Vishwanath Singh vs Hanuman Prasad Kushwaha
2022 Latest Caselaw 10100 MP

                                                 W.P. No. 5893/2005
                              1

             IN THE HIGH COURT OF MADHYA PRADESH

                         AT JABALPUR
                             BEFORE

     HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI

                     ON THE 22nd OF JULY, 2022

                WRIT PETITION No. 5893 of 2005

 Between:-
 VISHWANATH SINGH S/O RAMJI
 SINGH KURMI, AGED ABOUT 50
 YEARS,   R/O   VILLAGE-SAMAN,
 TEHSIL-HUZUR,    DISTRICT-REWA
 (MADHYA PRADESH)
                                                 .....PETITIONER

 (BY SHRI ASHUTOSH TIWARI- ADVOCATE)

 AND

   HANUMAN PRASAD KUSHWAHA S/O
   LATE RAM CHARAN KUSHWAHA,
   AGED ABOUT 59 YEARS, R/O BAN
1. SAGAR COLONY, VILLAGE SAMAN,
   TEHSIL HUZUR, DISTRICT-REWA
   (MADHYA PRADESH)

   VANSHPATI     KUSHWAHA      S/O
   BUDHSEN KUSHWAHA, R/O VAN
   SAGAR COLONY, VILLAGE-SAMAN,
2.
   TEHSIL-HUZUR,    DISTRICT-REWA
   (MADHYA PRADESH)

   THE STATE OF MADHYA PRADESH,
   THROUGH THE COLLECTOR, REWA
3. DISTRICT-   REWA    (MADHYA
   PRADESH)

4. PUBLIC   WORKS    DEPARTMENT,
   THROUGH     THE     EXECUTIVE
   ENGINEER,    PUBLIC      WORK
   DEPARTMENT (PWD) DIVISION NO 1,
                                                                 W.P. No. 5893/2005
                                      2

  REWA (MADHYA PRADESH)

   THE TAHSILDAR, TAHSIL HUZUR,
5. DISTRICT-   REWA     (MADHYA
   PRADESH)
                                                              .....RESPONDENTS

  (SHRI RAJEEV KUMAR BADKUR- ADVOCATE FOR LRS OF RESPONDENT NO.
  1 AND SHRI PUSHPRAJ GAHARWAR- ADVOCATE FOR RESPONDENTS NO. 1
  AND 2)


      This petition coming on for admission this day, the court passed the
following:




                                    ORDER

Heard finally with the consent of both the parties.

By invoking extraordinary writ jurisdiction under Article 226/227 of the

Constitution of India, the petitioner has prayed for following reliefs:-

"1. Quashing the orders passed by the learned Board of Revenue, Gwalior dated 31.05.2005 and learned Commissioner dated 01.02.2005.

2. The Learned S.D.O's Order dated 29.12.93 and learned Collector's Order dated 05.03.2002 be restored.

3. Any other writ/order/direction suitable to the Hon'ble Court to meet the ends of justice may be passed in the petition.

4. Cost of the Petition to be provided to the petitioner."

W.P. No. 5893/2005

2. The brief facts leading to filing of the case are that the lands

admeasuring area 11.64 acres bearing the old Khasra Nos.380/1, 382, 383, 384,

385, 386/2, 387, 388 and 436/1 situated in village Saman, District Rewa were

allotted new Khasra No. 631 and out of the old Khasra No. 386 was entered in

the name of one 'Hanuman Prasad' in settlement which took place in the year

1924-25. In part portion of Khasra No. 386, the petitioner's father "Ramji

Singh" constructed his residential house and a well and later on the Khasra was

renumbered as Khasra No. 630 area 0.19 decimal and in the adjoining area of

1.0 acre bearing Khasra No. 631/2, the petitioner's father used to cultivate the

land on which various trees were standing. Thus, prior to coming into force of

the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'MPLRC'), the

status of petitioner's father was of "Gair-Haqdar Kastkar" (Unauthorized-

occupant). On coming into force of the MPLRC the status of the petitioner's

father was that of 'Bhoomiswami'. After death of his father, the petitioner

attained the status of 'Bhoomiswami' by succession and his possession is also

recorded continuously from the year 1952-53. Thereafter, the land bearing

Khasra Nos. 630 and 631/2 area 1.19 acres was entered as 'Government Land'

in the Bhoomiswami column.

3. Being aggrieved, the petitioner moved an application under Section

57(2) of the MPLRC on 30.08.1993 before the S.D.O., Rewa for recording of W.P. No. 5893/2005

his name as 'Bhoomiswami'. On notice, the Executive Engineer, P.W.D.

Division-I, Rewa filed a written statement/reply contesting the petitioner's

claim of 'Bhoomiswami' rights. The SDO Rewa conducted enquiry through the

Tahsildar and obtained report from the concerned Patwari dated 20.09.1993

and the Tahsildar report dated 08.10.1993. As per the aforesaid reports, it was

revealed that the land bearing Khasra No. 630 area 0.19 decimal and in part

portion of Khasra No. 631 area 1.0 acre has been found to be in possession of

the petitioner as 'unauthorized occupant'. The SDO, Rewa vide detailed order

dated 29.12.1993 (Annexure-P/7) allowed the petitioner's application by

holding that on the basis of Municipal Corporation Assessment register 1985-

86 to 1990-91, the petitioner's house existing on Khasra No. 630 area 0.19

acres and on the basis of 'Khatoni' of settlement for the period 'Sambat' 1982

to 2001, the name of the petitioner's father was continuously recorded in the

possession column from 1989-90 to present time. In view of the aforesaid, the

petitioner's right as 'Bhoomiswami' stood confirmed/accrued under Section

57(2) of the MPLRC as "Gair-Haqdar Kastkar" and as such the name of the

petitioner was recorded as 'Bhoomiswami'. Thereafter, he enjoyed the

possession and title. After a lapse of about 6 years, the respondents No. 1 and 2

without there being any authority or locus standi, filed an application on

14.09.1999 before the Collector Rewa under Section 50 of the MPLRC and W.P. No. 5893/2005

lodged a protest to set aside the order dated 29.12.1993 passed by the SDO in

favour of the petitioner by exercising suo-moto revisional jurisdiction.

4. The Collector Rewa called for the Tahsildar's report and spot inspection

report and thereafter arrived at a conclusion that respondent Nos. 1 and 2 were

not at all the aggrieved and interested person in any manner, hence, the

revisional application was dismissed prima facie as not maintainable. Being

aggrieved, respondents No. 1 and 2 filed a revision before the Commissioner

Rewa Division Rewa in which the order passed by the SDO and the Collector

were set aside and the Commissioner Rewa declared 0.19 decimal petitioner's

land (Khasra No. 630) to be a government land vide order dated 01.02.2005.

Being aggrieved, the petitioner has challenged the order of the Commissioner

before the Board of Revenue M.P., Gwalior only to the extent of declaration of

0.19 decimal land situated at Khasra No. 630 as a Government land. After

hearing both the parties, the revision petition was admitted vide order dated

16.05.2005 and the order dated 01.02.2005 passed by the Commissioner was

stayed. The Board of Revenue exceeded to its jurisdiction and not only upheld

the Commissioner's order but has declared the whole land area 1.19 acres to be

a government land. Being aggrieved, the present writ petition has been filed.

5. Learned counsel for the petitioner contended that the learned Board of

Revenue, Gwalior exceeded its jurisdiction while passing the impugned order.

W.P. No. 5893/2005

The respondent Nos. 1 and 2 after a lapse of 6 years without there being any

authority or locus standi, moved an application under Section 50 of the

MPLRC before the Collector Rewa, which was rightly dismissed by the

Collector on 05.03.2002. Learned counsel for the petitioner submitted that the

order passed by the Board of Revenue is contrary to law laid down in the case

of Rajendra Tiwary Vs. Basudeo Prasad and another reported in AIR 2002

SC 136 wherein, it has been held as under:

"Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted".

In the present case, the Board of Revenue in excessive exercise of its

jurisdiction declared the entire area 1.19 acre as Government land. On this

ground alone, the impugned orders are liable to be set aside.

6. Learned counsel for the petitioner further contended that the powers to

exercise suo moto revision can be exercised within a reasonable period of time

as is well settled in law. The Hon'ble Apex Court in the case of Mohammad

Kavi Vs. Fatima Bai Ibrahim reported in 1997 (6) SCC 71 has held that the

suo moto powers of revision may be exercised within a reasonable time i.e. one W.P. No. 5893/2005

year. In the present case, the Board of Revenue exercise its suo moto powers of

revision after a gap of 12 years since the SDO had passed the order on

29.12.1993. In a similar issue decided by this Court in the case of Pratap

Singh and another Vs. State of M.P., reported in 1997 RN 219 and

Brijnandan Prasad Tiwari Vs. State of M.P. and others reported in 2004 RN

89 similar view has been taken.

7. The Full Bench of this Court in the case of Ranveer Singh since dead

through L.Rs. Kishori Singh and others Vs. State of M.P., reported in 2010

(4) MPLJ 178 in relation to Section 50 of the MPLRC has held that the suo

moto powers can be exercised by the revisional authority within a period of

180 days from the date of the knowledge of illegality, impropriety and

irregularity of the proceedings committed by any revenue officer suboridnate to

it even if the immovable property is Government land or having some public

interest and it will not be justifiable to stretch it for any length of period even

for protection of the Government land or public interest. In view of the

aforesaid, he prays that the petition may be allowed.

8. Per contra, learned counsel for the respondents prays for time to file

reply but the same was rejected in view of the fact that only legal questions are

involved in this case particularly as to whether the suo moto powers under

Section 50 of the MPLRC can be exercised by the revisional authority after 12 W.P. No. 5893/2005

years of passing of the initial order. Number of opportunities were granted to

the respondents to file the reply but the same has not been filed, even after

lapse of about 17 years, as such this Court proceeds to decide the matter

without reply.

9. Learned counsel for the respondents opposed the prayer and submitted

that the petitioner is an unauthorized occupant and after the report of Patwari

and Tahsildar, it was found that the petitioner's land in question is a

government land, as such no illegality has been committed by the revisional

authority in setting aside the orders passed by the SDO and the Collector. On

these grounds, the petition deserves to be dismissed.

10. Heard learned counsel for the parties and perused the record.

11. It is not in disputed that the name of the petitioner's father has been

recorded in the settlement for the year 1924-1925. Even otherwise, the

provisions of MPLRC, 1959 could not have been made applicable to the facts

and circumstances in the present case. The SDO and the Collector have rightly

passed the orders in favour of the petitioner. In light of the judgment passed by

the Hon'ble Apex Court in the case of Mohammad Kavi (supra) and the

decision passed by the Full Bench in the case of Ranveer Singh since dead

through L.Rs. Kishori Singh and others (supra), the power of suo moto

revision could not have been exercised after a lapse of about 11 years. Only on W.P. No. 5893/2005

the basis of complaints, of the respondent Nos. 1 and 2 who do not have any

locus, the application has been entertained.

12. In view of the aforesaid facts and circumstances of the case, the

impugned orders dated 31.05.2005 passed by the Board of Revenue, Gwalior

(Annexure-P/1) as well as the order dated 01.02.2005 passed by the

Commissioner Rewa Division Rewa (Annexure-P/2) cannot be allowed to

stand.

13. Accordingly, the impugned order dated 31.05.2005 passed by the Board

of Revenue, Gwalior (Annexure-P/1) as well as the order dated 01.02.2005

passed by the Commissioner Rewa Division Rewa (Annexure-P/2) are hereby

set aside. The order dated 29.12.1993 (Annexure-P/7) passed by the SDO,

Rewa as well as the order dated 05.03.2002 (Annexure-P/10) passed by the

Collector, Rewa are upheld. By virtue of interim order dated 22.07.2005, the

petitioner is still continue to be in possession of the property in question.

14. Accordingly, the writ petition is hereby allowed. No order as to costs.

(S.A. DHARMADHIKARI) JUDGE ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2022.07.23 11:07:44 +05'30'