order passed by S.D.O on the ground that sijra khandan was prepared and legal heirs of deceased were brought on record and, therefore, finding of Naib Tehsildar that there was procedural error in mutation is incorrect. Order passed by S.D.O was set aside.
Respondents challenged order passed by Additional Commissioner before Board of Revenue in Revision under section 50 of the Land Revenue Code. In proceedings before Board of Revenue, both parties mutually consented that order dated 12.2.2020 passed by S.D.O in Revenue Case No. 8/A-6-A/2019-2020 may be given effect. On basis of consent of the parties and considering the fact that issue involved in respect of order under challenge and order passed by S.D.O dated 12.2.2020 is same, therefore, Board of Revenue remanded the matter back to Tehsildar by ordering him to act as per order dated 12.2.2020
3. Learned Senior Counsel appearing for respondents submitted that revision filed before Board of Revenue was not maintainable. Order passed by S.D.O dated 28.2.2017 was just and proper. Tahsildar may be directed to consider the case as per order passed by S.D.O (Revenue) dated 28.2.2017.
4. Heard the learned counsel appearing for the petitioner as well as Senior Counsel appearing for the respondents.
5. Respondent Nos.1 to 5 have filed revision under section 50 of the Land Revenue Code and, as per cause title, revision was filed on 12.7.2018. On said date amended M.P. Land Revenue Code was not in force and bar under section 50(2)(b) of the Land Revenue Code, was not there and, therefore, Board of Revenue has entertained the revision filed by respondents.
6. Revision was filed against order dated 20.4.2018. Order dated 12.2.2020 passed in Revenue Case No. 8/A-6-A/2019-2020 was not in issue before said Court. As said order and records of said case were not before Board of Revenue, therefore, Board of Revenue committed an error in considering the said order and on basis of consent of both the parties, directed Tahsildar to act on it. Allegation has also been made that respondent No.7 in connivance with petitioner had given their consent
Point of Law : Court is in complete agreement with reasoning adopted by BOR - There is no violation of principles of natural justice and no palpable error has crept in the order of the BOR.
The main legal point established in the judgment is the interpretation and application of Section 65 of the Gujarat Land Revenue Code, 1879 in the context of a land dispute.
The court affirmed the Board of Revenue's decision, ruling that the Naib Tehsildar acted within jurisdiction and the petitioner's claims were dismissed due to lack of grounds for recall.
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