Madhya Pradesh High Court
State Of M.P. vs Jagjiwanlal Singh & Ors. on 22 January, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 22nd OF JANUARY, 2025
WRIT PETITION No. 28092 of 2003
STATE OF M.P.
Versus
RAJMANI SINGH & ORS.
WRIT PETITION No. 28093 of 2003
THE STATE OF M.P.
Versus
SMT. MAMTA SINGH CHOUHAN & ORS.
WRIT PETITION No. 28094 of 2003
STATE OF M.P.
Versus
JAGJIWANLAL SINGH & ORS.
Appearance:
Shri Amit Sharma - Government Advocate for the State/Petitioner.
Shri Ravish Chandra Agrawal - Senior Advocate with Shri Sakel Malik -
Advocate for the respondents.
ORDER
Petitioner/State has filed these petitions under Article 226/227 of the
Constitution of India assailing the order of Board of Revenue in Case
Nos.67/3/96, 69/3/96 and 68/3/96 dated 06.11.2001.
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2. Learned Senior Counsel appearing for the respondents raised
jurisdictional issue of revision Court in entertaining revision. It is submitted
that Section 50 of the MP Land Revenue Code, 1959 prohibits exercise of
power of revision in cases where order is appealable. He draws the attention
of this Court towards Section 50 of the Code, and thereafter, what change
has been brought in said Section by various amendments. It was argued that
Section 50 of the code, 1959 since inception barred revision against an
appealable order. Proviso to Section 50 as it stood in 1959 lays down that no
application for revision shall be entertained against an order appealable
under this Code. The bar is maintained even after introduction in amendment
Act i.e. Act 24 of 1961, Act 25 of 1964. Learned Senior Counsel appearing
for the respondents has relied upon the paragraph Nos.14, 24 and 25 of
judgment passed by Apex Court reported in (2006) 12 SCC 404 in case of
Shahabad Cooperative Sugar Mills Limited Vs. Special Secretary to
Government of Haryana. Said paragraphs are quoted as under:-
"14. Chapter XVIII of the Act provides for
appeals and revision. Section 114 provides for appeal in
relation to a decision or award made under Section 103
of the Act. Admittedly, the appeal preferred by the 3rd
respondent was determined by an Additional Registrar.
Clause (c) of Sub- Section (2) of section 114 provides
that an appeal against any decision or order made by the
Additional Registrar or Registrar under Sub-Section (1)
shall lie to the Government.
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24. We have noticed hereinbefore the provisions
of the Punjab Co- operative Societies Act and Haryana
Act. Relevant provisions of Haryana Act are somewhat
different from the Punjab Act. Under the Haryana Act,
an appeal and revision is maintainable from an Award
made by an Arbitrator appointed in terms of Section
102 of the Act. The party to a reference under Section
102 would mean a party to arbitration for reference.
Section 103 provides for an appeal from an award
which may be passed by the Arbitrator appointed in
terms of Section 103 of the Act. The party to reference
under Section 102 would mean a party to arbitration for
reference. Section 103 provides for an appeal from an
Award, which may be passed by the Arbitrator
appointed in terms of Section 103 of the Act. It does not
appear that there exists a similar provision in the Punjab
Act. Another difference of significance between the two
Acts is that whereas an appeal against an order passed
by the Additional Registrar under the Punjab Act is
maintainable before the Registrar, under the Haryana
Act it would be maintainable only before the State
Government. Revisional power under the Punjab Act is
vested both in the Registrar as also the State
Government, whereas under the Haryana Act the
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revisional power is vested only in the State
Government.
2 5 . he State cannot exercise its revisional
jurisdiction if an appeal lies before it. If an appeal lies, a
revision would not lie. Admittedly, the 3rd respondent
preferred an appeal before the Registrar. Such an appeal
was purported to have been filed from an order passed
by the Board. The 3rd respondent did not invoke the
provision for arbitration. We have noticed hereinbefore
that the disputes and differences between the Society
and an employee is referable to arbitration in terms of
Section 102 of the Haryana Act. An appeal is
maintainable against an award of the Arbitrator before
the State. On this ground alone the revision petition was
not maintainable. Faced with such a situation, Mr.
Gupta contended that no appeal was maintainable
before the Registrar. The said contention of Mr. Gupta
cannot be accepted for more than one reason. The 3rd
respondent himself took recourse to the said remedy.
Having taken recourse to the said remedy and having
himself invoked Appellate jurisdiction before the
Registrar, it does not lie in his mouth to contend that no
appeal was maintainable. Before the revisional authority
he primarily questioned the order passed by the
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disciplinary Authority, as also order passed by the
Appellate Authority. It had never been the contention of
the 3rd respondent that the revision application was
filed by him directly against the order passed by the
Board of Directors. No revision application would have
even then been maintainable. Even if it would be so, the
appellant herein was entitled to raise the contention that
having regard to the provisions of Section 102 of the
Haryana Act, an appeal or a revision was not
maintainable. It is now well settled that if an appeal lies,
the revisional jurisdiction could not be exercised. {See
A.M. Chengalvaroya Chetty vs. The Collector of
Madras & Ors. [AIR 1965 Mad. 376].}"
Further, reliance is placed in case of Kiran Singh Vs. Chaman Paswan
and Others reported in AIR 1954 SC 340. It is submitted that consent of
party does not confer jurisdiction on Court.
3. Learned Government Advocate appearing for the State i.e.
petitioner opposed the submission of the learned senior counsel. It is
submitted that said ground was never taken by respondent before any Court
of Law. For the first time in final hearing of the writ petitions, said ground is
being raised by the learned senior counsel. Same is not permissible. It is
submitted that amendment has recently been introduced in year 2018 and
before that Board of Revenue had jurisdiction to exercise power under
Section 50 of the MP Land Revenue Code suo moto or on application of
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party, therefore, order may not be interfered with. It is submitted that Board
of Revenue has wrongly appreciated the fact that respondents were not
recorded as "Pawaidar" and they were entitled to be declared as "Bhumi-
Swami" of disputed land. Board of Revenue ought to have appreciated that
respondents could not have acquired the title over the land in question.
Predecessors were "Pawaidar" who lost their right by not getting land
allotted in their favour. Board of Revenue failed to appreciate the said fact,
therefore, petition may be allowed and issue a writ of certiorari to quash the
order passed by Board of Revenue contained in Annexure-P/1. Prayer is also
made that Court may also grant other relief which it deems fit and proper.
4. Heard the counsel for the parties.
5. Case is argued before this Court on question of jurisdiction which
goes to the root of the matter. No other ground was raised by respondents.
6. Brief fact of the case is that respondents i.w. Rajmani Singh and two
other, Mamta and five others and Jagjeevan Lal and six others had preferred
a revision under Section 50 of the MP Land Revenue Code before the Board
of Revenue. Analogous hearing was given to said revision as issue in
question was common. Respondents are addressed to as 'applicant' as per
their position before the Board of Revenue and petitioner as 'non-applicant'.
Applicant had filed an application before Tehsildar, District-Sidhi under
Section 158 (d)(ii) of MP Land Revenue Code in respect of Khasra Nos. 192,
193, 194, 195, 197, 198, 199, 205, 208 measuring 5.98 acre and Khasra
Nos.74/1, 83, 256, 257, 258, 260, 261, 262, 263, 264, 265, 266, 267, 268,
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269, 270, 271, 273, 274, 275, 276, 277, 278, 279, 280, 281, 286, 287, 288,
289, 290, 352, 353, 269/444, 247/445, 290/447, 283, 133/1 measuring 34.39
acre and Khsra Nos.325, 363, 364, 81/436 measuring 5.63 acres for declaring
them Bhumi-Swami of the land in question. Tehsildar vide order dated
27.05.1966 rejected their application on ground of order passed by Board of
Revenue in case No.20/04/65 wherein it was held that erstwhile "Pawaidar"
after abolition of "Pawai" if continue to remain on land then they will not be
treated as "Gair Haqdar Kashtkar" under Section 57(4) of Vindhya Pradesh
Land Revenue Tenancy Act. Said order was challenged before SDO,
Gopandas and their appeal was allowed vide order dated 15.11.1967. Order
of Tehsildar was set aside. State filed revision before Collector challenging
the said order. Additional Collector exercising power under Section 50 of the
MP Land Revenue Code set aside the order of SDO and allowed revision
vide order dated 24.02.1971 and entered disputed land in name of State
Government. Said order was challenged by applicants in revision before
Upper Commissioner. Upper Commissioner vide order dated 11.02.1972
remanded the matter back before Collector. Collector took up the matter and
affirmed its earlier order vide order dated 28.02.1974 and ordered land to be
entered in name of State Government. Said order was again challenged by
applicants before Upper Commissioner. Upper Commissioner dismissed
revision vide order dated 19.11.1974. Order of Upper Commissioner was
under challenged before Board of Revenue which was allowed vide order
dated 06.12.1976 and set aside the order and matter was remanded back to
Collector. Collector again passed fresh order on remand dated 19.09.1990
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and directed to enter the land in name of State Government. This order was
challenged in revision before Commissioner which was dismissed vide order
dated 19.07.1996 in Revision Case Nos.122/93-94, 120/93-94 and 121/93-
94. Said impugned order was under challenge before Board of Revenue.
Board of Revenue set aside the order dated 19.07.1996 and restore the order
of SDO dated 15.11.1967 and revision was allowed. Order of Commissioner
dated 19.07.1996 was set aside and order of SDO dated 15.11.1967 was
affirmed. SDO by said order dated 15.11.1967 held that applicants were
doing agriculture over the land in question and making payment to land
revenue and, therefore, they have acquired Bhumi-swami rights under
Section 158(3)(A) of the MP Land Revenue Code.
7. Section 50 which was in force at the time when revision was
considered by Additional Collector is MP Land Revenue Code amendment
Act, 1964, which is quoted as under:-
"Section 50 of the MP Land Revenue Code, 1964 is reproduced as
under:-
Revision (1) The Board or the Commissioner or
the Settlement Commissioner or the Collector or the
Settlement Officer may at any time on its/his motion or
on the application made by any party for the purpose of
satisfying itself/himself as to the legality or propriety of
any order passed by or as to the regularity of the
proceedings of any revenue officer subordinate to it/him
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call for and examine the record of any case pending
before, or disposed of by, such officer, and may pass
such order in reference thereto as it/he thinks fit:
Provided that-
(i) no application for revision shall be entertained
(a) against an order appealable under this Code;
(b) against an order of the Settlement
Commissioner under section 210;
(ii) No such application shall be entertained
unless presented within sixty days to the Commissioner
or the Settlement Commissioner, or the Collector or the
Settlement Officer, as the case may be, or within ninety
days to the Board of Revenue From the date of the
order and in computing the period aforesaid, time
requisite for obtaining a copy of the said order shall be
excluded;
(iii) no order shall be varied or reversed in
revision unless notice has been served on the parties
interested an opportunity given to them of being heard.
(2) Notwithstanding anything contained in sub-
section(1)-
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(i) where proceedings in respect of any case have
been commenced by the Board under sub-section (1) no
action shall be taken by the Commissioner or the
Settlement Commissioner or the Collector or the
Settlement Officer in respect thereof;
(ii) where proceedings in respect of any case have
been commenced by the Commissioner or the
Settlement Commissioner under sub-section (1), no
action shall be taken by the Collector or Settlement
Officer in respect thereof;
(iii) where proceedings in respect of any such
case have been commenced by the Commissioner,
Settlement Officer under sub-section (1), the Board may
either refrain from taking any action under this section
in respect of such case until the final disposal of such
proceedings by the Commissioner or the Settlement
Commissioner or Collector or the Settlement Officer, as
the case may be, or may withdraw such proceedings and
pass such order as it may deem fit;
(iv) where proceedings in respect of any such
case have been commenced by the Collector or the
Settlement Officer under sub-section (1), the
Commissioner or the Settlement Commissioner may
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either refrain from taking any action under this section
in respect of such case until the final disposal of such
proceedings by the Collector or the Settlement Officer,
as the case may be, or may withdraw such proceedings
and pass such order as it may deem fit. "
8. On going through the aforesaid provision of law, it is clear that it is
to be examined what was the law in respect of revision on 24.02.1971 when
Additional Collector exercised the power of revision under Section 50 to set
aside the order of SDO. Learned senior counsel has challenged the
jurisdiction of Additional Collector to pass the said order. It has been argued
by him that said order is nullity being without jurisdiction, therefore, if order
dated 24.02.1971 will fall to the ground then subsequent orders passed by
authority will also fail and order passed by SDO dated 15.11.1967 shall
become final. Law as on 24.02.1971 which was in existence is reproduced as
under:-
"Section 44 of the MP Land Revenue Code, 1959- Appeal and
appellate authorities-
(2) A second appeal shall lie against any order passed in first appeal -
(i) by the Sub-Divisional Officer or the Collector to the
Commissioner;
(ii) by the Settlement Officer to the Settlement Commissioner;
(iii) by the Commissioner to the Board -
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(a) if the original order has in first appeal been varied or reversed
otherwise than in a matter of cost; or
(b) on any of the following grounds and no other, namely:
(i) that the order is contrary to law or usage having the force of law; or
(ii) that the order has failed to determine some material issue of law or
usage having force of law: or
(iii) that there has been a substantial error or defect in the procedure as
prescribed by this Code, which may have produced error or defect in the
decision of the case upon merits."
9. On going through the aforesaid provision of law, it is found that
revision was not maintainable against an order which is appealable. SDO has
passed an order in first appeal, therefore, second appeal against the said order
was maintainable and Collector could not exercise its power under Section
50 of the MP Land Revenue Code and entertain application in revision.
Order dated 24.02.1971 suffers from error of jurisdiction, therefore, order is
nullity, hence, is set aside. Since, order dated 24.02.1971 was without
jurisdiction and same is set aside, therefore, subsequent orders which were
passed automatically fall to the ground and there was no requirement to
challenge the order of Collector before higher forum as order was nullity for
want of jurisdiction.
10. Considering aforesaid facts and circumstances of the case, writ
petitions filed by petitioner are dismissed upholding the order of SDO dated
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15.11.1967 and subsequent orders which were passed by various revenue
authority dated 24.02.1971, 11.02.1972, 28.02.1974, 19.11.1974,
06.12.1976, 19.09.1990, 19.07.1996 and 06.11.2001, are without jurisdiction
and fall to the ground as order dated 24.02.1971 is held to be nullity.
(VISHAL DHAGAT)
JUDGE
$A
