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1999 DIGILAW 528 (MP)

BABULAL v. BOARD OF REVENUE, GWALIOR

1999-07-29

D.P.S.CHAUHAN

body1999
ORDER D.P.S. Chauhan, J. The petitioners Babulal and his son Rajkumar, by means of this petition have approached this Court for seeking relief for quashing the orders dated 29-3-1976 and 18-2-1982 passed by the Competent Authority (Annexures-B and D to the petition) and order dated 31-1-1986 passed by the Revenue Commissioner (Annexure-G to the petition) and also the order dated 15-10-1986 passed by the Board of Revenue (Annexure-H to the petition) and also for issuance of a direction to the Competent Authority to take subsequent events into account and pass suitable orders in accordance with law. The brief facts are:-- That Babulal was the tenure holder and the draft statement was prepared u/s 11 of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (for brevity, hereinafter referred to as the Act) and the said draft statement was published on 3-1-1976 wherein Babulal together with the members of his family was found to be entitled for retaining 54 acres of land out of his holding 76.68 acres and as such, he was found in possession of 22.68 acres of land as surplus land. On 29-12-1975 an order was passed u/s 4 of the Act whereby the transfer of the land comprised in Khasra No. 8/1 measuring 15 acres of land situated in village Pantalai made by the petitioner Babulal on 19-4-1973 was found void. After the publication of the statement, the main objection was from the side of Mira Bai, the wife of Babulal who stated that Babulal has another wife Kasturi Bai who lives separate from Babulal and she has no connection with the family of Babulal and she has been given through a registered deed dated 11-6-1970 the land measuring 22 acres of land in Mouja Pantalai and as such she is not the member of the family of Babulal and therefore, the land in her possession be not included as the land belonging to the family of Babulal. Such deed of arrangement was brought on the record and which indicated that the land was given to Mira Bai by way of maintenance and not on account of dissolution of marriage and on 29-3-1976, the Competent Authority passed an order holding that Babulal and Kasturi Bai would come in the family of Babulal and as such, Babulal would be entitled for retaining only 54 acres of land of his holding and accordingly 22.68 acres of land was declared surplus. Against this order of the Competent Authority dated 29-3-1976, the petitioner preferred an appeal before the Commissioner, as is stated by the learned counsel for the parties, which was dismissed on 10-1-1977 and it is also stated by the learned counsel that against the same order dated 29-3-1976, a revision was also preferred by Babulal before the Commissioner which was also dismissed on 27-6-1977. Thereafter, against the order passed on the said revision No. 51/76-77 dated 27-6-1977, a further revision was filed before the Board of Revenue, Madhya Pradesh, Gwalior u/s 42 of the Act read with section 51 of the Madhya Pradesh Land Revenue Code, 1959. Nothing further was done on the appeal filed by Babulal against the order dated 29-3-1976. In the revision, nothing was argued on merits and only the attention of the Board of Revenue was invited to the order dated 29-12- 1975 whereby the Competent Authority declared the sale of the land to Sheo Narayan and Shri Ram on 19-4-1973 as void. The order dated 29-12-1975 is as extracted below:-- This order had nothing to do, as far as Kasturibai was concerned. The land transferred to Sheonarayan and Shri Ram was 15 acres and for passing this order, the procedure prescribed u/s 4(1) of the Act was not followed and no information under this order was given to the party and therefore, the said order dated 29-12-1975 could not be upheld and since the order suffers from procedural infirmity, therefore, it was prayed that this order may be set aside in suo motu exercise of power. The Board of Revenue found that proceedings before the Competent Authority which passed the order dated 29-12-1975 suffers from procedural irregularity and both the purchasers i.e. Sheonarayan and Shri Ram were not served with the notice and accordingly, the Board of Revenue in exercise of the suo motu power found that the order passed in revision against the order dated 27-6-1977 does not require any interference. However, in exercise of the suo motu power, the order dated 29-12-1975 was set aside and the Competent Authority was directed for making enquiry in regard to the aforesaid two transfers made in favour of Sheonarayan and Shri Ram following the procedure u/s 4(1) of the Act and consequent upon the passing the order u/s 4(1) of the Act, if any change is required in the revisional order i.e. the order dated 27-6-1977, then the same may be made therein, otherwise, the order dated 27-6-1977 shall be treated as final. This direction was only of a limited scope, that is an enquiry regarding the transfer made in favour of Sheonarayan and Shri Ram was to be made and if the land transferred in favour of Sheonarayan and Shri Ram is found to be valid, then the benefit of the same be given by modifying the order dated 27-6-1977 and if the transfer in favour of Sheonarayan and Shri Ram is found to be void, then the order dated 27-6-1977 shall remain intact. Consequent upon this order, the Competent Authority, on 18-2-1982 passed an order that the transfers made in favour of Sheonarayan and Shri Ram in respect of 15 acres of land were void and also found that Kasturi Bai and Mira Bai both being the wives of Babulal, were members of family of Babulal and accordingly, the Parvarish Nama dated 20-8-1970 did not fall within the ambit of section 4(1) of the Act and this land was to be included in the land of Babulal, the tenure holder, and consequently, the order dated 27-6- 1977 was not altered and it became final. That before the Competent Authority, Babulal and Kasturi Bai filed a fresh objection and the objection was that between Babulal and his second wife Kasturi Bai, there has been divorce before the Panchas on 15-1-1970 and as a result of this divorce, Babulal gave from his holding, 15 acres of land to Kasturi Bai. That before the Competent Authority, Babulal and Kasturi Bai filed a fresh objection and the objection was that between Babulal and his second wife Kasturi Bai, there has been divorce before the Panchas on 15-1-1970 and as a result of this divorce, Babulal gave from his holding, 15 acres of land to Kasturi Bai. This objection was decided by the Competent Authority vide order dated 21-5-1982 whereby he found that the divorce took place between Babulal and Kasturi Bai in the year 1970 and hence, 15 acres of land cannot be included in the land of Babulal. Thereafter, the Commissioner Hoshangabad, in suo motu exercise of revisional power under the Act, proceeded against the order dated 21-5-1982 passed u/s 11(4) of the Act and set aside the same as it was found that the order of the Competent Authority dated 29-3-1976 attained finality subsequent to the passing of the order dated 18-2-1982. Against this order, Babulal preferred a revision before the Board of Revenue u/s 50 of the M.P. Land Revenue Code, 1959 and the said revision was dismissed, holding the order of the Commissioner, dated 31-1-1986 is valid. Hence, this present petition, claiming the relief as mentioned above. Heard the learned counsel for the petitioners and the learned State counsel for respondents 1, 2 and 3. No one appears for respondent No. 4. Learned counsel for the petitioners made the following submissions:-- (1) The transfer dated 11-6-1970 in favour of Kasturi Bai was anterior to the date provided u/s 4 of the Act and the same could not have been declared void; (2) The order dated 21-5-1982 passed by the Competent Authority (Annexure-F to the petition) was neither appealable nor revisable and as such, the same became final. (3) The order passed by the Board of Revenue dated 15-10-1986 (Annexure-H to the petition) in so far as it says that against the order dated 18-2-1982 passed by the Competent Authority, Kasturi Bai did not file any appeal, wherein the transfer to her was held invalid, is illegal, as the order dated 18-2-1982 (Annexure-D to the petition) was modified by the order dated 21-5-1982 (Annexure-F to the petition) wherefrom the petitioner was not aggrieved and that the suo motu power exercised by the Commissioner against the order dated 21-5-1982 passed by the Competent Authority, was illegal as the same was exercised beyond the period provided for filing of the revision u/s 44 of the Act; and (4) Lastly, the order passed in revision was illegal. So far as the first point is concerned, the learned State counsel submitted that the land given to Kasturi Bai by way of "Parvarishnama" for her maintenance for lifetime, was not declared void. Since the transfer of land made in regard to the land given to Kasturi Bai by way of arrangement for her maintenance during her life was not declared void, therefore, the first point has no substance. This submission of the learned State counsel has got substance as the order dated 29-3-1976 (Annexure-B to the petition) was passed consequent upon the order of remand by the Board of Revenue and the Board of Revenue under the order dated 19-7-1979 (Annexure-C to the petition) maintained the same and the remand was made in respect of the order dated 29-12-1975 for determining the nature of the transfer of land to Sheonarayan and Shri Ram following the procedure u/s 4 of the Act and consequent thereupon the order dated 18-2-1982 was passed, holding that the transfers made in favour of Sheonarayan arid Shri Ram were void. The order dated 29-3-1976 became final as per the order of the Board of Revenue dated 19-7-1979 and therefore, in view of this, this submission as advanced is devoid of substance. The second submission is that the order dated 21-5-1982 (Annexure-F to the petition) passed by the Competent Authority deciding the objection of Babulal and Kasturi Bai, became final as the same was neither appealable nor revisible. The second submission is that the order dated 21-5-1982 (Annexure-F to the petition) passed by the Competent Authority deciding the objection of Babulal and Kasturi Bai, became final as the same was neither appealable nor revisible. Learned State counsel submitted that so far as this order of the Competent Authority is concerned, it was an order in nullity as it could not have been passed, as no proceedings could have been initiated u/s 11 of the Act after the proceedings once have been initiated and the objections of Babulal and Kasturi Bai were not maintainable and as such, the order is void. It has been pointed out that the record of the Courts below has come and from the record it is evident that no fresh proceedings u/s 4(1) of the Act were initiated and so long the order dated 29-3-1976 survives, there was no question of passing the order dated 21-5-1982 by the Competent Authority. Since this order of the Competent Authority was without jurisdiction, the Commissioner exercised suo motu power and interfered with the order under his order dated 31-1-1986 whereby the order dated 21-5-1982 was set aside by holding as: The order dated 21-5-1982 was not an order passed u/s 11 of the Act as no fresh objections were invited thereunder and since the order was not passed u/s 11 of the Act, therefore, there was no question that it was neither appealable or revisible. The Commissioner had the authority to interfere with the order in his suo motu power of revision. The question was not regarding the question of title but the question was regarding the fact as to whether the transfer was validly made in favour of Kasturi Bai by Babulal by way of providing her life maintenance. Thus, the question was not the question for determination of title but it only related to the fact as to whether Kasturi Bai would come in the family of Babulal and this land would be clubbed with the land of Babulal or not, I do not find any error in the order passed by the Commissioner contained in Annexure-F to the petition. The third submission was that the order of the Board of Revenue dated 15-10-1986 was bad as the Board of Revenue has said that Kasturi Bai has not filed any appeal against the earlier order of the Competent Authority, dated 18-2-1982 as the order dated 18-2-1982 was passed consequent upon the order of remand made by the Board of Revenue dated 19-7-1979 and the remand was in respect to the order dated 29-12-1975. In this order, it has been stated that Kasturi Bai and Mira both are wives of Babulal and they are members of his family and the Parvarishnama dated 11-6-1970 does not fall within the ambit of section 4(1) of the Act. The Board of Revenue in Para 5, has stated that the only point to be decided is about the land transferred by the tenure holder i.e. Babulal to his wife i.e. Kasturi Bai on 11-6-1970. Thus, before the Board of Revenue, the only point was about the land transferred by holder Babulal to his wife Kasturi Bai on 11-6-1970. The case went to the Competent Authority after remand by the Board of Revenue under the order dated 19-7-1979 on the ground of procedural illegality u/s 4 of the Act in passing the order dated 29-12-1975 which related to transfer of land by Babulal to Sheonarayan and Shri Ram and the Competent Authority therein decided that the land transferred to Kasturi Bai will be treated as the land of the holder as Kasturi Bai was the member of the family. This order was not appealed against and it became final. Kasturi Bai was the wife of Babulal and continued to be so as no decree of divorce was there. The order dated 21-5-1982 was set aside by the Commissioner under his order dated 31-1-1986. Initially, the case was that Kasturi Bai is the wife of Babulal and she was living separately and the land was given to her by way of her maintenance. The alleged transfer of the land in favour of Kasturi Bai was not held to be void u/s 4 of the Act. What was held was that Kasturi Bai was the member of the family of Babulal. Therefore, the order of the Board of Revenue dated 15-10-1986 does not suffer from any infirmity. The alleged transfer of the land in favour of Kasturi Bai was not held to be void u/s 4 of the Act. What was held was that Kasturi Bai was the member of the family of Babulal. Therefore, the order of the Board of Revenue dated 15-10-1986 does not suffer from any infirmity. 14-A. Next, the learned counsel for the petitioners submitted that the suo motu power of revision exercised by the Commissioner in his order dated 31-1-1986 was against the order dated 21-5-1982 which was illegal as the suo motu power has been exercised after expiry of the period of limitation provided for filing the revision. This argument has no substance. Section 44 of the Act provides limitation for filing appeal and application for revision. The exercise of suo motu power is not the application for revision; and therefore, the limitation provided u/s 44 of the Act would not apply to the suo motu exercise of power by the concerned authority for revising any order. Thereafter, it was submitted that suo motu power can be exercised in such a manner so that it may not be described as exercise of power by the authority unreasonably and/or arbitrarily. Learned State counsel submitted that in the writ petition, neither this fact is pleaded nor the foundation is laid down in regard to the fact that the suo motu power was exercised by the Commissioner unreasonably, after a period of unreasonable delay or arbitrarily. Learned counsel for the petitioner was asked to point out from the pleadings the statement in this regard or even by pointing out the grounds of objection but he could not point out. Learned counsel for the petitioner submitted that the facts by themselves speak that the suo motu power was exercised arbitrarily and beyond the reasonable period of time. The order sought to be revised was the order dated 21-5-1982 passed by the Competent Authority and the Competent Authority on 6-10- 1982 wrote to the Collector for seeking his permission for reviewing the order dated 21-5-1982. The Collector was of the view that there was no question of granting permission for review and he accordingly sent the matter for exercise of suo motu power by the Commissioner on 28-3-1985; and as such, the Commissioner exercised the suo motu power thereupon. The Collector was of the view that there was no question of granting permission for review and he accordingly sent the matter for exercise of suo motu power by the Commissioner on 28-3-1985; and as such, the Commissioner exercised the suo motu power thereupon. The Full Bench decision in 1990 MPU 353, Usha Devi vs. State of Madhya Pradesh was cited and in that case, the Full Bench has decided that the power of revision suo motu contemplated u/s 42 of the Act can be and has to be exercised within a reasonable time, that is the meaning to be attributed to the term "at any time" so used therein. What should be the period of time must be with reference to the facts and circumstances of the case and the nature of the order which is being revised. Reliance was placed on the case reported in The State of Gujarat Vs. Patil Raghav Natha and Others, . In the present case, the Competent Authority was vigilant regarding the error and it sought the permission from the Collector immediately within five months and the Collector considered the matter whether the permission for review could be given or not and this took time and ultimately he came to the conclusion that such permission for review cannot be granted and therefore he referred the matter to the Commissioner for exercise of suo motu power. All the facts have been pointed by the learned State counsel from the record of the lower Court summoned by this Court.and made available to him; and the record was also perused by the learned counsel for the petitioners. In view of the above, I do not consider it a case where it can be said that the suo motu power was exercised arbitrarily or with unreasonable delay. In view of the above, I do not find it a case for interference by this Court. The petition deserves to be rejected. It is accordingly rejected. No order as to cost. Security amount, deposited if any, may be refunded.