Kailash Narayan vs Smt. Kapoori
2023 Latest Caselaw 12279 MP

                              1

      IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                           BEFORE
      HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                              &
      HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                 ON THE 2nd OF AUGUST, 2023
                WRIT APPEAL NO.188 OF 2022

BETWEEN:-

KAILASH NARAYANA, S/O KAMTA PRASAD
TIWARI, AGE; NEAR ABOUT 65 YEARS,
OCCUPATION: AGRICULTURE, R/O VILLAGE:
KHANDRAWANI, TEHSIL AND DISTRICT: DATIA,
MADHYA PRADESH.
                                              ........APPELLANT

(BY SMT. SMRATI SHARMA - ADVOCATE)

AND

1.    SMT. KAPOORI, W/O SHRI SURESH
      TIWARI,    R/O VILLAGE:   DURSADA,
      TEHSIL AND DISTRICT DATIA, MADHYA
      PRADESH.
2.    MANOJ      KUMAR,    S/O   KAILASH
      NARAYANA TIWARI, R/O VILLAGE:
      KHANDRAWANI, TEHSIL AND DISTRICT:
      DATIA.
3.    AJEET, S/O KAILASH NARAYANA TIWARI,
      R/O VILLAGE: KHANDRAWANI, TEHSIL
      AND DISTRICT: DATIA.
4.    RAMRATI, D/O MOOLCHAND MISHRA,
      W/O KAMTA PRASAD TIWARI, R/O
      VILLAGE: SAHDAURA, TEHSIL AND
      DISTRICT: DATIA, MADHYA PRADESH.
5.    BHAGGO, W/O LATE SHRI BHAGWAN
      DAS, D/O SHRI KAMTA PRASAD TIWARI
      (DIED LEGAL HEIRS)
                                             2

   5.1 PRAKASH NARYANA (DIED).
   5.2 JAGDESH PRASAD.
   5.3 ARVIND TIWARI
       ALL S/O LATE SHRI BHAGWAN DAS, R/O
       VILLAGE:    TAUR    SUNARI,  TEHSIL:
       BADONI, DISTRICT: DATIA, MADHYA
       PRADESH.
   5.4 JAMWATI, D/O LATE SHRI BHAGWAN
       DAS, W/O SURESH CHANDRA SHARMA.
   5.5 PRABHA, D/O LATE BHAWAN DAS, W/O
       SHRI MAHESH CHANDRA SHARMA
       ALL R/O ATABEYEE, TEHSIL MAUTH,
       DISTRICT: JHANSI, UTTAR PRADESH.
6.     RAMKALI, D/O KAMTA PRASAD TIWARI,
       W/O KSHETRAPAL DUBEY, R/O SONAGIR,
       TEHSIL: BADONI, DISTRICT: DATIA,
       MADHYA PRADESH.
7.     RAM       LAKHAN      DUBEY,     S/O
       HARNARAYANA DUBEY, R/O VILLAGE:
       BILHORI, TEHSIL: BADONI, DISTRICT
       DATIA, MADHYA PRADESH.
8.     LAKHAN       LAL      DUBEY,     S/O
       HARNARAYANA DUBEY, R/O VILLAGE:
       BILHORI, TEHSIL: BADONI, DISTRICT
       DATIA, MADHYA PRADESH.
9.     NEHRU DUBEY, S/O HARNARAYANA
       DUBEY, R/O VILLAGE: BILHORI, TEHSIL:
       BADONI, DISTRICT: DATIA, MADHYA
       PRADESH.

                                     ........RESPONDENTS
(SHRI PAWAN KUMAR DWIVEDI - ADVOCATE FOR RESPONDENT
NO.1)
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       This appeal coming on for admission this day, JUSTICE
SATYENDRA KUMAR SINGH passed the following:
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                                       ORDER

This Writ Appeal under Section 2(1) of the Madhya Pradesh, Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been preferred against the order dated 9/2/2022 passed by the

Writ Court in Writ Petition No.448/2022, whereby petitioner's (appellant herein) petition preferred under Article 227 of the Constitution of India was dismissed.

2. Brief facts giving rise to this appeal are that respondent no.1 preferred an application under Section 178 of MP Land Revenue Code before the Court of Tehsildar seeking partition of lands bearing survey nos.1456, 1457, 1458 admeasuring 2.710 hectares situated in Village Khadarwani, District Datia, which were entered in the revenue records jointly in the names of appellant and respondents, wherein petitioner (appellant herein) filed written objection stating therein that while preparing the Fard, no intimation was given to any party by the Patwari of the area. Fard has also not been signed by any co-sharer of the property except respondent no.1, who had already sold her entire share to the appellant after receiving the agreed consideration amount and possession had also been delivered to the appellant in the year 2005 itself. However, in spite of the fact that there was no Fard Batwara / partition among the joint owners of the property, the Tehsildar accepted the same as partition and changed entries in the revenue records in terms thereto vide order dated 26/9/2015 passed in case No.11/A-27/2014-15, which was confirmed by the Sub- Divisional Officer vide order dated 17/1/2017 in appeal No.111/Appeal/2014-15 as well as by the Additional Commissioner vide order dated 6/1/2022 in revisional jurisdiction passed in case No.267/2016-17/Appeal. The aforesaid orders were assailed by the petitioner (appellant herein) by filing a Miscellaneous Petition under Article 227 of the Constitution of India, which has been dismissed by

the learned Writ Court vide impugned order dated 9/2/2022.

3. During course of arguments, a preliminary objection has been raised as against the maintainability of the instant intra-court appeal against the order passed by the learned Writ Court on the ground that intra-court appeal under Section 2(1) of the Madhya Pradesh, Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is not maintainable against an order passed by a Court exercising supervisory jurisdiction under Article 227 of the Constitution of India. Therefore, arguments were heard on the issue of maintainability of this appeal.

4. Learned counsel for the appellant tried to persuade this Court that the order dated 9/2/2022 passed by the learned Writ Court in fact and in effect has been passed under Article 226 of the Constitution of India. She has placed reliance on the judgment passed by the Five Judges Bench (Full Bench) of this Court in the case of Manoj Kumar Vs. Board of Revenue and others, 2007 (4) MPHT, 545 as well as on a judgment passed by the Three Judges Bench (Full Bench) of this Court in the case of Shaillendra Kumar Vs. Divisional Forest Officer and another, 2017 (4) MPLJ, 109. Learned counsel for the appellant referring the Writ Petition No.448/2022 filed by the petitioner submits that although in the memo of said petition it was mentioned that the same was preferred under Article 227 of the Constitution of India, but in the relief clause it was specifically prayed to issue a writ of certiorari and quash the order dated 6/1/2022 passed by the Additional Commissioner, order dated 17/1/2017 passed by the SDO and order dated 26/9/2015 passed by the Tehsildar. It is settled

law that while considering the prayer for issuance of a writ of certiorari, the High Court acts in exercise of original jurisdiction under Article 226 of the Constitution of India, against which a Writ Appeal under Section 2(1) of the Madhya Pradesh, Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is maintainable. The order has been passed either under Article 226 or under Article 227 of the Constitution of India, would depend upon the real nature of the order so passed by the Writ Court. In the instant case, the order impugned was passed under Article 226 of the Constitution of India, therefore, this Writ Appeal filed against the same is very well maintainable.

5. Learned counsel for the respondent no.1 submits that the order impugned was passed under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and, hence, in view of the embargo as contained in Section 2(i) of the Madhya Pradesh, Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, this appeal is not maintainable. He has relied upon the orders passed by the coordinate Benches of this Court dated 22/6/2023 passed in Writ Appeal No.1109/2022 (Gajendra Singh and another Vs. Smt. Monika and others) and dated 16/8/2022 passed in Writ Appeal No.637/2022 (Bahavuddin Vs. Shahbuddin).

6. This Court has carefully perused the orders passed by the Tehsildar, SDO in appeal, Additional Commissioner in revisional jurisdiction as well as the impugned order passed by the learned Writ Court.

7. The Division Bench of this Court vide order dated 16/8/2022

passed in Writ Appeal No.637/2022 (Bahavuddin Vs. Shahbuddin) referring the Full Bench judgment passed in the case of Shailendra Kumar (supra) cited by learned counsel for the appellant, has discussed the issue involved in this appeal at length. Relevant para thereof is as under:-

Before proceeding further, it is expedient to reiterate ambit, scope, limit and dimension of Article 226 of the Constitution of India as explained in the Full Bench judgment in para 15 quoted below:-

"15. A writ of certiorari is maintainable against any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The writ of certiorari as delineated in Surya Dev Rai's case (supra) can be said to be exercised in the following instances:-

(1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error

apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.

(5) The certiorari may be and is generally granted when a Court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the Court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances.

(6) Certiorari may also issue if the Court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed.

(7) An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari."

The aforesaid prepositions of law are guiding principles for Writ Courts as well as the Courts exercising intra-Court appellate jurisdiction. Further the Full Bench was seisin with a dispute related to an award passed by the Industrial Tribunal under Section 17 of the Industrial Disputes Act, which had attained finality by force of Sub Section (2) of Section 17 of Industrial Disputes Act. The Full Bench opined that the order of the Labour Court or Industrial Tribunal is amenable to writ jurisdiction under Article 226 of the Constitution of India as the High Court

in exercising such jurisdiction not only demolishes the order, which it considers to be without jurisdiction or palpably erroneous, but also substitutes its views for those of the inferior Tribunal. To further elaborate the preposition the Full Bench relied upon the judgment of the Supreme Court in the case of T.C. Basappa vs. T. Nagappa, AIR 1954 SC 440, wherein it has been 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 vs. London and North Western Railway Co., (1879)4 AC 30, 39.]"

It is further held:-

"But issuance of the directions after setting aside an order passed in exercise of powers conferred under Article 226, is only under Article 227 of the Constitution. Therefore, the Curt exercises composite jurisdiction which will make intra Court appeal maintainable. Thus the order passed by the Division Bench in Superintendent, Rajmata Vijaya Raje Scindia Regional Agricultural Research Station, Ujjain's Case (Supra) does not lay down correct principle of law and is

thus overruled."

If we juxtapose factual matrix in hand with law laid down by the Full Bench we find:

(i) The impugned order is not passed in exercise of original jurisdiction as it has not dealt with an order which attained finality on the merits of the dispute. Instead it dealt with application for condonation of delay relating to dispute of mutation.

(ii) The impugned orders before learned Single Judge were not found suffering from vice of coram non judice i.e. without jurisdiction or in excess of jurisdiction or in violation of principles of natural justice. Instead the impugned orders were found to be erroneous based on evasive/insufficient grounds seeking condonation of delay; therefore illegal Under such circumstances, in our considered view the learned Single Judge, in exercise of supervisory jurisdiction has found fault while scrutinizing the order of sub-ordinate revenue authorities on merits in the context of condonation of delay; an interlocutory stage. Hence, we find substantial force in the objection that the learned Single Judge has passed the impugned order in exercise of supervisory jurisdiction under Article 227.

Consequently, the question framed by this Court is answered in the affirmative with the conclusion that intra- Court appeal against the impugned order is not maintainable in view of the Proviso 2 of Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005.

Accordingly, the instant writ appeal sans merit and is dismissed."

8. Keeping in view the above law laid down by the Full Bench of this Court and the observation made by the Division Bench of this Court in the case of Bahavuddin (supra) cited by learned counsel for the respondent no.1, if we go through the impugned order passed by the learned Writ Court, wherein neither any illegality nor any

jurisdictional error in the orders of the Court of Tehsildar, Appellate Court and Revisional Court were found, it can very well be inferred that the same was not passed in exercise of original jurisdiction under Article 226 of the Constitution of India, but exercising supervisory jurisdiction provided under Article 227 of the Constitution of India. Hence, in our considered opinion, the submissions made by the learned counsel for the respondent no.1 raising objection to the effect that the impugned order has been passed by the learned Writ Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India has substantial force. Accordingly, this Writ Appeal is dismissed as not maintainable.

   (SATYENDRA KUMAR SINGH)                         (DEEPAK KUMAR AGARWAL)
            JUDGE                                          JUDGE
Arun*
                ARUN KUMAR MISHRA
                2023.08.04 12:23:13 +05'30'