Madhya Pradesh High Court
Vishnu vs Mahesh on 10 May, 2023
Author: Gurpal Singh Ahluwalia
1 M.P. No.4232/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 10th OF MAY, 2023
MISC. PETITION No. 4232 of 2019
BETWEEN:-
1. VISHNU S/O NOKHELAL UIKEY, AGED
ABOUT 54 YEARS, R/O LALBAGH
RAILWAY CROSSING, P.G. COLLEGE
ROAD, CHHINDWARA TAHSIL AND
DISTRICT CHHINDWARA (MADHYA
PRADESH)
2. GOPICHAND S/O NOKHELAL UIKEY,
AGED ABOUT 51 YEARS, R/O LALBAG
RAILWAY CROSSING P.G.COLLEGE
ROAD, CHHINDWARA TAHSIL AND
DISTRICT CHHINDWARA (MADHYA
PRADESH)
3. SMT. JHINIBAI W/O NOKHELAL UIKEY,
AGED ABOUT 54 YEARS, R/O LALBAG
RAILWAY CROSSING P.G.COLLEGE
ROAD, CHHINDWARA TAHSIL AND
DISTRICT CHHINDWARA (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE )
AND
1. MAHESH S/O LATE BALKISHAN, AGED
ABOUT 62 YEARS, R/O ANTAGARH,
DISTRICT BASTAR (CHHATTISGARH)
2. RAMESH S/O LATE BALKISHAN, AGED
ABOUT 51 YEARS, R/O SHIVNAGAR
COLONY, DISTRICT CHHINDWARA
(MADHYA PRADESH)
3. MANOJ S/O LATE BALKISHAN, AGED
ABOUT 49 YEARS, R/O SHIVNAGAR
COLONY, DISTRICT CHHINDWARA
2 M.P. No.4232/2019
(MADHYA PRADESH)
4. SMT. KRISHNA W/O LATE RAVISHANKAR,
AGED ABOUT 64 YEARS, R/O SHIVNAGAR
COLONY, DISTRICT CHHINDWARA
(MADHYA PRADESH)
5. SMT. URMILA W/O TILAK SINGH, AGED
ABOUT 59 YEARS, R/O GOVINDPUR,
DISTRICT KAKER (CHHATTISGARH)
6. NIRMALA W/O SURESH RAJ, AGED ABOUT
54 YEARS, R/O KALICHAPAR, DAMUA
NANDAN TAHSIL JUNNARDEO DISTRICT
CHHINDWARA (MADHYA PRADESH)
7. SUSHIL S/O HARIPRASAD UIKEY, AGED
ABOUT 28 YEARS, R/O GOPALGANJ, SEONI
(MADHYA PRADESH)
8. NEELAM W/O DIMAG TIKADAM, AGED
ABOUT 26 YEARS, R/O UDHAIPANI TAHSIL
AND DISTRICT SEONI (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI BRINDAVAN TIWARI - ADVOCATE FOR RESPONDENTS NO.2, 6, 7
AND 8 AND SHRI SHUBHAM RAI - ADVOCATE FOR RESPONDENT NO.3 )
.........................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This Miscellaneous Appeal under Article 227 of the Constitution
of India has been filed against the order dated 22.10.2018 passed by
Additional Commissioner, Jabalpur, Division Jabalpur (M.P.) in case
No.412/Appeal/16-17.
2. It is the case of the petitioners that the petitioners No.1 and 2 are
the step sons of Late Bunda Bai and admitted that the respondents are
the real children of Bunda Bai. The respondents filed an application
under Sections 109 and 110 of MPLR Code for mutation of their names
because of death of Bunda Bai as well as for cancelling the mutation
order passed in favour of the petitioners. It is submitted that before the
said application could be filed, the names of the petitioners were already
recorded in the revenue records being the step sons of Bunda Bai. Since
the order of mutation passed in favour of the petitioners was never
challenged in appeal, therefore, the Tahsildar by order dated 28.10.2016
rejected the application filed by the respondents.
3. The respondents preferred an appeal, which was registered as
Revenue Appeal No.12/A-6/2016-17 and by order dated 30.03.2017, the
SDO, Chourai, District Chhindwara (M.P.) dismissed the appeal filed by
the respondents.
4. Being dissatisfied by the order passed by the Tahsildar as well as
SDO, the respondents preferred an appeal, which was registered as case
No.412/Appeal/16-17, which has been allowed by the Additional
Commissioner, Jabalpur, Division Jabalpur by order dated 22.10.2018
and has held that the names of the respondents are liable to be mutated
in the revenue records.
5. Challenging the order passed by the Additional Commissioner,
Jabalpur, Division Jabalpur, it is submitted by Shri Jaideep Sirpurkar,
Advocate that it is true that the respondents are the heirs of Late Bunda
Bai and the petitioners No.1 and 2 being her step children, are not
entitled for any share in the self acquired property of Bunda Bai.
However, the only contention raised by the counsel for the petitioners is
that since the names of the petitioners were already mutated in the
revenue records, therefore, a separate application for mutation of names
of the respondents was not maintainable and if the respondents were
aggrieved by the order of mutation of the names of the petitioners, then
they should have preferred an appeal challenging the said order and in
absence of such an appeal, direction given by the Additional
Commissioner for mutation of names of the respondents in the revenue
records being the legal heirs of Bunda Bai is bad in law.
6. It is further submitted that it is well established principle of law
that even a void order is required to be challenged and in case if it is not
challenged, then it is binding on the parties.
7. Heard the learned counsel for the petitioners.
8. The Supreme Court in the case of Krishnadevi Malchand
Kamathia and others Vs. Bombay Environmental Action Group
and others reported in (2011) 3 SCC 363 has held as under:
"16. It is a settled legal proposition that even
if an order is void, it requires to be so
declared by a competent forum and it is not
permissible for any person to ignore the same
merely because in his opinion the order is
void. In State of Kerala v. M.K. Kunhikannan
Nambiar Manjeri Manikoth Naduvil [(1996) 1
SCC 435 : AIR 1996 SC 906] , Tayabbhai M.
Bagasarwalla v. Hind Rubber Industries (P)
Ltd. [(1997) 3 SCC 443 : AIR 1997 SC 1240]
, M. Meenakshi v. Metadin Agarwal [(2006) 7
SCC 470] and Sneh Gupta v. Devi
Sarup [(2009) 6 SCC 194] , this Court held
that whether an order is valid or void, cannot
be determined by the parties. For setting aside
such an order, even if void, the party has to
approach the appropriate forum.
17. In State of Punjab v. Gurdev
Singh [(1991) 4 SCC 1 : 1991 SCC (L&S)
1082 : (1991) 17 ATC 287 : AIR 1991 SC
2219] this Court held that a party aggrieved
by the invalidity of an order has to approach
the court for relief of declaration that the
order against him is inoperative and therefore,
not binding upon him. While deciding the said
case, this Court placed reliance upon the
judgment in Smith v. East Elloe RDC [1956
AC 736 : (1956) 2 WLR 888 : (1956) 1 All
ER 855] , wherein Lord Radcliffe observed :
(AC pp. 769-70)
"... An order, even if not made in good
faith, is still an act capable of legal
consequences. It bears no brand of invalidity
[on] its forehead. Unless the necessary
proceedings are taken at law to establish the
cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable
of orders."
18. In Sultan Sadik v. Sanjay Raj
Subba [(2004) 2 SCC 377 : AIR 2004 SC
1377], this Court took a similar view
observing that once an order is declared non
est by the court only then the judgment of
nullity would operate erga omnes i.e. for and
against everyone concerned. Such a
declaration is permissible if the court comes
to the conclusion that the author of the order
lacks inherent jurisdiction/competence and
therefore, it comes to the conclusion that the
order suffers from patent and latent invalidity.
19. Thus, from the above it emerges that
even if the order/notification is void/voidable,
the party aggrieved by the same cannot decide
that the said order/notification is not binding
upon it. It has to approach the court for
seeking such declaration. The order may be
hypothetically a nullity and even if its
invalidity is challenged before the court in a
given circumstance, the court may refuse to
quash the same on various grounds including
the standing of the petitioner or on the ground
of delay or on the doctrine of waiver or any
other legal reason. The order may be void for
one purpose or for one person, it may not be
so for another purpose or another person."
9. Now the only question for consideration is as to whether the
respondents were under obligation to challenge the order of mutation
passed in favour of the petitioners or not?
10. Sections 109 and 110 of MPLR Code, reads as under:
109. Acquisition of rights to be reported:
(1) Any person lawfully acquiring any right or
interest in land shall report his acquisition of
such right within six months from the date of
such acquisition in the form prescribed -
(a) to the Patwari or any person authorised
by the State Government in this behalf or
Tahsildar, in case of land situated in non-
urban area;
(b) to the Nagar Sarvekshak or any person
authorised by the State Government in
this behalf or Tahsildar, in case of land
situated in urban area :
Provided that when the person acquiring the
right is a minor or is otherwise disqualified,
his guardian or other person having charge of
his property shall make the report to the
Patwari or Nagar Sarvekshak or the person
authorised or the Tahsildar.
Explanation 1. The right mentioned above
does not include an easement or a charge not
amounting to a mortgage of the kind specified
in section 100 of the Transfer of Property Act,
1882 (No. IV of 1882).
Explanation II. A person, in whose favour a
mortgage is redeemed or paid off or a lease is
determined, acquires a right within the
meaning of this section.
Explanation III. Intimation in writing
required to be given under this section may be
given either through a messenger or handed
over in person or may be sent by registered
post or by such other means as may be
prescribed.
Explanation IV. For the purpose of this
section, "otherwise disqualified" includes the
"person with disability" as defined in clause
(5) of section 2 of the Rights of person with
Disabilities Act, 2016 (No. 49 of 2016)
(2) When any document purporting to create,
assign or extinguish any title to or any charge
on land used for agricultural purposes, or in
respect of which a khasra has been prepared,
is registered under the Indian Registration
Act, 1908 (No. 16 of 1908), the Registering
Officer shall send intimation to the Tahsildar
having jurisdiction over the area in which the
land is situated in such Form and at such
times as may be prescribed.
(3) Any person whose rights, interests or
liabilities are required to be or have been
entered in any record or register under this
Chapter, shall be bound on the requisition in
writing of any Revenue Officer, Revenue
Inspector, Nagar Sarvekshak or Patwari
engaged in compiling or revising the record or
register, to furnish or produce for his
inspection, within one month from the date of
such requisition, all such information or
documents needed for the correct compilation
or revision thereof, as may be within his
knowledge or in his possession or powers. A
written acknowledgement of the information
furnished or document produced shall be
given to the person.
(4) Any person neglecting to make the report
required by sub-section (1) or furnish the
information or produce the documents
required by sub-section (3) within the period
specified therein shall be liable, at the
discretion of the Tahsildar, to a penalty not
exceeding five thousand rupees.
(5) Any report regarding the acquisition of
any right under this section received after the
specified period shall be dealt with in
accordance with the provisions of section
110.]
110. Mutation of acquisition of right in
Field Book and other relevant land
records.-
(1) The Patwari or Nagar Sarvekshak or
person authorised under section 109 shall
enter into a register prescribed for the purpose
every acquisition of right reported to him
under section 109 or which comes to his
notice from any other source.
(2) The Patwari or Nagar Sarvekshak or
person authorised, as the case may be, shall
intimate to the Tahsildar, all reports regarding
acquisition of right received by him under
sub-section (1) in such manner and in such
Form as may be prescribed, within thirty days
of the receipt thereof by him.
(3) On receipt of intimation under section 109
or on receipt of intimation of such acquisition
of right from any other source, the Tahsildar
shall within fifteen days, -
(a) register the case in his Court;
(b) issue a notice to all persons interested
and to such other persons and
authorities as may be prescribed, in
such Form and maimer as may be
prescribed; and
(c) display a notice relating to the proposed
mutation on the notice board of his
office, and publish it in the concerned
village or sector in such manner as may
be prescribed;
(4) The Tahsildar shall, after affording
reasonable opportunity of being heard to the
persons interested and after making such
further enquiry as he may deem necessary,
pass orders relating to mutation within thirty
days of registration of case, in case of
undisputed matter, and within five months, in
case of disputed matter, and make necessary
entry in the village khasra or sector khasra, as
the case may be, and in other land records.
(5) The Tahsildar shall supply a certified copy
of the order passed under sub-section (4) and
updated land records free of cost to the parties
within thirty days, in the manner prescribed
and only thereafter close the case :
Provided that if the required copies are not
supplied within the period specified, the
Tahsildar shall record the reasons and report
to the Sub-Divisional Officer.
(6) Notwithstanding anything contained in
section 35, no case under this section shall be
dismissed due to the absence of a party and
shall be disposed of on merits.
(7) All proceedings under this section shall be
completed within two months in respect of
undisputed case and within six months in
respect of disputed case from the date of
registration of the case. In case the
proceedings are not disposed of within the
specified period, the Tahsildar shall report the
information of pending cases to the Collector
in such Form and manner as may be
prescribed.]
(8) Notwithstanding anything contained in
this Section, the Tahsildar shall make entries
in appropriate column of Khasra, within three
days from the date of receipt of intimation
from-
(a) any bank or financial institution
established and regulated under the
provisions of the Reserve Bank of India
Act, 194 (No.2 of 1934) or the Banking
Regulation Act, 1949 (No. 10 of 1949)
regarding mortgage or hypothecation, as
the case may be, including its period,
against the advances given or to be
given by it to the tenure- holder; or
(b) any Court regarding -
(i) any charge, penalty pr any liability
created or imposed by it upon
tenure-holder; or
(ii) any decree or order passed by it,
and after making such entries, the Tahsildar
shall inform the Bhumiswami, who may
object against such entries and may apply for
its correction before the Tahsildar. The
Tahsildar may after making such enquiry, as
he may deem fit, makes such correction as he
may consider necessary.
Explanation.- For the purpose of clause (b)
of sub-section (8), "Court" means any Civil,
Criminal or Revenue Court".
11. Thus, after acquiring the rights, a person can file an application
for mutation of his name. The counsel for the petitioners fairly admitted
that in a proceeding initiated by the petitioners for mutation of their
names, the respondents were not impleaded as party. Thus, it is clear
that the petitioners had obtained an order behind the back of the
respondents. If the respondents have successfully pleaded and proved
that they have acquired the rights on the death of their mother, then their
names are required to be entered in the revenue records.
12. Under these circumstances, this Court is of the considered opinion
that the Additional Commissioner, Jabalpur, Division Jabalpur did not
commit any mistake by allowing the appeal filed by the respondents
thereby directing the authorities to record the names of the respondents,
who are the real children of Late Bunda Bai.
13. Accordingly, no case is made out warranting interference.
14. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Shanu
Digitally signed by SHANU
RAIKWAR
Date: 2023.05.11 18:45:55
+05'30'
