Khub Chand Rai vs Ramesh Kumar Rai
2021 Latest Caselaw 389 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



MISC PETITION NO.                             2426/2020
Parties Name                KHUB CHAND RAI
                                    VS.
                            RAMESH KUMAR RAI AND OTHERS
Bench Constituted           Single Bench
Judgment delivered By       HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether       approved   for YES/NO
reporting
Name of counsel for parties For petitioner: Dr. Anuvad Shrivastava, Advocate.

                            For Respondent nos.1 to 7 : Shri R. K. Verma, Sr.

Counsel with Shri R. M. Tiwari, Advocate.

Law laid down               -
Significant       paragraph -
number


                                (O R D E R )
                                02/03/2021

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 Tehsildar 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. Tehsildar 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 Tehsildar to act on it. Allegation has also been made that respondent no.7 in connivance with petitioner had given their consent and order dated 12.2.2020 is brought in force which would adversely effect other interested legal heirs, therefore, order was bad. Board of Revenue committed an error in directing Tehsildar to act in accordance with order dated 12.2.2020. Said order and records of said case was not before it. No order was passed by Board of Revenue in respect of order under challenge i.e. order dated 20.4.2018 passed in Case No.694/A-6/2016-17.

7. Since order dated 20.4.2018 was not set aside, therefore, two contrary orders are there, one of 20.4.2018 and other of 12.2.2020. Board of Revenue committed an error in directing Revenue Officer to act in accordance with order dated 12.2.2020 without deciding on legality and validity of order dated 20.4.2018. In view of same, order passed by Board of Revenue dated 16.3.2020 is set aside.

8. Though there is no challenge to order passed by Additional Commissioner dated 20.4.2018 but exercising powers under Article 227 of the Constitution of India, order of Additional Commissioner is also considered. Additional Commissioner has set aside the order passed by S.D.O on the ground that on amended mutation register, family tree was prepared and legal heirs were brought on record, therefore, order dated 28.2.2017 passed by S.D.O is contrary to facts. Additional Commissioner, only on the basis of fact that family tree was prepared, has held that order of S.D.O is bad in law. Additional Commissioner Sagar did not consider the fact that whether Rule 27 of the Land Revenue Code, was complied with or not; whether notices were issued to all legal heirs of deceased Gulab Rani or not and further Additional Commissioner failed to state anything whether report from Patwari or Revenue Inspector was called or not and whether any proclamation was made by Tehsildar, therefore, order was passed hurriedly without considering totality of circumstances of case and mutation rules.

9. Without meeting out the grounds on basis of which S.D.O has passed the order, Additional Commissioner has committed an error of law in passing order dated 20.4.2018 and setting aside order passed by S.D.O dated 28.2.2017. In view of the same, order passed by Additional Commissioner dated 20.4.2018 is quashed and order of S.D.O is modified to the extent that all legal heirs will appear before Naib Tehsildar, who after considering the evidence adduced by parties will pass order on mutation application filed by petitioner Khub Chand Rai and argue the case on merits.

10. So far as order dated 12.2.2020 is concerned, the order passed in mutation was not challenged before Board of Revenue. S.D.O has entertained the application filed under section 115 of the M.P. Land Revenue Code for correction of record. In the application all interested parties i.e. legal heirs of deceased Gulab Rani were not made a party. During pendency of litigation for

mutation of names before appellate/higher revenue authorities, S.D.O committed an error of law in entertaining separate application for correction of revenue record. The issue in mutation proceedings and issue in correction of revenue records are similar in nature and order dated 12.2.2020 will effect all the legal heirs of Gulab Rani.

11. In view of same, as all legal heirs of Gulab Rani were not given opportunity of hearing before passing order dated 12.2.2020, order passed by S.D.O in Revenue Case no. 8/A-6- A/2019-2020 also does not stand the test of legal scrutiny and, therefore, exercising powers under Article 227 of the Constitution of India, impugned order is quashed.

12. In view of the aforesaid facts and circumstances of the case, parties and Revenue authorities are directed to act as per direction given in paragraph 9 mentioned hereinabove.

13. In view of aforesaid miscellaneous petition filed by the petitioner is disposed of with the direction as aforesaid.

(VISHAL DHAGAT) JUDGE mms

Digitally signed by MONSI M SIMON Date: 2021.03.08 17:23:43 +05'30'