Madhya Pradesh High Court
Mirza Rizvaanur Rehman vs State Of M.P on 20 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Writ Petition No.476 of 2012
MIRZA RIZVAANUR REHMAN
Vs.
STATE OF M.P AND OTHERS
APPERANCE
Shri Anand V. Bhardwaj - Advocate for the petitioner.
Shri Saket Udeniyda - Govt. Advocate for the State.
Shri R.K. Upadhyay - Advocate for the intervenor.
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Reserved on : 05/05/2025
Delivered on : 20/5/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition, under 226/227 of the Constitution of India,
has been filed by the petitioner against the order dated 24.12.2011
passed by Tashsildar, Sironj in Case No.11/A-6/11-12 whereby the
Tahsildar had reviewed its own order dated 21.02.1989 by which
mutation was allowed in favour of the present petitioner. The action of
the Tahsildar and Authorities granting permission for review, has been
assailed on the ground that the said action was barred by gross delay
and against the law laid by this Court in the matter of Ranveer Singh &
Another vs. State of M.P. reported in 2010 RN 409.
2. Before adverting to the merits of the matter, this Court deems it
necessary to analyze the facts of the case, which are narrated as under:
2.1. The present petition is with respect to Survey No.382, ad-
measuring 4.351 hectares situated at Patwari Halka No.4, Sironj,
District Vidisha. Initially, the property was owned by one Smt. Malika
Mukhtaaru Jujmaani Begum Sahiba (for short 'Begum Sahiba'), resident
of Tonk Rajasthan and she was recorded as Bhumiswami/owner of
Survey Nos.448, 449, 462 and 463 respectively and her name was
mentioned in the concerned Khata from Samvat 2017 till Samvat 2026
(1969-1970). In the settlement, Survey Numbers were changed and out
of the above mentioned four survey numbers, Survey Nos.382 and 393
were carved out.
2.2. The present petitioner moved an application under Section 110 of
the Madhya Pradesh Land Revenue Code, 1959 (for short 'the Code') on
19.02.1989 for mutation of his name in the revenue records, alleging
that Begum Sahiba had orally gifted by way of Hiba as per
Mohammedan Law, Survey No.382 in his favour on 15.01.1985 and
03.01.1987 respectively. On the basis of the said application,
proceedings were initiated before respondent No.4/Tahsildar and after
all the due formalities, proclamation was issued vide order dated
21.02.1989. Since no objections were received, ultimately the order was
passed on 20.12.1989, by which a plot, which was sold by Begam
Sahiba to one Alias Khan, out of said Survey number, was recorded in
his name and rest of the property was recorded in the name of present
petitioner.
2.3. In the said proceedings, even Begum Sahiba appeared and
admitted that the oral gift was given in favour of the present petitioner.
Since one of the portions (i.e. Plot No.2) was sold to Alias Khan,
batankan of Survey No.382 was carried out and the name of Alias Khan
was recorded on Survey No.382/2 and the name of the petitioner was
recorded on Survey No.382/1, ad-measuring 4.333 hectares.
2.4. On 26.08.1994, a notice was issued by respondent No.3/Collector,
Vidisha/Land Acquisition Officer, for acquiring the land of the
petitioner under the Land Acquisition Act, 1894 and further, the
petitioner was noticed for hearing on the objections, if any preferred
against him against the acquisition, but subsequently, the said land
proceedings were dropped.
2.5. In respect of the same property, a dispute arose between the
petitioner and his uncle in the year 1997 and uncle of the petitioner filed
a Civil Suit No.47-A of 2001 on 27.06.1997 before the Court of Civil
Judge, Class-I, Sirnoj, District Vidisha for declaration and partition. The
said suit was ultimately compromised and it was agreed that the uncle
of the petitioner, who was plaintiff in the suit, would be entitled for
1/4th share of Survey No.382/1/1, ad-measuring 4.251 hectares and the
petitioner would be entitled for 3/4th share thereof and the compromise
decree thereon was recorded on 26.02.2004. On the basis of the said
judgment and decree, the Tahsildar made entries in the revenue records
vide order dated 20.04.2006.
2.6. The petitioner thereafter applied for diversion under Section 172
of the Code and vide order dated 05.01.2008 in Case No.9/A-2/2007-
08, the diversion was accepted and the order was passed with regard to
Survey No.382/1/1, ad-measuring 0.126 hectares.
2.7. The Tahsildar vide notice dated 20.04.2011 called upon the
petitioner to show cause as to why the proceedings under the
Municipalities Act, 1961 and M.P. Municipal Council (Registration of
Colonizer Terms and Conditions) Rules, 1998 be not taken against him,
he allegedly was found to be indulged in illegal colonization. The said
notice was issued on the proceedings initiated by the Collector, Vidisha
and the petitioner filed a detailed reply to the said notice. Thereafter, a
final order dated 16.06.2011 was passed and the petitioner was found
guilty of violating the Acts of 1961 and 1998 respectively and the
petitioner was further directed to restore the nature of the land within 03
days.
2.8. Apart from the aforesaid proceedings, the Tahsildar also started
separate proceedings for reviewing its order dated 20.12.1989 and in
that regard, permission was sought from the Sub-Divisional Officer,
Sironj, which was granted vide order dated 21.06.2011 and accordingly,
the suo motu review was registered.
2.9. A reply, which was called from the petitioner, was submitted on
26.07.2011 and on 13.09.2011, it was submitted by the petitioner that
the reply be taken as his arguments and the matter be finally decided,
thus, the matter was fixed for orders on 28.09.2011, but on the said date,
no order was passed and on 14.12.2011, behind the back of the
petitioner, an application was received alongwith some documents not
known to the petitioner. On the basis of the said application and the
documents appended thereto, final order was passed on 24.12.2011, by
which the land bearing Survey No.382, ad-measuring 4.351 hectares
was declared to be of the ownership of the State. Being aggrieved by the
aforesaid order, the present petition has been filed.
ARGUMENTS
3. Learned counsel for the petitioner has strenuously argued that the
very order dated 01.06.2011 passed by the S.D.O., on a request made by
the Tahsildar had granted permission for review of the order of mutation
dated 20.12.1989, without issuing any notice to the petitioner and
affording opportunity of being heard, as the very order granting
permission to review would have adversely affected the interest of the
petitioner and reopening of the matter concluded years back, would not
have been passed without the petitioner being heard.
4. Learned counsel further argued that under the provisions of
Proviso 1 to Section 51 of the Code, sanction for review by Board or
any other Revenue Officer cannot be granted without any notice to and
hearing other side. The scheme of Section 51 and the principles of
natural justice if are taken up together, makes it clear that opportunity of
hearing is to be granted to the other side so that it can convince the
sanctioning authority that case on hand is not worth grant of sanction
for review and also he can convince the authority that because of the
lapse of time the authority should not now exercise the powers of
review of granting the sanction.
5. It was further argued that if opportunity would have been granted
to petitioner, then he would have convinced the authority that the case
on hand is not such where absolute illegality has been committed and
possibility of the other view would not justify for grant of sanction for
review, but in the proceedings conducted before SDO granting
permission to review, no notices were issued and no opportunity of
hearing was granted to the petitioner, which had made the very order of
sanction vulnerable and liable to be set aside and as a result thereof, the
entire proceedings conducted thereafter of review by the Tahsildar had
become redundant. In support of his arguments, learned Counsel has
placed reliance on the orders passed by this Court in the matters of
Biharilal vs. State of M.P. & Others reported in 2010 Revenue Niray
(R.N.) 124 and Shaheed Anwar vs. Board of Revenue & Another
reported in 2000 R.N. 76.
6. Learned counsel further argued that apart from the aforesaid legal
bar to the proceedings conducted by the Tahsildar, suo motu reviewing
its earlier order dated 20.12.1989, from the proceedings before it
conducted on 13.09.2011, it would be reflected that on the said date, the
counsel for the petitioner had intimated the Tahsildar that he doesn't
want to submit any arguments rather he asked to treat the reply to the
review to be his arguments, and though the matter was closed for the
orders, no order was passed till 24.12.2011 and before passing of the
final order on 14.12.2011, application in the form of objections
submitted by one Aftab Ali, S/o Masoom Ali was taken on record and
was made one of the basis for passing final order, which was total
perverse and illegal procedure adopted by the Tahsildar, as the
petitioner was never put to notice of the objections filed on 14.12.2011
and while passing the final order, the objections were made one of the
basis which had made the order passed by the Tahsildar bad in law and
therefore, deserves to be quashed.
7. Learned counsel had further argued that the State Reorganization
Act, 1956 came into effect from 31.08.1956 and new State of Madhya
Pradesh was formed in terms of Section 9 of the Act of 1956 and Tonk
which was earlier in Rajasthan, as per Section 9(1)(C) came under the
territory of Madhya Pradesh and w.e.f. 15.09.1959, the provisions of
Madhya Pradesh Land Revenue Code, 1959 became effective in State of
M.P. and prior to that, the State was governed by the provisions of
Madhya Pradesh Land Revenue Code, 1954, which came into effect
from 05.02.1955, also, the Constitution of India came into effect from
26.01.1950 and the order under review is of the year 1989, therefore,
Khandan Rules (Kaidas) which were applicable to the Tonk State prior
to coming into force of the Constitution would not be applicable and
passing of the order by the Tahsildar on the basis of those Rules is
without any basis and per se illegal and apart from the aforesaid, late
Begam Sahiba had given the land in question by way of an indisputed
oral gift to the petitioner in the year 1985-1987 and on the basis
whereof, an application for mutation was moved by the petitioner on
19.02.1989, thus, in the years 1985-87 or 1989, the Khandan Rules
(Kaidas) which were having governing force over the Tonk State prior
to coming into existence of Constitution could not be said to have any
applicability, thus, the order passed on the aforesaid basis cannot be said
to be legally sustainable.
8. Learned counsel has also argued that the exercise of suo motu
powers under Section 51 of the Code are at a very belated stage,
therefore was hit by the legal dictate of the Full Bench of this Court in
the matter Ranveer Singh & Another vs. State of M.P. (supra)
wherein it has been held that suo-motu powers can be exercised within
180 days from the date of detection of illegality, impropriety or
irregularity communicated by the revenue authorities and such period of
180 days is an upper ceiling limit and as the order dated 20.12.1989 was
very much within the knowledge of the revenue authority since the date
it was passed by the Tahsildar himself and thereafter, the land
acquisition proceedings were also initiated, the civil suit was filed
wherein the State was a party, diversion order was passed and
proceedings under the Act of 1961 were initiated, thus the very
proceedings of suo motu of the review of its order dated 20.12.1989
being barred by limitation could not have been carried out.
9. It was also argued that the order of suo motu review dated
24.12.2011 has been passed against a dead person, as Smt. Begum
Sahiba had already expired on 02.07.1994, thus, the proceedings against
the dead person itself makes the order nullity.
10. On the basis of the aforesaid arguments, it was prayed that the
present petition be allowed and the impugned order dated 24.12.2011 be
set aside.
11. On the other hand, learned Govt. Advocate for the State as well as
counsel for the intervenor had opposed the prayer so made by counsel
for the petitioner and had submitted that as per the laws and customs of
Tonk State, the widow of any Nawab didn't have any right to make Hiba
to anyone and after the death of Nawab Ismail Ali Khan in accordance
with the provisions contained in the covenant entered between the Govt.
of India and the Rulers of State of Tonk in accordance with the customs
and convention of the Tonk Family and the law of primogeniture, all the
movable and immovable properties of late Nawab rested with the
successor Nawab and by such way, father of the intervenor, namely,
Nawab Mohd. Masoom Ali Khan became the Nawab and after his death
in the year 1993, the present intervenor became the legal successor of
late Begam Sahiba and got all the right, title and interest in the said
property.
12. Learned counsels had placed reliance on the Khandan Rules
(Kaidas) referred to by the Tahsildar in its order and had submitted that
the said Kaidas clearly stipulated that late Begam Sahiba did not have
any right to transfer the property in question to anyone, thus the SDO
had rightly gave permission to review the order dated 20.12.1989 and
thereafter, the Tahsildar had rightly passed the impugned order dated
24.12.2011.
13. While placing reliance on the order passed by this Court in the
matter of Sabina Park Resorts & Tours Pvt. Ltd. vs. State of M.P. &
Others reported in 2012(1) MPLJ 562, it was had submitted that the
issue in respect of limitation for reviewing an order has already been
decided, therefore, the petitioner cannot take shelter of the decision of
the Full Bench of this Court in the matter of Ranveer Singh & Another
vs. State of M.P. (supra) by misinterpreting it and cannot derive benefit
from it, thus, the contention of the petitioner with regard to exercise of
suo motu review being barred by limitation has no force.
14. On the basis of the aforesaid arguments, it was submitted that the
present petition being devoid of any merit is liable to be dismissed.
15. Heard counsel for the parties and perused the record.
16. Though the order dated 21.06.2011 passed by the SDO granting
sanction for review has not been challenged in specific terms, but as the
said order has legal ramification and would touch the very order of
review passed by the Tahsildar dated 24.12.2011, this Court deems it
expedient to address upon its validity. The law with regard to the
procedure which is to be adopted while granting sanction for review
under Section 51 of the Code is very well settled. In this regard, it
would be profitable to had reliance in the matter of Shaheed Anwar
V/s. Board of Revenue (supra) in which it has been held that sanction
for review cannot be granted without notice and hearing the other side.
It has been held as under :-
"5. We find some substance in the plea. Even if
it was assumed that the power of review was
available in the given case still appellant deserved
to be put on notice and afforded an opportunity of
being heard. Because no order affecting his interests
and reopening the exchange deal concluded years
back could be passed at his back and without
affording him opportunity of being heard.
Moreover, it would be innocuous to provide
him such opportunity in the given facts and
circumstances of the case which would cause
prejudice to none, least of all to the interests of the
State."
17. In the matter of Biharilal V/s. State of M.P. & Others (supra),
also it has been held that opportunity of hearing is required to be
granted to other side before granting sanction for review. It has been
held as under :-
"12. It is further to be seen that a division
Bench of this Court in the matter of Shaheed Anwar
v. Board of Revenue and another 2000 Revenue
Niray 76 has observed that under section 51 proviso
1 of M.P. Land Revenue Code, 1959 sanction for
review by Board or any other Revenue Officer
cannot be granted without any notice to and hearing
other side. A juxtapose reading of the judgment in
the matter of Ravi Narayan and Shaheed Anwar
would spell out that review for sanction cannot be
granted without affording an opportunity of hearing
to the other side and the review cannot be made
mechanically. The scheme of section 51 and the
principles of natural justice if are taken up together
they will make it clear that opportunity of hearing is
to be granted to the other side so that it may
convince the sanctioning authority that case on
hand is not worth grant of sanction for review. He
can also convince the authority that because of the
lapse of time the authority should not now exercise
the powers of review of granting the sanction. The
other side can well convince the authority that the
case on hand is not such where absolute illegality
has been committed and possibility of the other view
would not justify grant of sanction for review."
18. From the aforesaid enunciation, it can be said that sanction for
review cannot be granted without affording opportunity of hearing to
the party against whom, it was passed, thus, before reviewing the order
opportunity of hearing has to be granted. In the present case, prior to
granting sanction for review by the SDO, no notice was issued to the
petitioner and in a very cursory and mechanical manner, permission for
review was granted.
19. Apart from the aforesaid, though the matter was closed for orders
on 13.09.2011 for 28.09.2011, on 14.12.2011, an application in the form
of objections filed by Nawab Aftab Ali was taken on record and with
regard to the said objections, the petitioner was never put to notice.
20. Since the original order granting sanction to review dated
21.06.2011 was passed without affording any opportunity of hearing to
the petitioner in the light of orders passed by this Court in the matters of
this Court in the matters of Biharilal vs. State of M.P. & Others
(supra) and Shaheed Anwar vs. Board of Revenue (supra), the same
cannot be sustained. Apart from the aforesaid aspect, this Court also
finds that initiation of the suo-motu review is attributed to an order-
sheet of the Collector dated 28.02.2011 wherein directions were issued
to carry out an inquiry with regard to land in dispute regarding
development of illegal colony and in the inquiry so conducted, it was
found that prima facie mutation on the basis of Hiba to the present
petitioner was without any basis and was against the legal position,
which had resulted in revenue loss to the State, thus, had sought
permission to review the order of mutation dated 20.12.1989 vide
proceedings dated 21.06.2011. On the same day, the S.D.O. granted
permission/sanction for review. Prior to the proceedings dated
21.06.2011, for the same land, notice for acquisition under the Land
Acquisition Act dated 26.08.1994 was issued to the petitioner by the
Collector but subsequently, those proceedings were dropped.
21. In the year 1997, uncle of the petitioner had filed a suit for
declaration and partition in which the State was also party, which was
compromised between them and the petitioner parted with 1/4th share
property to his uncle and thereafter, on the basis of that compromise
decree dated 26.02.2004, the revenue records were corrected. The
petitioner thereafter applied for diversion of part of Survey No.382/1/1,
ad-measuring 0.126 hectares, under Section 172 of the Code and vide
order dated 05.01.2008 in Case No.9/A-2/2007-08, the diversion was
accepted and the order was passed and thereafter, notices under the Act
of 1961 and 1998 were issued to the petitioner on 20.04.2011, thus
when the entire matter was going through the eyes of the revenue
authorities much prior to the notices issued by the Collector and inquiry
was conducted on 28.12.2011, it cannot be said that the authorities were
not having any knowledge to the facts of the case, thus, the permission
for suo motu review of the order dated 20.12.1989 sought on
21.06.2011 was not within limitation in the light of the judgment of Full
Bench of this Court in the matter of Ranveer Singh & Another vs.
State of M.P.(supra).
22. The reliance placed by the Govt. Advocate for the State in the
matter of Sabina Park Resorts & Tours Pvt. Ltd. vs. State of M.P.
(supra), this Court finds that the said judgment was based upon theory
of fraud played by the appellant therein and by some illegal means had
tried to get ownership of the land in question therefore, on the concept
of fraud which vitiates everything, it has been held therein that question
of limitation would not arise, as has been rendered in the matter of
Ranveer Singh & Another vs. State of M.P. (supra). But herein case,
there is no question of fraud being played by the petitioner nor any
arguments in that regard have been raised by the respondents.
23. Accordingly, on both counts, as observed above, the order passed
by SDO dated 21.06.2011 granting permission/sanction to review and
consequently, the order of review passed by the Tahsildar dated
24.12.2011 don't withstand the judicial scrutiny and are hereby set
aside.
24. Since this Court has set aside the order of the Tahsildar on the
ground of non-adherence of principles of natural justice while granting
sanction/permission for review and on the ground of limitation, there is
no need or requirement to be gone into merits of the matter.
25. Accordingly, the present petition is allowed and disposed of in
above terms.
(Milind Ramesh Phadke)
Judge
PAWAN
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Date: 2025.05.21 11:45:32 +05'30'
