Brajendra Singh Raghuvanshi vs The State Of Madhya Pradesh
2022 Latest Caselaw 4730 MP

                             1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                              BEFORE
                  HON'BLE SHRI JUSTICE ROHIT ARYA
                                 &
                 HON'BLE SMT. JUSTICE SUNITA YADAV
                      ON THE 4th OF APRIL, 2022

                  WRIT APPEAL No. 714 of 2021

     Between:-
1.   BRAJENDRA SINGH RAGHUVANSHI S/O SHRI
     SARDAR SINGH RAGHUVANSHI , AGED ABOUT 65
     YEARS, OCCUPATION: RETIRED B-1 ELEXIR MK
     CITY SIROL ROAD GWALIOR (MADHYA PRADESH)

2.   KULDEEP RAGHUVANSI S/O SHRI ASHOK SINGH
     RAGHUVANSI , AGED ABOUT 33 YEARS, VILLAGE
     ANANTPUR TEHSIL KOLARAS DIST. SHIVPURI
     (MADHYA PRADESH)

3.   BHARAT SINGH RAGHUVANSI S/O SHRI CHANDRA
     PRAKASH RAGHUVANSI VILLAGE SAJAL TEHSIL
     BADARWAS DIST. SHIVPURI (MADHYA PRADESH)

4.   GOPALDUTTA DHOLKHANDI S/O LATE SHRI.
     KESHAVDUTTA DHOLAKHANDI , AGED ABOUT 52
     YE A R S , 1 ST FLOOR, C-21 BASANT VIHAR
     GWALIOR (MADHYA PRADESH)

                                                     .....APPELLANTS
     (BY SHRI S.S. BANSAL, ADVOCATE WITH SHRI AMIT BANSAL,
     ADVOCATE)

     AND

1.   THE STATE OF MADHYA PRADESH PRINCIPAL
     SECRETARY   VALLABH  BHAWAN   BHOPAL
     (MADHYA PRADESH)

2.   COLLECTOR SHIVPURI DIST. SHIVPURI SHIVPURI
     (MADHYA PRADESH)

3.   TEHSILDAR TEHSIL KOLARAS DIST. SHIVPURI
     SHIVPURI (MADHYA PRADESH)

4.   SMT. CHETNA DHOLAKHANDI W/O LATE SHRI
     HEMDUTTA DHOLAKHANDI C-21 BASANT VIHAR
     COLONY NEAR SAHARA HOSPITAL GWALIOR
     (MADHYA PRADESH)

5.   MS. PARVI D/O LATE SHRI HEMDUTTA
     DHOLAKHANDI , AGED ABOUT 16 YEARS, C-21
     BASANT VIHAR     COLONY NEAR    SAHARA
     HOSPITAL GWALIOR (MADHYA PRADESH)

6.   MS. JANVI D/O LATE SHRI HEMDUTTA
     DHOLAKHANDI , AGED ABOUT 13 YEARS,
     OCCUPATION: BOTH   THROUGH NATURAL
     GUARDIAN    MOTHER    SMT.  CHETNA
                            2
        DHOLKHANDI (AS PER WILL OF LATE SHR.
        HEMDUTTA    DHOLKHANDI  SMT   CHETNA
        DHOLKHANDI IS NOT LEGAL GUARDIAN OF
        BOTH) C-21 BASANT VIHAR COLONY NEAR
        SAHARA    HOSPITAL GWALIOR  (MADHYA
        PRADESH)

7.      SMT. KAMLA SHARMA W/O SHRI JEEVANLAL
        SHARMA , AGED ABOUT 48 YEARS, OCCUPATION:
        HOUSE WIFE D-16 DB CITY, SIROL ROAD
        GWALIOR (MADHYA PRADESH)

8.      SMT.  MOHINI   D/O   SHRI    KESHAVDUTTA
        DHOLAKHANDI , AGED ABOUT 50 YEARS,
        OCCUPATION: HOUSE WIFE D-16 DB CITY, SIROL
        ROAD GWALIOR (MADHYA PRADESH)

9.      ANIL RAGHUVANSI S/O SHRI GAJRAJ SINGH
        KOLARAS DIST. SHIVPURI (MADHYA PRADESH)

10.     ANAND YADAV S/O SHRI MUKESH YADAV
        KOLARAS DIST. SHIVPURI (MADHYA PRADESH)

11.     MUKESH     SINGH  RAGHUVANSI   S/O              SHRI
        RAMBABU        RAGHUVANSI KOLARAS               DIST.
        SHIVPURI (MADHYA PRADESH)

                                                                .....RESPONDENTS
        (BY SHRI ANKUR MODY, ADDITIONAL ADVOCATE GENERAL FOR
        THE STATE AND SHRI YASH SHARMA, ADVOCATE FOR PRIVATE
        RESPONDENTS)



                                   JUDGMENT

This intra-court appeal is directed against the order dated 26/7/2021 passed in M.P. No.1671/2021. Though, the miscellaneous petition was captioned as under Article 227 of Constitution of India, but regard being had to the pleadings and the prayer for quashment of the order passed by the Tehsildar dated 31st of March, 2021 under Section 178 of M.P. Land Revenue Code, 1959 (hereinafter shall be referred to as "Code") in Case No. 0033/A-27/20-21, the miscellaneous petition in substance was under Article 226 of Constitution of India. Present appellants were arrayed as private respondents among others.

Factual matrix relevant for disposal of this appeal is in a narrow compass. Respondents No. 4, 5 and 6 and appellant No. 4 are members of a undivided Hindu family. A land bearing survey No.566 admeasuring 3.990 hectares situated in village Dodiyai, Tehsil Kolaras, District Shivpuri originally was in the name of one Late Keshav Dutt Dholakhandi. After his demise, the same devolved, by way of natural succession, upon Gopal Dutt - appellant No. 4, deceased Hem

Dutt - husband of respondent No. 4 and father of respondents No. 5 and 6, and Ram Dutt (since deceased), Smt. Kamla Sharma and Smt. Mohini (daughters of Late Keshav Dutt). It further appears that Smt. Kamla Sharma and Smt. Mohini moved an application for partition of land falling in survey No. 566/1 area 3.990 heactares. It appears that an order passed by Sub-Divisional Officer, Division Kolaras, District Shivpuri dated 16/2/2020 was placed before Tehsildar bringing in notice that the names of Smt. Kamla Sharma and Smt. Mohini, daughter of Late Keshav Dutt have been deleted, hence, no claim subsist for partition. Thereafter, Tehsildar has passed the order on 31st of March, 2021 in favour of the present

appellants.

It may be mentioned that present respondents in miscellaneous petition under Article 227 of Constitution of India filed against the said order have made allegations against present appellant No. 4 as well reflected from para 3 of the impugned order.

In fact, an appeal lies against the order passed by the Tehsildar under Section 178 of the Code before the S.D.O. under Section 44 (2) of the Code. That has not been done.

Learned Single Judge has passed the impugned order behind the back of private respondents while taking note of allegations made against private respondents as referred above. Thereafter, learned Single Judge exercising the original jurisdiction under Section 226 of Constitution of India has quashed the order of Tehsildar dated 31/3/2021.

Shri Yash Sharma, learned counsel for private respondents has taken preliminary objection against the maintainability of the intra-court appeal under Section 2 (1) of Madhya Pradesh Uccha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 (hereinafter shall be referred to as "Adhiniyam") inter alia contending that against the order passed in miscellaneous petition filed under Section 227 of Constitution of India, no intra-court appeal is maintainable as per Section 2 (1) of the Adhiniyam.

Per contra, Shri S.S. Bansal and Shri Amit Bansal, counsel for the appellants submitted that averment made in the miscellaneous petition converge to the merits

of the impugned order dated 31/3/2021 passed by the Tehsildar. In other words, the miscellaneous petition was filed challenging the said order on merits. Besides, relief for quashment of the said order was sought by praying for issuance of writ of certiorari. Under such circumstances, the petition was in fact and in effect under Article 226 of Constitution of India and not under Article 227 of Constitution of India. Likewise, the impugned order is also passed under Article 226 of Constitution of India quashing the order of the Tehsildar dated 31/3/2021 on merits. Learned counsel relied upon the judgment passed by Full Bench of this Court in the case of Shaillendra Kumar vs. Divisional Forest Officer and Anr., reported in 2017 (4) M.P.L.J. to bolster his submissions, para 14 and 16 whereof reads thus:-

"14. We find that the Division Bench has not applied the principles laid down in the case of Jogendrasinhji Vijay Singhji (supra) in a correct perspective. The Supreme Court held in Paragraph No.30, that maintainability of Letters Patent Appeal would depend upon pleadings in the writ petition, nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. The only exclusive bar was in respect of an order passed by the Judicial Court which could be challenged only under Article 227 of the Constitution of India. Therefore, in terms of Jogendrasinhji Vijay Singhji's case, it is a question of fact in each case as to whether intra Court appeal would be maintainable in respect of the orders passed by the judicial or quasi judicial Tribunals constituted under any Act could be challenged under Article 226 and/or under Article 227 or both.

16. Therefore, we find that an order of the Labour Court or an Industrial Tribunal is amenable to the writ of certiorari under Article 226 of the Constitution. In exercise of writ of certiorari, the High Court demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The Constitutional Bench judgment of the Hon'ble Supreme Court reported as T.C. Basappa vs. T. Nagappa, AIR 1954 SC 440, held as under:-

"7..................The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person [Vide Per Lord Cairns in Walshall's Overseers v. London and North Western Railway Co., (1879) 4 AC 30, 39.]""

Upon hearing counsel for the parties, we find substantial force in the submission of Shri S.S. Bansal in as much as learned Single Judge has dealt with

the order of the Tehsildar on merits and quashed the order of the Tehsildar exercising original jurisdiction under Article 226 of the Constitution of India unlike the jurisdiction under Article 227, "a supervisory jurisdiction". Therefore, the instant appeal is held to be maintainable in the obtaining facts and circumstances.

That apart, the impugned order has been passed without notice to private respondents and that too, after taking into consideration the allegations made against the private respondents in the body of the petition. Consequently, by the impugned order, the present appellants have been condemned unheard and subjected to the prejudicial order.

In the result, the instant writ appeal is allowed.

The impugned order is set aside.

The miscellaneous petition shall be registered to the original number and be placed before appropriate Bench of this High Court for consideration.

               (ROHIT ARYA)                                                   (SUNITA YADAV)
                  JUDGE                                                           JUDGE
ALOK KUMAR   AKS
2022.04.06
15:13:49
+05'30'
11.0.23