Madhya Pradesh High Court
Bihari vs Bhagga on 7 August, 2024
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7 th OF AUGUST, 2024
MISC. PETITION No. 6054 of 2019
BIHARI
Versus
BHAGGA
Appearance:
Shri Mahendra Kumar Jain, counsel for the petitioner.
Shri Mukund Choudhary, counsel for the respondent [R-1][LR/S].
Shri Ankit Verma, counsel for the Respondent [R-1][LR/S].
ORDER
This petition under Article 227 of Constitution of India is filed by
petitioner being aggrieved by order dated 13.08.2019 (Annexure-A/1) passed
by the Additional Commissioner, Ujjain Division, District-Ujjain (M.P.) in
Case No.1292/Appeal/2017-18, whereby order dated 13.07.2018 passed by
Sub Divisional Officer (Revenue), Sub-Division, Nagda, District-UJjain, in
case No.69/Appeal/17-18 has been set-aside. The Tehsildar, Tappaunhel,
Tehsil-Nagda, District-Ujjain has rejected the application filed by the
petitioner on 31.05.2018 in Case No.0009A-70/2017-2018.
(2) The Petitioner has filed this petition under Article 227 of the
Constitution of India challenging the orders passed by the Revenue
Authorities under the Code, namely Collector, Sub Divisional Officer
(Revenue) as well as Tehsildar, but none of them have been impleaded as
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respondent in this petition.
(3) Counsel for the petitioner submits that these authorities are not
supposed to file a reply in this petition to defend their impugned orders
hence they are not to be impleaded as respondents. Even otherwise, this is a
petition under Article 227 of the Constitution of India in which subordinate
courts and Tribunals are not liable to file a reply or return.
(4) In support of his contention, counsel has placed reliance on a
judgment passed by the Apex Court in case of Jogendra Sinhji Vijay Singhji
v. State of Gujarat & others reported in (2015) 9 Supreme Court Cases 1
(para 43) and a judgment of Full Bench of Bombay High Court in case of
Motilal S/o Khamdeo Rokde & others v. Balkrushna Baliram Lokhande
(since deceased) through L.Rs. Rokde and others reported in 2020 (1)
Maharashtra Law Journal 110 [paras 14, 15, 17, 18, 20 and 22 (4)].
(5) The above submission is liable to be rejected by the Authorities
established under the M.P. Land Revenue Code, 1959 neither the Court nor
the Tribunal. They are only a quasi judicial statutory authority and
sometimes they are called upon to file a reply in a writ petition to justify
their action. They are also liable to be impleaded for the purpose of
summoning of record, issuance of appropriate direction, for spot inspection
etc. In the case of Jogendra Sinhji Vijay Singhji v. State of Gujarat & others
(supra), it is observed that every adjudicating authority may be nomenclature
as a tribunal but the said authority(ies) are different than pure and simple
adjudicating authorities and that is why they are called the authorities. An
Income Tax Commissioner, whatever rank he may be holding, when he
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adjudicates, has to be made a party, for he can defend his order. Therefore,
the proposition that can safely be culled out is that the authorities or the
tribunals, who in law are entitled to defend the orders passed by them, are
necessary parties and if they are not arrayed as parties, the writ petition can
be treated to be not maintainable. The tribunal or authority is required to
defend his own order, it is to be made the party, failing which, the
proceedings before the High Court would be regarded as not maintainable.
(6) Similar issue came up for consideration before Five Judges bench
of this Court in case of Manoj Kumar v. Board of Revenue, Writ Appeal
No.395 of 2007 decided on 02.11.2007 , reported as AIR 2008 MP 22 = 2007
(4) MPHT 545 and Five Judges Bench have drawn a conclusion that the
power to issue the writ is original and the jurisdiction exercised is original
jurisdiction. The proceedings under Article 226 of the Constitution are in
exercise of original jurisdiction of the High Court whereas the proceedings
initiated under Article 227 of the Constitution are supervisory in nature.
When under Article 226, a writ is issued, it is issued in the exercise of
original jurisdiction whether against a Tribunal or Inferior Courts or
Administrative Authorities. On scrutiny of Article 227 of the Constitution of
India, it would be crystal clear that the power of superintendence conferred
on the High Court is a power that is restricted to the Court and Tribunal in
relation to which it exercises jurisdiction.
(7) The Revenue Authorities are not subordinate Court or Tribunal to the
High Court. Therefore, orders passed under the provisions of M.P. Land
Revenue Code, 1959 are liable to be challenged only by writ petition filed
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under Article 226 of the Constitution of India not by way of Miscellaneous
Petitioner under Article 227 of the Constitution of India.
(8) High Court of Madhya Pradesh Rules, 2008 also mandates
registration of a writ petition filed under Article 226 of the Constitution of
India and registration of a miscellaneous petition when the petition is filed
under Article 227 of the Constitution of India i.e. Rule 30 and 30-B
respectively of Chapter II. Therefore, in view of the above, the present
petition under Article 227 of the Constitution of India is not maintainable.
(9) The petition also suffers from a defect of non-joinder of necessary
parties. The petitioner is claiming relief of remand of the matter to the
Tehsildar to conduct a fresh spot inspection. The said order can be issued
only under Article 226 of the Constitution of India because the Tehsildar is
not a subordinate Court or a Tribunal and also not presided over by the
Judicial Officer.
(10) Therefore, instead of carrying out the amendment and converting
this petition M.P. into a W.P., the same is hereby dismissed. However, the
petitioner shall be at liberty to file a Writ Petition. Certified copy, if any,
filed with this miscellaneous petition be returned to the petitioner.
(11) Accordingly, Miscellaneous Petition No.6054 of 2019 is dismissed
with the above liberty.
Pending interlocutory application, if any, stands disposed of.
(HIRDESH)
JUDGE
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Arun/-
