Sudheer Kumar Dwivedi vs The State Of Madhya Pradesh
2024 Latest Caselaw 3732 MP

Madhya Pradesh High Court

Sudheer Kumar Dwivedi vs The State Of Madhya Pradesh on 8 February, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 8 th OF FEBRUARY, 2024
                                             WRIT PETITION No. 2785 of 2024

                           BETWEEN:-
                           SUDHEER KUMAR DWIVEDI S/O SHRI MIOTHILESH
                           KUMAR    DWIVEDI, AGED ABOUT 34 YEARS,
                           OCCUPATION: PATWARI PATWARI HALKA UJJAINI
                           CIRCLE, UJJAINI TEHSIL BARGANWA, DISTRICT
                           SINGRAULI (MADHYA PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI SHANKAR DAYAL MISHRA - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 THE   PRINCIPAL   SECRETARY   REVENUE
                                 DEPARTMENT      MANTRALAYA,   VALLABH
                                 BHAWAN, BHOPAL (MADHYA PRADESH)

                           2.    COLLECTOR SINGRAULI DISTRICT SINGRAULI
                                 (MADHYA PRADESH)

                           3.    SUB DIVISIONAL OFFICER DEVSAR DISTRICT
                                 SINGRAULI (MADHYA PRADESH)

                           4.    DIVYANSHU KUMAR PATHAK PATWARI HALKA
                                 JOVGARH BLOCK DEVSAR DISTRICT SINGRAULI
                                 (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY SHRI SHIV KUMAR SHRIVASTAVA - GOVERNMENT ADVOCATE FOR
                           RESPONDENTS - STATE WITH SHRI AKHILESH KUMAR SINGH - SUB
                           DIVISIONAL OFFICER, DEVSAR, DISTRICT SINGRAULI AND SHRI
                           KAMLESH KUMAR DWIVEDI - ADVOCATE FOR THE CAVEATOR)

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

Shri Akhilesh Kumar Singh, Sub Divisional Officer, present in Court, submits that there were complaints both against the petitioner and the private respondent. He had directed the Tahsildar Tahsil Bargawan, on 12.01.2024, to take disciplinary action against the Patwari in the matter.

There is no mention of this fact that petitioner was transferred on the basis of a complaint. Impugned order is silent on this aspect. Impugned order dated 29.01.2024, does not make mention of this fact, but it says that "gYdksa ds ;qfDr&;qfDr dze esa iVokjh gYdksa ds lqpk: O;oLFkk dh nf "V ls rglhy nsolj ,oa cjxaok ds iVokjh gYdksa dh fuEukuqlkj O;oLFkk dh tkrh gS ".

Shri Akhilesh Kumar Singh has produced Gazette Notification dated

20.12.2022, namely, M.P. Bhu Rajasva Sanhita (Dwitiya Sanshodhan) Vidheyak, 2022.

As per this Gazette Notification, in terms of the provisions contained in Section 129 of the Land Revenue Code, 1959, in the matter of demarcation, it is provided that Tahsildars appoint Revenue Inspector or City Surveyor for carrying out the demarcation. With a view to expedite the proceedings, a decision was taken that after making appropriate amendment in Section 129, Patwari be added along with Revenue Inspector and City Surveyor. He has produced Gazette Notification amending Section 129 of the M.P. Land Revenue Code. They are taken on record.

As per the contention made by Shri Akhilesh Kumar Singh, Sub Divisional Officer, that the petitioner was transferred from Halka Ujjaini to Jogarh, on account of certain complaints as were received by him against said Patwari, when taken into consideration, then the transfer order though makes a mention of the fact that it is on account of administrative requirement, but that

part is factually incorrect in terms of the statements made by the concerned SDM. The order of transfer in terms of the statements given by Shri Akhilesh Kumar Singh, Sub Divisional Officer, becomes penal in nature. The law in regard to penal transfer is very clear.

An order of transfer which is used as a cloak for punishment will be a mala fide exercise of power, as held by the Calcutta High Court in re: C.C. Kar Alias Chandi Charan Kar Vs. State of West Bengal [1985 (II) CHN 20. This judgment refers to the observations of Lord Denning MR in Merricks Vs. Noti-Bower [(1964) 1 All ER 717 at 720] that "the range of punishment does not include transfer from one place to another. There is no power to transfer by way of punishment". This principle has been recognized by the Supreme Court in the case of The Management of the Syndicate Bank Ltd. Vs. A Workman (AIR 1966 SC 1283) and also in case of State of Uttar Pradesh Vs. Jagdeo Singh (AIR 1984 SC 1115). When these facts are taken into consideration, then as per the submission of the Sub Divisional Officer, since the transfer is used as a punitive major, it cannot be given seal of approval.

Shri Kamlesh Kumar Dwivedi, learned counsel for the caveator, places reliance on the judgment of this Court in Balram Dhakar Vs. State of M.P. and another [2016 SCC OnLine MP 12002], wherein, it is held that mere

change of charge from one Patwari Halka to another cannot be termed as transfer in terms of the definition brought to the notice of this Court by the learned counsel for the petitioner.

However, facts are that respondents-State has produced copy of Gazette Notification dated 22.10.2020 as Annx.A/1 along with the affidavit of the Collector Singrauli. In this Gazette Notification, notifying Navin Bhu Abhilekh

Niyamawali Bhag-1, Bhag-2 w.e.f. 22.10.2020 in Chapter-I at Serial No.7, transfer is mentioned and it reads as under :-

"7. fdlh iVokjh dk ,d rglhy ls nwljh rglhy esa rFkk ,d ftys ls nwljs ftys esa LFkkukUrj.k] e/;izns'k 'kklu }kjk le;≤ ij tkjh LFkkukUrj.k uhfr ds izko/kkuksa ds rgr fd;k tk;sxkA iVokjh dh rglhy esa izFke inLFkkiuk ds le; ,oa le;≤ ij mlds gYds ds izHkkj esa vko';drk vuqlkj ifjorZu mi[k.M vf/kdkjh ¼jktLo½ }kjk fd;k tk ldsxkA"

In view of this, when change of charge from one Halka to another has been considered and defined under the definition of transfer, then the order passed in October 2016, will have no application in view of the amended Bhu Abhilekh Niyamawali.

At this stage, Shri Kamlesh Kumar Dwivedi, learned counsel places reliance on the judgment of Coordinate Bench in Pradeep Sharma Vs. State of Madhya Pradesh and others [2022 SCC Online MP 565] and also in case of Brajesh Singh Tomar Vs. State of Madhya Pradesh and others [2020 SCC Online MP 3041].

As far as judgment in case of Brajesh Singh Tomar (supra), is concerned, it was decided on 29.03.2022, whereas, the amended Bhu Abhilekh Niyamawali was notified on 22.10.2020.

As far as law laid down in case of Pradeep Sharma (supra) is concerned, though learned counsel for the petitioner submits that the said provision has been quoted in the judgment, but perusal of the judgment reveals that the Coordinate Bench had quoted the Bhu Abhilekh Niyamawali, Bhag-1, issued by the Revenue Department on 24.05.2018, whereas, the new Niyamawali which is in force at the time of effecting transfer of the present petitioner and the private

respondent was notified on 22.10.2020 and transfer has been made in terms of the said Niyamawali as is submitted by the Collector in his affidavit to point out that transfer can be made by the Sub Divisional Officer in the form of change of charge from one Halka to another. Hon'ble Coordinate Bench has not held that the change of charge from one Halka to another will not fall within the definition of transfer, but in para 8 of the judgment, it has held as under :-

"8. Perusal of clause 5 (LFkkukUrj.k) indicates that SDO can very well as per requirement change halka of Patwari in a Tahsil from time to time. Not only this, since clauses are in respect of qualification and penalty related instructions for Patwari, therefore, it was expected from the petitioner that he must have gone through the same but by ignoring the same, plea of petitioner does not stand to law and logic both."

There is no whisper in the said judgment that change of Halka will not be part of the definition of transfer as is given in para 5 of the policy of 2018, which is identically worded as is given in the definition of 2020.

In fact, the Coordinate Bench has held that transfer is an incidence of service and no one much less petitioner has any vested right to be posted at a particular place of posting and, therefore, in that backdrop it has refused to show indulgence in the matter of judicial review of transfer. Therefore, the plea raised by Shri Kamlesh Kumar Dwivedi, that Coordinate Bench has held that change of charge from one Halka to another will not be termed as transfer, is not made out from the judgment rendered in case of Pradeep Sharma (supra).

Thus, when transfer is defined and change of Halka also amounts to transfer as has been admitted by Collector Singrauli, by quoting relevant provision of the policy, then transfer being stigmatic on account of receiving certain complaints and then without inquiring into such complaints and giving an

opportunity of hearing to the petitioner, in regard to the allegations made against him, will be a stigmatic transfer order and, therefore, such stigma cannot be allowed to be continued to attach to the petitioner.

Accordingly, transfer order is quashed. Respondents will be free to conduct departmental enquiry against the petitioner and take action in accordance with law.

In above terms, petition is allowed and disposed of.

(VIVEK AGARWAL) JUDGE A.Praj.