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1971 DIGILAW 80 (MP)

Khumansingh Sandersingh v. Dhansingh

1971-04-29

A.P.SEN, K.K.DUBE

body1971
ORDER A.P. Sen, J. This is an application of Khumansingh, Ex-Zamindar of village Mahu, under Article 226 of the Constitution, for a direction to quash and order of the Board of Revenue, Madhya Pradesh, dated 20th March 1969, whereby it set aside an order of the Tahsildar, Pargana Basoda, dated 28th December l960, passed under Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950, in exercise of its(sic) suo motu powers of revision, on the ground that the Tahsildar had no jurisdiction to pass the order, as the application for correction of the entries was barred by limitation. The facts have been stated by the Board of Revenue in great detail and we do not, think it necessary to repeat them here. The decision of the Board of Revenue has been assailed before us on the following grounds: (i) Under the definition of the term "Khudkasht" in Section 2(c) of the Madhya Bharat Zamindari Abolition Act, it does not envisage that there should be Cultivation of the whole field taken as an unit. Even if the field is partly under cultivation, the whole of it will retain its character as "khudkasht" Land of the ex-proprietor. A part of it even if uncultivated could not be resumed by the Government. (ii) On a true construction of the provisions of Section 4(2) of the Madhya Bharat Zamindari Abolition Act, 1951, it would be clear that emphasis was laid on the words "so recorded" in the annual village papers before the date of vesting, and inasmuch as the entire Khasra No. 1230 was recorded as "Khudkasht" in the Khasra for Samvat 2007, the whole land was saved to the Petitioner under that section. There is no difference in the scheme of the Madhya Bharat Zamindari Abolition Act, 1951 and the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 and therefore, Khasra No. 1230 must be treated to be the Khudkasht of the Petitioner within the meaning of Section 4(2) of the Act, following the view in Bindrawan v. M.P. State 1967 Revenue Nirnaya 109 (iii) The Board of Revenue had no jurisdiction to invoke its suo motu revisional powers under Section 51 of the Madhya Pradesh Land Revenue Code, 1959, which, according to the view expressed in Mst. Asaf Jahan Begum v. Mst. Bashir Begum 1964 MPLJ 156: 1964 RN 89, had no application to the pending proceedings. Asaf Jahan Begum v. Mst. Bashir Begum 1964 MPLJ 156: 1964 RN 89, had no application to the pending proceedings. The Code came into force on 2nd October 1959, when the proceedings under Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 were pending. The Board of Revenue could, therefore, if at all, exercise its revisional jurisdiction under Section 39 of the Act. Their Lordships of the Supreme Court in State of Gujarat v. Patel Raghav Natha and others AIR 1969 SC 1297 while interpreting Section 211 of the Bombay Land Revenue Code, 1879, which was in pari materia with Section 39 of the Madhya Bharat Land Revenue and Tenancy Act, 1950, stated that such powers had to be exercised within a reasonable time. The Board of Revenue, therefore, could not have, after a lapse of 10 years, set aside the Tahsildar's order. (iv) Even otherwise, a change of view of law is not a ground for exercising suo motu powers of revision. The Tahsildar, by his order dated 28-12-1960, had allowed correction of the entries as prayed for under Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950, following the prevailing view of the Board of Revenue, Madhya Bharat, in Sukhlal v. Gyanbai 4. 1954 RN 34 and Harpal v. Mst. Radha 1954 RN 341 merely because it later changed its view, on a new construction of Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950. Such a change in view, would not, ipso facto, make the order of the Tahsildar a nullity nor furnish the Board of Revenue a ground for setting it aside in revision suo motu. We are of the view that there is no merit in these contentions. The schemes under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 and under the Madhya Bharat Zamindari Abolition Act, 1951, were entirely different. For the sake of convenience we reproduce below the relevant sections: M.P. Abolition of Proprietary Rights Act, 1950. Madhya BharatZamindari Abolition Act, 1951. Section 2(g). The schemes under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950 and under the Madhya Bharat Zamindari Abolition Act, 1951, were entirely different. For the sake of convenience we reproduce below the relevant sections: M.P. Abolition of Proprietary Rights Act, 1950. Madhya BharatZamindari Abolition Act, 1951. Section 2(g). Section 2(c) "Home-farm" means,- "Khudkasht" means land cultivated (1) in relation to the Central Provinces, (1) land recorded as Sir and Khudkasht in the name of a proprietor in the annual papers (2) in relation to merged territories, that part of the land under the personal cultivation of the proprietor on the date of Vesting which was similarly under cultivation in the agricultural year 1949-50 and which he is entitled to retain on the termination of proprietary tenure under any instrument having the force of law and applicable to such tenure by the Zamindar himself or through employees or hired labourers and includes Sir land; "M.P. Abolition of Proprietary Rights Act, 1950. Madhya BharatZamindari Abolition Act, 1951. Explanation.-Land under personal cultivation includes land allowed to lie fallow in accordance with the usual agricultural practice; but does not include any land in lawful possession of a raiyat or tenant; S. 4(2) S. 4(2) Notwithstanding anything contained in sub-section (1), the proprietor shall continue to retain the possession of his home-stead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting. Notwithstanding anything contained in sub-section (1), the proprietor shall continue to remain in possession of his Khudkasht land, so recorded in the annual village papers before the date of vesting. On a comparison of these provisions, it will be clear that while under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, the record is the basis, under the Madhya Bharat Zamindari Abolition Act, 1951, the emphasis is laid on personal cultivation. Their Lordships of the Supreme Court in Haji Sk. Subhan v. Madhorao 1962 MPLJ 265 (SC) : AIR 1962 SC 1230 . and Smt. Savitribai v. The State of Madhya Pradesh C.A. No. 12 of 1965 decided on 29.9.1967 have interpreted the scheme underlying the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. In Haji Sk. Their Lordships of the Supreme Court in Haji Sk. Subhan v. Madhorao 1962 MPLJ 265 (SC) : AIR 1962 SC 1230 . and Smt. Savitribai v. The State of Madhya Pradesh C.A. No. 12 of 1965 decided on 29.9.1967 have interpreted the scheme underlying the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. In Haji Sk. Subhan's case (supra), their Lordships have laid down that the only condition requisite for the proprietor having certain land treated as his "home-farm" was the fact that the annual papers of the year 1948-49 recorded that land as Sir and Khudkasht. The basis was the record and not the fact of actual cultivation or his title to that land. In other words, the recorded entry was treated to be the basis for adjudging the land to be "home-farm". Following that view, their Lordships in Smt. Savitribai's case (supra) held that "fraud apart, the expression "recorded" means actually recorded and not what should have been recorded as "Khudkasht". The principles laid down in these cases are, however, not applicable to the cases under the Madhya Bharat Zamindari Abolition Act, 1951. The emphasis in the definition of the word 'Khudkasht', as contained in Section 2(c) of that Act, is on the word "cultivated". The whole of that definition is important. Under Section 4(2) of the Act, the saving of rights is in respect of "Khudkasht land, so recorded in the annual village papers before the date of vesting". The words, "so recorded" imply that the land must not only be Khudkashi', within the meaning of Section 2 (c) but must also be "so recorded" immediately before the date of vesting, within the meaning of the section. Now, the expression "Khudkasht" as defined in Section 2 (c) only means that part of the land which was under personal cultivation. The learned Board of Revenue has rightly found that Khasra No. 1230/2 area 36 Bighas 5 Biswas, having been recorded as 'Alawa Jot', i. e. not under personal cultivation during the years Samvats 2006, 2007 and 2008, could not be recorded as the "Khudkasht" of the Petitioner and it was also not recorded as such immediately before the date of vesting. The finding of the Board of Revenue that only Khasra No. 1230/1 area 21 Bighas 17 Biswas was under the personal cultivation of the Petitioner and was, therefore, his Khudkasht is a finding of fact which cannot be assailed in these proceedings. The Board of Revenue rightly distinguished the decision in Bindrawan v. M.P. Slate (supra) on the ground that it related to the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, under which the definition of the word "home-farm", as contained in Section 2 (g) of that Act, was altogether different. There is no dispute before us that Khasra No, 1230 /2 area 36 Bighas 5 Biswas were recorded as Padti Jadeed in Samvats 2006, 2007 and 2008 under the Qanoon Mal, Gwalior. Under Section 2(6) of the Qanoon Mal, Gwalior, the expression "Padti Jadeed" is defined as under: Admittedly, the disputed land was lying uncultivated for more than 3 years and was, therefore, rightly recorded as Padti Jadeed The land could not be recorded as "Khudkasht" under any circumstances That view of ours is borne out by Circular No. 2 of Samvat 1996 which clearly directs that the uncultivated part of Khudkasht land should be entered as Padti Jadeed. There is, therefore, no warrant for the submission that when a part of the land bearing a particular Khasra number was under cultivation, the entire land taken as one unit has to be, under law, treated as under cultivation. Equally futile is the contention that the revenue authorities had no power to bifurcate the land and to specify which part of it should be recorded as Khudkasht and which part as Padti Jadeed. The correctness of the view in Bindrawan v. State of M.P. (supra) is open to question. As already stated, the only condition requisite for the proprietor having certain land treated as his "home-farm" under Section 4(2) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, was the fact that the annual papers of 1948-49 recorded that land as his Sir or Khudkasht. The recorded entry was treated to be the basis for adjudging the land to be "home-farm". While interpreting the definition of "home-farm" in Section 2(g) of that Act, a Full Bench of this Court in Rahmatullah Khan v. Mahabirsingh 1956 NLJ 1: ILR 1955 Nag. The recorded entry was treated to be the basis for adjudging the land to be "home-farm". While interpreting the definition of "home-farm" in Section 2(g) of that Act, a Full Bench of this Court in Rahmatullah Khan v. Mahabirsingh 1956 NLJ 1: ILR 1955 Nag. 983 made out an exception in the definition which was not there and, effect, laid down that the application of the Act depended upon the result of pending litigation, a view which was not accepted in the earlier Full Bench case of Chhote Khan v. Mohammad Obedullakhan 1953 NLJ 254: ILR 1953 Nag 702 (FB). In the ultimate analysis, the Full Bench held in Rahmatullah Khan's case (supra) that the definition of "home-farm" in Section 2(g) should be liberally construed and, therefore, the word "recorded" must and ought mean "rightly recorded". Presumably, acting upon that view, the learned Single Judge in Bindrawan v. State of M.P. (supra) held that record could be demonstrated to be wrong and even if a field is partly under cultivation, the whole of it will still remain as Khudkasht, and that vesting will take place in respect of a field as such and not in respect of a part of it. Their Lordships of the Supreme Court in Haji Sk. Subkan v. Madhoreo (supra) have expressly overruled the decision in Rahmatullah Khan v. Mahabirsingh (supra) upon their view that there was a finality to the record which could not be the sphere of litigation. That being so, the decision of the learned Single Judge in Bindrawan v. State of Madhya Pradesh (supra) must be overruled as not laying down good law. There is no warrant for the submission that the Board of Revenue had no jurisdiction to invoke its suo motu revisional powers to set aside the order of the Tahsildar, though that order admittedly was a nullity. The Madhya Pradesh Land Revenue Code, 1959, came into force on 2-10-1959, When the proceedings under Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 were pending. In Asaf Jahan Begum v. Bashir Begum, a Division Bench of this Court has, interpreting Sections 55 and 262 (1) of the Code, stated that the revisional powers of the Board of Revenue, in relation to pending cases under the Madhya Bharat Land Revenue and Tenancy Act, were regulated by Section 39 of that Act. In Asaf Jahan Begum v. Bashir Begum, a Division Bench of this Court has, interpreting Sections 55 and 262 (1) of the Code, stated that the revisional powers of the Board of Revenue, in relation to pending cases under the Madhya Bharat Land Revenue and Tenancy Act, were regulated by Section 39 of that Act. Now, 39 of the Act reads as follows: Power of Government or Board to call for files of subordinate officers and to revise orders,- (1) The Government may suo motu or on an application presented by any party with-in 90 days from the date of the order, call for the record of any proceedings, non-judicial or not connected with settlement, held by any officer subordinate to it and pass thereon such orders as it thinks fit. (2) The Board may suo motu or on an application presented by any party within 90 days from the date of the order, call for the record of any case of a judicial nature of connected with settlement, in which no appeal lies to the Board, if the officer by whom the case was decided appears to have exercised jurisdiction not vested in him by law, or to have failed to exercise jurisdiction so vested or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit. The suo motu powers of revision are untrammelled by any condition as to limitation. The Board may, at any time, exercise such powers, and pass such orders as it thinks fit. In Harprasad v. Board of Revenue 1964 MPLJ 370: 1964 RN 282, a Division Bench of this Court has ruled that there is no bar of limitation in suo motu exercise of revisional powers. The decision in State of Gujarat v. Patel Raghav Natha and Ors. (supra) is clearly distinguishable. It is a trite proposition that a case is an authority for what it actually decides and the generality of the expressions which may be found there are not to be intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found. The decision of their Lordships in State of Gujarat v. Patel Raghav Hatha and Ors. (supra) turned on its own facts. The decision of their Lordships in State of Gujarat v. Patel Raghav Hatha and Ors. (supra) turned on its own facts. Though the provisions of Section 211 of the Bombay Land Revenue Code, 1879 which they interpreted were similar to Section 39 of the Act, nevertheless, the ultimate conclusion that the suo motu powers of revision under Section 211 should have been exercised within a reasonable time, must be read in the context of the particular facts before them. Their Lordships were concerned with an order by which the Commissioner purported to set aside the permission granted under Section 65 to use the land for non-agricultural purposes. In that context, their Lordships observed as follows: It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the Legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. We are of the view that these observations cannot be read out of their context. Their Lordships, in the context of a building sanction, stated that the revisional powers should be exercised within a reasonable time because after the grant of the permission, the occupant is likely to spend money on the construction work. The Tahsildar, by his order dated 28-12-1960, had allowed correction of the entries under Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950. That application was barred by limitation as Section 51 of the Act provided for a period of one year. The State Government was not a party nor was noticed in the proceedings. The Tahsildar, by his order dated 28-12-1960, had allowed correction of the entries under Section 51 of the Madhya Bharat Land Revenue and Tenancy Act, 1950. That application was barred by limitation as Section 51 of the Act provided for a period of one year. The State Government was not a party nor was noticed in the proceedings. The proceedings were still pending when the Board of Revenue decided to revise the order. The lis was still continuing from stage to stage. Therefore, the principle that a change of view of the law was not a ground for exercising suo motu powers of revision, is not attracted. No doubt, the Tahsildar, according to the view of the Board of Revenue, Madhya Bharat in Sukhlal v. Qyanbai (supra) and Harpal v. Mst. Radha (supra) that there was a recurring cause of action, made the order for correction as prayed for. That view was obviously wrong and the Board of Revenue corrected itself, by laying down in Kumedan v. Ramcharan Das 1963 RN 16 that the limitation under Section 51(1) runs from the date on which the annual village papers in which the entry objected to was first made. If failure to observe a statutory provision is a ground for review, we can find no logic or reason why the same principle should not be applied in revisions The order of the Tahsildar was a nullity and did furnish the Board of Revenue with a ground for setting it aside in revision suo motu. In the result, the petition fails and is dismissed with costs. Counsel's fee Rs. 150, for each set of Respondents. Petition dismissed