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Madhya Pradesh High Court · body

2009 DIGILAW 422 (MP)

BIHARILAL v. STATE OF M P

2009-04-02

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THIS judgment shall finally dispose of Writ Appeal No. 313/2006 (Nandlal Vs. State of M. P. and 3 others) and Writ Appeal No. 315/2006 (Biharilal vs. State of M. P. and others) ( 2. ) ON an earlier occasion petitioner Biharilal and Nandlal had come to this court in Writ Petition No. 810/2001 and Writ Petition No. 809/2001 respectively praying as under : "7. 1 That, the notification issued u/s 10 (3) of the Act dated 1. 4. 1994 (Annexure P/6), as also document taking the possession from 8. 2. 2000 (Annexure P/7) may kindly be quashed. 7. 2 That, this Honble Court may kindly be pleased to hold that petitioner is the owner of the land held by him at village Barkhedi kalan and- Khuda Ganj, district Bhopal in view of Section-3 of the urban Land (Ceiling and Regulation) Repeal Act. 7. 3 That, the respondents may kindly be directed to correct the revenue record and enter the name of the petitioner in the revenue record in respect of land situate in village Barkhedi Kalan and khuda Gary, District Bhopal. 7. 4 That, the respondents may kindly be restrained from interfering with the possession of the lands held by the petitioner. 7. 5 Any other relief or reliefs deem fit and proper under the present facts of the case. 7. 6 Cost of the petition. " In the writ petition it was put forth that the petitioners being agriculturists they owned land and as the competent authority had declared some land surplus the High Court should interfere in the matter. However, at the time of final hearing it was submitted that as the petitioners who were never dispossessed from the property and they continued in possession in view of the Urban Land (Ceiling and regulation) Repeal Act, 1999 (hereinafter referred to as the Repeal Act) the proceedings would stand abated and the petitioner would continue to be the owner of the property and the property would not vest in the State Government. The learned single Judge of this Court disposed of the petition with the following directions: "11. Mr. Alok Aradhe, learned counsel for the petitioner, has submitted that the possession has only been taken over on paper but the same has really not been taken over, as records would clearly show. On the contrary, Mr. The learned single Judge of this Court disposed of the petition with the following directions: "11. Mr. Alok Aradhe, learned counsel for the petitioner, has submitted that the possession has only been taken over on paper but the same has really not been taken over, as records would clearly show. On the contrary, Mr. Ajay Raizada, learned government Advocate, submitted that the possession has been taken over as per the provisions of the principal Act. This being a disputed question of fact this court cannot enter into the same to find out whether the possession, as an actual fact, has been taken over. Mr. Raizada has contended that the office of the competent authority has not been abolished. In view of this, I am inclined to direct that the petitioner shall put forth their grievance before the competent authority that the possession has not been taken over and, therefore, no further action can be taken as Section 4 clearly stipulates all proceedings except proceedings under Sections 11, 12, 13 and 14 would abate. In fact, in the case of N. Audikesava reddy (supra) it was clearly laid down that if the possession is not taken over the same cannot be taken over by the State government. Keeping in view the factual scenario it is directed that the competent authority shall afford an opportunity of hearing to the petitioner to put forth their grievance that bow the possession has not been taken over as per law and nothing subsists to be done in the proceeding. It will be open to the petitioner to raise all the contention from all fours relating to the factum of taking over of possession ( 3. ) AFTER such directions were issued by the Court, an enquiry was made by the competent authority and after recording the evidence from the side of the petitioners final order came to be passed on 1. 12. 2005 in Case No. 6-7/b-121/ 2005-06. The learned competent authority observed that the petitioners were not dispossessed nor actual physical possession was taken but only paper entries were made, that the petitioners continued to be in possession of the property on the date of the enforcement of the Repeal Act and therefore, they could continue to be in possession and would be entitled to be recorded as Owners in the revenue record. ( 4. ( 4. ) IT appears that thereafter the officer holding the office of the competent authority was changed. The officer who subsequently assumed the charge after going through the records found that the order dated 1. 12. 2005 was patently illegal. He accordingly recorded proposal for the review proceedings, referred the matter to the Commissioner, Bhopal and sought permission to review the order under section 51 of the M. P. Land Revenue Code. Undisputedly without affording any opportunity of hearing to the petitioners, the Commissioner, Bhopal granted permission to the competent authority/additional Collector to review the order dated 1. 12. 2005. It is also to be noted that the second officer was of the opinion that the erstwhile competent authority did not provide appropriate opportunity of hearing to the State and its officers. The same was the submission before the commissioner. ( 5. ) AFTER permission to review the order was granted notices were issued to the petitioners and after affording them opportunity of hearing the competent authority observed that the order dated 1. 12. 2005 was patently illegal. He accordingly reviewed the order and held that the possession was already taken from the petitioners and in view of the dispossession of the petitioners they were not entitled to any orders in their favour. ( 6. ) THE petitioners being aggrieved by the order dated 20. 2. 2006 passed on review application in case No. 6-7/b-121/2005-2006 have filed the writ petitions. Writ Petition filed by Nandlal was registered as W. P. No. 5586/2006 and filed by biharilal as W. P. No. 5587/2006. Both the matters were heard simultaneously and were finally disposed of on 20. 5. 2006. Being aggrieved by the orders dismissing the writ petitions the petitioners are now before this Court. ( 7. ) LEARNED counsel for the appellant submitted that the competent authority had no powers to review its earlier order under provisions of the Repeal Act and in any case if he could have exercised powers of review under the M. P. Land revenue Code then the authority competent to grant sanction for review ought to have issued a notice to the petitioners before granting sanction for review. It is also submitted that the order could not be reviewed simply because some other view was possible. It is submitted that the order dated 1. 12. It is also submitted that the order could not be reviewed simply because some other view was possible. It is submitted that the order dated 1. 12. 2005 is a speaking order and the authority was not competent to review the orders simply because the authority was of the opinion that the earlier order dated 1. 12. 2005 was not suitable to the interest of the State Government. ( 8. ) SHRI Ruprah, learned Additional Advocate General for the State on the other hand submitted that a perusal of the order dated 1. 12. 2005 would make it clear that the order is patently illegal and was passed without affording any opportunity of hearing to the respondent/state. It is also submitted by him that every Court has inherent jurisdiction to undo a wrong and if a Court finds that if some illegality has been committed then the Court must immediately strike upon the illegality and should not protect the. same. It is submitted by him that though powers of review are not available in the Repeal Act but the competent authority could take help and aid of Section 51 of the M. P. Land Revenue Code. After taking us through the order impugned dated 20. 4. 2006 he submitted that the competent authority was justified in reviewing the earlier order dated 1. 12. 2005. ( 9. ) WE have heard the parties at length. ( 10. ) SECTION 51 of the M. P. Land Revenue Code deals with review of orders. . It reads as under : "51: Review of orders (1 ). The Board and every Revenue Officer may, either on its/his own motion or on the application of any party interested review any order passed by itself/himself or by any of its/his predecessors in office and pass such order in reference thereto as it/he thinks fit: provided that -. (i ). If the Commissioner, Settlement Commissioner, Collector or- Settlement Officer thinks it necessary to review any order which he has not himself passed, he shall first obtain the sanction of the Board, and if an officer subordinate to a collector of Settlement officer proposes to review any order, whether passed by himself or any predecessor, he shall first obtain the sanction in writing of the authority to whom he is immediately subordinate; (i-a ). No order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order; (ii ). No order from which an, appeal has been made, or which is the subject of any revision proceedings shall, so long as such appeal or proceedings are pending be reviewed; (iii ). No order affecting any question of right between private persons shall be review except on the application of a party to the proceedings, and no application for the review of such order shall be entertained unless it is made within ninety days from the passing of the order. (2 ). No order shall be reviewed except on the grounds provided for in the Code of Civil Procedure, 1908 (3 ). For the purposes of this Section the Collector shall be deemed to be the successor in office of any Revenue Officer who has left the district or who has ceased to exercise powers as a Revenue officer and to whom there is no successor in the district. (4 ). An order which has been dealt with in appeal or on revision shall not be reviewed by an Revenue Officer subordinate to the appellate or revisional authority. ( 11. ) WHEN the power of review are to be exercised the authority competent to grant sanction for review has not simply to pass an order that petition for grant of sanction is allowed he has to apply mind to the facts of the case. In the matter of ravinarayan Vs. State of M. P. and others 2000 Revenue Nirnay 161 one of us sitting single has made the following observations : "19. The scheme of section 51 of the Code is that in case the commissioner, Settlement Commissioner, Collector or Settlement officer wants to review an order passed by him he can do it without seeking any sanction from the Board but if he/they want to review an order passed by any predecessor sanction of the Board is a condition precedent. But in case of any officer subordinate to a collector or Settlement Officer whether he has passed the order himself or wants to review an order passed by his predecessor, he is bound to seek written sanction from the authority to whom he is immediately subordinate. 20. But in case of any officer subordinate to a collector or Settlement Officer whether he has passed the order himself or wants to review an order passed by his predecessor, he is bound to seek written sanction from the authority to whom he is immediately subordinate. 20. The opening word of section 50 and 51 of the Code would clearly provide that the powers of revision and review can be exercised by the authority on his own motion or on an application by the aggrieved party. What should be the period of limitation for exercising suo motu revisional powers has been considered in number of cases while considering the revisional powers. 21. A power of Review is vested in the Court so that the said court can correct the wrong which has been committed by it. It - may be a case where the same Court/authority after learning about the wrong committed by it wants to correct the wrong. It can exercise the powers either on an application or suo motu. In case of a revision the superior Court invested with powers of revision wants to correct the wrong committed by his subordinate. The superior Court may exercise these powers suo motu or on an application by the aggrieved party. The powers in fact are such which can be exercised by the same Court or by the revisional court because each of the Court wants to correct the wrong. In case of review the anxiety is of the same Court while in the case of revision the anxiety is of the superior Court. While granting permission for review the authority is not required to give a mechanical sanction. The order must show application of mind. It must appear from the order that the authority was not swayed away but the order must show that it is has considered the facts and after application of the mind has granted the permission. In the present case, when the papers were placed before the Collector seeking sanction for review, the Collector simply said agreed with the recommendations in the opinion of this Court such observation shows absolute and utter non-application of mind. If would not be proper for an authority to say that agreeing with the recommendations, he was granting permission for review. The order passed by the Collector is not in accordance with law. If would not be proper for an authority to say that agreeing with the recommendations, he was granting permission for review. The order passed by the Collector is not in accordance with law. True it is that no form is prescribed for granting the sanction nor particular words are to be used for granting sanction but such an order, granting sanction, would not meet any requirement of law. " ( 12. ) IT is further to be seen that a division Bench of this Court in the matter of shaheed Anwar Vs. Board of Revenue and another 2000 Revenue Nirnay 76 has observed that under Section 51 proviso 1 of M. R 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 hands 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 or granting the sanction. The other side can well convince the authority that the case on hands is not such where absolute illegality has been committed and possibility of the other view would not justify grant of sanction for review. ( 13. ) UNDISPUTEDLY in the present matter neither the principle laid down in Ravi narayan (supra) or the principle laid down in Shaheed Anwar (supra) were observed. The sanction for review granted by the Commissioner, Bhopal was patently illegal and if that was so the ceiling authority was not entitled to proceed further with the review. ( 14. ) SO far as the powers of the competent authority under the Repeal Act to exercise the powers under the M. P. Land Revenue Code are concerned in the matter of Ghanshyam Singh and others Vs. ( 14. ) SO far as the powers of the competent authority under the Repeal Act to exercise the powers under the M. P. Land Revenue Code are concerned in the matter of Ghanshyam Singh and others Vs. State of M. P. and others 2000 Revenue Nirnay 193 the learned single Judge has observed that either under Section 11 and/or Section 12 of the Ceiling on Agricultural Holdings Act, 1960 power of review could not be exercised. Present is a case under Urban Land (Ceiling and regulation) Act, 1999 but the provisions are parimatria / similar. Undisputedly the competent authority under the Repeal Act is not vested with the power to review the earlier order with or without the sanction of the authority. If the provisions of m. P. Land Revenue Code do not apply then the competent authority could not make an application under Section 51 to the Commissioner, Bhopal for granting sanction. ( 15. ) SO far as arguments relating to inherent powers of this Court are concerned shri Ruprah has placed his strong reliance in the matter of Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. 1996 (5) SCC 550 . In the said matter the Supreme court observed that if a fraud is committed before the Court then the same would amount to abuse of the process of Court and a decree/order is obtained by committing fraud before the Court, the Court would be obliged to decide the question regarding fraud by recording evidence and in appropriate cases it can recall its decree/order. We are unable to apply the ratio of this case to the case on hands. Present is not a case where it is stated before the Court that some fraud was committed by the petitioner upon the competent authority. The argument in fact is that the order dated 1. 12. 2005 was passed without notice or opportunity of hearing to the State and/or its officers and/or its authorities. Even otherwise present is not a case where the validity, propriety and correctness of the order dated 1. 12. 2005 has been challenged before us. The competent authority itself thought that the earlier order dated 1. 12. 2005 was wrong and it was required to be reconsidered. If the authority found that the order was bad then the said order could be challenged in the proceedings which were competent and were maintainable under law. 12. 2005 has been challenged before us. The competent authority itself thought that the earlier order dated 1. 12. 2005 was wrong and it was required to be reconsidered. If the authority found that the order was bad then the said order could be challenged in the proceedings which were competent and were maintainable under law. In absence of the powers of review under the Repeal Act and in view of the application of Section 51 of the Land Revenue Code for purposes for review of the orders earlier passed so also in absence of any submission by the respondent / state that order dated 1. 12. 2005 was obtained by fraud, we are unable to hold that the competent authority could propose for a review, the Commissioner could sanction for review and under the said sanction the competent-authority could review the order dated 1. 12. 2005 and pass a fresh order on 20. 4. 2006. ( 16. ) TAKING into consideration the totality of the circumstances, we hereby set aside and quash the order dated 20. 4. 2006 passed by the competent authority under the Repeal Act in Case No. 6-7/b-121/2005-2006 and restore that of 1. 12. 2005. All the findings recorded in the order dated 20. 4. 2006 and the findings recorded by the learned Single Judge in the impugned orders are set aside. ( 17. ) THOUGH we are allowing the appeal and setting aside the order dated 20. 4. 2006 but we make it clear that if the State is still aggrieved by the order dated 1. 12. 2005 passed by the then competent authority then they shall be free to approach the appropriate forum in appropriate proceedings challenging the correctness, validity and propriety of the order dated 1. 12. 2005. ( 18. ) CONSEQUENTLY the order passed by the learned single Judge dated 20. 5. 2006 passed in Writ Petition No. 5586/2006 and Writ Petition No. 5587/2006 and the order dated 20. 4. 2006 passed by the competent authority are set aside. The appeals to the extent indicated above and the liberty aforesaid are allowed. There shall be no order as to costs. Appeal allowed.