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Madhya Pradesh High Court · body

2011 DIGILAW 983 (MP)

Rajendra Kumar Agrawal v. State of M. P.

2011-08-24

ALOK ARADHE

body2011
ORDER 1. In these two petitions under Article 226 of the Constitution of India the petitioners have challenged the validity of the orders dated 28.1.2010 and 27.1.2010 by which the Collector in exercise of power under section 51 (1) of the M.P. Land Revenue Code, 1959 (hereinafter referred to as ‘the Code’) has reviewed the order dated 13.10.2008 and the order dated 6.10.2008 respectively. In order to appreciate the controversy involved in the petitions, the facts from W.P. No. 7416/2010 are being referred to. 2. The land bearing Khasra No. 362/3 admeasuring 0.795 hectare situated at Village Chaka, Tahsil and District Katni, was being used by the villagers for the purpose of cremation though the same was held in Bhumiswami rights. The petitioner purchased the aforesaid land vide registered sale-deed dated 29.12.2007 from its erstwhile owner. Thereafter the petitioner made an application for exchange of the land. On the application submitted by the petitioner an enquiry was conducted by Tahsildar and the enquiry report (Annexure P-2), dated 23.5.2008 was submitted. Thereupon a notice was published inviting objections with regard to exchange of the land. The Gram Sabha through the Gram Panchayat, Chaka also submitted the ‘no objection certificate’ for exchange of land in question. The Patwari submitted the report pointing out that the value of the land belonging to the petitioner is Rs.4,12,053/-. The Collector vide order dated 13.10.2008 (Anexure P-4) allowed the application for exchange of land submitted by the petitioner subject to the condition that the petitioner shall deposit a sum of Rs. 2,46,800/-, i.e., different in the value of the land of the petitioner and that of the land which was allotted to the petitioner bearing Khasra No. 198 admeasuring 0.30 hectare. It was further directed that the land, which is allotted to the petitioner shall be used for the agricultural purpose only and the petitioner shall not claim any compensation in respect of 0.100 hectare of land. 3. The Collector thereafter in exercise of suo moto powers under section 51 (1) of the Code initiated the proceedings on 12.6.2009 for review of the order dated 13.10.2008 and by order dated 28.1.2010, order dated 13.10.2008 was reviewed and the amount deposited by the petitioner was directed to be refunded. In the aforesaid factual background the petitioner had visited this Court. 4. In the aforesaid factual background the petitioner had visited this Court. 4. Shri R.L. Gupta, learned counsel for the petitioner submitted that the order dated 28.1.2010 passed by the Collector is ab initio void as no prior permission from the Board of Revenue was taken by the Collector prior to invocation of suo motu power under setion 51 of the Code. It has further been submitted that suo motu power was exercised by the Collector after inordinate delay. Since, the order is ab initio void therefore, the doctrine of alternative remedy would not apply in the facts and circumstances of the case. In support of his submission, learned counsel for the petitioner has placed reliance on the decisions in Bhagwati Prasad v. Marketing Society, Karera, 1988 RN 45, Bhagwandas and others v. State of M.P. and others, 1998 RN 415 and Biharilal v. State of M.P. and others, 2010 RN 124 . 5. On the other hand, learned Panel Lawyer for the respondents submitted that the land bearing Khasra No. 362/3 was reserved for the purpose of cremation prior to 1956. In this contention, reference has been made to the document contained in Annexure R-3. It was further submitted that Tahsildar after conducting the enquiry vide order dated 5.7.2010 had struck out the name of predecessor-in-title of the petitioner from the revenue record therefore, no title was conveyed to the petitioner. The application was filed with ulterior motive to grab the valuable land of the Government bearing Khasra No. 198 situate near National Highway No. 7. It was also submitted that since, the Collector who has passed the order on 13.10.2008 had initiated the proceeding for review on 12.6.2009, therefore, no permission was required to be obtained from the Board of Revenue under section 51 of the Code. It was also pointed out that against the order impugned in the instant petition, the petitioner has the remedy of filing of an appeal under section 44 of the Code, therefore, in view of the availability of alternative remedy, the writ petition should not be entertained. 6. I have considered the submissions made by learned counsel for the parties. Relevant extract of section 51 of the Code reads as under :- “51. 6. I have considered the submissions made by learned counsel for the parties. Relevant extract of section 51 of the Code 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, 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 or Settlement Officer proposes to review any order, whether passed by himself or by any predecessor, he shall first obtain the sanction in writing of the authority to whom he is immediately subordinate.” Thus, from perusal of section 51 of the Code it is apparent that where an officer seeks to review the order passed by his predecessor in office, he has to obtain sanction from the higher authority. 7. The power to review is a creature of statute and does not exist till it is provided by the statute. It is equally settled that if the conditions, in which power of review has to be exercised are specified by the statute then on fulfillment of those conditions alone, the power conferred, becomes annexed with a duty to be exercised in that manner. [See : Official Liquidator v. Dharti Dhan (P) Ltd., AIR 1977 SC 740 ]. It is also well settled legal proposition that where the statute prescribes a mode of doing of certain thing in certain way that thing must be done in that way and not at all. [Ramchandra Keshav Adke v. Govind Joti Chavare and others, AIR 1975 SC 915 = (1975) 1 SCC 559 and State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 ]. 8. In the backdrop of well settled legal position, the facts of the case may be seen. In the instant, case though the proceedings for review were initiated by the Collector who had passed the order dated 13.10.2008, yet the order reviewing the order dated 13.10.2008 was passed by the Collector who was successor in office of the Collector who had passed the order dated 13.10.2008. In the instant, case though the proceedings for review were initiated by the Collector who had passed the order dated 13.10.2008, yet the order reviewing the order dated 13.10.2008 was passed by the Collector who was successor in office of the Collector who had passed the order dated 13.10.2008. Thus, it was imperative on the part of the Collector to seek permission of the Board of Revenue before seeking to review the order passed by his predecessor in office. [Ravi Narayan v. State of M.P. and others, 2000 RN 161 and Biharilal (supra)]. The availability of an alternative remedy does not operate as a bar in a case where the order is wholly without jurisdiction. [See : Whirpool Corpon. v. Registrar of Trade Marks, AIR 1969 SC 556 , Harbanslal Sahia v. Indian Oil Corpn. Ltd. (1988) 8 SCC 1, (2003) 2 SCC 107 and Sanjana M. Wig (Ms) v. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242 ]. The impugned order dated 28.10.2010 is without jurisdiction as the same has admittedly been passed without obtaining permission from the Board of Revenue. Therefore, the contention of the learned Government Advocate that the petitioner should be relegated to avail the alternative remedy cannot be accepted. Accordingly, the order dated 28.1.2010 is quashed. Needless to state that the respondents would be at liberty to proceed against the petitioners after taking permission from the Board of Revenue. 9. Accordingly, the writ petition is disposed of.